by Anneli MANNER and Juhani MANNER
The European Court of Human Rights (Fourth Section), sitting on 23 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 7 August 2006,
Having regard to the declaration submitted by the respondent Government and the observations in reply submitted by the applicants,
Having deliberated, decides as follows:
The applicants, Ms Anneli Manner and Mr Juhani Manner, are Finnish nationals who were born in 1939 and live in Berlin, Germany. They were represented before the Court by Mr P. Impola, a lawyer practising in Helsinki. The Finnish Government (“the Government”) were represented by their Agent, Mr Arto Kosonen of the Ministry for Foreign Affairs.
The circumstances of the case
The facts of the case, as submitted by the applicants and as they appear from the documents on the file, may be summarised as follows.
On 20 August 1999 N., a limited liability company, instituted proceedings against the applicants and E., a limited liability company. It claimed payment from E. for goods delivered and from the applicants on the basis of a personal security furnished by them in 1994 to secure payment for E.’s debts. The file does not disclose the date on which the summons was served on the applicants.
The applicants argued that the proceedings should have been instituted before a German court as they were residents of that country and that German law was applicable to the case. They also contested the action, in short, primarily on the ground that the security had been limited in nature, secondarily on the ground that it was null and void as it failed to meet the formal requirements and in any event on the ground that it had expired with the conclusion of an agreement in 1998.
On 15 August 2000 company E. was declared insolvent in separate proceedings.
On 3 January 2002 the Helsinki District Court (käräjäoikeus, tingsrätten) gave a decision, finding that it had jurisdiction to examine the case. It also found, by way of an interlocutory judgment included in the same decision, that Finnish law was applicable. No separate appeal lay at this point of the proceedings.
On 4 September 2002 the District Court held a preparatory hearing. According to the applicants, a second preparatory hearing was held on 12 February 2003. The court heard the testimonies of the applicants, the chairman of the board and the managing director of the plaintiff company and two witnesses.
On 10 March 2003 the District Court delivered judgment, finding in favour of the plaintiff and ordering the applicants jointly to pay 293,142.94 (euros; (EUR)) plus interest and EUR 11,358.58 legal costs. It held that the applicants had not shown that the security had been limited in nature, that it was null and void or that it had expired. Neither had they shown that there were grounds to amend the outstanding sums for reasons of equity.
On 9 April 2003 the applicants appealed against both decisions, requesting an oral hearing as to the merits of the case. They argued that an oral hearing was necessary given the fact that the lower court had found the testimony of the plaintiff’s representative more credible than that of the applicants. In addition, the District Court’s wrong interpretation of one of the testimonies and its bizarre assessment of one particular statement had apparently affected the outcome of the case. They considered that the appellate court would not be able to assess the case comprehensively without rehearing the oral evidence.
On 31 January 2006 the Helsinki Court of Appeal (hovioikeus, hovrätten), rejecting the request for an oral hearing as manifestly unnecessary, upheld the lower court’s judgment. As to the need for an oral hearing, it reasoned:
“The Court of Appeal’s finding as to its jurisdiction is based on the application of the [so-called Brussels Convention]. For the rest, the Court of Appeal’s findings are based primarily on the written evidence and the conclusions to be drawn therefrom and from the undisputed facts mentioned in the District Court’s judgment. The testimonies of the parties and the witnesses which appear in the District Court’s judgment cannot influence the outcome of the case. [The applicants] have not put forward any other reason to hear oral evidence in the Court of Appeal. The holding of an oral hearing is manifestly unnecessary and the request to that effect is rejected under Chapter 26, Article 14(2), point 6 of the Code of Judicial Procedure.”
The Court of Appeal endorsed the reasoning of the lower court insofar as the merits were concerned.
On 3 April 2006 the applicants applied for leave to appeal to the Supreme Court (korkein oikeus, högsta domstolen). Leave was refused on 27 November 2006.
A. The length of the proceedings
The applicants complained that the proceedings were excessively lengthy. They relied on Article 6 which reads insofar as relevant:
“In the determination of his civil rights and obligations ... everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”
1. The parties’ submissions
By a letter dated 7 April 2009 the Government informed the Court of their unilateral declaration, signed on the same date, with a view to resolving the issue raised by this part of the application.
The declaration provided as follows:
“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 proceedings have failed to fulfil the requirement of ”reasonable” within the meaning of Article 6 § 1 of the Convention.
Consequently, the Government is prepared to pay the applicants in compensation a total sum of EUR 4,300 (four thousand three hundred euros). This sum includes EUR 3,300 for non-pecuniary damage and EUR 1,000 for costs and expenses (inclusive of VAT). In the Government’s view, the aforementioned total sum would constitute adequate redress and sufficient compensation for the impugned length of the said proceedings, and thus constitute an acceptable sum as to quantum in the present case.
The total sum 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 a failure to pay this sum within the said three-month period, the Government undertake to pay simple interest on it, from the 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.
In light of the above, the Government would suggest that the circumstances of the present case allow your Court to reach the conclusion that there exists ‘any other reason’, as referred to in Article 37 § 1 (c) of the Convention, justifying your Court to discontinue the examination 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 your Court to strike the application out of its list of cases.”
In a letter of 18 May 2009 the applicants expressed the view that there was no reason to strike the case out of the list of cases and requested that the examination of the case be continued. As to the compensation offered by the Government, the applicants considered it inadequate.
2. The Court’s assessment
The Court reiterates 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 seven years and three months. The case was dealt with by three levels of jurisdiction. The Court 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 (EUR 3,300) and costs and expenses (EUR 1,000 inclusive of VAT), that is 4,300 euros, constitutes adequate redress for the excessive length of the proceedings having regard to all the circumstances of the case and to its awards in comparable length of proceedings 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, Pélissier and Sassi v. France [GC], no. 25444/94, § 67, ECHR 1999 II). 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, Kangasluoma v. Finland, no. 48339/99, 20 January 2004 and Lehtonen v. Finland, no. 11704/03, 13 June 2006).
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. The absence of an oral hearing in the Court of Appeal
The applicants also complained under Article 6 that the Court of Appeal should have held an oral hearing.
The Court notes that an oral hearing was held in the District Court. Even where a court of appeal has jurisdiction to review the case both as to facts and law, the Court recalls that Article 6 does not always require a right to a public hearing irrespective of the nature of the issues to be decided. The publicity requirement is certainly one of the means whereby confidence in the courts is maintained. However, there are other considerations, including the right to trial within a reasonable time and the related need for expeditious handling of the domestic courts’ case-load, which must be taken into account in determining the necessity of a public hearing at stages in the proceedings subsequent to the trial at first instance (see Fejde v. Sweden, 29 October 1991, § 31, Series A no. 212 C). Provided a public hearing has been held at first instance, the absence of such a hearing before a second or third instance may accordingly be justified by the special features of the proceedings at issue. Leave-to-appeal proceedings and proceedings involving only questions of law, as opposed to questions of fact, may comply with the requirements of Article 6, although the appellant was not given an opportunity of being heard in person by the appeal or cassation court (see Ekbatani v. Sweden, 26 May 1988, § 31, Series A no. 134).
The Court notes that the applicants specifically requested an oral hearing before the Court of Appeal and to rehear the testimony. Thus, no question arises as to whether or not the applicants waived their right thereto. 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 this question, regard must be had to the nature of the Finnish appeal system, to the scope of the Court of Appeal’s powers and to the manner in which the applicants’ interests were actually presented and protected before the Court of Appeal particularly in the light of the nature of the issues to be decided by it (see, mutatis mutandis, Ekbatani v. Sweden, cited above, § 28).
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, Article 15 of the Code on Judicial Procedure, the Court of Appeal shall hold an oral hearing if the credibility of the testimony admitted in the District Court is an issue. In the instant case the appellate court was called upon to examine the case as to both the facts and the law. The applicants argued that an oral hearing was necessary since the lower court had found the testimony of the plaintiff’s representative more credible than theirs. In addition, the District Court’s incorrect interpretation of one of the testimonies and its assessment of one particular statement had, according to the applicant, affected the outcome of the case. They considered that the appellate court would not be able to assess the case comprehensively without rehearing the oral evidence. For the Court of Appeal the crucial question to be resolved was a legal one, namely jurisdiction to try the case. As to the remainder of the case, the Court of Appeal found that there was nothing to controvert the conclusions on the facts and evidence as established by the District Court. The facts themselves were undisputed. For the Court of Appeal the hearing of evidence afresh could not influence the outcome of the case.
Lastly, the Court observes that the applicants were not denied the possibility of requesting an oral hearing, although it was for the Court of Appeal to decide whether a hearing was necessary (see, mutatis mutandis, Martinie v. France [GC], no. 58675/00, § 44, ECHR 2006 ...). The Court of Appeal gave reasons for its decision not to hold a hearing. Since the applicants were given ample opportunity to put forward their case in writing and to comment on the submissions of the other party, the Court finds that the requirements of fairness were complied with and did not necessitate an oral hearing in the Court of Appeal. It follows that this part of the application must be rejected 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 inadmissible the remainder of the application.
Lawrence Early Nicolas Bratza