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RANGDELL v. FINLAND - 23172/08 [2010] ECHR 50 (19 January 2010)
URL: http://www.bailii.org/eu/cases/ECHR/2010/50.html
Cite as:
[2010] ECHR 50
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FOURTH
SECTION
CASE OF RANGDELL v. FINLAND
(Application
no. 23172/08)
JUDGMENT
STRASBOURG
19
January 2010
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Rangdell v. Finland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas Bratza, President,
Lech
Garlicki,
Giovanni Bonello,
David Thór
Björgvinsson,
Ján Šikuta,
Päivi
Hirvelä,
Nebojša Vučinić,
judges,
and Lawrence Early,
Section Registrar,
Having
deliberated in private on 15 December 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application
(no. 23172/08) against the
Republic of Finland lodged with the Court
under Article 34 of the Convention for the Protection
of Human Rights and Fundamental Freedoms (“the Convention”)
by a Finnish national, Mr Jyrki
Rangdell (“the applicant”), on 13 May 2008.
The
applicant was represented by Mr Panu Karhu, a lawyer practising in
Helsinki. The Finnish Government (“the
Government”) were represented by their Agent, Mr Arto Kosonen
of the Ministry for Foreign Affairs.
On
12 March 2009 the
President of the Fourth Section decided to give notice of the
application to the Government. It was also decided to rule on the
admissibility and merits of the application at the same time
(Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1942 and lives in Helsinki.
In
July 1994 the applicant was on a boating trip with his family. While
the boat was secured to a jetty off Helsinki harbour, it began to
rock heavily up and down against the jetty in a sudden surging of the
waves. The applicant, standing on the jetty at the time, tried to
protect his boat and his family on board, by clutching the bow with
his hands. In consequence, he fell between the boat and the jetty and
sustained injuries to his neck and shoulder. Due to the accident he
became permanently disabled for work and on 1 August 1995 his
insurance company granted him a full disability pension.
According
to the applicant the rough waves were caused by a passing passenger
ship which, in his view, had used excessive speed for the prevailing
conditions. The applicant filed a criminal complaint with the police,
which conducted a pre-trial investigation. The public prosecutor
subsequently filed an application for a summons against the ship's
captain, who was a citizen of Estonia. The authorities failed,
however, to serve the summons in due time and the alleged offences
became time-barred.
On
3 July 1996 the applicant lodged a civil action for damages with the
Helsinki District Court (käräjäoikeus, tingsrätten)
against the captain and the Estonian shipping company, which was in
charge of the ship.
In
their written response of 20 December 1996 the defendants pleaded
firstly that the Helsinki District Court had no jurisdiction in the
matter, the correct forum being the relevant court in Tallinn,
Estonia. They also pleaded that the summons had not been properly
served on the shipping company and that the claims against the
captain were premature, as he could only be held liable for the
amount not received from his employer. On 6 March 1998 the
District Court rejected those pleas and continued with the
proceedings.
While
the proceedings were underway, the shipping company was declared
bankrupt. The bankruptcy proceedings were discontinued for lack of
assets and the shipping company was removed from the business
register on 26 August 1999.
On
14 December 1999 the Helsinki District Court held a preliminary
hearing in the compensation proceedings. During that hearing the
applicant withdrew his claims against the shipping company. Both
remaining parties requested adjournment of the proceedings in order
to supplement their case. The date of the next hearing was left open.
It
turned out that the shipping company had been insured against
liability with a Norwegian insurance company. As the relevant
provisions governing insurance contracts in Finland and in Norway,
respectively, allowed an action to be brought against the company in
the event of bankruptcy of the insured, the applicant decided to do
so in the sphere of the ongoing proceedings. However, under the
Finnish legislation an action for damages based on marine insurance
could not be examined by a court before the relevant authority, the
Average Adjuster (merivahingonlaskija, dispaschör), had
issued a damage report. On 20 November 2000 the applicant filed a
request with the Average Adjuster to that end.
In
its written response of 28 September 2001 to the Average Adjuster the
insurance company claimed that the authority was not competent to
deal with the matter. It referred to the insurance contract and the
relevant insurance terms, which stated that any dispute between the
insurer and the insured was to be dealt with in arbitration
proceedings (välimiesmenettely, skiljeförfarande) in
Oslo, Norway. In addressing his claims directly to the association,
instead of the company insured, the applicant was bound by those same
terms.
On
18 March 2002 the Average Adjuster issued its decision. It conceded
the insurance company's objection concerning the lack of competence
and refrained from issuing a report on the damages. The applicant was
also ordered to pay 1,200 euros (EUR) in fees and expenses to that
authority. The decision was subject to an action for annulment within
30 days. In the event that no such action was lodged, the decision
was to be complied with.
On
11 April 2002 the applicant lodged an action against the above
decision with the Helsinki District Court asking that it be quashed
and the case remitted to the Average Adjuster. He further asked the
court to confirm that the case could be dealt with by the general
courts under Finnish law. In the alternative, he asked the court to
quash the decision and to examine his claims against the insurance
company jointly with his claims against the ship's captain in the
proceedings currently pending before the court.
On
22 March 2005 the District Court dismissed the applicant's action,
finding that he was bound by the insurance terms, including the
arbitration clause.
The
applicant appealed against the District Court's judgment to the
relevant appeal instance, the Supreme Court (korkein oikeus,
högsta domstolen). On 24 April 2007 that court, having
assessed the applicable legislation and the validity of the
arbitration clause in respect of the applicant, upheld the lower
court's judgment. In its assessment the court took into account the
relevant provisions of the Norwegian law and legal literature
concerning the matter at hand. It noted that the issue before the
courts had been unclear in the light of the Norwegian law and no
precedent had been available.
On
4 September 2007 the District Court held another preliminary hearing
in the compensation proceedings, which were now pursued only against
the ship's captain. As the applicant had previously withdrawn his
claims against the shipping company, the court refrained from issuing
a decision in that respect. The case was again adjourned and the
court ordered the applicant and the defendant to submit written
statements by 30 November 2007 and 4 January 2008,
respectively.
On
11 and 14 March 2008 the District Court, sitting as a maritime court,
held another preliminary hearing and the main hearing, where it
received oral testimony and other evidence.
On
2 April 2008 the District Court issued its judgment. It found that
the captain could not be held liable for the applicant's injuries and
dismissed the action. On 8 April 2008 the applicant and the defendant
informed the court that they had settled the case and agreed not to
appeal against the judgment. On that same date, at the request of the
parties, the District Court officially confirmed the settlement of
the case.
II. RELEVANT DOMESTIC LAW
Section 1 of the Average Adjuster's Damage Report in
Marine Insurance Cases Act (laki merivahingonlaskijan
korvausselvityksestä merivakuutusasioissa, lag om utredning av
ersättningar genom dispaschör i sjöförsäkringsärende,
Act No. 10/1953) provides that a matter concerning compensation for
damages based on a marine insurance contract has to be dealt with by
the Average Adjuster, unless it has been agreed otherwise. However,
such a case can only be examined by a court if a damage report
by that authority has been obtained.
The
Average Adjuster's jurisdiction is based on the Decree on the Post of
the Average Adjuster (asetus merivahingonlaskijan toimesta,
No. 121/1936).
An
action for annulment of the Average Adjuster's damage report is
regulated in Chapter 21, section 8, of the Maritime Law (merilaki,
sjölagen, Act No. 674/1994). The said provision states,
inter alia, that unless such an action is brought, the damage
report is to be complied with.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION CONCERNING LENGTH OF PROCEEDINGS
The
applicant complained that the length of the proceedings had been
incompatible with the “reasonable time” requirement, laid
down in Article 6 § 1 of the Convention, which reads
as follows:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal...”
The
Government contested that argument.
A. Admissibility
The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
The
Government argued that the proceedings before the Average Adjuster
and the subsequent annulment proceedings could not be taken into
account when calculating the total length of the proceedings. As to
the civil action against the captain, the Government contended that
those proceedings, when taken alone, did not exceed a reasonable
time. The applicant himself had requested adjournment of those
proceedings in order to supplement his case.
The
applicant contested those arguments. In his view, the proceedings had
to be considered in toto. They had thus lasted eleven years
and nine months, which was excessive. Even though the applicant had
given his consent to adjourn the proceedings, it had been up to the
District Court to decide how those proceedings were conducted and at
what pace. The applicant pointed out that after having received the
Average Adjuster's decision he had requested the District Court to
examine his claims against the captain and the insurance company
jointly. This request had not, however, been complied with. The
applicant further contended that the matter had been of extreme
importance to him, as it involved compensation for permanent
disability.
The
Court reiterates that for Article 6 § 1, in its civil limb, to
be applicable there must be a dispute (contestation) over a
“right” that can be said, at least on arguable grounds,
to be recognised under domestic law. The dispute must be genuine and
serious. It may relate not only to the actual existence of a right
but also to its scope and the manner of its exercise. Moreover, the
outcome of the proceedings must be directly decisive for the civil
right in question (Frydlender v. France [GC], no. 30979/96, §
27, ECHR 2000 VII).
The
Court notes that in the present case it was not contested that the
initial proceedings concerning the applicant's claim for compensation
against the shipping company and the captain, and later only against
the latter, met the above criteria. As to the second set of
proceedings, concerning the question of whether the applicant could
bring a fresh claim for compensation against the Norwegian insurance
company, the Court notes that the domestic courts were called upon to
examine a procedural dispute over the legal forum where the applicant
could present his civil claim, that is, a claim for compensation for
his injuries. The dispute was genuine and serious and the result of
the proceedings was directly decisive for the exercise of the
applicant's pecuniary right at issue. The Court thus finds that the
second set of proceedings equally falls within the ambit of
Article 6 § 1 of the Convention.
The
Court now has to determine whether the two sets of proceedings were
compatible with the “reasonable time” requirement, laid
down in that Article.
The Court firstly reiterates that, in respect of
separate sets of proceedings, for the purposes of calculating the
period to be taken into consideration, the Court has only considered
such proceedings in toto where the proceedings are
indissociable and concern essentially the same dispute
('contestation'); for example, where proceedings on the merits
of a claim are followed by enforcement proceedings (see Di Pede v.
Italy, 26 September 1996, § 22-24, Reports of
Judgments and Decisions 1996 IV; and Bhandari v. the
United Kingdom, no. 42341/04, § 17, 2 October 2007). The
Court does not subscribe to the applicant's view that, in this case,
the two sets of proceedings should be considered in toto, as
his claims were directed at two separate defendants, whose alleged
liability arose from different foundations. Moreover, the second set
of proceedings clearly concerned a procedural question of whether the
two sets of proceedings could be joined for the purpose of seeking
compensation from two rather than just one defendant. The Court will
therefore consider the length of the two sets of proceedings
separately.
The
Court reiterates that the reasonableness of the length of proceedings
must be assessed in the light of the circumstances of the case and
with reference to the following criteria: the complexity of the case,
the conduct of the applicant and the relevant authorities and what
was at stake for the applicant in the dispute (see, among many other
authorities, Frydlender v. France [GC], cited above, §
43).
The Court firstly notes that the proceedings at issue
did not concern the applicant's only means of subsistence, as he had
previously been granted a full disability pension due to his
injuries. The Court thus considers that no special diligence was
required by the national authorities in dealing with the case.
It
is undisputed that the first set of proceedings began on 3 July 1996
when the applicant lodged a civil action for damages against the
shipping company and the captain with the District Court. The Court
finds that those proceedings were interrupted on 14 December 1999
when that court adjourned the case at the request of the parties. In
the absence of any information to the contrary, the Court finds that
the proceedings resumed on 24 April 2007, when the Supreme Court gave
its decision concerning the second set of proceedings. The
compensation proceedings, now pursued only against the captain, ended
on 2 April 2008, when the District Court issued its judgment. They
thus lasted four years, five months and twenty days for one level of
jurisdiction.
The
Court observes that it took the District Court a year and two and a
half months to examine the defendants' procedural objections. The
proceedings were further delayed by more than one year and nine
months between the date of issue of that procedural decision and the
court's first preliminary hearing. In the meantime, the defendant
shipping company was declared bankrupt. The Government have not
submitted any justification for those delays. The Court is of the
opinion that, after the proceedings resumed in 2007, the case was
dealt with at an acceptable pace. Having regard to the overall length
of the first set of proceedings, and to the apparent periods of
inactivity prior to their adjournment, the Court finds that the
“reasonable time” requirement was not complied with.
As
to the second set of proceedings, a question may arise as to the date
when those proceedings began. The Court reiterates that when
determining the period to be taken into account, it has regard to its
case-law according to which in civil proceedings, the “reasonable
time” begins at the moment the action was instituted before the
tribunal (for example, Erkner and Hofauer v. Austria, 23 April
1987, § 64, Series A no. 117). While it is conceivable that in
certain circumstances the period might begin earlier (see Golder
v. the United Kingdom, 21 February 1975, § 32, Series A no.
18), this is exceptional and has been accepted where, for example,
certain preliminary steps were a necessary preamble to the
proceedings (see K. v. Italy, no. 38805/97, § 35, ECHR
2004 VIII; and Blake v. the United Kingdom, no. 68890/01,
§ 40, 26 September 2006). The proceedings before an
administrative body are to be included when calculating the length of
the civil proceedings for the purposes of Article 6 § 1 if,
under the national law, an applicant has to exhaust a preliminary
administrative procedure before having recourse to a court (see, for
example, König v. Germany, 28 June 1978, § 98,
Series A no. 27).
As
to the case at hand, the Court observes that under the Finnish law
the applicant was not able to bring court proceedings in his case,
concerning compensation for damages based on a marine insurance
contract, prior to having recourse to another authority, the Average
Adjuster (see, mutatis mutandis, Vilho Eskelinen and Others
v. Finland [GC], no. 63235/00, § 65, ECHR 2007 IV;
König v. Germany, cited above, § 98; Erkner and
Hofauer v. Austria, cited above, § 64; and Schouten and
Meldrum v. the Netherlands, 9 December 1994, § 62,
Series A no. 304; compare and contrast also Blake v. the United
Kingdom, cited above, § 40; and Christensen
v. Denmark, no. 247/07, §
78, 22 January 2009). Hence, the Court must conclude that the second
set of proceedings began on 20 November 2000 when the applicant
filed a request for a damage report with the Average Adjuster. Those
proceedings ended on 24 April 2007 when the Supreme Court gave its
final decision, having lasted some six years and five months before a
State authority and two levels of jurisdiction.
In
assessing whether the length of the second set of proceedings was
compatible with the “reasonable time” requirement, the
Court observes that they were somewhat complex as they concerned
maritime insurance. The examination of the case involved questions of
the contents and application of foreign legislation. However, the
Court points out that the Average Adjuster did not have regard to the
substantive question at issue, nor did the domestic courts examine
other than the procedural aspects of the applicant's claim. In the
light of these considerations, the Court finds that also the second
set of proceedings failed to comply with the requirements of
Article 6 § 1.
Accordingly,
the Court finds that there has been a breach of Article 6 §
1 in respect of both sets of proceedings.
II. REMAINDER OF THE APPLICATION
The
applicant also complained under Article 6 § 1 of the Convention
that in order to institute court proceedings against the insurance
company he was obliged to have recourse to the Average Adjuster,
which was not an independent and impartial tribunal established by
law and where the matter was not dealt with in public proceedings.
The
Court does not find it necessary to examine whether the applicant's
right to a fair hearing was breached in that respect as any defect
was remedied in the subsequent court proceedings (see Van de Hurk
v. the Netherlands, 19 April 1994, § 52, Series A no. 288).
It follows that this part of the application must be rejected as
being manifestly ill-founded pursuant to Article 35 §§ 3
and 4 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article
41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
The
applicant claimed 20,000 euros (EUR) in respect of non-pecuniary
damage.
The
Government contested the claim considering it excessive as to
quantum. Any award under that head should not exceed EUR
4,000.
The
Court considers that the applicant must have sustained non-pecuniary
damage. Ruling on an equitable basis, it awards him EUR 8,000
under that head.
B. Costs and expenses
The
applicant also claimed EUR 24,285.85 for the costs and expenses
incurred before the domestic courts and EUR 5,600 for those incurred
before the Court.
The
Government contested these claims. They noted that the costs incurred
in the domestic proceedings related solely to the substance of the
case. As to the costs and expenses claimed in the Strasbourg
proceedings, the Government considered them too high as to quantum.
Any award should not exceed EUR 2,800.
According
to the Court's case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and were
reasonable as to quantum. In the present case, regard being had to
the information in its possession and the above criteria, the Court
rejects the claim for costs and expenses in the domestic proceedings
and considers it reasonable to award the sum of EUR 3,000 (inclusive
of value-added tax) for the proceedings before the Court. In this
connection the Court notes that only the complaint concerning length
of proceedings was communicated to the Government for observations.
C. Default interest
The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Declares the complaint concerning the excessive
length of the two sets of proceedings admissible and the remainder of
the application inadmissible;
Holds that there has been a violation of Article
6 § 1 of the Convention in respect of both sets of proceedings;
Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following
amounts:
(i)
EUR 8,000 (eight thousand euros), plus any tax that may be
chargeable, in respect of non-pecuniary damage;
(ii)
EUR 3,000 (three thousand euros), plus any tax that may be chargeable
to the applicant, in respect of costs and expenses;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 19 January 2010, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza
Registrar President
