Přehled
Rozhodnutí
FOURTH SECTION
FINAL DECISION
AS TO THE ADMISSIBILITY OF
Application no. 21422/02
by Kari UOTI
against Finland
The European Court of Human Rights (Fourth Section), sitting on 7 November 2006 as a Chamber composed of:
Sir Nicolas Bratza, President,
Mr G. Bonello,
Mr M. Pellonpää,
Mr K. Traja,
Mr L. Garlicki,
Ms L. Mijović,
Mr J. Šikuta, judges,
and Mr T.L. Early, Section Registrar,
Having regard to the above application lodged on 28 May 2002,
Having regard to the partial decision of 21 September 2004,
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 FACTS
The applicant, Mr Kari Uoti, is a Finnish national who was born in 1962 and lives in Helsinki. He is represented before the Court by Mr Markku Fredman, a lawyer practising in Helsinki. The Finnish Government (“the Government”) are represented by their Agent, Mr Arto Kosonen of 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.
The pre-trial investigation and the District Court proceedings
On 7 September 1995 the applicant was questioned by the police about suspected fraud. In autumn 1997 he was charged with several offences.
The trial before the Helsinki District Court (käräjäoikeus, tingsrätten) involved 47 days of hearings. The court received testimony from the defendants, the complainants and over 40 witnesses. The applicant was represented by the same counsel throughout the District Court proceedings and at all subsequent court levels.
On 29 January 1999 the applicant was convicted of three counts of dishonesty as a debtor (nos. 1.1; 6; and 8 in the indictment) and four counts of aggravated tax fraud (nos. 19; 21; 23; and 25 in the indictment). He was sentenced to four years’ imprisonment and ordered to pay damages.
The Court of Appeal proceedings
The appeals
The public prosecutor appealed insofar as the charges had been dismissed and introduced alternative charges of aiding and abetting accounting offences.
The applicant appealed against the conviction and requested an oral hearing. He claimed, inter alia, that the statute of limitations had expired with respect to many of the charges against him. In particular, he requested that a Mr G., resident in Guernsey, be heard as a witness either in the Helsinki Court of Appeal (hovioikeus, hovrätten) or by executive assistance abroad if the court was not satisfied that the account of a witness S. was sufficient evidence as regards the value and content of the documents drawn up by Mr G. Mr G. represented a company selling off-shore companies and had produced memoranda and documents in answer to letters rogatory sent by the National Bureau of Investigation (keskusrikospoliisi, centralkriminalpolisen).
The parties filed written replies to each other’s appeals. In the Court of Appeal the applicant’s case was open for review in respect of all counts. Mr G.’s testimony was allegedly relevant to counts nos. 2, 4, 6, 8, 19, 21, 23 and 25.
The fixing of the timetable and the extent of the oral evidence to be received
On 12 May 2000 the Court of Appeal invited the parties’ further written submissions by 15 June 2000. It also informed them that should it decide to hold an oral hearing, it would commence at the earliest at the end of October 2000.
On 30 June 2000 the Court of Appeal confirmed that it was going to hold an oral hearing and the parties were provisionally requested to prepare for the hearing which would begin on Monday 13 November 2000 and continue over the following three weeks. On 17 August 2000 it informed the parties that they could make further written submissions by 15 September 2000. The court itself did not require any submissions.
On 15 September 2000 the court confirmed that the hearing would cover counts nos. 2-9 (counts 2, 4, 6 and 8 (dishonesty as a debtor) concerned the applicant). The court invited the parties’ comments on the scope and manner of presentation of any oral evidence to the court by 29 September 2000. It also informed them that a decision concerning the hearing on the other counts would be issued later.
On 29 September 2000 the Court of Appeal sent the parties a summons for the principal hearing fixed for 8 November 2000. The summons stated that the oral hearing would concern, in addition to counts nos. 2-9, counts nos. 11-34. Of these, counts 11, 13, 15, 17 (accounting offence, or alternatively, aiding and abetting an accounting offence), 19, 21, 23, 25 (aggravated tax fraud) and 27 (accounting offence, or alternatively, aiding and abetting an accounting offence) concerned the applicant.
On 3 October 2000 the applicant received another notice from the Court of Appeal, which contained a more detailed description of the scope of the forthcoming hearing and its timetable. The letter also stated that a decision concerning the need for an oral hearing on the remaining counts would be issued later. For that purpose, the parties were invited to identify their witnesses by 10 October 2000.
On 6 October 2000 the Court of Appeal informed the parties that a decision about the necessity of an oral hearing on counts nos. 1.1-1.7 (dishonesty as a debtor), 10.1-10.10 (dishonesty as a debtor) and 27 (aiding and abetting an accounting offence) had not yet been issued. The parties were invited to identify their witnesses by 17 October 2000. The court also stated, inter alia, that:
“The charges in question have to a large degree been dismissed by the District Court. The public prosecutor and the complainants have however demanded that the charges be accepted. Insofar as the charges have been accepted, the defendants have requested an oral hearing. To change the District Court’s judgment following a re-assessment of the oral evidence requires, according to the so-called former provisions of Chapter 26 of the Code of Judicial Procedure [oikeudenkäymiskaari, rättegångsbalken], an oral hearing in the Court of Appeal. If the decision concerning a charge depends on the reliability of the oral evidence heard by the District Court, an oral hearing in the Court of Appeal may be necessary despite the fact that the former provisions are being applied.”
On 11 October 2000 the applicant put forward the names of two witnesses, one of whom was Mr G.
On 13 October 2000 the Court of Appeal sent the parties a list of the witnesses as presented by them so far. It transpired that the public prosecutor had submitted, following the above-mentioned notice of 6 October 2000, that the evidence he planned to present concerning the dismissed charges (1.1-1.7, 10.1-10.10 and 27) was the same as before the District Court. The court also stated that a final decision about the scope of the oral hearing had not yet been issued. The parties would be informed separately of a possible preparatory hearing in the matter and, should there be one, it would be held on 31 October 2000.
On 17 October 2000 the public prosecutor informed the court that she had initially anticipated that there would be no oral hearing before the Court of Appeal and that it would have been possible to convict the applicant in written proceedings, even of those counts which the District Court had dismissed. She submitted that the court should hear all those witnesses who had been heard, or who had been listed by the prosecutor to be heard, in the lower court. The applicant objected to the prosecutor’s request to hear all the witnesses again referring, inter alia, to the prosecutor’s prior wish not to have an oral hearing in the first place. He maintained that in the light of the prior notices the defence was only prepared to present oral evidence in a more restricted framework. He maintained that the time remaining before the scheduled hearing was insufficient for additional preparations to be made, relying on Article 6 § 3(b) of the Convention.
On 23 and 24 October 2000 the Court of Appeal informed the parties of its decision about the oral evidence in the matter. It refused to receive oral evidence from Mr G. as being unnecessary and stated that it would provide further reasons for its decision in the forthcoming judgment. It noted that a decision about the remaining parts of the evidence would be issued at the preparatory hearing. It also appended a summary transcript comprising 28 pages of witness statements given in the District Court. The parties were invited to inform the court at the preparatory hearing whether, in their view, the summary corresponded to the witness statements given in the lower court. The parties were informed that they would receive the remainder of the summary as soon as it had been completed.
On 27 October 2000 the Court of Appeal informed the parties of its decision about the oral evidence concerning counts nos. 10.1-10.10 and 27 and sent the parties the remaining four pages of the summary transcript for information. The parties were instructed that a decision concerning further witnesses and the topics about which they would be examined would be issued at the preparatory hearing.
On 30 October 2000 the applicant informed the Court of Appeal that it had not been possible for him to check in necessary detail the entire summary transcript during the one working day and the one weekend before the preparatory hearing. He complained, that given the early date of the first principal hearing (8 November 2000) and the very large number of witnesses and the voluminous nature of the case (the case file comprised over 10,000 pages of documents), it was impossible to prepare for the trial in the time given. Relying on Article 6 § 3(b) of the Convention he requested that the preparatory hearing be postponed.
The preparatory hearing
On 31 October 2000 the court held a preparatory hearing, mainly to discuss the obtaining of oral evidence. The applicant unsuccessfully renewed his objection concerning the limited possibilities to prepare his defence as well as his submission that it was necessary to hear Mr G. as a witness.
The minutes of the preparatory hearing were completed on 2 November 2000 and communicated to the parties for information. Consequently, according to the applicant, the decision about the oral evidence to be heard was issued only two weekdays before the commencement of the principal hearing.
The principal hearing
In his letter of 7 November 2000 the applicant repeated his request for a postponement, relying on Article 6 § 3(b) of the Convention, but without success.
The first hearing took place on 8 November 2000 and it was continued on 9, 13-17, 20 and 22 November 2000. The parties and altogether 22 witnesses gave oral evidence, of whom three were fresh witnesses. The hearing of 27 other proposed witnesses had been rejected.
According to the applicant the overall time taken in preparation and court appearances was often over 12 hours per day, the longest court-day having lasted 14 hours in total. He claims that the presiding judge ordered the parties to declare the time necessary for their closing arguments beforehand and that this time was strictly monitored at the last hearing.
The Court of Appeal judgment
On 30 March 2001 the Court of Appeal pronounced judgment. In addition to the convictions imposed by the District Court, it convicted the applicant of four counts of dishonesty as a debtor (nos. 1.1, 1.4, 1.5 and 1.6; 2; 4; and 10.1, 10.2, 10.4-10.10) and of five counts of aiding and abetting an accounting offence (nos. 11; 13; 15; 17; and 27). He was sentenced to six years’ imprisonment and ordered to be detained immediately. He also lost his military rank. He was ordered to pay damages.
As regarded the reasons for not hearing Mr G. as a witness, the court held (pp. 103-104), inter alia, that:
“The Court of Appeal notes that no request to hear Mr G. as a witness was made in the District Court although the documents relating to the plan to transfer moneys from the “bank group I.” had been presented at the hearings of 29 May and 10 June 1998 ... Also [the applicant] relied as written evidence on [some] documents drawn up by Mr G. without requesting that Mr G. be heard as a witness ...
The documents allegedly drawn up by Mr G. have not been drawn up for the purposes of the pending proceedings. The import of the documents can be assessed without hearing him as a witness. The question whether it is necessary to hear him as a witness depends solely on whether such a hearing could produce relevant new information. In assessing this question the Court of Appeal takes into account the fact that in the District Court Mr G. was not proposed as a witness and the fact that the parties in the Court of Appeal have been provided with an opportunity to put forward all their opinions concerning the content and reliability of the documents.
The Court of Appeal notes that the documents in question have been requested by the public prosecutor and the National Bureau of Investigation by sending letters rogatory to the Guernsey authorities. The Court of Appeal does not have any reason to suspect that the documents were drawn up by someone other than Mr G. ...
The documents clearly indicate that there has been a deliberate conspiracy to transfer the assets acquired from the sale of the “bank group I.” to companies established abroad and to invest the moneys. The transfer of assets has been conducted, as later explained in detail in chapter 6.2.2, by order of ... [the applicant]. The question of whether Mr G. himself thought that he was involved only in legal investment activities is therefore not relevant.
The documents drawn up by Mr G. are however relevant in assessing ... [the applicant’s] possible guilt of the offence of dishonesty as a debtor ... As becomes manifest in the reasons given in considering the charges, the Court of Appeal has however not decided the matter basing itself entirely on the documents in question. The court has instead assessed the value of the documents in an overall context, [in Finnish kokonaisyhteydessä] in which Mr G. cannot have anything relevant to say.
The Court of Appeal has heard witness S., as requested by [the applicant], about the events relating to the documents. The testimony of S., which in [the applicant’s] opinion proves the content of the discussions with Mr G., has thus been taken into account ... The Court of Appeal holds that the requirements of a fair trial do not require that Mr G. be heard as a witness either.”
The Court of Appeal also refused to hear, inter alia, a witness, A., proposed by the applicant, noting that A. had hardly any recollection of the relevant events when interrogated in the pre-trial investigations.
One of the items of evidence used by the Court of Appeal (pp. 178-179 of its judgment) was the pre-trial statement of a witness N., on which N.’s counsel had relied in the District Court. N. had been personally present in the District Court on three occasions but he had not been heard as a witness before his death on 21 April 1998. N. had testified to the police, inter alia, that a certain S. had asked him to act as a member of the board of directors of some companies owned by the applicant and his brother, to which he had agreed.
The Supreme Court proceedings
The applicant sought leave to appeal, inter alia, repeating his previous complaints.
On 5 December 2001 the Supreme Court (korkein oikeus, högsta domstolen) refused leave to appeal.
B. Relevant domestic law and practice
If an item of evidence that a party wishes to present pertains to a fact that is not material to the case or that has already been proved, or if the fact can be proved in another manner with considerably less inconvenience or cost, the court may refuse to admit it (Chapter 17, Article 7 (571/1948) of the Code of Judicial Procedure).
Chapter 17, Article 11 of the Code of Judicial Procedure, as in force at the relevant time, provided that a written statement drawn up for a pending or imminent trial, could not be used as evidence, unless specifically provided for by law or unless the court so decided for particular reasons.
Chapter 26, Article 7 of the Code of Judicial Procedure (as amended by Act no. 661/1978), as in force at the relevant time, provided that the Court of Appeal was to hold an oral hearing when necessary. Chapter 26, Article 8 (as amended by Act no. 661/1978), as in force at the relevant time, provided that the Court of Appeal could not change a lower court’s conviction based on the evaluation of evidence without holding an oral hearing, unless the case concerned an offence punishable by fines only or unless an oral hearing was manifestly unnecessary, in particular taking into account the defendant’s need for legal protection.
The provisions concerning the Court of Appeal’s duty to hold an oral hearing were amended (Act no. 165/1998) with effect from 1 May 1998. The new provisions did not apply to criminal proceedings which had commenced prior to the entry into force of the new Code of Criminal Procedure (laki oikeudenkäynnistä rikosasioissa, lagen om rättegång i brottmål; Act no. 689/1997; in force from 1 October 1997). The afore-mentioned former provisions applied therefore to the instant case. The new Chapter 26, Article 15 (Act no. 165/1998) provides that the Court of Appeal is to hold a hearing, regardless of whether one has been requested, if the decision in the matter turns on the credibility of the testimony received in the District Court or on new testimony to be received in the Court of Appeal. In this event, the evidence admitted by the District Court is to be readmitted in the principal hearing, unless there is an impediment to this.
COMPLAINTS
1. The applicant complained under Article 6 § 3(b) of the Convention that the Court of Appeal did not provide him with adequate time and facilities for the preparation of his defence. The time before the preparatory hearing, during which he had to check over 10,000 pages of District Court’s minutes and to prepare the examination of various witnesses, had been inadequate for the proper preparation of his defence. Because of the very long consecutive hearing days there had not been enough time to prepare for the next day’s hearing, with the result that the applicant and his counsel had become exhausted.
2. He also complained under Article 6 §§ 1 and 3(d) about the Court of Appeal’s refusal to hear Mr G. as a witness. This refusal had deprived him of his right to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him. Mr G.’s testimony had been of crucial importance as the documents allegedly drawn up by him had been decisive in leading the Court of Appeal to conclude that there had been an intentional plan or conspiracy to commit the offences. Mr G. had managed all those companies which had allegedly transferred assets abroad illegally and he could have provided crucial information as a witness. Nor had Mr G. been heard in the pre-trial investigations, which had made it impossible to verify the content of the documents allegedly drawn up by him. The refusal to hear Mr G. as a witness indicated that the court had pre-judged the question of his guilt, in violation of Article 6 §§ 1 and 2.
THE LAW
The applicant complained about violations of the rights of the defence in respect of the preparation of his case and in respect of witnesses.
He relied on Articles 6 §§ 1-2 and 3(b) and (d), which read in relevant part:
“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...
2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.
3. Everyone charged with a criminal offence has the following minimum rights:
...
(b) to have adequate time and facilities for the preparation of his defence;
...
(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. The rights of the defence in respect of preparation of the case
The parties’ submissions
The Government contested the allegation. When preparing the appeal documents, the replies to the other parties’ appeals and the further submissions, the applicant had had an opportunity to present all his arguments and to give detailed reasons for them. On 12 May 2000 the Court of Appeal had informed the parties of the preliminary timetable for the proceedings and on 30 June 2000 it had requested the parties to prepare for the hearing which was to begin on 13 November 2000. Thus, they had been informed of the need for a hearing for the first time six months beforehand and the date had been confirmed almost four and a half months in advance. Although the decisions as to which witnesses would testify had been given successively, those decisions had not been unpredictable. The applicant already had thorough knowledge of the charges and the evidence presented in the lower court. The principal hearing in the Court of Appeal had primarily constituted an assessment of whether the lower court’s judgment was correct. As there had been transcripts of the testimonies, the further questioning of witnesses had focused on unclear statements and details. The applicant had the same counsel in the District Court and in the Court of Appeal. Preparation for the proceedings in the Court of Appeal had also been made easier as the transcripts of the audio-tapes from the lower court had exceptionally been available and they had been annexed to the District Court’s minutes. In addition, the Court of Appeal had of its own motion drawn up a summary in order to facilitate the proceedings.
The Government submitted that the appellate court had received oral evidence from 22 witnesses, of whom only three were fresh witnesses. The court had been compelled to start the hearing of witnesses on Wednesday 8 November 2000, instead of Monday 13 November 2000 owing to obstacles faced by some of the persons to be heard. The hearing of witnesses had been carried out in an efficient manner by putting in-depth questions to them rather than inviting a repetition of their statements in the lower court. As the parties had put a great number of questions, the days spent in court had obviously been very long and the court had been compelled to hear the case on days which it had initially planned as reserve days. Although the hearing of the case had been very intensive, it could not be considered to have been an unreasonable burden for the applicant and his counsel. All parties had been in the same situation. The Government pointed out that the applicant had initially complained to the Court about the length of proceedings; had the hearing in the Court of Appeal been postponed, those proceedings would have lasted even longer.
While agreeing that the initial date of the hearing, 13 November 2000, had been confirmed on 30 June 2000, the applicant emphasised that its full scope had remained unclear until 3 November 2000. The applicant’s counsel had not been able to prepare for the hearing before that date as any work done might not have been reimbursed. In September 2000 they had been informed that the first hearing would be held on 8 November 2000. On 23 October 2000 the Court of Appeal had taken a decision on obtaining the testimony of certain witnesses. It had also informed the parties that it was going to issue a final decision at the preparatory hearing on 31 October 2000 as to the other witnesses who would testify. It had appended a summary transcript running to 28 pages of the oral testimonies before the lower court. On 27 October 2000 the Court of Appeal had decided which further witnesses would give oral testimony starting on 8 November 2000. The applicant and his counsel had received the complete witness list on Friday 3 November 2000, i.e. three working days before the initial hearing.
While agreeing that the case before the Court of Appeal had been familiar to him and his counsel, the applicant pointed out that the case had involved 47 days of hearings in the lower court, dozens of witnesses and 10,000 pages of documents. He contested the Government’s view that the questions to the witnesses in the Court of Appeal had focused only on their unclear testimonies as these had been altered in the higher court and there had also been fresh witnesses. The proceedings before the Court of Appeal had amounted to a totally new procedure conducted over nine days instead of 47. The applicant and his counsel had not been afforded enough time to prepare themselves for the questioning of the witnesses and the excessively strict timetabling had been exhausting for him and his counsel, impairing their mental and physical ability in court. He referred in this connection to Barberà, Messegué and Jabardo v. Spain (judgment of 6 December 1988, Series A no. 146, § 70). In addition, the summary transcript prepared by the Court of Appeal had been inaccurate, which counsel had noticed when she had spent 35 hours between 26 and 30 October 2000 checking it. Between 1 and 7 November 2000 counsel had spent almost 50 hours preparing for the hearing. The timetabling had also been too hectic and the hours spent in court too long and tiring. In addition, they had to prepare for the next day’s hearing. The presiding judge and the parties had fixed the time necessary for the closing arguments beforehand and that time had been strictly monitored. The closing arguments by the applicant’s counsel had taken two hours.
Lastly, the applicant questioned whether the court had not speeded up the proceedings in order to allow the presiding judge to go on holiday.
The Court’s assessment
As for the applicant’s argument that he and his counsel had been too exhausted to perform well during the hearings in the Court of Appeal, the Court notes that the present case can be distinguished from Barberà, Messegué and Jabardo v. Spain (cited above). In that case, in assessing the fairness of the proceedings as a whole the Court found a violation, inter alia, on account of the fact that the applicants had been transferred more than 600 kilometres in a prison van during the night before and the early hours of the day of the opening of the hearing, although the hearing had been due to start at 10.30 a.m. The Court considered that the applicants thus had to face a trial in a state which must have been one of lowered physical and mental resistance. This was very different from the situation in the present case.
The Court observes that the appellate court informed the parties of the provisional date for the hearing four to five months in advance. It indicated that the hearing would be conducted over three or four weeks and that the scope of the hearing would be specified at a later stage.
The facts of the case were obviously complex. It is also true that the case file was voluminous and that the witnesses were numerous. On the other hand, the case had already been heard by the District Court and the applicant had been represented by the same counsel. Consequently, they had become familiar with all the material and all the testimonies except for three used during the District Court proceedings. The same counsel had drawn up the applicant’s appeal documents and his replies to the other parties’ appeals and further written submissions.
In these circumstances, and having regard to the Court of Appeal’s responsibility for diligence in this case, which had been pending for over five years at the time of the impugned hearings, the Court considers that the facts of the case on this particular point do not disclose any appearance of a violation of Article 6 of the Convention.
It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
2. The rights of the defence in respect of witnesses
The parties’ submissions
The Government contested the allegations. They emphasised that not even the applicant had considered it indispensable to hear Mr G. as a witness; he had stated that it was not necessary to hear him if witness S.’s testimony were to be considered sufficient evidence of the content and significance of the memoranda allegedly drawn up by Mr G. He had not requested that Mr G. be heard during the pre-trial investigation or before the District Court although the documentary material related to the plan to transfer the funds had been presented to the District Court on 29 May and 10 June 1998. The control of some companies by the applicant and his brother had been unknown until the said documents had been obtained from the Guernsey authorities. The Court of Appeal extensively reasoned its decision not to hear Mr G. as a witness, finding that as the documents were normal written evidence and not drawn up for the purposes of the proceedings, they could be assessed on their own, without the need to obtain oral evidence from their author. The court thus assessed, within its discretionary power, the significance of the documents for the case and whether it was necessary or advisable to hear Mr G. as a witness. The court found that the documents had obviously been drawn up by Mr G. as nothing pointed to the contrary and it further stated that nothing in the parties’ submissions indicated any need to hear oral evidence from Mr G. The parties had been able to comment on the documents in question both with regard to their contents and their credibility. The court had taken account of witness S.’s testimony and had not considered it necessary to hear Mr G. in addition to S. in regard to the content and significance of Mr G.’s memoranda. Mr G.’s testimony would not have provided any new evidence influencing the matter, because the question whether Mr G. believed that he was involved in legal investment activities did not have any particular bearing on the outcome of the case.
The Government pointed out that the reasons provided in the Court of Appeal’s judgment described, inter alia, the oral presentation of evidence for the contacts between the applicant, his co-accused brother and Mr G. The judgment also set out how the court had assessed the applicant’s activity when it deemed him guilty of the offences. It also appeared from the judgment that hearing Mr G. in person was manifestly unnecessary because it would not have produced any new important evidence. The court closely scrutinised the transactions between the different companies controlled by the applicant and his brother. The documents drawn up by Mr G. had clarified matters but had not been decisive. The court had compared the documents with the transactions and had found them to be coherent.
The Government emphasised that the appellate court had regarded the documents drawn up by Mr G. as written evidence and assessed them as such. It had not decided on the relevant part of the case only on the basis of those documents but by assessing the documents within the case as a whole, taking into account other written evidence and the statements of witnesses S. and M.G. Thus, the fact that the documents in issue were admitted as evidence did not impair the fairness of the proceedings (see Pélissier and Sassi v. France [GC], no. 25444/94, § 47, ECHR 1999‑II). It was evident from the court’s reasoning that the documents drawn up by Mr G. had been used as evidence illustrating the transactions between different companies controlled by the applicant and his brother. The transactions had taken place and the applicant had been found guilty because of those transactions. Hearing Mr G. in person would not have altered that conclusion.
The applicant contested the Government’s view that he had considered that it was unnecessary to hear Mr G.; he had repeatedly requested the court to call him as a witness. He had pointed out that the District Court had convicted him principally on the basis of its interpretation of the memoranda allegedly drawn up by Mr G., which conclusion did not correspond to the testimony of S. The appellate court should have obtained oral evidence from Mr G. in order to establish the nature of the relationship between the applicant and Mr G. and whether there had been a criminal conspiracy or whether there had only been a legitimate plan to transfer funds to a legitimate off-shore structure.
The applicant submitted that in its decisions refusing to hear Mr G., the Court of Appeal had stated that it would provide reasons in the final judgment, implying that the court had known the reasons when it had made its decision not to hear Mr G. Had the applicant been provided with the reasons sooner, he would have been able to express his opinions on those reasons during the hearings. It appeared to the applicant that the court either had not known what Mr G. could have testified about or that it had decided that his testimony was irrelevant. What struck the applicant was the fact that the appellate court had arrived at the conclusion that Mr G. need not be heard as a witness before it had received any oral evidence or before any evidence had been discussed at the oral hearing. The applicant considered that the court’s behaviour suggested that it was pre-disposed to find him guilty in breach of the presumption of innocence.
The applicant contested the Government’s view that the memoranda had been drawn up by Mr G., arguing that it was possible that they had been drawn up by him or by some other person familiar with the off-shore structure that the applicant had discussed with Mr G. The applicant stated that “objectively the memoranda had been written by an anonymous person familiar with the matter” and “in order to verify the source of the memoranda it would have been indispensable to hear Mr G. as a witness”. Even more so, as they had contained erroneous information.
The Court’s assessment
The Court considers, in the light of the parties’ submissions, that the complaints raise serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring them inadmissible has been established.
For these reasons, the Court unanimously
Declares admissible, without prejudging the merits, the applicant’s complaints concerning the rights of the defence in respect of witnesses and the presumption of innocence;
Declares inadmissible the remainder of the application.
T.L. Early Nicolas Bratza
Registrar President