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FOURTH
SECTION
CASE OF
JUSSI UOTI v. FINLAND
(Application
no. 20388/02)
JUDGMENT
STRASBOURG
23
October 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 Jussi Uoti v. Finland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Sir Nicolas Bratza, President,
Mr G.
Bonello,
Mr K. Traja,
Mr L. Garlicki,
Ms L.
Mijović,
Mr J. Šikuta,
Mrs P. Hirvelä,
judges,
and Mr T.L. Early, Section Registrar,
Having
deliberated in private on 2 October 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 20388/02) 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 Jussi Uoti (“the
applicant”), on 17 May 2002.
- The
applicant, who had been granted legal aid, was represented by Mr J.
Hakanen, a lawyer practising in Turku. The Finnish Government (“the
Government”) were represented by their Agent, Mr Arto Kosonen
of the Ministry for Foreign Affairs.
- The
applicant alleged a violation of the rights of the defence in respect
of witnesses and the presumption of innocence.
- By
a decision of 7 November 2006, the Court declared the remainder of
the application admissible.
- The
applicant and the Government each filed further written observations
(Rule 59 § 1). The Chamber decided, after consulting the
parties, 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 1964 and lives in Turku.
- At
the end of 1995 the applicant was questioned by the police about
suspected dishonesty as a debtor. Subsequently, charges were brought
against him. The trial before the Helsinki District Court
(käräjäoikeus, tingsrätten) involved 47
days of hearings. The court received testimony from the defendants,
the complainants and over 40 witnesses. On 29 May and
10 June 1998 the prosecution presented documentary evidence,
including some documents drawn up by a Mr G., who was working
off-shore for a bank and who, in answer to a letter rogatory sent by
the National Bureau of Investigation (keskusrikospoliisi,
centralkriminalpolisen) to the Guernsey authorities, had produced
documents (including “notes for archives” pertaining to
meetings on 3 and 22 June 1993 and charts) related to a plan to
transfer funds.
- On
29 January 1999 the applicant was convicted of four counts of
dishonesty as a debtor and four counts of aggravated tax fraud. He
was sentenced to four years and two months' imprisonment. The
District Court judgment ran to 163 pages. In short and in so far as
relevant, the court found on the basis of, inter alia, the
testimonies of J.S., S., the applicant and his brother and the
documentary material, including the documents obtained from the
Guernsey authorities, that the applicant and his brother had
discussed the planned transfers of assets with G. It also found that
the documentary evidence pertaining to the off-shore companies and
the transfer of moneys proved that the assets acquired from the sale
of the “bank group I.” had been transferred via companies
specified in G.'s charts to trusts, the beneficiaries of which the
brothers had appointed. As both brothers had been present during the
negotiations with G. on 3 June 1993 and the plan to transfer funds
had been proved to have materialised, the court found that they had
acted together in, inter alia, removing the funds from
Finland.
- The
applicant appealed to the Helsinki Court of Appeal (hovioikeus,
hovrätten). In his grounds of appeal he submitted, inter
alia, that the documents drawn up by G., resident in Guernsey,
who had not been questioned during the pre-trial investigations or
heard as a witness before the District Court, should not have been
taken into account as he had not had a possibility to respond to that
important evidence.
- In
its decisions of 23 and 24 October 2000 the Court of Appeal refused,
as being unnecessary, the request of the applicant's co-accused
brother that G. be heard as a witness. It stated that it would
provide further reasons in its judgment.
- On
31 October 2000 the Court of Appeal held a preparatory hearing. The
applicant's brother unsuccessfully renewed the request for G. to be
heard as a witness.
- The
first hearing took place on 8 November 2000. The parties and
altogether 22 witnesses gave oral evidence, of whom three were
fresh witnesses. The hearing of 27 other proposed witnesses had been
rejected.
- On
30 March 2001 the Court of Appeal convicted the applicant of six
counts of dishonesty as a debtor, four counts of aggravated tax fraud
and five counts of aiding and abetting accounting offences. It
sentenced him to five years and eight months' imprisonment and
ordered his immediate detention. He also lost his military rank.
- As
regarded the reasons for not hearing G. as a witness, the court held,
inter alia, that:
“The Court of Appeal notes that no request to hear
G. as a witness was made in the District Court although the documents
relating to the plan to transfer moneys from the “bank group
I.”, had been presented at the hearings of 29 May and 10 June
1998 ... Also [the applicant's brother, who was a co-defendant]
relied, as written evidence, on [some] documents drawn up by G.
without requesting that G. be heard as a witness ...
The documents allegedly drawn up by G. have not been
drawn up for the purposes of the pending proceedings. The import of
the documents can be assessed without hearing him as a witness. The
question whether it is necessary to hear him as a witness depends
solely on whether such a hearing could produce relevant new
information. In assessing this question the Court of Appeal takes
into account the fact that in the District Court G. was not proposed
as a witness and the fact that the parties have been provided with an
opportunity to put forward all their opinions concerning the content
and reliability of the documents during the trial.
The Court of Appeal notes that the documents in question
have been requested by the public prosecutor and the National Bureau
of Investigation by sending letters rogatory to the Guernsey
authorities. The Court of Appeal does not have any reason to suspect
that the documents were drawn up by someone other than G. ...
The documents clearly indicate that there has been a
deliberate conspiracy to transfer the assets acquired from the sale
of the “bank group I.” to companies established abroad
and to invest the moneys. The transfer of assets has been conducted,
as later explained in detail in chapter 6.2.2, by order of ... [the
applicant and his co-accused brother]. The question whether G.
himself thought that he was involved only in legal investment
activities is therefore not relevant.
The documents drawn up by G. are however relevant in
assessing ... [the applicant's and his co-accused brother's] possible
guilt of the offence of dishonesty as a debtor ... As becomes
manifest in the reasons given in considering the charges, the Court
of Appeal has not however decided the matter basing itself entirely
on the documents in question. The court has instead assessed the
value of the documents in an overall context, [in Finnish
kokonaisyhteydessä] in which G. cannot have anything
relevant to say.
The Court of Appeal has heard witness S., as requested
... about the events relating to the documents. The testimony of S.,
which in [the applicant's brother's] opinion proves the content of
the discussions with G., has thus been taken into account ... The
Court of Appeal holds that the requirements of a fair trial do not
require that G. be heard as a witness either.”
- The
Court of Appeal judgment ran to 325 pages. In so far as relevant, the
court principally endorsed the District Court's evaluation of the
evidence.
- The
applicant sought leave to appeal. On 5 December 2001 the Supreme
Court (korkein oikeus, högsta domstolen) refused leave to
appeal.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- If
an item of evidence that a party wishes to present 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 refuse to admit it (Chapter 17,
Article 7 (as amended by Act no. 571/1948) of the Code of Judicial
Procedure).
- Chapter
17, Article 11 of the Code of Judicial Procedure, as in force at the
relevant time, provided that a written statement drawn up for a
pending or imminent trial, could not be used as evidence, unless
specifically provided for by law or unless the court so decided for
particular reasons.
- Chapter
26, Article 7 of the Code of Judicial Procedure (as amended by Act
no. 661/1978), as in force at the relevant time, provided that the
Court of Appeal was to hold an oral hearing when necessary. Chapter
26, Article 8 (as amended by Act no. 661/1978), as in force at the
relevant time, provided that the Court of Appeal could not change a
lower court's conviction based on the evaluation of evidence without
holding an oral hearing, unless the case concerned an offence
punishable by fines only or unless an oral hearing was manifestly
unnecessary, in particular taking into account the defendant's need
for legal protection.
- The
provisions concerning the Court of Appeal's duty to hold an oral
hearing were amended (Act no. 165/1998) with effect from 1 May 1998.
The new provisions did not apply to criminal proceedings which had
commenced prior to the entry into force of the new Code on Criminal
Procedure (laki oikeudenkäynnistä rikosasioissa, lagen
om rättegång i brottmål; Act no. 689/1997; in
force from 1 October 1997). The afore-mentioned former provisions
applied therefore to the instant case. The new Chapter 26, Article 15
(Act no. 165/1998) provides that the Court of Appeal is to hold a
hearing, regardless of whether one has been requested, if the
decision in the matter turns on the credibility of the testimony
received in the District Court or on new testimony to be received in
the Court of Appeal. In this event, the evidence admitted in the
District Court proceedings is to be readmitted in the principal
hearing, unless there is an impediment to this.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 §§ 1 AND 3(d)
OF THE CONVENTION
- The
applicant complained about a violation of the rights of the defence
in respect of witnesses. Article 6 §§ 1 and 3(d) read in
relevant part:
“1. In the determination of ... any
criminal charge against him, everyone is entitled to a fair ...
hearing ... by [a] ... tribunal ...
...
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;
...”
A. The parties' submissions
- The
applicant argued that the refusal of the Court of Appeal to hear G.
as a witness had deprived him of his right to obtain the attendance
and examination of witnesses on his behalf. G. had been of crucial
importance to his case as the documents allegedly drawn up by him had
been decisive in leading the Court of Appeal to conclude that there
had been an intentional plan or conspiracy to commit the offences. G.
had managed all the companies which had allegedly transferred assets
abroad illegally and could have provided crucial information. G. had
not even been heard in the pre-trial investigations, which had made
it impossible to verify the content of the documents allegedly drawn
up by him.
- The
applicant pointed out that the court had based itself on the
documents allegedly drawn up by G. although he had not been heard as
a witness at any stage of the proceedings and despite the explicit
request of the applicant's co-defendants that G. be heard as a
witness in the Court of Appeal. What was at issue was not only the
rights of the defence to obtain the attendance of witnesses against
him in order to put questions to and examine the reliability of that
person, but also the fact that the prosecution had presented and the
court had admitted as evidence against the applicant documents
allegedly drawn up by a person who had not been heard at any stage of
the proceedings, even though the origin of the documents and their
contents were disputed. It had been for the prosecution to call G. as
a witness since it had relied on the documents in question. It had
certainly not been the responsibility of the defendant to call a
witness against himself. No attempt had been made by the prosecution
to call G. as a witness. The documentary evidence in question should
therefore have been declared inadmissible by the courts.
- The
applicant maintained that the Court of Appeal's refusal to hear G. as
a witness prior to the principal hearing had also violated the
presumption of innocence and had shown that the court had prejudged
his guilt. He had been given to understand that the court was not
going to admit the documents in question to the case file. However,
the Court of Appeal's judgment had taken him by surprise in that the
court had based its judgment on those very documents.
- Lastly,
the applicant maintained that the documentary evidence in question
had per se been decisive for the outcome of the case.
- The
Government contested the allegations. The applicant had never
requested that G. be heard as a witness whereas two other defendants
had done so. They had not however requested that G. be heard during
the pre-trial investigation or in the District Court. The fact that
the applicant and his brother had controlled some companies had been
unknown to the prosecution until documents had been obtained from the
Guernsey authorities by a letter rogatory. The District Court found
that G. had a business relationship with the applicant and his
brother, and that it was in this framework that the documents in
question had been drawn up containing a plan of transferring the
brothers' assets to a number of destinations. In his appeal against
the lower court's judgment the applicant had criticised the court for
not having heard G. as a witness, but he had not however identified
him as his witness. He had not denied the documents in question
having been drawn up by G., but he had requested that S. be heard as
a witness regarding the contents of the negotiations with G., a
request which was granted by the appellate court. In his appeal the
applicant stated, inter alia, the following:
“The District Court has, therefore, considered
proven that [the applicant] and [his brother] had made a plan
together of 'emptying' their companies and that they had also carried
it out by common agreement. The conclusion drawn that they had done
this by common agreement has been based on documentary evidence
obtained from abroad by means of a letter rogatory, in particular a
memorandum drawn up by G. 'New business - [the applicant and his
brother]'. What does, then, the assessment of the documents in the
judgment of the District Court actually prove? It proves that a
company represented by [the applicant] and [his brother] had received
considerable profits from selling the stock ... and that [the
applicant] and [his brother] were considering investing the assets in
countries with more lenient taxation than in Finland. For carrying
this out, G.'s memorandum and the correspondence between him and [the
applicant's brother] contains plans for the practical measures for
carrying out the transaction. Some of these plans have actually been
carried out in practice, in some respects along the same lines as had
been planned in the documents mentioned. ... What was really
discussed with G., namely the investing of net assets, was testified
by S., but the District Court apparently did not consider his
testimony credible, whereas it did consider the memorandum G. had
drawn up for his own purposes fully credible in all of its aspects.
The evidence has been assessed erroneously. On this count, [the
applicant] identifies S. and himself as his witnesses in the Court of
Appeal.”
- The
Court of Appeal extensively reasoned its decision not to hear G. as a
witness, finding that the documents were normal written evidence,
which could be assessed on their own without obtaining oral evidence
from their author. The court thus assessed, within its discretionary
power, the importance of the documents for the case and whether it
was necessary or advisable to hear G. as a witness. The parties were
able to comment on the documents in question both with regard to
their contents and their credibility. G.'s testimony would not have
produced any new decisive evidence since the question whether he
believed that he was involved in legal investment activities did not
have any particular bearing on the outcome of the case.
- The
Government pointed out that the reasons provided in the Court of
Appeal's judgment described, inter alia, the oral evidence
concerning the contacts between the applicant, his co-accused brother
and G. It also set out how the court assessed the applicant's
activity when it deemed him guilty of the offences. It closely
scrutinised the transactions between the different companies
controlled by the applicant and his brother. The documents drawn up
by G. had clarified certain matters as they portrayed the
transactions between different companies controlled by the brothers
but they had not been decisive. The court had compared the documents
with the transactions and had found them to be coherent. It had found
it significant that it had been proved that the transfer of the
assets had been conducted according to the plan in the documents and
that the assets had ended up under the control of the brothers, so
that these activities had constituted the crimes they had been
charged with. The outcome of the case would not have been any
different if G., too, had been called to testify on the same matters
(i.e. on the contents of the negotiations with G.) on which S. had
been heard as a witness.
B. The Court's assessment
- The
basis of the applicant's complaint was the use as evidence of
documents drawn up by a business partner without hearing his
testimony. They had been requested by the public prosecutor and the
National Bureau of Investigation by sending letters rogatory to the
Guernsey authorities. On the request of the prosecution they were
admitted to the case file. G. was not heard himself before the
courts, although the applicant's co-accused brother requested that he
be heard before the Court of Appeal.
- As
the guarantees in paragraph 3 of Article 6 are specific aspects of
the right to a fair trial set forth in paragraph 1, the Court will
consider the complaint under the two provisions taken together (see,
among other authorities, Asch v.
Austria, judgment of 26 April 1991,
Series A no. 203, § 25). Even though G. had not testified
at a hearing he should, for the purposes of Article 6 § 3
(d), be regarded as a witness – a term to be given an
autonomous interpretation – because documents drawn up by him,
as referred to by the prosecution, were in fact before the court,
which took account of them.
- The
Court recalls 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, were fair.
- It
is a fundamental aspect of the right to a fair trial that criminal
proceedings should be adversarial and that there should be equality
of arms between the prosecution and defence. The right to an
adversarial trial means, in a criminal case, that both prosecution
and defence must be given the opportunity to have knowledge of and
comment on the observations filed and evidence adduced by the other
party (see Rowe and Davis v. the United
Kingdom [GC], no. 28901/95, § 60,
ECHR 2000-II).
- All
the evidence must normally be produced in the presence of the accused
at a public hearing with a view to adversarial argument. As a rule, a
conviction should not be based on the testimony of a witness whom the
accused has not had an opportunity to challenge and question.
However, 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.
- Applying
these principles to the present case, the Court first notes that the
defence did not propose that G., who had produced written evidence
relied on by the prosecution, be heard in the District Court. Nor was
he heard before the Court of Appeal.
- The
possible disadvantages thereby caused to the applicant were, however,
alleviated by the fact that he had the opportunity to comment on and
challenge, both in writing and in a hearing at two court levels, the
documentary evidence in question with a view to influencing the
courts' decisions. The request of the applicant's co-accused brother
to hear G.'s testimony was rejected for the reasons set out in
paragraph 14 above. The courts based the applicant's conviction not
only on the documents drawn up by G. but also on other evidence
presented in the case, such as the documentary evidence concerning
the money transactions and S.'s testimony as regards the content of
the discussions with G. (see paragraphs 8 and 15 above).
- In
these circumstances the Court cannot conclude that the adversarial
nature of the proceedings was not respected or that the national
courts exceeded the margin of appreciation they have in the admission
and assessment of evidence.
- In
sum, any limitations which may have been imposed on the rights of the
defence were not such as to deprive the applicant of a fair trial. It
follows that there has been no violation of Article 6 §§ 1
and 3 (d) of the Convention, examined together.
II. ALLEGED VIOLATION OF ARTICLE 6 § 2 OF THE
CONVENTION
- The
applicant also complained that the refusal to hear G. as a witness
had violated the presumption of innocence.
Article
6 § 2 reads:
“Everyone charged with a criminal offence shall be
presumed innocent until proved guilty according to law.”
- The
Government contested the allegation, arguing that prior to the main
hearing the Court of Appeal had, on the occasion of assessing the
necessity of evidence offered, to establish which matters were
material to the outcome of the case. This naturally did not imply
that the Court of Appeal would have violated the presumption of
innocence by deciding not to hear G.'s testimony.
- The
Court agrees with the Government. The fact that the Court of Appeal
refused to hear G. as a witness cannot be construed as indicating
that the court had at that stage prejudged the question of the
applicant's guilt. The Court of Appeal's
decision was taken in the exercise of its discretionary power to
admit or disallow evidence including witness testimony in accordance
with its own perception of relevancy. This conclusion is not affected
by the fact that the Court of Appeal only provided detailed reasons
for its refusal in its final judgment (see paragraph 10 above).
- It
follows that there has been no violation of Article 6 § 2 of the
Convention.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Holds that there has been no violation of
Article 6 §§ 1 and 3 (d) of the
Convention taken together;
- Holds that there has been no violation of
Article 6 § 2 of the Convention.
Done in English, and notified in writing on 23 October 2007, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
T.L. Early Nicolas Bratza
Registrar President
