AS TO THE ADMISSIBILITY OF
Application no. 18358/02
by Marko Vesa Tapani MUTTILAINEN
The European Court of Human Rights (Fourth Section), sitting on 14 March 2006 as a Chamber composed of:
Sir Nicolas Bratza, President,
Mr J. Casadevall,
Mr M. Pellonpää,
Mr R. Maruste,
Mr S. Pavlovschi,
Mr J. Borrego Borrego,
Mr J. Šikuta, judges,
and Mr O’Boyle, Section Registrar,
Having regard to the above application lodged on 22 April 2002,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
The applicant, Mr Marko Vesa Muttilainen, is a Finnish national, who was born in 1971 and lives in Kylänpää. He is represented before the Court by Mr Simo Ellilä, a lawyer practising in Helsinki. The respondent Government are represented by Mr Arto Kosonen, Director in the Ministry for Foreign Affairs.
A. The circumstances of the case
The facts of the case, as submitted by the parties and as they appear from the documents, may be summarised as follows.
On 16 March 1998 the applicant was charged with attempted theft and violent resistance to a public official (virkamiehen väkivaltainen vastustaminen, våldsamt motstånd mot tjänsteman), allegedly committed on 14 June 1998. At his trial the applicant admitted the attempted theft but denied the charge of violent resistance to a public official.
A police officer M.H. testified in the District Court (käräjäoikeus, tingsrätten), inter alia, that the applicant had threatened him and his colleague S.H. with a hammer by shaking it above his head when the police officers interrupted the attempted theft. The applicant testified that he had seen the police arrive and that he had raised the hammer above his head while exiting the building, before the police had ordered him to drop the hammer. He denied any intention to threaten the police officers.
On 11 September 2000 the District Court of Helsinki convicted the applicant of attempted theft and violent resistance to a public official and sentenced him to an aggregate punishment of six months’ imprisonment.
On 11 October 2000 the applicant appealed to the Court of Appeal (hovioikeus, hovrätten) requesting an oral hearing and that S.H., the other police officer present at his arrest, be heard as a witness in addition to the three witnesses heard in the District Court. He indicated that the purpose of the witness examinations would be to clarify his behaviour outside the building where he was arrested and the alleged threatening of the police officers.
On 28 June 2001 the Court of Appeal upheld the District Court’s conviction, however reducing the sentence to three months’ imprisonment. It held that the District Court’s account of the applicant’s testimony, which the applicant had not contested, together with his letter of appeal, indisputably proved that the applicant had seen the police officers outside the building. He had then left the building with a hammer raised in the air and taken some steps towards the police officers. His intention was to escape. Having seen a handgun drawn by one of the police officers, he obeyed the police’s orders when approximately five to six metres from the police officers. The Court of Appeal held that the question of violently resisting a public official could be reliably resolved on the ground of these undisputed facts without hearing witnesses in the Court of Appeal. It found an oral hearing manifestly unnecessary.
On 27 August 2001 the applicant sought leave to appeal, and appealed, to the Supreme Court (korkein oikeus, högsta domstolen). He complained that the Court of Appeal should have held an oral hearing and heard the witnesses according to the domestic legislation (Chapter 26, sections 14 and 15 of the Code of Judicial Procedure (oikeudenkäymiskaari, rättegångsbalken)) maintaining that the matter turned on the credibility of the oral evidence.
On 22 March 2002 the Supreme Court, by a majority, refused the applicant leave to appeal.
B. Relevant domestic law
1. Violent resistance to a public official
According to section 8 of the Constitution of Finland (Suomen perustuslaki, Finlands grundlag; 731/1999), no one shall be found guilty of a criminal offence or be sentenced to a punishment on the basis of a deed, which has not been rendered punishable by an Act at the time of its commission. The penalty imposed for an offence shall not be more severe than that provided by an Act at the time of commission of the offence (the principle of legality in criminal cases).
According to Chapter 16, section 1 (563/1998) of the Penal Code (rikoslaki, strafflagen), as in force as from 1 January 1999, a person who employs or threatens violence so as to force a public official to perform or to refrain from performing an official act involving the exercise of public authority, or otherwise employs or threatens violence against a public official because of the official act being carried out, or employs violence against a public official or a related person ... in order to take revenge for an official act, shall be sentenced for violent resistance to a public official to imprisonment for at least four months and at most four years.
The content of Chapter 16, section 1 (621/1967) of the Penal Code, criminalising violent resistance to a public official and in force at the time of commission of the alleged offence, corresponded to the subsequent Act (563/1998). The former provision however carried with it a penalty of imprisonment for at least three months and at most four years.
2. Court of Appeal proceedings
Chapter 26, section 14 (165/1998) of the Code of Judicial Procedure provides that a main hearing shall be held in the Court of Appeal, if ... the defendant in a criminal case so requests. However, a main hearing need not be held for the above reason, if ... the appeal is manifestly ill-founded... [or] the holding of a main hearing is for another reason manifestly unnecessary.
According to Chapter 26, section 15 of the Code of Judicial Procedure the Court of Appeal shall hold a main hearing regardless of whether one has been requested, if a decision on the matter turns on the credibility of the testimony admitted in the District Court ... or on new testimony to be admitted in the Court of Appeal. In this event, the evidence admitted in the District Court shall be readmitted ... in the principal hearing, unless there is an impediment for the same. If the evidence referred to above cannot be readmitted in the principal hearing, the decision of the District Court shall not be changed for that part, unless the evidence for a special reason is to be assessed differently. However, a decision on a charge may be changed in favour of the defendant in a criminal case.
The applicant complained under Article 6 of the Convention that the Court of Appeal did not hold an oral hearing and that he could therefore not examine a new witness.
The applicant alleged that the Court of Appeal’s decision to examine his appeal without an oral hearing and the refusal to examine a new witness violated Article 6 of the Convention. The said Article, insofar as relevant, reads as follows:
“1. In the determination of ... 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 Government submitted that the proceedings in their entirety, including the way in which evidence was taken, were fair. They argued that his case was identical to that of Fejde v. Sweden (judgment of 29 October 1991, Series A no. 212-C) in the sense that the Court of Appeal had considered that the appeal did not raise any questions of fact or questions of law which could not be adequately resolved on the basis of the case-file. The Government argued that the Court of Appeal noted in its judgment of 28 June 2001 that “the applicant must have understood that he had threatened the police officer with violence by, as he himself had stated, stepping towards him with a hammer in the air. The intention to escape mentioned by the applicant proves that he also intended to threaten the police officer with violence in order to be able to escape from the scene of crime”. Consequently, in the Government’s opinion, the appellate court could have decided on the case without holding an oral hearing.
As to the fact that the other police officer S.H. was not heard before the appellate court, the Government submitted that, even though the applicant so requested, he did not give any specific reasons for this. They argued that S.H. was heard in the pre-trial investigation but not before the District Court. His statement in the pre-trial investigation was not taken into account as trial material in the case. The Government opined that considering his testimony in the pre-trial stage, it was highly improbable that his hearing before the Court of Appeal would have been beneficial to the applicant. Finally they noted that the applicant’s unconditional sentence of imprisonment had been reduced in the appellate court from 6 months to 3 months.
The applicant contested the Governments arguments. He stressed that he had a right under Article 6 of the Convention to examine witnesses against him. The police officer S.H. was present at the arrest and therefore his testimony would have been important before the appellate court. The applicant further submitted that he was not given a possibility to examine S.H. at any stage of the proceedings, not even at the pre-trial stage. Thus his statement given in the pre-trial investigation could not be held as an indication that his evidence would not have been decisive in the case.
The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.
For these reasons, the Court unanimously
Declares the application admissible, without prejudging the merits of the case.
Michael O’Boyle Nicolas Bratza
MUTTILAINEN v. FINLAND DECISION
MUTTILAINEN v. FINLAND DECISION