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Cite as: [2007] ECHR 860

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FOURTH SECTION

CASE OF KARI UOTI v. FINLAND

(Application no. 21422/02)

JUDGMENT

STRASBOURG

23 October 2007

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 Kari Uoti v. Finland,

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

Sir Nicolas Bratza, President,
Mr G. Bonello,
Mr K. Traja,
Mr L. Garlicki,
Ms L. Mijović,
Mr J. Šikuta,
Mrs P. Hirvelä, judges,
and Mr T.L. Early, Section Registrar,

Having deliberated in private on 2 October 2007,

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

PROCEDURE

The case originated in an application (no. 21422/02) against the Republic of Finland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Finnish national, Mr Kari Uoti (“the applicant”), on 28 May 2002.

The applicant was represented by Mr M. Fredman, a lawyer practising in Helsinki. The Finnish Government (“the Government”) were represented by their Agent, Mr A. Kosonen of the Ministry for Foreign Affairs.

The applicant alleged a violation of the rights of the defence in respect of witnesses and the presumption of innocence.

By a decision of 7 November 2006, the Court declared the application partly admissible.

The applicant and the Government each filed further written observations (Rule 59 § 1). The Chamber having decided, after consulting the parties, that no hearing on the merits was required (Rule 59 § 3 in fine), the parties replied in writing to each other's observations.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

The applicant was born in 1962 and lives in Helsinki.

On 7 September 1995 the applicant was questioned by the police about suspected fraud. In autumn 1997 he was charged with several offences. The trial before the Helsinki District Court (käräjäoikeus, tingsrätten) involved 47 days of hearings. The applicant was represented by the same counsel throughout the District Court proceedings and at all subsequent court levels. The court received testimony from the defendants, the complainants and over 40 witnesses. On 29 May and 10 June 1998 the prosecution presented documentary evidence, including some documents drawn up by a Mr G., who was working off-shore for a bank and who, in answer to a letter rogatory sent by the National Bureau of Investigation (keskusrikospoliisi, centralkriminalpolisen) to the Guernsey authorities, had produced documents (including “notes for archives” pertaining to meetings on 3 and 22 June 1993 and charts) related to a plan to transfer funds.

On 29 January 1999 the applicant was convicted of three counts of dishonesty as a debtor and four counts of aggravated tax fraud. He was sentenced to four years' imprisonment. The District Court judgment ran to 163 pages. In short and in so far as relevant, the court found on the basis of, inter alia, the testimonies of J.S., S., the applicant and his brother and the documentary material, including the documents obtained from the Guernsey authorities, that the applicant and his brother had discussed the planned transfers of assets with G. It also found that the documentary evidence pertaining to the off-shore companies and the transfer of moneys proved that the assets acquired from the sale of the “bank group I.” had been transferred via companies specified in G.'s charts to trusts, the beneficiaries of which the brothers had appointed. As both brothers had been present during the negotiations with G. on 3 June 1993 and the plan to transfer funds had been proved to have materialised, the court found that they had acted together in, inter alia, removing the funds from Finland.

The public prosecutor appealed insofar as the charges had been dismissed and introduced alternative charges of aiding and abetting accounting offences. The applicant appealed against the conviction and requested an oral hearing. In particular, he requested that G., resident in Guernsey, be heard as a witness either in the Helsinki Court of Appeal (hovioikeus, hovrätten) or by executive assistance abroad if the court was not satisfied that the account of a witness S. was sufficient evidence as regards the value and content of the documents drawn up by G. In the Court of Appeal the applicant's case was open for review in respect of all counts. In the applicant's view, G.'s testimony was relevant to several counts.

On 11 October 2000 the applicant renewed his request that the court hear evidence from G. In its decisions of 23 and 24 October 2000 the Court of Appeal refused, as being unnecessary, to receive oral evidence from G. It stated that it would provide further reasons in its judgment.

On 31 October 2000 the court held a preparatory hearing. The applicant unsuccessfully renewed his submission that it was necessary to hear G. as a witness.

The first hearing took place on 8 November 2000. The parties and altogether 22 witnesses gave oral evidence, of whom three were fresh witnesses. The hearing of 27 other proposed witnesses had been rejected.

On 30 March 2001 the Court of Appeal pronounced judgment. In addition to the convictions imposed by the District Court, it convicted the applicant of four counts of dishonesty as a debtor and of five counts of aiding and abetting an accounting offence. He was sentenced to six years' imprisonment and ordered to be detained immediately. He also lost his military rank.

As regarded the reasons for not hearing G. as a witness, the court held, inter alia, that:

“The Court of Appeal notes that no request to hear G. as a witness was made in the District Court although the documents relating to the plan to transfer moneys from the “bank group I.” had been presented at the hearings of 29 May and 10 June 1998 ... Also [the applicant] relied as written evidence on [some] documents drawn up by G. without requesting that G. be heard as a witness ...

The documents allegedly drawn up by G. have not been drawn up for the purposes of the pending proceedings. The import of the documents can be assessed without hearing him as a witness. The question whether it is necessary to hear him as a witness depends solely on whether such a hearing could produce relevant new information. In assessing this question the Court of Appeal takes into account the fact that in the District Court G. was not proposed as a witness and the fact that the parties have been provided with an opportunity to put forward all their opinions concerning the content and reliability of the documents during the trial.

The Court of Appeal notes that the documents in question have been requested by the public prosecutor and the National Bureau of Investigation by sending letters rogatory to the Guernsey authorities. The Court of Appeal does not have any reason to suspect that the documents were drawn up by someone other than G. ...

The documents clearly indicate that there has been a deliberate conspiracy to transfer the assets acquired from the sale of the “bank group I.” to companies established abroad and to invest the moneys. The transfer of assets has been conducted, as later explained in detail in chapter 6.2.2, by order of ... [the applicant and his co-accused brother]. The question of whether G. himself thought that he was involved only in legal investment activities is therefore not relevant.

The documents drawn up by G. are however relevant in assessing ... [the applicant's and his co-accused brother's] possible guilt of the offence of dishonesty as a debtor ... As becomes manifest in the reasons given in considering the charges, the Court of Appeal has however not decided the matter basing itself entirely on the documents in question. The court has instead assessed the value of the documents in an overall context, [in Finnish kokonaisyhteydessä] in which G. cannot have anything relevant to say.

The Court of Appeal has heard witness S., as requested ... about the events relating to the documents. The testimony of S., which in [the applicant's] opinion proves the content of the discussions with G., has thus been taken into account ... The Court of Appeal holds that the requirements of a fair trial do not require that G. be heard as a witness either.”

The Court of Appeal judgment ran to 325 pages. In so far as relevant, the court principally endorsed the District Court's evaluation of the evidence.

The applicant sought leave to appeal. On 5 December 2001 the Supreme Court (korkein oikeus, högsta domstolen) refused leave to appeal.

II. RELEVANT DOMESTIC LAW AND PRACTICE

If an item of evidence that a party wishes to present pertains to a fact that is not material to the case or has already been proved, or if the fact can be proved in another manner with considerably less inconvenience or cost, the court may refuse to admit it (Chapter 17, Article 7 (as amended by Act no. 571/1948) of the Code of Judicial Procedure).

Chapter 17, Article 11 of the Code of Judicial Procedure, as in force at the relevant time, provided that a written statement drawn up for a pending or imminent trial, could not be used as evidence, unless specifically provided for by law or unless the court so decided for particular reasons.

Chapter 26, Article 7 of the Code of Judicial Procedure (as amended by Act no. 661/1978), as in force at the relevant time, provided that the Court of Appeal was to hold an oral hearing when necessary. Chapter 26, Article 8 (as amended by Act no. 661/1978), as in force at the relevant time, provided that the Court of Appeal could not change a lower court's conviction based on the evaluation of evidence without holding an oral hearing, unless the case concerned an offence punishable by fines only or unless an oral hearing was manifestly unnecessary, in particular taking into account the defendant's need for legal protection.

The provisions concerning the Court of Appeal's duty to hold an oral hearing were amended (Act no. 165/1998) with effect from 1 May 1998. The new provisions did not apply to criminal proceedings which had commenced prior to the entry into force of the new Code on Criminal Procedure (laki oikeudenkäynnistä rikosasioissa, lagen om rättegång i brottmål; Act no. 689/1997; in force from 1 October 1997). The afore-mentioned former provisions applied therefore to the instant case. The new Chapter 26, Article 15 (Act no. 165/1998) provides that the Court of Appeal is to hold a hearing, regardless of whether one has been requested, if the decision in the matter turns on the credibility of the testimony received in the District Court or on new testimony to be received in the Court of Appeal. In this event, the evidence admitted in the District Court proceedings is to be readmitted in the principal hearing, unless there is an impediment to this.

THE LAW

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

The applicant complained about a violation of the rights of the defence in respect of witnesses. Article 6 §§ 1 and 3(d) read in relevant part:

“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...

...

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

The applicant argued that the refusal of the Court of Appeal to hear G. as a witness had deprived him of his right to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him. G. had been of crucial importance to his case as the documents allegedly drawn up by him had been decisive in leading the Court of Appeal to conclude that there had been an intentional plan or conspiracy to commit the offences. G. had managed all the companies which had allegedly transferred assets abroad illegally and could have provided crucial information. G. had not even been heard in the pre-trial investigations, which had made it impossible to verify the content of the documents allegedly drawn up by him.

The applicant contested the Government's view that he had considered that it was unnecessary to hear G.; he had repeatedly requested the Court of Appeal to call him as a witness. He had pointed out that the District Court had convicted him principally on the basis of its interpretation of the memoranda allegedly drawn up by G., which conclusion did not correspond to the testimony of S. The applicant did not dispute that he had met G. during the summer of 1993 and agreed to found an off-shore structure based on his advice with a view to transferring the net assets of certain companies. This had not involved any illegalities. The appellate court should have obtained oral evidence from G. in order to establish the nature of the relationship between the applicant and G. and whether there had been a criminal conspiracy or whether there had only been a legitimate plan to transfer funds to a legitimate off-shore structure.

The applicant submitted that in its decisions refusing to hear G., the Court of Appeal had stated that it would provide reasons in the final judgment, implying that the court had known the reasons when it had made its decision not to hear G. Had the applicant been provided with the reasons sooner, he would have been able to express his opinions on those reasons during the hearings. It appeared to the applicant that the court either had not known what G. could have testified about or that it had decided that his testimony was irrelevant. What struck the applicant was the fact that the appellate court had arrived at the conclusion that G. need not be heard as a witness before it had received any oral evidence or before any evidence had been discussed at the oral hearing. The applicant considered that the court's behaviour suggested that it was pre-disposed to find him guilty.

The applicant contested the Government's view that the memoranda, which were unsigned, had been drawn up by G., arguing that it was possible that they had been drawn up by him or by some other person familiar with the off-shore structure that the applicant had discussed with G. The applicant stated that “objectively the memoranda had been written by an anonymous person familiar with the matter” and “in order to verify the source of the memoranda it would have been indispensable to hear G. as a witness”. Even more so, as they had contained erroneous information, inter alia, describing transactions that had never taken place.

The Government contested the allegations. They emphasised that not even the applicant had considered it indispensable to hear G. as a witness in the Court of Appeal; he had stated that it was not necessary to hear him if witness S.'s testimony were to be considered sufficient evidence of the content and significance of the documents allegedly drawn up by G. He had not requested that G. be heard during the pre-trial investigation or in the District Court. The fact that the applicant and his brother had controlled some companies had been unknown to the prosecution until documents had been obtained from the Guernsey authorities by a letter rogatory. The District Court found that G. had a business relationship with the applicant and his brother, and that it was in this framework that the documents in question had been drawn up containing a plan of transferring the brothers' assets to a number of destinations. These facts were revealed by the testimony of the applicant in the District Court and in his writ of appeal to the Court of Appeal. In the District Court the applicant had stated, inter alia, the following:

“[The applicant] has admitted having met G. in the summer 1993. On that occasion, it was discussed how to invest the net assets of companies owned by [the applicant] and [his brother] so that the return on the assets would be subject to taxation as lenient as possible.”

The Court of Appeal extensively reasoned its decision not to hear G. as a witness, finding that the documents were normal written evidence, which could be assessed on their own without obtaining oral evidence from their author. The court thus assessed, within its discretionary power, the importance of the documents for the case and whether it was necessary or advisable to hear G. as a witness. The parties were able to comment on the documents in question both with regard to their contents and their credibility. G.'s testimony would not have provided any new decisive evidence since the question whether he believed that he was involved in legal investment activities did not have any particular bearing on the outcome of the case.

The Government pointed out that the reasons provided in the Court of Appeal's judgment described, inter alia, the oral evidence concerning the contacts between the applicant, his co-accused brother and G. It also set out how the court assessed the applicant's activity when it deemed him guilty of the offences. It closely scrutinised the transactions between the different companies controlled by the applicant and his brother. The documents drawn up by G. had clarified certain matters as they portrayed the transactions between different companies controlled by the brothers but they had not been decisive. The court had compared the documents with the transactions and had found them to be coherent. It had found it significant that it had been proved that the transfer of the assets had been conducted according to the plan in the documents and that the assets had ended up under the control of the brothers, so that these activities had constituted the crimes they had been charged with. The outcome of the case would not have been any different if G., too, had been called to testify on the same matters (i.e. on the contents of the negotiations with G.) on which S. had been heard as a witness.

B. The Court's assessment

The basis of the applicant's complaint was the use as evidence of documents drawn up by a business partner without hearing his testimony. They had been requested by the public prosecutor and the National Bureau of Investigation by sending letters rogatory to the Guernsey authorities. On the request of the prosecution they were admitted to the case file. G. was not heard himself before the courts, although the applicant requested that he be heard before the Court of Appeal.

As 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 will consider the complaint under the two provisions taken together (see, among other authorities, Asch v. Austria, judgment of 26 April 1991, Series A no. 203, § 25). Even though G. had not testified at a hearing he should, for the purposes of Article 6 § 3 (d), be regarded as a witness – a term to be given an autonomous interpretation – because documents drawn up by him, as referred to by the prosecution, were in fact before the court, which took account of them.

The Court recalls that the admissibility of evidence is primarily a matter for regulation by national law and, as a rule, it is for the national courts to assess the evidence before them. The Court's task is to ascertain whether the proceedings considered as a whole, including the way in which the evidence was taken, was fair.

It is a fundamental aspect of the right to a fair trial that criminal proceedings should be adversarial and that there should be equality of arms between the prosecution and defence. The right to an adversarial trial means, in a criminal case, that both prosecution and defence must be given the opportunity to have knowledge of and comment on the observations filed and evidence adduced by the other party (see Rowe and Davis v. the United Kingdom [GC], no. 28901/95, § 60, ECHR 2000-II).

All the evidence must normally be produced in the presence of the accused at a public hearing with a view to adversarial argument. As a rule, a conviction should not be based on the testimony of a witness whom the accused has not had an opportunity to challenge and question. However, Article 6 § 3 (d) does not grant the accused an unlimited right to secure the appearance of witnesses in court. It is normally for the national courts to decide whether it is necessary or advisable to hear a particular witness.

Applying these principles to the present case, the Court first notes that the defence did not propose that G., who had produced written evidence relied on by the prosecution, be heard in the District Court. Nor was he heard before the Court of Appeal.

The possible disadvantages thereby caused to the applicant were, however, alleviated by the fact that he had the opportunity to comment on and challenge, both in writing and in a hearing at two court levels, the documentary evidence in question with a view to influencing the courts' decisions. The request of the applicant to hear G.'s testimony was rejected for the reasons set out in paragraph 14 above. The courts based the applicant's conviction not only on the documents drawn up by G. but also on other evidence presented in the case, such as the documentary evidence concerning the money transactions and S.'s testimony as regards the content of the discussions with G. (see paragraphs 8 and 15 above).

In these circumstances the Court cannot conclude that the adversarial nature of the proceedings was not respected or that the national courts exceeded the margin of appreciation they have in the admission and assessment of evidence.

In sum, any limitations which may have been imposed on the rights of the defence were not such as to deprive the applicant of a fair trial. It follows that there has been no violation of Article 6 §§ 1 and 3 (d) of the Convention, examined together.