AS TO THE ADMISSIBILITY OF
Application No. 29437/95
by Toivo VUORINEN
against Finland
The European Commission of Human Rights (First Chamber) sitting
in private on 21 May 1997, the following members being present:
Mrs. J. LIDDY, President
MM. E. BUSUTTIL
A. WEITZEL
C.L. ROZAKIS
L. LOUCAIDES
B. MARXER
B. CONFORTI
N. BRATZA
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 22 May 1995 by
Toivo Vuorinen against Finland and registered on 5 December 1995 under
file No. 29437/95;
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 1933 and currently
serving a prison sentence in the Turku Central Prison. He is
represented by Mr Veikko Lehtevä, a lawyer in Helsinki.
The facts of the case, as submitted by the applicant or apparent
from the documents submitted, may be summarised as follows.
The applicant has a long history of convictions for various
violent offences. Thus, in 1983 he was convicted of attempted
manslaughter committed without his being in full possession of his
senses. He was sentenced to over four years' imprisonment. He was
incarcerated by the Prison Court (vankilaoikeus, fängelsedomstolen) as
a dangerous recidivist and released on parole in 1987. His parole ended
successfully in 1989. In 1990 he was convicted of aggravated assault
committed without his being in full possession of his senses. He was
sentenced to imprisonment and released on parole in 1991. His parole
ended successfully in March 1992.
In 1993 the Helsinki City Court (raastuvanoikeus, rådstuvurätten)
found the applicant guilty of attempted murder committed in December
1992 without his being in full possession of his senses. He was found
to have stabbed a social worker twice in the stomach and was sentenced
to five years' imprisonment.
The 1953 Act on the Incarceration of Dangerous Recidivists
(laki vaarallisten rikoksenuusijain eristämisestä, lag om internering
av farliga återfallsförbrytare 317/1953) is applicable to offenders
convicted of certain offences involving aggravated violence or
constituting a particular danger to the life and health of others, and
who are sentenced to at least two years' imprisonment. The sentencing
court may authorise the offender's incarceration by the Prison Court
in an institution for preventive detention, if, during a period of ten
years preceding his offence, he has committed another offence of an
extremely violent character, or involving a particular danger to the
life and health of others, and provided he is clearly to be considered
particularly dangerous to the life and health of others. Such an
offender is to be regarded as a dangerous recidivist (section 1 of the
1953 Act).
In view of the applicant's criminal background and having
obtained expert evidence concerning his mental state, the City Court
in its judgment also authorised the Prison Court to order his
incarceration as a dangerous recidivist.
On 14 October 1993 the Helsinki Court of Appeal (hovioikeus,
hovrätten) partly quashed the City Court's judgment and convicted the
applicant of attempted manslaughter. His sentence remained the same.
The period of his detention preceding the Court of Appeal's judgment
(some ten months) was to be deducted.
On 11 February 1994 the Supreme Court (korkein oikeus, högsta
domstolen) refused the applicant leave to appeal. Subsequently the
Prison Court began to gather further expert evidence concerning his
mental health. In October 1994 it informed the applicant of the
potential grounds for his incarceration, noting that he had previously
been convicted of attempted manslaughter (committed in 1982),
aggravated assault (committed in 1990) and assault (committed in 1992).
The Prison Court afforded him an opportunity to comment on the expert
evidence and summoned him to its hearing on 22 November 1994. He was
later granted legal aid for the purpose of being assisted by
counsel. Before the Prison Court counsel objected to the applicant's
possible incarceration. The hearing was in the Helsinki Central Prison
and allegedly because of his poor physical condition the applicant
himself could not attend it. In its decision of 22 November 1994 the
Prison Court noted that after his release from his previous
incarceration in 1987 he had committed not only attempted manslaughter
but also two assaults the second of which had involved particularly
gross violence. Although finding him to be ailing and suffering from
atrophy and various other illnesses, the experts investigating his
mental state nevertheless suggested that he should be incarcerated. The
Prison Court found that he could not control his tendency towards
violent behaviour and that the risk for recidivism involving further
violent crimes was significant. In conclusion, he was clearly to be
considered particularly dangerous to the life and health of others. The
Prison Court therefore ordered his immediate incarceration in an
institution for preventive detention. Its decision was final.
An institution for preventive detention is either a separate
institution or part of another penitentiary (section 10 of the
1953 Act). In view of the small number of incarcerated recidivists no
separate institution exists at present. The Prison Court shall
reconsider an incarceration order if this is found to be clearly
unnecessary in the light of new information (section 9 of the
1953 Act).
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 and health of others. If he
is not released, the matter shall be re-examined by the Prison Court
at least every six months (sections 14 and 15 of the 1953 Act).
COMPLAINTS
1. The applicant complains that his incarceration in 1994 as a
dangerous recidivist has amounted to both inhuman punishment (as far
as regards his current sentence) and inhuman treatment (in so far as
his detention can be expected to exceed that sentence). He refers, in
particular, to his age and poor health. He also considers that the
conditions for his incarceration were not fulfilled. His conditional
releases in 1987 and 1991 were both successful and outside prison he
is able to live off his pension. Already due to his poor state of
health there would be no risk that he might commit further violent
offences. He invokes Article 3 of the Convention, read in conjunction
with Article 6 para. 1.
2. In his submissions of 29 November 1995 the applicant furthermore
complains that, when ordering his incarceration in 1994, the Prison
Court was not an impartial and independent tribunal within the meaning
of Article 6 para. 1 of the Convention. He refers to the fact that the
Director General of the National Prison Administration sat on the Court
ex officio, although this body is responsible for the execution both
of prison sentences in general and of the incarceration of dangerous
recidivists.
THE LAW
1. The applicant complains that his incarceration in 1994 as a
dangerous recidivist has amounted to both inhuman punishment (as far
as regards his current sentence) and inhuman treatment (in so far as
his incarceration can be expected to exceed that sentence). He refers,
in particular, to his age and poor health. He invokes Article 3 of the
Convention, read in conjunction with Article 6 para. 1 (Art. 3+6-1).
The Commission has considered the above complaint under
Article 3 (Art. 3) which reads as follows:
"No one shall be subjected to torture or to inhuman or
degrading treatment or punishment."
The Commission recalls that the assessment of the minimum level
of severity of treatment contrary to Article 3 (Art. 3) of the
Convention is relative and must take account of all the circumstances
of the case, such as the duration of the treatment, its physical or
mental effects and, in some cases, the sex, age and state of health of
the victim, etc. (see, e.g., Eur. Court HR, Ireland v. the United
Kingdom judgment of 18 January 1978, Series A no. 25, p. 65,
para. 162).
The Commission notes that the applicant's present five-year
prison sentence imposed in 1993 has not yet expired. As regards the
inhuman punishment to which he has allegedly been subjected while
serving this sentence as an incarcerated recidivist, it is true that
certain experts have found that he is ailing and suffering from atrophy
and various other illnesses. Though the Commission would not doubt that
his imprisonment must therefore cause him certain additional hardship,
it has not been submitted that his prison conditions are such as to
deprive him of adequate medical care. In these circumstances the
Commission finds no indication that his current incarceration has
subjected him to treatment proscribed by Article 3 (Art. 3).
As for the inhuman treatment to which he will allegedly be
subjected on expiry of his prison term, the Commission notes that there
is no certainty yet as to whether or not he will at that time remain
incarcerated by order of the Prison Court.
No further issue arises under Article 6 para. 1 (Art. 6-1) of
the Convention.
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. In his submissions of 29 November 1995 the applicant furthermore
complains that, when ordering his incarceration in 1994, the Prison
Court was not an impartial and independent tribunal within the meaning
of Article 6 para. 1 (Art. 6-1) of the Convention.
Article 26 (Art. 26) of the Convention stipulates that the
Commission may only deal with the matter after all domestic remedies
have been exhausted, according to the generally recognised rules of
international law, and within a period of six months from the date on
which the final decision was taken. According to Rule 44 para. 4 of the
Commission's Rules of Procedure, the date of introduction of an
application shall in general be considered the date of the first
communication from the applicant. The Commission may nevertheless for
good cause decide that a different date shall be considered the date
of introduction (cf., e.g., No. 18660/91, Dec. 7.12.94, D.R. 79, p.
11).
The Commission notes that the applicant's first complaint
(regarding his incarceration) was raised in substance already in his
first submissions of 22 May 1995. However, his second complaint
regarding the status of the Prison Court when ordering his
incarceration in 1994 must be regarded as a separate complaint. This
complaint was not raised in substance until 29 November 1995, ie. more
than six months after the Prison Court's order which constituted the
final decision for the purposes of Article 26 (Art. 26).
It follows that this complaint has been introduced out of time
and must be rejected in accordance with Article 27 para. 3 (Art. 27-3)
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