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FOURTH
SECTION
CASE OF
MUTTILAINEN v. FINLAND
(Application
no. 18358/02)
JUDGMENT
STRASBOURG
22
May 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 Muttilainen v. Finland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Sir Nicolas Bratza, President,
Mr J.
Casadevall,
Mr R. Maruste,
Mr S. Pavlovschi,
Mr J.
Borrego Borrego,
Mr J. Šikuta,
Mrs P. Hirvelä,
judges,
and Mr T.L. Early, Section Registrar,
Having
deliberated in private on 14 March 2006 and on 3 May 2007,
Delivers
the following judgment, which was adopted on the last mentioned
date:
PROCEDURE
- The
case originated in an application (no. 18358/02) against the Republic
of Finland lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Finnish national, Mr Marko Muttilainen (“the
applicant”), on 22 April 2002.
- The
applicant, who had been granted legal aid, was represented by Mr Simo
Ellilä, a lawyer practising in Helsinki. The Finnish Government
(“the Government”) were represented by their Agent, Mr
Arto Kosonen of the Ministry for Foreign Affairs.
- The
applicant alleged that he had not had a fair trial under Article
6 §§ 1 and 3 (d) of the Convention in criminal
proceedings taken against him in that the Court of Appeal had refused
to hold an oral hearing and that he could not therefore examine a new
witness.
- By
a decision of 14 March 2006, the Court declared the application
admissible.
-
The Government, but not the applicant, filed further written
observations (Rule 59 § 1). The Court decided that no hearing on
the merits was required (Rule 59 § 3 in fine).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The applicant was born in 1971 and lives in Kylänpää.
- On
14 June 1998 the applicant and T.A. were arrested by police officers
M.H. and S.H. in the act of committing a theft. The applicant had a
hammer in his hand at the time of arrest. Later he was charged with
attempted theft and violent resistance to a public official
(virkamiehen väkivaltainen vastustaminen, våldsamt
motstånd mot tjänsteman).
- At
the trial hearing before the Helsinki District Court (käräjäoikeus,
tingsrätten) the applicant admitted the attempted theft but
denied the charge of violent resistance to a public official. Both
the applicant and police officer M.H. were heard. M.H. testified,
inter alia, that the applicant had threatened him and his
colleague S.H. with a hammer by waving it above his head when the
police officers had interrupted the attempted theft. The applicant,
for his part, said that he had seen the police arrive and that he had
raised the hammer above his head while leaving the building, before
the police officers had ordered him to drop it. He denied any
intention to threaten the police officers. T.A. testified that the
applicant had tried to escape. S.H. was not heard as a witness.
- On
11 September 2000 the District Court convicted the applicant of
attempted theft and violent resistance to a public official, finding
M.H.’s statement reliable. The applicant was sentenced to an
aggregate punishment of six months’ imprisonment.
- On
11 October 2000 the applicant appealed to the Helsinki Court of
Appeal (hovioikeus, hovrätten) requesting an oral hearing
in which he, T.A., M.H. and S.H. should be heard in order to clarify
his behaviour outside the building where he was arrested and the
alleged threatening of the police officers. He did not specify why
S.H. in particular should be called as a witness.
- On
28 June 2001 the Court of Appeal upheld the conviction, reducing the
sentence to three months’ imprisonment. It found an oral
hearing manifestly unnecessary, holding that the applicant’s
account before the District Court - which he had not contested - and
his writ of appeal indisputably proved that he had seen the police
officers outside the building. He had then left the building with a
hammer raised in the air and had taken some steps towards the police
officers. His intention had been to escape. Having seen one of the
police officers draw a handgun, he obeyed their orders to drop the
hammer when approximately five to six metres away from them. The
Court of Appeal held that the question whether the applicant had
violently resisted a public official could be reliably resolved on
the basis of these undisputed facts without hearing witnesses.
As to
the merits, it ruled that “the applicant must have understood
that he had threatened the police officer with violence by, as he had
stated himself, stepping towards him with a hammer in the air. The
intention to escape mentioned by the applicant proves that he also
intended to threaten the police officer with violence in order to
escape from the scene of the crime.”
- On
27 August 2001 the applicant sought leave to appeal to the Supreme
Court (korkein oikeus, högsta domstolen). He claimed that
according to the domestic legislation (Chapter 26, sections 14 and 15
of the Code of Judicial Procedure (oikeudenkäymiskaari,
rättegångsbalken), see paragraphs 14 and 15 below) the
Court of Appeal should have held an oral hearing and heard the
witnesses. He stressed that the matter turned on the credibility of
the oral evidence.
- On
22 March 2002 the Supreme Court, by a majority, refused the applicant
leave to appeal.
II. RELEVANT DOMESTIC LAW
- Chapter
26, section 14 of the Code of Judicial Procedure
(oikeudenkäymiskaari, rättegångsbalken;
Act no. 165/1998) provides that the Court
of Appeal shall hold an oral hearing if the defendant in a criminal
case so requests. An oral hearing may however be dispensed with if
the appeal is manifestly ill-founded or if a hearing would be
manifestly unnecessary for another reason.
- Under
Chapter 26, section 15 of the Code, the Court of Appeal shall hold an
oral hearing regardless of whether one has been requested, if the
decision on the matter turns on the credibility of the testimony
admitted in the District Court or on new testimony to be admitted in
the Court of Appeal. In that event, the evidence admitted in the
District Court shall be readmitted at the hearing before the Court of
Appeal unless there is an impediment to doing so.
- Under
Chapter 17, section 7 of the said Code (Act no. 571/1948) if a piece
of evidence that a party wishes to adduce pertains to a fact that is
not material to the case or has already been proved, or if the fact
can be proved in another manner with considerably less inconvenience
or cost, the court may decide not to admit this piece of evidence.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
- The
applicant alleged that the Court of Appeal’s decision to
examine his appeal without an oral hearing and the refusal to examine
a witness, S.H., had violated Article 6 §§ 1 and 3(d) of
the Convention.
- The
said Article, insofar as relevant, reads as follows:
“1. 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. ...
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. The parties’ submissions
- In
the applicant’s view the Court of Appeal should have held an
oral hearing as the parties had given conflicting evidence before the
first-instance court as to whether or not the applicant had
threatened the police officers. He also maintained that the
testimony of the police officer S.H., who was present at the time of
the arrest, would have been important for the appellate court’s
assessment of the case.
- The
Government disagreed, arguing that the proceedings in their entirety
had been fair. They referred to Fejde v. Sweden (judgment of
29 October 1991, Series A no. 212 C), submitting that, as
in that case, the Court of Appeal had considered that the appeal did
not raise any question of fact or law which could not be adequately
resolved on the basis of the case file. The actions of the applicant
outside the building were undisputed: all that was disputed was the
applicant’s intention in raising the hammer, and the Court of
Appeal had been able to determine the facts on the basis of the case
file. The Government also pointed out that other considerations,
including the right to a trial within a reasonable time and the
related need for the expeditious handling of the courts’
case-load, had to be taken into account in determining the need for
an oral hearing at second instance. Finally they argued that it
followed from the domestic legislation that persons, who had no
information material to the case, need not be called as witnesses.
Considering S.H.’s evidence at the pre-trial stage, it was
highly improbable that hearing S.H. would have changed the appellate
court’s assessment of the case or that it would have been
beneficial to the outcome of the applicant’s appeal.
2. The Court’s assessment
21. The
admissibility of evidence is primarily a matter for regulation by
national law and, as a rule, it is for the national courts to assess
the evidence before them. The Court’s task is to ascertain
whether the proceedings considered as a whole, including the way in
which the evidence was taken, was fair (see Schenk v.
Switzerland, judgment of 12 July 1988, Series A no. 140, p. 29,
§ 46). The Court has held on many
occasions that Article 6 § 3 (d) does not grant
the accused an unlimited right to secure the appearance of witnesses
in court. It is normally for the national courts to decide whether it
is necessary or advisable to hear a particular witness (Bricmont
v. Belgium, judgment of 7 July 1989, Series A no. 158, p.
31, § 89, Laukkanen and Manninen v. Finland, no.
50230/99, § 35, 3 February 2004). It is
accordingly not sufficient for a defendant to complain that he has
not been allowed to question certain witnesses; he must, in addition,
support his request by explaining why it is important for the
witnesses concerned to be heard and their evidence must be necessary
for the establishment of the truth (see Perna v. Italy [GC],
no. 48898/99, § 29, ECHR 2003 V).
- The
Court recalls also that the personal attendance of the defendant does
not take on the same crucial significance for an appeal hearing as it
does for the trial hearing (see Hermi v. Italy [GC], no.
18114/02, § 60, ECHR 2006 ...). The manner of
application of Article 6 to proceedings before courts of appeal
depends on the special features of the proceedings involved; account
must be taken of the entirety of the proceedings in the domestic
legal order and of the role of the appellate court therein (see,
among many other authorities, Hermi, cited above, § 60,
Ekbatani v. Sweden, judgment of 26 May 1988, Series A no. 134,
p. 13, § 27, and Monnell and Morris v. the United
Kingdom, judgment of 2 March 1987, Series A no. 115, p. 22,
§ 56).
- Moreover,
even where a court of appeal has jurisdiction to review the case both
as to facts and law, the Court cannot find that Article 6 always
requires a right to a public hearing irrespective of the nature of
the issues to be decided. The publicity requirement is certainly one
of the means whereby confidence in the courts is maintained. However,
there are other considerations, including the right to trial within a
reasonable time and the related need for expeditious handling of the
domestic courts’ case-load, which must be taken into account in
determining the necessity of a public hearing at stages in the
proceedings subsequent to the trial at first instance (Fejde,
cited above, § 31). Provided a public hearing has been held
at first instance, the absence of such a hearing before a second or
third instance may accordingly be justified by the special features
of the proceedings at issue. Leave-to-appeal proceedings and
proceedings involving only questions of law, as opposed to questions
of fact, may comply with the requirements of Article 6, although the
appellant was not given an opportunity of being heard in person by
the appeal or cassation court (Ekbatani, cited above, § 31).
- Applying
the above-mentioned principles to the present case, the Court
observes at the outset that a public hearing was held at first
instance, in which the applicant, his co-defendant and police officer
M.H. were heard. The conviction was based on the
testimony of witness M.H., which the applicant contested.
- The
Court notes that the applicant specifically requested an oral hearing
before the Court of Appeal and to hear the testimony of, inter
alia, police officer S.H. Thus, no question arises as to whether
or not the applicant waived his right thereto. It remains to be
examined whether a departure from the principle that there should be
such a hearing could, in the circumstances of the case, be justified
at the appeal stage by the special features of the domestic
proceedings viewed as a whole. In order to decide this
question, regard must be had to the nature of the Finnish appeal
system, to the scope of the Court of Appeal’s powers and to the
manner in which the applicant’s interests were actually
presented and protected before the Court of Appeal particularly in
the light of the nature of the issues to be decided by it (see,
mutatis mutandis, Ekbatani, p. 13, § 28).
- The
Court observes that the Finnish appellate courts’ jurisdiction
is not limited to matters of law but also extends to factual issues.
Under Chapter 26, section 15 of the Code on Judicial Procedure, the
Court of Appeal shall hold an oral hearing if the credibility of the
testimony admitted in the District Court is an issue. In the instant
case the appellate court was called upon to examine the case as to
both the facts and the law. The applicant denied the facts upon which
the charge against him was founded, requesting an oral hearing in
order to elucidate the relevant events. The Court of Appeal had to
make a full assessment of the applicant’s guilt or innocence as
the applicant throughout the proceedings had denied any intention of
threatening the police officers. For the Court of Appeal the crucial
question concerned the credibility of the statements of the persons
involved. Nevertheless, the Court of Appeal decided, without a public
hearing, to confirm the District Court’s conviction. The Court
finds that in the circumstances of the instant case the question of
the applicant’s intention and the credibility of the statements
could not, as a matter of fair trial, have been properly determined
without a direct assessment of the evidence given in person by the
applicant and by the police officer M.H.
27. Accordingly,
there has been a violation of Article 6 § 1 of the Convention as
regards the refusal to hold an oral hearing at the appellate stage.
- In
view of the Court of Appeal’s firm conclusion that an oral
hearing could be dispensed with, the Court considers that it is not
necessary to examine separately whether the rights of the defence
were disrespected by reason of the Court of Appeal’s refusal to
hear S.H. as a witness.
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
- The
applicant asked the Court to award him 8,500 euros (EUR) for damages,
without specifying whether it was to compensate pecuniary or
non-pecuniary damage.
- The
Government accepted that the applicant should be awarded reasonable
compensation should the Court find a violation of Article 6 of
the Convention. However, the Government found the sum claimed by the
applicant excessive. In their view, the amount to be awarded should
not exceed EUR 1,500.
- The
Court cannot speculate as to what the outcome of the proceedings
before the Court of Appeal would have been if the latter had held an
oral hearing. Accordingly, no pecuniary damage can be awarded (see
Bakker v. Austria, no. 43454/98, § 36, 10
April 2003). However, the Court is satisfied that the applicant
suffered distress and frustration resulting from the above breach
which is not sufficiently compensated by the finding of a violation
of the Convention. Making its assessment on an equitable basis, the
Court awards the applicant EUR 2,000 under this head.
B. Costs and expenses
- The
applicant also claimed EUR 2,201.35 (inclusive of value-added tax,
“VAT”) for the costs and expenses incurred before the
Court. The legal aid paid by the Council of Europe amounting to EUR
850 had not been deducted before arriving at that amount.
- In
their memorial the Government considered that the applicant’s
lawyer’s invoice contained some costs that were not actually
and necessarily incurred (in a total amount of EUR 187.50).
- According
to the Court’s case-law, an applicant is entitled to
reimbursement of his costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and are
reasonable as to quantum. Furthermore, legal costs are
recoverable only in so far as they relate to the violation found
(see, for example, I.J.L., G.M.R. and A.K.P. v. the United
Kingdom (Article 41), nos. 29522/95, 30056/96 and
30574/96, § 18, 25 September 2001).
Taking into account the legal aid granted by the Council of
Europe, the Court considers it reasonable to award the applicant EUR
1,000 for his costs and expenses in connection with the proceedings
before the Court (inclusive of VAT).
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
- Holds that there has been a violation of
Article 6 § 1 of the Convention on account of the refusal
to hold an oral hearing in the appeal proceedings;
- Holds that it is not necessary to examine
separately the applicant’s complaint under Article 6 §
3(d) 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 in accordance with
Article 44 § 2 of the Convention, the following
amounts:
(i) EUR
2,000 (two thousand euros) in respect of non-pecuniary damage;
(ii) EUR
1,000 (one thousand euros) in respect of costs and expenses;
(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
claim for just satisfaction.
Done in English, and notified in writing on 22 May 2007, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
T.L. Early Nicolas Bratza
Registrar President
