CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 25 août 2005

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Casadevall,   Mr   G. Bonello ,   Mr   M. Pellonpää ,   Mr   R. Maruste,   Mr   K. Traja ,   Mr   J. Šikuta, judges , and Mr M. O’Boyle , Section Registrar , Having regard to the above application lodged on 8 December 2000, Having deliberated, decides as follows:                     THE FACTS The applicant, Mr M., is a Finnish national who was born in 1959 and lives in Hyvinkää. He was represented before the Court by Mr. Sundström and Mr Kauppi, lawyers practising in Helsinki. A.     The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows. The applicant is a former official of the Ministry of Foreign Affairs, who was accused of espionage activities. The main evidence against him was an interview protocol prepared by the security police. The applicant had admitted to having handed over numerous documents to X and Y, who both worked in the Russian Embassy in Helsinki and were officials of the Russian civil intelligence service. The applicant had become acquainted with X and Y when he had worked at the Finnish embassy in Moscow. In Finland the applicant’s main responsibilities in the Ministry were matters related to Russia and the European Union and the Ukraine and the European Union. He took part in meetings arranged in Brussels weekly to discuss relations between these countries and Russia’s application for membership in the World Trade Organization. It was alleged that the applicant met with X and Y on a monthly basis. The meetings had back-up dates. He supplied the Russians with a large number of documents prepared in the European Union and a smaller number of documents prepared in the Ministry. He also widely explained the positions of the different parties to the Russians before negotiations took place. Before the Court of Appeal, the applicant was prosecuted primarily for espionage but also for breach of official secrecy and unlawful disclosure of documents. The court held an oral hearing from 8 to 12 March 1999 and 15 to 18 March 1999, hearing 18 witnesses. It denied the applicant’s request for postponement which was based on the alleged need to await the outcome of proceedings that the applicant had initiated in the EU Court of First Instance and the Court of the European Communities. The applicant had requested documents from the Commission and the Council in order to show that these were available to anyone asking for them in the European Union. The Court of Appeal held that, for the determination of the constitutive elements of the crime, it was not decisive whether the disclosed documents were secret or not. In the Court of Appeal, the applicant denied all charges, submitting that he had been under pressure and not mentally fit during the interviews with the police. The Court of Appeal heard 18 witnesses at length concerning the nature and the degree of secrecy or confidentiality of each document mentioned in the charge. On 17 May 1999, the applicant was convicted of espionage, disclosure of national secrets, and unlawful disclosure of documents, and sentenced to a suspended term of imprisonment of 1 year and 4 months. He was also removed from office and lost his military rank. The applicant appealed to the Supreme Court (with no leave to appeal necessary), requesting inter alia that the court seek a preliminary ruling from the Court of the European Communities. On 11 January 2000, the Supreme Court held a preparatory meeting with the parties concerning the procedure for an oral hearing. The applicant submitted to the court a brief enumerating his witnesses and containing a skeleton argument. On 18 February 2000 the court gave a procedural decision concerning the conduct of the oral hearing. Referring to rules on the hearing of evidence contained in chapter 17 of the Code of Judicial Procedure, it refused 5 of the 11 witnesses proposed by the defence. On 15 February 2000 the court summoned the parties to an oral hearing which was scheduled to begin on 13 May 2000. In the summons, time limits were set to be observed in the hearing and the parties were instructed to question witnesses only on issues which were relevant to the charge and disputed, and not to ask questions concerning the content of the law. On 22 February 2000, the applicant submitted a brief in answer to the summons, in which he referred to Article 6 in the Convention. He claimed that he could not defend himself effectively if he could not hear all the witnesses and have more time allotted at the hearing, in particular to contest the contents of the security police’s report. On 6 March 2000 the applicant submitted another brief where he asked that the case be adjourned until the Court of the European Communities had rendered a decision in his case concerning documents available to the public. After an oral hearing held on 13 to 17 of March 2000, during which 8 witnesses were heard, the Supreme Court issued its decision on 12 June 2000. It denied the applicant’s request to ask the Court of the European Communities for a preliminary ruling, holding that rules of the European Community were not of relevance to the decision. On the basis of the security police’s report and the evidence given by the witnesses, it convicted the applicant of espionage, disclosure of national secrets, unlawful disclosure of documents and breach of official secrecy, only slightly changing the evaluation of the Court of Appeal. The suspended prison sentence was shortened, to 1 year and 2 months, while the other penalties were upheld. B.     Relevant domestic law 1.     Provisions in the Criminal Code The provisions concerning the offences of which the applicant was found guilty are contained in the Criminal Code: 1)     Under section 5 of chapter 12, a person who, for the purpose of favouring a foreign state or damaging Finland, procures information on a matter concerning national defence or other preparation for emergencies, Finland’s foreign relations, State finances, foreign trade or power supplies or another comparable matter involving Finnish national security, and discloses the information to a foreign state so as to cause damage to national defence, national security, foreign relations or economy, shall be sentenced for espionage to imprisonment for one to ten years. 2)     Under section 7 of chapter 12 of the Criminal Code, a person who unlawfully publishes or relays, delivers or discloses to another or, for such purpose, unlawfully obtains information on a matter that has been classified as secret by statute or by administrative order so as to safeguard Finnish national security, or that to the knowledge of the offender is conducive to causing serious damage to national defence, national security, foreign relations or economy, shall be sentenced for disclosure of national secrets to a fine or to imprisonment for a maximum of two years. 3)     At the applicable time, breach of official secrecy was punishable under section 5(1) of chapter 40 of the Criminal Code. 4)     At the applicable time, unlawful disclosure of documents was punishable under section 5(1) of chapter 40. 2.     Provisions in the Code of Judicial Procedure (a)     Oral hearing in the Supreme Court According to section 20 of chapter 30 of the Code of Judicial Procedure, the Supreme Court, where necessary, shall hold an oral hearing at which the parties, witnesses and expert witnesses may be heard or other information admitted. The oral hearing may be restricted to a part of the case on appeal. Section 21 concerns the way in which parties are summoned to the oral hearing and the sanctions for their absence, if required. (b)     Evidence The provisions on evidence are contained in chapter 17 of the Code of Judicial Procedure. According to paragraph 3, no evidence need be presented on the contents of the law. According to Section 7, the evidence that a party wishes to present pertains to a fact that is not material to the case or that has already been proved, or if the fact can be proven in another manner with considerably less inconvenience or cost, the court shall not admit this piece of evidence. COMPLAINTS The applicant complained under Article 6 of the Convention that the Supreme Court, by limiting the number of witnesses and the time that could be spent, violated the applicant’s right to a fair trial. Also he had not been allowed to present evidence on European Union law. According to the applicant, the court also should have considered whether a part of the hearing could be held in public. Further, the applicant complains that the lack of specific guidelines issued by the Supreme Court concerning oral hearings meant that the court functioned ad hoc and therefore in violation of the Convention. The applicant also complains about the violation of his right to access to an independent and impartial tribunal and about his right to a presumption of innocence. THE LAW Article 6 of the Convention, as far as relevant, states the following:   “1.     In the determination of his civil rights and obligations or 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. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society (...). ... 3.     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; ...   1.     Hearing of witnesses As concerns the limitations set on the number of witnesses and the time that could be spent on examination, the Court recalls that questions relating to evidence are primarily matters for regulation by national law and it is in principle for national courts to make the procedural decisions concerning the taking of evidence and to assess the evidence before them. The Court’s task is to ascertain whether the proceedings as a whole, including the way in which evidence was taken, were fair (see for example the Barberà, Messegué and Jabardo v. Spain judgment of 6 December 1988, Series A no. 146, p. 31, § 68). In the present case, the Supreme Court applied the provisions on evidence contained in the Code of Judicial Procedure and according to which evidence which had a direct bearing on the issues to be decided could be admitted. There is no indication that the way in which the Supreme Court organized the hearing of witnesses exceeded the discretion granted by Article 6 to national courts. It follows that there is no appearance of a violation of the Convention in this respect. 2.     European Union law The applicants argued that since a majority of the documents in question had been produced within the European Union, only the European Union could decide whether these were public or not. The domestic courts, however, took the view that since it was Finnish criminal law that was being applied, it was not decisive how the documents were classified by the European Union, because the characterisation of the crimes in domestic law relied on other factors. Recalling that the interpretation of domestic law belongs primarily to domestic courts, the Court finds no reason to question the conclusion of the domestic courts. There is no appearance of arbitrariness in the decision and thus no appearance of a violation in the circumstances of this case. 3.     The alleged ad hoc nature of the oral hearing The applicant relies on the case Coëme and Others v. Belgium , nos. 32492/96, 32547/96, 32548/96, 33209/96 and 33210/96, ECHR 2000 ‑ VII in which a Belgian minister had been tried in the Court of Cassation, and rules governing the procedure had not been established by statute or by the Constitution. The Court of Cassation decided to apply the procedure which existed for the ordinary criminal courts, but only in so far as they were compatible “with the provisions governing the procedure in the Court of Cassation sitting as a full court”. This Court concluded that the uncertainty caused by the lack of procedural rules established beforehand placed the applicant at a considerable disadvantage vis-à-vis the prosecution, which deprived Mr. Coëme of a fair trial for the purposes of Article 6 § 1 of the Convention. In the case at hand, the Supreme Court applied provisions in the law regarding oral hearings in that court and provisions regarding evidence in general. The court also held a preparatory meeting with the parties in view of the oral hearing. It follows that there was no such uncertainty on the part of the applicant concerning the oral hearing in this case as would compare with the situation in the Belgian case or otherwise amount to a violation of Article 6. 4.     The decision to hold the hearing in camera The domestic courts decided to hold their hearings in camera , a decision allowed by the law and based on relevant grounds in view of the fact that the subject matter touched on national security. Article 6 § 1 expressly allows the press and public to be excluded from all or part of the trial in the interests of national security. The outcome of the judgments in both courts were not kept secret, nor was the decision of the Supreme Court on the oral hearing. There is nothing indicating that the decisions of the courts fell outside the exceptions permitted by Article 6. 5.     Remaining complaints Having regard to the material in the file, the other complaints presented by the applicant do not disclose any appearance of a violation of the provisions of the Convention. 6.     Conclusion The Court finds that the applicant’s complaints are manifestly ill-founded as a whole and should be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.   For these reasons, the Court unanimously Declares the application inadmissible.   Michael O’Boyle   Nicolas Bratza   Registrar   President