FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 54857/00 by Olavi PUOLITAIVAL and Esko PIRTTIAHO against Finland

The European Court of Human Rights (Fourth Section), sitting on 1 June 2004 as a Chamber composed of:

Sir Nicolas Bratza , President , Mr M. Pellonpää , Mr J. Casadevall , Mr S. Pavlovschi , Mr J. Borrego Borrego , Mrs E. Fura-Sandström , Mrs V. Strážnická, judges , and Mr M. O'Boyle , Section Registrar ,

Having regard to the above application lodged on 3 November 1999,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having deliberated, decides as follows:

THE FACTS

The applicants, Olavi Puolitaival and Esko Pirttiaho, are Finnish nationals , born in 1945 and 1958 respectively and living in Jääli and Tampere, respectively. They are represented before the Court by David Guy, a barrister practising in London. The respondent Government are represented by Mr Arto Kosonen, director in 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 were owners of a former company called Konekersantti Oy (subsequently “the applicants' company”) which was a plaintiff in civil proceedings initiated on 3 December 1991 against another company called M.R. Ky (subsequently “M.R. company”). The proceedings concerned a dispute about the sale of movable property.

The lawyer of the M.R. company in the proceedings before the Vaasa District Court and in the lodging of an appeal to the Vaasa Court of Appeal on 4 March 1992 was P.L., who was also a referendaire of the Court of Appeal. Together with her husband, she owned a law firm until 1995. At the material time, P.L. worked part-time for the law firm as a partner, for which she had been given permission by the Court of Appeal.

In her notice of appeal of 4 March 1992, P.L. submitted to the Court of Appeal, inter alia , that the applicants' company “seems to use concepts quite carelessly in their agreements in general”; and that “what is essential about the case is that the seller must not act fraudulently and must not, even in good faith, draw up agreements the contents of which are unclear”; and further “if we follow the logic of the City Court, overcharging would not be a crime, if you manage to overcharge more than one victim.”

The final decision in the above case was given by the Court of Appeal on 22 February 1993 in favour of the applicants.

The applicants' company was also the plaintiff in another set of civil proceedings initiated on 26 February 1992 in the District Court of Ylivieska ( kihlakunnanoikeus, häradsrätt ), in which the respondent was an investment bank. That case concerned the cancellation of a loan granted by the investment bank and compensation for related loss of business profits. The applicants maintained, inter alia , that their company had been dissolved in 1992 because of the bank's failure to fulfil its contractual obligations. The applicants claimed, inter alia , 9,800,000 Finnish marks (FIM, equivalent to 1,648,242 euros; EUR) in compensation for their lost business.

On 3 December 1992 the District Court of Ylivieska refused to examine the applicants' claims as it found them to be too unspecific to provide a basis for any court proceedings.

On 3 November 1993 the Court of Appeal ( hovioikeus, hovrätt ) of Vaasa returned the case to the District Court ( käräjäoikeus, tingsrätten ; as from 1 December 1993), finding that the District Court should have examined the applicants' claims. P.L. did not take part in these proceedings.

On 25 March 1994 the case was opened for re-examination by the District Court. It dismissed the complaint of the applicants' company on 30 April 1997.

The applicants' company appealed against the District Court's decision to the Court of Appeal which upheld the District Court's decision and dismissed the appeal on 18 August 1998. The Chamber of the Court of Appeal which examined the case was composed of judges M.O., K.A. and P.L., assisted by referendaire T.K.

The applicants' company requested leave to appeal from the Supreme Court stating, inter alia , that one of the Court of Appeal judges, P.L., was partial as it had been a party to other proceedings in 1992, in which the other party had been represented by the law firm in which P.L. had had a partnership at that time. She had, for example, signed her client's submissions to the District Court and to the Court of Appeal.

Before making its decision concerning the request for leave to appeal, the Supreme Court requested a statement from P.L. The statement read as follows:

“In addition to full-time judge's duties, I practised law as a partner of a law firm on a part-time basis, with the permission of the President of the Vaasa Court of Appeal, until 1995 when the firm was closed down. Thereafter I have had no part-time duties.

It is true that our law firm represented a client in a civil case between [M.R. company] and [the applicants' company] before the Vaasa District Court. At that time the pleadings before the District Court were taken care of by J.I. (trained on the bench) and, after appeal was made to the Court of Appeal, the pleadings before the Court of Appeal were taken care of by advocate J.V., as I found that it was not appropriate for me to continue with the case in the Court of Appeal.

At the time of participating in the consideration of the present civil case between [the applicants' company] and the investment bank, I did not even remember that our law firm, which had been closed down, had approx. seven years earlier represented a client in a different case in which [the applicants' company] was the adverse party. Thus, no question of possible disqualification arose to be considered.

My personal view is that, when assessed on objective grounds, [the applicants' company] had no real reason to doubt my impartiality, considering in particular that the period of time between the earlier representation and the decision-making in the present case was long, and that there was no factual link between the two cases.”

On 11 May 1999 the Supreme Court refused the applicants leave to appeal. According to the decision judge P.L.'s statement had been communicated to the applicants.

On 20 April 2000 the applicants made a request to the Supreme Court for annulment of the decision, drawing attention again, inter alia , to the alleged partiality of P.L. The request was refused by the Supreme Court on 21 May 2001.

B. Relevant domestic law and practice

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 ). It contained a list of grounds on which a judge might be disqualified.

According to the courts' case law the question of possible partiality of a judge was addressed, inter alia , by assessing whether his or her earlier activities as a legal counsel gave justified reason to doubt his or her impartiality.

The Supreme Court found in a decision of 8 December 1997 that a judge was not disqualified on the ground that the judge had earlier assisted one of the parties to the case in other proceedings as the judge's duties as a legal representative and counsel did not pertain to the case at hand and considering that the judge's conduct and position-taking in the capacity of a counsel/legal representative did not give any objective reason to doubt the judge's impartiality in respect of matters concerning the other party ( KKO 1997:192 ).

COMPLAINTS

The applicants complain:

1. under Article 6 § 1 of the Convention, that they did not receive a fair trial before an independent and impartial tribunal as one of the Court of Appeal judges, P.L., had represented the respondent in earlier proceedings brought by the applicants, and

2. under Article 13 of the Convention, that they did not have an effective remedy as the Supreme Court did not reason its decision to refuse leave to appeal.

THE LAW

1. The applicants complain under Article 6 § 1 of the Convention that they did not receive an independent and impartial trial as one of the Court of Appeal judges, P.L., had represented the respondent in other proceedings brought by the applicants. Article 6 § 1 of the Convention, insofar as relevant, reads as follows:

“In the determination of his civil rights and obligations ... everyone is entitled to a fair and public hearing ... by an independent and impartial tribunal ...”

In the Government's view there is nothing to indicate any subjective prejudice or bias on the part of judge P.L.

The Government emphasise that, as distinguished from the Wettstein v. Switzerland , no. 33958/96, § 47, ECHR 2000 ‑ XII, P.L. did not examine the present applicants' case as judge in the Court of Appeal at the same time as she represented the applicants' adverse party in different proceedings. The duties of P.L. as the legal counsel of M.R. company ended in February 1993 and she gave up her work in the law firm in 1995, i.e. before the applicants' case again came before the Court of Appeal in May 1997. There was a gap of more than four years between the two proceedings in which P.L. took part. The Government also note that, in Wettstein v. Switzerland (cited above, § 41), the Court found no reason to doubt that legislation and practice on the part-time judiciary (in the present case part-time advocacy) could in general be framed so as to be compatible with Article 6.

The Government further note that, although P.L. had signed the written submissions, she did not herself participate in the pleadings of the case where she represented the applicants' adverse party. Moreover, the two proceedings were in no way related to each other in substance, the one concerning the sale of movable property and the other concerning cancellation of a loan granted by the investment bank and compensation for related loss of business profits. Furthermore, the two proceedings were pending at different District Courts.

In the Government's view therefore, the allegation that the Court of Appeal was not impartial in examining the appeal could not be objectively held as justified; the proceedings in the present case were in no way conducted in a manner incompatible with Article 6 § 1 of the Convention.

The applicants maintain that there was an overlap between the two cases in which P.L. was concerned in her respective capacities, from 26 February 1992 to 22 February 1993. Although the final decision of the Court of Appeal in the case involving M.R. company was given on 22 February 1993 it was at the same time also seized with the first appeal in the latter case. The cases were therefore both active at the same time.

The applicants assert that an overlap of judge's functions requires, at the very least, an assessment and discussion with the parties as to the necessity for withdrawal. If a party expresses legitimate concern, that should suffice for the judge to withdraw. The fact that the judge in her previous capacity as an advocate was supplied by her clients with information about that party which may be false or defamatory would have been a legitimate concern. Time lapse alone may not allay the party's apprehension, nor can it be enough that the judge/advocate has handed over the later stages of the case to another member of the same firm. Furthermore, P.L.'s submissions in the notice of appeal of 4 March 1992, amounted to an allegation of fraudulent trading by the applicants' company. Although there was no direct factual link between the two proceedings at issue, the credibility of the applicants' company was a factor in both cases. The applicants submit that the overlap, together with the notice of appeal, casts  doubt on the appearance of P.L.'s impartiality.

The applicants further maintain that P.L.'s submissions to the Supreme Court did not mention that she had signed the pleadings to the Court of Appeal in the previous case, nor that the pleadings reflected adversely on the conduct of the applicants' company, nor that she was the lawyer in charge of that case. The applicants were not invited to make submission on P.L.'s reply to the Supreme Court and they have not even seen the full text. If the Supreme Court decision was to cure the previous defects, the entire statement should have been disclosed.

The applicants also maintain that the duty of the judge to offer sufficient guarantees to dispel reasonably held doubts required P.L. to keep a full and proper record of parties whom she had acted for and against in the capacity as a counsel. Her forgetfulness should not decide the issue.

The applicants conclude that the overlap of the two cases together with the part played by P.L. as advocate in the previous case, raise a legitimate doubt sufficient at least to require an assessment and the provision of guarantees to exclude the doubt. There was no assessment and no such guarantees were available. The procedure in the Court of Appeal whereby the judges are not identified in advance of the judgment deprives litigants of the opportunity to express their doubts or to receive reassurance. Nor is there a system to ensure that dual capacity judges are aware of possible conflicts of interest or procedure to allow the litigant to challenge the judge's views on the matter.

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.

2. The applicants complain under Article 13 of the Convention that they did not have an effective remedy as the Supreme Court did not reason its decision to refuse leave to appeal. Article 13 reads as follows:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

The Court notes that the applicants first raised this complaint in their letter of 16 November 1999. The final domestic decision within the meaning of Article 35 § 1 of the Convention was issued on 11 May 1999, more that six months before the date when the complaints were lodged with the Court. Accordingly, the complaint has been submitted too late and must be rejected pursuant to Article 35 § 4 of the Convention.

For these reasons, the Court

by a majority,

Declares admissible the applicants' complaint that they did not receive a fair trial before an independent and impartial tribunal;

unanimously,

Declares the remainder of the application inadmissible.

Michael O'Boyle Nicolas Bratza Registrar President