Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 30279/96

by Heikki Johannes KÄRKKÄINEN

against Finland

The European Commission of Human Rights (First Chamber) sitting

in private on 15 January 1998, the following members being present:

MM N. BRATZA, Acting President

M.P. PELLONPÄÄ

E. BUSUTTIL

A. WEITZEL

Mrs J. LIDDY

MM 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 3 February 1996

by Heikki Johannes KÄRKKÄINEN against Finland and registered on

23 February 1996 under file No. 30279/96;

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 1939. He resides in

Helsinki. At the time of lodging the application he was serving his

sentence in the Vilppula Prison. Before the Commission he is

represented by Mr Sami Heikinheimo, a lawyer practising in Helsinki.

The facts of the case, as submitted by the applicant, may be

summarised as follows.

In 1992 and 1993 police investigations commenced during which the

applicant was charged with having assaulted his wife and of having

sexually abused his daughter. The applicant denied the charges

concerning alleged sexual abuse.

On 2 June 1993 the Helsinki District Court (käräjäoikeus,

tingsrätt) convicted the applicant of the charges brought against him

and sentenced him to seven years' imprisonment. The applicant appealed

against the judgment to the Court of Appeal (hovioikeus, hovrätt) which

upheld the District Court judgment on 3 September 1993. The Supreme

Court (korkein oikeus, högsta domstolen) refused the applicant leave

to appeal on 3 February 1994.

In March 1994 the applicant received information which in his

opinion proved that other people had committed the crime of sexual

abuse he had been convicted of. On 21 March 1994 the applicant reported

this claim to the police and asked the police to investigate the case.

It does not appear from the case file whether any investigations were

conducted by the police.

In 1994 the applicant furthermore learned that new evidence in

the form of certain new medical examinations could be available to

prove his innocence for which reason he requested the Supreme Court on

26 January 1995 to reopen his case and to grant him legal aid in order

to enable him to pay for the medical examinations or, in the

alternative, to order the medical examinations at the court's own

expense. He also maintained that a number of procedural errors had been

committed during the criminal trial, in particular in respect of the

investigation of his daughter and in respect of the impartiality of the

participating medical experts.

On 3 August 1995 the Supreme Court rejected his request stating

that the grounds submitted did not suffice to reopen the case. His

request for legal aid was rejected as he was found to have sufficient

means to meet the possible expenses.

COMPLAINTS

1. As regards the proceedings which ended in 1994 the applicant

complains, under Article 6 para. 2 of the Convention, that he was not

presumed innocent as all the persons involved in the proceedings

assumed him to be guilty even before they had started to investigate

the case.

2. The applicant furthermore complains that the police did not

commence an investigation following his report of alleged crimes. He

invokes in this respect Article 6 of the Convention.3. The

applicant also complains that he was denied access to court as he had

learned about the new evidence only after his conviction whereas the

Supreme Court nevertheless rejected his claim to reopen his case. He

also relies on Article 6 of the Convention in respect of this part of

the application.

4. Finally, the applicant complains of the fact that the Supreme

Court did not order the medical examinations to be carried out under

a grant of legal aid.

THE LAW

1. The applicant complains that he was not presumed innocent in the

criminal proceedings which ended in 1994 as the persons involved in the

proceedings allegedly assumed him to be guilty already before they had

started to investigate the case. The applicant invokes Article 6

para. 2 (Art. 6-2) of the Convention which reads as follows:

"2. Everyone charged with a criminal offence shall be presumed

innocent until proved guilty according to law."

The Commission notes that this complaint concerns the original

criminal proceedings in 1993-1994 and the police investigations prior

to that. However, the Commission is not required to decide whether or

not the facts alleged by the applicant disclose any appearance of a

violation of the above provision, as Article 26 (Art. 26) of the

Convention provides that the Commission "may only deal with the matter

... within a period of six months from the date on which the final

decision was taken".

In the present case the decision of the Supreme Court, which was

the final decision regarding the subject of this particular complaint,

was given on 3 February 1994, whereas the application was submitted to

the Commission on 3 February 1996, that is, more than six months after

the decision. Furthermore, an examination of the case does not disclose

the existence of any special circumstances which might have interrupted

or suspended the running of that period.

It follows that this part of the application has been introduced

out of time and must be rejected under Article 27 para. 3 (Art. 27-3)

of the Convention.

2. The applicant complains that the police did not investigate the

alleged crime he had reported and refers in this respect to Article 6

(Art. 6) of the Convention.

The Commission recalls that the Convention does not guarantee a

right to have criminal proceedings instituted against third persons.

Furthermore, the applicant's request to that effect did not involve a

determination of his civil rights (cf. for example No. 29785/96,

Dec. 4.9.96, D.R. 88-A, p. 163, see also No. 7116/75, Dec. 4.10.76,

D.R. 7, p. 91).

It follows that this part of the application is incompatible

ratione materiae with the provisions of the Convention within the

meaning of Article 27 para. 2 (Art. 27-2).

3. The applicant claims that he was denied access to court as he

could not have his case reopened in the Supreme Court after he had

learned about new evidence. He invokes Article 6 (Art. 6) of the

Convention which reads as follows:

"1. In the determination ... of any criminal charge against

him, everyone is entitled to a fair ... hearing ..."

The Commission recalls, however, that according to established

case-law, Article 6 (Art. 6) of the Convention does not apply to

proceedings for reopening a trial given that someone who applies for

his case to be reopened and whose sentence has become final, is not

someone "charged with a criminal offence" within the meaning of the

said Article (cf. for example No. 7761/77, Dec. 8.5.78, D.R. 14, p.

171).

This part of the application must therefore be rejected as being

incompatible ratione materiae with the provisions of the Convention

within the meaning of Article 27 para. 2 (Art. 27-2).

4. The applicant finally complains that he was denied free legal

assistance as the Supreme Court did not order the medical examinations

to be carried out and to be paid by legal aid. He invokes Article 6

para. 3 (c) (Art. 6-3-c) of the Convention.

The Commission notes, however, that the applicant has not been

charged with a criminal offence, as the case concerns reopening of a

previous judgment which is already final. As Article 6 (Art. 6) does

not apply to this case as mentioned above, this part of the application

must also be rejected as being incompatible ratione materiae with the

provisions of the Convention within the meaning of Article 27 para. 2

(Art. 27-2).

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

M.F. BUQUICCHIO N. BRATZA

Secretary Acting President

to the First Chamber of the First Chamber

Menu

KÄRKKÄINEN v. FINLAND

KÄRKKÄINEN v. FINLAND

LEXI