AS TO THE ADMISSIBILITY OF
Application no. 47221/99
by PABLA KY
The European Court of Human Rights (Fourth Section), sitting on 16 September 2003 as a Chamber composed of
Sir Nicolas Bratza, President,
Mr M. Pellonpää,
Mrs V. Strážnická,
Mr R. Maruste,
Mr S. Pavlovschi,
Mr L. Garlicki,
Mr J. Borrego Borrego, judges,
and Mr M. O’Boyle, Section Registrar,
Having regard to the above application introduced on 2 November 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, Pabla Ky, is a FinnishNote limited partnership company, founded in 1986 and based in Helsinki. It is represented before the Court by Mr Hans Mannstén, a lawyer practising in Helsinki. The respondent Government are represented by their Agent, Mr Arto Kosonen, Director, 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 applicant, which was running a restaurant in Helsinki, rented the restaurant premises from an insurance company called Keskinäinen Henkivakuutusyhtiö Suomi (KHS). In 1994 it was offered an opportunity to rent more premises which would be renovated to be suitable for the applicant’s restaurant. When the renovation was finished, the applicant company found that there were excessive toilet facilities but that part of the planned restaurant facilities were missing, especially those planned to be built in the cellar. The applicant paid FIM 251,000 (approximately EUR 42,200) for the renovation expenses and the monthly rent was raised considerably. The amended rent contract was signed before the extension work commenced.
In 1997 the applicant instituted civil proceedings against KHS before a Division, called the Housing Court (asunto-oikeus, bostadsdomstolen), of the District Court (käräjäoikeus, tingsrätt) of Helsinki (hereafter “the Housing Court”). The applicant claimed that there was a breach of the rent contract as the newly renovated facilities did not correspond to the original plan, on the basis of which the applicant had signed the amended rent contract. KHS disagreed with the applicant, arguing that even though there had originally been a plan to build restaurant facilities in the cellar, it had later proved to be impossible to establish such an extension and that the applicant had been aware of this obstacle before signing the contract. On 17 September 1997 the Housing Court found in favour of the insurance company, rejecting the applicant’s action for compensation in accordance with the Act on Commercial Leases (laki liikehuoneiston vuokrauksesta, lag om hyra av affärslokal; 31.3.1995/482).
The applicant appealed to the Court of Appeal (hovioikeus, hovrätt) of Helsinki, requesting that the District Court’s decision be quashed. On 11 December 1997 the Housing Court Division of the Court of Appeal upheld the District Court’s decision without an oral hearing. One of the Court of Appeal judges, M.P., was a Member of the Finnish Parliament at the time. He had been an expert member of the Court of Appeal since 1974. In 1987-1990 and 1995-1998 he was also a Member of Parliament.
On 9 February 1998 the applicant applied the Supreme Court (korkein oikeus, högsta domstolen) for leave to appeal, complaining, inter alia, about the lack of independence of Judge M.P., who had both legislative functions as a Member of Parliament and judicial functions as a Court of Appeal judge. On 5 May 1998 the Supreme Court refused the applicant leave to appeal.
B. Relevant domestic law and practice
Under Section 9 (278/1983) of the Parliament Act (valtiopäiväjärjestys, riksdagsordning) that was in force in 1997 only certain military positions and certain high positions in the judiciary, as well as the duties of officials supervising the lawfulness of government activities, were incompatible with duties of a Member of the Parliament, but there were no such restrictions as regards members of a Court of Appeal. The said provision reads as follows:
“The Chancellor of Justice, the Assistant Chancellor of Justice, a Justice of the Supreme Court or of the Supreme Administrative Court, the Parliamentary Ombudsman and the Assistant Parliamentary Ombudsman may not hold the office of a representative. If a representative is appointed to one of the aforesaid offices or elected Parliamentary Ombudsman or Assistant Parliamentary Ombudsman, his parliamentary mandate shall expire.”
This provision corresponds to the existing Section 27 of the Constitution (731/1999; perustuslaki, grundlagen).
According to Section 23 of the State Civil Servants Act (750/1994; valtion virkamieslaki, statstjänstemannalagen), a public official must be absent from office for the period of time he or she performs the duties of a Member of Parliament.
According to Section 29, subsection 1 (504/1984), in the Act on Court Proceedings in Cases concerning Rental Matters (650/1973; laki oikeudenkäynnistä huoneenvuokra-asioissa, lag om rättegång i hyresmål), the Court of Appeal considers the appeal concerning a rent contract in a composition of three judges and two expert members of whom one represents the views of landlords and the other one the views of tenants. The expert members of the Court of Appeal are appointed by the President of the Republic for a period of four years. According to Section 29, subsection 2, one requirement is that the member is not younger than 25 and not older than 70 years, and has full legal capacity. According to Section 31 of the Act, also the expert members are required to take an oath.
The Government has recently submitted a bill to Parliament (HE 31/2001; hallituksen esitys, regeringens proposition), with the purpose of repealing the Act on Court Proceedings in Cases concerning Rental Matters. It is proposed that expert members would no longer take part in the proceedings before the District Courts or Courts of Appeal and that the Code of Judicial Procedure (oikeudenkäymiskaari, rättegångsbalken) would apply to the proceedings.
The provisions concerning the disqualification of judges are contained in Chapter 13, Section 1 of the Code of Judicial Procedure. At the relevant time the said provision was worded as follows:
“If the plaintiff or the defendant wish to plead the disqualification of the judge, he shall do so in a polite manner, and that judge shall decide on whether or not he 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 publicly known “enemy” of a party; when the judge or his relative here listed has an interest in the case, when they stand to obtain particular benefit or suffer particular loss in it; when the judge has served as a judge in the case in another court; when the judge has served as an advocate or witness in the case; or when the judge has previously, on the orders of a court decided a part of 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 of his own accord.”
The provisions of Chapter 13 of the Code of Judicial Procedure concerning the impartiality of judges have recently been amended by an Act (441/2001) that entered into force on 1 September 2001. The Government Bill (HE 78/2000) contains an extensive account of the existing legislative provisions, case law of the European Court of Human Rights and precedents of the Supreme Court concerning the disqualification of judges. The amendment has not changed the Government’s assessment of the present case.
The applicant complains under Article 6 § 1 of the Convention about the lack of the Court of Appeal’s independence and impartiality as one of the judges was also a Member of the Finnish Parliament. This is clearly against the theory of separation of powers. The applicant also alleges that the group of insurance companies to which its adversary belonged offered funding and inexpensive lease contracts to Members of the Parliament.
The applicant complains about the Court of Appeal’s lack of independence and impartiality as one of the Court of Appeal judges was also a Member of the Finnish Parliament at the same time when he was judging the applicant’s case. The applicant company invokes Article 6 § 1 of the Convention which, insofar as relevant, reads as follows:
“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal...”
The Government contest the applicant’s allegations. They reiterate that M.P. was one of the two expert members of the Court of Appeal, in a composition where the three other members of the Court were professional judges. The professional judges thus constituted a majority.
The Government agree that in their capacity as members of the Court of Appeal, the experts are subject to the same regulations as judges. The provisions in Chapter 13 of the Code of Judicial Procedure, concerning the impartiality of judges, are also applicable to expert members, who have also to take an oath. Moreover, M.P. has not acted and could not have acted as a professional judge in the Court of Appeal (or in any other court of law) since a public official shall be absent from office for the period of time he performs the duties of a Member of Parliament.
The Government further emphasise that the Parliament makes its decisions with a majority of the votes cast. In some cases a qualified majority is required. The Finnish Constitution does not set any requirement as to the number of Members that should participate in the decision-making, but the work is based on the assumption that the Members of Parliament attend the sessions. The Government also recall that any matters to be discussed in a Parliament session must have been prepared in committees (Section 63 of the Parliament Act; current section 40 of the Constitution). As regards committee sessions, the quorum is two thirds of their members. The requirement of preparation of matters and the requirement of presence in Parliament sessions ensure that “one Member’s laws” are not even a theoretical possibility.
The Government note, moreover, that the applicant has not even suggested that the Parliament would have interfered in M.P.’s exercise of his duties as an expert member of the Court of Appeal.
The Government observe that the position of a Member of Parliament is a position of trust which does not entail any statutory or other obstacle for a Member of Parliament to act as an expert member of the Court of Appeal in cases concerning rental matters. It is possible that M.P., due to his position as a Member of Parliament, has obtained special expertise in legislative matters, including legislation on rental matters. However, such expertise has not been considered to jeopardise the impartiality of judges but rather increase their competence.
The Government emphasise the fact that the particular qualification required from expert members is the same as for judges, i.e. that the expert member may not have such a personal relationship with any party to the proceedings or with the case to be considered as would jeopardise his or her impartiality. The applicant alleges that the group of insurance companies to which its adversary belonged offered funding and inexpensive lease contracts to Members of Parliament and that M.P. was partial because of this. The Government recalls in this respect that, according to the Court’s constant case-law, a mere suspicion of partiality does not render M.P. partial. The applicant has neither shown that M.P. rented an apartment from the opposite party, nor that he received any funding.
The applicant maintains that M.P. was a fully qualified member of the composition of the Court of Appeal. He was also a Member of the Parliament and a social-democrat. According to theory of separation of powers a Member of the Parliament should not act as a judge in an individual case since the judicial and legislative powers should not be used by one and same person. A Court of Appeal in which a judge is a Member of Parliament cannot, thus, be considered as being independent of the legislature.
The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. 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.
For these reasons, the Court by a majority
Declares the application admissible, without prejudicing the merits of the case.
Michael O’Boyle Nicolas Bratza
PABLA KY v. FINLAND DECISION
PABLA KY v. FINLAND DECISION