(Application no. 13566/06)
22 September 2009
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-Pekka Pietiläinen v. Finland,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
David Thór Björgvinsson,
Nebojša Vučinić, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having deliberated in private on 1 September 2009,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
II. RELEVANT DOMESTIC LAW AND PRACTICE
“The provision [Chapter 26, section 20, subsection 1, of the Code of Judicial Procedure] is interpreted [by the Supreme Court, KKO 2000:44] to mean that an appeal of an applicant summoned to appear in person is discontinued if he or she is absent from the main hearing even if he or she is represented by counsel. However, the European Court has on many occasions stated that it was of crucial importance for the fairness of the criminal justice system that the accused be adequately defended by counsel, in spite of having been properly summoned to appear in person. In its judgments of Lala and Pelladoah v. The Netherlands (application nos. 14861/89 and 16737/90, judgment of 22 September 1994, points 34 and 40) and Van Geyseghem v. Belgium (application no. 26103/95, judgment of 21 January 1999, points 33—35) as well as most recently in its judgment Stroek and Goedhart v. Belgium (application nos. 36449/97, 36467/97 and 34989/97, judgment of 20 March 2001), the European Court stated that an accused does not lose this right to be defended effectively by a lawyer merely on account of not attending a court hearing. It is immaterial whether the absence is due to a valid excuse or whether an appeal is possible. It is also immaterial that the defendant was adequately defended in the lower instance. The judgment in the Van Geyseghem case concerned an action for recovery of a higher court judgment which was given in absentia. The applicant, who was an accused in the criminal proceedings, was represented by her counsel in the recovery proceedings. The higher court "declared the application void". The proceedings were thus similar to those in Finland when an appeal is discontinued. On the other hand, in its judgment of Eliazer v. The Netherlands (application no. 38055/97, judgment of 16 October 2001, point 35), the European Court found no violation when counsel was heard and the case was decided thereafter. In the light of the above Court's case-law, it is not entirely clear what should be done regarding an appeal of an applicant who is an accused in criminal proceedings and who, despite being summoned, does not appear in person at the main hearing.”
“13. The European Court has in many judgments stated that it was of crucial importance for the fairness of the criminal justice system that the accused be adequately defended, and that he could not be deprived of this right merely on account of not attending a court hearing. According to the Court, even if the legislature had to be able to discourage unjustified absences, it could not penalise them by creating exceptions to the right to legal assistance (see Poitrimol v. France, judgment of 23 November 1993, Lala v. The Netherlands and Pelladoah v. The Netherlands, judgments of 22 September 1994, as well as Van Geyseghem v. Belgium, judgment of 21 January 1999, Van Pelt v. France, judgment of 23 May 2000 and Goedhart v. Belgium, judgment of 20 March 2001).
16. When deciding in what situations a case can be examined only when the applicant is present in person and in what situations the applicant has the right to defend himself through legal assistance of his choosing, one has to distinguish different situations in the criminal proceedings. If the applicant is heard in order to clarify the matter, his presence in person is necessary. When, however, other witnesses are heard or the parties are heard in order to assess legally the act described in the indictment or the defence, it is appropriate that questioning is undertaken and the statements are given by a legal representative. It is also clear that when the applicant exercises his right to question or to give legal statements, he cannot be deprived of his right to use legal assistance and that his presence in person in those situations is not necessary. Therefore, the applicant should not be obliged to appear in person under penalty of a default fine unless the outcome of the case might depend on the reliability of his account or his presence in person is necessary for some other reason.
17. According to the provisions concerning the proceedings in appeal courts, an appeal court cannot, without any particular grounds, change the district court's conclusions concerning the evidence if persons meant to be heard as witnesses are absent from the main hearing. The starting point is that a higher instance should have the same possibility to assess the oral testimony as a district court, the correctness of whose judgment is being assessed by the higher instance. This means, inter alia, that the principle of immediate presentation of evidence must be applied also on appeal. It does not follow from the wording of Chapter 26, section 20, subsection 1, of the Code of Judicial Procedure, nor did it follow from it at the time when the Appeal Court examined the case, that an appeal should always be entirely discontinued when the applicant is absent from the main hearing, even though summoned to appear in person. The court which has the right and the obligation to conduct the proceedings can and indeed must then decide whether the examination of some parts of the appeal by hearing only counsel is necessary or reasonable. When considering this, the court must take into account the applicant's justified legal expectations. If it becomes clear that the applicant's presence in person is, in spite of the given order, not necessary, his appeal should not in this kind of situation be even partly discontinued due to his absence.”
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 6 § 3 (C) OF THE CONVENTION
“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:
(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require.”
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“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.”
B. Costs and expenses
C. Default interest
FOR THESE REASONS, THE COURT UNANIMOUSLY
(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts:
(i) EUR 2,500 (two thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 3,000 (three thousand euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;
(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;
Done in English, and notified in writing on 22 September 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Nicolas Bratza
Deputy Registrar President