AS TO THE ADMISSIBILITY OF
Application No. 21221/93
by L.J.
against Finland
The European Commission of Human Rights (First Chamber) sitting
in private on 28 June 1995, the following members being present:
Mr. C.L. ROZAKIS, President
Mrs. J. LIDDY
MM. E. BUSUTTIL
A.S. GÖZÜBÜYÜK
M.P. PELLONPÄÄ
B. MARXER
G.B. REFFI
B. CONFORTI
N. BRATZA
I. BÉKÉS
E. KONSTANTINOV
G. RESS
A. PERENIC
C. BÎRSAN
Mrs. S. DOLLÉ, Acting 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 13 December 1992
by L.J. against Finland and registered on 21 January 1993 under file
No. 21221/93;
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 1949 and currently
serving a prison sentence in the Helsinki Central Prison. He is
represented by Mr. Kari Aarrevuo, a lawyer in Helsinki.
The facts, as submitted by the applicant, may be summarised as
follows.
I. Particular circumstances of the case
1. Background
Since 1965 the applicant has been convicted of a number of
violent and other offences, for which reason he was classified as a
dangerous recidivist and incarcerated in preventive detention for about
ten years up to 18 September 1989, when he was released on parole.
2. The criminal proceedings against the applicant
(a) The case of attempted manslaughter
In 1991 the applicant and E. were charged with attempted
manslaughter committed on 1 February 1991. In the alternative, E. was
charged with having aided and abetted the applicant in the offence.
On 22 April 1991 the City Court (raastuvanoikeus, rådstuvurätten)
of Helsinki acquitted the applicant of the charges for attempted
manslaughter, but convicted him of certain other offences. E. was
acquitted of all charges.
The prosecution appealed to the Court of Appeal (hovioikeus,
hovrätten) of Helsinki. Following a further oral hearing, the Court of
Appeal, on 19 March 1992, convicted the applicant of, among other
offences, attempted manslaughter committed without his having been in
possession of his full senses. It furthermore convicted E. of having
aided and abetted the applicant in the offence.
The Court of Appeal considered that the various statements made
by the victim, F., did not suffice for concluding that the applicant
had been the perpetrator of the attempted manslaughter. However, it
also took into account, among other evidence, statements made by E. and
W. as well as the results of an analysis by the Central Forensic
Laboratory of gunpowder collected from the sleeves of the applicant's
jacket. The Court of Appeal also found that the applicant had been
unable to state his whereabouts on the day of the crime in a convincing
manner. For instance, at the Court of Appeal's hearing he had modified
his account of the means of transportation which he had claimed to have
used on that day.
The Court of Appeal sentenced the applicant to about six years'
imprisonment. It also authorised the revocation of his release on
parole from an institution for preventive detention.
On 22 June 1992 the Supreme Court (korkein oikeus, högsta
domstolen) refused the applicant leave to appeal.
The applicant was assisted by counsel throughout the proceedings.
(b) The murder case
On 4 June 1992 the City Court of Helsinki convicted the applicant
of, among other offences, murder committed without his having been in
possession of his full senses. He was sentenced to eleven years'
imprisonment. The City Court based the applicant's conviction on the
statements of a number of witnesses, who had been accompanying the
applicant at some point during the day of the crime, as well as on an
autopsy report.
The City Court also authorised the applicant's incarceration as
a dangerous recidivist.
The applicant's appeal to the Court of Appeal of Helsinki was
rejected on 29 October 1992 without any further oral hearing having
been held. Leave to appeal was refused by the Supreme Court on
8 February 1993.
The applicant was assisted by counsel throughout the
proceedings.
In January 1993 the applicant's counsel was informed by the
police that certain share certificates believed to have been stolen
from the murder victim at the time of the offence had been found by the
victim's mother. The applicant's counsel was unable to obtain
information as to when this finding had been reported to the police.
3. The applicant's incarceration as a dangerous recidivist
On 27 April 1993 the Prison Court (vankilaoikeus, fängelse-
domstolen), basing itself on the Court of Appeal's judgment of
19 March 1992, with immediate effect revoked the applicant's release
on parole from an institution for preventive detention, considering
that the conditions for his incarceration as a dangerous recidivist
were fulfilled.
On 19 October 1993 the Prison Court, basing itself on the Court
of Appeal's judgment of 29 October 1992, considered that the conditions
for the applicant's incarceration as a dangerous recidivist were again
fulfilled.
4. The applicant's prison conditions
On 13 January 1994 the applicant was transferred to the semi-open
ward in the Central Prison of Riihimäki. According to the applicant,
this was tantamount to placement in solitary confinement. He was no
longer authorised to work or carry out any hobby activities. He was
only allowed to exercise during one hour per day. He claims that his
de facto solitary confinement was ordered because he had complained
about having received a salary lower than that paid to ordinary
prisoners.
On 28 January 1994 the applicant was transferred to the
isolation ward of the Helsinki Central Prison. He was authorised to
associate with three fellow prisoners for three hours a day. He had no
right to carry out hobby activities. His cell was allegedly located
mainly underground and due to insufficient insulation the temperature
in the cell was low in the wintertime.
5. Facts established by the European Committee for the Prevention
of Torture and Inhuman or Degrading Treatment or Punishment
On 1 April 1993 the above-stated Committee ("the CPT"), an organ
of the Council of Europe, issued its report following its visit in
May 1992 to, inter alia, the Helsinki Central Prison. The CPT found,
inter alia, that the material conditions of detention in the isolation
unit were poor and that the regime in that unit did not provide
sufficient mental and physical stimulation (paras. 71-72). Generally,
the CPT was struck by the poor general state of repair of the prison
(para. 83).
The CPT's report was followed by an interim report in reply by
the Finnish Government of 26 August 1993 and a further follow-up report
of 18 February 1994 (for extracts from the CPT's and the Government's
reports, see the Appendix).
II. Relevant domestic law
1. The incarceration of dangerous recidivists
The 1953 Act on the Incarceration of Dangerous Recidivists (laki
317/53 vaarallisten rikoksenuusijain eristämisestä, lag 317/53 om
internering av farliga återfallsförbrytare, "the 1953 Act") is
applicable to an offender convicted of certain offences, attempted
offences or complicity in offences involving aggravated violence or
constituting a particular danger to the life and health of others and
provided the offender is sentenced to at least two years' imprisonment.
The convicting and sentencing court may authorise the Prison Court to
order the offender's incarceration in an institution for preventive
detention, if, during a period of ten years preceding the offence at
issue, he has committed another offence of an extremely violent
character or an offence involving a particular danger to the life and
health of others and provided he is clearly to be considered as
particularly dangerous to the life and health of others. Such an
offender is considered as a dangerous recidivist (section 1, as amended
by Acts nos. 303/71, 491/71 and 702/91).
If the Prison Court decides to incarcerate a dangerous
recidivist, he shall immediately be transferred to an institution for
preventive detention in order to serve his imprisonment. The Prison
Court shall reconsider its incarceration order, if the placement of the
recidivist in such an institution is found to be clearly unnecessary
in the light of new information (section 5, subsection 1; section 9,
subsection 1, as amended by Act no. 303/71, and subsection 2).
If an incarcerated recidivist is sentenced to a further prison
sentence, the enforcement of his total period of imprisonment shall
continue to take place in an institution for preventive detention
(section 13, subsection 1, as amended by Act no. 702/91). An
incarcerated recidivist shall be released on parole only upon having
served his total term of imprisonment, unless the Prison Court still
considers him dangerous to the life or health of others in accordance
with section 1 of the 1953 Act. If he is not released on parole, the
matter shall be re-examined by the Prison Court at least every six
months (sections 14 and 15 of the 1953 Act, both as amended by Act
no. 303/71).
2. The Prison Court
The Prison Court shall consist of the Director-General for the
Prison Administration of the Ministry of Justice (oikeusministeriön
vankeinhoito-osasto, justitieministeriets fångvårdsavdelning) or his
Deputy and of four other members appointed by the President of the
Republic for a period of five years. Two of these four members shall
have judicial experience and one of them shall be a physician
experienced in psychiatry. The President and the Vice President of the
Prison Court shall be appointed by the President of the Republic among
the lawyer members of the Court. Members shall swear a judicial oath
(section 5, subsections 2-4 of the 1953 Act).
As regards the grounds for disqualifying a member and the Prison
Court's deliberations, the provisions of the Code of Judicial Procedure
(Oikeudenkäymiskaari, Rättegångs Balken) relating to courts of appeal
shall be applicable, mutatis mutandis (section 6, subsection 1).
3. Institutions for preventive detention
The institution for preventive detention is either a separate
institution or part of another penitentiary (section 10). In view of
the small number of incarcerated recidivists no separate institution
currently exists (circular letter of 2 June 1988 issued by the
Department for Prison Administration). The recidivists shall be grouped
according to their special features and their need for treatment
(section 11, subsection 1 of the 1953 Act). An incarcerated recidivist
shall have the right to enjoy, at his own expense, better food and more
comfort than that normally available in the institution, provided this
would not jeopardise prison order or his safe placement (section 12,
subsection 1).
Pursuant to the 1971 Decree on the Institution for Preventive
Detention (asetus 448/71 pakkolaitoksesta, förording 448/71 om
tvångsinrättning), such an institution shall have a semi-open, an open
and a closed ward (section 2). The recidivist shall initially be placed
in a semi-open ward, but shall be transferred to an open ward as soon
as he can be expected to adjust to the order and the conditions there
and provided his transfer would not jeopardise his safe placement. The
Prison Court may transfer him to a semi-open ward, if this is
considered necessary for his own security, his safe placement or if,
for some other reason, he cannot adjust to the order and the conditions
in an open ward. A recidivist who refuses to comply with the order or
the conditions in a semi-open ward may be transferred to a closed ward.
In the case of an emergency his transfer can be ordered by the Prison
Board (vankilan johtokunta, fängelsets direktion) and shall be
immediately reviewed by the Prison Court. A recidivist shall not be
kept in a closed ward longer than necessary. His placement there shall
be reviewed by the Prison Court at least every three months (sections
3 and 4). Placement in a specific ward is not subject to appeal.
A recidivist placed in an open or a semi-open ward shall either
be placed in a single cell or share his cell with other incarcerated
prisoners, consideration being given, as far as possible, to his own
wishes. Unless the Governor of the institution, for particular reasons,
decides otherwise, the recidivist shall be permitted to work with the
other incarcerated prisoners and also to associate with them during his
spare time (section 6).
A recidivist placed in a closed ward shall have a single cell.
With the Governor's permission he may work and, for particular reasons,
also associate with other incarcerated prisoners during his spare time
(section 8).
In addition to what is prescribed in the 1971 Decree, chapters 2
and 3 of the 1889 Decree on the Enforcement of Punishments (asetus
39/1889 rangaistusten täytäntöönpanosta, förordning 39/1889 om
verkställighet af straff) shall also be applicable to institutions for
preventive detention and to recidivists placed in such institutions
(section 13, subsection 2 of the 1971 Decree, as amended by Decree
no. 449/75).
According to the 1889 Decree, a prisoner may be isolated for
security reasons (chapter 3, section 9 of the 1889 Decree, as amended
by Act no. 128/87), for investigatory reasons (chapter 2, section 10c,
subsection 1 of the 1889 Decree, as amended by Act no. 612/74) or for
disciplinary reasons (chapter 2, section 10a of the 1889 Decree, as
amended by Act no. 612/74).
4. Right to a re-hearing before a court of appeal
Under chapter 26, section 8 of the Code of Judicial Procedure a
judgment of a court of a lower instance as regards the charges brought
against an accused cannot be amended following a re-evaluation of the
evidence without a re-hearing having been held, unless the sentence
imposed by a court of appeal amounts only to fines or unless a
re-hearing would clearly be unnecessary. In the last-mentioned
assessment special regard shall be had to the interests of the accused.
COMPLAINTS
1. The applicant complains under Article 6 para. 2 of the Convention
of a breach of the presumption of innocence in the above-mentioned two
sets of criminal proceedings brought against him. He considers that he
was wrongly convicted because he had published a book criticising the
Finnish system of justice.
a. As regards his conviction of attempted manslaughter, the
applicant submits, more particularly, that it was based merely on the
statement by himself and E., who was himself a co-accused in the case,
as well as on mere circumstantial evidence.
b. In regard to the second set of criminal proceedings the applicant
considers, more particularly, that his conviction of murder was
principally based on the statements made by R., a witness invoked by
the prosecution who had initially been arrested as a co-suspect. The
applicant also suspects that certain evidence supporting the defence
was omitted from the material presented by the prosecution. The police
investigation which he requested for the purpose of clarifying whether
such evidence existed was concluded only after the Supreme Court's had
refused him leave to appeal. The applicant finally also complains about
the lack of an oral hearing before the Court of Appeal.
2. The applicant furthermore complains that his incarceration as a
dangerous recidivist has not been ordered by a "court" or "tribunal"
within the meaning of Articles 5 and 6 of the Convention, respectively.
He refers to the close connection between the Prison Court and the
Department of Prison Administration. He also complains under Article 13
of the Convention about the lack of an effective remedy against his
incarceration as ordered by the Prison Court.
3. The applicant finally complains that his incarceration as a
dangerous recidivist is an inhuman and discriminatory form of
punishment, considering the following elements as a whole. The duration
of the incarceration is indefinite, given the Prison Court's
possibility of prolonging his incarceration after he has served the
total term of imprisonment based on the sentences imposed by the
ordinary courts. His everyday conditions have allegedly been
arbitrarily decided by the prison authorities. The incarceration has
also resulted in a certain degree of solitude. Moreover, he has to wear
a prison uniform different from that worn by prisoners who have not
been incarcerated as dangerous recidivists. His right to work in the
prison as well as his freedom of movement within the prison area have
also been more restricted in comparison with other prisoners, or has
been non-existent. He suspects that his incarceration has been ordered
as a result of his criticism notably of the Director of the Prison
Department and a justice of the Supreme Court. The applicant states
that the first-mentioned official is a member of the Prison Court and
that the Supreme Court justice acts as President thereof. The applicant
invokes Article 3 of the Convention as well as Article 14 in
conjunction with Articles 3 and 9.
THE LAW
1. The applicant complains under Article 6 para. 2 (Art. 6-2) of the
Convention of a breach of the presumption of innocence in the two sets
of criminal proceedings against him.
The Commission has examined this complaint under Article 6
paras. 1, 2 and 3 (Art. 6-1, 6-2, 6-3) which, in so far as they are
relevant, read as follows:
"1. In the determination of ... any criminal charge
against him, everyone is entitled to a fair and public
hearing ... by [a] ... tribunal ...
2. Everyone charged with a criminal offence shall be
presumed innocent until proved guilty according to 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; ..."
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., Eur.
Court H.R., Lüdi judgment of 15 June 1992, Series A no. 238, p. 20,
para. 43), also bearing in mind the presumption of innocence guaranteed
by Article 6 para. 2 (Art. 6-2).
Before turning to the respective sets of criminal proceedings at
issue, 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 only 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, p. 18, 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., Klaas judgment of 22 September 1993, Series A
no. 269-A, pp. 17-18, paras. 29-30). The Commission's task 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.). It follows that the
Commission cannot examine whether or not the applicant was guilty or
innocent of the offences of which he was convicted.
a. As regards the first set of criminal proceedings against the
applicant, the Commission observes, more particularly, that his
conviction was based on an assessment of a significant amount of
corroborative circumstantial and forensic evidence. The material
submitted to the Commission does not call the findings of the Court of
Appeal into question. The Commission furthermore notes that the
applicant was assisted by counsel throughout the domestic proceedings
and finds no indication that he was at any time prevented from
questioning the witnesses appearing before the Court of Appeal or
otherwise challenging the evidence invoked by the prosecution.
Having assessed all elements of this set of proceedings, in
particular as regards the way in which evidence was taken and
submitted, the Commission finds no indication that the applicant was
denied a fair trial within the meaning of Article 6 paras. 1 and 3 of
the Convention or that the presumption of innocence guaranteed by
Article 6 para. 2 (Art. 6-2) was breached.
b. As regards the second set of criminal proceedings against the
applicant, the Commission observes that his conviction of murder was
based on an assessment of a significant amount of testimonial and
forensic evidence. The material submitted to the Commission does not
call the findings of the City Court and the Court of Appeal into
question. The Commission furthermore notes that the applicant was
assisted by counsel throughout the domestic proceedings and finds no
indication that he was at any time prevented from questioning the
witnesses appearing before the City Court or otherwise challenging the
evidence invoked by the prosecution.
The Commission futhermore finds no indication that evidence
supporting the defence and available at the relevant time was omitted
from the material presented by the prosecution. Nor can it find that
the police investigation requested by the applicant for the purpose of
clarifying whether certain further evidence existed was deliberately
delayed to his detriment. In addition, there is no indication that the
applicant has been prevented from requesting a re-opening of the
proceedings with reference to any fresh evidence allegedly supporting
the defense.
As finally regards the lack of an oral hearing before the Court
of Appeal, the Commission recalls Finland's reservation to Article 6
(Art. 6) which reads, in so far as relevant, as follows:
"For the time being, Finland cannot guarantee a right to an
oral hearing in so far as the current Finnish laws do not
provide such a right. This applies to:
1. proceedings before the Courts of Appeal ... in
accordance with chapter 26 [section] 7 ..., of the Code of
Judicial Procedure ..."
The Commission observes that under chapter 26, section 8 of the
Code of Judicial Procedure a judgment of a court of a lower instance
as regards the charges brought against an accused cannot be amended
following a re-evaluation of the evidence without a re-hearing having
been held, unless the sentence imposed by a court of appeal amounts
only to fines or unless a re-hearing would clearly be unnecessary. In
the applicant's case the City Court's judgment of 4 June 1992 was not
amended and he was thus not entitled to a re-hearing under Finnish law.
In the light of Finland's reservation and this fact the Commission
therefore considers that this aspect of the complaint raises no issue
under Article 6 (Art. 6).
Having assessed all elements of this set of proceedings, in
particular as regards the way in which evidence was taken and
submitted, and taking into account Finland's reservation, the
Commission finds no indication that the applicant was denied a fair
trial within the meaning of Article 6 paras. 1 and 3 (Art. 6-1, 6-3)
of the Convention or that the presumption of innocence guaranteed by
Article 6 para. 2 (Art. 6-2) was breached.
c. It follows that this complaint must as a whole be rejected as
being manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
2. The applicant furthermore complains that his incarceration as a
dangerous recidivist has not been ordered by a "court" or "tribunal"
within the meaning of Articles 5 (Art. 5) and 6 (Art. 6) of the
Convention, respectively. He also complains under Article 13 (Art. 13)
of the Convention about the lack of an effective remedy against his
incarceration by the Prison Court.
a. The Commission considers that the complaint concerning the status
of the body ordering the applicant's incarceration falls to be examined
under Article 5 para. 1 (a) (Art. 5-1-a) of the Convention. This
provision reads as follows:
"Everyone has the right to liberty and security of person.
No one shall be deprived of his liberty save in the
following cases and in accordance with a procedure
prescribed by law:
a. the lawful detention of a person after conviction by a
competent court; ..."
The Commission recalls that in order for detention after
conviction to be lawful within the meaning of Article 5 para. 1 (a)
(Art. 5-1-a) of the Convention, it must result from, follow and depend
upon, or occur by virtue of a "conviction by a competent court". In
short, there must be a sufficient causal connection between the
conviction and the deprivation of liberty at issue (Eur. Court H.R.,
Weeks judgment of 2 March 1987, Series A no. 114, p. 23, para. 42).
The Commission observes that the applicant's present imprisonment
is based on a number of convictions by ordinary courts, whose
competence within the meaning of Article 5 para. 1 (a) (Art. 5-1-a) has
not been challenged by him. On the basis of those convictions and the
sentences imposed on the applicant the ordinary courts went on to
authorise his incarceration as a dangerous recidivist in an institution
for preventive detention.
It is true that under section 15 of the 1953 Act the Prison Court
may order that the applicant should remain in preventive detention once
he has served his full prison term. There is no indication, however,
that such an order has been issued at present. In these circumstances
the Commission considers that the decisions of the Prison Court which
the applicant now complains of relate merely to the implementation of
his present term of imprisonment as based on the sentences imposed by
the ordinary courts. Accordingly, there is, at least for the time
being, a sufficient causal connection between the applicant's
convictions and his incarceration as a dangerous recidivist. This
aspect of the complaint therefore discloses no appearance of a
violation of Article 5 (Art. 5) of the Convention.
b. The Commission finds no separate issue under Article 13 (Art. 13)
of the Convention.
c. It follows that this complaint must as a whole be rejected as
being manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
3. The applicant finally complains that his incarceration as a
dangerous recidivist is an inhuman and discriminatory form of
punishment, considering a number of elements referred to by him. He
invokes Article 3 (Art. 3) of the Convention as well as Article 14 in
conjunction with Articles 3 and 9 (Art. 14+3+9).
a. The Commission has first examined the complaint under Article 3
(Art. 3) of the Convention which reads as follows:
"No one shall be subjected to torture or to inhuman or
degrading treatment or punishment."
The Commission recalls that ill-treatment must attain a minimum
level of severity if it is to fall within the scope of Article 3
(Art. 3). The assessment of this minimum is relative and must take
account of all the circumstances of the case, including the duration
of the treatment, its physical and mental effects and, in some cases,
the sex, age and state of health of the person subjected to it (e.g.,
Eur. Court H.R., Ireland v. the United Kingdom judgment of 18 January
1978, Series A no. 25, p. 65, para. 162). In order for a punishment to
be in breach of Article 3, the humiliation or debasement involved must
attain a particular level and must in any event be other than the usual
element of humiliation associated with imprisonment after a criminal
conviction. Such an examination is also relative and depends on all the
circumstances of the case and, in particular, on the nature and context
of the punishment itself and the manner and method of its execution
(Eur. Court H.R., Tyrer judgment of 25 April 1978, Series A no. 26,
p. 15, para. 30).
The Commission observes that as a dangerous recidivist the
applicant is not eligible to be released on parole before he has served
his total term of imprisonment as imposed by the ordinary courts. The
Commission recalls, however, that a lengthy prison sentence or a
combination of prison sentences does not in itself raise any issue
under Article 3 (Art. 3) of the Convention, nor does the Convention
secure any right to be released on parole (No. 14610/89, Dec. 7.91,
D.R. 71 pp. 168-221, at p. 191). The Commission cannot therefore find
that the Prison Court's discretionary power of prolonging the
applicant's incarceration after he has served his present prison terms
could, at least not at present, raise an issue under Article 3
(Art. 3).
The Commission furthermore recalls that the segregation of a
prisoner from the prison community does not in itself constitute a form
of inhuman or degrading treatment. Whilst prolonged removal of a person
from association with others is undesirable, the question whether such
a measure is contrary to Article 3 (Art. 3) of the Convention depends
on the particular conditions of its application, including its
stringency, duration and purpose, as well as its effects on the person
concerned. The removal of a prisoner from association with fellow
inmates for security, disciplinary or protective reasons does not
normally amount to inhuman treatment or punishment (cf., e.g., Bouajila
v. Switzerland, Comm. Report 1.7.93, paras. 102-104, to be published;
Dhoest v. Belgium, Comm. Report 14.5.87, paras. 116-118, D.R. 55 pp.
5-50, at pp. 20-21, with further references, and the above-mentioned
No. 14610/89, pp. 190-191, with further references).
The Commission finds no substantiation of the applicant's
complaint that his prison conditions, including his isolation, have
been arbitrarily decided. In assessing the applicant's everyday
conditions the Commission has also had regard to the CPT's report of
1 April 1993, as well as the respondent Government's interim and
follow-up reports concerning the relevant ward of the Helsinki Central
Prison (see the Appendix). It considers, however, that the fact that
one of the applicant's cells was located partly underground is not
sufficient to raise an issue under Article 3 (Art. 3) (see
No. 20560/92, Dec. 30.8.94, not published).
Finally, the Commission observes that under section 12 of the
1953 Act the applicant, having been classified as a dangerous
recidivist, has the right to enjoy, at his own expense, better food and
more comfort than that normally available, provided this would not
jeopardise prison order or his safe placement.
Having made an overall assessment of the elements inherent in the
applicant's incarceration as well as of his everyday prison conditions,
the Commission concludes that they do not disclose any appearance of
a violation of Article 3 (Art. 3) of the Convention.
b. The Commission has next examined the complaint under Article 14
of the Convention in conjunction with Article 3 (Art.14+3). Article 14
(Art. 14) reads as follows:
"The enjoyment of the rights and freedoms set forth in this
Convention shall be secured without discrimination on any
ground such as sex, race, colour, language, religion,
political or other opinion, national or social origin,
association with a national minority, property, birth or
other status."
The Commission accepts that the applicant, having been classified
as a dangerous recidivist, has been treated differently from ordinary
prisoners. However, because of this classification, he is not in a
situation comparable to that of ordinary prisoners. Accordingly, there
is no appearance of any violation of Article 14 in conjunction with
Article 3 (Art. 14+3).
c. The applicant also alleges that his incarceration discriminates
against him on account of his opinions as expressed in a book. The
Commission has examined this complaint under Article 14 of the
Convention in conjunction with Article 10 para. 1 (Art. 14+10-1) which,
in so far as relevant, reads as follows:
"Everyone has the right to freedom of expression. This
right shall include freedom to hold opinions and to ...
impart information and ideas without interference by public
authority ...".
The Commission recalls at the outset that the applicant's
incarceration has been ordered by the Prison Court on the basis of
judgments authorising such a measure. These authorisations have been
issued in view of his recidivism. The Commission finds no indication
that the applicant's incarceration is discriminatory on account of his
personal opinions. Accordingly, there is no appearance of any violation
of Article 14 in conjunction with Article 10 (Art. 14+10) either.
d. It follows that this complaint must as a whole 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.
Acting Secretary President
to the First Chamber of the First Chamber
(S. DOLLÉ) (C.L. ROZAKIS)
APPENDIX
EXTRACTS FROM THE REPORT OF THE EUROPEAN COMMITTEE FOR THE
PREVENTION OF TORTURE AND INHUMAN OR DEGRADING TREATMENT OR
PUNISHMENT ("THE CPT") OF 1 APRIL 1993
[As regards solitary confinement, notably in the Helsinki Central
Prison; pp. 28-31:]
"...
69. Reference has already been made to the large number of
prisoners in Helsinki Central Prison who had requested to be
placed in solitary confinement... . The prisoners concerned were
accommodated in the isolation unit of the prison, which also
housed those who had been placed in non-voluntary solitary
confinement (including prisoners classified as dangerous
recidivists - cf. paragraph 77) and inmates undergoing the
disciplinary penalty of cellular confinement.
The CPT has serious reservations about both the material
conditions in this unit and the regime applied to prisoners
placed there for non-disciplinary reasons.
70. The isolation unit was located in the 'day cells' wing in
the prison. Most of the cells contained only a platform bed and
a lavatory - both made of concrete. Four of the cells had been
converted to accommodate prisoners thought to be especially
dangerous and likely to be held in solitary confinement for
extended periods. Material conditions in those cells were of a
slightly higher standard. None of the cells possessed any storage
space, with the result that the limited range of personal
possessions allowed to prisoners tended to be left strewn on the
floor.
Many of the cells were in an unhygienic condition and some were
extremely dirty. The condition of the in-cell lavatories also
left a great deal to be desired. In this respect, it should be
noted that the lavatories could only be flushed from outside the
cell and prisoners alleged that their requests for this to be
done were frequently ignored by the staff.
71. In short, the material conditions of detention in the
isolation unit at Helsinki Central Prison were poor.
...
72. The delegation [of the CPT] discussed the regime provided
in the isolation unit with staff and prisoners there. It emerged
that the inmates' activities consisted of reading and writing in
their cells, together with one hour of outdoor exercise each day,
when they might be allowed to associate with the other prisoners
from the unit. No work was available, even in the cells, and no
group association or sporting activities were provided. To sum
up, the vast majority of prisoners spent their time alone in
their cells, with little to occupy them. Given the extended
periods for which persons may be held under voluntary or
non-voluntary segregation, the regime which was offered to them
cannot be regarded as acceptable.
73. It is generally acknowledged that all forms of solitary
confinement without appropriate mental and physical stimulation
are likely, in the long term, to have damaging effects, resulting
in deterioration of mental faculties and social abilities. The
delegation found that the regime applied in the solitary
confinement unit in Helsinki Central Prison did not provide such
stimulation.
...
77. Finally, reference should be made to the small number of
[dangerous recidivists] (nine at the time of the visit) subject
to the terms of [the 1953 Act]. ...
78. The delegation was informed that such prisoners were often
held for very long periods under a solitary confinement-type
regime. ..."
[With regard to the material conditions of detention in the
Helsinki Central Prison; p. 32:]
79. "[The prison] provided accommodation for inmates in two
areas, referred to as the 'day cells' and 'night cells' sections.
... The ground floor of the 'day cells' east wing contained the
isolation unit ... . The prison was not overcrowded and prisoners
lived one to a cell throughout the establishment.
80. Most of the cells were of a reasonable size (up to 9 m2),
acceptably furnished (bed, table, chair, wardrobe and bookshelf)
and benefited from adequate lighting and sanitation. However, it
would be preferable for sanitation facilities to be partitioned
off from the living areas in the cells.
...
83. ... [G]enerally, the delegation was struck by the poor
general state of repair of the prison; further, some areas were
extremely dirty.
..."
****
EXTRACTS FROM THE RESPONSE OF THE FINNISH GOVERNMENT TO THE REPORT
OF THE CPT (DATED 26 AUGUST 1993)
[With regard to solitary confinement; pp. 34-35:]
"... The isolation unit of Helsinki Central Prison is located in
the section of day cells east where renovations will begin in
1994. The cells used for solitary confinement will have to be
rebuilt to meet reasonable standards for the accommodation of
prisoners. ...
The Prison Administration Department will during the current year
issue new instructions on the application of chapter 3, section
9 of [the 1889 Decree] concerning solitary confinement, taking
into account the recommendation by the CPT for informing the
prisoner in writing of the reasons for solitary confinement.
The prisoner is heard before any decision is taken on solitary
confinement. ..."
[With regard to the Helsinki Central Prison; pp. 45-47:]
"... The building which houses the cells at Helsinki Central
Prison will be fully renovated in the years to come. ... The
areas to be rebuilt will be fitted with central heating and
automatic ventilation. Most of the cells will be fitted with
toilets and wash-basins, some also with a shower. The furniture
will be: bed, chair, desk, bookshelf, two lockers and notice
board. The technical equipment will be: central heating, hot and
cold water, automatic ventilation, fire alarm, call system,
receiver for PA system, tv antenna, overhead light, and
reading-lamp.
...
[p. 75:]
"... Renovation of the part of Helsinki Central Prison with
isolation cells will begin next year. The CPT's comment can be
accommodated in that process. ..."
****
EXTRACTS FROM THE FOLLOW-UP REPORT OF THE FINNISH GOVERNMENT IN
RESPONSE TO THE REPORT OF THE CPT (DATED 18 FEBRUARY 1994)
[With regard to the conditions of detention in the Helsinki
Central Prison; pp. 14-18:]
"... In Helsinki Central Prison, the renovation of day cells west
was completed recently. ...
The isolation unit is located in the day cells east where
renovation will begin in 1994. The CPT's recommendations will be
taken into account in the renovation of the cells of the
isolation unit. Some day cells north are being repaired to house
a temporary isolation unit. The cells used for solitary
confinement as a disciplinary measure have been furnished as
recommended by the CPT.
...
Instructions, regarding solitary confinement, on the application
of chapter 3 section 9 of [the 1889 Decree] are being revised to
accommodate the CPT's recommendation for informing prisoners in
writing of the reasons for solitary confinement.
..."
Full & Egal Universal Law Academy