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FOURTH
SECTION
CASE OF R.H. v. FINLAND
(Application
no. 34165/05)
JUDGMENT
STRASBOURG
2
June 2009
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 R.H. v. Finland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas Bratza, President,
Lech
Garlicki,
Ljiljana Mijović,
David Thór
Björgvinsson,
Ján Šikuta,
Päivi
Hirvelä,
Mihai Poalelungi, judges,
and
Fatoş Aracı, Deputy
Section Registrar,
Having
deliberated in private on 12 May 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 34165/05) 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 R.H. (“the
applicant”), on 22 September 2005. The President of the
Chamber decided of his own motion that the applicant's identity
should not be disclosed (Rule 47 § 3 of the Rules of Court).
- The
applicant was represented by Mr Hannu Koski, a lawyer practising in
Kurikka. The Finnish Government (“the Government”) were
represented by their Agent, Mr Arto Kosonen of the Ministry for
Foreign Affairs.
- The
applicant alleged, in particular, that his right to a fair trial had
been violated as the Appeal Court had not made a full examination of
his case and had not organised an oral hearing but had used instead
the so-called filtering procedure.
- On
5 May 2008 the President of the Fourth Section decided to communicate
the complaint concerning the lack of an oral hearing and of full
examination of the case to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1953.
- In
January 2002 the applicant went to a bar for a few drinks. He met his
female acquaintance who was in the company of two 17-year-old girls
whom he had not met before. Afterwards, they all decided to leave the
bar in a taxi. They dropped off the applicant's acquaintance at her
home and continued to the applicant's apartment. The applicant, and
apparently also the girls, continued drinking and talking. According
to the statement given by the applicant in the District Court
(käräjäoikeus, tingsrätten), after a while
he called a taxi for the girls and gave them money for the fare. He
claims that the next time he heard of the girls was about four months
later when the police contacted him and suspected him of a sexual
offence.
- The
girls' version of the early evening's events was roughly the same as
the applicant's but differed considerably as concerned the events at
his apartment. The girls claimed that while they were in the
applicant's apartment, he had sexual intercourse with one of the
girls after she had fallen asleep, and that he attempted to rape the
other one. Immediately after this had happened, the girls decided to
leave. One of the girls called a taxi and the applicant gave them
money for the fare. When they got home, the mother of one of the
girls called the police. A police patrol came and the police
interviewed the girls. The girl who alleged that she had been raped
refused to see a doctor.
- The
applicant was questioned for the first time on 21 May 2002. The
public prosecutor brought charges against him on 20 November 2003.
The District Court held an oral hearing on 31 March 2004 at
which only the applicant and the girls were heard.
- On
5 May 2004 the District Court gave its judgment. It acknowledged that
the parties' accounts of the facts diverged greatly. The majority of
the District Court judges found that the girls' account was more
reliable than the applicant's. Their stories were coherent and
consistent. It was not credible that the girls could have invented
the allegations. The fact that the girl who had been raped did not
see a doctor immediately after the incident was of no relevance. The
applicant was convicted of sexual abuse and attempted coercion into
sexual intercourse (sukupuoliyhteyteen pakottamisen yritys, försök
till tvingande till samlag), sentenced to a conditional prison
sentence of 8 months and 15 days and fined. One judge found the
applicant's account of the facts to be more reliable and gave a
dissenting opinion.
- By
a letter dated 4 June 2004 the applicant appealed to the Appeal Court
(hovioikeus, hovrätten), requesting that an oral hearing
be held as he had been convicted on the basis of conflicting
evidence. The girls' testimonies before the District Court had
differed from their accounts given during the pre-trial investigation
and were inconsistent. The girl who claimed to have been raped had
not seen a doctor after the alleged offence. Moreover, the police had
started to investigate the crime as rape. However, since rape was
such a serious offence the police should have arrested the applicant
immediately and conducted a crime-scene investigation in his
apartment. Instead, the applicant had been questioned for the first
time only about four months later.
- On
6 September 2004 the Appeal Court decided to apply the filtering
procedure (seulontamenettely, sållningsförfarandet)
and rejected the request for an oral hearing. It upheld the District
Court's judgment without examining the case any further.
- By
a letter dated 11 November 2004 the applicant appealed to the Supreme
Court (korkein oikeus, högsta domstolen), complaining
about the use of the filtering procedure and reiterating the grounds
of appeal relied on before the Appeal Court. He referred, inter
alia, to Article 6 of the Convention.
- On
23 March 2005 the Supreme Court refused leave to appeal.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- The
filtering procedure used by the Appeal Courts is based on Chapter 26,
sections 2 and 2a, of the Code of Judicial Procedure
(oikeudenkäymiskaari, rättegångsbalken), which
has been in force since 1 October 2003.
- The
Appeal Courts may filter a case, that is, uphold the District Court's
judgment without a full examination, when three judges agree, at any
stage of the proceedings, that 1) an oral hearing is not necessary
according to section 15; 2) the finding of the District Court or the
procedure applied therein is not defective; and 3) the legal
protection of the parties concerned or other circumstances of the
case do not require the continuation of the proceedings.
- Section
15 of the Code of Judicial Procedure (Act no. 165/1998) provides:
“(1) The Appeal Court shall hold a main hearing
regardless of whether one has been requested, if a decision on the
matter turns on the credibility of the testimony admitted in the
District Court or the findings of the District Court in an
inspection, or on new testimony to be admitted in the Appeal Court.
In this event, the evidence admitted in the District Court shall be
readmitted and the inspection carried out again in the main hearing,
unless there is an impediment to this.
(2) If the evidence referred to in paragraph (1) cannot
be readmitted at the main hearing, the decision of the District Court
shall not be changed for that part, unless the evidence for any
special reason is to be assessed differently. However, a decision on
a charge may be altered in favour of the defendant in a criminal
case.”
- In
the filtering procedure the material to be taken into account
comprises the appeal documents, the finding of the District Court as
well as any possible reply.
- The
Constitutional Law Committee (perustuslakivaliokunta,
grundlagsutskottet) stated in its opinion 35/2002 concerning the
filtering procedure (see government bill HE 91/2002) the following:
“A fair trial requires in some situations the
holding of an oral hearing at the appellate level. The consideration
of a matter cannot, according to subsection 2 of the proposed
section, be discontinued in the filtering procedure if a full-scale
procedure is necessary for the purposes of the legal security of the
parties. The appeal courts are therefore required to apply the
provisions on the filtering procedure in a way that meets the
requirements of basic and human rights, for example so that the
decisions made when using the filtering procedure do not, in an
individual case, violate the right to an oral hearing."
- Since
the introduction of the filtering procedure the Supreme Court has
given numerous judgments on the applicability of the procedure.
According to its case-law, a full examination and an oral hearing are
necessary when the Appeal Court's finding depended on the credibility
of oral evidence. The credibility of oral statements and the
evaluation of testimonies both require an oral hearing to be held.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained under Article 6 § 1 of the Convention that
his right to a fair trial had been violated as the Appeal Court had
not made a full examination of his case and had not organised an oral
hearing but had used instead the so-called filtering procedure.
According to the case-law of the Finnish Supreme Court, the filtering
procedure could not be used if the adjudication of the case depended
on the credibility of oral evidence. He claimed that this had been
the situation in his case as the District Court had not been
unanimous as far as the evaluation of the evidence was concerned.
- Article
6 § 1 of the Convention reads in its relevant parts as follows:
“In the determination of ... any criminal charge
against him, everyone is entitled to a fair ... hearing ... by [a]
... tribunal ...”
- The
Government contested these arguments.
A. Admissibility
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. The parties' submissions
- The
applicant maintained that he had challenged in particular the
District Court's evaluation of the testimonies and had requested that
the Appeal Court reassess them. It was clear that the outcome of the
case could only be based on the credibility of oral evidence. The
applicant claimed that the girls' testimonies had not been credible.
Also the fact that one of the judges had found the applicant's
account of the facts to be more reliable and had given a dissenting
opinion showed that the court had not been unanimous in evaluating
the evidence. An oral hearing in the Appeal Court could have revealed
more facts of the case. Also the pre-trial investigation had been
conducted in a very light manner as the applicant had not been
questioned immediately after the events and the taxi driver had not
been questioned at all.
- The
Government pointed out that all district court judgments could be
appealed against to the appeal courts but the latter could decide,
under Chapter 26, section 2, of the Code of Judicial Procedure, that
the consideration of an appeal was not to be continued on the grounds
expressly laid down in the said provision. The appeal courts were
required to apply the provisions concerning the filtering procedure
in a way that met the requirements of basic and human rights (see the
Constitutional Law Committee's opinion 35/2002 concerning the
government bill HE 91/2002). The Supreme Court had also, in some
difficult cases, decided not to apply the filtering procedure as it
had not been clear that the district court judgment had been free
from errors. The domestic legislation thus guaranteed the right to an
oral hearing as well as the legal protection of an individual, by
taking into account at the same time the right to a trial within a
reasonable time.
- As
to the present case, the Government pointed out that the evidence
admitted in the District Court consisted of the hearing of the
applicant and the two girls. According to the District Court, the
statements made by the girls on the one hand and by the applicant on
the other hand differed considerably. Both the girls and the
applicant had, however, described the events similarly during the
pre-trial investigation and in the court. The District Court had
found that the girls' statements had been more reliable than the
applicant's. The Government emphasised that the evidence that the
applicant had requested to be heard by the Appeal Court had been the
same evidence that had already been heard in the District Court. The
applicant could have appointed witnesses to be heard. The applicant
had not had an absolute right to an oral hearing by virtue of the
mere request thereof. In the circumstances of the present case, it
had not been necessary to hold an oral hearing in the applicant's
case.
2. The Court's assessment
- The
Court reiterates that 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, 12 July
1988, § 46, Series A no. 140). 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 (see Bricmont v. Belgium, 7 July
1989, § 89, Series A no. 158; 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 also points out 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, 26 May 1988, § 27, Series A no. 134;
and Monnell and Morris v. the United Kingdom, 2 March 1987, §
56, Series A no. 115).
- Moreover,
even where an appeal court 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 (see Fejde
v. Sweden, 29 October 1991, § 31, Series A no. 212 C).
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 (see Ekbatani, cited above, § 31).
- Turning
to the present case, the Court notes that,
according to Chapter 26, sections 2 and 2a, of the Code of
Judicial Procedure, the filtering procedure can only be applied if an
oral hearing is not necessary in the case. The acceptability of this
procedure is thus directly dependent on the necessity of an oral
hearing. The Court must therefore first examine whether the Appeal
Court could, in the circumstances of the case, dispense with holding
an oral hearing.
- The
Court observes at the outset that a public
hearing was held at first instance, in which the applicant and the
girls were heard. The applicant's conviction was
based on the testimony of the girls, which the applicant contested.
- The
Court notes that the applicant specifically requested an oral hearing
before the Appeal Court in order to hear the girls' testimonies as
well as his own. 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 on this
question, regard must be had to the nature of the Finnish appeal
system, to the scope of the Appeal Court's powers and to the manner
in which the applicant's interests were actually presented and
protected before the Appeal Court particularly in the light of the
nature of the issues to be decided by it (see, mutatis mutandis,
Ekbatani, cited above, § 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 Appeal
Court shall hold an oral hearing if the credibility of the testimony
admitted in the District Court is an issue. In the instant case the
Appeal 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 Appeal Court had to make a full
assessment of the applicant's guilt or innocence as the applicant
throughout the proceedings had denied being guilty of the acts with
which he had been charged. For the Appeal Court the crucial question
was the credibility of the statements of the persons involved.
Nevertheless, the Appeal Court decided, without a public hearing, to
uphold the District Court's conviction without examining the case any
further. The Court finds that, in the circumstances of the instant
case, the question of the credibility of the statements of the
persons involved 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 as well as the girls.
35. 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.
II. REMAINDER OF THE APPLICATION
- The
applicant also complained under Article 6 that his right to a fair
trial had been violated as he had been questioned for the first time
about the crime only four months after it had allegedly been
committed. The crime scene could thus no longer be inspected.
- The
Court reiterates that it is for the States to organise their judicial
systems in such a way as to enable their courts to comply with the
requirements of the Convention (see for example Pélissier
and Sassi v. France [GC], no. 25444/94, § 74, ECHR 1999 II).
The authorities conducting a pre-trial investigation have a certain
margin of appreciation as to how to conduct the investigation (see,
mutatis mutandis, Szula v. the United Kingdom (dec.),
no. 18727/06, 4 January 2007).
- To
the extent that Article 6 guarantees apply to the pre-trial
investigation phase (see Salduz v. Turkey [GC], no. 36391/02,
27 November 2008, and case law referred to therein), the Court
considers that the applicant has not substantiated how any perceived
defects in the investigation had adverse repercussions on his right
to a fair trial. There is therefore no indication of any violation in
this respect.
- It
follows that this complaint must be rejected as being manifestly
ill-founded within the meaning of Article 35 §§ 3 and 4 of
the Convention.
III. 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 claimed 7,313.50 euros (EUR) in respect of pecuniary damage
and EUR 10,000 in respect of non-pecuniary damage.
- The
Government contested the causal link between the alleged violation of
Article 6 § 1 of the Convention and any pecuniary damage
suffered. Consequently, no award should be made under this heading.
As to the non-pecuniary damage, the Government considered that the
reasonable compensation for non-pecuniary damage should not exceed
EUR 2,000.
- The
Court cannot speculate as to what the outcome of the proceedings
before the Appeal Court 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 has
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 3,050 (inclusive of value-added tax) for
costs and expenses incurred before the domestic courts as well as the
Court.
- The
Government maintained that no specification related to costs and
expenses, as required by Rule 60 of the Rules of Court, had been
submitted but left it to the Court's discretion whether any award
should be made in this respect. In any event, the total amount of
compensation for costs and expenses should not exceed EUR 2,000
(inclusive of value-added tax).
- According
to the Court's case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and were
reasonable as to quantum. In the present case, regard being had to
the information in its possession and the above criteria, the Court
considers it reasonable to award the sum of EUR 2,000 covering costs
and expenses under all heads.
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
- Declares the complaint concerning the lack of an
oral hearing and of full examination of the case admissible and the
remainder of the application inadmissible;
- Holds that there has been a violation of Article
6 § 1 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), plus any tax that may be chargeable, in
respect of non-pecuniary damage;
(ii) EUR
2,000 (two thousand euros), plus any tax that may be chargeable, in
respect of costs and expenses;
(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 2 June 2009, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Nicolas Bratza
Deputy Registrar President
