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. 31043/96                       by Seppo Olavi LEHTO                       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 20 February 1996 by Seppo Olavi LEHTO against Finland and registered on 18 April 1996 under file No. 31043/96;         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 a Finnish citizen, born in 1962. He resides in Tampere and is a teacher of history by profession.         The facts of the case, as submitted by the applicant, may be summarised as follows.         On 9 May 1994 the applicant got into a fight with another person in front of his home. The police were called and an investigation commenced. The applicant submits that he complained about the behaviour of the police to the public prosecutor. The outcome thereof remains unknown.         Following the above incident the applicant was charged with assault. The case commenced in the Tampere District Court (käräjäoikeus, tingsrätt). On 17 November 1994 the case was, however, adjourned until 22 December 1994 as the applicant failed to appear due to illness.         On 9 December 1994 the applicant requested in writing the District Court to grant him a cost-free trial and to appoint a counsel as he did not have sufficient means to pay for such assistance. The District Court granted the cost-free trial but rejected the request for appointment of counsel as in its view the interests of justice did not require it due to the fact that the matter was of a rather simple character and appeared to involve only fines in case the applicant was convicted.         On 13 December 1994 the applicant appealed against the above decision to the Turku Court of Appeal (hovioikeus, hovrätt) claiming that counsel should be appointed for him on the basis of the Act on Cost-free Trials (laki maksuttomasta oikeudenkäynnistä, lag om fri rättegång) as he could not attend to his interests before the court without such assistance.         While the question of free legal assistance was pending before the Court of Appeal the case against the applicant continued in the District Court on 22 December 1994. The following was mentioned in the minutes of the court:   (Translation)         "[The applicant] arrived at the court at 9.12 hours making       nazi salutes and shouting slogans with a children's potty       in his hand. [The applicant] put the potty on the floor of       the court room and asked the other party to sit on it.         The potty was removed from the court room by order of the       presiding judge.         It was noted that [the applicant] made so many remarks that       it was impossible to deal with the case. The presiding       judge requested [the applicant] to keep quiet and to accept       the presiding judge's instructions as to who was allowed to       speak. [The applicant] agreed to that.         The prosecutor read out the charges.            It was noted that during the reading of the            charges [the applicant] put his fingers in his            ears refusing to listen to the charges."         During the hearing the applicant submitted that he would remain silent as he was not legally represented and as he was not prepared to defend himself without such assistance. He requested that the case be adjourned until the question of free legal assistance had been finally determined by the Court of Appeal. The request was rejected as the applicant had not submitted any reasons why the trial should be adjourned until the question of free legal aid had been determined by the Court of Appeal. The District Court also stated that it was not competent to decide the question of free legal assistance as it was now pending before a higher instance. The hearing continued with the hearing of the victim and two witnesses one of whom was a police officer.         On 22 December 1994 the District Court convicted the applicant of assault on the basis of an evaluation of the available evidence and he was sentenced to pay a fine totalling FIM 600. The applicant was also ordered to pay compensation in the amount of FIM 1,250 to the victim.         The applicant appealed against the judgment to the Court of Appeal maintaining that he had been wrongly convicted. He also claimed that the presiding judge had been partial as he had wrongly entered in the records that the applicant had "made nazi salutes and shouted slogans". The applicant furthermore complained that as the question of free legal assistance had not been determined he had not had adequate time and facilities to prepare his defence. Finally, he complained that one of the witnesses, the police officer, had shown bias against him.         In its judgment on 26 April 1995 the Court of Appeal refused the applicant's request for appointment of counsel and upheld the District Court's judgment and its reasoning.         On 6 September 1995 the Supreme Court (korkein oikeus, högsta domstolen) refused leave to appeal.     COMPLAINTS   1.     The applicant complains that he has been wrongly convicted and sentenced by a partial tribunal. He invokes in this respect Article 6 para. 1 of the Convention.   2.     Furthermore, the applicant complains of the fact that he was refused free legal assistance and invokes Article 6 para. 3 (c) of the Convention.   3.     Finally, under Article 6 para. 3 (b) of the Convention, the applicant complains that he did not have adequate time and facilities for the preparation of his defence.   THE LAW   1.     The applicant complains that he has been wrongly convicted and sentenced by a partial tribunal. He invokes in this respect Article 6 para. 1 (Art. 6-1) of the Convention which, in so far as relevant, reads as follows:         "In the determination ... of any criminal charge against       him, everyone is entitled to a fair and public hearing ...       by an independent and impartial tribunal established by       law. ..."         With regard to the judicial decisions of which the applicant complains, the Commission recalls that, in accordance with Article 19 (Art. 19) of the Convention, its only task is to ensure the observance of the obligations undertaken by the Parties in the Convention. In particular, it is not competent to deal with an application alleging that errors of law or fact have been committed by domestic courts, except where it considers that such errors might have involved a possible violation of any of the rights and freedoms set out in the Convention. The Commission refers, on this point, to the established case-law of the Convention organs (cf. Eur. Court HR, Schenk v. Switzerland judgment of 12 July 1988, Series A no. 140, p. 25, para. 45).         It is true that in this case the applicant also complains that the District Court was partial as the judge had allegedly entered biased remarks of his behaviour in the records of the court.         The Commission recalls that the existence of impartiality for the purposes of Article 6 para. 1 (Art. 6-1) of the Convention must be determined according to a subjective test, that is on the basis of the personal conviction of a particular judge in a given case, and also according to an objective test, that is ascertaining whether the judge offered guarantees sufficient to exclude any legitimate doubt in this respect (cf. e.g. No. 15975/90, Dec. 1.7.91, D.R. 71, p. 245 and Eur. Court HR, Hauschildt v. Denmark judgment of 24 May 1989, Series A no. 154, p. 21, para. 46).         The Commission considers that the applicant has not submitted anything which could cast doubt on the objective impartiality of the District Court judge.         As to the subjective test, the personal impartiality of a judge must be presumed until there is a proof to the contrary (cf. e.g. No. 17722/91, Dec. 8.4.91, D.R. 69, p. 345).         In the present case the applicant has in no way shown that the judge concerned acted with personal bias. The notes entered in the court records were based on the events of the day and not in order to express personal opinions of the judge. The mere fact that a judge has entered the actual events in the court records cannot in itself justify fears as to his or her impartiality. In the circumstances of the present case, the Commission finds that the act of the judge was not capable of giving rise to doubt as to his impartiality and that the applicant's fear cannot be considered to be justified.         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 of the fact that he was refused free legal assistance. He invokes Article 6 para. 3 (c) (Art. 6-3-c) of the Convention which reads as follows:         "Everyone charged with a criminal offence has the following       minimum rights:       ...         c. to defend himself in person or through legal assistance       of his own choosing or, if he has not sufficient means to       pay for legal assistance, to be given it free when the       interests of justice so require; ..."         The Commission recalls that the right to free legal assistance guaranteed by Article 6 para. 3 (c) (Art. 6-3-c) is subject to two conditions; that the individual does not have sufficient means to pay for legal assistance and that the interests of justice require it. The Commission proceeds on the assumption that the first condition was satisfied in the present case. The only issue is whether the interests of justice required that counsel be appointed for the applicant in the proceedings before the District Court.         When determining whether the interests of justice require legal representation, the Commission must examine each case on its facts. While the likelihood of success and the availability of legal assistance are significant factors to be taken into account, they are not the sole criteria. Other factors in assessing the requirements of the interests of justice include the importance of what is at stake for the applicant, in particular the severity of the likely sentence, as well as the personal ability of the applicant and the nature of the proceedings, e.g. complexity or importance of the issues or procedures involved (cf. e.g. No. 13572/88, Dec. 1.3.91, D.R. 69, p. 198 and Eur. Court HR, Boner v. the United Kingdom judgment of 28 October 1994, Series A no. 300-B, p. 75, para. 41).         The Commission notes that the applicant's request for free legal assistance in the form of appointment of a counsel was refused because the criminal proceedings in the matter were found to be rather simple and as the applicant was expected only to be sentenced to a fine if convicted.         The Commission recalls that the main issue in the case was whether the applicant had hit the victim and whether he had caused damage to him. This depended on the statements of the witnesses. Three witnesses were heard and the Commission does not find it established that their examination was particularly difficult.         As regards the severity of sentence, the Commission notes that the District Court only imposed a fine amounting to FIM 600 and ordered the applicant to pay compensation in the amount of FIM 1,250 to the victim.         As regards the applicant's ability to defend himself, the Commission recalls that the applicant was given every opportunity by the trial judge to examine witnesses against him and to make statements on his own behalf. He decided, however, not to avail himself of this opportunity.       As regards finally the nature of the proceedings, the Commission notes that the legal question as to whether or not the applicant had committed assault, does not appear to have been of a particularly complex nature.         In the these circumstances the Commission finds the complaint under Article 6 para. 3 (c) (Art. 6-3-c) of the Convention to be manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   3.     Finally, under Article 6 para. 3 (b) (Art. 6-3-b) of the Convention, the applicant complains that he did not have adequate time and facilities for the preparation of his defence. Article 6 para. 3 (b) (Art. 6-3-b) of the Convention reads as follows:         "Everyone charged with a criminal offence has the following       minimum rights:       ...       b. to have adequate time and facilities for the preparation       of his defence; ..."         The applicant submits that since free legal assistance was refused he could not properly prepare his defence.         The Commission recalls from above that in the circumstances of the present case the interests of justice did not require that free legal assistance be granted to the applicant. The Commission has not found any other circumstances which could lead to the conclusion that the applicant did not have adequate time and facilities for his defence.         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.         For these reasons, the Commission, by a majority,         DECLARES THE APPLICATION INADMISSIBLE.         M.F. BUQUICCHIO                             N. BRATZA          Secretary                             Acting President    to the First Chamber                      of the First Chamber