Lexploria

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

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VUORINEN v. FINLAND

VUORINEN v. FINLAND

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