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URL: http://www.bailii.org/eu/cases/ECHR/2009/2218.html
Cite as: [2009] ECHR 2218

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Resolution CM/ResDH(2009)123^¹

Execution of the judgment of the European Court of Human Rights

M.S. against Finland

(Application No. 46601/99, judgment of 22/03/2005, final on 22/06/2005)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);

Having regard to the judgment, transmitted by the Court to the Committee once it had become final;

Recalling that the violation of the Convention found by the Court in this case concerns a breach of the right to a fair trial as the applicant was not informed of a statement received by the appellate court and was not given the opportunity to comment on it (violation of Article 6, paragraph 1) (see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the measures taken to comply with its obligation under Article 46, paragraph 1, of the Convention to abide by the judgment;

Having examined the information provided by the government in accordance with the Committee's Rules for the application of Article 46, paragraph 2, of the Convention;

Having satisfied itself that the respondent state paid the applicant the just satisfaction provided in the judgment (see details in Appendix),

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded by the Court in its judgments, the adoption by the respondent state, where appropriate:

- of individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum; and

- of general measures, preventing similar violations;

DECLARES, having examined the measures taken by the respondent state (see Appendix) [that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case and

DECIDES to close the examination of this case.

Appendix to Resolution CM/ResDH(2009)123

Information on the measures to comply with the judgment in the case of

M.S. against Finland

Introductory case summary

The case concerns a violation of the right to a fair trial in criminal proceedings against the applicant. The applicant was found guilty at first instance of aggravated sexual assault of his step-daughter and sentenced to imprisonment. During proceedings at appeal, the applicant's wife submitted a letter in which she withdrew her earlier statement supporting the applicant. This letter was communicated neither to the prosecution nor to the defence. In 1997 the Appeal Court confirmed the first-instance judgment.

The European Court found that although no infringement of the principle of equality of arms could be established, the concept of fair trial implied that the parties have the right to have knowledge of, and to comment on, all evidence gathered or observations filed with a view to influencing the court's decision. It also took the view that the applicant's application for leave to appeal to the Supreme Court had not remedied any perceived unfairness in the Court of Appeal proceedings, as the Supreme Court had only pronounced upon the authorisation of the appeal, not upon its merits (violation of Article 6§1).

I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

Pecuniary damage	Non-pecuniary damage	Costs and expenses	Total
-	3000 EUR	500 EUR	3500 EUR
Paid on 26/09/2005

b) Individual measures

According to Chapter 31 of the Code of Judicial Procedure, extraordinary appeals may be lodged against final decisions if, inter alia, “a procedural error has been committed which may have had an effect on the decision”. This provision allows the applicant to request the reopening of criminal proceedings found to violate the Convention, if he wishes to do so. The applicant has made no such request.

II. General measures

Appeal court procedures are regulated by the Code of Judicial Procedure, which provides that parties to proceedings are given the opportunity, in an oral hearing, to comment on other parties' requests and on evidence which may affect the resolution of the matter. Exceptions to this principle exist where such an oral hearing is found to be “manifestly unnecessary”. Nevertheless, the direct effect afforded by the Finnish courts to the case-law of the European Court should determine that their discretion when interpreting such an exception will be exercised in accordance with the principle of fair trial enshrined in Article 6 of the Convention.

The judgment of the European Court has in addition been published in the Finlex database. A summary of the judgment in Finnish has been published in the same database. The judgment has been disseminated to the relevant national authorities as well as to the District Court of Hyvinkää and to the Helsinki Court of Appeal.

III. Conclusions of the respondent state

The government considers that the measures adopted will prevent similar violations and that Finland has thus complied with its obligations under Article 46, paragraph 1, of the Convention.

1 Adopted by the Committee of Ministers on 3 December 2009 at the 1072nd meeting of the Ministers’ Deputies