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Cite as: [2005] ECHR 541

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FOURTH SECTION

CASE OF MILD AND VIRTANEN v. FINLAND

(Applications nos. 39481/98 and 40227/98)

JUDGMENT

STRASBOURG

26 July 2005

This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Mild and Virtanen v. Finland,

The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:

Sir Nicolas BRATZA, President,

Mr J. CASADEVALL,

Mr M. PELLONPää,

Mr R. MARUSTE,

Mr S. PAVLOVSCHI,

Mr J. BORREGO BORREGO,

Mr J. ŠIKUTA, judges,

and Mr M. O’BOYLE, Section Registrar,

Having deliberated in private on 13 January 2004 and on 5 July 2005,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in two applications (nos. 39481/98 and 40227/98) against the Republic of Finland lodged with the European Commission of Human Rights (“the Commission”) under former Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Finnish nationals, Mr Taisto Sakari Mild and Ms Mari Virtanen (“the applicants”), on 9 December 1997.

2. The applicants, who had been granted legal aid, were represented, the first applicant by Mr Antti Riihelä and the second applicant by Mr Markku Nurmela, both lawyers practising in Helsinki. The Finnish Government (“the Government”) were represented by their Agent, Mr Arto Kosonen, Director in the Ministry for Foreign Affairs.

3. The applicants alleged a violation of the rights of the defence in respect of witnesses.

4. The applications were transmitted to the Court on 1 November 1998, when Protocol No. 11 to the Convention came into force (Article 5 § 2 of Protocol No. 11).

5. The Chamber decided to join the proceedings in the applications (Rule 42 § 1).

6. By a decision of 13 January 2004 the Court declared the applications admissible.

7. The Chamber decided, after consulting the parties, that no hearing on the merits was required (Rule 59 § 3 in fine).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

8. The applicants were born in 1967 and 1970 respectively and live in Vantaa.

A. Background

9. A shop selling fur coats in Kokkola was burgled on 1 March 1995. Two men, M. and R., were charged with aggravated theft before the District Court of Kokkola (käräjäoikeus, tingsrätten). On 10 April 1995 the District Court convicted them both as charged. The convictions were based on their acknowledgement of the charges.

10. The police investigation concerning the applicants as suspects in the above-mentioned offence began on 11 May 1995, when they were taken into police custody. The first applicant was arrested on 12 May 1995 by a decision of the District Court. The second applicant was arrested on the same day, but released in the afternoon.

B. The proceedings before the District Court

11. The criminal proceedings against the applicants were instituted before the above District Court on 5 June 1995. They were charged with aggravated theft. They were suspected of having stolen fur coats worth 327,500 Finnish marks (FIM; 55,081.55 euros (EUR)) as accomplices with M. and R., who had already been convicted of the same offence. The applicants denied the charges.

12. According to the indictment, the applicants visited the fur shop in the beginning of February 1995 and made themselves familiar with the shop and its merchandise. The second applicant tried on headgear and promised to collect it the following week after it had been altered to fit her. The applicants did not, however, return to the shop at the agreed time, or later. During their visit to the shop, the first applicant requested to see the most expensive fur coat and the salesman showed him a rack with the most expensive furs. Later on, the first applicant proposed to M. to steal fur coats from the shop. At the end of February M. and the applicants contacted R., who lived in the Helsinki area, and apparently M. asked R. to take part in the burglary. Having rented or borrowed a Chevrolet Chevy van from D. on 28 February 1995, R. and M. drove to Kokkola, the applicants driving ahead of them in their light coloured Opel. M. and R. spent the night in the applicants’ home in Kokkola. The following day, i.e. on 1 March 1995, the first applicant showed M. and R. the fur shop by driving past it a couple of times in the above-mentioned Opel. Then all three of them returned to the apartment. The applicants stayed at home while M. and R. returned to the shop in the van, broke into the shop and stole the fur coats. Immediately after the burglary M. and R. left for Espoo, a town in the Helsinki area. The applicants followed M. and R. to Espoo in their own car. Together they hid the fur coats in a garage rented by the first applicant. Later on, the first applicant, M. and R. began to market the fur coats.

13. M. and R. were not present as the summons to appear before the court had not been served upon them. The public prosecutor referred in evidence to the statements given by them during their own police investigation. According to M.’s statement, the first applicant had told him that the applicants had visited the shop in order to buy headgear and while there, he had got the idea of stealing the furs. The first applicant had proposed that M. break into the shop. M. had considered the proposal and eventually, about a month later, accepted it as he was in need of money. According to M., the applicants did not take part in the burglary. In the beginning, the first applicant had said that the money would be divided into four parts, i.e. the second applicant would also have got her share. In R.’s statement to the police he said that the first applicant had told him about his plans of breaking into a fur shop, which the applicants had visited in order to buy something for the second applicant. R. could not, however, remember whether it was M. or the first applicant who had asked him to join them. R. told the police that he and M. had driven to Kokkola in the van, following the applicants. They had spent the night at the applicants’ apartment. The next day, the first applicant, M. and R. went to have a look at the shop in the first applicant’s car. In the evening M. and R. returned to the shop, while the applicants stayed at the apartment. After the burglary they all left for Helsinki, but in two separate cars. They all met twice for coffee during the journey. Having reached Helsinki, they went to a garage to which the first applicant had the keys. Later on M. and the first applicant began to market the furs. According to R., the burglary was the first applicant’s idea. M. and R. had not even visited Kokkola before the burglary.

14. At this point the applicants’ counsel noted that if the applicants were to be convicted on the basis of the statements given by M. and R., they should be heard in person before the court.

15. The fur shop’s salesman V. gave testimony before the District Court. He identified the applicants as the couple who had visited his shop in February. The day of the burglary he had noticed a white car driving by with three men in it. All three had turned their heads looking at the shop, but they had been too far away to recognize.

16. The lender of the van, D., was heard as a witness before the court. He repeated his statement given during the police investigation, inter alia, that having been questioned by the police [on 13 March 1995] he was contacted by the first applicant, who wanted to know what D. had told the police, but before the District Court D. was no longer certain as to whether it was the first applicant or R. who had queried what he had told the police. D. was also uncertain as to whether he had seen the applicants in R.’s company before lending his van or after it had been returned to him. Furthermore, D. said that at the relevant time he was selling and buying cars and that he had discussed a car deal with the first applicant when they met. D. also said that his van did not carry any stickers or the like.

17. Police officer Y. was also heard as a witness before the District Court. He told the court that he had in general kept an eye on the first applicant as he was aware of his past. The day of the burglary he had seen a van parked in the parking lot outside the applicants’ apartment. He was not certain as to whether it was the same van as the one used by M. and R. in the burglary. Y. had noticed that the van carried a yellow sticker from which he had concluded that the car originated from the Helsinki area.

18. At this point the public prosecutor referred to the first applicant’s statement during the police investigation according to which he did not remember ever visiting the fur shop, but that he might have gone there while Christmas shopping. Moreover, the first applicant had told the police that he had discussed a car deal with D., but he had concealed the fact that he had been present when the van was returned.

19. The public prosecutor referred to the second applicant’s statement during the police investigation, according to which she denied having ever visited the fur shop or that M. and R. had spent the night at the applicants’ apartment in Kokkola. Furthermore, she told the police that she had visited a friend, I., in Espoo, on the day of the burglary.

20. The public prosecutor pointed out that I. when questioned as a witness by the police [on 31 May 1995] did not confirm the second applicant’s story. According to I., the second applicant had rung her a couple of weeks earlier and asked her to give her an alibi. I. was not heard before the District Court during this session.

21. The District Court adjourned the case until 29 June 1995, ordering the public prosecutor to call M. and R., who were in liberty, to be heard before the court.

22. On 29 June 1995, the public prosecutor requested that the case be adjourned as M. and R. had not been summoned yet. The District Court adjourned the case until 11 October 1995.

23. On 11 October 1995 the case was heard before the court again. M. and R. were absent even though they had been summoned. The public prosecutor noted that according to Article 6 § 3(d) of the European Convention on Human Rights and Fundamental Freedoms, the applicants had a right to examine or have examined the witnesses against them, but that right was not unconditional. He referred to two judgments of this Court (Asch v. Austria, judgment of 26 April 1991, Series A no. 203 and Artner v. Austria, judgment of 28 August 1992, Series A no. 242-A). In particular, the public prosecutor referred to the principle according to which there was no violation of Article 6 § 3(d), if the conviction was primarily based on other evidence submitted during the trial. In this respect, he referred to the evidence given by the witnesses and argued that the applicants could be convicted even though they had not been able to examine M. and R. as witnesses during these proceedings. The District Court again adjourned the case until 29 February 1996, ordering the public prosecutor to summon M. and R. to be heard before the court.

24. On 28 February 1996 M. sent a facsimile to the District Court, withdrawing all his statements during the police investigation concerning the applicants as they were false. He alleged that he had personal reasons to make erroneous statements and, while in detention, had been given to understand that such statements could contribute to his release. Moreover, he informed the court that he was aware of the fact that he could not be forced to appear before the District Court. M.’s facsimile was communicated to the applicants and to the public prosecutor at the hearing of 29 February 1996.

25. On that same day, the District Court rejected the charges against the applicants as it found that the mere fact that V. had given evidence that the applicants had visited his shop as customers in February and that the van used in the burglary had been seen parked in the parking lot close to the applicants’ apartment did not show that the applicants had committed the offence with which they were charged.

C. The proceedings before the Court of Appeal

26. The public prosecutor appealed to the Vaasa Court of Appeal (hovioikeus, hovrätten), requesting that the applicants be convicted as charged. According to him, the evidence presented before the District Court, taking into account also the statements of M. and R., was strong enough to justify a conviction.

27. On 26 November 1996 the Court of Appeal held an oral hearing, in which the applicants, V., D. and Y. were reheard. D. clarified that the applicants had been in M.’s and R.’s company when the van was returned to him and that it was the first applicant who had queried what D. had told the police when he was questioned.

28. In addition I. was heard as a witness before the Court of Appeal. She testified that the second applicant had visited her in Espoo in the afternoon of 1 March 1995. I. was certain that the first applicant had dropped the second applicant off at the apartment and then picked her up a couple of hours later. According to I., the version given to the Court of Appeal was the truth. When questioned by the police, she had not been able to tell the truth due to the police officer’s unpleasant attitude towards her. At that time, she did not want to get involved in the case.

29. M. and R. were not summoned and they were not heard before the Court of Appeal. Nor did the applicants request that M. and R. be heard.

30. On 27 December 1996 the Court of Appeal convicted the first applicant of aggravated theft and sentenced him to one year and ten months’ imprisonment. The second applicant was convicted of aiding and abetting the above-mentioned offence by visiting the fur shop together with the first applicant. She was sentenced to a suspended term of four months’ imprisonment. The Court of Appeal, having first referred to the Court’s judgments Asch v. Austria and Artner v. Austria, cited above, found that:

“M.’s and R.’s statements concerning the events given during their police investigation and repeated before the District Court [in their own case] are supported by other evidence presented in the present case. V. observed the applicants visit the fur shop and D. noted the presence of the applicants when the borrowed van was returned to him. Moreover, the first applicant showed an interest in what D. had told the police. Furthermore, the statements of M. and R. are supported by Y.’s observation of D.’s van in Kokkola close to the applicants’ apartment.

Even though the applicants did not have an opportunity to put questions to M. and R., they had an opportunity to submit arguments against their statements, both during the police investigation and also before the District Court as well as the Court of Appeal. The applicants have, nevertheless, denied having ever visited the fur shop, which, taking into account the certainty of V. as to the applicants’ identity, tends to diminish the credibility of the applicants’ statements.

The Court of Appeal does not find that the changing of I.’s statement - or the reasons given for the change - are credible. The Court of Appeal finds it irrelevant that M. has, in a facsimile submitted to the District Court, retracted his earlier statement.”

D. The proceedings before the Supreme Court

31. The applicants requested leave to appeal from the Supreme Court (korkein oikeus, högsta domstolen), arguing that they should have had a right to examine M. and R. before the courts, as the other evidence was not strong enough to support their convictions. The alleged fact that they had visited a shop or passed by it did not prove that they had committed the serious offences they were convicted of. Furthermore, on the day of their alleged visit to the fur shop they had both been at an oral hearing before the District Court of Espoo, which is situated some 490 kilometres from Kokkola, and could not even in theory have been at the shop at the time mentioned in the judgment. The applicants later submitted to the Supreme Court a copy of the District Court’s minutes of that day in support of their argument.

32. On 9 June 1997 the Supreme Court refused the applicants leave to appeal.

II. RELEVANT DOMESTIC LAW AND PRACTICE

33. Chapter 17, section 18 of the Judicial Procedure Code provides that a person who has earlier been convicted of an offence which is the subject of pending court proceedings may be heard in the case, but not in the capacity of a witness or party to the proceedings.

34. At the time of the proceedings there were, however, no provisions of law under which such a person could have been forced to appear before a court.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 §§ 1 AND 3(d) OF THE CONVENTION

35. The applicants complained about the lack of a fair trial as they had not had a right to examine witnesses against them. Article 6 provides in relevant part:

“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.

...

3. Everyone charged with a criminal offence has the following minimum rights:

...

(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him”

A. The parties’ submissions

36. The applicants conceded that during their police investigation they had an opportunity to familiarise themselves with the police reports on M.’s and R.’s statements. Nevertheless, they pointed out that all the evidence should be produced in the presence of the accused at a public hearing with a view to adversarial argument. The applicants should have had a right to put questions to M. and R.

37. The applicants submitted that they did not have any more effective means of obtaining the appearance of M. and R. in court than the public prosecutor did. The domestic law had been inadequate on this point.

38. The applicants rejected the Government’s view that the statements of M. and R. had not been the principal evidence. They argued that the other evidence presented against them had been trivial and, moreover, incorrectly assessed by the Court of Appeal.

39. The Government conceded that the applicants had not been confronted with M. and R., who had been witnesses for the purposes of Article 6 § 3 (d), at any stage of the proceedings. The police had begun to question M. and R. on 14 March 1995 and 7 March 1995 respectively. At that stage, the applicants had been wanted by the police, but they could not be located. However, the applicants had an opportunity to challenge the statements of M. and R., both during the pre-trial investigation and before the courts, as the statements had been shown to the applicants already during their own pre-trial investigation. The public prosecutor had made efforts to have M. and R. heard before the District Court, which had adjourned the case three times in order to call them to be heard. These attempts had failed due to the fact that it had been impossible, under the law in force at the relevant time, to force them to appear in court. Thus, the authorities had not been negligent in their efforts to have M. and R. to appear before the District Court.

40. The Government pointed out that as it had been impossible for the prosecutor to secure M.’s and R.’s attendance before the courts, it had been open to the domestic courts, subject to the rights of the defence being respected, to take into account the statements obtained by the police, particularly because it could consider the statements to be corroborated by other evidence before it. The statements of M. and R. had not been the only evidence of the applicants’ guilt. As the Court of Appeal had also relied on other corroborative evidence, the convictions had not been based to a large extent on M.’s and R.’s statements. The Government argued that the applicants themselves could have tried to have M. and R. appear before the court, if they had found it important.

B. The Court’s assessment

41. Given that the guarantees in paragraph 3 of Article 6 are specific aspects of the right to a fair trial set forth in paragraph 1, the Court considers it appropriate to examine the complaint under the two provisions taken together (see Asch v. Austria, cited above, p. 10, § 25).

42. All the evidence must normally be produced at a public hearing, in the presence of the accused, with a view to adversarial argument. There are exceptions to this principle, but they must not infringe the rights of the defence. As a general rule, paragraphs 1 and 3(d) of Article 6 require that the defendant be given an adequate and proper opportunity to challenge and question a witness against him, either when he makes his statements or at a later stage (see Lüdi v. Switzerland, judgment of 15 June 1992, Series A no. 238, p. 21, § 49). A conviction should not be based either solely or to a decisive extent on statements which the defence has not been able to challenge (see, mutatis mutandis, Doorson v. the Netherlands, judgment of 26 March 1996, Reports of Judgments and Decisions 1996-II, p. 472, § 76).

43. M. and R. should for the purposes of Article 6 § 3(d) be regarded as witnesses, a term to be given an autonomous interpretation (see Asch v. Austria, cited above, p. 10, § 25), because their statements, as taken down in writing and then read out at the hearing, were before the court, which took account of them. The Court observes that the applicants were never given an opportunity to have questions put to M. and R., who had allegedly been their accomplices in the offence of which they were convicted and whose statements were taken into account as evidence by the Court of Appeal in the proceedings against them.

44. As to the District Court proceedings, it should first be noted that from June 1995 to February 1996 M.’s and R.’s absence made it impossible to organise a confrontation between them and the applicants. The District Court summoned them and made numerous attempts to organise a confrontation and it postponed the examination of the case repeatedly due to their absence. These attempts all failed owing to the conduct of M. and R. Second, in his facsimile to the District Court on 28 February 1996 M. made it clear that he did not wish to appear before the court. He also stated that he knew that the authorities had no way of making him appear in court against his will. Finally, the District Court, finding that the evidence presented in the hearings did not warrant the conclusion that the applicants had committed the offence they had been charged with, rejected the charges.

45. It would of course have been preferable if the public prosecutor or the Court of Appeal had summoned M. and R. to appear before it. It is however understandable, given the unsuccessful attempts by the District Court to obtain their attendance, that they did not. Yet, the Court finds this way of proceeding problematic. It cannot speculate as to whether M. and R. would have continued to be reluctant to attend a hearing, or whether they would have changed their minds and obeyed a summons. Accordingly, the Court arrives at the conclusion that every reasonable effort was not made in order to obtain the attendance of M. and R. in the Court of Appeal.

46. The Court further observes that, at the relevant time, there was no basis in national legislation for ensuring the attendance of M. and R. in the proceedings against the applicants. Thus, the law was inadequate on this point.

47. In sum, the fact that every reasonable effort to obtain M.’s and R.’s attendance was not made and the fact that there was no provision of law on the basis of which they could have been brought to court made it impossible for the applicants to examine them. Yet, their statements during their pre-trial investigation and repeated before the District Court in their own case constituted an important part of evidence, as is shown by the Court of Appeal’s reasoning in which the rest of the evidence is mainly analysed in terms of the degree of support it lent to those statements.

48. Having regard to the above finding, the Court concludes that there has been a violation of paragraphs 1 and 3(d) of Article 6, taken together.

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

49. Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A. Damage

50. Under the head of pecuniary damage the first applicant claimed 19,800 euros (EUR) for the loss of earnings during his imprisonment. The second applicant claimed EUR 60,000 for the loss of earnings (12,000 euros per year during five years) as she had to interrupt her studies and find a new profession in which her monthly earnings were about EUR 1,000 less than in the profession for which she was pursuing studies at the relevant time.

Under the head of non-pecuniary damage the first applicant claimed EUR 90,000 for suffering, distress, feelings of injustice and for his imprisonment. Following the criminal proceedings against him, he had to move to another town. The second applicant claimed EUR 30,000 for suffering distress and feelings of injustice under this head. She had lost her reputation and she had to move to another town and change her profession.

51. As to pecuniary damage the Government submitted that there was no direct causal link between the facts of the alleged violation and any damage. Nor was there anything to suggest with reasonable certainty that the outcome of the criminal proceedings would have been different in the absence of the alleged violation. In any event, the first applicant’s claim for loss of earnings during his imprisonment had no basis in national legislation, it was based on assumptions and it was excessive as to its amount. As to the second applicant’s claim under this head, the Government considered the basis for it to be vague or non-existent. It was also excessive as to quantum.

As to non-pecuniary damage the Government considered that both applicants’ claims lacked any real basis and that they were in any event excessive as to quantum. Were the Court to find a violation, the first applicant should be awarded compensation not exceeding EUR 1,500 and the second applicant compensation not exceeding EUR 1,000.

52. The Court cannot speculate about the outcome of the proceedings had they been in conformity with Article 6. The Court has found a violation of the applicants’ right to a fair trial but finds no sufficient causal link between that violation and the pecuniary damage allegedly suffered. These claims must therefore be rejected.

The Court accepts that the lack of the guarantees of Article 6 has caused the applicants non-pecuniary damage, which cannot be made good by the mere finding of a violation. The Court, making its assessment on an equitable basis, awards the first applicant, who was sentenced to an immediate term of imprisonment, EUR 3,000 and the second applicant EUR 2,000 in respect of non-pecuniary damage.

B. Costs and expenses

53. The first applicant claimed reimbursement for the legal fees and expenses of his counsel at Strasbourg in the amount of EUR 8,646.75 (including value added tax). The legal aid granted by the Council of Europe amounting to EUR 737 had not been deducted before arriving at that amount.

The second applicant claimed reimbursement for the legal fees of her former counsel at Strasbourg in the amount of EUR 336.38 and of her present counsel in the amount of EUR 1,647, totalling EUR 1,983.38 (including value-added tax). The legal aid paid by the Council of Europe amounting to EUR 737 had not been deducted before arriving at those amounts. In addition, she claimed reimbursement of removal expenses amounting to EUR 871.21 and travel expenses in connection with the domestic proceedings amounting to EUR 236.80.

54. The Government submitted that the number of hours claimed to have been spent by the first applicant’s counsel on the case appeared somewhat excessive. The Government considered that the total amount of compensation for costs and expenses for the first applicant should not exceed EUR 2,000 (without value-added tax). As to the second applicant, the Government submitted that the invoices of counsel were not specified. The claims relating to removal and travel expenses lacked basis in national legislation. The Government considered that the total amount of compensation for costs and expenses for the second applicant should not exceed EUR 1,500 (without value-added tax).

55. The Court reiterates that an award under this head may be made only in so far as the costs and expenses were actually and necessarily incurred in order to avoid, or obtain redress for, the violation found (see, among other authorities, Hertel v. Switzerland, judgment of 25 August 1998, Reports 1998-VI, p. 2334, § 63).

The Court finds that the claims have been fully substantiated only as far as the fees and expenses of the applicants’ counsel are concerned. However, it agrees with the Government that the number of hours for which the first applicant claims reimbursement is excessive, in particular compared to the second applicant’s costs of counsel.

As to the second applicant’s claim for reimbursement of removal expenses, the Court cannot speculate about the outcome of the proceedings had they been in conformity with Article 6. As to the travel expenses in relation to the domestic proceedings, no documentation as required by Rule 60 of the Rules of Court has been submitted. These claims must therefore be rejected.

Taking into account the legal aid granted by the Council of Europe and all the circumstances, the Court awards the first applicant EUR 6,000 and the second applicant EUR 1,246. These amounts are inclusive of value-added tax.

C. Default interest

56. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1. Holds that there has been a violation of Article 6 §§ 1 and 3(d) of the Convention;

2. Holds

(a) that the respondent State is to pay, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, the following amounts:

(i) to the first applicant EUR 3,000 (three thousand euros) and to the second applicant EUR 2,000 (two thousand euros) in respect of non-pecuniary damage;

(ii) to the first applicant EUR 6,000 (six thousand euros) and to the second applicant EUR 1,246 (one thousand two hundred and forty-six euros) in respect of costs and expenses;

(iv) any tax that may be chargeable on the above amounts;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

3. Dismisses the remainder of the applicants’ claim for just satisfaction.

Done in English, and notified in writing on 26 July 2005, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Michael O’BOYLE Nicolas BRATZA

Registrar President