AS TO THE ADMISSIBILITY OF
Application no. 43803/98
by Teuvo ESKELINEN and Others
The European Court of Human Rights (Fourth Section), sitting on 14 June 2005 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 M. O'Boyle, Section Registrar,
Having regard to the above application lodged with the European Commission of Human Rights on 9 July 1998,
Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,
Having deliberated, decides as follows:
The applicants, Mr Teuvo Eskelinen, Mr Juha Ruhanen, Mr Timo Kiljunen and Mr Jorma Vesterinen, are Finnish nationals who were born in 1943, 1956, 1958 and 1944 respectively and live in Lappeenranta. They are represented before the Court by Mr Kristian v. Bonsdorff and Mr Henrik K. Dahlman, lawyers practising in Porvoo and Lappeenranta respectively. The Government are represented by their Agent, 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.
1. The business arrangements
On 27 April 1989 a contract entitled “Letter of understanding” was signed between a Finnish company called Hackmann Sisustus Oy (hereinafter “HCS”) and an Estonian company called Viisnurkka A/S (hereinafter “VIS”). It was agreed that the two companies would gradually switch production of coated decorative panels known as “Halltex-panels” from Finland to the VIS factory in Estonia, so that HCS would eventually become responsible for their marketing only. HCS, which is a part of a large Finnish consolidated corporation, had a monopoly of Halltex-panels in Finland.
At the beginning of 1993 HCS and VIS signed another contract, according to which HCS would buy wind-block panels from VIS. The cooperation between the two companies now covered all the marketing rights of VIS products in Finland, Sweden and Western European countries.
HCS, which was still producing Halltex-panels of its own, later allegedly ignored the above-mentioned cooperation contracts, causing VIS financial difficulties. VIS considered that the agreements had been terminated and decided to build its own production line to make coated decorative panels. The production line was ordered through Oy Finnhallex Ltd, a Finnish company apparently owned by the first, second and fourth applicant, from a company called Lappeenrannan Konemetalli Oy, owned by the third applicant.
2. The criminal investigation
On 10 August 1994 the managing director of HCS, Mr H.H., requested the police to investigate whether there had been a disclosure of their business secrets, alleging that their exclusive rights over the design of a production line to make coated decorative panels had been used without their permission to build the VIS production line in Estonia.
The investigations were carried out by the National Bureau of Investigation (keskusrikospoliisi, centralkriminalpolisen), which appointed Mr L.T., a mechanical engineer, as their expert in the case. L.T. had worked for a company called Hackman Wood Oy, which belonged to the same consolidated group as HCS, from 1979 to 1991. The National Bureau of Investigation also requested expert statements from Professor H.K. in respect of technical questions, and from Professor M.C. in respect of the legal aspects of the protection of business secrets. M.C. was asked to address in particular whether the first and second applicant had provided Oy Finnhallex Ltd with information amounting to a business secret. Further, he was asked to give an opinion as to the third applicant's activities in the planning of the production line, whether he had possessed information constituting a business secret and whether he had availed himself of such information.
The applicants requested that an Estonian citizen, Mr K.P., be also heard as a witness in the pre-trial investigation but the National Bureau of Investigation made no attempt to call him as a witness. The applicants were not able to appoint an expert of their own as the HCS production line, with which the VIS production line was to be compared, was protected by the exclusive business secrecy of HCS. According to the applicants, their expert was therefore prevented from examining it. The VIS production line went into operation only after the Court of Appeal (hovioikeus, hovrätten) proceedings had come to an end.
3. The court proceedings
The public prosecutor brought charges against the applicants for, inter alia, disclosing a business secret. In the indictment, he alleged that the applicants had undertaken to carry out a project for the production of coated decorative panels on the basis of information they had on the production and marketing of a similar product known as Halltex-panels of HCS, in cooperation with VIS. Oy Finnhallex Ltd had been established for the purposes of the project, which was to provide VIS with the production line for the panels corresponding to Halltex-panels and otherwise to take care of the supply of equipment, training and know-how. According to the indictment, the information used for carrying out the project constituted business secrets of HCS. Although the third applicant had no association with HCS, he was allegedly aware of the fact that the project in which he participated was to a large extent based on the business secrets of HCS.
On 30 May 1995 the Lappeenranta District Court (käräjäoikeus, tingsrätten) began the examination of the charges. The applicants pleaded not guilty, arguing, inter alia, that HCS had deliberately given up its allegedly exclusive right to any secrets as it had handed over all the relevant information to VIS anyway. They also argued that the design was a matter of common knowledge and was not protected in any way, as the patent for Halltex-panels had already expired at the time of the events in question and as the HCS factory had been accessible to anyone. They also noted that a similar panel was produced in Lithuania. According to the applicants, HCS only intended to exploit its monopoly status with the help of the court proceedings.
The applicants called K.P., among others, as their witness. They also requested that the former members of HCS's board of directors, Mr H.H. and Mr J.L., called by HCS, should not be heard as witnesses as their real status was that of a complainant because of their close relationship to the company. The District Court rejected their claims and took evidence from H.H. and J.L. The District Court received oral evidence also from the applicants, from ten witnesses called by the prosecution and from seven witnesses for the defence. One witness for the complainant company was also heard.
In September 1995 during a three day hearing, the fourth applicant requested that two engineers, both witnesses for the defence, should be allowed to acquaint themselves with the production line of HCS. However, he withdrew the request during the hearing. At no time during the proceedings did anyone request that Professor M.C., who had given a written expert opinion during the pre-trial investigation, be heard as a witness before the District Court. Nor was there any objection to the opinion's inclusion in the case-file.
On 30 November 1995 the District Court found the applicants guilty as charged and imposed fines. M.C.'s written opinion was quoted several times in the judgment.
All the parties appealed. The applicants were represented by different counsel and thus, they lodged separate writs of appeal. The second applicant explicitly requested that Professor M.C., among others, be called as a witness before the Court of Appeal, as the applicants had not had an opportunity to put questions to him. The first and fourth applicant for their part drew the court's attention to the fact that M.C. had given his written opinion in the course of the pre-trial investigation, having had at his disposal only limited knowledge about the facts of the case. Thus, no weight should be given to his written opinion. The applicants also maintained that J.L. and H.H. should not have been given the status of witnesses as they were both representing HCS and should, therefore, have been heard in that capacity. They also complained that the District Court had failed to take into account any of the statements made by the witnesses called by them. Some of these arguments were submitted by all of the applicants, others by only one of them.
On 16 December 1996 the Kouvola Court of Appeal held an oral hearing. However, it refused to hear any witnesses, finding that the allegation of the wrong assessment of evidence did not warrant a rehearing if the credibility of the evidence in question had not been challenged. It also found that taking witness evidence would not bring any new information relevant to the case.
In its judgment of 5 June 1997 the Court of Appeal agreed with most of the District Court's reasoning, finding, inter alia, that H.H. and J.L. were to be regarded as witnesses and not as representatives of HCS as they were no longer members of its board of directors. Nor were they legal representatives of that company. The Court of Appeal did not give any reasons for its decision not to hear Professor M.C. even though the second applicant had explicitly requested that he be heard. The Court of Appeal upheld the conviction and increased their sentences to suspended terms of imprisonment of various periods.
The applicants requested leave to appeal, alleging, inter alia, a violation of the equality of arms between the public prosecutor and the complainant. The applicants had not been able to appoint an expert who could have examined the production line in question, nor had they been allowed to put questions to M.C. at an oral hearing, even though the District Court's judgment had essentially been based on his expert opinion submitted to the police during the pre-trial investigation.
On 22 January 1998 the Supreme Court (korkein oikeus, högsta domstolen) refused leave to appeal.
B. Relevant domestic law and practice
The rules of evidence are laid down in Chapter 17 of the Code of Judicial Procedure (oikeudenkäymiskaari, rättegångsbalken; 571/1948). In criminal proceedings, the forms of submission of evidence are 1) examination of witnesses, 2) hearing of experts, 3) hearing of parties under oath (in criminal proceedings only the injured party can be heard under oath and only about the establishment of losses suffered by him or her), 4) hearing of parties without an oath, 5) submission of documentary evidence, and 6) inspection in situ.
Section 3 (1) provides that a fact that is notorious or known to the court ex officio need not be proven. In addition, no evidence needs to be presented on the contents of domestic law (jura novit curia). In case the court does not know foreign law applicable to the case, it is for the parties to submit evidence about the contents of that law.
Section 44 (1) provides that if an expert witness with special professional knowledge is deemed necessary, the court can obtain an opinion on the matter from, for example, a public official or an expert in the relevant field who is known to be honest and competent. Section 49 provides that an expert who is heard before the court must take an oath.
Section 50 (1052/1991) provides that an expert must give a detailed account of the findings in his or her investigation and, on the basis of the account, a substantiated opinion on the questions put to him or her. The opinion shall be compiled in writing, unless the court deems necessary that it be presented orally. An expert witness who has given a written opinion shall be heard orally in court, if a party so requests and the hearing is not evidently irrelevant or if the court deems the hearing of the expert witness to be necessary. If there are several expert witnesses, one or several of them may be called to be heard.
Section 55 (571/1948) provides that if a party to the proceedings relies on an expert not appointed by the court, the provisions on witnesses apply. However, such an expert may be ordered to give a substantiated opinion, as mentioned in section 50.
The applicants complained, under Article 6 §§ 1 and 3(d) of the Convention, about the lack of a fair trial, having been denied the right to examine or have examined witnesses against them and to obtain the attendance and examination of witnesses on their behalf under the same conditions as the witnesses against them, as
1. Professor M.C. had not been heard as a witness even though the District Court's judgment had been based on his expert statement;
2. K.P. had not been heard by the police as a witness during the criminal investigation carried out into the case;
3. only the witnesses called by the public prosecutor or the complainant had been able to examine the production line in question; and
4. J.L. and H.H. had been allowed to give evidence as witnesses even though they had in fact been representing the complainant.
The applicants made various complaints, relying on Article 6 §§ 1 and 3(d) of the Convention.
Article 6 reads in relevant part:
“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;”
1. As to the fact that Professor M.C. had not been heard as a witness before the courts, the Government argued that he had only addressed questions of law in his written opinion. On the basis of evidence submitted to him M.C. had given an opinion as to whether the applicants had transmitted such information as could be considered business secrets. The opinion had been communicated to the courts and to the parties, who had presented counter-arguments before the courts. The applicants had the possibility to request an opinion from another legal expert and they could have called M.C. to be heard orally before the District Court, but they did not. The mere fact that the District Court to a large extent had drawn the same conclusions concerning questions of law as M.C. in his opinion did not mean that the opinion had been treated as evidence in the proceedings.
The Government argued that since legal opinions were not comparable with observations on questions of fact, legal experts were not heard as witnesses before the courts. A written opinion by a legal expert and its relevance as evidence can be compared to legal literature. However, in the present case the courts had to pay attention to the fact that the opinion had been given on the basis of certain facts presented to M.C. by the police, thus weakening its value. Under Finnish law it was not even possible to hear witnesses on the contents or interpretation of law.
The applicants maintained that Professor M.C. must be regarded as a witness for the purposes of Article 6 § 3(d). He had given a written testimony on the basis of information obtained from the National Bureau of Investigation.
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.
2. As to the complaint that K.P. was not heard by the police as a witness during the criminal investigation carried out into the case, the Court observes that he was heard as a witness in the oral hearing before the District Court. The Court finds no indication of a violation in respect of this part of the application.
It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
3. As to the complaint that only witnesses called by the prosecution or the complainant company were able to examine the production line of HCS, the Court notes that one of the applicants appears to have addressed this issue before the District Court. However, during the same hearing he withdrew his request that a defence witness be afforded an opportunity to examine the production line. The applicants did not raise the question before the Court of Appeal, either. Only in their request for leave to appeal to the Supreme Court did some of the applicants draw that court's attention to the need for a defence witness to examine the production line. As noted above, the Supreme Court refused leave to appeal without examining the merits of the case.
The Court reiterates that the rule of exhaustion of domestic remedies referred to in Article 35 § 1 of the Convention obliges those seeking to bring their case against the State before an international judicial or arbitral organ to use first the remedies provided by the national legal system. Consequently, States are dispensed from answering before an international body for their acts before they have had an opportunity to put matters right through their own legal system. The rule is based on the assumption, reflected in Article 13, with which it has close affinity, that there is an effective remedy available in respect of the alleged breach in the domestic system. In this way, it is an important aspect of the principle that the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights (see Handyside v. the United Kingdom, judgment of 7 December 1976, Series A no. 24, p. 22, § 48, and, mutatis mutandis, Akdivar and Others v. Turkey, judgment of 16 December 1996, Reports of Judgments and Decisions 1996-IV, p. 1210, § 65).
Article 35 § 1 also requires that the complaints intended to be made subsequently at Strasbourg should have been made to the appropriate domestic body, at least in substance and in compliance with the formal requirements and time-limits laid down in domestic law and, further, that any procedural means that might prevent a breach of the Convention should have been used (see Cardot v. France, judgment of 19 March 1991, Series A no. 200, p. 18, § 34).
The rule of exhaustion of domestic remedies thus requires an applicant to have normal recourse to remedies within the national legal system which are available and sufficient to afford redress in respect of the breaches alleged. In the present case the applicants did not raise the complaint in issue before the Court of Appeal. As to their contention that the request in issue would not have been successful, the Court reiterates that where doubts exist as to the effectiveness of a remedy that remedy must be tried (see Van Oosterwijck v. Belgium, judgment of 6 November 1980, Series A no. 40, p. 18, § 37).
It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
4. As to the complaint that J.L. and H.H. had been allowed to give evidence as witnesses, the Court reiterates that the admissibility of evidence is primarily a matter for regulation by national law (see Schenk v. Switzerland, judgment of 12 July 1988, Series A no. 140, p. 29, § 46). The Court's task under the Convention is not to give a ruling as to whether statements of witnesses were properly admitted as evidence, but rather to ascertain whether the proceedings as a whole, including the way in which evidence was taken, were fair (see Kostovski v. the Netherlands, judgment of 20 November 1989, Series A no. 166, p. 19, § 39).
The Court observes that J.L. and H.H. were heard as witnesses in an oral hearing before the District Court during which the applicants had the opportunity to put questions to them. The Court finds no indication of a violation in respect of this part of the application.
It follows that also this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Declares admissible, without prejudging the merits, the applicants' complaint concerning the failure to hear Professor M.C. before the courts;
Declares the remainder of the application inadmissible.
Michael O'Boyle Nicolas Bratza
ESKELINEN AND OTHERS v. FINLAND DECISION
ESKELINEN AND OTHERS v. FINLAND DECISION