AS TO THE ADMISSIBILITY OF

                      Application No. 21909/93

                      by I.J. (subsequently E.J. and A.M.)

                      against Finland

      The European Commission of Human Rights (First Chamber) sitting

in private on 27 November 1996, the following members being present:

           Mrs.  J. LIDDY, President

           MM.   M.P. PELLONPÄÄ

                 E. BUSUTTIL

                 A. WEITZEL

                 L. LOUCAIDES

                 B. CONFORTI

                 N. BRATZA

                 I. BÉKÉS

                 G. RESS

                 A. PERENIC

                 C. BÎRSAN

                 K. HERNDL

                 M. VILA AMIGÓ

           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 2 April 1993 by

I.J. and subsequently E.J. and A.M. against Finland and registered on

24 May 1993 under file No. 21909/93;

      Having regard to the reports provided for in Rule 47 of the Rules

of Procedure of the Commission;

      Having regard to the observations submitted by the respondent

Government on 16 November 1995 and the observations in reply submitted

by the applicant on 16 January 1996;

      Having deliberated;

      Decides as follows:

THE FACTS

      The original applicant, Mr. I.J., was a Finnish citizen, born in

1943. He was serving a prison sentence in the Central Prison of

Helsinki up to 3 November 1995, when he died. His wife, Mrs. E.J., and

his sister, Ms. A.M., have expressed their wish to pursue the

application on his behalf. They are also Finnish citizens, born in 1934

and 1935, respectively, and resident in Helsinki. Before the Commission

they are represented by Mr. Markku Fredman, a lawyer in Helsinki.

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

summarised as follows.

A.    Particular circumstances of the case

      In January 1991 I.J. was arrested and detained on remand on

suspicion of having murdered his then wife on 18 August 1980. V, a

member of the Finnish Bar, was appointed his counsel pursuant to the

1973 Act on Cost-Free Court Proceedings (laki maksuttomasta

oikeudenkäynnistä, lag om fri rättegång 87/73).

      During an interrogation in February 1991 relating to the

suspected murder in 1980 I.J. confessed to having committed arson on

25 September 1986. One person had died as a result. During a further

interrogation on 26 February 1991 he confessed to having committed a

second count of arson on 25 September 1986. Two days later he confessed

to having committed a third count of arson on 12 July 1986. Two persons

had died as a result.

      On 4 March 1991 I.J. confessed to having committed a fourth count

of arson on 24 November 1988. One person had died as a result. Six days

later he confessed to having committed a fifth count of arson on

29 April 1989.

      None of the counts of arson to which I.J. confessed had been

under investigation by the police at the time of the first

interrogations relating to the suspected murder in 1980. The fires had

been registered as accidental.

      It transpires from the various records of the police

interrogations that I.J. was informed both of his position as a suspect

and of the offences in question. He was also informed of his right to

request an interrogation witness as well as of his right to be assisted

by a lawyer. The interrogations took place between 8.30 and 21.40 and

lasted three hours at the most. However, as for two interrogations

there is no indication when they ended.

      I.J. was charged with, inter alia, murder on 18 August 1980,

arson and two counts of murder committed on 12 July 1986, two counts

of arson and one count of murder committed on 25 September 1986, arson

and murder committed on 24 November 1988 and arson committed on

29 April 1989. He was able to meet his counsel in private before the

respective charges against him were presented to the City Court

(raastuvanoikeus, rådstuvurätten) of Helsinki.

      At a hearing before the City Court on 18 April 1991 I.J. denied

all charges. He had allegedly invented his confessions in order to be

released from his detention on remand in the Pasila Police

Headquarters, where his conditions had been difficult. He alleged that

the interrogating officer T had tempted him to confess, allegedly

promising that he "would [then] be able to go home to his wife". (I.J.

had remarried in 1989.)     On 26 April 1991 I.J. was again

interrogated, now in the Helsinki Central Prison, where he had been

transferred. He then described how, on 12 July 1986, he had set the

relevant house on fire. On 27 April 1991 he described the events on 12

July 1986 in further detail. Having come to consult with I.J., his

counsel attended the end of this interrogation. On counsel's arrival

I.J. made the following statement (as reproduced in pre-trial record

no. 3439/91, first supplementary investigation):

      (translation from Finnish)

      "Having read [his statement, as reproduced by the

      interrogating officer], [I.J.] stated for the record that

      he does not himself believe that he has acted in the manner

      described by him during the interrogation. [He] continued

      ...: "I should be crazy, if I have acted like this".

      At a hearing before the City Court on 2 May 1991 I.J. withdrew

his confessions of 26 and 27 April 1991 in respect of the suspected

arson and murder committed on 12 July 1986, again stating that he had

invented them in order to be released from his detention on remand. For

the same reason, he also withdrew his confession in respect of the

suspected arson and murder committed on 24 November 1988. On that very

day he had allegedly been undergoing treatment in an institution for

the rehabilitation of alcoholics at Tervalampi.

      During interrogations on 8, 9 and 10 May 1991 I.J. confessed to

having been at the scene of the suspected arson and murder on

24 November 1988. However, before the City Court on 16 May 1991 he

withdrew these confessions.

      During a further interrogation on 11 June 1991 I.J. again

confessed to having been at the scene of the suspected arson and murder

on 24 November 1988. At a subsequent hearing before the City Court he

was questioned about the genuine character of this statement. He then

submitted that "he had been moved back and forth during the

investigations" and that "he had been interrogated for several days

with the intention of making him irritated and confused".

      I.J.'s withdrawal of his confession relating to the offences

committed on 24 November 1988 made the prosecution order that a further

interrogation be conducted by a different police officer. It is the

Government's interpretation of the interrogation record that I.J. then

confessed to having absented himself from the premises at Tervalampi

on that day.

      Out of a total of 34 interrogations effectuated either at the

pre-trial stage or in the course of the proceedings before the City

Court I.J.'s counsel attended only one in part (on 26 April 1991; see

above). It appears that officer T. conducted 32 of the interrogations

and another officer the remaining two (on 13 and 18 March 1991). Four

interrogations were recorded on audio tape (those of 14 and

28 February 1991 as well as of 8 and 9 May 1991). Four further

interrogations were attended throughout by an interrogation witness,

this being another police officer (those of 6 March 1991, the two

interrogations held on 27 April 1991 and the one held on 11 June 1991).

On four further occasions a similar interrogation witness was present

either when I.J. signed his statements as reproduced by T. in writing

or when I.J. approved statements recorded by dictaphone either as they

had been played back to him or transcribed (on 21 January and on 8, 9

and 10 May 1991). To the extent that interrogations were audiotaped

they were reproduced in the pre-trial record. None of the pre-trial

interrogations were recorded on video tape.       According to the

Government, the tapes of the recorded four interrogations were handed

in to the City Court by the Public Prosecutor. Assuming that the

Government's statement is correct, it is submitted on behalf of I.J.

that the tapes must have been handed in without his counsel's

knowledge.

      A number of persons (such as owners of houses in the vicinity)

were heard as witnesses before the City Court in relation to the

charges against the applicant concerning arson and murder. None of

these appear to have been eye witnesses.

      The City Court also heard interrogating officer T, the officer

in charge of the technical investigations on the scenes of the crime

and an official of the Forensic Laboratory of the Central Criminal

Police. It also had regard to various other items of forensic evidence

presented by the prosecution in the form of written expert opinions.

      According to the Government, experts in forensic medicine,

odontology, clinical matters, gynaecology, meteorology were heard not

only during the pre-trial investigation but also before the City Court.

      On 6 February 1992 the City Court found I.J. guilty of

manslaughter committed on 18 August 1980 as well on all counts of arson

and murder. As regards those counts, the City Court had regard to his

statements during the pre-trial investigation. In so far as he had

changed his statements before the City Court, it found that he "had not

shown any plausible reasons" for doing so. It noted that his statements

in the pre-trial interrogations had been "detailed and consistent".

"The further material" presented to the Court also supported those

statements.

      I.J. was sentenced to lifetime imprisonment. He appealed, arguing

in essence that he had been found guilty of arson and murder solely on

the basis of his confessions during the pre-trial investigation and

which he had later withdrawn. He referred, inter alia, to the

interrogation technique used and recalled that his counsel had not been

informed of any of the interrogations. Moreover, no evidence had shown

that, on 24 November 1988, he had been absent from the premises at

Tervalampi where he had been staying at the time.

      On 9 July 1992 the Court of Appeal (hovioikeus, hovrätten) of

Helsinki upheld I.J.'s conviction and sentence concerning the counts

of arson and murder. No further oral hearing was held.

      I.J. requested leave to appeal to the Supreme Court (korkein

oikeus, högsta domstolen) so as to enable it to consider, inter alia,

what weight was to be placed on a statement allegedly made after a

suspect had been led to confess and which he had later withdrawn. He

also challenged the City Court's meagre reasoning as upheld by the

Court of Appeal. On 8 October 1992 the Supreme Court refused leave to

appeal.

B.    Relevant domestic law

      1.   The pre-trial investigation

      According to the Pre-Trial Investigation Act (esitutkintalaki,

förundersökningslag 449/87) of Finland, circumstances and evidence

speaking either against or in favour of a suspect shall be ascertained

and taken into consideration (section 7). A suspect is in principle

entitled to be assisted by counsel. If the suspect has been deprived

of his or her liberty, he or she is in principle also entitled to be

in contact with counsel in private either through consultations or by

telephone or correspondence. Exceptionally, consultations may be

surveilled. Such consultations or telephone conversations shall not be

listened to, unless there is a justified reason for suspecting abuse.

The same is true for correspondence between the remand prisoner and his

or her counsel (section 10 with further references).

      Before being questioned everyone shall be notified of his or her

position in the investigation (section 22) as well as of his or her

right to request the presence of an impartial witness within the

meaning of chapter 17, section 43 of the Code of Judicial Procedure

(Oikeudenkäymiskaari, Rättegångs Balk). If such a request would delay

the questioning and thereby jeopardise the investigation, the

questioning shall nevertheless take place in the absence of a witness.

The interrogating officer may also summon a witness on his or her own

initiative (section 30).

      If the person is to be questioned as a suspect he or she shall

also be informed of his or her right to be assisted by counsel

(section 29). Counsel is entitled to be present during any questioning,

unless the officer in charge of the investigation prohibits this for

important reasons related to the investigation (section 31). If counsel

is not allowed to be present, he or she shall later be afforded a

possibility of finding out what transpired during the questioning and

to put relating questions as soon as this would not hamper the

investigation. According to the 1988 Decree on Pre-Trial Investigation

and Coercive Means (asetus esitutkinnasta ja pakkokeinoista, förordning

om förundersökning och tvångsmedel 575/88), any refusal of a request

for counsel to be present shall be recorded together with the reasons

therefor and the subsequent informing of counsel concerning his or her

possibility of obtaining information and putting questions (section

16).

      A person shall be questioned in a calm and objective manner.

Knowingly false or deceiving statements or promises concerning

particular benefits shall not be used in order to obtain a confession

or a statement leading in a certain direction. The same is true for

exhaustion, threats, coercive means or other improper methods or

approaches that would influence the freedom of choice, willpower,

memory or judgment of the person being questioned. No one shall be

questioned between 21.00 hrs and 06.00 hrs without special cause

(section 24).

      A record shall be kept of any questioning. A statement recorded

in writing shall be read out immediately after the questioning; the

record shall be shown; and the questioned person be asked whether his

or her statement has been properly recorded. Corrections or additions

shall in principle be made on request. Any refused request shall also

be recorded. A statement may also be recorded on audio or video tape

provided the person to be questioned is informed thereof beforehand.

The questioned person shall then be entitled to modify or supplement

his or her statement after a playback of the recorded statement. If the

investigating officer reproduces the statement in an edited form by

using a dictaphone, the questioned person shall have the right either

to modify this reproduction either after a playback of the recording

or after having been shown the transcript thereof (section 39 with

further reference).

      2.   Cost-free proceedings and official counsel

      According to the 1973 Act, cost-free proceedings can be granted

already during a pre-trial investigation (section 1). A person granted

such proceedings is entitled to have an official counsel appointed if

he or she would be unable properly to assert his or her rights alone

(section 10).    3.   The courts' free evaluation of evidence

      According to the Code of Judicial Procedure, the court shall

decide what is to be regarded as the truth in a case after having

carefully considered all the evidence adduced. If the effect of the

presentation of certain evidence is governed by lex specialis, such

legislation shall be applied (chapter 17, section 2). A judgment shall

be based on reasons and law and not on arbitrariness. The main reasons

and the legal provisions on which it is based shall be mentioned in a

clear manner (chapter 24, section 3).

COMPLAINTS

      I.J. complained that the criminal proceedings leading to his

lifetime imprisonment were not "fair" within the meaning of Article 6

of the Convention and furthermore violated his right under Article 6

para. 2 to be presumed innocent until proved guilty according to law.

He alleged, in particular, that he was convicted solely on the basis

of confessions which he had invented in order to be released from his

detention on remand, having been tempted to do so by the interrogating

police officer, T. Neither his counsel nor a witness had attended the

crucial interrogations. In the exceptional circumstances his

confessions should at least have been recorded on audio and/or video

tape. It would also have been appropriate to alternate his

interrogators so as to ensure the objective character of the pre-trial

investigation. Finally, the reasons advanced by the courts in support

of I.J.'s conviction were insufficient, as the City Court in no way

specified the "further material" which it considered supported his

confessions.

PROCEEDINGS BEFORE THE COMMISSION

      The application was introduced on 2 April 1993 and registered on

24 May 1993.

      On 6 September 1995 the Commission (First Chamber) decided to

communicate the application to the respondent Government, pursuant to

Rule 48 para. 2 (b) of the Rules of Procedure.

      On 16 November 1995 I.J.'s representative informed the

Secretariat that his client had died on 3 November 1995 but that his

wife and sister wished that the examination of the application be

continued in accordance with I.J.'s own wish.

      The Government's written observations were submitted on

16 November 1995. I.J.'s representative replied on 16 January 1996.

THE LAW

1.    I.J. complained that the criminal proceedings leading to his

lifetime imprisonment were not "fair" within the meaning of Article 6

of the Convention and furthermore violated his right under Article 6

para. 2 (Art. 6-2) to be presumed innocent until proved guilty

according to law. Following his death his wife and sister have

requested that the Commission pursue its examination of the application

in accordance with his own wish.

      The Commission recalls that close relatives of a deceased

applicant are in principle entitled to take his or her place in the

proceedings before the Convention organs (see, e.g., Eur. Court HR,

Scherer v. Switzerland judgment of 25 March 1994, Series A no. 287, pp.

14-15, paras. 31-32 with further references; No. 25758/94, Dec.

7.3.96). In the circumstances of the present case the Commission

therefore accepts that I.J.'s wife and sister may pursue the

application on his behalf. Hereinafter they will be referred to as "the

applicants".

2.    The applicants complain that the criminal proceedings leading to

I.J.'s conviction of arson and murder were not "fair" within the

meaning of Article 6 (Art. 6) of the Convention which reads, in so far

as relevant, as follows:

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

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

      by [a] tribunal. ...

      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;

           c.    to defend himself in person or through legal

      assistance of his own choosing or, if he has not sufficient

      means to pay for legal assistance, to be given it free when

      the interests of justice so require; ..."

      The Government principally submit that "at least [the] main part"

of the application should be declared inadmissible for non-exhaustion

of domestic remedies, given that I.J. did not afford the domestic

courts with an opportunity to address all the various points raised in

his application to the Commission.

      Alternatively, the Government submit that the application is

manifestly ill-founded. I.J. was interrogated in conformity with the

Pre-Trial Investigation Act. He was informed by the police of his

position as a suspect; of the crimes under investigation; of his right

to request the presence of an interrogation witness; and of his right

to be assisted by counsel. He was afforded a counsel pursuant to the

Act on Cost-Free Proceedings. He was able to meet in private with

counsel whenever he so requested. He did not, however, request that a

witness or his counsel be present during any of the police

interrogations. Nor did he express any wish to have police officer T

replaced by another investigator. His statements did not vary as a

result of his counsel or a witness attending a certain interrogation.

Finally, by his own signature he approved his statements as reproduced

by the investigating officer.

      As regards the reasons advanced in support of I.J.'s conviction,

the Government recall that domestic law empowered the City Court freely

to assess all evidence, including that which had been adduced by

counsel on behalf of the defence. In convicting I.J. the courts did not

rely solely on the pre-trial investigation records. For instance,

during a total of 17 hearings the City Court heard a significant number

of witnesses and experts who had previously been heard during the pre-

trial investigation. The further evidence to which the City Court

referred in convicting I.J. appear in the trial records.

      The applicants maintain that domestic remedies have been

exhausted and Article 6 (Art. 6) violated. They agree that I.J. and

counsel V were not prevented from consulting in private. However, I.J.

did not understand that he could have requested to be assisted by

counsel during the interrogations, nor could he understand the effects

of the confessions which he invented so as to be released from his

detention on remand. Under domestic law counsel was entitled to attend

the interrogations. In spite of the exceptionally heinous offences at

issue and the circumstances surrounding I.J.'s confessions the police

failed to ensure sufficient audio- and/or videotaping of his statements

or the presence of a witness. This would have enabled a subsequent

verification of the genuine character of his confessions. Most of

I.J.'s statements were simply edited by the same officer T. In such

circumstances counsel should at least have been notified of the

interrogations so as to be able to assess whether his presence could

have served I.J.'s interests. Counsel effectively had to rely on such

notifications, as he could not foresee the date and hour of the

interrogations. In sum, the police allegedly failed to respect the

objectivity rule prescribed by the Pre-Trial Investigation Act.

      The applicants finally contend that it was not possible for I.J.

himself to deduce from the court decisions on what evidence his

conviction had been based apart from his confessions.

      The Commission recalls that under Article 26 (Art. 26) of the

Convention it may only deal with an application after all domestic

remedies have been exhausted, according to the generally recognised

rules of international law. In the present case, however, it need not,

for the reasons stated below, determine whether this condition has been

complied with.

3.    The Commission has first examined whether the proceedings at

issue were "fair" within the meaning of Article 6 para. 1

of the Convention read in conjunction with paras. 3 (b) and (c)

(Art. 6-1+6-3-b+6-3-c) (cf., e.g., Eur. Court HR, Lüdi v. Switzerland

judgment of 15 June 1992, Series A no. 238, p. 20, para. 43). It

recalls that Article 6 para. 3 (c) (Art. 6-3-c) gives the accused the

right to assistance and support by a lawyer throughout the proceedings.

To curtail this right during the pre-trial investigation may influence

the material position of the defence at the trial and therefore also

the outcome of the proceedings (see Eur. Court HR, Artico v. Italy

judgment of 13 May 1980, Series A no. 37, p. 16, para. 33). The manner

in which Article 6 paras. 1 as well as 3 (b) and (c)

(Art. 6-1, 6-3-b, 6-3-c) are to be applied as far as concerns the

preliminary investigation depends on the special features of the case.

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).

      It has not been alleged that during his detention on remand I.J.

was prevented from freely communicating with his counsel. It is

undisputed, however, that the police did not inform counsel in advance

of any of the interrogations with I.J. and that most of the

interrogations were conducted in the absence of a witness. On the other

hand, the Commission finds no indication that I.J., though informed of

his rights in this respect, ever requested the presence of counsel or

a witness during any of the interrogations. Nor has it been shown that

counsel himself informed the police of his wish to be present during

the interrogations or at least of his wish that he be given advance

notice of any interrogation. Finally, there is no indication of any

refusal of a request for counsel to be present during the

interrogations.

      In so far as the complaint concerns the basis for I.J.'s

conviction, the Commission recalls that as a general rule 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 (see, e.g., Eur. Court HR, Klaas v. Germany judgment of 22

September 1993, Series A no. 269-A, pp. 17-18, paras. 29-30). It

follows that the Commission cannot examine whether or not I.J. was

guilty or innocent of the offences of which he was convicted.

      Contrary to the Government's assertion concerning the facts of

the case the Commission observes that, as far as concerns the charges

against I.J. concerning the various counts of arson and murder, the

City Court obtained no oral testimony from experts within the meaning

of Finnish law. It did hear various witnesses, including officials

involved in the pretrial investigation. The applicant was assisted by

counsel V throughout the domestic court proceedings and it has not been

shown that counsel was in any way prevented from adducing evidence

supporting the defence. Finally, the Commission notes that I.J.'s

conviction was not based merely on his confessions during the police

interrogations. It has not been shown that as a legal professional V

was unable to comprehend the reasons underlying I.J.'s conviction,

including the various corroborative evidence adduced by the

prosecution, and to advise him accordingly.

      In these particular circumstances and assessing the proceedings

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

Article 6 para. 1 read in conjunction with paras. 3 (b) and (c)

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

      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.

4.    The applicants have also complained that the criminal proceedings

against I.J. violated his right under Article 6 para. 2 (Art. 6-2) of

the Convention to be presumed innocent until proved guilty according

to law.

      The Commission notes that the applicants have not provided any

substantiation of this complaint. Having regard to its considerations

above, it considers therefore that no separate issue arises in respect

of Article 6 para. 2 (Art. 6-2).

      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, by a majority,

      DECLARES THE APPLICATION INADMISSIBLE.

  M.F. BUQUICCHIO                                 J. LIDDY

     Secretary                                    President

to the First Chamber                        of the First Chamber