CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 12 octobre 1994

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                          AS TO THE ADMISSIBILITY OF                         Application No. 20593/92                       by Yoshio TANI                       against Finland         The European Commission of Human Rights (First Chamber) sitting in private on 12 October 1994, the following members being present:              MM.    A. WEITZEL, President                  C.L. ROZAKIS                  F. ERMACORA                  E. BUSUTTIL                  A.S. GÖZÜBÜYÜK            Mrs.   J. LIDDY            MM.    M.P. PELLONPÄÄ                  G.B. REFFI                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  E. KONSTANTINOV                  G. RESS              Mrs.   M.F. BUQUICCHIO, Secretary to the Chamber         Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;         Having regard to the application introduced on 16 July 1992 by Yoshio TANI against Finland and registered on 7 September 1992 under file No. 20593/92;         Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;         Having deliberated;         Decides as follows:   THE FACTS         The applicant is a Japanese citizen born in 1946 and currently serving a prison sentence in the Helsinki Central Prison. He is an engineer by profession. Before the Commission he is represented by Mr. Matti Nurmela, a lawyer practising in Helsinki.         On 10 October 1990 the District Court (kihlakunnanoikeus, häradsrätten) of Kirkkonummi convicted the applicant on two counts of murder, the second one in combination with aggravated robbery, as well as of having smuggled money out of Finland. The murders had been committed on 21 April 1990. The applicant was sentenced to life imprisonment.         In convicting the applicant the District Court took into account, inter alia, the following evidence. The corpse of one of the victims, E., had been found under a plastic cover in a forest. The applicant's wife had indicated the location of the corpse to the police. She had further indicated the location of 2,5 million FIM which had been hidden in her and the applicant's joint flat. On 22 April 1990 the applicant had reserved a flight ticket to Tokyo for 23 April 1990. On 23 April 1990 he had left for Tokyo, but had returned to Finland via Frankfurt (Germany) on 3 May 1990. On the same day he had been arrested as suspected of having murdered E. and K. Having been interrogated by the police on 4 and 5 May 1990, he had denied knowing anything about the murders. On 6 May 1990, however, he had alleged that the murders had been carried out by H. He had admitted to having hidden the corpses of E. and K. and having disposed of two bags of theirs. He had further admitted to having smuggled 2,5 million FIM out of Finland on 23 April 1990 and also to having hidden a further 2,5 million FIM in his and his wife's flat.         The District Court further heard four witnesses, who had been involved in E.'s business activities. They stated having received information by telephone that between 19 and 21 April 1990 E. had been in the process of concluding an agreement involving the purchase of a certain amount of gold at a price of 5 million FIM, using K. as his intermediary. E. had cashed a cheque for this amount. A further witness stated, in essence, that K. had been involved in business activities with the applicant for years. K. had told this witness that he was involved in a purchase of gold and that the applicant was appearing as the representative of the seller. E.'s cohabitee M. essentially stated before the District Court that she had been informed by E. that the seller of the gold was being represented by a Chinese or Japanese man.         The District Court further took into account the statement of witness P., who stated having met K. and having followed him to a car in order to meet the representative of the gold seller. P. had later confirmed that the representative had been the applicant.         The District Court also had regard to an opinion of the National Forensic Laboratory according to which the bullet found in K. and the two bullets found in E. had been shot with the same gun. The bullet found in the corpse of K. had corresponded to bullets in the applicant's possession.      The District Court finally noted that the applicant's wife had admitted to having assisted in the hiding of the corpses and to having seen an important sum of money which had been hidden in her and the applicant's flat.         The District Court's reasons for the applicant's conviction were, in essence, the following. The applicant had admitted to having been in his flat on the day of the murders. His and his wife's accounts of the hiding of the corpses had been consistent and thus had to be considered as reliable. The statements of the witnesses and M. had shown that the applicant had appeared as a representative of the seller of a considerable amount of gold, that K. and E. had believed in its existence and that they had, between 19 and 22 April 1990, intended to conclude an agreement with the applicant by using the 5 million FIM cashed by E. No evidence of the actual existence of the gold had been shown to the District Court. While the applicant had denied having appeared as a representative in the gold deal, this denial had not shown the witness accounts to be incorrect.         The District Court further observed that the applicant had admitted to having taken 5 million FIM out of a bag belonging to E. He had further admitted to having disposed of two bags as well as of the corpses of K. and E. After having denied any knowledge of the murders in interrogations on 3 and 4 May 1990 he had, on 6 May 1990, alleged that they had been carried out by H. The applicant had not presented any more specific information about H. Also for other reasons his story about H. had to be considered untruthful and could not be given any value as evidence. The District Court also observed that the applicant was familiar with the use of weapons.         According to the applicant, witness P. "identified" him in the office of a police officer in the course of the pre-trial investigation. During an interrogation of the applicant P. had been brought into the police officer's office and had been asked whether he had met the applicant during business negotiations preceding the murders. P. had answered in the affirmative.         On the applicant's appeal the Court of Appeal (hovioikeus, hovrätten) of Helsinki on 11 April 1991 essentially upheld his conviction and sentence.         On 21 February 1992 the Supreme Court (korkein oikeus, högsta domstolen) refused the applicant leave to appeal in respect of his conviction and sentence.         The applicant was assisted by counsel throughout the domestic proceedings.   COMPLAINT         The applicant complains that he was denied a fair trial due to witness P.'s "identification" of him in conditions which did not meet the requirements of a proper identification parade. The applicant ought to have been placed in a room together with others matching, at least to some extent, the description of the suspect as previously given to the police by P. P.'s "identification" is alleged to have largely formed the basis for the applicant's conviction. The applicant considers that he was thus convicted merely on circumstantial evidence. Allegedly, no forensic evidence was found which could have linked him to the offences of which he was convicted. Neither were the witness statements of such character they could directly prove his guilt. The applicant invokes Article 6 of the Convention.   THE LAW         The applicant complains that he was denied a fair trial, since his conviction was allegedly largely based on P.'s "identification" of him in conditions which did not meet the requirements of a proper identification parade. He invokes Article 6 (Art. 6) of the Convention the relevant parts of which read as follows:         "1.   In the determination of ... any criminal charge       against him, everyone is entitled to a fair ... hearing ...       by [a] ... tribunal established by 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;            ..."         The Commission recalls that under Article 26 (Art. 26) of the Convention it may only deal with an application provided the applicant has exhausted all effective domestic remedies. The applicant has not shown that he challenged the conditions in which P. identified him. However, even assuming that this point was raised by the applicant throughout the domestic proceedings, the application is nevertheless inadmissible for the following reasons.         The Commission recalls that it is normally not competent to deal with a complaint alleging that errors of law and fact have been committed by domestic courts. An exception could be made where the Commission considers that such errors might have involved a possible violation of any of the rights and freedoms set out in the Convention or one of its Protocols, for instance in that a judgment has no legal justification and thereby violates a party's right to receive a fair trial (cf. Eur. Court H.R., De Moor judgment of 23 June 1994, Series A no. 292-A, para. 55; No. 7987/77, Dec. 13.12.79, D.R. 18 pp. 31, 45). As a general rule, however, it is for the domestic courts to assess the evidence before them, in particular since they have the benefit of hearing witnesses and assessing their credibility (e.g. Eur. Court H.R., Lüdi judgment of 15 June 1992, Series A no. 238, p. 20, para. 43; Klaas judgment of 22 September 1993, Series A no. 269-A, pp. 17-18, paras. 29-30). The task of the Convention organs when considering a complaint under Article 6 (Art. 6) is to ascertain whether the proceedings, considered as a whole, including the way in which evidence was taken and submitted, were fair (e.g., the above-mentioned Lüdi judgment, loc.cit.).         As the requirements of Article 6 para. 3 (Art. 6-3) represent particular aspects of the right to a fair trial guaranteed in Article 6 para. 1 (Art. 6-1), the Commission has examined the application from the point of view of these two provisions taken together (e.g., the above-mentioned Lüdi judgment, loc.cit.).         In the present case the Commission observes that the applicant's conviction was based on an assessment of a significant amount of corroborative circumstantial evidence. In contrast with the applicant's assertion the Commission observes that the statement by witness P. in the course of the pre-trial investigation did not play any decisive role in the applicant's conviction. The material submitted to the Commission does not call the findings of the District Court and the courts of appeal into question. The Commission furthermore notes that the applicant was assisted by counsel throughout the domestic proceedings. It has not been alleged that the applicant was prevented from questioning witness P. in the proceedings before the District Court and, notably, as regards his identification of the applicant.         Having assessed all elements of the domestic proceedings, the Commission therefore concludes that the applicant was afforded a "fair trial" within the meaning of Article 6 (Art. 6) of the Convention. Accordingly, there is no appearance of a violation of that provision.         It follows that the application must be rejected as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.         For these reasons, the Commission, by a majority,         DECLARES THE APPLICATION INADMISSIBLE.   Secretary to the First Chamber         President of the First Chamber        (M.F. BUQUICCHIO)                        (A. WEITZEL)