EHRM, 02-06-2009, nr. 34165/05

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.

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.

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.