Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 20593/92

by Yoshio TANI

against Finland

The European Commission of Human Rights (First Chamber) sitting

in private on 12 October 1994, the following members being present:

MM. A. WEITZEL, President

C.L. ROZAKIS

F. ERMACORA

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

Mrs. J. LIDDY

MM. M.P. PELLONPÄÄ

G.B. REFFI

B. CONFORTI

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

G. RESS

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 16 July 1992 by

Yoshio TANI against Finland and registered on 7 September 1992 under

file No. 20593/92;

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 Japanese citizen born in 1946 and currently

serving a prison sentence in the Helsinki Central Prison. He is an

engineer by profession. Before the Commission he is represented by

Mr. Matti Nurmela, a lawyer practising in Helsinki.

On 10 October 1990 the District Court (kihlakunnanoikeus,

häradsrätten) of Kirkkonummi convicted the applicant on two counts of

murder, the second one in combination with aggravated robbery, as well

as of having smuggled money out of Finland. The murders had been

committed on 21 April 1990. The applicant was sentenced to life

imprisonment.

In convicting the applicant the District Court took into account,

inter alia, the following evidence. The corpse of one of the victims,

E., had been found under a plastic cover in a forest. The applicant's

wife had indicated the location of the corpse to the police. She had

further indicated the location of 2,5 million FIM which had been hidden

in her and the applicant's joint flat. On 22 April 1990 the applicant

had reserved a flight ticket to Tokyo for 23 April 1990. On

23 April 1990 he had left for Tokyo, but had returned to Finland via

Frankfurt (Germany) on 3 May 1990. On the same day he had been arrested

as suspected of having murdered E. and K. Having been interrogated by

the police on 4 and 5 May 1990, he had denied knowing anything about

the murders. On 6 May 1990, however, he had alleged that the murders

had been carried out by H. He had admitted to having hidden the corpses

of E. and K. and having disposed of two bags of theirs. He had further

admitted to having smuggled 2,5 million FIM out of Finland on

23 April 1990 and also to having hidden a further 2,5 million FIM in

his and his wife's flat.

The District Court further heard four witnesses, who had been

involved in E.'s business activities. They stated having received

information by telephone that between 19 and 21 April 1990 E. had been

in the process of concluding an agreement involving the purchase of a

certain amount of gold at a price of 5 million FIM, using K. as his

intermediary. E. had cashed a cheque for this amount. A further witness

stated, in essence, that K. had been involved in business activities

with the applicant for years. K. had told this witness that he was

involved in a purchase of gold and that the applicant was appearing as

the representative of the seller. E.'s cohabitee M. essentially stated

before the District Court that she had been informed by E. that the

seller of the gold was being represented by a Chinese or Japanese man.

The District Court further took into account the statement of

witness P., who stated having met K. and having followed him to a car

in order to meet the representative of the gold seller. P. had later

confirmed that the representative had been the applicant.

The District Court also had regard to an opinion of the National

Forensic Laboratory according to which the bullet found in K. and the

two bullets found in E. had been shot with the same gun. The bullet

found in the corpse of K. had corresponded to bullets in the

applicant's possession. The District Court finally noted that the

applicant's wife had admitted to having assisted in the hiding of the

corpses and to having seen an important sum of money which had been

hidden in her and the applicant's flat.

The District Court's reasons for the applicant's conviction were,

in essence, the following. The applicant had admitted to having been

in his flat on the day of the murders. His and his wife's accounts of

the hiding of the corpses had been consistent and thus had to be

considered as reliable. The statements of the witnesses and M. had

shown that the applicant had appeared as a representative of the seller

of a considerable amount of gold, that K. and E. had believed in its

existence and that they had, between 19 and 22 April 1990, intended to

conclude an agreement with the applicant by using the 5 million FIM

cashed by E. No evidence of the actual existence of the gold had been

shown to the District Court. While the applicant had denied having

appeared as a representative in the gold deal, this denial had not

shown the witness accounts to be incorrect.

The District Court further observed that the applicant had

admitted to having taken 5 million FIM out of a bag belonging to E. He

had further admitted to having disposed of two bags as well as of the

corpses of K. and E. After having denied any knowledge of the murders

in interrogations on 3 and 4 May 1990 he had, on 6 May 1990, alleged

that they had been carried out by H. The applicant had not presented

any more specific information about H. Also for other reasons his story

about H. had to be considered untruthful and could not be given any

value as evidence. The District Court also observed that the applicant

was familiar with the use of weapons.

According to the applicant, witness P. "identified" him in the

office of a police officer in the course of the pre-trial

investigation. During an interrogation of the applicant P. had been

brought into the police officer's office and had been asked whether he

had met the applicant during business negotiations preceding the

murders. P. had answered in the affirmative.

On the applicant's appeal the Court of Appeal (hovioikeus,

hovrätten) of Helsinki on 11 April 1991 essentially upheld his

conviction and sentence.

On 21 February 1992 the Supreme Court (korkein oikeus, högsta

domstolen) refused the applicant leave to appeal in respect of his

conviction and sentence.

The applicant was assisted by counsel throughout the domestic

proceedings.

COMPLAINT

The applicant complains that he was denied a fair trial due to

witness P.'s "identification" of him in conditions which did not meet

the requirements of a proper identification parade. The applicant ought

to have been placed in a room together with others matching, at least

to some extent, the description of the suspect as previously given to

the police by P. P.'s "identification" is alleged to have largely

formed the basis for the applicant's conviction. The applicant

considers that he was thus convicted merely on circumstantial evidence.

Allegedly, no forensic evidence was found which could have linked him

to the offences of which he was convicted. Neither were the witness

statements of such character they could directly prove his guilt. The

applicant invokes Article 6 of the Convention.

THE LAW

The applicant complains that he was denied a fair trial, since

his conviction was allegedly largely based on P.'s "identification" of

him in conditions which did not meet the requirements of a proper

identification parade. He invokes Article 6 (Art. 6) of the Convention

the relevant parts of which read as follows:

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

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

by [a] ... tribunal established by law. ...

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;

...

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;

..."

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

Convention it may only deal with an application provided the applicant

has exhausted all effective domestic remedies. The applicant has not

shown that he challenged the conditions in which P. identified him.

However, even assuming that this point was raised by the applicant

throughout the domestic proceedings, the application is nevertheless

inadmissible for the following reasons.

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 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, 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., Lüdi judgment of 15 June 1992, Series A no. 238, p. 20, para. 43;

Klaas judgment of 22 September 1993, Series A no. 269-A, pp. 17-18,

paras. 29-30). The task of the Convention organs when considering a

complaint under Article 6 (Art. 6) 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.).

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., the

above-mentioned Lüdi judgment, loc.cit.).

In the present case the Commission observes that the applicant's

conviction was based on an assessment of a significant amount of

corroborative circumstantial evidence. In contrast with the applicant's

assertion the Commission observes that the statement by witness P. in

the course of the pre-trial investigation did not play any decisive

role in the applicant's conviction. The material submitted to the

Commission does not call the findings of the District Court and the

courts of appeal into question. The Commission furthermore notes that

the applicant was assisted by counsel throughout the domestic

proceedings. It has not been alleged that the applicant was prevented

from questioning witness P. in the proceedings before the District

Court and, notably, as regards his identification of the applicant.

Having assessed all elements of the domestic proceedings, the

Commission therefore concludes that the applicant was afforded a "fair

trial" within the meaning of Article 6 (Art. 6) of the Convention.

Accordingly, there is no appearance of a violation of that provision.

It follows that the application must 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) (A. WEITZEL)

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TANI v. FINLAND

TANI v. FINLAND

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