European Court of Human Rights

FOURTH SECTION

DECISION

Application no. 28579/05
by Aulis JÄRVINEN
against Finland

The European Court of Human Rights (Fourth Section), sitting on 8 July 2008 as a Chamber composed of:

Lech Garlicki, President,
Giovanni Bonello,
Ljiljana Mijović,
David Thór Björgvinsson,
Ján Šikuta,
Päivi Hirvelä,
Ledi Bianku, judges,
and Lawrence Early, Section Registrar,

Having regard to the above application lodged on 5 August 2005,

Having regard to the decision to examine the admissibility and merits of the case together (Article 29 § 3 of the Convention),

Having regard to the formal declarations accepting a friendly settlement of the case,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Aulis Järvinen, is a Finnish national who was born in 1961 and lives in Hartola. He was represented before the Court by Mr V. Laukkanen, a lawyer practising in Kokkola. The Finnish Government (“the Government”) were represented by their Agent, Mr Arto Kosonen of the Ministry for Foreign Affairs.

A.  The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

The applicant was driving an uncovered truck loaded with gravel on 5 April 2002. Some gravel fell on top of another car causing damage to its windshield. On 8 June 2004 the District Court sentenced the applicant to a fine of EUR 225 for a traffic misdemeanour. The decision of the District Court was based on witness statements made by the driver and the passenger of the damaged vehicle. The applicant claimed that he had not been careless and provided a video re-enactment of the incident.

On 27 July 2004 the applicant lodged an appeal with the Court of Appeal. He requested that the charges be dismissed and that witnesses be heard at an oral hearing. He argued that the witness statements admitted at first instance were contradictory.

On 30 September 2004 the Court of Appeal used the filtering procedure and upheld the District Court’s judgment without further examination of the case.

The Supreme Court refused leave to appeal on 8 February 2005.

B.  Relevant domestic law and practice

The filtering procedure used by the courts of appeal is based on sections 2 and 2a of Chapter 26 of the Code of Judicial Proceedings (Oikeudenkäymiskaari, Rättegånsbalken, in force since 1 October 2003).

The Court of Appeal may filter a case (i.e. uphold the District Court’s judgment without a full examination) when three judges agree, at any stage of the proceedings, that 1) an oral hearing is not necessary according to section 15 (see below), 2) the decision or procedure of the lower court was not defective, and 3) the legal protection of the person(s) in question does not require the continuation of the proceedings.

Section 15 (165/1998) provides:

“(1) The Court of Appeal 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 Court of Appeal.

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 this.

(2) If the evidence referred to in paragraph (1) cannot be readmitted at the main hearing, the decision of the District Court shall not be changed for that part, unless the evidence for any special reason is to be assessed differently. However, a decision on a charge may be altered in favour of the defendant in a criminal case.”

In the filtering procedure the material to be taken into account comprises the letter of appeal, the judgment of the District Court as well as other possible submissions requested by the Court of Appeal.

Since the introduction of the filtering procedure the Supreme Court has given numerous judgments on the applicability of the procedure. According to the case-law and the preparatory works of the Act, a full examination and an oral hearing are necessary when the decision is dependent on the credibility of the testimonies. According to the Supreme Court, the credibility of oral statements cannot be assessed without organising an oral hearing and even the evaluation of the testimonies requires a hearing.

COMPLAINTS

The applicant complained under Article 6 of the Convention that the Court of Appeal should have organised an oral hearing and that the filtering procedure should not have been applied in his case. He further complained that the judge deciding the case at first instance was inexperienced and for that reason a second examination should have been conducted; that the decision was against the laws of physics; and that the other car was driving too close. He referred to the Court’s judgment in Ekbatani v. Sweden of 26 May 1988.

THE LAW

On 2 July 2008 the Court received the following declaration from the Government:

“I, Arto Kosonen, Agent of the Government of Finland, declare that the Government of Finland offer to pay ex gratia EUR 6,000¹ (six thousand euros) to Aulis Järvinen with a view to securing a friendly settlement of the above-mentioned case pending before the European Court of Human Rights.

This sum, which is to cover any pecuniary and non-pecuniary damage as well as costs and expenses, will be free of any taxes that may be applicable. It will be payable within three months from the date of notification of the decision taken by the Court pursuant to Article 37 § 1 of the European Convention on Human Rights. In the event of failure to pay this sum within the said three-month period, the Government undertake to pay simple interest on it, from expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. The payment will constitute the final resolution of the case. ”

On 2 July 2008 the Court received the following declaration signed by the applicant:

“I, Aulis Järvinen, the applicant in the above-mentioned case, note that the Government of Finland are prepared to pay me ex gratia the sum of EUR 6,000* (six thousand euros) with a view to securing a friendly settlement of the above-mentioned case pending before the European Court of Human Rights.

This sum, which is to cover any pecuniary and non-pecuniary damage as well as costs and expenses, will be free of any taxes that may be applicable. It will be payable within three months from the date of notification of the decision taken by the Court pursuant to Article 37 § 1 of the European Convention on Human Rights. From the expiry of the above-mentioned three months until settlement simple interest shall he payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.

I accept the proposal and waive any further claims against Finland in respect of the facts giving rise to this application. I declare that this constitutes a final resolution of the case.”

The Court takes note of the friendly settlement reached between the parties. It is satisfied that the settlement is based on respect for human rights as defined in the Convention and its Protocols and finds no reasons to justify a continued examination of the application (Article 37 § 1 in fine of the Convention). In view of the above, it is appropriate to discontinue the application of Article 29 § 3 of the Convention and to strike the case out of the list.

For these reasons, the Court unanimously

Decides to strike the application out of its list of cases.

Lawrence Early Lech Garlicki
Registrar President