TIMPERI v. FINLAND
Inadmissible
Nicolas Bratza
The applicant, Mrs Aila Timperi, is a Finnish national, who was born in 1951 and lives in Oulu. She is represented before the Court by Mr Heikki Sillanpää, a lawyer practising in Forssa. The facts of the case, as submitted by the applicant, may be summarised as follows. The applicant was employed by the city of Forssa as an adviser in housekeeping, giving for instance cooking courses. Her employer made a report to the police, alleging that she had embezzled money. The public prosecutor brought charges against the applicant for aggravated embezzlement etc. during the period September 1988 and November 1996, amounting to FIM 450,000 (EUR 75,684). The complainant, the city of Forssa, claimed damages. The applicant denied the charges as well as the other claims. The District Court of Forssa (käräjäoikeus, tingsrätten) heard some twenty witnesses during four days. On 9 September 1997 the District Court, composed of a professional judge and three laymen, convicted the applicant and sentenced her to nine months' imprisonment. She was ordered to pay damages amounting to FIM 439,133 plus interest and legal costs. Insofar as the sentence was concerned, the judgment was not unanimous, as it was based on the opinion of three lay judges, whereas the professional judge in his dissenting opinion considered that one year and two months' suspended imprisonment was a sufficient sanction. At this point, the public prosecutor ordered a further pre-trial investigation to be carried out as to what information the applicant's superiors and other employees of the complainant had in the spring of 1996 concerning income allegedly unaccounted for. Subsequently, the applicant learned that lay judge T., who had examined the case in the District Court, was an employee of the complainant in her case. The applicant appealed to the Turku Court of Appeal (hovioikeus, hovrätten), denying the charges. She argued that lay judge T. had been disqualified from deciding her case for the aforementioned reason. She also requested an oral hearing with a view to adducing more documentary evidence, rehearing a witness and hearing new witnesses. According to the applicant, the witness statements before the District Court were not properly entered into the minutes and only statements supporting the District Court's conclusions were included. On 20 January 1999 the Court of Appeal gave judgment, finding that lay judge T. had not been disqualified and, having listened to the audio tapes from the District Court's hearings and read the new pre-trial report, that the proposed new evidence would not clarify the matter further. Thus, holding an oral hearing was manifestly unnecessary. The Court of Appeal upheld the District Court's judgment. The applicant requested leave to appeal to the Supreme Court, still denying the charges and requesting, at any rate, that her sentence be reduced. She maintained that lay judge T. had been disqualified from deciding her case. She also requested an oral hearing before the Supreme Court. On 27 May 1999 the Supreme Court granted the applicant leave to appeal. The Supreme Court gave judgment on 22 February 2000 (KKO 2000:21). As to the alleged disqualification, the Supreme Court found that lay judge T., who at the relevant time had worked as a special teacher employed by the city of Forssa, had not lacked impartiality. The Supreme Court, referring to the relevant provisions in domestic law, gave the following reasoning for its decision: In assessing whether a judge is disqualified, attention has to be paid also to the provisions in the European Convention on Human Rights and Fundamental Freedoms and the case-law of the European Court of Human Rights. In light of the Human Rights Court's case-law, a judge must not hold a preconception or a have a prejudged view of the case in question or have a desire to favour one of the parties' interests (subjective impartiality). In addition, all legitimate doubts as to the judge's and the tribunal's impartiality must be eliminated (objective impartiality). In assessing impartiality from the last-mentioned point of view, attention has to paid to whether the judge's previous activities, his relations to the parties or the composition of the court from an objective point of view give a party reason to believe that impartiality is jeopardized. No one has indeed argued that lay judge T. would have been disqualified on subjective grounds. The question is what position should be taken on the fact that T. was an employee of the complainant, the city of Forssa. A party, such as the defendant in criminal proceedings, may understandably be worried, if the composition of the District Court includes a layman employed by the opposing party. Some weight may be given to the party's opinion of partiality based on employment, but what is decisive is whether the suspicion can be considered to be objectively justified. In assessing the case from this point of view the Supreme Court supposes that a layman cannot be considered disqualified merely on the ground that he is employed by a party to the proceedings. Attention has to be paid on the one hand to the size of the employer and the importance of the case in question to the employer and on the other hand to the character of the employee's functions. In the present case, by the end of 1997, the city of Forssa had 1,135 employees, including both permanent and temporary staff. Lay judge T., in his capacity as a temporary special teacher, was not part of the city's governing body nor had he any commission of trust. Neither was he involved in the housekeeping service in question. T. had a permanent post as a school welfare officer within the Lounais-Häme federation of municipalities vocational school, to which he could return when his temporary post ended. According to Timperi, special attention was paid to the guarantees of an impartial trial when the lay judges were chosen to sit in on the present case. In these circumstances, Timperi's doubts as to the impartiality of the court cannot be considered to be justified from an objective point of view. Thus, the Supreme Court finds that the afore-mentioned relationship between T. and the city of Forssa, the complainant in these criminal proceedings, is not such that it could justifiably call his independence and impartiality as a lay judge of the District Court into question. Thus, T. cannot be considered to be disqualified. The Supreme Court furthermore, noting that the Court of Appeal had found that holding an oral hearing would not have clarified the matter, saw no reason to differ. It upheld the applicant's conviction, but reduced the sentence to nine months' suspended imprisonment. Chapter 13, section 1 of the Code of Judicial Procedure (oikeudenkäymiskaari, rättegångsbalken), as in force at the material time, provided in relevant part: “...The following shall be the legal grounds for disqualification [of a judge]: when the judge is related by blood or marriage to one or the other party in a manner where marriage is prohibited under chapter 2 of the (1734) Marriage Code, including cousinship by blood although not by marriage; when the judge is the opposing party or a public opponent of a party; when the judge or his or her relative here listed has an interest in the case, when they stand to obtain particular benefit or suffer particular loss as a result of it; when the judge has served as a judge in the case in another court; when the judge has served as an advocate or a witness in the case; or when the judge has previously, on the orders of a court, decided a part of the case; or when the judge has a similar case pending before another court. ...” According to the District Court Act section 10, the provisions of law concerning disqualification of a judge apply also to laymen.