CASE OF ESKELINEN AND OTHERS v. FINLAND
No violation of Art. 6-1
Nicolas Bratza
7. The applicants were born in 1943, 1956, 1958 and 1944 respectively and live in Lappeenranta. 8. A Finnish company called Hackmann Sisustus Oy (hereinafter “HCS”) and an Estonian company called Viisnurkka A/S (hereinafter “VIS”) agreed that they would gradually switch production of coated decorative panels known as “Halltex-panels” from Finland to the VIS factory in Estonia, so that HCS would eventually become responsible for their marketing only. HCS had a monopoly over Halltex-panels in Finland. At the beginning of 1993 HCS and VIS signed another contract, according to which HCS would buy wind-block panels from VIS. The cooperation between the two companies covered, as a result, all the marketing rights of VIS products in Finland, Sweden and west-European countries. HCS, which was still producing Halltex-panels of its own, later allegedly ignored the above-mentioned cooperation contracts, causing VIS financial difficulties. VIS considered that the agreements had been terminated and decided to build its own production line to make coated decorative panels. The production line was ordered through Oy Finnhallex Ltd, a Finnish company apparently owned by the first, second and fourth applicants, from a company called Lappeenrannan Konemetalli Oy, owned by the third applicant. 9. On 10 August 1994 the managing director of HCS, Mr H.H., requested the police to investigate whether there had been a disclosure of their business secrets, alleging that their exclusive rights to the design of a production line to make coated decorative panels had been used without their permission to build the VIS production line in Estonia. 10. The investigations were carried out by the National Bureau of Investigation (keskusrikospoliisi, centralkriminalpolisen), which appointed Mr L.T., a mechanical engineer, as their expert in the case. He had worked for a company called Hackman Wood Oy, which belonged to the same consolidated group as HCS. The National Bureau of Investigation also requested expert statements from Professor H.K. in respect of technical questions, and from Professor M.C. in respect of the legal aspects of the protection of business secrets. Professor M.C. was asked to address in particular whether the first and second applicants had provided Oy Finnhallex Ltd with information covered by business secrecy. Further, he was asked to give an opinion on the third applicant’s activities in the planning of the production line, whether he had possessed information covered by business secrecy and whether he had availed himself of such information. Professor M.C. was provided with the pre-trial statements of the applicants and six others. On 9 November he submitted his opinion comprising 25 pages of which some 15 pages concerned his assessment of the nature of the applicants’ alleged actions. 11. The applicants requested that an Estonian citizen, Mr K.P., also be heard as a witness in the pre-trial investigation, but the National Bureau of Investigation made no attempt to call him as a witness. The applicants were not able to appoint their own expert as the HCS production line, with which the VIS production line was to be compared, was protected by the exclusive business secrecy of HCS. According to the applicants, their expert was therefore prevented from examining the HCS production line. The VIS production line went into operation only after the Kouvola Court of Appeal (hovioikeus, hovrätten) proceedings had come to an end. 12. The public prosecutor brought charges against the applicants for, inter alia, disclosure of a business secret. In the indictment, he alleged that the applicants had undertaken to carry out a project for the production of coated decorative panels on the basis of information they had on the production and marketing of a similar product known as Halltex-panels of HCS, in cooperation with VIS. Oy Finnhallex Ltd had been established for the purposes of the project, which was to provide VIS with the production line for the panels corresponding to Halltex-panels and otherwise to take care of the supply of equipment, training and know-how. According to the indictment, the information used for carrying out the project constituted a business secret of HCS. Although the third applicant had no association with HCS, he was allegedly aware of the fact that the project in which he had participated was to a large extent based on the business secrets of HCS. 13. On 30 May 1995 the Lappeenranta District Court (käräjäoikeus, tingsrätten) began its examination of the charges. The applicants pleaded not guilty, arguing, inter alia, that HCS had deliberately given up its allegedly exclusive right to any secrets as it had handed over all the relevant information to VIS anyway. They also argued that the design was a matter of common knowledge and was not protected in any way, as the patent for Halltex-panels had already expired at the time of the events in question and the HCS factory had been accessible to anyone. They also noted that a similar panel was produced in Lithuania. According to the applicants, HCS intended to exploit its monopoly status with the help of the court proceedings. 14. The applicants called K.P., among others, as their witness. They also requested that the former members of HCS’s board of directors, Mr H.H. and Mr J.L., called by HCS, should not be heard as witnesses as their real status was that of a complainant given their close relationship with the company. The District Court rejected their claims and took evidence from H.H. and J.L. The District Court also heard oral evidence from the applicants, from ten witnesses called by the prosecution and from seven witnesses for the defence. One witness for the complainant company was also heard. 15. In September 1995, during a three-day hearing, the fourth applicant requested that two engineers, both witnesses for the defence, should be allowed to acquaint themselves with HCS’s production line. However, he withdrew the request during the hearing. At no stage during the proceedings did anyone request that Professor M.C., who had given a written expert opinion during the pre-trial investigation, be heard as a witness before the District Court. Nor was there any objection to the inclusion of the opinion in the case file. 16. On 30 November 1995 the District Court found the applicants guilty as charged and fined them. Professor M.C.’s written expert opinion was quoted several times in the judgment. 17. The parties appealed. The applicants were each represented by different counsel and therefore lodged separate writs of appeal. The second applicant explicitly requested that Professor M.C., among others, be called as a witness before the Court of Appeal, as the applicants had not had an opportunity to put questions to him. The first and fourth applicants for their part drew the court’s attention to the fact that Professor M.C. had given his written opinion in the course of the pre-trial investigation, having had at his disposal only limited knowledge about the facts of the case. Thus, no weight should be given to his written opinion. The applicants also complained that the District Court had failed to take into account any of the statements made by the witnesses called by them. Some of these arguments were advanced by all of the applicants, others by only one of them. 18. On 16 December 1996 the Court of Appeal held an oral hearing. However it refused to hear any witnesses, finding that the allegation that the evidence had been wrongly assessed did not warrant a rehearing since the credibility of the evidence in question had not been challenged. It also considered that the taking of witness evidence would not produce any new information relevant to the case. 19. In its judgment of 5 June 1997 the Court of Appeal upheld most of the District Court’s reasoning. It did not give any reasons for its decision not to hear Professor M.C. even though the second applicant had explicitly requested that he be heard. It upheld their conviction and increased their sentences to suspended terms of imprisonment. 20. The applicants requested leave to appeal, alleging, inter alia, that the principle of equality of arms between the public prosecutor and the defence had been violated. The applicants had not been able to appoint an expert who could have examined the production line in question, nor had they been allowed to put questions to Professor M.C. at an oral hearing, even though the District Court’s judgment had essentially been based on the expert opinion he had submitted to the police during the pre-trial investigation. On 22 January 1998 the Supreme Court (korkein oikeus, högsta domstolen) refused leave to appeal. 21. The rules of evidence are laid down in Chapter 17 of the Code of Judicial Procedure (oikeudenkäymiskaari, rättegångsbalken; Act no. 571/1948). In criminal proceedings, the forms of submission of evidence are 1) examination of witnesses, 2) hearing of experts, 3) hearing of parties under oath (in criminal proceedings only the injured party can be heard under oath and only about the establishment of losses suffered by him or her), 4) hearing of parties without an oath, 5) submission of documentary evidence, and 6) inspection in situ. 22. Section 3 (1) provides that a fact that is a matter of common knowledge or known to the court ex officio need not be proven. In addition, evidence need not be presented on the content of domestic law (jura novit curia). If the court does not know the foreign law applicable to the case, it is for the parties to submit evidence on it. 23. Section 44 (1) provides that if an expert witness with special professional knowledge is deemed necessary, the court can obtain an opinion on the matter from, for example, a public official or an expert in the relevant field who is known to be honest and competent. Section 49 provides that an expert who is heard before the court must take an oath. 24. Section 50 (Act no. 1052/1991) provides that an expert must give a detailed account of the findings in his or her investigation and, on the basis of the account, a substantiated opinion on the questions put to him or her. The opinion shall be compiled in writing, unless the court deems it necessary that the opinion be presented orally. An expert witness who has given a written opinion shall be heard orally in court, if a party so requests and the hearing of the expert witness is not clearly irrelevant or if the court deems the hearing of the expert witness to be necessary. If there are several expert witnesses, one or more of them may be called to be heard. 25. Section 55 (Act no. 571/1948) provides that if a party to the proceedings relies on an expert not appointed by the court, the provisions on witnesses apply. However, such an expert may be ordered to give a substantiated opinion, as mentioned in section 50.