AS TO THE ADMISSIBILITY OF
Application No. 20593/92
by Yoshio TANI
against Finland
The European Commission of Human Rights (First Chamber) sitting
in private on 12 October 1994, the following members being present:
MM. A. WEITZEL, President
C.L. ROZAKIS
F. ERMACORA
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
Mrs. J. LIDDY
MM. M.P. PELLONPÄÄ
G.B. REFFI
B. CONFORTI
N. BRATZA
I. BÉKÉS
E. KONSTANTINOV
G. RESS
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 16 July 1992 by
Yoshio TANI against Finland and registered on 7 September 1992 under
file No. 20593/92;
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 Japanese citizen born in 1946 and currently
serving a prison sentence in the Helsinki Central Prison. He is an
engineer by profession. Before the Commission he is represented by
Mr. Matti Nurmela, a lawyer practising in Helsinki.
On 10 October 1990 the District Court (kihlakunnanoikeus,
häradsrätten) of Kirkkonummi convicted the applicant on two counts of
murder, the second one in combination with aggravated robbery, as well
as of having smuggled money out of Finland. The murders had been
committed on 21 April 1990. The applicant was sentenced to life
imprisonment.
In convicting the applicant the District Court took into account,
inter alia, the following evidence. The corpse of one of the victims,
E., had been found under a plastic cover in a forest. The applicant's
wife had indicated the location of the corpse to the police. She had
further indicated the location of 2,5 million FIM which had been hidden
in her and the applicant's joint flat. On 22 April 1990 the applicant
had reserved a flight ticket to Tokyo for 23 April 1990. On
23 April 1990 he had left for Tokyo, but had returned to Finland via
Frankfurt (Germany) on 3 May 1990. On the same day he had been arrested
as suspected of having murdered E. and K. Having been interrogated by
the police on 4 and 5 May 1990, he had denied knowing anything about
the murders. On 6 May 1990, however, he had alleged that the murders
had been carried out by H. He had admitted to having hidden the corpses
of E. and K. and having disposed of two bags of theirs. He had further
admitted to having smuggled 2,5 million FIM out of Finland on
23 April 1990 and also to having hidden a further 2,5 million FIM in
his and his wife's flat.
The District Court further heard four witnesses, who had been
involved in E.'s business activities. They stated having received
information by telephone that between 19 and 21 April 1990 E. had been
in the process of concluding an agreement involving the purchase of a
certain amount of gold at a price of 5 million FIM, using K. as his
intermediary. E. had cashed a cheque for this amount. A further witness
stated, in essence, that K. had been involved in business activities
with the applicant for years. K. had told this witness that he was
involved in a purchase of gold and that the applicant was appearing as
the representative of the seller. E.'s cohabitee M. essentially stated
before the District Court that she had been informed by E. that the
seller of the gold was being represented by a Chinese or Japanese man.
The District Court further took into account the statement of
witness P., who stated having met K. and having followed him to a car
in order to meet the representative of the gold seller. P. had later
confirmed that the representative had been the applicant.
The District Court also had regard to an opinion of the National
Forensic Laboratory according to which the bullet found in K. and the
two bullets found in E. had been shot with the same gun. The bullet
found in the corpse of K. had corresponded to bullets in the
applicant's possession. The District Court finally noted that the
applicant's wife had admitted to having assisted in the hiding of the
corpses and to having seen an important sum of money which had been
hidden in her and the applicant's flat.
The District Court's reasons for the applicant's conviction were,
in essence, the following. The applicant had admitted to having been
in his flat on the day of the murders. His and his wife's accounts of
the hiding of the corpses had been consistent and thus had to be
considered as reliable. The statements of the witnesses and M. had
shown that the applicant had appeared as a representative of the seller
of a considerable amount of gold, that K. and E. had believed in its
existence and that they had, between 19 and 22 April 1990, intended to
conclude an agreement with the applicant by using the 5 million FIM
cashed by E. No evidence of the actual existence of the gold had been
shown to the District Court. While the applicant had denied having
appeared as a representative in the gold deal, this denial had not
shown the witness accounts to be incorrect.
The District Court further observed that the applicant had
admitted to having taken 5 million FIM out of a bag belonging to E. He
had further admitted to having disposed of two bags as well as of the
corpses of K. and E. After having denied any knowledge of the murders
in interrogations on 3 and 4 May 1990 he had, on 6 May 1990, alleged
that they had been carried out by H. The applicant had not presented
any more specific information about H. Also for other reasons his story
about H. had to be considered untruthful and could not be given any
value as evidence. The District Court also observed that the applicant
was familiar with the use of weapons.
According to the applicant, witness P. "identified" him in the
office of a police officer in the course of the pre-trial
investigation. During an interrogation of the applicant P. had been
brought into the police officer's office and had been asked whether he
had met the applicant during business negotiations preceding the
murders. P. had answered in the affirmative.
On the applicant's appeal the Court of Appeal (hovioikeus,
hovrätten) of Helsinki on 11 April 1991 essentially upheld his
conviction and sentence.
On 21 February 1992 the Supreme Court (korkein oikeus, högsta
domstolen) refused the applicant leave to appeal in respect of his
conviction and sentence.
The applicant was assisted by counsel throughout the domestic
proceedings.
COMPLAINT
The applicant complains that he was denied a fair trial due to
witness P.'s "identification" of him in conditions which did not meet
the requirements of a proper identification parade. The applicant ought
to have been placed in a room together with others matching, at least
to some extent, the description of the suspect as previously given to
the police by P. P.'s "identification" is alleged to have largely
formed the basis for the applicant's conviction. The applicant
considers that he was thus convicted merely on circumstantial evidence.
Allegedly, no forensic evidence was found which could have linked him
to the offences of which he was convicted. Neither were the witness
statements of such character they could directly prove his guilt. The
applicant invokes Article 6 of the Convention.
THE LAW
The applicant complains that he was denied a fair trial, since
his conviction was allegedly largely based on P.'s "identification" of
him in conditions which did not meet the requirements of a proper
identification parade. He invokes Article 6 (Art. 6) of the Convention
the relevant parts of which read as follows:
"1. In the determination of ... any criminal charge
against him, everyone is entitled to a fair ... hearing ...
by [a] ... tribunal established by 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;
..."
The Commission recalls that under Article 26 (Art. 26) of the
Convention it may only deal with an application provided the applicant
has exhausted all effective domestic remedies. The applicant has not
shown that he challenged the conditions in which P. identified him.
However, even assuming that this point was raised by the applicant
throughout the domestic proceedings, the application is nevertheless
inadmissible for the following reasons.
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 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, 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., Lüdi judgment of 15 June 1992, Series A no. 238, p. 20, para. 43;
Klaas judgment of 22 September 1993, Series A no. 269-A, pp. 17-18,
paras. 29-30). The task of the Convention organs when considering a
complaint under Article 6 (Art. 6) 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.).
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., the
above-mentioned Lüdi judgment, loc.cit.).
In the present case the Commission observes that the applicant's
conviction was based on an assessment of a significant amount of
corroborative circumstantial evidence. In contrast with the applicant's
assertion the Commission observes that the statement by witness P. in
the course of the pre-trial investigation did not play any decisive
role in the applicant's conviction. The material submitted to the
Commission does not call the findings of the District Court and the
courts of appeal into question. The Commission furthermore notes that
the applicant was assisted by counsel throughout the domestic
proceedings. It has not been alleged that the applicant was prevented
from questioning witness P. in the proceedings before the District
Court and, notably, as regards his identification of the applicant.
Having assessed all elements of the domestic proceedings, the
Commission therefore concludes that the applicant was afforded a "fair
trial" within the meaning of Article 6 (Art. 6) of the Convention.
Accordingly, there is no appearance of a violation of that provision.
It follows that the application must 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.
Secretary to the First Chamber President of the First Chamber
(M.F. BUQUICCHIO) (A. WEITZEL)
Full & Egal Universal Law Academy