8.
The Human Rights Committee, acting
under article 5, paragraph 4, of the Optional
Protocol to the International Covenant on Civil
and Political Rights, is of the view that the
facts before it reveal a violation of article 14,
paragraph 1, of the Covenant.
the author’s case, his demand for an oral hearing
may be considered justified in the light of
article 14 of the Covenant.
Examination of the merits
7.1
The Committee is called upon to
determine whether the disqualification of lay
judge V. S. and his alleged disruption of the
testimony of the author’s wife influenced the
evaluation of evidence by, and the verdict of, the
Rääkkyla District Court, in a way contrary to
article 14, and whether the author was denied a
fair trial on account of the Court of Appeal’s
refusal to grant the author’s request for an oral
hearing. As the two questions are closely related,
the Committee will address them jointly. The
Committee expresses its appreciation for the
State party’s frank cooperation in the
consideration of the author’s case.
9.
In accordance with the provisions of
article 2 of the Covenant, the State party is under
an obligation to provide the author with an
effective remedy for the violation suffered.
10.
The Committee would wish to receive
from the State party, within 90 days, information
about any measures adopted by the State party in
respect of the Committee’s Views.
APPENDIX
Individual opinion submitted by Mr. Bertil
Wennergren,
pursuant to rule 94, paragraph 3, of the Committee’s
rules of procedure,
concerning the Views of the Committee on
communication No. 387/1989,
Arvo O. Karttunen v. Finland
7.2
The impartiality of the court and the
publicity of proceedings are important aspects of
the right to a fair trial within the meaning of
article 14, paragraph 1. “Impartiality” of the
court implies that judges must not harbour
preconceptions about the matter put before them,
and that they must not act in ways that promote
the interests of one of the parties. Where the
grounds for disqualification of a judge are laid
down by law, it is incumbent upon the court to
consider ex officio these grounds and to replace
members of the court falling under the
disqualification criteria. A trial flawed by the
participation of a judge who, under domestic
statutes, should have been disqualified cannot
normally be considered to be fair or impartial
within the meaning of article 14.
Mine is not a dissenting opinion; I merely
want to clarify my view on the Committee’s reasoning
in this case. Mr. Karttunen’s case concerns procedural
requirements before an appellate court in criminal
proceedings. The relevant provisions of the Covenant
are laid out in article 14, firstly the general
requirements for fair proceedings in paragraph 1,
secondly the special guarantees in paragraph 3.
Paragraph 1 applies to all stages of the judicial
proceedings, be they before the court of first instance,
the court of appeal, the Supreme Court, a general court
of law or a special court. Paragraph 3 applies only to
criminal proceedings and primarily to proceedings at
first instance. The Committee’s jurisprudence,
however, has found the requirements of paragraph 3 to
be also applicable to review and appellate procedures
in criminal cases, i.e. the rights to have adequate time
and facilities for the preparation of the defence and to
communicate with counsel of one’s own choosing
(art. 14, para. 3(b)), to be tried without undue delay
(art. 14, para. 3(c)), to have legal assistance assigned
in any case where the interests of justice so require
and without payment by the accused if he does not
have sufficient means to pay for it (art. 14, para. 3(d)),
to have free assistance of an interpreter if the accused
cannot understand or speak the language used in court
(art. 14, para. 3(f)), and finally the right not to be
compelled to testify against himself or to confess guilt
(art. 14, para. 3(g)). That all these provisions should,
mutatis mutandis, also apply to review procedures is
only normal, as they are emanations of a fair trial,
which in general terms is required under article 14,
paragraph 1.
7.3
It is possible for appellate instances to
correct the irregularities of proceedings before
lower court instances. In the present case, the
Court of Appeal considered, on the basis of the
written evidence, that the District Court’s verdict
had not been influenced by the presence of lay
judge V. S., while admitting that V. S. manifestly
should have been disqualified. The Committee
considers that the author was entitled to oral
proceedings before the Court of Appeal. As the
State party itself concedes, only this procedure
would have enabled the Court to proceed with
the re-evaluation of all the evidence submitted by
the parties, and to determine whether the
procedural flaw had indeed affected the verdict
of the District Court. In the light of the above, the
Committee concludes that there has been a
violation of article 14, paragraph 1.
111
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