AS TO THE ADMISSIBILITY OF
Application no. 43160/98
by Toive Vili J. LEHTINEN
The European Court of Human Rights (Fourth Section), sitting on 16 May 2006 as a Chamber composed of:
Sir Nicolas Bratza, President,
Mr G. Bonello,
Mr M. Pellonpää,
Mr K. Traja,
Mr L. Garlicki,
Ms L. Mijović,
Mr J. Šikuta, judges,
and Mr M. O’Boyle, Section Registrar,
Having regard to the above application lodged with the European Commission of Human Rights on 3 April 1998,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
The applicant, Mr Toive Vili J. Lehtinen, is a Finnish national who was born in 1944 and lives in Tampere. He is represented before the Court by Mr Mika Ala-Uotila, a lawyer practising in Nokia. The respondent Government are represented by Mr Arto Kosonen, Director in the Ministry for Foreign Affairs.
A. The circumstances of the case
The applicant was a principal partner of a construction company Toprakenne Ky Toive Lehtinen. In 1991, the District Court declared the company bankrupt and issued a judgment in the bankruptcy proceedings on 6 July 1992. Some creditors’ claims were reserved for final determination in civil proceedings which were initiated before the District Court (raastuvanoikeus, rådstuvurätten; later käräjäoikeus, tingsrätten) of Tampere in September 1992 by companies A.N.K., A.H.K. and A.K. (“the original proceedings”).
Meanwhile, on 11 November 1991, the District Court (presiding judge M.L. and judges O.P. and T.N.) had found the applicant and his company jointly responsible for a debt to S.V. amounting to about 165,000 Finnish marks (FIM, about 27,751 euros (EUR).
In the context of the examination of the creditor’s assets, the applicant brought counter-claims in August 1993 against companies A.N.K., A.H.K. and A.K. (“the counter-claim proceedings”). These counter-claims concerned debts and damages relating to construction contracts.
In its fifth hearing, held on 20 September 1993, the District Court (presiding judge M.L. and judges O.P. and P.P.) declined to examine the counter-claims in three decisions. The three companies had opposed joining these actions to the original proceedings as they should, in their view, have been filed before the district court of the town where the companies were registered. The District Court agreed.
The applicant, who had been granted cost-free proceedings, appealed on 4 February 1994. Apparently on various occasions, he urged the Court of Appeal (hovioikeus, hovrätten) of Turku to examine his appeals swiftly, referring to the ongoing original proceedings before the District Court, where judgment was expected on 11 October 1994. Supplementing his appeal, he referred to the fact that the District Court had held nine hearings in the original proceedings, for which reason the examination of the counter-claims in the same connection would not delay the proceedings any further.
On 9 October 1994, the daily Aamulehti published an interview with presiding judge M.L. of the District Court in which the judge queried whether certain parties to court proceedings were being awarded cost-free proceedings even when they did not effectively qualify for such a grant. By way of example, M.L. referred to “the owner of a construction company” (rakennusurakoitsija) to whom he had recently awarded cost-free proceedings and who had later after court that day greeted him “from a brand new white Mercedes-Benz” while both had been waiting at traffic lights. The applicant contended that the judge had clearly been referring to him.
In three judgments of 25 November 1994, having held ten hearings, the District Court (sitting in the same composition as on 20 September 1993) in the original proceedings dismissed A.N.K.’s claim as unfounded, but found that the wound-up estate of the applicant’s company should pay some 400,000 FIM (about 67,275 EUR) to company A.H.K. and some FIM 180,000 (about 30,274 EUR) to company A.K.
On 15 December 1994 the Court of Appeal quashed the District Court’s decisions of 20 September 1993 and remitted the counter-claims against the three companies with a view to their being joined to the original proceedings.
On 23 December 1994, the applicant appealed against the District Court’s judgment of 25 November 1994 in the original proceedings, requesting that the cases be remitted to the District Court for examination together with the counter-claims remitted to it on 15 December 1994. Alternatively, he requested that an oral hearing be held before the Court of Appeal. In a submission lodged on 20 May 1996, i.e. after the expiry of the time-limit for appealing, he also challenged the impartiality of District Court judge M.L., alleging that he had in a newspaper interview conveyed a negative opinion of the applicant.
Meanwhile, according to the applicant, on 15 March 1995 he requested the District Court to examine his counter-claims as soon as the original proceedings gained legal force.
The Court of Appeal examined the applicant’s allegation of judge M.L.’s partiality as an extraordinary application for procedural error (kantelu, klagan) as it was not lodged within the ordinary time-limit for appealing. It rejected the complaint as being manifestly ill-founded, without adducing any specific reasoning, in its three judgments of 28 November 1996.
The Court of Appeal also declined to return the cases to the District Court in spite of their procedural connection with the applicant’s counter-claims as remitted to the District Court. The Court of Appeal noted that the claims against the estate of the applicant’s wound-up company had been examined by the District Court prior to the Court of Appeal’s decision to remit his and the estate’s counter-claims with a view to being joined to the original proceedings. The Court of Appeal agreed with the District Court’s reasoning of 25 November 1994 that the applicant’s counter-claims had not been so clear as to enable their examination in the original proceedings without delaying those proceedings.
The Court of Appeal went on to dismiss the applicant’s request for an oral hearing, considering that he had not specified what evidence he would be presenting at such a hearing and bearing in mind that the proceedings before the District Court had involved so many hearings that the parties had had ample time to present all evidence of their choosing.
He sought leave to appeal from the Supreme Court (korkein oikeus, högsta domstolen), alleging, inter alia, that judge M.L. had been biased because of his interview in the local daily newspaper and because he had presided in various cases against the applicant. He stressed that his car was not a “brand new” one as had been described in the interview.
On 3 October 1997, the Supreme Court refused the applicant leave to appeal in the original proceedings.
On 9 September 1999, the Supreme Court quashed its previous decisions at the applicant’s request, having found that Justice J.T. of the Supreme Court should not have taken part in the examination of the requests for leave to appeal lodged in 1997, because his partiality had been challenged in a case pending elsewhere.
On 23 November 1999, the Supreme Court, sitting in a new composition, refused the applicant leave to appeal in the original proceedings.
Subsequently, on 27 January 2000 the applicant requested the District Court to continue the examination of his counter-claims. The court held its first preparatory hearing on 5 December 2001. According to the applicant, the court also began the examination of his claims against a company T.O., which the court had declared inadmissible on 20 March 1993.
On 11 June 2001, answering a request by the applicant, the Supreme Court refused to reopen the original proceedings.
On 22 February 2002 the District Court rejected his counter-claims as being time-barred. It also dismissed his claims against T.O., considering that T.O. could not be held liable as a defendant. On 17 October 2003 the Court of Appeal upheld the decisions as to three of the defendants. However, it considered that his claims against A.H.K. were not time-barred and remitted the case back to the first instance for fresh consideration. The applicant and A.H.K. sought leave to appeal from the Supreme Court, which, on 26 August 2004, refused it. Subsequently the applicant requested the District Court to continue its consideration of his counter-claims against A.H.K. The proceedings are still pending.
Meanwhile, on 31 May 2002 the applicant requested the Supreme Court to annul its decisions of 23 November 1999 and 11 June 2001 as well as the Court of Appeal’s decisions of 28 November 1996, alleging that they did not have the entire case file at their disposal. He alleged that he became aware of these defects in April 2002 when he received information from the Supreme Court’s registrar to this effect. His request was rejected on 27 May 2003.
B. Relevant domestic law
The provisions concerning the disqualification of judges were at the relevant time contained in Chapter 13, section 1 of the Finnish Code of Judicial Procedure (oikeudenkäymiskaari, rättegångsbalken):
“If the plaintiff or the defendant wishes to plead the disqualification of the judge, he/she shall do so with deference, and the judge shall himself/herself decide on whether he/she is disqualified. The following shall be the legal grounds for disqualification: when the judge is related by blood or marriage to one or the other party in a manner where marriage is prohibited under chapter 2 of the (1734) Marriage Code, including cousinship by blood although not by marriage; when the judge is the opposing party or a public enemy of a party; when the judge or his/her relative here listed has an interest in the case; or when the judge has a similar case pending before another court. If the judge knows that such grounds exist in his respect, even though the parties are not aware of the same, the judge shall disqualify himself/herself on his/her own accord.”
The provisions concerning the impartiality of judges have been amended by Act 441/2001 which entered into force on 1 September 2001. These new provisions, while providing a list of grounds of disqualification of judges, also contain a general provision, according to which a judge may be disqualified if some other matter, comparable to the ones expressly mentioned, gives rise to a reasonable doubt concerning the judge’s impartiality.
2. Length of proceedings
Chapter 16, Section 4, subsection 2, of the Code of Judicial Procedure, as in force at the relevant time, provided that a District Court was allowed to adjourn a hearing of a criminal case upon request by a party to the proceedings. A party who considered that the case had unjustifiably been delayed by an adjournment, had the right to lodge a complaint with a Court of Appeal within 30 days from the date of the adjournment. The law was amended as from 1 October 1997, prohibiting adjournment as a general rule.
The applicant complained under Article 6 § 1 of the Convention that the proceedings were flawed in various respects, namely that:
(a) the presiding judge M.L. of the District Court should not have been allowed to decide more than one case regarding the applicant. In particular, M.L. (and another District Court judge) had participated in the examination of a case in 1991 initiated by S.V. against the applicant’s company, which meant that the same judges could not be expected to reach a different outcome in the subsequent case involving the applicant and his company. Also, his cases were dealt with by the same composition on 20 September 1993 and 25 November 1994. Furthermore, M.L.’s behaviour in court and his statements in a newspaper interview conveyed a negative opinion of the applicant and proved that M.L. was not impartial. In his observations of 30 April 2002 in reply to those of the Government, he further alleged that the District Court judges were not impartial as they had conflicting views on the cost-free trial proceedings and as the refusal to dismiss the applicant’s counter-claims was not in accordance with the domestic legislation.
Furthermore, Justice J.T. of the Supreme Court was biased on account of the simultaneously pending challenge to his impartiality as an arbitrator;
(b) the District Court should have taken decisions to limit the scope of the case early on. Furthermore, the Court of Appeal failed to hear the applicant prior to refusing to remit the three companies’ claims to the District Court, and the court also relied on a new and decisive fact without having heard the applicant properly and failed to provide adequate reasoning in respect of some of his requests;
(c) the Court of Appeal declined, despite the applicant’s explicit request and without adducing proper reasons, to hold an oral hearing in the original proceedings;
(d) the delay in the Court of Appeal’s examination of his appeal against the District Court’s decision of 20 September 1993 (i.e. not to join the counter-claims to the original proceedings) was excessive. The District Court also failed to await the Court of Appeal’s judgment in respect of that appeal, which also resulted in the disjoinder of the counter-claims. In his observations in reply to those of the Government of 30 April 2002, he specified that his complaints concerned also the allegedly excessive length of the original proceedings and counter-claim proceedings;
(e) the Supreme Court, when refusing him leave to appeal in the original proceedings in 1999 and 2001, did not have at its disposal all of the minutes from the proceedings before the District Court and neither, probably, had the Court of Appeal in 1996. This complaint was raised in his reply to the Government’s observations of 30 April 2002.
The applicant complained under Article 6 § 1 that the proceedings were unfair in various respects. This provision provides as relevant:
“In the determination of his civil rights and obligations..., everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal...”
A. Alleged partiality of the courts
The Government contended that M.L.’s behaviour did not give rise to doubt concerning his objective impartiality. M.L. was interviewed in respect of the possible defects in the system of cost-free legal proceedings and in the same article also an official of the Ministry of Justice and a local attorney were interviewed. Moreover, they considered that judges had to be able to examine different cases by the same parties, issues of partiality preventing only the examination of one and the same issue twice by the same judge.
The applicant maintained that the attitude of M.L. was both objectively and subjectively partial. He also maintained that the District Court’s judges had a prejudged view in the present case, having already decided a case against him.
The Court notes at the outset that the disqualification complaint consists of three main elements. First, the District Court judges should not have been allowed to decide the claims against the estate after having decided claims against the applicant and his company previously, and they were also allegedly biased due to the discussion about the cost-free proceedings and the outcome of the case. Secondly, the presiding judge M.L.’s behaviour in court and his statements in a newspaper interview conveyed a negative opinion of the applicant. Thirdly, Justice J.T. had been found to lack impartiality.
As to the first part of the complaint, the Court recalls that according to the principles set out in its judgment in the case of Akdivar and Others v. Turkey (judgment of 16 September 1996, Reports of Judgments and Decisions No. 15, 1996-IV, pp. 1210-1222, §§ 65-69), the rule of exhaustion of domestic remedies referred to in Article 35 § 1 of the Convention obliges those seeking to bring their case against the State before an international judicial or arbitration organ to use first the remedies provided by the national legal system. Moreover, the complaints intended to be made subsequently at Strasbourg should have been made to the appropriate domestic body, at least in substance and in compliance with the formal requirements and time-limits laid down in domestic law.
As to the present case the Court notes that the applicant failed to raise complaints as to alleged bias of the District Court judges other than those concerning M.L.’s negative opinion about the applicant in his appeal to the Court of Appeal. It follows that this part of the complaint must be rejected for non-exhaustion of domestic remedies.
As to the second part, the Court recalls that there are two aspects to the requirement of “impartiality” for the purposes of Article 6 § 1. First, the tribunal must be subjectively free of personal prejudice or bias. Secondly, it must also be impartial from an objective viewpoint, that is, it must offer sufficient guarantees to exclude any legitimate doubt in this respect (see, amongst many authorities, Findlay v. the United Kingdom, judgment of 25 February 1997, Reports 1997-I, p. 281, § 73).
In the present case, even assuming that the applicant exhausted domestic remedies, the Court observes that it remained in dispute whether M.L. referred to the applicant in the newspaper article. The Court finds that the article did not mention the applicant by name and further, in his application for a leave to appeal the applicant contested some of the facts of the article, stressing that his car was not a brand new one as referred to in the article. Furthermore, the Court notes that the mere fact that a judge takes a strongly negative view of an applicant’s case or indeed character does not in itself amount to bias or personal prejudice (see Ranson v. United Kingdom (dec.), no. 14180/03, 2 September 2003). In these circumstances, the Court considers that whatever doubts the applicant may have had about the impartiality of judge M.L. these doubts were not objectively justified.
The Court further reiterates that compliance with Article 6 must be determined in light of the proceedings as a whole, including the appeal procedures. In the case of Dallos v. Hungary (no. 29082/95, §§ 47-53, ECHR 2001-II) the Court attributed decisive importance to the subsequent proceedings before the Supreme Court, finding no violation of Article 6 in view of the fact that the Supreme Court had reviewed the case at an oral hearing from the relevant procedural and substantive-law point of view (see Dallos v. Hungary, cited above, § 50). In the present case the applicant appealed to the Court of Appeal, which reviewed the applicant’s case, both from a procedural and a substantive point. The applicant further sought leave to appeal from the Supreme Court. Assessing the fairness of the proceedings as a whole, the Court is therefore not persuaded that the proceedings were overall unfair.
As to the third part, namely the impartiality issue concerning Justice J.T. of the Supreme Court, the Court observes that it was remedied by that court itself when it re-decided the case in a composition that did not include Justice J.T. Accordingly, there is no indication of a violation of a fair trial on account of the lack of impartiality of judges.
It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
B. Alleged unfairness of the proceedings
As to his other allegations concerning the unfairness of the proceedings, the Court finds that these complaints partly refer to the question of the overall length of the proceedings, dealt with under point D. below. The Court underlines that according to Article 19 of the Convention, its duty is to ensure the observance of the engagements undertaken by the Contracting Parties in the Convention. In particular, it is not the function of this Court to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention. As to the present case, taking the proceedings as a whole, the remainder of the complaints are either unsubstantiated or fail to disclose in the circumstances any appearance of any unfairness contrary to Article 6 § 1.
This part of the application is accordingly manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
C. Absence of an oral hearing on appeal
The applicant complained that the Court of Appeal did not hold an oral hearing in the original proceedings. The Court observes that the absence of a hearing on appeal was covered by Finland’s reservation as in force at the relevant time:
“For the time being, Finland cannot guarantee a right to an oral hearing insofar as the current Finnish laws do not provide such a right. This applies to:
1. proceedings before the Courts of Appeal ... in accordance with Chapter 26, [Section] 7, ... of the Code of Judicial Procedure, ...
The provisions of the Finnish laws referred to above are attached to this reservation as a separate annex.”
By its terms the scope of the Finnish reservation was, at the relevant time, limited to relieving the Court of Appeal from the obligation to hold an oral hearing and consequently the Court finds that the reservation was valid and applicable to the Court of Appeal in the present case (see Helle v. Finland, judgment of 19 December 1997, Reports of Judgments and Decisions 1997-VIII, § 44; Tamminen and Tammelin v. Finland, (dec.) no. 33003/96, 28 September 1999).
It follows that this complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.
D. Allegedly excessive length of the proceedings
1. The Government’s preliminary objection
The Government submitted that the applicant had not exhausted domestic remedies as he did not complain to the appellate court about the length of the proceedings under Chapter 16, section, subsection 2 of the Code of Judicial Procedure, which was in force at the relevant time. The applicant contested the Government’s submission, arguing that had he lodged such a complaint it could have affected only the length of the proceedings before the District Court.
As to the Government’s preliminary objection, the Court notes that it has found in the context of Article 13 that no effective remedy existed for the enforcement of a right to hearing within a reasonable time (Kangasluoma v. Finland, no. 48339/99, § 49, 20 January 2004). In that case the Court rejected the Government’s argument, raised also in this application, that effective redress was provided by the provisions of the Code of Judicial Procedure. The preliminary objection must therefore be dismissed.
2. The parties’ submissions
The Government contended that the applicant complained principally of alleged delay in the Court of Appeal’s examination of the counter-claims. In view of the complexity of the case, the fourteen months spent on this were, in their view, by no means excessive. As to the time elapsed before other court instances, the Government considered that the proceedings were rather complicated, involving questions relating, inter alia, to the extent and duration of construction contracts. They further submitted that the length of the proceedings in the applicant’s case corresponded to the average duration of proceedings concerning construction contracts at that time, thus being by no means unreasonable.
The applicant was of the opinion that the original proceedings lasted over seven years. He argued that the proceedings began with the summoning of him and the estate of his company in September 1992 and lasted until November 1999, when the Supreme Court finally refused him leave to appeal. Its first refusal of leave to appeal of October 1997 cannot be considered to have terminated the proceedings as that decision was quashed in September 1999, one of the Justices having been found to have been partial.
He underlined that in addition to the period of fourteen months which elapsed before the Court of Appeal in considering his counter-claims, the District Court’s unlawful refusal to examine his counter-claims in connection with the plaintiff’s companies’ claims against the estate of his company delayed the proceedings excessively. Furthermore, even though he requested the court not to rule on the plaintiff companies’ claims until the Court of Appeal had examined his appeal against the refusal to join his counter-claims to the original proceedings, it never even contacted the appellate court to ascertain when its judgment would be rendered.
The applicant stressed that the overall length of all the related proceedings was excessive. Following the Supreme Court’s final refusal of leave to appeal in the original proceedings on 23 November 1999, the District Court continued to examine his counter-claims. However, it was only in December 2001 when a preparatory hearing was held and the District Court’s judgment was issued on 22 February 2002. The counter-claim proceedings were still pending before the Court of Appeal when he submitted his observations, having lasted almost ten years by that time. It appears from the further letters of the applicant that the proceedings concerning his counter-claims ended on 26 August 2004 in respect of three of the companies, the Supreme Court having refused him leave to appeal at that date. As to one of the companies, A.H.K., his counter-claims are still pending.
3. The Court’s assessment
The Court considers, in the light of the criteria established by its case-law on the question of “reasonable time”, and having regard to all the material in its possession, that an examination of the merits of the complaint is required. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.
E. Allegation concerning case files in the Supreme Court
As to his complaint that the higher courts did not have at their disposal all of the minutes from the proceedings before the District Court, the Court recalls that the Supreme Court gave its decisions on 3 October 1997 and 23 November 1999. The applicant has lodged this complaint in a letter dated 30 April 2002, i.e., outside the six month time limit imposed by Article 35 § 1 of the Convention. It follows that this complaint has been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.
For these reasons, the Court unanimously
Declares admissible, without prejudging the merits, the applicant’s complaints that the civil proceedings were unreasonably lengthy;
Declares inadmissible the remainder of the application.
Michael O’Boyle Nicolas Bratza
LEHTINEN v. FINLAND DECISION
LEHTINEN v. FINLAND DECISION