AS TO THE ADMISSIBILITY OF

                      Application No. 24738/94

                      by Timo Taavetti KAUKONEN

                      against Finland

      The European Commission of Human Rights (First Chamber) sitting

in private on 17 January 1996, the following members being present:

           Mr.   C.L. ROZAKIS, President

           Mrs.  J. LIDDY

           MM.   E. BUSUTTIL

                 A.S. GÖZÜBÜYÜK

                 A. WEITZEL

                 M.P. PELLONPÄÄ

                 B. MARXER

                 B. CONFORTI

                 N. BRATZA

                 I. BÉKÉS

                 E. KONSTANTINOV

                 G. RESS

                 A. PERENIC

                 C. BÎRSAN

                 K. HERNDL

           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 5 July 1994 by

Timo Taavetti KAUKONEN against Finland and registered on 1 August 1994

under file No. 24738/94;

      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. He is a

pensioner and resides in Kuopio, Finland. Before the Commission he is

represented by Mr. Heikki Salo, a lawyer practising in Helsinki,

Finland.

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

summarised as follows.

                                   I

      The applicant was charged with giving false evidence with the

intention that an innocent person be charged (perätön ilmianto) and

with public defamation (julkinen herjaus) committed on 24 January 1990,

contrary to chapter 26 section 1 and chapter 27 section 1 of the Penal

Code (rikoslaki), respectively, in connection with a case in which the

applicant had acted as counsel.

      The case was heard in the District Court (kihlakunnanoikeus) of

Pyhäjärvi. On 20 November 1991 the District Court ordered the applicant

to appear in court in person on 29 January 1992. The applicant was

brought to this session by the police.

      On 18 March 1992 the District Court, presided over by judge E,

found the applicant guilty of giving false evidence contrary to chapter

26 section 1 of the Penal Code and sentenced him to three months and

fifteen days' imprisonment.

      The applicant appealed against the judgment to the Court of

Appeal (hovioikeus) of Vaasa, which upheld the District Court's

judgment on 7 June 1993.

      On 6 September 1993 the Supreme Court (korkein oikeus) refused

the applicant leave to appeal.

                                  II

      On 5 May 1992 the applicant instituted private prosecution

proceedings against the aforementioned presiding judge E, maintaining

that E had committed offences in office contrary to chapter 40 section

10 of the Penal Code when acting as chair in the applicant's case in

the District Court. The applicant requested that E be convicted and

sentenced and that E be dismissed from office. The applicant further

requested that E, jointly with the State, be ordered to pay the

applicant compensation of FIM 220,000 for mental suffering as well as

to pay his legal costs. The applicant requested an oral hearing. He

also requested that evidence from a witness named K be taken.

      The Court of Appeal gave the applicant an opportunity to submit

his final statement in the case in writing. The applicant did not avail

himself of this opportunity.

       By judgment No. 1123 of 7 June 1993, the Court of Appeal

dismissed the applicant's private prosecution against E and also

rejected the applicant's claim for damages. As regards the question of

an oral hearing, the Court of Appeal stated that as a general rule the

Court of Appeal would hold an oral hearing in cases where it functioned

as a first instance court if a party requested an oral hearing or if

there was otherwise reason to hold an oral hearing. If the claim was

manifestly ill-founded there was, however, no reason to hold an oral

hearing. As the applicant's claims were manifestly ill-founded, the

Court of Appeal rejected the applicant's request for an oral hearing.

      The applicant appealed against the judgment to the Supreme Court.

      On 5 January 1994 the Supreme Court refused the applicant leave

to appeal. There was no oral hearing in the Supreme Court.

                                  III

      In addition to the above proceedings the applicant instituted,

on 8 May 1992, private prosecution proceedings against the police

officers JV, TS, TR and MK claiming that they had committed offences

in office in connection with the criminal case against the applicant

(see part I above), in which JV and TS had acted as prosecutors, and

TR and MK had taken part in the preliminary investigation. The

applicant invoked chapter 40 sections 10 and 11 of the Penal Code. The

applicant further requested that the police officers, jointly with the

State, be ordered to pay the applicant compensation of FIM 220,000 for

mental suffering as well as to pay his legal costs.

      On 25 May 1992 the applicant brought a further private

prosecution against the aforementioned police officer JV, claiming that

JV had given false evidence in his witness evidence in the criminal

case against the applicant. The applicant invoked chapter 17 sections

1 and 2 of the Penal Code. The applicant also brought a private

prosecution against a fifth police officer, PR, in connection with the

preliminary investigation in the criminal case against the applicant,

claiming that PR had committed offences in office contrary to chapter

40 section 11 of the Penal Code. The applicant requested that JV and

PR, jointly with the State, be ordered to pay him compensation of FIM

55,000 for mental suffering as well as to pay his legal costs.

      The applicant requested an oral hearing.

      The Court of Appeal gave the applicant an opportunity to submit

his final statement in the case in writing. The applicant did not avail

himself of this opportunity.

      By judgment No. 1122 of 7 June 1993 the Court of Appeal rejected

the applicant's request for an oral hearing on the grounds that the

applicant's claims were manifestly ill-founded. The Court of Appeal

stated that the private prosecution against JV as regards the alleged

false evidence did not concern JV's duties in office. Since the alleged

crime was not to be characterised as an offence in office, the Court

of Appeal was not competent to consider, as a first instance court, the

relevant private prosecution or the claim for damages based thereon.

The Court of Appeal further stated that TR, MK and PR were not

appointed by the President of the Republic or the Council of State,

which meant, by virtue of section 33 of the Decree on Police

Administration (poliisin hallinnosta annettu asetus) that they were to

be charged with offences in office in the relevant first instance court

instead of in the Court of Appeal. Therefore the Court of Appeal did

not consider the case against TR, MK and PR on the merits.

      The Court of Appeal stated, as regards the private prosecution

the applicant had brought against JV and TS, that they had not, when

bringing charges against the applicant and when acting as prosecutors

in the criminal case, violated their official duties. The Court of

Appeal dismissed the private prosecution and also rejected the claim

for damages based thereon.

      The applicant appealed against the judgment to the Supreme Court.

      On 5 January 1994 the Supreme Court refused the applicant leave

to appeal. There was no oral hearing in the Supreme Court.

                                  IV

      In January and February 1994 the applicant requested the Supreme

Court to postpone the execution of the sentence of imprisonment imposed

by the District Court of Pyhäjärvi on 18 March 1992, whereupon the

final decision was taken by the Supreme Court on 6 September 1993 (see

part I above). He also requested the Supreme Court to reopen his

criminal case. The results of these requests are unknown.

COMPLAINTS

      As regards the criminal proceedings against him (cf. part I

above), the applicant complains that he was subjected to inhuman and

degrading treatment when he was brought to the District Court by the

police on 29 January 1992. He also complains that the court order

concerning his presence in the District Court constituted inhuman and

degrading treatment in itself. He invokes Article 3 of the Convention.

He also complains, under Article 8 of the Convention, that the incident

violated his right to respect for his private life and his home.

      The applicant further complains that the District Court refused

to take evidence from certain witnesses on his behalf. He invokes in

this respect Article 6 para. 3 (d) of the Convention.

      Finally, as regards the criminal proceedings instituted against

the applicant, he complains under Article 14 of the Convention that he

has been discriminated against.

      As regards the private prosecution proceedings he brought against

judge E and the claim for damages based thereon (cf. part II above),

the applicant complains, under Article 6 of the Convention, of the lack

of an oral hearing in the Court of Appeal. He also complains that there

was no oral hearing in the Supreme Court. The applicant maintains that

the Finnish reservation to the Convention does not give Finland the

right to refuse an oral hearing totally.

      He further maintains that the proceedings as a whole were not

fair and that the principle of equality of arms was violated.

      He complains, under Article 6 para. 3 (d) of the Convention, that

the lack of an oral hearing deprived him an opportunity to have

witnesses examined in order to prove his allegations.

      The applicant further complains, under Article 13 of the

Convention, that the did not have an effective remedy before a national

authority. He also complains, under Article 14 of the Convention, that

he was discriminated against.

      As regards the private prosecution proceedings he had brought

against five police officers and the claims for damages based thereon

(cf. part III above), the applicant complains, under Article 6 of the

Convention, of the lack of an oral hearing in the Court of Appeal. He

also complains that there was no oral hearing in the Supreme Court. The

applicant maintains that the Finnish reservation to the Convention does

not give Finland the right to refuse an oral hearing totally.

      He further maintains that the proceedings as a whole were not

fair and that the principle of equality of arms was violated.

      He complains, under Article 6 para. 3 (d) that the lack of an

oral hearing deprived him an opportunity to have witnesses examined in

order to prove his allegations.

      The applicant further complains, under Article 13 of the

Convention, that he did not have an effective remedy before a national

authority. He also complains, under Article 14 of the Convention, that

he was discriminated against.

      Finally, the applicant complains that the Supreme Court did not,

within a reasonable time, answer his request concerning the execution

of his sentence and the reopening of the criminal case instituted

against him. He invokes, in this respect, Article 6 of the Convention.

He complains further that he has been discriminated against in that the

Supreme Court dealt speedily with the cases in which he had brought

private prosecutions against certain officials.

THE LAW

1.    As regards the criminal proceedings instituted against the

applicant, he complains firstly, under Articles 3 and 8

(Art. 3, 8) of the Convention, that the incident on 29 January 1992

constituted inhuman and degrading treatment and violated his right to

respect for his home and his private life. He  further complains, under

Article 6 para. 3 (d) (Art. 6-3-d), that his right to call witnesses

was violated. Finally, under Article 14 (Art. 14) of the Convention,

he complains that he was discriminated against.

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

the facts alleged by the applicant disclose any appearance of a

violation of these provisions, 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 incident which allegedly violated the

applicant's rights under Articles 3 and 8 (Art. 3, 8), took place on

29 January 1992. Furthermore, the decision of the Supreme Court which

was the final decision regarding the subject of this particular

complaint, was given on 6 September 1993. The application was submitted

to the Commission on 5 July 1994, that is, more than six months after

29 January 1992 as well as more than six months after 6 September 1993,

i.e. the date of Supreme Court's decision. It is true that the

applicant lodged a request for a reopening of his criminal case at the

beginning of 1994. However, the Commission recalls on this point its

constant jurisprudence according to which an application for a retrial

or similar extraordinary remedies cannot, as a general rule, be taken

into account in the application of Article 26 (Art. 26) of the

Convention (cf., for example, No. 10326/83, Dec. 6.10.83, D.R. 35 p.

218). Furthermore, an examination of the case does not disclose the

existence of any other 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.    As regards the private prosecution proceedings the applicant

brought against judge E and the claim for damages based thereon, the

applicant complains of the lack of an oral hearing in the Court of

Appeal. He also complains that there was no oral hearing in the Supreme

Court. He further complains that the proceedings as a whole were not

fair and that the principle of equality of arms was violated. Finally,

he complains that his right to call witnesses was violated. He invokes

Article 6 (Art. 6) of the Convention.

      The Commission considers that it cannot, on the basis of the

file, determine the admissibility of the application in so far as it

concerns the lack of an oral hearing. Therefore it is necessary, in

accordance with Rule 48 para. 2 (b) of the Rules of Procedure, to give

notice thereof to the respondent Government both in relation to the

question of the applicability of Article 6 (Art. 6) and in relation to

the lack of an oral hearing. The Commission considers further that the

examination of the other complaints submitted by the applicant in

relation to these proceedings should be adjourned.

3.    As regards the private prosecution proceedings which the

applicant brought against five police officers, the applicant submits

the same complaints as in respect of the private prosecution

proceedings against judge E.

      The Commission first notes that the Court of Appeal tried the

private prosecution on the merits only in so far as it concerned two

of the five police officers. In these respects the same problems occur

as in respect of the above private prosecution proceedings against

judge E.

      The Commission considers that it is necessary to give notice of

this part of the application to the respondent Government both in

relation to the question of the applicability of Article 6 (Art. 6) and

in relation to the lack of an oral hearing.

      The Commission considers further that the examination of the

other complaints submitted by the applicant in relation to these

proceedings should be adjourned.

4.    The Commission further notes that the Court of Appeal refused,

on the basis of lack of competence, to try the private prosecution in

so far as it concerned three of the five police officers, and in so far

as it concerned one of them in his capacity as a private person. The

Commission finds that in these respects the applicant had the

opportunity to bring the private prosecution before the relevant court

of first instance. However, he has not availed himself of this

opportunity and has thus failed to exhaust domestic remedies as

required by Article 26 (Art. 26) of the Convention.

      It follows that this part of the application must be rejected,

under Article 27 para. 3 (Art. 27-3) of the Convention.

5.    The applicant complains that the Supreme Court failed to answer,

within a reasonable time, his request concerning the postponement of

the enforcement of his sentence of imprisonment and his request for the

reopening of his criminal case. He complains, under Article 6

(Art. 6) of the Convention, that his right to a fair hearing within a

reasonable time has been violated. In relation to these proceedings he

complains further, under Article 14 (Art. 14) of the Convention, that

he has been discriminated against.

      As regards the complaint concerning the request for the

postponement of the enforcement of the sentence made under Article 6

(Art. 6) the Commission recalls that where the person concerned has

already been convicted, any dispute concerning the postponement of the

enforcement of the sentence falls outside the scope of Article 6

(Art. 6) of the Convention since the dispute has ceased to involve a

criminal charge against the applicant within the meaning of Article 6

(Art. 6) (cf. mutatis mutandi No. 10733/84, Dec. 11.3.85, D.R. 41

p. 211).

      As regards the complaint concerning the request for the reopening

of the criminal case instituted against the applicant, the Commission

recalls that, according to its constant case-law, Article 6 (Art. 6)

of the Convention does not apply to proceedings for re-opening a trial,

given that someone who applies for his case to be re-opened and whose

sentence has become final, is not someone "charged with a criminal

offence" within the meaning of the said Article (cf. No. 7761/77,

Dec. 8.5.78, D.R. 14 p. 171).

      The applicant further complains, under Article 14 (Art. 14) of

the Convention, that he has been discriminated against in the

proceedings concerning his requests for the re-opening of his case and

for the postponement of the enforcement of his sentence.

      In this respect the Commission recalls that Article 14 (Art. 14)

of the Convention complements the other substantive provisions of the

Convention and the Protocols. On the one hand, it may be applied in an

autonomous manner as breach of Article 14 (Art. 14) does not presuppose

breach of those other provisions. On the other hand, it has no

independent existence since it has effect solely in relation to "the

enjoyment of the rights and freedoms" safeguarded by the other

substantive provisions (see Eur. Court H.R., Van der Mussele judgment

of 29 September 1983, Series A no. 70, p. 22, para. 43).

      With reference to its findings above, the Commission finds that

there is no scope for the application of Article 14 (Art. 14) of the

Convention.

      It follows that this part of the application is incompatible

ratione materiae with the Convention within the meaning of Article 27

para. 2 (Art. 27-2) of the Convention.

      For these reasons, the Commission, unanimously,

      DECIDES TO ADJOURN the examination of the complaints relating to

      the two sets of private prosecution proceedings in so far as the

      cases were examined on the merits by the Court of Appeal in its

      judgments nos. 1122 and 1123 of 7 June 1993;

      DECLARES INADMISSIBLE the remainder of the application.

Secretary to the First Chamber         President of the First Chamber

      (M.F. BUQUICCHIO)                     (C.L. ROZAKIS)