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
Full & Egal Universal Law Academy