CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 15 janvier 1998

.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. 30279/96                       by Heikki Johannes KÄRKKÄINEN                       against Finland           The European Commission of Human Rights (First Chamber) sitting in private on 15 January 1998, the following members being present:              MM     N. BRATZA, Acting President                  M.P. PELLONPÄÄ                  E. BUSUTTIL                  A. WEITZEL            Mrs    J. LIDDY            MM     L. LOUCAIDES                  B. MARXER                  B. CONFORTI                  I. BÉKÉS                  G. RESS                  A. PERENIC                  C. BÎRSAN                  K. HERNDL                  M. VILA AMIGÓ            Mrs    M. HION            Mr     R. NICOLINI              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 3 February 1996 by Heikki Johannes KÄRKKÄINEN against Finland and registered on 23 February 1996 under file No. 30279/96;         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 Finnish citizen, born in 1939. He resides in Helsinki. At the time of lodging the application he was serving his sentence in the Vilppula Prison. Before the Commission he is represented by Mr Sami Heikinheimo, a lawyer practising in Helsinki.         The facts of the case, as submitted by the applicant, may be summarised as follows.         In 1992 and 1993 police investigations commenced during which the applicant was charged with having assaulted his wife and of having sexually abused his daughter. The applicant denied the charges concerning alleged sexual abuse.         On 2 June 1993 the Helsinki District Court (käräjäoikeus, tingsrätt) convicted the applicant of the charges brought against him and sentenced him to seven years' imprisonment. The applicant appealed against the judgment to the Court of Appeal (hovioikeus, hovrätt) which upheld the District Court judgment on 3 September 1993. The Supreme Court (korkein oikeus, högsta domstolen) refused the applicant leave to appeal on 3 February 1994.         In March 1994 the applicant received information which in his opinion proved that other people had committed the crime of sexual abuse he had been convicted of. On 21 March 1994 the applicant reported this claim to the police and asked the police to investigate the case. It does not appear from the case file whether any investigations were conducted by the police.         In 1994 the applicant furthermore learned that new evidence in the form of certain new medical examinations could be available to prove his innocence for which reason he requested the Supreme Court on 26 January 1995 to reopen his case and to grant him legal aid in order to enable him to pay for the medical examinations or, in the alternative, to order the medical examinations at the court's own expense. He also maintained that a number of procedural errors had been committed during the criminal trial, in particular in respect of the investigation of his daughter and in respect of the impartiality of the participating medical experts.         On 3 August 1995 the Supreme Court rejected his request stating that the grounds submitted did not suffice to reopen the case. His request for legal aid was rejected as he was found to have sufficient means to meet the possible expenses.     COMPLAINTS   1.     As regards the proceedings which ended in 1994 the applicant complains, under Article 6 para. 2 of the Convention, that he was not presumed innocent as all the persons involved in the proceedings assumed him to be guilty even before they had started to investigate the case.   2.     The applicant furthermore complains that the police did not commence an investigation following his report of alleged crimes. He invokes in this respect Article 6 of the Convention.3.       The applicant also complains that he was denied access to court as he had learned about the new evidence only after his conviction whereas the Supreme Court nevertheless rejected his claim to reopen his case. He also relies on Article 6 of the Convention in respect of this part of the application.   4.     Finally, the applicant complains of the fact that the Supreme Court did not order the medical examinations to be carried out under a grant of legal aid.     THE LAW   1.     The applicant complains that he was not presumed innocent in the criminal proceedings which ended in 1994 as the persons involved in the proceedings allegedly assumed him to be guilty already before they had started to investigate the case. The applicant invokes Article 6 para. 2 (Art. 6-2) of the Convention which reads as follows:         "2. Everyone charged with a criminal offence shall be presumed       innocent until proved guilty according to law."         The Commission notes that this complaint concerns the original criminal proceedings in 1993-1994 and the police investigations prior to that. However, the Commission is not required to decide whether or not the facts alleged by the applicant disclose any appearance of a violation of the above provision, as Article 26 (Art. 26) of the Convention provides that the Commission "may only deal with the matter ... within a period of six months from the date on which the final decision was taken".         In the present case the decision of the Supreme Court, which was the final decision regarding the subject of this particular complaint, was given on 3 February 1994, whereas the application was submitted to the Commission on 3 February 1996, that is, more than six months after the decision. Furthermore, an examination of the case does not disclose the existence of any special circumstances which might have interrupted or suspended the running of that period.         It follows that this part of the application has been introduced out of time and must be rejected under Article 27 para. 3 (Art. 27-3) of the Convention.   2.     The applicant complains that the police did not investigate the alleged crime he had reported and refers in this respect to Article 6 (Art. 6) of the Convention.         The Commission recalls that the Convention does not guarantee a right to have criminal proceedings instituted against third persons. Furthermore, the applicant's request to that effect did not involve a determination of his civil rights (cf. for example No. 29785/96, Dec. 4.9.96, D.R. 88-A, p. 163, see also No. 7116/75, Dec. 4.10.76, D.R. 7, p. 91).         It follows that this part of the application is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 27 para. 2 (Art. 27-2).   3.     The applicant claims that he was denied access to court as he could not have his case reopened in the Supreme Court after he had learned about new evidence. He invokes Article 6 (Art. 6) of the Convention which reads as follows:         "1.   In the determination ... of any criminal charge against       him, everyone is entitled to a fair ... hearing ..."         The Commission recalls, however, that according to established case-law, Article 6 (Art. 6) of the Convention does not apply to proceedings for reopening a trial given that someone who applies for his case to be reopened and whose sentence has become final, is not someone "charged with a criminal offence" within the meaning of the said Article (cf. for example No. 7761/77, Dec. 8.5.78, D.R. 14, p. 171).         This part of the application must therefore be rejected as being incompatible ratione materiae with the provisions of the Convention within the meaning of Article 27 para. 2 (Art. 27-2).   4.     The applicant finally complains that he was denied free legal assistance as the Supreme Court did not order the medical examinations to be carried out and to be paid by legal aid. He invokes Article 6 para. 3 (c) (Art. 6-3-c) of the Convention.         The Commission notes, however, that the applicant has not been charged with a criminal offence, as the case concerns reopening of a previous judgment which is already final. As Article 6 (Art. 6) does not apply to this case as mentioned above, this part of the application must also be rejected as being incompatible ratione materiae with the provisions of the Convention within the meaning of Article 27 para. 2 (Art. 27-2).         For these reasons, the Commission, unanimously,         DECLARES THE APPLICATION INADMISSIBLE.           M.F. BUQUICCHIO                             N. BRATZA          Secretary                             Acting President    to the First Chamber                      of the First Chamber