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FOURTH
SECTION
CASE OF
JUHA NUUTINEN v. FINLAND
(Application
no. 45830/99)
JUDGMENT
STRASBOURG
24 April
2007
This
judgment will become final in the circumstances set out in
Article 44 § 2 of the Convention. It may be
subject to editorial revision.
In the case of Juha Nuutinen v. Finland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Sir Nicolas Bratza, President,
Mr J.
Casadevall,
Mr G. Bonello,
Mr M. Pellonpää,
Mr K.
Traja,
Mr L. Garlicki,
Ms L. Mijović, judges,
and
Mr T.L. Early, Section Registrar,
Having
deliberated in private on 27 March 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 45830/99) against the Republic
of Finland lodged with the European Commission of Human Rights (“the
Commission”) under former Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Finnish national, Mr Juha Nuutinen (“the
applicant”), on 2 October 1998.
- The
applicant was represented by Mr A. Setälä, a lawyer
practising in Turku. The Finnish Government (“the Government”)
were represented by their Agent, Mr A. Kosonen of the Ministry for
Foreign Affairs.
- The
applicant alleged a breach of Article 6 §§ 1 and 3 (a) and
(b) of the Convention.
- The
application was transmitted to the Court on 1 November 1998, when
Protocol No. 11 to the Convention came into force (Article 5 § 2
of Protocol No. 11).
- By
a decision of 17 January 2006, the Court declared the application
partly admissible. Judge Pellonpää, who at the time of the
decision sat in respect of Finland, continued to participate in the
examination of the case (Article 23 § 7 of the Convention).
- The
applicant and the Government each filed further written observations
(Rule 59 § 1). The Chamber having decided, after consulting the
parties, that no hearing on the merits was required (Rule 59 § 3
in fine), the parties replied in writing to each other's
observations.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The applicant was born in 1950 and lives in Turku.
A. The Turku District Court
- On
7 September 1995 the public prosecutor charged the applicant and the
managing director of company X before the District Court
(käräjäoikeus, tingsrätten) with
two counts of aggravated tax fraud and two counts of tax fraud, as
they had allegedly produced false invoices to the Turku County Tax
Office (lääninverovirasto, länsskatteverket).
They were also charged with an accounting offence (count 9), as they
had allegedly entered false data in the accounts of X. The prosecutor
claimed that the applicant was responsible for the offences together
with the managing director as, even though he did not have an
official status in the management of the company, he had in fact
participated in its management.
In
the indictment dated 12 June 1995, count 1, for example, read as
follows:
“Aggravated tax fraud.
On 23 November 1993 [the managing director] and [the
applicant] together, [the former] as the managing director of
[company X] and chairman of the board of directors and [the latter]
as a person who was de facto responsible for the management of
the company, submitted the company's application for a VAT refund in
the amount of FIM 342,760 [some EUR 57,000] as regards November 1993
to the County Tax Office of Turku. The application stated that
[company Y] had sold electrical relays to [company X] for FIM
1,900,000 [some EUR 319,000] and the latter company had sold the said
products further to an Estonian company for FIM 1,680,000
[EUR 282,000]. The invoice relating to the sales transaction
between [company X] and [company Y] was fabricated. By submitting
such false information which affected the amount of taxes to the
authorities for the purposes of taxation, [the managing director] and
[the applicant] have attempted to evade taxes.
Applicable law: Chapter 29, section 2 of the Penal Code”
As a
further example, count 2, which concerned the co-defendant H.A., read
as follows:
“Aiding and abetting an aggravated tax fraud.
By preparing the invoice in the amount of FIM 1,900,000
referred to in count 1, and by handing it over to [the managing
director] and [the applicant] to be attached to the application for a
tax refund, [H.A.], on 23 November 1993, intentionally furthered the
criminal act committed by [the managing director] and [the
applicant].
Applicable law: Chapter 29, section 2 and Chapter 5,
section 3 (1) of the Penal Code”
- The
applicant pleaded not guilty, arguing that he did not have such a
status in company X and therefore could not be held responsible for
the alleged offences. Furthermore, he argued that he had not been
involved in compiling the documents and that the transactions
concerned had not been forged.
- On
8 February 1996 the District Court found that the business
transactions referred to in the relevant invoices were not genuine,
that the invoices were false and that the applicant had, together
with the managing director, produced false information to the County
Tax Office and entered false data in the accounts of X. The District
Court referred to the evidence given by the co-accused and the
witnesses, finding it proved, inter alia, that the applicant
had actually acted in the company in such a position that he was to
be held responsible for the offences together with the managing
director. Thus, the District Court convicted them both as charged and
sentenced them to a suspended term of one year's imprisonment. The
co-defendant, H.A., was also convicted as charged.
B. The Turku Court of Appeal
- The
applicant appealed to the Court of Appeal (hovioikeus,
hovrätten) against his conviction. He maintained that
since he had not had any legal or de facto status in X, he had
not produced any documents to the County Tax Office and he had not
entered false data in X's accounts. Furthermore, the invoices had not
been fabricated. He also claimed that the witness evidence was
contradictory and that the District Court's assessment of it was
erroneous. At the end of his writ of appeal, he stated:
“... [C]onsidering that the conduct of [the
applicant], on the whole, cannot be considered aggravated, he could
not be found guilty of more than aiding and abetting a tax fraud if
he were, against all reason, to be found guilty of any offence ...”
- The
public prosecutor did not submit any written response to the
applicant's appeal. In its response to the applicant's appeal the
County Tax Office did not refer to a reclassification of the offences
as aiding and abetting.
- On
13 March 1997 the Court of Appeal held a hearing at which the parties
and the witnesses were heard. It appears that there was no discussion
as to whether the applicant's alleged conduct could be classified as
aiding and abetting the above offences.
- In
its judgment of 28 August 1997 the Court of Appeal convicted the
applicant of two counts of aiding and abetting an aggravated tax
fraud and two counts of aiding and abetting a tax fraud and an
accounting offence and sentenced him to a term of nine months'
suspended imprisonment. The Court of Appeal reasoned inter alia:
“[The applicant's] conduct
During the pre-trial investigation [the managing
director] stated that [the applicant] had given instructions to
[H.A.] as to the details to be included in the documents that were
attached to the applications for a tax refund ... and had also
otherwise taken care of matters and the business transactions of
[company X].
[H.A.] stated during the pre-trial investigation that he
had prepared documents to be attached to applications for a tax
refund ... in accordance with [the applicant's] and [the managing
director's] instructions. According to [H.A.], [the applicant] was in
practice responsible for the operation of [company X].
Witness [V.M.] stated in the Court of Appeal that he had
dealt with the invoice ... together with [the managing director] and
[the applicant].
In the light of the statements given by [the managing
director] and [H.A.] during the pre-trial investigation, and of the
witness statement of [V.M.], which supports those statements, it has
been established that [the applicant] participated in the planning of
the offences referred to in the indictment and in the preparation of
the documents needed for the commission of the offences.
Assessment of [the applicant's] conduct under
criminal law
... [the applicant] did not have such a position in
[company X] as would have made it possible for him to commit, as a
principal offender, the offences with which he was charged. When
participating in the planning of the offences and in the preparation
of the documents needed for the commission of the offences, however,
he contributed to producing false information to the County Tax
Office and [on count 9] to entering false data in the accounts. Thus
he intentionally furthered the criminal acts of which [the managing
director] has been found guilty.”
C. The Supreme Court
- The
applicant sought leave to appeal from the Supreme Court (korkein
oikeus, högsta domstolen), arguing that he had been
convicted of offences differing from those with which he had been
charged. He submitted that the public prosecutor had not even claimed
that he had been involved in the planning of the offences and
compiling the documents. During the proceedings the applicant had not
been informed of the nature and cause of these accusations and was
thus not given any opportunity to defend himself against them.
Furthermore, the assessment of the evidence was unfair since the
Court of Appeal had found the evidence sufficient even though the
oral statements were contradictory.
- On
18 June 1998 the Supreme Court refused leave to appeal.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Aiding and abetting
- Chapter
5, section 3(1) of the Penal Code, in force at the relevant time,
provided that a person who, during or before the commission of an
offence by someone else, intentionally furthers the act through
advice, action or exhortation, shall be convicted of aiding and
abetting the principal offence. The sentence imposed on the person
who aids and abets shall be reduced to three quarters of the maximum
penalty prescribed for the principal offence.
B. Procedure
- The
present case was commenced and therefore also concluded under the
then provisions on criminal procedure in the Code of Judicial
Procedure (oikeudenkäymiskaari, rättegångsbalken).
The rule according to which an accused might not be convicted of an
offence other than the one with which he had been charged was not
included in the legislation until the coming into force on 1 October
1997 of the Criminal Procedure Act (laki oikeudenkäynnistä
rikosasioissa, lag om rättegång i brottmål; Act
no. 689/1997). The rule was however established through case-law
and it was codified upon the enactment of the new Act.
- Chapter
11, section 3, of the Criminal Procedure Act provides that the court
may only pass a sentence for an act for which a punishment has been
requested. The court is not bound by the heading or the reference to
the applicable provision in the indictment. The court is however
bound by the conduct described in the indictment. The prosecutor is
under an obligation to define the alleged offence and the accused
must be provided with an opportunity to defend himself or herself
within the limits of the indictment.
- According
to the Government, the court may e.g. convict an accused of
aiding and abetting a tax fraud even if the prosecutor has charged
him or her with the principal offence, as long as the conduct
described in the indictment is not altered. This is based on the
principle of jura novit curia, i.e. on the principle
that the court itself is responsible for the legal assessment of the
criminal act in question without being bound by the views of the
prosecutor or of the accused. This was contested by the applicant.
C. Leave to appeal to the Supreme Court
- Chapter
30, section 3 (Act no. 104/1979), of the Code of Judicial Procedure
reads in relevant part:
“Leave to appeal may be granted only if it is
important to bring the case before the Supreme Court for a decision
with regard to the application of the law in other, similar cases or
because of the uniformity of legal practice; if there is a special
reason for this because of a procedural or other error that has been
made in the case on the basis of which the judgment is to be reversed
or annulled; or if there is another important reason for granting
leave to appeal.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
- The
applicant complained, under Article 6 §§ 1 and 3 (a) and
(b) of the Convention, that he had not received a fair trial since he
had been convicted of offences different from those with which he had
been charged, in that the Court of Appeal found him guilty of aiding
and abetting the offences he had been charged with as principal
offender. Furthermore, the Court of Appeal found that he had been
involved in planning the offences and compiling the relevant
documents even though he had not been charged with that. Thus, he had
not been informed of the material facts on which the accusations were
based or their legal classification, and he had not had an
opportunity to defend himself against those accusations.
The
relevant provision reads:
“1. In the determination of ... any
criminal charge against him, everyone is entitled to a fair ...
hearing ...
...
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;
...”
A. The parties' submissions
- The
applicant argued that the Court of Appeal was bound by the
description of the offences in the indictment which did not allege
that he had committed any offences characterised as aiding and
abetting. There was no reference to any furtherance of any offences.
He had been charged with the principal offences and aiding and
abetting was a different offence.
- While
admitting the existence of the above statement in his writ of appeal
to the Court of Appeal (paragraph 11 above), the applicant argued
that it had been removed from its context and was to be seen as part
of his defence. At no time had he been charged with aiding and
abetting the offences.
- The
applicant contested as irrelevant the Government's view that he had
been convicted only of aiding and abetting although he had been
charged with more serious offences. The point was that he had never
been afforded an opportunity to defend himself against that
allegation or submit legal arguments. Indeed, the Supreme Court had
refused leave to appeal.
- The
Government submitted that, although the conduct described in the
judgment and in the indictment was not entirely identical, the
criminal offences of which the applicant was found guilty were
effectively the same as those described in the indictment. According
to the indictment, the applicant had, together with the managing
director, produced an application for a tax refund, based on a false
invoice and had thus attempted to evade taxes. The Court of Appeal
found that the applicant had participated in the planning of the
offences and in the preparation of the documents needed for the
commission of the offences and had thereby contributed to producing
false information to the County Tax Office. The judgment concerned
the same events as the charges insofar as the time and place and
other circumstances relating to the commission of the offences were
concerned. It was also relevant that the indictment alleged that the
applicant had run the company although he lacked an official status
in its management. In considering that the applicant's conduct only
amounted to aiding and abetting the Court of Appeal made a different
assessment of the legal relevance of his position.
- The
Government pointed out that in his writ of appeal the applicant
himself had submitted that his conduct could be described as aiding
and abetting and had addressed extensively his de facto
position in the company. He had also defended himself against the
allegation that he had given instructions to one of the co-accused in
respect of the preparation of documents. Thus, the Court of Appeal's
reclassification of the offences could not have come as a surprise to
him. He had an opportunity to defend himself already in the District
Court in respect of the possibility that his conduct as described in
the indictment could be characterised as aiding and abetting. At the
very least, he had reason to do so at the Court of Appeal hearing.
- The
Government pointed out that the offences of which the applicant had
been convicted were less serious than the ones with which he had been
charged and that the Court of Appeal had reduced his sentence. Had
the Court of Appeal exceeded the limits within which the court must
stay when classifying an offence or failed to hear the applicant, the
Supreme Court would have granted him leave to appeal.
B. The Court's assessment
- The
Court reiterates that when determining whether Article 6 of the
Convention has been complied with, it must take into account the
proceedings as a whole. Furthermore, the guarantees in Article 6 §
3 are specific aspects of the right to a fair trial set forth in
general in Article 6 § 1 (see, inter alia, Foucher v.
France, judgment of 18 March 1997, Reports of Judgments and
Decisions 1997 II, p. 464, § 30). Therefore, the Court
finds that the applicant's complaints should be examined under the
two provisions taken together.
- The
Court observes that the provisions of paragraph 3 (a) of Article 6
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 notice of the factual and legal basis of
the charges against him (see Kamasinski v. Austria, judgment
of 19 December 1989, Series A no. 168, pp. 36-37, §
79). Article 6 § 3 (a) of the Convention 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 the legal
characterisation given to those acts. In criminal matters the
provision of full, detailed information concerning the charges
against a defendant, and consequently the legal characterisation that
the court might adopt in the matter, is an essential prerequisite for
ensuring that the proceedings are fair. Furthermore, the Court has
ruled 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 Pélissier and
Sassi v. France [GC], no. 25444/94, §§ 51-52 and 54,
ECHR 1999 II).
- In
the present case, the applicant was charged with a series of tax
offences as a principal offender. The District Court convicted him as
charged. The Court of Appeal, having found that his position in the
company had not been such as would have made it possible for him to
commit the offences in issue as a principal offender, convicted him
of aiding and abetting those offences. It is not the Court's task to
give a ruling as to whether Finnish law, at the time of the
proceedings, allowed the Court of Appeal to convict the applicant of
aiding and abetting although he had been charged as the principal
offender without drawing his attention to that possibility. Given the
practice at the relevant time, it is obvious that the impugned
interpretation and procedure applied were possible. It could thus be
regarded that, at the material time, it was for a defendant in
general to take into account the possibility that the court could
return a verdict of aiding and abetting.
- The
Court reiterates that, as noted above, 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. Regarding this
question in the present case, there was no modification of the timing
of the commission of the offences. However, the description of the
factual situation set out in the indictment concerning the tax frauds
changed during the proceedings in that the applicant had been charged
with submitting VAT refund applications, relying on fabricated
invoices (allegedly drawn up by H.A., a co-defendant), whereas he had
been convicted also of preparation of the documents needed for the
commission of the offences (compare and contrast paragraphs 8 and 14
above). This new element did not constitute an element intrinsic to
the initial accusation (compare and contrast De Salvador Torres v.
Spain, judgment of 24 October 1996, Reports 1996 V,
p. 1587, § 33). The Court finds that the applicant's
chances to defend himself in respect of the new element of the
charges were impaired. As to the Government's argument that the
applicant had himself anticipated the possibility that he could be
convicted of aiding and abetting (see paragraphs 11 and 27 above),
the Court notes that it still remains the case that he was denied the
possibility to argue his defence in adversarial proceedings insofar
as the element introduced by the Court of Appeal, i.e. the
preparation of the documents, was concerned.
- The
Court also takes note of the Government's argument that had the Court
of Appeal exceeded the limits within which the court must stay when
classifying an offence or failed to hear the applicant, the Supreme
Court would have granted him leave to appeal. It is true that in
previous cases the Court, when assessing the fairness of criminal
proceedings as a whole, accepted that a re-qualification of an
offence did not impair the rights of the defence when the accused, in
review proceedings, had sufficient opportunity to defend him or
herself (see Dallos v. Hungary, no. 29082/95, §
47-53, ECHR 2001-II and Sipavičius v. Lithuania,
no. 49093/99, § 30, 21 February 2002). However, this was
only the case if in the review or appeal proceedings the accused was
entitled to contest all relevant legal and factual aspects of the
conviction before the appeal court (see Dallos, cited above,
§ 50; Sipavičius, cited above, § 31 and
Balette v. Belgium (dec.), no. 48193/99, 24 June 2004).
In the present case, the Supreme Court only considered whether or not
to grant leave to appeal. In the event, it refused leave to appeal.
In such circumstances, the applicant did not have sufficient
opportunity to defend himself before the highest court.
- In
the light of the above, the Court concludes that the applicant's
right to be informed in detail of the nature and cause of the
accusations against him and his right to have adequate time and
facilities for the preparation of his defence were infringed.
Accordingly,
there has been a violation of Article 6 § 1 taken together with
Article 6 § 3 (a) and (b) in the present case.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- Under
the head of non-pecuniary damage the applicant claimed 38,000 euros
(EUR) for suffering and distress caused by the fact that he had been
convicted of offences other than as charged.
- The
Government considered the claim excessive as to quantum. Any
award should not exceed EUR 1,000.
- The
Court accepts that the lack of the guarantees of Article 6 has caused
the applicant non-pecuniary damage, which cannot be made good by the
mere finding of a violation. The Court, making its assessment on an
equitable basis, awards the applicant EUR 1,000 in respect of
non-pecuniary damage.
B. Costs and expenses
- The
applicant claimed a total of EUR 3,732.36 (inclusive of value added
tax) for costs in the domestic proceedings and in the proceedings
before the Court.
- The
Government contested the claim regarding the domestic proceedings. As
to the proceedings before the Court, they considered that any award
should not exceed EUR 2,200 (net of value added tax).
- As
regards the proceedings before the Supreme Court, the Court observes
that the applicant, besides the complaint in respect of which a
breach of the Convention has been found, had raised several other
issues which related to complaints not submitted to the Court or
which have been declared inadmissible. Therefore, these costs were
only in part incurred in an attempt to prevent or redress the
violation found and, accordingly, only a part thereof can be
reimbursed. In respect of the costs incurred in the Strasbourg
proceedings, the Court observes that the applicant was only partly
successful with his application. It considers it reasonable to award
him a total of EUR 2,500 (inclusive of value added tax) under
this head.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Holds that there has been a violation of Article
6 § 1 taken together with Article 6 § 3 (a) and (b) of the
Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final according to
Article 44 § 2 of the Convention, the following
amounts:
(i) EUR
1,000 (one thousand euros) in respect of non-pecuniary damage;
(ii) EUR
2,500 (two thousand five hundred euros) in respect of costs and
expenses; and
(iii) any
tax that may be chargeable on the above amounts.
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant's
claims for just satisfaction.
Done in English, and notified in writing on 24 April 2007, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
T.L. Early Nicolas Bratza
Registrar President
