by Aarno LIUKSILA and Pekka LIUKSILA
The European Court of Human Rights (Fourth Section), sitting on 16 June 2009 as a Chamber composed of:
David Thór Björgvinsson,
Nebojša Vučinić, judges,
and Lawrence Early, Section Registrar,
Having regard to the above application lodged on 1 April 2005,
Having regard to the observations and declaration submitted by the respondent Government and the observations in reply submitted by the applicants,
Having deliberated, decides as follows:
The applicants, Mr Aarno Liuksila and Mr Pekka Liuksila, are Finnish nationals who were born in 1943 and 1945 and live in Helsinki and Turku respectively. They were represented before the Court by the second applicant, a lawyer practising in Turku. The Finnish Government (“the Government”) were represented by their Agent, Mr Arto Kosonen of 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 own four apartments in a housing corporation in Turku. The apartments were destroyed in a fire on 22 January 1990. On 14 April 1993 an arbitration award was rendered according to which the housing corporation was ordered to rebuild the house and to restore it to its pre-fire state.
On 21 March 1995 the housing corporation brought a civil complaint against the applicants for not having paid maintenance charges since 1 April 1994. On 6 August 1996 the applicants brought a civil complaint against the housing corporation, requesting the court to order it to restore the building to its pre-fire state and to compensate the applicants for all their losses. They claimed, inter alia, that the arbitration award rendered in 1993 was ambiguous and incomplete and could not therefore be implemented. Moreover, the arbitrators had exceeded their competences. The Turku District Court (käräjäoikeus, tingsrätten) decided on 11 September 2001 to join these two cases.
The Turku District Court, after having held an oral hearing, found in its judgment of 29 May 2002, inter alia, that the arbitration award could not be considered null and void and that the applicants had not suffered any loss as the restoration of the building had been finished on 9 May 1994 and they had been able to recover their right of possession on that date. The court ordered the applicants to pay the maintenance charges from 1 April 1994 onwards.
On 15 August 2002 the applicants appealed to the Turku Appeal Court (hovioikeus, hovrätten), claiming, inter alia, that the length of the proceedings had already been unreasonably long and that the senior judge of the District Court was biased due to his involvement in the earlier phase of the case. Moreover, they requested the Appeal Court to hold an oral hearing and to hear witnesses, due to the fact that several mistakes had allegedly been committed by the District Court as all testimonies had not been taken into account and one of them had been wrongly recorded in the judgment.
The Turku Appeal Court found in its judgment of 5 March 2004 that the senior judge was not biased as he had only been a member of the court that had decided on an interlocutory measure in the case. Moreover, it was apparent that the senior judge had had no preconceived notions about the merits of the case and the applicants had been provided with an opportunity, before the District Court hearing, to say whether they considered the composition of the bench to be in any way biased. They had made no comments. According to the Supreme Court’s practice, a court was not automatically partial even if the judges involved in the taking of an interlocutory measure had also taken part in the examination of the merits of the case. As to the holding of an oral hearing, the Appeal Court rejected this request as clearly unnecessary. Nor was there any need to allow the applicants to supplement their submissions. As to the merits of the case, the Appeal Court upheld the District Court’s judgment.
On 4 May 2004 the applicants appealed to the Supreme Court (korkein oikeus, högsta domstolen), reiterating the grounds of appeal relied on in the Appeal Court proceedings. Moreover, they complained that the Appeal Court had rejected their request for an oral hearing and had refused to accept further written evidence.
On 1 February 2005 the Supreme Court refused the applicants leave to appeal.
B. Relevant domestic law
Chapter 26, section 14 (Act no. 165/1998) of the Code of Judicial Procedure (oikeudenkäymiskaari, rättegångsbalken) reads as follows:
"(1) A main hearing shall be held in the Appeal Court, if a party to a civil case or the injured party or the defendant in a criminal case so requests.
(2) However, a main hearing need not be held for the reason referred to in paragraph (1), if
1) in a civil case amenable to settlement, the opposing party has admitted the appellant’s request for a modification;
2) in a criminal case only the appellant has requested a main hearing and the case is decided in accordance with the appeal;
3) the person requesting a main hearing has been satisfied with the decision of the District Court and the decision is not modified to his/her detriment;
4) the appeal is manifestly ill-founded;
5) only a procedural matter is to be decided in the case; or
6) the holding of a main hearing is for another reason manifestly unnecessary.
(3) The provisions in paragraph (1) and in paragraph (2) points 1) and 3)—6) apply, in so far as appropriate, also when hearing an appeal lodged in a petitionary matter.
(4) If the Appeal Court rejects the request of the appellant or the respondent for a main hearing, he/she shall, where necessary, be given an opportunity to supplement the appeal or the response for this reason."
Chapter 26, section 15, subsection 1 (Act no. 165/1998) of the same Code provides:
“The Appeal Court shall hold a main hearing regardless of whether one has been requested, if a decision on the matter turns on the credibility of the testimony admitted in the District Court or the findings of the District Court in an inspection, or on new testimony to be admitted in the Appeal Court. In this event, the evidence admitted in the District Court shall be readmitted and the inspection carried out again in the main hearing, unless there is an impediment for the same.”
Chapter 17, section 7 (Act. no. 571/1948) of the same Code reads as follows:
“If a piece of evidence that a party wishes to present pertains to a fact that is not material to the case or that has already been proven, or if the fact can be proved in another manner with considerably less inconvenience or cost, the court shall not admit this piece of evidence.”
The applicants complained under Article 6 of the Convention that the total length of the proceedings in their case had been incompatible with the “reasonable time” requirement. They complained under the same Article that they had not had a fair trial as the Appeal Court had rejected their request for an oral hearing and had refused to accept further written evidence. Moreover, the Turku District Court had not been an impartial and independent tribunal as the senior judge had been biased due to his involvement in an earlier phase of the applicants’ case.
The applicants complained under Article 1 of Protocol No. 1 to the Convention that they had been deprived of their possessions as they had not been able to recover the possession of the apartments owned by them.
A. Length of the proceedings
The applicants complained about the length of the civil proceedings. They relied on Article 6 § 1 of the Convention which, inter alia, provides as follows:
“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...”
By a letter dated 3 November 2008 the Government informed the Court of their unilateral declaration, signed on the same date, with a view to resolving the issue raised by this complaint.
The declaration provided as follows:
“1. Whereas the efforts with a view to securing a friendly settlement of the case have been unsuccessful, the Government wishes to express – by way of a unilateral declaration – its acknowledgement that in the special circumstances of the present case the length of the civil proceedings did not fulfil the requirement of ”reasonable” referred to in Article 6 § 1 of the Convention.
2. Consequently, the Government are prepared to pay each applicant in compensation for non-pecuniary damage EUR 7,000 (seven thousand euros). In its view, this amount would constitute adequate redress and sufficient compensation for the impugned length of the said proceedings, and thus an acceptable sum as to quantum in the present case.
3. The Government are furthermore prepared to reimburse the applicants’ costs and expenses in an amount of EUR 1,000 (one thousand euros), inclusive of value-added tax. In its view, this amount could reasonably be considered to correspond to what has actually been incurred by the applicants and as sufficient compensation for their costs and expenses in the proceedings in the present case, and also acceptable as to quantum.
4. The total sum of EUR 15,000 (fifteen thousand euros) will be payable within three months from the date of notification of the decision pursuant to Article 37 § 1 (c) of the Convention. In the event of the 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.
5. In the light of above, the Government would suggest that the circumstances of the present case allow the Court to reach the conclusion that there exists ‘any other reason’, as referred to in Article 37 § 1 (c) of the Convention, justifying the Court to discontinue the examination of this part of the application, and that, moreover, there are no reasons of a general character, as defined in Article 37 § 1 in fine, which would require the further examination of the case by virtue of that provision. Accordingly, the Government invites the Court to strike this part of the application out of its list of cases.
In a letter of 12 January 2009 the applicants did not comment on the Government’s unilateral declaration but submitted their just satisfaction claims in detail.
The Court notes that both parties filed submissions with the Registry in the context of friendly settlement negotiations (Article 38 § 1 (b) of the Convention and Rule 62 of the Rules of Court). No settlement was reached.
Article 37 of the Convention provides that the Court may, at any stage of the proceedings, decide to strike an application out of its list of cases where the circumstances lead to one of the conclusions specified under (a), (b) or (c) of paragraph 1 of that Article. Article 37 § 1 (c) enables the Court in particular to strike a case out of its list if:
“for any other reason established by the Court, it is no longer justified to continue the examination of the application”.
Article 37 § 1 in fine includes the following proviso:
“However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires.”
The Court points out that, under certain circumstances, it may be appropriate to strike out an application, or part thereof, under Article 37 § 1 (c) of the Convention on the basis of a unilateral declaration filed by the respondent Government even if the applicant wishes the examination of the case to be continued. In deciding whether or not it should strike the length of proceedings complaint out of its list, the Court will examine carefully the terms of the declaration made by the Government in the light of the principles emerging from its case-law, in particular its judgments in cases such as Tahsin Acar v. Turkey [GC] (no. 26307/95, §§ 75-77, ECHR 2003-VI); Meriakri v. Moldova ((striking out), no. 53487/99, 1 March 2005); Swedish Transport Workers Union v. Sweden ((striking out), no. 53507/99, 18 July 2006); Van Houten v. the Netherlands ((striking out), no. 25149/03, ECHR 2005 IX), Kalanyos and Others v. Romania ((no. 57884/00, § 25, 26 April 2007)), and K.K. v. Finland ((striking out), no. 7779/04, 27 November 2007).
The Court observes that the civil proceedings lasted some nine years and ten months at three levels of jurisdiction. It notes that the Government’s declaration contains a clear acknowledgment that the “reasonable time” requirement has not been respected within the meaning of Article 6 § 1 of the Convention. The Court is satisfied that the total amount offered to the applicants by the Government in compensation for non-pecuniary damage and costs and expenses, that is 15,000 euros, constitutes adequate redress for the excessive length of the proceedings having regard to all the circumstances of the case, and that this amount is consistent with the amounts awarded in other similar cases.
The Court has established in a number of cases its practice concerning complaints about the violation of one’s right to a hearing within a reasonable time (see, for example, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII and Cocchiarella v. Italy [GC], no. 64886/01, §§ 69-98, ECHR 2006-). Furthermore, it has already had occasion to address complaints related to alleged breach of one’s right to a hearing within a reasonable time in cases against Finland (see, for example, Riihikallio and Others v. Finland, no. 25072/02, §§ 22-27, 31 May 2007; Ekholm v. Finland, no. 68050/01, §§ 62-66, 24 July 2007; and Rafael Ahlskog v. Finland, no. 23667/06, §§ 18-24, 13 November 2008).
Against this background, the Court considers that it is no longer justified, within the meaning of Article 37 § 1 (c) of the Convention, to continue the examination of this part of the application, and finds no reasons which would require the further examination of this part of the case (Article 37 § 1 in fine).
Accordingly, it should be struck out of the list.
B. Lack of an oral hearing
Under Article 6 § 1 of the Convention, the applicants also complained about the lack of an oral hearing in the Appeal Court.
The Government pointed out that it had not been necessary to hear in the Appeal Court the eleven witnesses, of whom ten had already been heard by the District Court, since their testimonies had concerned circumstances which were not at dispute. There had been no question about the credibility of evidence produced in the District Court but only on how to assess it judicially. The Appeal Court had refused to hold an oral hearing on the basis of Chapter 26, section 14, subsection 2 (6), of the Code of Judicial Procedure. The court had reassessed a statement by one witness which the applicants had claimed had been wrongly recorded in the District Court’s judgment. Since there had been other, conflicting evidence, the validity of which the applicants had not contested, the witness statement in question could not have formed on its own a basis for the Appeal Court’s judgment. Therefore, it had been manifestly unnecessary to hold an oral hearing in order to rehear this witness.
The applicants maintained that the proceedings had been unfair as the Appeal Court had not heard the witnesses.
The Court reiterates at the outset that the entitlement to a “public hearing” in Article 6 § 1 necessarily implies a right to an “oral hearing”. However, the obligation under Article 6 § 1 to hold a public hearing is not an absolute one. Thus, a hearing may be dispensed with if a party unequivocally waives his or her right thereto and there are no questions of public interest making a hearing necessary. A waiver can be explicit or tacit, in the latter case for example by refraining from submitting or maintaining a request for a hearing (see, among other authorities, Håkansson and Sturesson v. Sweden, 21 February 1990, § 66, Series A no. 171 A; and Schuler-Zgraggen v. Switzerland, 24 June 1993, § 58, Series A no. 263).
In the present case, the applicants specifically requested an oral hearing before the Appeal Court. Thus, no question arises as to whether or not the applicants waived their right thereto. It remains to be examined whether the circumstances of the applicants’ case were such as to justify the absence of an oral hearing.
The Court points out that in proceedings before a court of first and only instance there is normally a right to a hearing (see Håkansson and Sturesson v. Sweden, cited above, § 64). However, the absence of a hearing before a second or third instance may be justified by the special features of the proceedings at issue, provided a hearing has been held at first instance (see Helmers v. Sweden, 29 October 1991, § 36, Series A no. 212 A). Accordingly, unless there are exceptional circumstances that justify dispensing with a hearing, the right to a public hearing under Article 6 § 1 implies a right to an oral hearing at least before one instance. A hearing may not be necessary, for example when it raises no questions of fact or law which cannot be adequately resolved on the basis of the case file and the parties’ written observations (see, inter alia, Döry v. Sweden, no. 28394/95, § 37, 12 November 2002; Lundevall v. Sweden, no. 38629/97, § 34, 12 November 2002; Salomonsson v. Sweden, no. 38978/97, § 34, 12 November 2002; and mutatis mutandis, Fredin v. Sweden (no. 2), 23 February 1994, §§ 21-22, Series A no. 283 A; Fischer v. Austria, 26 April 1995, § 44, Series A no. 312; and Elo v. Finland, no. 30742/02, § 35, 26 September 2006).
In the present case, the Court notes at the outset that a public hearing was held at first instance, in which the applicants and several witnesses were heard.
It remains to be examined whether a departure from the principle that there should be such a hearing could, in the circumstances of the case, be justified at the appeal stage by the special features of the domestic proceedings viewed as a whole. In order to decide on this question, regard must be had to the nature of the Finnish appeal system, to the scope of the Appeal Court’s powers and to the manner in which the applicants’ interests were actually presented and protected before the Appeal Court particularly in the light of the nature of the issues to be decided by it (see, mutatis mutandis, Ekbatani v. Sweden, 26 May 1988, § 28, Series A no. 134).
The Court observes that the Finnish appellate courts’ jurisdiction is not limited to matters of law but also extends to factual issues. Under Chapter 26, section 15, of the Code on Judicial Procedure, the Appeal Court shall hold an oral hearing if the credibility of the testimony admitted in the District Court is an issue. In the instant case the Appeal Court was called upon to examine the case as to both the facts and the law.
The applicants claimed that several mistakes had been committed by the District Court as not all testimonies had been taken into account and one of them had been wrongly recorded in the judgment, and that therefore it had been necessary to hear witnesses.
The Court notes that the Appeal Court made a reassessment only of the testimony that was allegedly wrongly recorded. Had the Appeal Court assessed this testimony differently than the District Court, this evidence could not on its own have served as a basis for a judgment since it pointed in a different direction from other evidence provided on the same issue, the credibility of which was never disputed by the applicants. The Court finds that, in the circumstances of the instant case, the issue was not the credibility of the statement in question but whether that statement had been wrongly recorded. This assessment could be made on the basis of the recordings made during the District Court proceedings. Furthermore, there is no indication that a hearing was needed in order to hear oral testimony on any other grounds. In these circumstances, it must be concluded that the Appeal Court could adequately resolve the case without holding an oral hearing. The Court would further observe that the applicants were at all times legally represented in the appeal proceedings.
Having regard to the foregoing, the Court finds that there were circumstances which justified dispensing with a hearing in the applicants’ case. It follows that this complaint must be rejected as being manifestly ill-founded within the meaning of Article 35 §§ 3 and 4 of the Convention.
C. Alleged partiality of a judge
The applicants further complained, under Article 6, that the Turku District Court had not been an impartial and independent tribunal as the senior judge had been biased due to his involvement in the earlier phase of the case.
The Court notes that the senior judge in question had been a member of the court which had decided on an interlocutory measure in the case. As to the subjective element, the Court has no doubts about the judge’s impartiality: as he did not remember having been involved in the earlier case, the applicants were provided with an opportunity, before the District Court hearing, to say whether they considered the composition to be in any way biased. They made no comment. Moreover, the Appeal Court concluded that it was apparent that the senior judge in question had had no personal preconceptions concerning the applicants’ case.
As to the objective element, according to the Finnish Supreme Court’s practice, a court is not automatically partial even if the judges participating in the decision on an interlocutory measure also take part in the examination of the merits of the case. The Court notes that even if the composition of the District Court lacked the required objective element, the applicants were able to appeal, and in fact did so, to higher courts which were clearly impartial and thus remedied the problem (see for example Kingsley v. the United Kingdom, no. 35605/97, § 58, 7 November 2000). The Court finds therefore that there is no indication of any violation in this respect.
It follows that this complaint must be rejected as being manifestly ill-founded within the meaning of Article 35 §§ 3 and 4 of the Convention.
D. Deprivation of possessions
Lastly, the applicants complained under Article 1 of Protocol No. 1 that they had been deprived of their possessions as they had not been able to recover possession of the apartments owned by them.
To the extent that the applicants complain that the acts of the housing corporation violated their property rights, the Court finds that the applicants’ complaint does not concern an interference with their Convention rights by the authorities of the respondent State, as the legal person in question was not capable of engaging the State’s responsibility under Articles 1 and 34 of the Convention (see Törmälä v. Finland (dec.), no. 41258/98, 16 March 2004). Therefore this complaint is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3.
In so far as the applicants complained that the domestic courts prevented, by their judgments, the applicants from recovering their right of possession, the Court has stated on many occasions that domestic court regulation of property disputes according to domestic law does not, by itself, raise any issues under Article 1 of Protocol No. 1 to the Convention (see for example Eskelinen v. Finland (dec.), no. 7274/02, 3 February 2004). Moreover, the Court notes that the District Court found in its judgment that the building had been finished already on 9 May 1994, that is, before the domestic proceedings in question were even initiated, and that the applicants were able to recover their right of possession on that date. The Court finds therefore that there is no indication of any violation in this respect.
It follows that these complaints must be rejected partly as being incompatible ratione personae, partly as being manifestly ill-founded within the meaning of Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Takes note of the terms of the respondent Government’s declaration in respect of the length of proceedings complaint under Article 6 § 1 of the Convention and of the modalities for ensuring compliance with the undertakings referred to therein;
Decides to strike the application out of its list of cases in so far as it relates to the above complaint in accordance with Article 37 § 1 (c) of the Convention;
Declares the remainder of the application inadmissible.
Lawrence Early Nicolas Bratza