AS TO THE ADMISSIBILITY OF

                      Application No. 21581/93

                      by K.L.

                      against Finland

      The European Commission of Human Rights (First Chamber) sitting

in private on 6 September 1995, 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

                 G.B. REFFI

                 B. CONFORTI

                 N. BRATZA

                 I. BÉKÉS

                 E. KONSTANTINOV

                 G. RESS

                 A. PERENIC

           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 24 November 1991

by K.L. against Finland and registered on 25 March 1993 under file

No. 21581/93;

      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 1948 and resident at

Lahti. He is a salesman by profession.

Particular circumstances of the case

      Between 1963 and 1989 the applicant was convicted on 28 occasions

of, inter alia, illegal possession of firearms. On 27 February 1991 he

was arrested on suspicion of attempted manslaughter. Upon his arrest

he admitted to having fired shots with a serial firearm near two other

persons, K.L. and R.L. Some of these shots had hit K.L.

      On 2 March 1991 the applicant was detained on remand pending

trial. After a hearing, where the applicant was assisted by counsel,

the City Court (raastuvanoikeus, rådstuvurätten) of Lahti noted that

the applicant had previously been convicted a number of times of

illegal possession of firearms and that one witness had not yet been

heard in the pre-trial investigation. Having regard to his previous

behaviour, the City Court therefore considered that there was a risk

that the applicant might influence the witnesses.

      The applicant was charged with, inter alia, attempted

manslaughter, suspected of having shot at K.L. from behind in

connection with a fight between the victim and R.L. He was also charged

with having unlawfully threatened P.B. at gunpoint after this person

had begun to follow him when he had been leaving the scene of the

crime.

      At a hearing before the City Court on 19 March 1991 the applicant

disputed, inter alia, the charges for attempted manslaughter. He

admitted, however, to having caused K.L. bodily injury by negligence,

since he had fired shots during the fight. These shots had allegedly

not been fired directly at K.L., since the applicant's intention by the

firing had been to stop the fight.

      Before the City Court the victim K.L. stated that, "had the

applicant wished to kill him, he would have succeeded". In these

circumstances K.L. personally pressed charges only for aggravated

assault.

      Also certain other witnesses were heard before the City Court.

The applicant, assisted by counsel, disputed the credibility of certain

witness statements, alleging that they were inconsistent with one

another.

      The City Court ordered the suspension of the hearing until

2 April 1991 in order to hear further witnesses. It also prolonged the

applicant's detention on remand. A prolongation had been requested by

the prosecution, referring, inter alia, to further charges against the

applicant which were under preparation and which concerned the same

type of offence committed with firearms. The prosecution had also

referred to the risk that the applicant might, if released, influence

the future witnesses. The applicant had objected to his further

detention, since the pre-trial investigation had been completed, since

there was no risk that he would flee, as he was permanently resident

in Lahti. Nor was there any risk that he would commit any further

offence, since all his firearms had been seized.

      Having heard certain further witnesses the City Court, on

2 April 1991, convicted the applicant of, inter alia, attempted

manslaughter. The City Court in essence relied on the prosecution's

description of the shooting incident and the unlawful threat against

P.B. The City Court considered, inter alia, that "since P.B. had only

moments earlier seen the applicant fire shots", he had had a legitimate

reason to fear for his own life. The applicant was sentenced to three

years and eight months' imprisonment.

      The applicant, represented by counsel, appealed against his

conviction and sentence to the Court of Appeal (hovioikeus, hovrätten)

of Kouvola. He did not withdraw his confession to having caused bodily

harm by negligence. He nevertheless requested an oral hearing "for the

purpose of obtaining a re-evaluation of the evidence". Annexed to the

appeal were copies of several letters which the applicant had written

to his counsel after his conviction and placement in a prison. In one

of these letters the applicant stated that he had "surprisingly found

an eye witness, who [was] willing to testify in the case". This

purported witness was said to have seen at least from where and in

which direction the first shots had been fired. In the applicant's case

the Court of Appeal also received a statement written by the purported

witness himself, A.L., according to which he would be willing to

testify in the applicant's case, if need be.

      On 11 July 1991 the Court of Appeal rejected the applicant's

request for a re-hearing, considering that the facts had already been

established.

      The applicant, represented by counsel, requested leave to appeal

to the Supreme Court (korkein oikeus, högsta domstolen), arguing in

essence that he should have been convicted merely of having caused

bodily injury by negligence and not of attempted manslaughter. In the

request, as lodged by counsel, no request for a re-hearing was made.

Annexed to counsel's submission was the applicant's own "request for

leave to appeal" in which he, in addition to what had been stated by

counsel, requested that the case be referred back to the City Court "or

otherwise heard orally". He referred to the new purported eye witness

A.L.

      On 12 November 1991 the Supreme Court refused leave to appeal.

As a result the applicant's sentence acquired legal force and he

started serving his sentence.

      On 17 June 1992 the Court of Appeal rejected the applicant's

request to obtain a copy of the memorandum of the Referendary in so far

as it concerned the Court's deliberations in camera. His appeal in this

respect was rejected by the Supreme Court on 5 October 1992.

      On 5 April 1993 the Supreme Court rejected the applicant's

request for a re-opening of the criminal proceedings for the purpose

of, inter alia, hearing the purported witness A.L.

Relevant domestic law

      1.   Remedy against detention on remand

      According to the 1987 Coercive Criminal Investigation Means Act

(pakkokeinolaki 450/87, tvångsmedelslag 450/87) there is no ordinary

appeal against a decision in a detention matter. It is nevertheless

possible to challenge the detention by lodging a special appeal

(kantelu, klagan) with the competent court. This appeal is provided for

by section 27 of the 1987 Act.

      2.   Right to a re-hearing before a court of appeal

      A court of appeal may, if it considers it necessary, hold an oral

hearing in a case in which an appeal against the judgment of the court

of the first instance has been lodged. Such a judgment cannot, as

regards the charges brought against an accused, be amended by a court

of appeal following a re-evaluation of the evidence without a re-

hearing having been held, unless the sentence imposed by a court of

appeal amounts only to fines or unless a re-hearing would clearly be

unnecessary. In the last-mentioned assessment special regard shall be

had to the interests of the accused (chapter 26, sections 7 and 8 of

the Code of Judicial Procedure (Oikeudenkäymiskaari, Rättegångs Balk).

Also the Supreme Court may, if necessary, hold an oral hearing in a

case in which an appeal against the judgment of a court of appeal has

been lodged (chapter 30, section 20).

      A court of the first instance may only exceptionally rely on a

statement of a private character which has been written for the purpose

of being invoked as evidence in pending or future court proceedings.

If such a statement is invoked before an appellate court and this court

finds that it should be taken into account, it shall order that the

author of the statement be heard as witness in the case either before

itself or before a lower court (chapter 17, section 11, subsection 2

of the Code of Judicial Procedure).

      3.   The confidential nature of records of court deliberations

      According to the 1951 Act on the Publicity of Official Documents

(laki 83/51 yleisten asiakirjain julkisuudesta; lag 83/51 om allmänna

handlingars offentlighet; "the 1951 Act") official documents are, in

principle, public (section 1). Such documents include, inter alia,

documents drawn up and issued by an authority. A party to court

proceedings may, however, be refused access to a record of a court's

deliberations in camera (section 19, subsection 4; cf. chapter 1,

section 7 of the Code of Judicial Procedure).

COMPLAINTS

1.    The applicant complains that no sufficient grounds existed for

his detention on remand. He submits that there was no reasonable

suspicion that he committed the offences under examination in the

relevant pre-trial investigation. Nor could his detention reasonably

have been considered necessary for the purpose of preventing him from

committing an offence. Moreover, when prolonging his detention on

remand on 19 March 1991, the City Court allegedly had regard to a

further indictment concerning him which was under preparation. The

applicant submits that no charges were ever brought in that case. He

invokes Article 5 para. 1 (a) and (c) of the Convention.

2.    The applicant furthermore complains that the criminal proceedings

were unfair and amounted to inhuman treatment. He claims to be innocent

and alleges that the main reason for his conviction was his background

of previous criminality. In any case, he should have been convicted of

a lesser offence than that of attempted manslaughter.

      The applicant alleges, in particular, that the pre-trial

investigation was conducted in a partial manner. He also complains that

he was not allowed to hear witness A.L. before the higher courts. He

submits that the Finnish reservation to Article 6 as regards the right

to a re-hearing on appeal does not answer this aspect of his complaint,

since the Court of Appeal or the Supreme Court could, instead of

holding a hearing itself, have referred his case back to the City Court

for the purpose of hearing A.L.

      In respect of the above complaint as a whole the applicant

invokes Article 3 and Article 6 para. 3 (b), (c) and (d) and Articles

13 and 14 of the Convention as well as Article 4 of Protocol No. 7 of

the Convention.

3.    The applicant finally complains that he was not allowed access

to that part of the memorandum of the Referendary of the Court of

Appeal which concerned the Court's deliberations in camera. He invokes

no particular provision of the Convention in this respect.

THE LAW

1.    The applicant complains that no sufficient grounds existed for

his detention on remand. He invokes Article 5 para. 1 (a) and (c)

(Art. 5-1-a, 5-1-c) of the Convention.

      The Commission has examined this complaint under Article 5

para. 1 (c) (Art. 5-1-c) which, in so far as it is relevant, reads as

follows:

      "Everyone has the right to liberty and security of person.

      No one shall be deprived of his liberty save in the

      following cases and in accordance with a procedure

      prescribed by law:

      ...

      c.   the lawful arrest or detention of a person effected

      for the purpose of bringing him before the competent legal

      authority on reasonable suspicion of having committed an

      offence or when it is reasonably considered necessary to

      prevent his committing an offence or fleeing after having

      done so; ..."

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

Convention it may only deal with an application, inter alia, after all

domestic remedies have been exhausted, according to the generally

recognised rules of international law. It finds no indication that the

applicant challenged his detention on remand by lodging an appeal

pursuant to section 27 of the 1987 Coercive Criminal Investigation

Means Act. For the reasons below, however, the Commission need not

determine whether such an appeal constitutes a remedy which the

applicant should have used in order to comply with the requirements of

Article 26 (Art. 26) of the Convention.

      The Commission is satisfied that the applicant's detention on

remand was "lawful", "in accordance with a procedure prescribed by law"

and effected in order to bring him before a "competent legal

authority". It remains to be considered whether his detention was based

on one of the grounds prescribed by Article 5 para. 1 (c) (Art. 5-1-c).

      The Commission has first examined whether it was grounded on a

"reasonable suspicion" that the applicant had committed an offence. It

recalls that having a "reasonable suspicion" presupposes the existence

of facts and information which would satisfy an objective observer that

the person concerned may have committed the offence. What may be

regarded as "reasonable" will, however, depend upon all the

circumstances (e.g., Eur. Court H.R., Fox, Campbell and Hartley

judgment of 30 August 1990, Series A no. 182, pp. 16-17, para. 32).

      The Commission observes that on his arrest the applicant

confessed to having fired shots near the victim K.L. In view of this

confession and the other evidence obtained at the time when his

detention on remand was ordered and subsequently prolonged, the

Commission finds that his detention on remand was based on a

"reasonable suspicion" that he had committed an offence. In these

circumstances the Commission need not determine whether the applicant's

detention on remand was also based on one or both of the other grounds

prescribed in Article 5 para. 1 (c) (Art. 5-1-c). Accordingly, there

is no appearance of a violation of that provision.

      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 furthermore complains that the criminal proceedings

were unfair and amounted to inhuman treatment. He claims to be innocent

and alleges that the main reason for his conviction was his background

of previous criminality. In any case, he should have been convicted of

a lesser offence than that of attempted manslaughter.

      The applicant alleges, in particular, that the pre-trial

investigation was conducted in a partial manner. He also complains that

he was not allowed to hear witness A.L. before the higher courts. His

submits that the Finnish reservation to Article 6 (Art. 6) as regards

the right to a re-hearing on appeal does not answer this aspect of his

complaint, since the Court of Appeal or the Supreme Court could,

instead of holding a hearing itself, have referred his case back to the

City Court for the purpose of hearing A.L.

      In respect of the above complaint as a whole the applicant

invokes Article 3 (Art. 3) and Article 6 para. 3 (b), (c) and (d) and

Articles 13 and 14 (Art. 6-3-b, 6-3-c, 6-3-d, 13, 14) of the Convention

as well as Article 4 of Protocol No. 7 (P7-4) of the Convention.

      The Commission has primarily examined this complaint under

Article 6 paras. 1 and 3 (Art. 6-1, 6-3) of the Convention which, in

so far as they are relevant, read as follows:

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

      against him, everyone is entitled to a fair and public

      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;

           d.    to examine or have examined witnesses against

      him and to obtain the attendance and examination of

      witnesses on his behalf under the same conditions as

      witnesses against him; ..."

      As the requirements of Article 6 para. 3 (Art. 6-3) represent

particular aspects of the right to a fair trial guaranteed in Article

6 para. 1 (Art. 6-1), the Commission has examined the application from

the point of view of these two provisions taken together (e.g., Eur.

Court H.R., Lüdi judgment of 15 June 1992, Series A no. 238, p. 20,

para. 43).

      The Commission has first examined whether the fact that the

applicant was unable to have the purported witness A.L. examined before

a court discloses an appearance of a violation of his right to a fair

trial within the meaning of Article 6 paras. 1 and 3 (d)

(Art. 6-1, 6-3-d). It notes Finland's reservation to Article 6

(Art. 6) which reads, in so far as relevant, as follows:

      "For the time being, Finland cannot guarantee a right to an

      oral hearing in so far as the current Finnish laws do not

      provide such a right. This applies to:

      1. proceedings before the Courts of Appeal [and] the

      Supreme Court ... in accordance with chapter 26, sections

      7 and 8 as well as chapter 30, section 20 of the Code of

      Judicial Procedure ..."

      The Commission observes that under chapter 26, section 8 of the

Code of Judicial Procedure a judgment of a court of a lower instance

as regards the charges brought against an accused cannot be amended

following a re-evaluation of the evidence without a re-hearing having

been held, unless the sentence imposed by a court of appeal amounts

only to fines or unless a re-hearing would clearly be unnecessary. In

the applicant's case his conviction was not amended on appeal and his

sentence was reduced. Under Finnish law he was thus not entitled to a

hearing before the Court of Appeal.

      The Commission observes, however, that the Court of Appeal could,

in principle, have referred the applicant's case back to the City Court

for the purpose of hearing witness A.L. The question arises whether,

even if, as in the applicant's case, the conditions for refusing a

re-hearing on appeal were met, this fact and the Finnish reservation

in themselves answer the applicant's complaint that the proceedings

were unfair in that he was unable to have witness A.L. examined before

any court. For the reasons below, these questions, including the

relevance of the Finnish reservation in the circumstances of the

present case,  need not be answered.

      The Commission recalls that the manner of application of

Article 6 (Art. 6) to proceedings before appellate courts depends on

the special features of the proceedings involved. Account must be taken

of the entirety of the proceedings in the domestic legal order and of

the role of the appellate court therein (cf., e.g., Eur. Court H.R.,

Jan-Ã…ke Andersson and Fejde judgments of 29 October 1991, Series A

nos. 212-B and 212-C, pp. 43-44, para. 22, and p. 67, para. 26,

respectively). Even where a higher court has jurisdiction to review a

case both as to its facts and as to law, Article 6 (Art. 6) does not

always require a right to a "re-hearing" irrespective of the nature of

the issue to be decided (cf., e.g., the above-mentioned Fejde judgment,

pp. 68-69, para. 31). In the Commission's view similar considerations

apply in respect of the "right" of an accused to have his case referred

back to the court of the first instance for the purpose of having a

fresh witness examined at an oral hearing.

      The Commission furthermore recalls that Article 6 (Art. 6) of the

Convention does not apply to the leave to appeal proceedings as such

before the Finnish Supreme Court (e.g., No. 19823/92, Dec. 9.2.93,

unpublished). For the purposes of the present complaint the Commission

will nevertheless consider the proceedings as a whole, thereby

including those which took place before the Supreme Court.

      The Commission notes that the Finnish courts of appeal are, in

principle, competent to review a case both as regards its facts and the

applicable law. The same is true as regards the Supreme Court, provided

it has granted leave to appeal in a case. The Commission observes,

however, that in the proceedings before these courts the applicant did

not dispute that he had fired shots during the fight between K.L. and

R.L. His appeal and subsequent request for leave to appeal thus appear

to have been based, in essence, on a disagreement as to the legal

classification of his offence.

      In these circumstances the Commission therefore considers that

his appeal raised no question of fact or law which could not be

adequately resolved on the basis of the case-file. Considering also the

circumstances surrounding the appearance of the purported witness A.L.,

the Commission finds that the Court of Appeal could, as a matter of

fair trial, properly decide not to refer the case back to the City

Court and that the Supreme Court likewise had no obligation emanating

from Article 6 (Art. 6) to grant leave to appeal with a view to having

A.L. examined (cf., mutatis mutandis, the above-mentioned Fejde

judgment, pp. 69-70, para. 33).

      The Commission finds no substantiation of the remainder of the

applicant's complaint concerning the fairness of the overall

proceedings, including the pre-trial investigation. In this connection

the Commission recalls that it is normally not competent to deal with

a complaint alleging that errors of law and fact have been committed

by domestic courts. An exception could only be made where the

Commission considers that such errors might have involved a possible

violation of any of the rights and freedoms set out in the Convention

or one of its Protocols, for instance in that a judgment has no legal

justification and thereby violates a party's right to receive a fair

trial (cf. Eur. Court H.R., De Moor judgment of 23 June 1994, Series A

no. 292-A, p. 18, para. 55; No. 7987/77, Dec. 13.12.79, D.R. 18 pp. 31,

45). As a general rule, however, 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 (e.g.,

Eur. Court H.R., Klaas judgment of 22 September 1993, Series A

no. 269-A, pp. 17-18, paras. 29-30). The Commission's task is to

ascertain whether the proceedings, considered as a whole, including the

way in which evidence was taken and submitted, were fair (e.g., the

above-mentioned Lüdi judgment, loc.cit.). It follows that the

Commission cannot examine whether or not the applicant was guilty or

innocent of the offences of which he was convicted nor whether or not

he should have been convicted of a lesser offence than that which the

courts had found him to have committed.

      Accordingly, there is no appearance of any violation of Article 6

(Art. 6) of the Convention as regards the fairness of the proceedings

as a whole. Nor can the Commission find any appearance of a violation

of Article 3, 13 or 14 (Art. 3, 13, 14) of the Convention nor of

Article 4 of Protocol No. 7 (P7-4) of the Convention.

      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.

3.    The applicant finally complains that he was not allowed access

to that part of the memorandum of the Referendary of the Court of

Appeal which concerned the Court's deliberations in camera. The

Commission has examined this complaint primarily under the above-cited

Article 6 paras. 1 and 3 (Art. 6-1, 6-3) of the Convention. It finds

no indication, however, that the refusal to disclose the notes from the

Court of Appeal's deliberations to the applicant violated his rights

under those provisions.

      The Commission has also examined the complaint in the light of

Article 10 (Art. 10) of the Convention which, in so far as it is

relevant, reads as follows:

      "1.  Everyone has the right to freedom of expression. This

      right shall include freedom ... to receive ... information

      ... without interference by public authority ...

      2.   The exercise of these freedoms, since it carries with

      it duties and responsibilities, may be subject to such

      formalities, conditions, restrictions or penalties as are

      prescribed by law and are necessary in a democratic

      society, ... for ... maintaining the authority and

      impartiality of the judiciary."

      Even assuming that Article 10 para. 1 (Art. 10-1) applies in the

instant case, the Commission considers that the interference with the

applicant's right to receive information was "prescribed by law"

(section 19 of the  1951 Act). It can furthermore be regarded

as "necessary in a democratic society ... for maintaining the authority

and impartiality of the judiciary" (cf., mutatis mutandis,

No. 10039/82, Dec. 11.5.84, D.R. 38 p. 74). Accordingly, there is no

appearance of a violation of Article 10 (Art. 10) either.

      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.

Secretary to the First Chamber        President of the First Chamber

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