CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 4 mars 1998

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                          AS TO THE ADMISSIBILITY OF                         Application No. 30541/96                       by Hannu Olavi RÖNKÄ                       against Finland         The European Commission of Human Rights (First Chamber) sitting in private on 4 March 1998, the following members being present:              MM     N. BRATZA, Acting President                  M.P. PELLONPÄÄ                  E. BUSUTTIL                  A. WEITZEL                  C.L. ROZAKIS            Mrs    J. LIDDY            MM     L. LOUCAIDES                  B. CONFORTI                  I. BÉKÉS                  G. RESS                  A. PERENIC                  C. BÎRSAN                  K. HERNDL                  M. VILA AMIGÓ            Mrs    M. HION            Mr     R. NICOLINI              Mrs    M.F. BUQUICCHIO, Secretary to the Chamber         Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;         Having regard to the application introduced on 6 February 1996 by Hannu Olavi RÖNKÄ against Finland and registered on 21 March 1996 under file No. 30541/96;         Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;         Having deliberated;         Decides as follows:   THE FACTS         The applicant is Finnish citizen, born in 1969. He resides in Oulu and is serving his prison sentence in Pelso Central Prison. Before the Commission he is represented by Mr Matti Sarkkinen, a lawyer practising in Oulu.         The facts of the case, as submitted by the applicant, may be summarised as follows.         The applicant was arrested on 24 August 1994 for the purpose of bringing him before a court and on the basis of suspicion of having committed offences which had to be investigated. On 25 August 1994 he was served with an indictment covering seven offences including, among other things, theft, hiding stolen goods and disturbance of domestic peace. On 28 August 1994 the Oulu District Court (käräjäoikeus, tingsrätt) decided to detain the applicant on remand pending trial. On 15 September 1994 the applicant was served with an indictment covering six additional offences including two counts of aggravated theft.         The case was heard for the first time on 20 September 1994 before the District Court. The applicant admitted having committed some of the offences and denied others. Two witnesses called by the prosecutor were heard. The case was adjourned until 4 October 1994.         On 4 October 1994 the case continued before the District Court. The applicant and his legal counsel were present. The applicant was charged with several additional offences. The applicant denied all the new charges. The prosecutor called two new witnesses but neither of them appeared for which reason the prosecutor requested that the case be adjourned in order to hear at least one of them. The applicant requested that the case be transferred to another Chamber of the District Court as he had been charged with other offences and was to be tried before that Chamber the following day. The District Court rejected the request to join the cases as it found such a step unnecessary having regard in particular to the fact that the applicant was charged in the other Chamber with offences for which only fines could be imposed and since there were several other accused involved in that case. The case was adjourned until 10 October 1994.         On 10 October 1994 both the applicant and his legal counsel were present at the hearing. The prosecutor and the applicant called two witnesses each. During the hearing of the witnesses the presiding judge denied the applicant the right to put questions to the witnesses personally as he was legally represented in court. The applicant also named three witnesses whom he had not been able to call to the hearing and requested that the case be adjourned in order to hear these witnesses on his behalf. The prosecutor objected to this because, in his opinion, these witnesses could not add anything new to the case and since it was likely that one of them would later be charged with the same offences himself. On the basis of the available documents and information the District Court rejected the applicant's request to hear the above-mentioned three further witnesses as they could not, in the Court's view, add anything of relevance to the case and as one of them risked being charged with the same offences himself. The District Court adjourned the case until 24 October 1994 on which date judgment would be pronounced.         In its judgment of 24 October 1994 the District Court convicted the applicant of nineteen different offences and sentenced him to one year and eight months' imprisonment.         The applicant appealed to the Rovaniemi Court of Appeal (hovioikeus, hovrätt) stating, among other things, that his right to examine and have examined witnesses against him and to obtain attendance and examination of witnesses on his behalf under the same conditions as witnesses against him was violated. He maintained that the District Court had on 10 October 1994 rejected his request to call certain witnesses even though their statements, in the applicant's opinion, would have been important to his defence. The applicant also referred to the fact that the presiding judge had denied him the right to put questions to the witnesses personally.         On 14 March 1995 the Court of Appeal confirmed the refusal not to hear further witnesses as they could not, also in the opinion of the Court of Appeal, add anything of relevance to the case. In its judgment of the same date the Court of Appeal acquitted the applicant of two offences and upheld the conviction as regards the others. The Court of Appeal reduced the sentence to one year and four months' imprisonment.         The applicant requested leave to appeal to the Supreme Court referring to the same points as those raised in the Court of Appeal. On 16 August 1995 the Supreme Court (korkein oikeus, högsta domstolen) refused him leave to appeal.   COMPLAINTS   1.     The applicant complains that he was not afforded a fair trial as the charges against him were not heard before the same Chamber of the Court in one trial. He invokes Article 6 para. 1 of the Convention.   2.     The applicant also complains that his right to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him was violated as he was not allowed to put questions to the witnesses himself and as his request to adjourn the case in order to call further witnesses on his behalf was rejected. He invokes Article 6 para. 3 (d) of the Convention.   THE LAW   1.     The applicant complains that he did not have a fair trial and refers in particular to the fact that his cases were not heard before the same Chamber of the District Court in one trial. He invokes Article 6 para. 1 (Art. 6-1) of the Convention which in its relevant part reads as follows:         " In the determination ... of any criminal charge against       him, everyone is entitled to a fair and public hearing       within a reasonable time by an independent and impartial       tribunal established by law. ..."         The question whether a trial is in conformity with the requirements of Article 6 para. 1 (Art. 6-1) must normally be considered on the basis of an examination of the proceedings as a whole (cf. for example No. 11058/84, Dec. 13.5.86, D.R. 47, p. 230 and No. 12002/86, Dec. 8.3.88, D.R. 55, p. 218). It is, however, not the Commission's task to express itself as to the appropriateness of a procedural decision taken when motivated by a proper and efficient use of the available resources of the legal system. A request to have criminal cases joined is not as such guaranteed by the Convention and as far as the Convention issue is concerned, i.e. the right to fair trial, the Commission considers that the decision of the trial court not to join the cases against the applicant did not in the present circumstances disclose any appearance of a violation of Article 6 para. 1 (Art. 6-1) of the Convention.         It follows that this part of the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.     The applicant also complains that his right to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him was violated as his request to adjourn the case in order to call further witnesses on his behalf was rejected and as he was not allowed to put questions to the witnesses himself. He invokes Article 6 para. 3 (d) (Art. 6-3-d) of the Convention which reads as follows:         "Everyone charged with a criminal offence has the following       minimum rights:       ...       d. to examine or have examined witnesses against him and to       obtain the attendance and examination of witnesses on his       behalf under the same conditions as witnesses against him;"         As regards the applicant's complaint about the hearing of additional witnesses, the Commission recalls that, as a general rule, it is for the national courts to assess the evidence before them as well as the relevance of the evidence which the defendants seek to adduce. More specifically, Article 6 para. 3 (d) (Art. 6-3-d) of the Convention leaves it to them, again as a general rule, to assess whether it is appropriate to call witnesses and it does not require the attendance and examination of every witness on the accused's behalf (cf. Eur. Court HR, Vidal v. Belgium judgment of 28 October 1992, Series A no. 235, pp. 32-33, para. 33 and No. 25062/94, Dec. 18.10.95, D.R. 83-A, p. 77 and No. 25096/94, Dec. 6.9.95, D.R. 82-A, p. 117).         In the present case the Commission notes that District Court had heard six witnesses and the request to hear further witnesses was made thereafter. The District Court found that the witnesses in question could not in addition to the evidence already available add anything of relevance to the case. The Court of Appeal accepted this, and the Supreme Court did not grant leave to appeal.         In these circumstances, the Commission finds no sufficient grounds to conclude that in the circumstances of the present case the refusal to take further evidence was incompatible with Article 6 para. 3 (d) (Art. 6-3-d). In particular the Commission has found no elements which would indicate that the trial courts in the present case went beyond their discretion to refuse to take evidence when refusing to hear the witnesses concerned.         As regards the complaint concerning the examination of the witnesses heard during the trial the Commission recalls that it is in principle essential that an accused is present when witnesses are being heard in a case against him (cf. for example No. 8395/78, Dec. 16.12.81, D. R. 27, p. 50). However, this does not mean that the accused has an absolute right to put questions to the witness personally, especially if the accused is legally represented, as long as the accused has a right to cross-examine the witness at least through his legal counsel.         In the present case the Commission recalls that the applicant and his legal counsel were present in court. Nothing indicates that the applicant was prevented from advising or instructing counsel as to how questions should be put to the witnesses and nothing indicates that counsel was in any way prevented from cross-examining the witnesses concerned.         In these circumstances the Commission is satisfied that the interests of the defence during the examination of witnesses concerned could be safeguarded by the lawyer just as well as by the applicant himself. It follows that this aspect of the case does not disclose any appearance of a violation of Article 6 para. 3 (d) (Art. 6-3-d) of the Convention either.         It follows that this part of the application is also manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.         For these reasons, the Commission, unanimously,         DECLARES THE APPLICATION INADMISSIBLE.         M.F. BUQUICCHIO                             N. BRATZA          Secretary                             Acting President    to the First Chamber                      of the First Chamber