CASE OF KESKINEN AND VELJEKSET KESKINEN OY v. FINLAND
No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing;Public hearing)
David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Päivi Hirvelä;Vincent A. De Gaetano
5. The first applicant was born in 1967 and lives in Töysä. The applicant company has its seat also in Töysä. 6. The applicants organised in February 2005 an ice fishing competition for which the entrance fee was 20 euros. This was the seventh time that the competition had been organised by the applicants. They had rented in 2004 a lake, into which they had put 5,551 marked salmon. One of them weighed five kilos, 50 about three kilos, 500 about two kilos and 5,000 about one kilo. The winners of the competition were those three men and three women who caught the most fish. In addition, anybody who caught a marked salmon would win a prize according to its weight. The fisher of the five-kilo salmon would win one million euros, the fisher of a three-kilo salmon would receive a gift certificate worth 20,000 euros, the fisher of a two-kilo salmon a gift certificate for 2,000 euros and the fisher of a one-kilo salmon a gift certificate of 200 euros. Each participant could buy only one entrance ticket and was allowed to use only one rod and hook. 7. The ice fishing competition was a mass event in which 27,731 persons participated. Of the 5,551 marked salmon, 2,188 were caught. The following gift certificates were given away: three 20,000-euro gift certificates, 48 2,000-euro gift certificates and 2,137 200-euro gift certificates. 8. When the previous fishing competition had been organised in 2003, the Ministry of the Interior had asked the applicant company to clarify the nature of the competition. It had concluded in March 2003 that the competition was to be considered partly as a lottery, within the meaning of the Lotteries Act (arpajaislaki, lotterilagen), in that the fishers of marked salmon would be given separate prizes. This interpretation was sent for information to the county administrative board (lääninhallitus, länsstyrelsen) and the local police department. The fishing competition in 2003 did not have any legal consequences for the applicants. 9. The preparations for the 2005 event started in 2004 and they involved a large number of local persons, including the police. The Ministry of the Interior again asked the applicant company to clarify the nature of the competition. On 17 and 21 January 2005 the Ministry concluded that the event might constitute a lottery within the meaning of the Lotteries Act. This view was communicated to the local police and the leading county police officials. The applicants duly informed the police about the event well in advance. The police never prohibited the event even though they had the right to do so if organising an event was illegal. 10. Criminal proceedings were brought against the applicants in 2006. The public prosecutor brought charges against the first applicant, inter alia, for having organised, in connection with an ice fishing competition, a lottery without a proper permit because the outcome of the fishing competition was partly based on luck. Moreover, the public prosecutor asked that the profit gained from the offence committed by the applicant company be forfeited to the State. 11. On 5 June 2006 the Seinäjoki District Court (käräjäoikeus, tingsrätten), after having held an oral hearing, dismissed all charges against the first applicant as well the forfeiture request against the applicant company. The court found that the lottery had been illegal, but the fact that the provisions in question had not been clear, that similar events had been organised before and that the authorities had not prevented the event from taking place, led the court to conclude that the first applicant’s misinterpretation of the law was excusable. 12. The public prosecutor appealed to the Vaasa Appeal Court (hovioikeus, hovrätten), reiterating his charges and requesting that an oral hearing be held. He requested that two civil servants from the Ministry of the Interior be heard about the role of the Ministry in general as well as in the present case, including the question of intent and the applicants’ reactions to the Ministry’s queries and guidelines. As to the forfeiture, an oral hearing was needed in order to assess evidence and the amount of profit gained. 13. On 5 July 2006 the applicants also lodged an appeal in respect of the costs and expenses and requested that an oral hearing be held. They wanted two witnesses to be heard about the nature, content and organisation of the ice fishing competition. As to the forfeiture, they proposed to hear the applicant company’s financial manager about the financial outcome of the competition. If no oral hearing was held, the applicants were to be given a possibility to submit further comments. 14. Both parties were given an opportunity to comment on the other party’s letter of appeal. 15. On 8 August 2007 the Vaasa Appeal Court, inter alia, rejected the request for an oral hearing and sentenced the first applicant to 50 day-fines (13,300 euros) in respect of the breach of lottery provisions. As to the oral hearing, the court found that the facts and their background were undisputed, the written correspondence between the Ministry and the applicants had already been included in the District Court’s judgment and the role of the Ministry of the Interior as the supervisory and expert organ in lottery legislation matters had become apparent from the Lotteries Act. It was thus clearly not necessary to hold an oral hearing. Nor did the forfeiture require an oral hearing to be held. It was not necessary to provide the public prosecutor or the applicants with an opportunity to submit further comments. As to the merits, the court found that catching a marked fish was more due to luck than to the participants’ skills. Even a beginner could have caught a winning fish. The ice fishing competition thus fulfilled the criteria of a lottery within the meaning of the Lotteries Act. The provisions of the Lotteries Act were not especially difficult to understand and the first applicant had been well aware of the manner in which they were interpreted by the Ministry. As it could not be deemed that the first applicant had misinterpreted the law in an excusable manner, he was found guilty of a lottery offence. According to the court, the proper sanction, bearing in mind the first applicant’s guilt and the damaging effect of the offence, was thus 50 day-fines. The court estimated that the profit gained from the offence was 60,000 euros and ordered its forfeiture. 16. By letter dated 8 October 2007 the applicants appealed to the Supreme Court (korkein oikeus, högsta domstolen), requesting that an oral hearing be held or that the case be referred back to the Appeal Court for an oral hearing. They claimed, inter alia, that it had come as a complete surprise to them that the Appeal Court had not organised an oral hearing nor provided them with an opportunity to submit further observations. 17. On 3 March 2008 the Supreme Court granted the first applicant leave to appeal. The question of granting leave to appeal to the applicant company was postponed to be dealt with together with the merits of the first applicant’s appeal. 18. On 30 December 2008 the Supreme Court found that the case could have been decided by the Appeal Court without holding an oral hearing and for the same reason there was no need to hold an oral hearing in the Supreme Court. As to the merits, the court confirmed that the ice fishing competition was to be regarded as a lottery within the meaning of the Lotteries Act and that it had taken place without a permit. Bearing in mind the Ministry’s interpretation, the provisions of the Lotteries Act were not especially difficult to understand. The first applicant could thus not be deemed to have misinterpreted the law in an excusable manner. The court upheld the number of day-fines imposed but reduced the amount of each day-fine so that the 50 day-fines imposed amounted in total to 7,500 euros. As to the applicant company, the court refused leave to appeal. 19. Chapter 26, Section 14, of the Code of Judicial Procedure (oikeudenkäymiskaari, rättegångsbalken; as amended by the Act no. 165/1998) provided at the relevant time: “A main hearing shall be held in the appeal court, if a party to a civil case or the injured party or the defendant in a criminal case so requests. However, a main hearing need not be held for the reason referred to in subsection 1, if (1) in a civil case amenable to settlement, the opposing party has admitted the appellant’s request for a change; (2) in a criminal case only the appellant has requested a main hearing and the case is decided in accordance with the appeal; (3) the person requesting a main hearing has been satisfied with the decision of the District Court and the decision is not changed to his or her detriment; (4) the appeal is manifestly ill-founded; (5) only a procedural matter is to be decided in the case; or (6) the holding of a main hearing is for another reason manifestly unnecessary. The provisions in subsection 1 and in subsection 2(1) and 2(3) - (6) apply, in so far as appropriate, also when hearing an appeal lodged in a non-contentious civil case.” 20. According to Chapter 26, Section 15, of the same Code: “An appeal court shall hold a main hearing regardless of whether one has been requested, if a decision on the matter turns on the credibility of the testimony admitted in the district court or the findings of the district court in an inspection, or on new testimony to be admitted in the appeal court. In this event, the evidence admitted in the district court shall be readmitted and the inspection carried out again in the main hearing, unless there is an impediment to the same. If the evidence referred to in paragraph (1) cannot be readmitted in the main hearing, the decision of the district court shall not be changed for that part, unless the evidence for a special reason is to be assessed differently. However, a decision on a charge may be changed in favour of the defendant of a criminal case.” 21. Chapter 30, Section 20, subsection 1, of the same Code provides: “Where necessary, the Supreme Court shall hold an oral hearing where the parties, witnesses and experts may be heard and other information admitted. The oral hearing may be restricted to a part of the case on appeal.”