TANNER and MALMINEN v. FINLAND
Inadmissible
Nicolas Bratza
The facts of the case, as submitted by the applicants, may be summarised as follows. The applicants Mr Jukka Malminen and Mr Jari Tanner are Finnish nationals. Mr Malminen was born in 1956 and lives in Raisio. Before the Court he is represented by Mr Heikki Salo, a lawyer practising in Helsinki. Mr Tanner was born in 1957 and lives in Tampere. Before the Court he is represented by Ms Tiina Nystèn, a lawyer practising in Helsinki. On 27 January 1994 the public prosecutor instituted criminal proceedings against the applicants, charging them with, inter alia, incitement to aggravated embezzlement before the District Court (käräjäoikeus, tingsrätten) of Helsinki. At the second hearing of the case, the presiding District Court judge stated that “one can see what is the issue in this case”. According to the applicants, the judge already showed his partiality and negative attitude against the applicants at that time. At a later hearing, in which Mr Malminen stated that he would prove his innocence, the judge expressed his doubts by noting that “it would be a difficult task”. Also when one of the applicants’ co-accused hid his face from photographers, the judge stated that “it has never been necessary for honest men to hide themselves in this courtroom”. According to the applicants, the presiding judge was indifferent, chatting to other judges when the applicants’ witnesses were heard and once even cut his nails at that time. At the 18th hearing, on 26 January 1995, the prosecutor brought a further alternative charge of aggravated fraud against the applicants. They requested the court to dismiss the alternative charge without considering the merits, alleging that denying the primary charge would automatically mean admitting the alternative one. Thus the way in which the charges were framed destroyed their defence. On 17 March 1995 the District Court dismissed the request, recalling that alternative charges were not forbidden by law and finding that they did not prevent the applicants’ effective defence. On 18 January 1996, at the 35th hearing of the case in which the parties presented their final pleadings, Mr Malminen announced that he had the same day instituted private prosecution proceedings against the presiding District Court judge for an alleged offence while in office as he had dismissed the objection to the alternative charge presented earlier: it was claimed that, therefore, the judge was biased and should step down from the bench. On 29 February 1996 the District Court dismissed the claim concerning disqualification of the judge, finding that the charges brought by the applicant did not as such constitute grounds for such disqualification. Furthermore the decision to reject the claim concerning the alternative charges did not indicate the judge’s preconceived attitude to the case as alleged by Mr Malminen. The District Court further found that the allegations concerning the judge’s behaviour during the hearings were unsubstantiated. In the main proceedings the District Court convicted Mr Malminen of, inter alia, twelve counts of aggravated fraud and five counts of incitements to aggravated embezzlement. He was sentenced to seven years’ imprisonment and ordered to pay FIM 18,000,000 (approximately 3,000,000 Euros) in compensation. Mr Tanner was convicted of, inter alia, ten aggravated frauds and five incitements to aggravated embezzlement. He was sentenced also to seven years’ imprisonment and ordered to pay FIM 8,000,000 (approximately 1,300,000 Euros) in compensation. According to the applicants, the sentences imposed were maximum penalties for the offences in question. Mr Tanner was also taken into custody immediately after the hearing even though he had not been in detention during the trial. The applicants both appealed to the Helsinki Court of Appeal (hovioikeus, hovrätt) which, on 6 March 1997, upheld the District Court’s decision, finding that the alternative charges did not prevent the applicants’ defence or otherwise violate their right to a fair trial. Concerning the disqualification of the judge the Court of Appeal found that the decision to dismiss the applicants’ plea concerning the prosecutor’s alternative charges was given at the 18th hearing and Mr Malminen made his allegations more than ten months later at the 35th and last hearing. Mr Malminen, further, submitted his allegations concerning the judge’s behaviour at the last hearing even though he claimed that the judge’s impartiality had been obvious during the whole proceedings. The Court of Appeal concluded that Mr Malminen’s purpose by bringing the charge against the judge was to make the judge his adversary and to prevent the court from giving its decision. Having examined the main issue the Court of Appeal rejected some charges and reduced Mr Malminen’s sentence to six years’ imprisonment and Mr Tanner’s sentence to five years six months’ imprisonment. On 8 December 1997 the Supreme Court (korkein oikeus, högsta domstolen) refused the applicants leave to appeal. On 26 August 1998 the Court of Appeal dismissed, without having a hearing, the charge brought by Mr Malminen against the District Court judge, finding no evidence of the alleged offence. On 18 May 1999 the Supreme Court upheld the Court of Appeal’s decision.