AS TO THE ADMISSIBILITY OF
Application No. 26315/95
by Janne KOSONEN
against Finland
The European Commission of Human Rights (First Chamber) sitting
in private on 9 April 1997, the following members being present:
Mrs. J. LIDDY, President
MM. M.P. PELLONPÄÄ
E. BUSUTTIL
A. WEITZEL
C.L. ROZAKIS
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 4 October 1994 by
Janne KOSONEN against Finland and registered on 26 January 1995 under
file No. 26315/95;
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 1972 and currently
serving a prison sentence at Kerava. He is represented by
Mr Veikko Lehtevä, a lawyer practising in Helsinki.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
The applicant and K were charged with, inter alia, manslaughter
of W, committed on 13 or 14 July 1993. The defendants were suspected
of having stabbed W to death with a knife. The applicant denied the
charges, claiming that he had acted in legitimate self-defence.
On 2 September 1993 the Vantaa District Court (kihlakunnanoikeus,
häradsrätten) convicted the applicant of manslaughter committed in
excessive self-defence. He was also convicted of certain other offences
and sentenced to a total of five years' imprisonment. K was acquitted.
The applicant, the public prosecutor and one of the complainants
appealed. The applicant also requested to be remanded for a complete
mental examination. The Court of Appeal obtained a written opinion from
a physician of the prison where the applicant was detained on remand.
According to the opinion, a mental examination was at least partially
justified.
On 2 December 1993 the Helsinki Court of Appeal (hovioikeus,
hovrätten) held a re-hearing of the case, limited to the offence
committed on 13 or 14 July 1993. It heard the applicant and K as
defendants, their respective counsel, the public prosecutor and counsel
of the appealing complainant. At the close of the hearing the parties
were informed that a separate record thereof would be drawn up.
On 7 December 1993 the applicant's counsel requested the hearing
record and received a copy thereof. This did not include any
transcripts of the parties' oral statements. Instead the record
indicated that those statements had been audiotaped. Counsel was
informed that he was free to listen to the tapes on the Court of
Appeal's premises.
By judgment of 21 December 1993 the Court of Appeal refused to
remand the applicant for a mental examination and convicted him of
manslaughter. It found, among other things, that at its hearing he had
partially amended his version of the events immediately preceding W's
death. The applicant's other convictions were upheld and he was
sentenced to a total of ten years' imprisonment.
The applicant requested leave to appeal and appealed to the
Supreme Court (korkein oikeus, högsta domstolen). (Under Finnish law
the appeal must be made already in connection with the request for
leave to appeal.) The applicant considered, inter alia, that in the
light of the Court of Appeal's findings which were based on the oral
statements made at its hearing he should have been given a complete
record of that hearing. Leave to appeal was refused on 7 April 1994.
The applicant was in detention on remand throughout the
proceedings but was represented by court-appointed counsel (his present
counsel before the Commission). Referring to fresh medical evidence,
he later requested that the Supreme Court reopen the proceedings. On
12 January 1996 the Supreme Court rejected this request.
COMPLAINTS
1. The applicant complains about the Court of Appeal's failure to
produce a complete record of its hearing. The Court of Appeal quashed
his conviction and sentence due to the discrepancies which it had found
between his statements at that hearing and those previously made. In
these circumstances the fact that counsel was unable to rely on
transcriptions of the oral statements to the Court of Appeal in the
applicant's request for leave to appeal and his appeal to the Supreme
Court hampered the defence and his right to a fair hearing. He invokes
Article 6 para. 3 (a) of the Convention read in conjunction with
Article 6 para. 1.
2. The applicant furthermore complains about the failure of the
Court of Appeal and the Supreme Court to remand him for a complete
mental examination. Had that been done and had he been considered not
to have been in possession of his full senses at the time of the
manslaughter, he would most likely have received a more lenient
sentence. He invokes Article 3 of the Convention, read in conjunction
with Article 6 para. 1.
THE LAW
1. The applicant complains about the Court of Appeal's failure to
produce a complete record of its hearing. In the particular
circumstances of the case the fact that counsel was unable to rely on
transcribed oral statements to the Court of Appeal in the applicant's
request for leave to appeal and the appeal to the Supreme Court
hampered the defence and his right to a fair hearing. He invokes
Article 6 para. 3 (a) (Art. 6-3-a) of the Convention read in
conjunction with Article 6 para. 1 (Art. 6-1).
The Commission considers that the complaint should rather be
considered under Article 6 para. 3 (b) (Art. 6-3-b) which, insofar as
relevant, reads as follows:
"Everyone charged with a criminal offence has the following
minimum rights:
...
b. to have adequate ... facilities for the preparation of
his defence; ..."
Article 6 para. 1 (Art. 6-1) reads, insofar as relevant, as
follows:
"In the determination of ... any criminal charge against
him, everyone is entitled to a fair ... hearing by [a]
tribunal established by law. ..."
The Commission must examine whether the proceedings at issue were
"fair" within the meaning of Article 6 para. 1 (Art. 6-1) of the
Convention read in conjunction with para. 3 (b) (cf., e.g., Eur. Court
HR, Lüdi v. Switzerland judgment of 15 June 1992, Series A no. 238, p.
20, para. 43). 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).
Article 6 para. 3 (b) (Art. 6-3-b) of the Convention recognises
the right of an accused to have at his disposal, for the purpose of
exonerating himself or of obtaining a reduction in his sentence, all
relevant elements that have been or could be collected by the competent
authorities. If the element in question is a document, access to that
document is a necessary "facility" within the meaning of Article 6
para. 3 (b) (Art. 6-3-b) if this element concerns, for instance, the
credibility of the defendant's testimony (see Jespers v. Belgium, Comm.
Report 14.12.81, para. 58, D.R. 27, p. 88).
It is true that in the present case the Court of Appeal increased
the applicant's sentence radically after having concluded that he had
not been acting in self-defence when causing W's death. Explicit
reference was made to the applicant's oral statements before the Court
of Appeal.
The Commission finds no indication, however, that, when preparing
the applicant's request for leave to appeal to the Supreme Court and
his actual appeal, counsel was prevented from acquainting himself with
the oral statements audiotaped at the hearing before the Court of
Appeal, though available to him on the court's premises only. Nor is
there any indication that the Supreme Court would have been unable to
take into account the contents of those tapes, should it have
considered this to be necessary for its own assessment of the case.
In these particular circumstances and considering the proceedings
as a whole, the Commission finds no appearance of a violation of
Article 6 para. 1 of the Convention read in conjunction with
para. 3 (b) (Art. 6-1+6-3-b) .
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.
2. The applicant further complains about the failure of the Court
of Appeal and the Supreme Court to remand him for a complete mental
examination. He invokes Article 3 of the Convention, read in
conjunction with the above-cited Article 6 para. 1 (Art. 3+6-1).
Article 3 (Art. 3) reads as follows:
"No one shall be subjected to torture or to inhuman or
degrading treatment or punishment."
The Commission does not find that the failure complained of
subjected the applicant to treatment proscribed by Article 3 (Art. 3).
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, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
M.F. BUQUICCHIO J. LIDDY
Secretary President
to the First Chamber of the First Chamber
Full & Egal Universal Law Academy