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FOURTH
SECTION
CASE OF
KARI UOTI v. FINLAND
(Application
no. 21422/02)
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 Kari 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. 21422/02) 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 Kari Uoti (“the
applicant”), on 28 May 2002.
- The
applicant was represented by Mr M. Fredman, a lawyer practising in
Helsinki. The Finnish Government (“the Government”) were
represented by their Agent, Mr A. 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 application
partly admissible.
- 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 1962 and lives in Helsinki.
- On 7 September 1995 the applicant was questioned by the
police about suspected fraud. In autumn 1997 he was charged with
several offences. The trial before the Helsinki District Court
(käräjäoikeus, tingsrätten) involved 47
days of hearings. The applicant was represented by the same counsel
throughout the District Court proceedings and at all subsequent court
levels. 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 three counts of
dishonesty as a debtor and four counts of aggravated tax fraud. He
was sentenced to four years' 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
public prosecutor appealed insofar as the charges had been dismissed
and introduced alternative charges of aiding and abetting accounting
offences. The applicant appealed against the conviction and requested
an oral hearing. In particular, he requested that G., resident in
Guernsey, be heard as a witness either in the Helsinki Court of
Appeal (hovioikeus, hovrätten) or by executive assistance
abroad if the court was not satisfied that the account of a witness
S. was sufficient evidence as regards the value and content of the
documents drawn up by G. In the Court of Appeal the applicant's case
was open for review in respect of all counts. In the applicant's
view, G.'s testimony was relevant to several counts.
- On
11 October 2000 the applicant renewed his request that the court hear
evidence from G. In its decisions of 23 and 24 October 2000 the Court
of Appeal refused, as being unnecessary, to receive oral evidence
from G. It stated that it would provide further reasons in its
judgment.
- On
31 October 2000 the court held a preparatory hearing. The applicant
unsuccessfully renewed his submission that it was necessary to hear
G. 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 pronounced judgment. In addition to
the convictions imposed by the District Court, it convicted the
applicant of four counts of dishonesty as a debtor and of five counts
of aiding and abetting an accounting offence. He was sentenced to six
years' imprisonment and ordered to be detained immediately. 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] 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 of 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 however not 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] 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 under the same conditions
as witnesses against him. 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 contested the Government's view that he had considered that
it was unnecessary to hear G.; he had repeatedly requested the Court
of Appeal to call him as a witness. He had pointed out that the
District Court had convicted him principally on the basis of its
interpretation of the memoranda allegedly drawn up by G., which
conclusion did not correspond to the testimony of S. The applicant
did not dispute that he had met G. during the summer of 1993 and
agreed to found an off-shore structure based on his advice with a
view to transferring the net assets of certain companies. This had
not involved any illegalities. The appellate court should have
obtained oral evidence from G. in order to establish the nature of
the relationship between the applicant and G. and whether there had
been a criminal conspiracy or whether there had only been a
legitimate plan to transfer funds to a legitimate off-shore
structure.
- The
applicant submitted that in its decisions refusing to hear G., the
Court of Appeal had stated that it would provide reasons in the final
judgment, implying that the court had known the reasons when it had
made its decision not to hear G. Had the applicant been provided with
the reasons sooner, he would have been able to express his opinions
on those reasons during the hearings. It appeared to the applicant
that the court either had not known what G. could have testified
about or that it had decided that his testimony was irrelevant. What
struck the applicant was the fact that the appellate court had
arrived at the conclusion that G. need not be heard as a witness
before it had received any oral evidence or before any evidence had
been discussed at the oral hearing. The applicant considered that the
court's behaviour suggested that it was pre-disposed to find him
guilty.
- The
applicant contested the Government's view that the memoranda, which
were unsigned, had been drawn up by G., arguing that it was possible
that they had been drawn up by him or by some other person familiar
with the off-shore structure that the applicant had discussed with G.
The applicant stated that “objectively the memoranda had been
written by an anonymous person familiar with the matter” and
“in order to verify the source of the memoranda it would have
been indispensable to hear G. as a witness”. Even more so, as
they had contained erroneous information, inter alia,
describing transactions that had never taken place.
- The
Government contested the allegations. They emphasised that not even
the applicant had considered it indispensable to hear G. as a witness
in the Court of Appeal; he had stated that it was not necessary to
hear him if witness S.'s testimony were to be considered sufficient
evidence of the content and significance of the documents allegedly
drawn up by G. He had not 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. These facts were
revealed by the testimony of the applicant in the District Court and
in his writ of appeal to the Court of Appeal. In the District Court
the applicant had stated, inter alia, the following:
“[The applicant] has admitted having met G. in the
summer 1993. On that occasion, it was discussed how to invest the net
assets of companies owned by [the applicant] and [his brother] so
that the return on the assets would be subject to taxation as lenient
as possible.”
- 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
provided 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 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, was 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 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
1. 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
