Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 26315/95

by Janne KOSONEN

against Finland

The European Commission of Human Rights (First Chamber) sitting

in private on 9 April 1997, the following members being present:

Mrs. J. LIDDY, President

MM. M.P. PELLONPÄÄ

E. BUSUTTIL

A. WEITZEL

C.L. ROZAKIS

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 4 October 1994 by

Janne KOSONEN against Finland and registered on 26 January 1995 under

file No. 26315/95;

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 1972 and currently

serving a prison sentence at Kerava. He is represented by

Mr Veikko Lehtevä, a lawyer practising in Helsinki.

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

summarised as follows.

The applicant and K were charged with, inter alia, manslaughter

of W, committed on 13 or 14 July 1993. The defendants were suspected

of having stabbed W to death with a knife. The applicant denied the

charges, claiming that he had acted in legitimate self-defence.

On 2 September 1993 the Vantaa District Court (kihlakunnanoikeus,

häradsrätten) convicted the applicant of manslaughter committed in

excessive self-defence. He was also convicted of certain other offences

and sentenced to a total of five years' imprisonment. K was acquitted.

The applicant, the public prosecutor and one of the complainants

appealed. The applicant also requested to be remanded for a complete

mental examination. The Court of Appeal obtained a written opinion from

a physician of the prison where the applicant was detained on remand.

According to the opinion, a mental examination was at least partially

justified.

On 2 December 1993 the Helsinki Court of Appeal (hovioikeus,

hovrätten) held a re-hearing of the case, limited to the offence

committed on 13 or 14 July 1993. It heard the applicant and K as

defendants, their respective counsel, the public prosecutor and counsel

of the appealing complainant. At the close of the hearing the parties

were informed that a separate record thereof would be drawn up.

On 7 December 1993 the applicant's counsel requested the hearing

record and received a copy thereof. This did not include any

transcripts of the parties' oral statements. Instead the record

indicated that those statements had been audiotaped. Counsel was

informed that he was free to listen to the tapes on the Court of

Appeal's premises.

By judgment of 21 December 1993 the Court of Appeal refused to

remand the applicant for a mental examination and convicted him of

manslaughter. It found, among other things, that at its hearing he had

partially amended his version of the events immediately preceding W's

death. The applicant's other convictions were upheld and he was

sentenced to a total of ten years' imprisonment.

The applicant requested leave to appeal and appealed to the

Supreme Court (korkein oikeus, högsta domstolen). (Under Finnish law

the appeal must be made already in connection with the request for

leave to appeal.) The applicant considered, inter alia, that in the

light of the Court of Appeal's findings which were based on the oral

statements made at its hearing he should have been given a complete

record of that hearing. Leave to appeal was refused on 7 April 1994.

The applicant was in detention on remand throughout the

proceedings but was represented by court-appointed counsel (his present

counsel before the Commission). Referring to fresh medical evidence,

he later requested that the Supreme Court reopen the proceedings. On

12 January 1996 the Supreme Court rejected this request.

COMPLAINTS

1. The applicant complains about the Court of Appeal's failure to

produce a complete record of its hearing. The Court of Appeal quashed

his conviction and sentence due to the discrepancies which it had found

between his statements at that hearing and those previously made. In

these circumstances the fact that counsel was unable to rely on

transcriptions of the oral statements to the Court of Appeal in the

applicant's request for leave to appeal and his appeal to the Supreme

Court hampered the defence and his right to a fair hearing. He invokes

Article 6 para. 3 (a) of the Convention read in conjunction with

Article 6 para. 1.

2. The applicant furthermore complains about the failure of the

Court of Appeal and the Supreme Court to remand him for a complete

mental examination. Had that been done and had he been considered not

to have been in possession of his full senses at the time of the

manslaughter, he would most likely have received a more lenient

sentence. He invokes Article 3 of the Convention, read in conjunction

with Article 6 para. 1.

THE LAW

1. The applicant complains about the Court of Appeal's failure to

produce a complete record of its hearing. In the particular

circumstances of the case the fact that counsel was unable to rely on

transcribed oral statements to the Court of Appeal in the applicant's

request for leave to appeal and the appeal to the Supreme Court

hampered the defence and his right to a fair hearing. He invokes

Article 6 para. 3 (a) (Art. 6-3-a) of the Convention read in

conjunction with Article 6 para. 1 (Art. 6-1).

The Commission considers that the complaint should rather be

considered under Article 6 para. 3 (b) (Art. 6-3-b) which, insofar as

relevant, reads as follows:

"Everyone charged with a criminal offence has the following

minimum rights:

...

b. to have adequate ... facilities for the preparation of

his defence; ..."

Article 6 para. 1 (Art. 6-1) reads, insofar as relevant, as

follows:

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

him, everyone is entitled to a fair ... hearing by [a]

tribunal established by law. ..."

The Commission must examine whether the proceedings at issue were

"fair" within the meaning of Article 6 para. 1 (Art. 6-1) of the

Convention read in conjunction with para. 3 (b) (cf., e.g., Eur. Court

HR, Lüdi v. Switzerland judgment of 15 June 1992, Series A no. 238, p.

20, para. 43). In order to determine whether the aim of Article 6

(Art. 6)- a fair trial - has been achieved, regard must be had to the

domestic proceedings as a whole (cf. Eur. Court HR, Imbrioscia v.

Switzerland judgment of 24 November 1993, Series A no. 275, pp. 13-14,

paras. 36-38).

Article 6 para. 3 (b) (Art. 6-3-b) of the Convention recognises

the right of an accused to have at his disposal, for the purpose of

exonerating himself or of obtaining a reduction in his sentence, all

relevant elements that have been or could be collected by the competent

authorities. If the element in question is a document, access to that

document is a necessary "facility" within the meaning of Article 6

para. 3 (b) (Art. 6-3-b) if this element concerns, for instance, the

credibility of the defendant's testimony (see Jespers v. Belgium, Comm.

Report 14.12.81, para. 58, D.R. 27, p. 88).

It is true that in the present case the Court of Appeal increased

the applicant's sentence radically after having concluded that he had

not been acting in self-defence when causing W's death. Explicit

reference was made to the applicant's oral statements before the Court

of Appeal.

The Commission finds no indication, however, that, when preparing

the applicant's request for leave to appeal to the Supreme Court and

his actual appeal, counsel was prevented from acquainting himself with

the oral statements audiotaped at the hearing before the Court of

Appeal, though available to him on the court's premises only. Nor is

there any indication that the Supreme Court would have been unable to

take into account the contents of those tapes, should it have

considered this to be necessary for its own assessment of the case.

In these particular circumstances and considering the proceedings

as a whole, the Commission finds no appearance of a violation of

Article 6 para. 1 of the Convention read in conjunction with

para. 3 (b) (Art. 6-1+6-3-b) .

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. The applicant further complains about the failure of the Court

of Appeal and the Supreme Court to remand him for a complete mental

examination. He invokes Article 3 of the Convention, read in

conjunction with the above-cited Article 6 para. 1 (Art. 3+6-1).

Article 3 (Art. 3) reads as follows:

"No one shall be subjected to torture or to inhuman or

degrading treatment or punishment."

The Commission does not find that the failure complained of

subjected the applicant to treatment proscribed by Article 3 (Art. 3).

It follows that this complaint must also 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.

M.F. BUQUICCHIO J. LIDDY

Secretary President

to the First Chamber of the First Chamber

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KOSONEN v. FINLAND

KOSONEN v. FINLAND

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