CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 25 novembre 1999

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Ress, President ,   Mr   M. Pellonpää,   Mr   A. Pastor Ridruejo,   Mr   L. Caflisch,   Mr   J. Makarczyk,   Mr   I. Cabral Barreto,   Mrs   N. Vajić, judges ,   and   Mr   V. Berger, Section Registrar ;     Having regard to Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms;     Having regard to the application introduced on 9 February 1996 by Mauri Hopia against Finland and registered on 26 March 1996 under file no. 30632/96;     Having regard to the report provided for in Rule 49 of the Rules of Court;     Having deliberated;     Decides as follows: THE FACTS   The applicant is a Finnish citizen, born in 1958 and currently serving his prison sentence in the Riihimäki Central Prison at Riihimäki, Finland. He is represented before the Court by Mr Raine Sorsa, a lawyer practising in Helsinki.   A.   Particular circumstances of the case     The facts of the case, as submitted by the applicant, may be summarised as follows.     On 3   May   1994, N was charged before the Helsinki District Court (käräjäoikeus, tingsrätt) with aggravated narcotics offences concerning at least 30 kilos of cannabis (case R   94/2284). He had stated to the police that he had committed several narcotics offences in 1992-1994 and incriminated several other people during the police investigations. The case was adjourned until 17   May   1994 as the police investigations had not been finished.     N's case was heard on 17   and   31   May   1994. N confessed to the District Court that he had dealt in about 200 kilos of cannabis. The case was adjourned until 14   June   1994 as the police investigations continued.   On 19   May   1994, the applicant was taken into police custody, as he was suspected of aggravated narcotic offences on the basis of the information revealed to the police by N. On 23   May   1994 the District Court ordered the applicant's detention on remand. On 9   June   1994 the detention was extended until the first hearing of the applicant's case (R 94/3270) on 21   June   1994.   On 14   June   1994, N was charged with an additional aggravated narcotics offence which he confessed to. The case (R   94/2284) was again adjourned until 21   June   1994.   At the hearing on 21   June   1994, N repeated all his statements to the police and stated that he would stand by them. N's case was joined with another case (R   94/1409).   On 21   June   1994, the applicant's case (R   94/3270) was heard before the District Court separately from N's case. The applicant was charged with five aggravated narcotics smuggling offences. The first charge read as follows:   (translation from Finnish)   “1. Aggravated narcotics smuggling offence   [The applicant] has in April-May 1993 in Helsinki in complicity with N smuggled 20 kilos of cannabis from Amsterdam, the Netherlands. He has financed the purchase of the cannabis, together with a third person, with 180,000 Finnish marks (FIM). [The applicant] has arranged the connections with the seller of the cannabis and N has arranged the persons to carry out the actual smuggling. [The applicant] has received ten kilos of the smuggled cannabis. ...   [The offence] must be considered aggravated as the operation has been extensive or carried out on a professional basis, and as it has dealt with a considerable amount of narcotics, and taking into account the criminal act in its entirety.   Provisions of law:   Narcotics Act § 5 ( huumausainelaki ) Narcotics Decree §§ 1 and 2 ( huumausaineasetus )”   The other charges followed the same model. In the charges 2-5 the applicant was suspected of having smuggled in complicity with N and another suspect 21 kilos of cannabis in May-June 1993, 19 kilos in June 1993, 35 kilos in July 1993, and 35 kilos in August 1993. The applicant denied the charges.   On 5   July   1994 there was a second hearing in the applicant's case. The public prosecutor added further details to the previous charges and charged the applicant with six additional aggravated narcotics offences. He was suspected of having smuggled in complicity with N and another suspect 20 kilos of cannabis at the end of August 1993, 35 kilos in September 1993, 35 kilos at the end of October 1993, 45 kilos in the beginning of December 1993, and 30 and 60 kilos in January 1994. The new charges were less precise than the earlier ones as regards the applicant's financial contribution or his share of the smuggled cannabis, and they lacked information on the origin of the drugs. The applicant denied the charges. The case was adjourned until 19   July   1994.     On 5   July   1994 there was also a hearing in the case R   94/1409 against N and twelve other accused, concerning several aggravated narcotics offences. Several charges were brought against N and the co-accused. The case was adjourned until 19   July   1994.   At the hearing on 19   July   1994, the applicant's case was joined with another case (R   94/3457) in which four other persons were accused. The case was adjourned until 2   August   1994, when yet another case (R 94/3064) was joined to the applicant's case. The case was heard again on 16   August   1994, when the public prosecutor added further details to the charges against the applicant, stating now more precisely to what amount the applicant had financed the purchase of the cannabis and what had been his share of the smuggled drugs. The case was adjourned until 30   August   1994.   On 19   July   1994 and 2   and   16   August   1994, N's case was heard before the District Court separately from the applicant's case.   At the hearing on 30   August   1994, the applicant's case was joined with N's case. There were now a total of 20 accused. N stated that at this stage he did not want to repeat everything he had said about the applicant and three other accused. N answered some questions put by the applicant's legal counsel concerning N's connections with the applicant.   On 13   September   1994, there was another hearing in the case before the District Court. The public prosecutor submitted several police investigation reports to the court. The case was adjourned until 27   September   1994.   On 27   September   1994, the case was heard again. The public prosecutor submitted new police investigation reports to the court. N refused to comment on any of his statements and stated that he would remain silent. He also stated that he would not answer questions put to him as he “wanted to reserve an opportunity for all the innocent co-accused to tell the truth”. The applicant's legal counsel said that it was his intention to put questions to N and that he hoped to get answers at the next hearing. The case was adjourned until 11   October   1994.   At the District Court's hearing of 11   October   1994, N again refused to repeat his statements concerning the applicant and three others, as he could not “take the responsibility that innocent men were convicted on the basis of his statements”. The applicant's case was adjourned until 18   October   1994 and the rest of the case until 25   October   1994.   The applicant's case was heard separately from the rest of the case on 18   October   1994. The applicant's counsel apparently submitted a written pleading. A copy of the pleading or the minutes of that hearing have not been submitted.   On 25   October   1994, when the applicant's case was again heard jointly with the rest of the case, co-accused H, who had earlier denied the charges, confessed that he had been one of the two main financiers of the drug trafficking. The other was allegedly N. The applicant's legal counsel asked N a question concerning H's confession, to which N answered: “No statement”. The applicant's legal counsel stated that in the light of H's statement the circumstantial evidence against the applicant was very vague. The District Court convicted N of 13 aggravated narcotic offences and some other offences and sentenced him to twelve years and six months' imprisonment. H was convicted of ten aggravated narcotics offences and some other offences and sentenced to eleven years' imprisonment. Another co-accused was also convicted of narcotic offences and sentenced to a term of imprisonment. The rest of the case was adjourned until 8   November   1994.   On 8   November   1994, the case was heard again. The applicant requested an adjournment as he considered it necessary that H would be heard again either by the police or before the District Court. The latter rejected the request. It stated that the applicant and H had been present at the same time in several hearings and that the applicant had been able to put the intended questions to H at the previous hearing at the latest. The District Court convicted the applicant of eleven aggravated narcotics offences and sentenced him to twelve years' imprisonment. The conviction was mainly based on N's statements supported by some co-accused's and witnesses' statements and by circumstantial evidence. The applicant was detained on remand.   The applicant appealed to the Helsinki Court of Appeal (hovioikeus, hovrätt) and requested an oral hearing in order to hear H as a witness. He argued that he should not have been convicted on the basis of N's unreliable statements. After the time for appeal had expired, the applicant filed a further submission to the Court of Appeal. On 27   April   1995 the Court of Appeal, without holding an oral hearing, rejected the appeal. It also refused to admit the submission filed after the time-limit.   On 8   September   1995, the Supreme Court (korkein oikeus, högsta domstolen) refused the applicant leave to appeal.   In April 1996, the applicant requested the Supreme Court to reopen the case. The request was rejected on 24   June   1998. B.   Relevant domestic law   The relevant domestic law as in force at the relevant time may be summarised as follows:   Under Chapter   26, Section   5, of the Code of Judicial Procedure (oikeudenkäymis-kaari, rättegångsbalk) , a Court of Appeal could, for a special reason, take into account a brief or some other document submitted after the time-limit.   According to Chapter   26, Section   7, Subsection   1, of the Code of Judicial Procedure, a Court of Appeal could, when necessary, hold an oral hearing, where parties, witnesses and experts could be heard, and other evidence could be taken.   COMPLAINTS     The applicant complains that he was not afforded a fair trial in the criminal proceedings against him. In this connection, he refers to the following aspects:   1.   He was not allowed to defend himself through legal assistance of his own choosing.   The charges against him were not sufficiently detailed as regards the description and the time of commission of the alleged criminal acts.   His conviction was based on the unreliable testimony of his co-accused N, who, moreover, had never repeated his statements in the applicant's presence; the hearing before the District Court was not adjourned in order to re-question, either by the police or before the court, the co-accused H, who had, in a hearing, unexpectedly confessed to his part in the offences; and the public prosecutor withheld evidence that supported the applicant's innocence.   The Court of Appeal did not hold an oral hearing.   The evidence submitted to the Court of Appeal after the time-limit was not taken into account.   The applicant invokes Article 6   §   3(b), (c) and (d) of the Convention.   THE LAW   The applicant submits a number of complaints concerning the fairness of the criminal proceedings against him. Article   6 of the Convention, to which he refers, reads in its relevant parts as follows:   “1.     In the determination of any criminal charge against him, everyone is entitled to a fair and public hearing ... by [a] ... tribunal ...   3.     Everyone charged with a criminal offence has the following minimum rights:   (a)     to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;   (b)     to have adequate time and facilities for the preparation of his defence;   (c)     to defend himself in person or through legal assistance of his own choosing ...;   (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;   ...”   1.   The applicant first complains that he was not allowed to defend himself through legal assistance of his own choosing. The Court notes that the applicant never raised this complaint before the domestic courts and has, thus, not complied with the condition as to the exhaustion of the domestic remedies. This complaint is, therefore, inadmissible under Article 35 § 1 of the Convention.   2.   The applicant secondly complains that the charges brought against him were not detailed enough as regards the description and the time of commission of the alleged offences and that he, therefore, was not able adequately to prepare for his defence.     The Court observes that the provisions of Article 6   § 3(a) of the Convention point to the need for special attention to be paid to the notification of the “accusation” to the defendant. Particulars of the offence play a crucial role in the criminal process, in that it is from the moment of their service that the suspect is formally put on written notice of the factual and legal basis of the charges against him (see the Kamasinski v. Austria judgment of 19   December   1989, Series A no.   168, pp. 36-37, § 79). Article   6 §   3(a) affords the defendant the right to be informed not only of the “cause” of the accusation, that is to say the acts he is alleged to have committed and on which the accusation is based, but also of the legal characterisation given to those acts. That information should be detailed. Article   6 §   3(a) does not impose any special formal requirement as to the manner in which the accused is to be informed of the nature and the cause of the accusation against him (see, mutatis mutandis , the Kamasinski judgment cited above; and the Pélissier and Sassi v. France judgment of 25   March   1999, to be published in the official reports of the Court, §§ 51, 53).     The Court also considers that sub-paragraphs (a) and (b) of Article 6   §   3 are connected and that the right to be informed of the nature and the cause of the accusation must be considered in the light of the accused's right to prepare his defence (see the Pélissier and Sassi judgment cited above, § 54).     The Court notes that in the charges against the applicant the time of the commission of the alleged offences was defined within a time-frame of one or two months, sometimes even more precisely. The description of the alleged criminal acts contained information on the place of the commission, the co-offenders, the amount of the smuggled cannabis and the applicant's share of it, the applicant's financial participation, and, in some charges, a more precise description of the applicant's actual participation in organising the narcotics trafficking. The legal characterisation of the acts, as well as the provisions of law relied on, were also included in the charges. Furthermore, during the proceedings the applicant was able to obtain further details in the police investigation files, especially in the minutes of N's interrogations.   Considering the nature of the offences in question, the Court, in the circumstances of the present case, finds that the applicant was informed in sufficient detail of the nature and cause of the accusations against him as to have adequate facilities to prepare for his defence. This part of the application is, therefore, manifestly ill-founded within the meaning of Article 35 § 3.   3.   The applicant complains under Article 6   §   3(d) of the Convention that his conviction was based on the unreliable testimony of his co-accused N, who, moreover, had never repeated his statements in the applicant's presence. He also complains that the hearing before the District Court was not adjourned in order to have the police or the court re-question the co-accused H, who had in a hearing unexpectedly confessed to his part in the offences. Moreover, he complains that the public prosecutor withheld evidence supporting his innocence.     The Court first recalls that its task is not to examine whether the applicant was guilty or innocent of the offences of which he was convicted. The admissibility of evidence and related questions are primarily matters for regulation by national law and it is in principle for the national courts to assess the evidence before them. The Court's task is to ascertain whether the proceedings as a whole, including the way in which the evidence was taken, were fair (see, e.g., the Doorson v. the Netherlands judgment of 26   March   1996, Reports of Judgments and Decisions 1996-II, p.   470, §   67).   All the evidence must normally be produced in the presence of the accused at a public hearing with a view to adversarial argument. However, the use as evidence of statements obtained at the pre-trial stage is not in itself inconsistent with Article 6   §§   1 and 3(d), provided the rights of the defence have been respected. As a rule, these rights require that an accused should be given an adequate and proper opportunity to challenge and question a witness against him, either at the time the witness is making his statement or at some later stage of the proceedings (see, e.g., the Kostovski v. the Netherlands judgment of 20   November   1989, Series   A no.   166, p.   20, §   41; and the Saïdi v. France judgment of 20   September   1993, Series   A no.   261-C, p.   56, §   43).   In the present case, there were five hearings at which the applicant and N were both present. On 30   August   1994 the applicant's counsel put to N some questions which he answered. On 25   October   1994 the applicant's counsel asked one more question of N, but N refused to answer. It appears that the applicant's counsel did not put any further questions to N even though he had the opportunity to do so on several other occasions. While N's persistence in remaining silent may have made further questioning futile, in the circumstances of the present case this neither discloses a lack of equality of arms nor justifies the conclusion that the judicial authorities denied the applicant the possibility of examining the witnesses in conformity with Article   6   §§   1 and 3(d).   As to the complaint that the applicant's conviction was based on N's statements not repeated in the applicant's presence, the Court recalls that it is in principle for the national courts to assess the evidence before them. There is no indication that by regarding the original statements of N as credible the national courts acted arbitrarily or otherwise exceeded their margin of appreciation in this respect.     As regards the complaint that H was not heard again either by the police or before the District Court after he had made his confession, the Court notes that the applicant and his counsel were present at that hearing. There had also been four previous hearings at which the applicant and H had both been present. It appears, therefore, that the applicant had several occasions to question H. It also appears that neither the applicant nor his counsel put any questions to H at the hearing where H made his confession. In these circumstances, the Court finds no indication that the District Court's refusal of a further adjournment in order to take evidence from H was contrary to the applicant's right to examine witnesses according to Article   6   §§ 1 and   3(d).     As to the applicant's complaint that the public prosecutor withheld evidence supporting his innocence, the Court notes that the application contains no element showing that the prosecution authorities had failed to disclose relevant information to the applicant.     It follows that this part of the application is also manifestly ill-founded within the meaning of Article   35 §   3.   4.   The applicant further complains that the Court of Appeal's refusal to hold an oral hearing violated his right to a fair trial guaranteed by Article 6   §   1 of the Convention.     The Court notes that the reservation made by the Finnish Government in accordance with Article 64 (after the entry into force of Protocol No. 11 on 1   November 1998, Article   57), in respect of the right to a public hearing guaranteed by Article   6   §   1, read at the relevant time as follows:   “For the time being, Finland cannot guarantee a right to an oral hearing insofar as current Finnish laws do not provide such a right. This applies to:   proceedings before the Court of Appeal ... in accordance with Chapter   26, [Section]   7, ... of the Code of Judicial Procedure...”   The Court first recalls that when a right to appeal exists under domestic law, Article 6   §   1 applies also to proceedings on appeal (see, e.g., the Delcourt v. Belgium judgment of 17   January   1970, Series   A no.   11, pp.   13-15, §§   25-26).     It is true that there was no hearing before the Court of Appeal in the applicant's case. However, having regard to the terms of Finland's reservation, Finland was under no Convention obligation to ensure in respect of the Court of Appeal that an oral hearing was held. While it is true that the effect of the reservation was to deny the applicant a right to an oral hearing before the Court of Appeal, this result must be considered compatible with the Convention as a consequence of the operation of a valid reservation (see the Helle v. Finland judgment of 19   December   1997, Reports 1997-VIII, pp.   2925-2926, §§   44 and 47; and No. 35879/97, Dec. 28.9.1999, not published).     It follows that this complaint is incompatible ratione materiae with the provisions of the Convention pursuant to Article 35   §   3.   5.   The applicant finally complains that the Court of Appeal's refusal to take into account the evidence submitted after the time-limit was in breach of Article   6   §   1 of the Convention.     The Court first recalls, as mentioned above in point 3, that Article   6   §   1 does not lay down any rules on the admissibility of evidence as such, which is therefore primarily a matter for regulation under domestic law. The Court's task is to consider whether the proceedings as a whole were fair. Furthermore, it is not the Court's task to resolve problems of interpretation of domestic legislation (see the Loukanov v. Bulgaria judgment of 20   March   1997, Reports 1997-II, p.   543   §   41). In the present case, the Court finds no appearance that the Court of Appeal's refusal to admit new evidence submitted after the time-limit was in breach of the applicant's right to a fair trial according to Article   6   §   1.     It follows that this complaint is manifestly ill-founded within the meaning of Article 35   §   3.   6.   The Court concludes that the application as a whole must be rejected in accordance with Article 35 § 4 of the Convention.       For these reasons, the Court, unanimously,     DECLARES THE APPLICATION INADMISSIBLE .             Vincent Berger   Georg Ress   Registrar   President