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FOURTH
SECTION
CASE OF KARI-PEKKA
PIETILÄINEN v. FINLAND
(Application
no. 13566/06)
JUDGMENT
STRASBOURG
22
September 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 Kari-Pekka Pietiläinen
v. Finland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas Bratza,
President,
Giovanni Bonello,
David Thór
Björgvinsson,
Ján Šikuta,
Päivi
Hirvelä,
Ledi Bianku,
Nebojša
Vučinić, judges,
and Fatoş Aracı,
Deputy Section Registrar,
Having
deliberated in private on 1 September 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 13566/06) 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-Pekka Pietiläinen
(“the applicant”), on 10 April 2006.
- The
applicant was represented by Mr Ari Halonen, 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, in particular, that his right to a fair trial and
to defend himself in person or through legal assistance of his own
choosing had been violated as his appeal in the Appeal Court had been
discontinued due to the fact that he had not attended a hearing in
person but had been represented by his counsel.
- On
30 June 2008 the Acting President of the Fourth Section decided to
give notice of the application 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 1967 and lives in Helsinki.
- On
24 February 2004 the applicant was convicted of aggravated fraud by
the Tuusula District Court (käräjäoikeus,
tingsrätten) and sentenced to conditional imprisonment for
one year and eight months.
- On
25 March 2004 the applicant appealed to the Helsinki Appeal Court
(hovioikeus, hovrätten) requesting, inter alia,
that an oral hearing be held. The other defendants and one of the
complainants also appealed to the Appeal Court.
- On
28 December 2004, after having received written observations from the
parties, the Appeal Court decided to hold an oral hearing. On
29 December 2004 the parties were summoned to attend the oral
hearings which were to take place on 28 February, 14 to 16 March, 18
March, and 21 to 24 March 2005. It was stated in the decision
and in the summons that the applicant was to appear in person at the
hearing on all of those days, under penalty of a default fine. His
presence was required due to his own appeal as well as the opposing
parties' appeal and in order to be heard by the public prosecutor.
However, the hearing of witnesses was to take place between 14 and
24 March 2005. Moreover, it was stated in the summons that, if the
applicant were to be absent from the main hearing without a valid
excuse and despite the penalty of a default fine being imposed, his
appeal would be discontinued. As far as the opposing parties' appeal
and the hearing by the public prosecutor were concerned, a new threat
of a higher fine could be imposed on the applicant, he could be
ordered to be brought to the same or a later hearing, and the case
could be decided regardless of his absence. A valid excuse meant
circumstances of force majeure or an illness certified by a
medical certificate. Work or holiday reasons were normally not
considered as valid reasons. The Appeal Court was to examine whether
the excuse was valid.
- The
summons was served on the applicant on 4 January 2005.
- The
applicant did not attend the hearing on 28 February 2005 but was
represented by his counsel. He could not be reached by telephone
despite several attempts. The public prosecutor requested that the
applicant be brought to the hearing but this was not done. The
applicant's counsel indicated that the applicant could most likely be
found at his home but that his presence at the hearing on 28 February
2005 was not necessary as it had been planned in advance that he
would be heard only on 15 March 2005.
- On
28 February 2005 the Appeal Court decided, on the basis of Chapter
26, section 20, subsection 1, of the Code of Judicial Procedure
(oikeudenkäymiskaari, rättegångsbalken; Act
no. 381/2003), that the applicant's appeal was to be discontinued due
to his absence. It found that, since the applicant had not attended
the hearing on 28 February 2005 or notified the court of a valid
excuse for his absence, he had to be considered to have been absent
even though his counsel had been present. It was stated in the
decision that an ordinary appeal was not allowed but if the applicant
had had a valid excuse that he had not been able to announce in time,
he had the right to a reopening of the case on the basis of the same
appeal, by notifying the Appeal Court in writing within thirty days
of the decision to discontinue the appeal. If he could not provide a
valid excuse, the case would be ruled inadmissible.
- On
15 March 2005 the applicant attended the hearing as planned and was
questioned as a witness.
- On
24 March 2005 the applicant notified the Appeal Court in writing that
he had had a valid excuse for his absence and that he wanted his case
to be reopened. He claimed that the national provision in question,
Chapter 26, section 20, subsection 1, of the Code of Judicial
Procedure, had been too strictly applied. He referred to a Supreme
Court judgment in which the court had stated that it was not
necessary to summon an applicant to appear in person unless his
presence was strictly necessary, for example for questioning.
According to the Supreme Court, the national provision in question
should not be interpreted too strictly. If the applicant was absent
from the main hearing but his presence was not deemed strictly
necessary, his appeal should not be discontinued due to his absence.
- Furthermore,
the applicant claimed that the above-mentioned provision most likely
failed to comply with the requirements of the European Convention on
Human Rights. When the provision in question had last been amended,
the Government had proposed some textual changes in order to reflect
better the Court's case-law in this respect. These changes were not,
however, accepted by the Parliament.
- Moreover,
the applicant claimed that, as there were no rules on how national
law was to be applied when the main hearing lasted for several days,
a Convention-friendly approach should have been adopted. The Appeal
Court had set up a procedural plan according to which the applicant
was to be heard in person only on 15 March 2005. It was not
indicated in the summons that even one day's absence would be
regarded as absence from the whole main hearing. The applicant's
presence at the hearing on 28 February 2005 was thus not
strictly necessary and the Appeal Court should not have discontinued
his appeal. The applicant had never intended to discontinue his
appeal.
- In
any event, the applicant claimed that he had had a valid excuse as he
had been ill. He provided a medical certificate and two medical
documents to that effect.
- On
21 June 2005 the Appeal Court rejected the applicant's notification.
It found that the medical certificate had been dated eight days after
the hearing and that the doctor had thus not examined the applicant's
health on 28 February 2005. On that date, the applicant had not
received any treatment in a hospital or in a similar medical
institution. The applicant was suffering from a long-term illness and
his treatment was estimated to last two to three years. Despite the
applicant's state of health, he had been able to attend the hearing
on 15 March 2005. His illness was thus not of a kind to constitute a
valid excuse for absence. The applicant had time to prepare himself
well in advance for the hearing and also to take the hearing into
account when planning his treatment. Thus, the applicant had not
shown that he had had a valid reason to be absent from the hearing on
28 February 2005 and he had no right to have his case reopened.
- On
18 August 2005 the applicant appealed to the Supreme Court (korkein
oikeus, högsta domstolen), reiterating the grounds of appeal
relied on before the Appeal Court and pointing out that the Appeal
Court had taken no stand on his claims concerning national law and
the Court's case-law.
- On
11 October 2005 the Supreme Court refused leave to appeal.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- According
to Chapter 26, section 20, subsection 1, of the Code of Judicial
Procedure (oikeudenkäymiskaari, rättegångsbalken;
Act no. 81/2003), if the appellant is absent from the main
hearing, the appeal shall be discontinued. According to Chapter 12,
section 29 of the same Code (Act no. 1052/1991), a party who, in
spite of having been ordered to appear in court in person, sends an
attorney in his place without a valid excuse, shall be deemed to be
absent.
- When
the current provisions concerning appeals to the Appeal Court were
amended in 2002 and 2003, the following was mentioned in the
Government Proposal HE 91/2002 vp.:
“The provision [Chapter 26, section 20, subsection
1, of the Code of Judicial Procedure] is interpreted [by the Supreme
Court, KKO 2000:44] to mean that an appeal of an applicant summoned
to appear in person is discontinued if he or she is absent from the
main hearing even if he or she is represented by counsel. However,
the European Court has on many occasions stated that it was of
crucial importance for the fairness of the criminal justice system
that the accused be adequately defended by counsel, in spite of
having been properly summoned to appear in person. In its judgments
of Lala and Pelladoah v. The Netherlands
(application nos. 14861/89 and 16737/90, judgment of 22 September
1994, points 34 and 40) and Van
Geyseghem v. Belgium (application
no. 26103/95, judgment of 21 January 1999, points 33—35) as
well as most recently in its judgment Stroek
and Goedhart v. Belgium (application
nos. 36449/97, 36467/97 and 34989/97, judgment of 20 March 2001), the
European Court stated that an accused does not lose this right
to be defended effectively by a lawyer merely on account of not
attending a court hearing. It is immaterial whether the absence is
due to a valid excuse or whether an
appeal is possible. It is also immaterial that the defendant was
adequately defended in the lower instance. The judgment in the Van
Geyseghem case concerned an action
for recovery of a higher court judgment which was given in
absentia. The applicant, who was an
accused in the criminal proceedings, was represented by her counsel
in the recovery proceedings. The higher court "declared the
application void". The proceedings were thus similar to those in
Finland when an appeal is discontinued. On the other hand, in its
judgment of Eliazer v. The
Netherlands (application no.
38055/97, judgment of 16 October 2001, point 35), the European Court
found no violation when counsel was heard and the case was decided
thereafter. In the light of the above Court's case-law, it is not
entirely clear what should be done regarding an appeal of an
applicant who is an accused in criminal proceedings and who, despite
being summoned, does not appear in person at the main hearing.”
- However,
it was proposed that Chapter 26, section 20, subsection 1, of the
Code of Judicial Procedure be amended so that an appeal by an
applicant summoned to appear in person would no longer be
discontinued if he or she were absent from the main hearing but
represented by counsel. It was felt that it was better that the
applicant in such situations received a decision on material rather
than procedural grounds.
- The
Parliamentary Legal Committee estimated, however, in its report LaVM
27/2002 vp., that as it was debatable whether these amendments were
necessary, and since they were causing inconvenience for the
functioning of the appeal courts, the amendments should not be
adopted. The proposed amendments were thus withdrawn.
- The
Supreme Court took a stand on this issue in its judgment of 1 October
2004 (KKO 2004:94). It found, inter alia, the following:
“13. The European Court has in many judgments
stated that it was of crucial importance for the fairness of the
criminal justice system that the accused be adequately defended, and
that he could not be deprived of this right merely on account of not
attending a court hearing. According to the Court, even if the
legislature had to be able to discourage unjustified absences, it
could not penalise them by creating exceptions to the right to legal
assistance (see Poitrimol v. France, judgment of 23 November
1993, Lala v. The Netherlands and Pelladoah v. The
Netherlands, judgments of 22 September 1994, as well as Van
Geyseghem v. Belgium, judgment of 21 January 1999, Van Pelt v.
France, judgment of 23 May 2000 and Goedhart v. Belgium,
judgment of 20 March 2001).
......
16. When deciding in what situations a case can be
examined only when the applicant is present in person and in what
situations the applicant has the right to defend himself through
legal assistance of his choosing, one has to distinguish different
situations in the criminal proceedings. If the applicant is heard in
order to clarify the matter, his presence in person is necessary.
When, however, other witnesses are heard or the parties are heard in
order to assess legally the act described in the indictment or the
defence, it is appropriate that questioning is undertaken and the
statements are given by a legal representative. It is also clear that
when the applicant exercises his right to question or to give legal
statements, he cannot be deprived of his right to use legal
assistance and that his presence in person in those situations is not
necessary. Therefore, the applicant should not be obliged to appear
in person under penalty of a default fine unless the outcome of the
case might depend on the reliability of his account or his presence
in person is necessary for some other reason.
17. According to the provisions concerning the
proceedings in appeal courts, an appeal court cannot, without any
particular grounds, change the district court's conclusions
concerning the evidence if persons meant to be heard as witnesses are
absent from the main hearing. The starting point is that a higher
instance should have the same possibility to assess the oral
testimony as a district court, the correctness of whose judgment is
being assessed by the higher instance. This means, inter alia,
that the principle of immediate presentation of evidence must be
applied also on appeal. It does not follow from the wording of
Chapter 26, section 20, subsection 1, of the Code of Judicial
Procedure, nor did it follow from it at the time when the Appeal
Court examined the case, that an appeal should always be entirely
discontinued when the applicant is absent from the main hearing, even
though summoned to appear in person. The court which has the right
and the obligation to conduct the proceedings can and indeed must
then decide whether the examination of some parts of the appeal by
hearing only counsel is necessary or reasonable. When considering
this, the court must take into account the applicant's justified
legal expectations. If it becomes clear that the applicant's presence
in person is, in spite of the given order, not necessary, his appeal
should not in this kind of situation be even partly discontinued due
to his absence.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 6 § 3 (C) OF THE
CONVENTION
- The
applicant complained that his right to a fair trial and to defend
himself in person or through legal assistance of his own choosing had
been violated as his appeal in the Appeal Court had been discontinued
due to the fact that he had not attended the hearing on 28 February
2005 but was represented by his counsel. He claimed, referring to the
Court's case-law, that the provision on the basis of which his appeal
was discontinued, namely Chapter 26, section 20, subsection 1, of the
Code of Judicial Procedure, was contrary to the requirements of the
Convention.
- He
invoked Articles 6 § 1 and 6 § 3 (c) of the Convention,
which read in the relevant parts as follows:
“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:
(c) to defend himself in person or through
legal assistance of his own choosing or, if he has not sufficient
means to pay for legal assistance, to be given it free when the
interests of justice so require.”
- The
Government contested these arguments.
A. Admissibility
- The
Court notes that the application 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
- The
applicant pointed out that, according to the Court's case-law, an
accused could not be deprived of his or her right to legal assistance
solely on the ground that he or she had not attended a hearing. Even
though the legislator had a power to prevent unjustified absences, it
could not penalise them by creating exceptions to the right to legal
assistance. An accused's right to legal assistance was not dependent
on his or her behaviour. In the present case, the content of the
summons had been unclear. Moreover, the hearing on 28 February 2005
was not connected to the rest of the hearing and it was not even
intended that the applicant would be heard on that day. Chapter 26,
section 20, subsection 1, of the Code of Judicial Procedure did not
comply with the requirements of the Convention and it had not been
interpreted in a Convention-friendly manner in the applicant's case.
- The
Government maintained that an oral hearing in an appeal court was an
immediate and uninterrupted court session although it would have been
held over several days. The hearing could be cancelled if, inter
alia, the defendant failed to appear and the case could not be
decided notwithstanding this failure. The relevant domestic
legislation was in accordance with the requirements of the
Convention. Moreover, Chapter 26, section 20, subsection 1, of the
Code of Judicial Procedure was flexible and allowed
Convention-friendly interpretation. In the present case the
applicant's hearing in person had been necessary and he had been made
aware of the consequences of his absence. As the applicant could not
be contacted by telephone during the oral hearing, he could not be
brought to court.
- The
Court points out that it is of capital importance that a defendant
should appear, both because of his right to a hearing and because of
the need to verify the accuracy of his statements and compare them
with those of the victim, whose interests need to be protected, and
of the witnesses. The legislature must accordingly be able to
discourage unjustified absences (see Poitrimol v. France, 23
November 1993, § 35, Series A no. 277 A). However, it is
also of crucial importance for the fairness of the criminal justice
system that the accused be adequately defended, both at first
instance and on appeal (see Lala v. the Netherlands, 22
September 1994, § 33, Series A no. 297 A; and Pelladoah
v. the Netherlands, 22 September 1994, § 40, Series A no.
297 B). The latter interest prevails and consequently the fact
that a defendant, in spite of having been properly summoned, does not
appear, cannot – even in the absence of an excuse –
justify depriving him of his right under Article 6 § 3 of the
Convention to be defended by counsel (see Lala v. the Netherlands,
cited above, § 33; and Pelladoah v. the Netherlands,
cited above, § 40). It is for the courts to ensure that a trial
is fair and, accordingly, that counsel who attends trial for the
apparent purpose of defending the accused in his absence is given the
opportunity to do so (see Lala v. the Netherlands, cited
above, § 34; and Pelladoah v. the Netherlands, cited
above, § 41).
- The
right of everyone charged with a criminal offence to be defended
effectively by a lawyer is one of the basic features of a fair trial.
An accused does not lose this right merely on account of not
attending a court hearing. Even if the legislature must be able to
discourage unjustified absences, it cannot penalise them by creating
exceptions to the right to legal assistance. The legitimate
requirement that defendants must attend court hearings can be
satisfied by means other than deprivation of the right to be defended
(see Van Geyseghem v. Belgium [GC], no. 26103/95, § 34,
ECHR 1999 I.).
- Moreover,
the Court reiterates that the right to a fair trial, guaranteed under
Article 6 § 1 of the Convention, comprises inter alia the
right of the parties to the proceedings to present the observations
which they regard as pertinent to their case. As the Convention is
intended to guarantee not rights that are theoretical or illusory but
rights that are practical and effective (see Artico v. Italy,
13 May 1980, § 33, Series A no. 37), this right can be regarded
as effective only if the applicant is in fact “heard”,
that is, his observations are properly examined by the courts.
Article 6 § 1 of the Convention places the courts, inter
alia, under a duty to conduct a proper examination of the
submissions, arguments and evidence adduced by the parties, without
prejudice to its assessment of whether they are relevant to its
decision (see Van de Hurk v. the Netherlands, 19 April 1994, §
59, Series A no. 288; Dulaurans v. France, no. 34553/97, §
33, 21 March 2000; and Virgil Ionescu v. Romania, no.
53037/99, § 44, 28 June 2005; in the context of the right to
access to a court see Perez
v. France [GC], no. 47287/99, § 80, ECHR 2004 I;
and Albina v. Romania, no. 57808/00, § 30, 28 April 2005;
and in the context of the applicant's right to a re-examination of
his conviction see Nedzela v. France, no. 73695/01, §§
55-56, 27 July 2006).
- The
principles established in the above-mentioned cases apply to the
present case. It was the Helsinki Appeal Court's duty to allow the
applicant's counsel, who attended the hearing, to defend him, even in
his absence. That was particularly true in this case as the Appeal
Court had set up a procedural plan according to which witnesses were
to be heard only from 14 March 2005 onwards. Although the intended
scope of the hearing on 28 February 2005 is not entirely clear, it
apparently did not concern any issues for which the applicant's
attendance in person was strictly necessary. In addition, the hearing
was to last several days and it had not been indicated in the summons
that even one day's absence would be regarded as absence from the
whole main hearing. In these circumstances, the discontinuation of
the applicant's case despite the fact that his counsel had been
present on 28 February 2005 constituted a particularly rigid and
heavy sanction for his absence which cannot be considered
justifiable, having regard to the rights of the defence and the
requirements of the fair trial.
- In
conclusion, there has been a violation of Article 6 § 1 taken
together with Article 6 § 3 (c) of the Convention.
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 considered that the best just satisfaction would be
restitutio in integrum as far as possible, which would mean
reopening his case at the domestic level. The reopening would be the
only way to be awarded compensation for pecuniary damage. Therefore
the applicant claimed no award under this head. As to non-pecuniary
damage, the applicant claimed 5,000 euros (EUR).
- The
Government pointed out that the respondent States remained free,
subject to supervision by the Committee of Ministers of the Council
of Europe, to choose the means of complying with their obligations to
put an applicant, as far as possible, in the position in which he or
she would have been had there been no violation of the Convention
requirements. Under Chapter 31, sections 1 and 2, of the Code of
Judicial Proceedings a case could be reopened under certain
circumstances. As to the non-pecuniary damage, the Government
contested the applicant's claim as being too high as to quantum
and considered that the reasonable compensation should not exceed EUR
2,000.
- The
Court accepts that the lack of guarantees of Article 6 has caused the
applicant non-pecuniary damage which cannot be made good by the mere
finding of a violation. Making its assessment on an equitable basis,
the Court therefore awards the applicant EUR 2,500 in respect of
non-pecuniary damage. The Court considers that the award of
non-pecuniary damage provides a sufficient redress in this case.
B. Costs and expenses
- The
applicant also claimed EUR 4,464.71 for the costs and expenses
incurred before the Court.
- The
Government maintained that no specification related to all 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 the
documentation provided was sufficient in this respect. Costs such as
postage, telephone and copying costs should not be compensated as
they were included in counsel's fee. In any event, the total amount
of compensation for costs and expenses should not exceed EUR 2,500
(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 3,000 (inclusive of
value-added tax) for the proceedings before the Court.
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 application admissible;
- Holds that there has been a violation of Article
6 § 1 taken together with Article 6 § 3 (c) 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
2,500 (two thousand five hundred euros), plus any tax that may be
chargeable, in respect of non-pecuniary damage;
(ii) EUR
3,000 (three thousand euros), plus any tax that may be chargeable to
the applicant, 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 22 September 2009,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Nicolas Bratza
Deputy Registrar President
