CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 27 novembre 1996

.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. 21909/93                       by I.J. (subsequently E.J. and A.M.)                       against Finland           The European Commission of Human Rights (First Chamber) sitting in private on 27 November 1996, the following members being present:              Mrs.   J. LIDDY, President            MM.    M.P. PELLONPÄÄ                  E. BUSUTTIL                  A. WEITZEL                  L. LOUCAIDES                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  G. RESS                  A. PERENIC                  C. BÎRSAN                  K. HERNDL                  M. VILA AMIGÓ              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 2 April 1993 by I.J. and subsequently E.J. and A.M. against Finland and registered on 24 May 1993 under file No. 21909/93;         Having regard to the reports provided for in Rule 47 of the Rules of Procedure of the Commission;         Having regard to the observations submitted by the respondent Government on 16 November 1995 and the observations in reply submitted by the applicant on 16 January 1996;         Having deliberated;         Decides as follows:   THE FACTS         The original applicant, Mr. I.J., was a Finnish citizen, born in 1943. He was serving a prison sentence in the Central Prison of Helsinki up to 3 November 1995, when he died. His wife, Mrs. E.J., and his sister, Ms. A.M., have expressed their wish to pursue the application on his behalf. They are also Finnish citizens, born in 1934 and 1935, respectively, and resident in Helsinki. Before the Commission they are represented by Mr. Markku Fredman, a lawyer in Helsinki.         The facts of the case, as submitted by the parties, may be summarised as follows.   A.     Particular circumstances of the case         In January 1991 I.J. was arrested and detained on remand on suspicion of having murdered his then wife on 18 August 1980. V, a member of the Finnish Bar, was appointed his counsel pursuant to the 1973 Act on Cost-Free Court Proceedings (laki maksuttomasta oikeudenkäynnistä, lag om fri rättegång 87/73).         During an interrogation in February 1991 relating to the suspected murder in 1980 I.J. confessed to having committed arson on 25 September 1986. One person had died as a result. During a further interrogation on 26 February 1991 he confessed to having committed a second count of arson on 25 September 1986. Two days later he confessed to having committed a third count of arson on 12 July 1986. Two persons had died as a result.         On 4 March 1991 I.J. confessed to having committed a fourth count of arson on 24 November 1988. One person had died as a result. Six days later he confessed to having committed a fifth count of arson on 29 April 1989.         None of the counts of arson to which I.J. confessed had been under investigation by the police at the time of the first interrogations relating to the suspected murder in 1980. The fires had been registered as accidental.         It transpires from the various records of the police interrogations that I.J. was informed both of his position as a suspect and of the offences in question. He was also informed of his right to request an interrogation witness as well as of his right to be assisted by a lawyer. The interrogations took place between 8.30 and 21.40 and lasted three hours at the most. However, as for two interrogations there is no indication when they ended.         I.J. was charged with, inter alia, murder on 18 August 1980, arson and two counts of murder committed on 12 July 1986, two counts of arson and one count of murder committed on 25 September 1986, arson and murder committed on 24 November 1988 and arson committed on 29 April 1989. He was able to meet his counsel in private before the respective charges against him were presented to the City Court (raastuvanoikeus, rådstuvurätten) of Helsinki.         At a hearing before the City Court on 18 April 1991 I.J. denied all charges. He had allegedly invented his confessions in order to be released from his detention on remand in the Pasila Police Headquarters, where his conditions had been difficult. He alleged that the interrogating officer T had tempted him to confess, allegedly promising that he "would [then] be able to go home to his wife". (I.J. had remarried in 1989.)      On 26 April 1991 I.J. was again interrogated, now in the Helsinki Central Prison, where he had been transferred. He then described how, on 12 July 1986, he had set the relevant house on fire. On 27 April 1991 he described the events on 12 July 1986 in further detail. Having come to consult with I.J., his counsel attended the end of this interrogation. On counsel's arrival I.J. made the following statement (as reproduced in pre-trial record no. 3439/91, first supplementary investigation):         (translation from Finnish)         "Having read [his statement, as reproduced by the       interrogating officer], [I.J.] stated for the record that       he does not himself believe that he has acted in the manner       described by him during the interrogation. [He] continued       ...: "I should be crazy, if I have acted like this".         At a hearing before the City Court on 2 May 1991 I.J. withdrew his confessions of 26 and 27 April 1991 in respect of the suspected arson and murder committed on 12 July 1986, again stating that he had invented them in order to be released from his detention on remand. For the same reason, he also withdrew his confession in respect of the suspected arson and murder committed on 24 November 1988. On that very day he had allegedly been undergoing treatment in an institution for the rehabilitation of alcoholics at Tervalampi.         During interrogations on 8, 9 and 10 May 1991 I.J. confessed to having been at the scene of the suspected arson and murder on 24 November 1988. However, before the City Court on 16 May 1991 he withdrew these confessions.         During a further interrogation on 11 June 1991 I.J. again confessed to having been at the scene of the suspected arson and murder on 24 November 1988. At a subsequent hearing before the City Court he was questioned about the genuine character of this statement. He then submitted that "he had been moved back and forth during the investigations" and that "he had been interrogated for several days with the intention of making him irritated and confused".         I.J.'s withdrawal of his confession relating to the offences committed on 24 November 1988 made the prosecution order that a further interrogation be conducted by a different police officer. It is the Government's interpretation of the interrogation record that I.J. then confessed to having absented himself from the premises at Tervalampi on that day.         Out of a total of 34 interrogations effectuated either at the pre-trial stage or in the course of the proceedings before the City Court I.J.'s counsel attended only one in part (on 26 April 1991; see above). It appears that officer T. conducted 32 of the interrogations and another officer the remaining two (on 13 and 18 March 1991). Four interrogations were recorded on audio tape (those of 14 and 28 February 1991 as well as of 8 and 9 May 1991). Four further interrogations were attended throughout by an interrogation witness, this being another police officer (those of 6 March 1991, the two interrogations held on 27 April 1991 and the one held on 11 June 1991). On four further occasions a similar interrogation witness was present either when I.J. signed his statements as reproduced by T. in writing or when I.J. approved statements recorded by dictaphone either as they had been played back to him or transcribed (on 21 January and on 8, 9 and 10 May 1991). To the extent that interrogations were audiotaped they were reproduced in the pre-trial record. None of the pre-trial interrogations were recorded on video tape.        According to the Government, the tapes of the recorded four interrogations were handed in to the City Court by the Public Prosecutor. Assuming that the Government's statement is correct, it is submitted on behalf of I.J. that the tapes must have been handed in without his counsel's knowledge.         A number of persons (such as owners of houses in the vicinity) were heard as witnesses before the City Court in relation to the charges against the applicant concerning arson and murder. None of these appear to have been eye witnesses.         The City Court also heard interrogating officer T, the officer in charge of the technical investigations on the scenes of the crime and an official of the Forensic Laboratory of the Central Criminal Police. It also had regard to various other items of forensic evidence presented by the prosecution in the form of written expert opinions.         According to the Government, experts in forensic medicine, odontology, clinical matters, gynaecology, meteorology were heard not only during the pre-trial investigation but also before the City Court.         On 6 February 1992 the City Court found I.J. guilty of manslaughter committed on 18 August 1980 as well on all counts of arson and murder. As regards those counts, the City Court had regard to his statements during the pre-trial investigation. In so far as he had changed his statements before the City Court, it found that he "had not shown any plausible reasons" for doing so. It noted that his statements in the pre-trial interrogations had been "detailed and consistent". "The further material" presented to the Court also supported those statements.         I.J. was sentenced to lifetime imprisonment. He appealed, arguing in essence that he had been found guilty of arson and murder solely on the basis of his confessions during the pre-trial investigation and which he had later withdrawn. He referred, inter alia, to the interrogation technique used and recalled that his counsel had not been informed of any of the interrogations. Moreover, no evidence had shown that, on 24 November 1988, he had been absent from the premises at Tervalampi where he had been staying at the time.         On 9 July 1992 the Court of Appeal (hovioikeus, hovrätten) of Helsinki upheld I.J.'s conviction and sentence concerning the counts of arson and murder. No further oral hearing was held.         I.J. requested leave to appeal to the Supreme Court (korkein oikeus, högsta domstolen) so as to enable it to consider, inter alia, what weight was to be placed on a statement allegedly made after a suspect had been led to confess and which he had later withdrawn. He also challenged the City Court's meagre reasoning as upheld by the Court of Appeal. On 8 October 1992 the Supreme Court refused leave to appeal.   B.     Relevant domestic law         1.    The pre-trial investigation         According to the Pre-Trial Investigation Act (esitutkintalaki, förundersökningslag 449/87) of Finland, circumstances and evidence speaking either against or in favour of a suspect shall be ascertained and taken into consideration (section 7). A suspect is in principle entitled to be assisted by counsel. If the suspect has been deprived of his or her liberty, he or she is in principle also entitled to be in contact with counsel in private either through consultations or by telephone or correspondence. Exceptionally, consultations may be surveilled. Such consultations or telephone conversations shall not be listened to, unless there is a justified reason for suspecting abuse. The same is true for correspondence between the remand prisoner and his or her counsel (section 10 with further references).         Before being questioned everyone shall be notified of his or her position in the investigation (section 22) as well as of his or her right to request the presence of an impartial witness within the meaning of chapter 17, section 43 of the Code of Judicial Procedure (Oikeudenkäymiskaari, Rättegångs Balk). If such a request would delay the questioning and thereby jeopardise the investigation, the questioning shall nevertheless take place in the absence of a witness. The interrogating officer may also summon a witness on his or her own initiative (section 30).         If the person is to be questioned as a suspect he or she shall also be informed of his or her right to be assisted by counsel (section 29). Counsel is entitled to be present during any questioning, unless the officer in charge of the investigation prohibits this for important reasons related to the investigation (section 31). If counsel is not allowed to be present, he or she shall later be afforded a possibility of finding out what transpired during the questioning and to put relating questions as soon as this would not hamper the investigation. According to the 1988 Decree on Pre-Trial Investigation and Coercive Means (asetus esitutkinnasta ja pakkokeinoista, förordning om förundersökning och tvångsmedel 575/88), any refusal of a request for counsel to be present shall be recorded together with the reasons therefor and the subsequent informing of counsel concerning his or her possibility of obtaining information and putting questions (section 16).         A person shall be questioned in a calm and objective manner. Knowingly false or deceiving statements or promises concerning particular benefits shall not be used in order to obtain a confession or a statement leading in a certain direction. The same is true for exhaustion, threats, coercive means or other improper methods or approaches that would influence the freedom of choice, willpower, memory or judgment of the person being questioned. No one shall be questioned between 21.00 hrs and 06.00 hrs without special cause (section 24).         A record shall be kept of any questioning. A statement recorded in writing shall be read out immediately after the questioning; the record shall be shown; and the questioned person be asked whether his or her statement has been properly recorded. Corrections or additions shall in principle be made on request. Any refused request shall also be recorded. A statement may also be recorded on audio or video tape provided the person to be questioned is informed thereof beforehand. The questioned person shall then be entitled to modify or supplement his or her statement after a playback of the recorded statement. If the investigating officer reproduces the statement in an edited form by using a dictaphone, the questioned person shall have the right either to modify this reproduction either after a playback of the recording or after having been shown the transcript thereof (section 39 with further reference).         2.    Cost-free proceedings and official counsel         According to the 1973 Act, cost-free proceedings can be granted already during a pre-trial investigation (section 1). A person granted such proceedings is entitled to have an official counsel appointed if he or she would be unable properly to assert his or her rights alone (section 10).     3.    The courts' free evaluation of evidence         According to the Code of Judicial Procedure, the court shall decide what is to be regarded as the truth in a case after having carefully considered all the evidence adduced. If the effect of the presentation of certain evidence is governed by lex specialis, such legislation shall be applied (chapter 17, section 2). A judgment shall be based on reasons and law and not on arbitrariness. The main reasons and the legal provisions on which it is based shall be mentioned in a clear manner (chapter 24, section 3).     COMPLAINTS         I.J. complained that the criminal proceedings leading to his lifetime imprisonment were not "fair" within the meaning of Article 6 of the Convention and furthermore violated his right under Article 6 para. 2 to be presumed innocent until proved guilty according to law. He alleged, in particular, that he was convicted solely on the basis of confessions which he had invented in order to be released from his detention on remand, having been tempted to do so by the interrogating police officer, T. Neither his counsel nor a witness had attended the crucial interrogations. In the exceptional circumstances his confessions should at least have been recorded on audio and/or video tape. It would also have been appropriate to alternate his interrogators so as to ensure the objective character of the pre-trial investigation. Finally, the reasons advanced by the courts in support of I.J.'s conviction were insufficient, as the City Court in no way specified the "further material" which it considered supported his confessions.     PROCEEDINGS BEFORE THE COMMISSION         The application was introduced on 2 April 1993 and registered on 24 May 1993.         On 6 September 1995 the Commission (First Chamber) decided to communicate the application to the respondent Government, pursuant to Rule 48 para. 2 (b) of the Rules of Procedure.         On 16 November 1995 I.J.'s representative informed the Secretariat that his client had died on 3 November 1995 but that his wife and sister wished that the examination of the application be continued in accordance with I.J.'s own wish.         The Government's written observations were submitted on 16 November 1995. I.J.'s representative replied on 16 January 1996.     THE LAW   1.     I.J. complained that the criminal proceedings leading to his lifetime imprisonment were not "fair" within the meaning of Article 6 of the Convention and furthermore violated his right under Article 6 para. 2 (Art. 6-2) to be presumed innocent until proved guilty according to law. Following his death his wife and sister have requested that the Commission pursue its examination of the application in accordance with his own wish.         The Commission recalls that close relatives of a deceased applicant are in principle entitled to take his or her place in the proceedings before the Convention organs (see, e.g., Eur. Court HR, Scherer v. Switzerland judgment of 25 March 1994, Series A no. 287, pp. 14-15, paras. 31-32 with further references; No. 25758/94, Dec. 7.3.96). In the circumstances of the present case the Commission therefore accepts that I.J.'s wife and sister may pursue the application on his behalf. Hereinafter they will be referred to as "the applicants".   2.     The applicants complain that the criminal proceedings leading to I.J.'s conviction of arson and murder were not "fair" within the meaning of Article 6 (Art. 6) of the Convention which reads, in so far as relevant, as follows:         "1.   In the determination of ... any criminal charge       against him, everyone is entitled to a fair ... hearing ...       by [a] tribunal. ...         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;              c.     to defend himself in person or through legal       assistance of his own choosing or, if he has not sufficient       means to pay for legal assistance, to be given it free when       the interests of justice so require; ..."         The Government principally submit that "at least [the] main part" of the application should be declared inadmissible for non-exhaustion of domestic remedies, given that I.J. did not afford the domestic courts with an opportunity to address all the various points raised in his application to the Commission.         Alternatively, the Government submit that the application is manifestly ill-founded. I.J. was interrogated in conformity with the Pre-Trial Investigation Act. He was informed by the police of his position as a suspect; of the crimes under investigation; of his right to request the presence of an interrogation witness; and of his right to be assisted by counsel. He was afforded a counsel pursuant to the Act on Cost-Free Proceedings. He was able to meet in private with counsel whenever he so requested. He did not, however, request that a witness or his counsel be present during any of the police interrogations. Nor did he express any wish to have police officer T replaced by another investigator. His statements did not vary as a result of his counsel or a witness attending a certain interrogation. Finally, by his own signature he approved his statements as reproduced by the investigating officer.         As regards the reasons advanced in support of I.J.'s conviction, the Government recall that domestic law empowered the City Court freely to assess all evidence, including that which had been adduced by counsel on behalf of the defence. In convicting I.J. the courts did not rely solely on the pre-trial investigation records. For instance, during a total of 17 hearings the City Court heard a significant number of witnesses and experts who had previously been heard during the pre- trial investigation. The further evidence to which the City Court referred in convicting I.J. appear in the trial records.         The applicants maintain that domestic remedies have been exhausted and Article 6 (Art. 6) violated. They agree that I.J. and counsel V were not prevented from consulting in private. However, I.J. did not understand that he could have requested to be assisted by counsel during the interrogations, nor could he understand the effects of the confessions which he invented so as to be released from his detention on remand. Under domestic law counsel was entitled to attend the interrogations. In spite of the exceptionally heinous offences at issue and the circumstances surrounding I.J.'s confessions the police failed to ensure sufficient audio- and/or videotaping of his statements or the presence of a witness. This would have enabled a subsequent verification of the genuine character of his confessions. Most of I.J.'s statements were simply edited by the same officer T. In such circumstances counsel should at least have been notified of the interrogations so as to be able to assess whether his presence could have served I.J.'s interests. Counsel effectively had to rely on such notifications, as he could not foresee the date and hour of the interrogations. In sum, the police allegedly failed to respect the objectivity rule prescribed by the Pre-Trial Investigation Act.         The applicants finally contend that it was not possible for I.J. himself to deduce from the court decisions on what evidence his conviction had been based apart from his confessions.         The Commission recalls that under Article 26 (Art. 26) of the Convention it may only deal with an application after all domestic remedies have been exhausted, according to the generally recognised rules of international law. In the present case, however, it need not, for the reasons stated below, determine whether this condition has been complied with.   3.     The Commission has first examined whether the proceedings at issue were "fair" within the meaning of Article 6 para. 1 of the Convention read in conjunction with paras. 3 (b) and (c) (Art. 6-1+6-3-b+6-3-c) (cf., e.g., Eur. Court HR, Lüdi v. Switzerland judgment of 15 June 1992, Series A no. 238, p. 20, para. 43). It recalls that Article 6 para. 3 (c) (Art. 6-3-c) gives the accused the right to assistance and support by a lawyer throughout the proceedings. To curtail this right during the pre-trial investigation may influence the material position of the defence at the trial and therefore also the outcome of the proceedings (see Eur. Court HR, Artico v. Italy judgment of 13 May 1980, Series A no. 37, p. 16, para. 33). The manner in which Article 6 paras. 1 as well as 3 (b) and (c) (Art. 6-1, 6-3-b, 6-3-c) are to be applied as far as concerns the preliminary investigation depends on the special features of the case. In order to determine whether the aim of Article 6 (Art. 6) - a fair trial - has been achieved, regard must be had to the domestic proceedings as a whole (cf. Eur. Court HR, Imbrioscia v. Switzerland judgment of 24 November 1993, Series A no. 275, pp. 13-14, paras. 36- 38).         It has not been alleged that during his detention on remand I.J. was prevented from freely communicating with his counsel. It is undisputed, however, that the police did not inform counsel in advance of any of the interrogations with I.J. and that most of the interrogations were conducted in the absence of a witness. On the other hand, the Commission finds no indication that I.J., though informed of his rights in this respect, ever requested the presence of counsel or a witness during any of the interrogations. Nor has it been shown that counsel himself informed the police of his wish to be present during the interrogations or at least of his wish that he be given advance notice of any interrogation. Finally, there is no indication of any refusal of a request for counsel to be present during the interrogations.         In so far as the complaint concerns the basis for I.J.'s conviction, the Commission recalls that as a general rule 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 (see, e.g., Eur. Court HR, Klaas v. Germany judgment of 22 September 1993, Series A no. 269-A, pp. 17-18, paras. 29-30). It follows that the Commission cannot examine whether or not I.J. was guilty or innocent of the offences of which he was convicted.         Contrary to the Government's assertion concerning the facts of the case the Commission observes that, as far as concerns the charges against I.J. concerning the various counts of arson and murder, the City Court obtained no oral testimony from experts within the meaning of Finnish law. It did hear various witnesses, including officials involved in the pretrial investigation. The applicant was assisted by counsel V throughout the domestic court proceedings and it has not been shown that counsel was in any way prevented from adducing evidence supporting the defence. Finally, the Commission notes that I.J.'s conviction was not based merely on his confessions during the police interrogations. It has not been shown that as a legal professional V was unable to comprehend the reasons underlying I.J.'s conviction, including the various corroborative evidence adduced by the prosecution, and to advise him accordingly.         In these particular circumstances and assessing the proceedings as a whole, the Commission finds no appearance of a violation of Article 6 para. 1 read in conjunction with paras. 3 (b) and (c) (Art. 6-1+6-3-b+6-3-c).         It follows that this complaint must be rejected as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   4.     The applicants have also complained that the criminal proceedings against I.J. violated his right under Article 6 para. 2 (Art. 6-2) of the Convention to be presumed innocent until proved guilty according to law.         The Commission notes that the applicants have not provided any substantiation of this complaint. Having regard to its considerations above, it considers therefore that no separate issue arises in respect of Article 6 para. 2 (Art. 6-2).         It follows that this complaint must also 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.     M.F. BUQUICCHIO                                  J. LIDDY      Secretary                                     President to the First Chamber                         of the First Chamber