CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 11 mai 1999

.s800EAC49 { font-size:12pt } .s598389FD { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:16pt } .sBB9EE52A { font-family:Arial } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s23A41E03 { width:36pt; display:inline-block } .sBA8DCCFC { width:35.45pt; display:inline-block } .s31BEBB9E { width:7.26pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .sE55CAA3E { width:1.26pt; display:inline-block } .sA8754BFF { width:3.96pt; display:inline-block } .s796BDE8F { width:14.11pt; display:inline-block } .s76CF415B { page-break-before:always; clear:both } .s29100277 { font-family:Arial; font-weight:bold } .sADADF4A7 { font-family:Arial; text-decoration:underline } .sA6CD7BE5 { margin:0pt 40.2pt 0pt 35.45pt } .s7058A54 { width:0.55pt; display:inline-block } .s3985515B { margin-top:0pt; margin-left:36pt; margin-bottom:0pt } .s936EB0A2 { width:17.01pt; display:inline-block } .s42715068 { width:268.5pt; display:inline-block } .s8EFC8F8 { width:32.36pt; display:inline-block } .sFBBFC6C9 { width:290.51pt; display:inline-block } FOURTH SECTION   DECISION   AS TO THE ADMISSIBILITY OF   Application no. 30505/96 by Rainer HUIKKO against Finland     The European Court of Human Rights (Fourth Section) sitting on 11 May 1999 as a Chamber composed of     Mr   G. Ress, President ,   Mr   M. Pellonpää,   Mr   L. Caflisch,   Mr   J. Makarczyk,   Mr   I. Cabral Barreto,   Mr   V. Butkevych,   Mrs   N. Vajić, Judges ,   Mr   J. Hedigan,   Mrs   S.   Botoucharova, Substitute Judges ,   with   Mr   V. Berger, Section Registrar ;     Having regard to Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms;     Having regard to the application introduced on 29 February 1996 by Rainer HUIKKO   against Finland and registered on 19 March 1996 under file no. 30505/96;     Having regard to the report provided for in Rule 49 of the Rules of Court;     Having deliberated;     Decides as follows:   THE FACTS     The applicant is a Finnish national, born in 1957 and currently serving his prison sentence in Kerava Youth Prison in Kerava, Finland. He is represented before the Court by Ms Riitta Leppiniemi, a lawyer practising in Helsinki.     The facts of the case, as submitted by the applicant, may be summarised as follows.     On 3 May 1994 N. was charged before the Helsinki District Court ( käräjäoikeus, tingsrätt) with aggravated narcotics offences concerning at least 30 kilos of cannabis (case R 94/2284). He had stated to the police that he had committed several aggravated narcotics offences in 1992-1994 and incriminated several other people, including the present applicant, during the police investigations. The case was adjourned until 17 May 1994 as the police investigations had not finished.     N.’s case was heard on 17 May 1994 and 31 May 1994 and adjourned as the police investigations had not finished. N. confessed to the court that he had dealt in about 200 kilos of cannabis.     On 14 June 1994 N. was charged with additional aggravated narcotics offences which he confessed to. At the next hearing, on 21 June 1994, N. repeated all his statements to the police and stated that he would stand by them. N.’s case was joined with another case (R   94/1409) which was heard on 5 July 1994 against N. and 12 other accused (not including the present applicant), concerning several aggravated narcotics offences.     N.’s case was heard again on 19 July 1994. There were now 19 accused, still not including the applicant. At this time N. stated to the District Court that he would not repeat his previous statements and retracted them.     N.’s case was adjourned on 2, 16 and 30 August and 13 September 1994. There were now 20 accused, still not including the applicant.     The present applicant was charged with nine aggravated narcotics offences on 13   September 1994 before the Helsinki District Court (case R 94/4864) in separate criminal proceedings. He was suspected of having possessed and sold cannabis and amphetamine. The applicant denied all the charges, stating that the proceedings could not proceed as the only evidence against him was N.’s statements given in a different set of proceedings. Moreover, N. had changed his statements made to the police and could not be found credible. The applicant’s case was adjourned until 27 September 1994.     On 27 September the applicant’s case was joined with N.’s case and the case was heard. The public prosecutor submitted new police investigation reports to the court. N. refused to comment on any of his statements and stated that he would remain silent. He also stated that he would not answer any questions put to him as he “wanted to reserve an opportunity for all the innocent co-accused to tell the truth”. The applicant’s legal counsel noted that N. had not repeated his statements concerning the applicant. The case was adjourned until 11 October 1994.   At the District Court hearing on 11 October 1994 N. again refused to repeat his statements concerning the applicant, H. and two others as he could not “take the responsibility if innocent men were convicted on the basis of his statements”. The case was adjourned until 25 October 1994.     On 25 October 1994 the case was heard again. The applicant submitted that the earlier statements of N. which N. had withdrawn were the only evidence against him. N.   was convicted of 13 aggravated narcotics offences and two counts of possession of an illegal firearm and sentenced to twelve years and six months’ imprisonment. Two other accused were convicted of different narcotics offences and sentenced to imprisonment. The rest of the case was adjourned until 8 November 1994, including the applicant’s case.     On 8 November 1994 the case was heard again. The District Court convicted the applicant of six aggravated narcotics offences, rejecting three charges concerning amphetamine, and sentenced him to two years and nine months’ imprisonment. The reasoning of the court reads as follows:   (translation from Finnish)   “[The applicant] has denied all the charges. The conviction is based on N.’s statements. The District Court has stated above why it has found N.’s statements credible. N. told about the applicant’s participation as a seller and dealer of the cannabis at a fairly early stage of the investigations and in a fairly detailed manner. [The applicant] has stated that he has paid his living expenses from his car-renting incomes. [The applicant] has been on leave of absence from his work during the summer of 1994 and has avoided contacts with police in order to avoid conversion imprisonment for unpaid fines of FIM 1,300. The District Court has not found it to be credible that this was the reason for [the applicant] to avoid police.   However, it has not been established that [the applicant] would have had in his possession 800 grams of amphetamine in November 1993, one kilo in December 1993 or 800 grams in February 1994 and that he would have bought those narcotics from N. and sold them further in small portions.     The evidence produced by the public prosecutor is based on N.’s statements. The District Court has already found that N.’s statements are credible concerning the cannabis he has himself imported to the country and dealt in. N.’s statements concerning amphetamine have, instead, changed all the time. First, N. told in a hesitating way that amphetamine went to K., who was convicted at an earlier stage of these proceedings, and regarding whom the public prosecutor withdrew the charges concerning amphetamine dealing. After that N. told that the substance went to another person, who has not been prosecuted. On the last occasion N. told that amphetamine went to [the applicant]. Even though N.’s statements concerning [the applicant] and cannabis is, in the District Court’s view, credible it cannot be the basis for [the applicant’s] conviction concerning amphetamine taken into account [the applicant’s] need for due process. There is no other evidence produced. Thus, this part of the charges is rejected.”           On 7 December 1994 the applicant appealed to the Helsinki Court of Appeal ( hovioikeus, hovrätt) , requesting an oral hearing before that Court. He stated that he should not have been found guilty on the basis of N.’s statements as there was no other evidence against him and as N. had withdrawn his statements as far as the applicant was concerned. The applicant and N. did not appear before the court at the same hearing until 27   September 1994. At that hearing N. did not repeat his statements concerning the allegations against the applicant. The additional investigations did not finish until 27 September 1994, when N. declared that he would remain silent from then onwards. N. did not repeat his statements at the later stages of the proceedings and, thus, no questions were put to N. either by the applicant’s counsel or by the public prosecutor. According to the applicant, N.’s statements could not be regarded as credible and therefore, there was no evidence at all against him.     On 27 April 1994 the Court of Appeal upheld the District Court’s judgment without holding an oral hearing. On 8 September 1995 the Supreme Court ( korkein oikeus, högsta domstolen) refused the applicant leave to appeal.        COMPLAINT     The applicant complains that he was not given a fair trial and that he was not afforded the right to examine or have examined witnesses against him, as he was not able to put questions to N. who did not repeat his statements in the applicant’s presence. He invokes Article 6 §§ 1 and 3 (d) of the Convention.     THE LAW     The applicant complains that he was not given a fair trial and that he was not afforded the right to examine or have examined witnesses against him, as he was not able to put questions to N. who did not repeat his statements in the applicant’s presence.     The applicant invokes Article 6 §§ 1 and 3 (d) of the Convention which, as far as relevant, read as follows:   “1.     In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. ...   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; ...”   The Court first recalls that its task is not to examine whether or not the applicant was guilty or innocent of the offences of which he was convicted. The admissibility of evidence and related questions are primarily matters for regulation by national law and it is in principle for the national courts to assess the evidence before them (cf, e.g., Eur. Court H.R., Doorson v. the Netherlands judgment of 26   March 1996, Reports of Judgments and Decisions 1996-II, p. 470, § 67). The Court’s task is to ascertain whether the proceedings in their entirety, including the way in which the evidence was taken, were fair. All the evidence must normally be produced in the presence of the accused at a public hearing with a view to adversarial argument. However, the use as evidence of statements obtained prior to the trial is not in itself inconsistent with Article 6 of the Convention, provided that the rights of the defence have been respected. As a rule these rights require that the defendant be given an adequate and proper opportunity to challenge and question a witness against him either when he was making his statement or at a later stage of the proceedings (see, e.g., Eur. Court HR, Saïdi v. France judgment of 20 September 1993, Series A no. 261-C, p. 56, § 43).     In the present case there were three hearings at which the applicant and N. were both present. It appears that the applicant’s counsel did not put any questions to N. even though she had the opportunity on several occasions. While N.’s persistence to remain silent may have made the questioning futile, in the circumstances of the present case this does not justify the conclusion that the judicial authorities denied the applicant the possibility of examining witnesses in conformity with Article 6 §§ 1 and 3 (d) of the Convention.     An examination of by the Court of this complaint as it has been submitted does not therefore disclose any appearance of a violation of the rights and freedoms set out in the Convention and in particular in the above Article.     It follows that the application is manifestly ill-founded and must be rejected pursuant to Article 35 § 4 of the Convention.       For these reasons, the Court, unanimously,   DECLARES THE APPLICATION INADMISSIBLE .               Vincent Berger   Georg Ress   Registrar   President