CASE OF JUSSI UOTI v. FINLAND
No violation of Article 6+6-3-d - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-d - Witnesses);No violation of Article 6 - Right to a fair trial (Article 6-2 - Presumption of innocence)
Nicolas Bratza
6. The applicant was born in 1964 and lives in Turku. 7. 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. 8. 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. 9. 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. 10. 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. 11. 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. 12. 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. 13. 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. 14. 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.” 15. 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. 16. The applicant sought leave to appeal. On 5 December 2001 the Supreme Court (korkein oikeus, högsta domstolen) refused leave to appeal. 17. 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). 18. 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. 19. 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. 20. 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.