CEDH · CASELAW;COMMUNICATEDCASES;ENG — 2 février 2023

.s800EAC49 { font-size:12pt } .s379BC09C { margin-top:36pt; margin-bottom:0pt; text-align:right } .sBB9EE52A { font-family:Arial } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s665E407E { margin-top:66pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } Published on 20 February 2023   SECOND SECTION Application no. 24031/22 Tommi Aleksi NOUSIAINEN against Finland lodged on 10 May 2022 communicated on 2 February 2023 SUBJECT MATTER OF THE CASE The application concerns the alleged unfairness of criminal proceedings against the applicant, who was convicted of the assault of two persons committed in 2019 by three persons, and who alleges that there was insufficient evidence to prove that he had been present and one of the three persons who had participated in the assault. The applicant was convicted by the District Court. In his appeal to the Court of Appeal, the applicant complained about evidential matters, notably that only one witness, Mr R., had allegedly recognised him as having participated in the assault and had only done so on the basis of a photograph of him which had been shown to Mr R. after the events had taken place. The person who had shown the photograph to Mr   R. was not questioned. At the Court of Appeal hearing in 2021 Mr R., giving evidence by video link, could not confirm that it was the applicant that he had recognised because of the considerable time that had passed since the events in question. In its judgment, the Court of Appeal assessed Mr R.’s initial identification of the applicant and concluded that it was reliable. The applicant’s appeal was dismissed. The applicant requested that the Supreme Court grant him leave to appeal against the Court of Appeal’s judgment, arguing that as Mr R. had no longer been able to identify him as a perpetrator at the Court of Appeal hearing, there remained no evidence against him. On 24 January 2022 the Supreme Court refused the applicant leave to appeal against the Court of Appeal’s judgment. The applicant complains under Article 6 § 1 of the Convention that he was not afforded a fair trial as the domestic courts did not take into account the evidence in his favour and as the reasoning in the judgment was, thus, insufficient to a degree which violated his right to a fair trial. Furthermore, the applicant complains under Article 6 § 3 of the Convention that he was not afforded a right to examine a witness against him: the person who had allegedly shown to Mr R. the photograph on the basis of which the latter had initially identified the applicant as perpetrator, had never been questioned by the police or the domestic courts. The applicant argued that, therefore, he had not been able to challenge the evidence given by Mr   R. even though Mr   R.’s witness statement had been the sole and decisive evidence against him and had carried significant weight in his conviction. He points out that no identity parade was organised in the case and that Mr   R. had withdrawn his identification at the Court of Appeal hearing. QUESTIONS TO THE PARTIES 1.     Were the proceedings as a whole, including the way in which the evidence was obtained, “fair” within the meaning of Article 6 § 1 of the Convention?   In particular, in view of the evidential situation as regards the witnesses’ statements on whether the applicant had been present and participated in the assault of which he was convicted, above all the circumstances relating to Mr   R.’s evidence (including his having identified the applicant on the basis of a photograph that had not been presented as evidence in the case and which had been shown to Mr R. by a person who had not been identified and questioned himself):   (i) Was the applicant’s conviction compatible with the requirement that decisions of domestic courts shall not be “arbitrary or manifestly unreasonable” (see, for the general principles, Nemtsov v. Russia , no.   1774/11, §§ 87-88, 31 July 2014, and Bochan v. Ukraine (no. 2) [GC], no.   22251/08, § 61, ECHR 2015)?   (ii) Were the domestic decisions free from any serious shortcomings as to the manner in which the evidence was admitted, examined and/or assessed and as regards the manner in which the courts dealt with the defence’s objections concerning that evidence?   (iii) Furthermore, did the domestic courts comply with their duty to give reasons, bearing in mind that the burden of proof is on the prosecution and that any doubt should benefit the accused (see, for example, mutatis mutandis , Melich and Beck v. the Czech Republic , no. 35450/04, §§ 49-55, 24 July 2008; and Ajdarić v. Croatia , no. 20883/09, § 51, 13 December 2011)?   2. In view of the above (see question 1) did the proceedings against the applicant impinge on any of the specific guarantees set out in Article   6 § 3   (d) of the Convention (see for the general principles Schatschaschwili v.   Germany [GC], no. 9154/10, §§ 100 et seq. , ECHR 2015)?