Application no. 18489/02
by Erkki Olavi KINOS and Erkki SAHA
The European Court of Human Rights (Fourth Section), sitting on 28 March 2006 as a Chamber composed of:
Sir Nicolas Bratza, President,
Mr J. Casadevall,
Mr G. Bonello,
Mr M. Pellonpää,
Mr K. Traja,
Mr L. Garlicki,
Mr J. Borrego Borrego, judges,
and Mr M. O’Boyle, Section Registrar,
Having regard to the above application lodged on 28 April 2002,
Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together,
Having regard to the formal declarations accepting a friendly settlement of the case,
Having regard to the partial decision of 6 September 2005,
Having regard to the observations submitted by the respondent Government,
Having deliberated, decides as follows:
The applicants, Mr Erkki Olavi Kinos and Mr Erkki Saha, are Finnish nationals who were born in 1926 and 1931 respectively and live in Humppila. The Finnish Government (“the Government”) are represented by their Agent, Mr Arto Kosonen, Director in the Ministry for Foreign Affairs.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicants were members of the Board of the Savings Bank of Humppila, which in 1989 merged into the Savings Bank of Lounais-Häme and in 1992 into the Finnish Savings Bank – SSP Oy, later replaced by the Property Management Corporation Arsenal (Omaisuudenhoitoyhtiö Arsenal-SSP Oy, Egendomsförvaltningsbolaget Arsenal –SSP Ab; “Arsenal-SSP”), controlled by the Government Guarantee Fund (valtion vakuusrahasto, statens säkerhetsfond).
On 31 December 1993 the Finnish Savings Bank – SSP Oy (Arsenal-SSP) instituted civil proceedings against six defendants, including the applicants. It sought damages amounting to 59,610,000 Finnish Marks (FIM; corresponding to 10,025,733 euros (EUR)) plus 16 per cent interest as from 31 January 1993 for allegedly granting credit negligently in 1988-1989 and for subsequent credit losses allegedly caused by the defendants in their capacity as members of the board, managing director or delegates in the management of the Savings Bank.
Apparently on 25 April 1994 the District Court (käräjäoikeus, tingsrätten) of Forssa ordered a seizure, which was upheld by the Court of Appeal (hovioikeus, hovrätten) of Turku on 3 October 1994.
On 8 November 1994 the District Court issued a preliminary decision, rejecting some of the defendants’ requests for declaring the case inadmissible.
On 20 January 1997 the District Court delivered its judgment, dismissing the claims in respect of the applicants. It accepted one of the claims in respect of K., one of the defendants. It ordered that the seizure in respect of the applicants be revoked when the judgment gained legal force. It further ordered the plaintiff to reimburse the applicants’ legal expenses.
All parties appealed to the Court of Appeal, the applicants only in relation to the seizure.
On 23 December 1998 the Court of Appeal issued its judgment, upholding the judgment of the District Court in respect of the applicants.
On 7 June 1999 the Supreme Court (korkein oikeus, högsta domstolen) granted the plaintiff and K. leave to appeal.
On 1 November 2001 the Supreme Court issued its judgment, largely quashing the Court of Appeal’s judgment. It held that K. had caused the plaintiff damage amounting to FIM 1,200,000 (EUR 201,827). It further held the applicants jointly and severally liable with the other defendants for the said damage amounting to FIM 720,000 (EUR 121,096) plus interest as from 7 March 1994. It quashed the Court of Appeal’s judgment as regards the legal expenses and held the applicants liable, jointly and severally with the other defendants, to reimburse the plaintiff’s legal expenses in an amount of FIM 1,250,000 (EUR 210,236) plus interest.
The applicants complained under Article 6 of the Convention that the civil proceedings against them had been excessively lengthy.
On 10 February 2006 the Court received two separate declarations from the Government, concerning the first and the second applicants. The declarations read as follows:
“I ... declare that the Government of Finland offer to pay ex gratia EUR 3,000 (three thousand euros) to [Erkki Olavi Kinos and Erkki Saha each] with a view to securing a friendly settlement of the above-mentioned case pending before the European Court of Human Rights.
This sum is to cover any pecuniary and non-pecuniary damage as well as costs and expenses, and it will be payable within three months from the date of notification of the judgment by the Court pursuant to Article 39 of the European Convention on Human Rights. In the event of failure to pay this sum within the said three-month period, the Government undertake to pay simple interest on it, from expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. The payment will constitute the final resolution of the case.
The Government further undertake not to request that the case be referred to the Grand Chamber under Article 43 § 1 of the Convention.”
On 15 February 2006 the Court received the declarations signed by the applicants respectively to the following effect:
“I ... note that the Government of Finland are prepared to pay me ex gratia the sum of EUR 3,000 (three thousand euros) with a view to securing a friendly settlement of the above-mentioned case pending before the European Court of Human Rights.
This sum is to cover any pecuniary and non-pecuniary damage as well as costs and expenses and will be payable within three months from the date of notification of the judgment by the Court pursuant to Article 39 of the European Convention on Human Rights. From the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.
I accept the proposal and waive any further claims against Finland in respect of the facts of this application. I declare that this constitutes a final resolution of the case.
This declaration is made in the context of a friendly settlement which the Government and the applicants have reached.
I further undertake not to request that the case be referred to the Grand Chamber under Article 43 § 1 of the Convention after delivery of the Court’s judgment.”
The Court takes note of the friendly settlement reached between the parties. It is satisfied that the settlement is based on respect for human rights as defined in the Convention and its Protocols and finds no public policy reasons to justify a continued examination of the application (Article 37 § 1 in fine of the Convention). Accordingly, Article 29 § 3 of the Convention should no longer apply to the case and it should be struck out of the list.
For these reasons, the Court unanimously
Decides to discontinue the application of Article 29 § 3 of the Convention;
Decides to strike the application out of its list of cases.
Michael O’Boyle Nicolas Bratza
KINOS AND SAHA v. FINLAND DECISION
KINOS AND SAHA v. FINLAND DECISION