European Court of Human Rights

FOURTH SECTION

Application no. 53329/10
Jari Anssi Juhani KOSKI
against Finland
lodged on 16 September 2010

STATEMENT OF FACTS

The applicant, Mr Jari Anssi Juhani Koski, is a Finnish national who was born in 1976 and lives in Kokkola. He was represented before the Court by Mr H. Laakso, a lawyer practising in Kokkola.

A.  The circumstances of the case

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

On 10 September 2008 the applicant was convicted of an aggravated accounting offence (törkeä kirjanpitorikos, grovt bokföringsbrott) and aggravated dishonesty by a debtor (törkeä velallisen epärehellisyys, grov oredlighet som gäldenär) by the Kokkola District Court (käräjäoikeus, tingsrätten) for which he was given a suspended sentence of one year and two months and ordered to pay damages.

On 10 October 2008 the applicant appealed to the Vaasa Appeal Court (hovioikeus, hovrätten).

On 10 March 2009 the Appeal Court summoned the applicant to attend the oral hearing which was to take place on 22 April 2009. It was stated in the summons that in case of his absence without a valid excuse, his appeal would be discontinued. A valid excuse meant circumstances of force majeure or an illness certified by a medical certificate. The Appeal Court was to examine whether the excuse was valid.

On 21 April 2009 the applicant’s attorney sent to the court a fax which included a medical certificate, dated 21 April 2009, stating that the applicant was suffering from gastroenteritis. According to the medical certificate the applicant would not be able to work from 21 April to 23 April.

On 22 April 2009 the applicant did not attend the hearing. Nor was his attorney present.

On 22 April 2009 the attorney sent another fax to the court, stating that the applicant was still sick and that he had to visit the restroom every half an hour. The trip to the court house was not possible. The applicant had visited the doctor also on 22 April 2009. The doctor issued a new medical certificate, stating that severe gastroenteritis might endanger the patient’s state of health.

On the same day, on 2 April 2009, the Appeal Court decided on the basis of Chapter 26, section 20, subsection 1, of the Code of Judicial Procedure (oikeudenkäymiskaari, rättegångsbalken) that the applicant’s appeal was discontinued due to his absence. The Appeal Court noted that an illness was a valid excuse when it endangered the applicant’s health. Temporary symptoms of a previous illness could also be a valid excuse. The Appeal Court found, however, that on the basis of the medical certificate, it was not apparent that the applicant’s illness was such that he could not travel to the court without endangering his health. The key issue thus was whether temporary symptoms of a previous illness formed a valid excuse. The court found that the applicant had not proved that his illness prevented him from appearing in court. Moreover, the decision stated that an ordinary appeal was not allowed but if the applicant had had a valid excuse that he had not been able to announce in time, he had the right to a reopening of the case on the basis of the same appeal, by notifying the Appeal Court in writing within thirty days of the decision to discontinue the appeal. If he could not provide a valid excuse, the case would be found inadmissible.

On 21 May 2009 the applicant notified the Appeal Court in writing that he had had a valid excuse for his absence and requested that his case be reopened.

On 7 October 2009 the Appeal Court rejected the applicant’s request. The court noted that it could consider seriously only a medical certificate that indicated detailed grounds on why a person’s health was endangered if he were ordered to attend a hearing regardless of his illness. The criteria for a valid excuse had been set high in the established case-law. The Appeal Court found that the medical certificates submitted to the court by the applicant did not make apparent the general severity of the applicant’s symptoms, nor the fact that his health would have been endangered if he were to appear in court. Therefore, the Appeal Court concluded that the applicant had not shown that he had a valid excuse that prevented him from appearing at the oral hearing on 22 April 2009.

On 7 December 2009 the applicant appealed to the Supreme Court (korkein oikeus, högsta domstolen), reiterating the grounds of appeal relied on before the Appeal Court.

On 19 March 2010 the Supreme Court refused the applicant leave to appeal.

B.  Relevant domestic law and practice

According to Chapter 26, section 20, subsection 1, of the Code of Judicial Procedure (oikeudenkäymiskaari, rättegångsbalken; Act no. 381/2003), if the appellant is absent from the main hearing, the appeal shall be discontinued.

According to Chapter 26, section 22, of the same Code, if the case has been dismissed without consideration of the merits because of the absence of the appellant, but he or she had a valid excuse that he or she was not able to announce in time, the appellant shall have the right to have the case reopened on the basis of the same appeal, by notifying the Appeal Court in writing within thirty days of the dismissal of the case. If the appellant cannot prove a valid excuse, the appeal shall not be considered.

According to Chapter 12, section 28, subsection 1, of the same Code, a person shall have a valid excuse, if he or she due to illness or an interruption in traffic or communications is prevented from heeding the summons to appear in court, to submit a written response or statement or to fulfil another duty imposed on him or her in the proceedings.

The Supreme Court has taken a stand on valid excuse in its judgments of 1 April 2003 and 22 August 2001 (KKO: 2003:28 and KKO: 2001:73). It has found, inter alia, that an illness is a valid excuse only when a person cannot attend the oral hearing without endangering his or her health. A person who needs hospital care usually has a valid excuse. Inconvenient temporary symptoms of minor illnesses can also form a valid excuse.

COMPLAINT

The applicant complains under Article 6 of the Convention that his right to a fair trial and to defend himself in person or through legal assistance of his own choosing has been violated as his appeal in the Appeal Court was discontinued due to the fact that he did not attend the oral hearing on 22 April 2009.

QUESTION TO THE PARTIES

Having regard to the decision to discontinue the applicant’s appeal on account of his failure to attend the hearing on 22 April 2009, did the applicant have a fair hearing in the determination of the criminal charges against him, in accordance with Article 6 § 1 of the Convention taken in conjunction with Article 6 § 3 (c ) of the Convention?