Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 30519/96

by Martta Annikki KARJALAINEN

against Finland

The European Commission of Human Rights (First Chamber) sitting

in private on 16 April 1998, the following members being present:

MM N. BRATZA, Acting President

M.P. PELLONPÄÄ

A. WEITZEL

C.L. ROZAKIS

Mrs J. LIDDY

MM L. LOUCAIDES

B. MARXER

I. BÉKÉS

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

Mrs M. HION

Mr R. NICOLINI

Mrs M.F. BUQUICCHIO, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 6 March 1996 by

Martta Annikki KARJALAINEN against Finland and registered on 19 March

1996 under file No. 30519/96 ;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Finnish citizen, born in 1918. She resides in

Kuopio.

The facts of the case, as submitted by the applicant, may be

summarised as follows.

In 1979 the applicant bought her present apartment and moved in.

She began to suspect that the accounts of the housing company taking

care of the apartment building were wrong and that the management of

finances was not done correctly. In 1984 she reported these alleged

crimes to the police claiming that certain individuals had forged the

accounts in order to obtain financial benefits for some shareholders

of the housing company. The police conducted certain investigations

but they were closed as there was no evidence to support the

applicant's allegations.

In 1985 the persons accused by the applicant instituted criminal

proceedings against her in the District Court (käräjäoikeus,

tingsrätt). The applicant was charged with slander. By judgment of

23 July 1985 the applicant was convicted of slander and fines were

imposed. She was also ordered to pay compensation and legal expenses.

The applicant appealed to the Court of Appeal (hovioikeus, hovrätt)

which upheld the judgment in its essentials on 12 May 1987.

In the meantime, in 1986, the applicant had requested the police

to investigate the alleged forgery again, but that was rejected by the

police as the case had already been investigated once and as the

applicant had submitted no relevant new information.

In 1987 the applicant's share in the housing company was seized

as she owed some money to the company which had obtained a court

judgment allowing the seizure of the applicant's apartment. The

applicant had also failed to pay the fines imposed by the Court of

Appeal in 1987. The applicant's apartment was therefore sold to YJ

against her will and part of the money was used in order to pay her

debts and fines. The applicant had to be removed by the police from the

auction in which the apartment was sold as she had disturbed the

occasion.

In 1989 the applicant requested the police for the third time to

investigate the alleged forgery of the accounts of the housing company.

Her request was rejected again as she had not submitted any new

evidence.

In 1991 YJ lodged civil proceedings in the District Court against

the applicant claiming the applicant to pay a debt which apparently had

to do with the fact that YJ had bought the applicant's flat from the

seizure auction. The District Court ordered the applicant to pay YJ on

25 October 1991. The applicant appealed to the Court of Appeal, which

rejected the applicant's appeal on 4 February 1993. The applicant has

not submitted any documents to the Commission concerning these

proceedings.

In 1991 the applicant requested the County Administrative Board

(lääninhallitus, länsstyrelse) to order the police to investigate her

case. The request was transferred to the local police which rejected

the request once more as there was no new evidence.

On 23 August 1993 the applicant instituted civil proceedings

against the State of Finland and against the persons who had been

involved in the management of the housing company. She claimed

compensation amounting to more than FIM 5.3 million alleging that the

civil servants who had been involved in her case during the previous

years, including all police officers and judges involved, and the

persons who had dealt with the accounts of the housing company had

caused her mental and financial damage which had to be compensated.

On 17 December 1993 the first hearing was held in the District

Court before judge OH whose employment as a judge was of a fixed

duration. The applicant presented two witnesses. The defendants claimed

that the claims should be rejected as there were no grounds therefor

and as they were not based on law. The applicant submitted a

substantial amount of documents and requested that several other

witnesses be called. The case was adjourned in order to allow the

applicant to identify and call such witnesses.

The case was heard on 18 February 1994 before another judge, KL,

to whom the case and its entire file had been transferred. The

applicant had not called further witnesses but she now wanted to

institute proceedings also against a lawyer who had acted as her

counsel during the previous criminal proceedings. The case was

therefore adjourned once more.

The third District Court hearing was held on 14 March 1994 before

judge KL. There were no witnesses heard. In its judgment of the same

day, the District Court rejected all the claims stating, inter alia,

as follows:

(Translation)

"According to chapter 3, section 5 of the Tort Liability

Act (vahingonkorvauslaki, skadeståndslag), it is

impossible to institute civil proceedings claiming

compensation for alleged damage following a court judgment,

if the judgment has not been quashed or amended or if the

person liable for the damage has not been convicted of a

criminal offence in his/her official capacity. [The

applicant] has claimed compensation for the alleged damage

caused by the District Court judgment of 23 July 1985 by

judges P, JT and MS and by the Court of Appeal judgment of

12 May 1987 by judges AS, KP, MU and Pe. As the

above-mentioned judgments have not been quashed or amended

and as the judges have not been charged with having

committed any offence in their official capacity as regards

these judgments, there is no reason to investigate the

claims submitted by [the applicant].

[The applicant] has also claimed compensation for her

mental sufferings.

According to the Tort Liability Act such compensation can

only be claimed in criminal proceedings. As the present

proceedings are civil the claim must be rejected as it is

not in accordance with the law.

The burden of proof lies with [the applicant] also when the

claims are lodged against civil servants in their official

capacity.

To support her claims, [the applicant] has submitted a

large amount of documents and calculations to the court.

[The applicant] has presented VL and IP as witnesses in

court. The witnesses had investigated the accounts of the

housing company beforehand. The witnesses could not confirm

[the applicant's] claims concerning the misconduct of the

financial management of the housing company.

[The applicant] has not been able to prove that other

parties to the proceedings have committed such offences or

acted with such negligence as alleged by her that they have

caused [the applicant] damage. The Court does not find it

established that there are any grounds for compensation to

be paid by the State of Finland or other defendants

according to the law. All the claims for compensation are

therefore found to be groundless."

On the basis of above findings the District Court rejected the

claims. The applicant appealed to the Court of Appeal complaining,

inter alia, that the judgment showed bias against her and violated her

human rights. The applicant also complained that she was not allowed

to read aloud some of the documents submitted by her in court and that

the documents were held in a separate document file instead of the

minutes of the court. She finally disagreed with the reasoning of the

judgment and found that she had been able to prove her case.

On 16 May 1995 the Court of Appeal upheld the judgment of the

District Court.

The applicant appealed to the Supreme Court complaining that she

had not been afforded a fair trial as her compensation claims had not

been investigated and as the rest of her claims had been rejected. She

also complained that the District Court judge had decided the case

without having heard the witnesses herself. She further complained that

two of the Court of Appeal judges had participated in a case against

her in 1993.

On 13 September 1995 the Supreme Court (korkein oikeus, högsta

domstolen) refused to grant leave to appeal.

On 28 November 1995 and 22 February 1996 the applicant complained

to the Chancellor of Justice (oikeuskansleri, justitiekansler) claiming

that she had not been afforded a fair hearing by an independent and

impartial tribunal and that the judges involved had committed offence

in their official capacity. She also complained that she could not have

the alleged crimes investigated by the police. She further claimed that

the Court of Appeal had forged her appeal as the Court of Appeal had

allegedly withheld two pages from the annexes of her appeal when the

documents were sent to the Supreme Court. Finally, she complained that

the Supreme Court had not given any reasons for its decision to refuse

to grant leave to appeal.

On 27 June 1996 the Deputy Chancellor of Justice (apulais-

oikeuskansleri, justitiekansleradjoint) rejected the applicant's claims

stating, inter alia, as follows:

(Translation)

"The judgment of the Court of Appeal is final as the

Supreme Court refused leave to appeal. Such a judgment can

only be set aside if the Supreme Court agrees to reopen the

case according to section 31 of the Code of Judicial

Procedure (oikeudenkäymiskaari, rättegångs balk).

There are no grounds for the Chancellor of Justice to lodge

such proceedings ex officio. [The applicant] has a

possibility to apply for the reopening of the case herself

if she so wishes.

...

[The applicant] mailed a copy of her appeal [to the Supreme

Court] both to the Court of Appeal [where it was supposed

to be mailed] and also to the Supreme Court at the same

time. She suspected that the Court of Appeal had withheld

two pages from the appeal which had been sent to the Court

of Appeal. The Chancellor of Justice has received a copy of

the documents from the Supreme Court and in the annexes of

those documents there were two copies of the pages which

had been claimed to be missing. Thus, there is no reason to

suspect that the Court of Appeal withheld those pages from

the appeal.

As regards the decision of the police not to conduct

investigations, the Deputy Chancellor of Justice agrees

with the reasons given in the decision and ,therefore,

there are no such findings which could lead to the

conclusion that the police has exceeded its authority.

Therefore, the Deputy Chancellor of Justice has found no

reasons for further actions in this case."

COMPLAINTS

1. Invoking Article 6 para. 1 of the Convention the applicant

complains that she did not have a fair trial by an independent and

impartial tribunal. She refers in this respect to the following

aspects:

a) The applicant complains that the District Court was not an

independent tribunal as the first hearing was held before judge OH

whose employment as a judge was of a fixed duration.

b) The applicant complains that she was not afforded a fair trial

as the following two hearings were held before another judge who

decided the case although she had not heard or seen the witnesses heard

in the first hearing.

c) The applicant further complains that the Court of Appeal was not

an impartial tribunal as some of the Court of Appeal judges had

participated in a case against her in 1993.

d) Furthermore, the applicant complains that she was not afforded

a fair and public hearing as the Court of Appeal allegedly withheld two

pages from her appeal to the Supreme Court.

e) The applicant also complains that she was not afforded a fair

trial as the Supreme Court did not give reasons for its decision to

refuse leave to appeal.

2. The applicant finally complains that she did not have an

effective remedy before a national authority as her claims for

compensation against the civil servants were not investigated. She

invokes Article 13 of the Convention.

THE LAW

1. The applicant submits a number of complaints concerning the

fairness of the civil proceedings instituted by her. She invokes in

this respect Article 6 para. 1 (Art. 6-1) of the Convention which in

its relevant parts reads as follows:

"1. In the determination of his civil rights and

obligations ..., everyone is entitled to a fair and public

hearing ... by an independent and impartial tribunal

established by law..."

With regard to the judicial decisions of which the applicant

complains, the Commission recalls that, in accordance with Article 19

(Art. 19) of the Convention, its only task is to ensure the observance

of the obligations undertaken by the Parties in the Convention. In

particular, it is not competent to deal with an application alleging

that errors of law or fact have been committed by domestic courts,

except where it considers that such errors might have involved a

possible violation of any of the rights and freedoms set out in the

Convention. The Commission refers, on this point, to the established

case-law of the Convention organs (cf. e.g. Eur. Court HR, Schenk v.

Switzerland judgment of 12 July 1988, Series A no. 140, p.25, para.

45).

It is true that in this case the applicant also complains of a

number of procedural shortcomings but the Commission considers that

these complaints are inadmissible for the following reasons:

a) The applicant first complains that the District Court was not an

independent tribunal as the first hearing was held before judge OH

whose employment as a judge was of a fixed duration.

With regard to the alleged lack of independence of the District

Court in general, the Commission notes that the applicant has not

indicated how the District Court failed in its duty to be independent.

On the other hand, the applicant maintains that the District Court

judge OH, the sole judge, remained dependent on the State of Finland

as his employer, particularly on account of the fact that he was

required to exercise judicial powers only for a short fixed period.

In this respect the Commission notes that the applicant never

raised this complaint before the Finnish courts. The Commission,

however, need not decide whether the applicant has exhausted domestic

remedies as required by Article 26 (Art. 26) of the Convention, as the

complaint is in any event inadmissible for the following reasons.

According to the Commission's established case-law, the

requirement for a judge to be independent does not necessarily imply

that he should be appointed for life (No. 12717/87, Dec. 8.9.88,

D.R. 57, p. 196)) or that he should have security of tenure in law (in

other words, that he cannot be given other duties without his consent).

It is essential, however, that he should not be subject to any

authority in the performance of his duties as a judge (No. 8209/78,

Dec. 1.3.79, D.R. 16, p. 166). The District Court judge cannot be

removed for the duration of his or her mandate. Moreover, when he or

she sits as a judge he or she is not answerable to anyone about the way

in which he or she administer justice. The District Court judge is not

subject to any authority in the exercise of his or her judicial

functions. The District Court judge's independence is further

guaranteed by the fact that the District Court judge makes a public and

solemn undertaking to abide by the obligations of independence and

impartiality.

An examination by the Commission of this part of the application

does not therefore disclose any appearance of a violation of Article 6

para. 1 (Art. 6-1) of the Convention.

It follows that this part of the application is manifestly ill-

founded and must in this respect be rejected under Article 27 para. 2

(Art. 27-2) of the Convention.

b) Secondly, the applicant complains that she was not afforded a

fair trial in the District Court as the last two hearings were held

before another judge who then decided the case without having heard two

witnesses personally.

According to the established case-law of the Convention organs,

the question whether the proceedings have been conducted in accordance

with the requirements of a fair trial, as provided for in Article 6

para. 1 (Art. 6-1) of the Convention, must be decided on the basis of

an assessment of the proceedings as a whole (cf. e.g. No. 12952/87,

Dec. 6.11.90, D.R. 67, p. 175 and No. 22909/93, Dec. 6.9.95, D.R. 82-B,

p. 25).

The Commission recalls that the case was transferred to judge KL

in its entirety including transcripts of the statements of the

witnesses concerned. It is not in dispute that the transcripts

correctly set out the statements made by the witnesses; nor is it

alleged that any arbitrary conclusions were drawn therefrom. Nor has

any evidence been submitted which could lead to the conclusion that it

would have been of relevance to hear these witnesses once more. In

these circumstances, and having regard also to the subject matter of

the applicant's claims before the domestic courts, the Commission does

not find that judge KL, in relying on the court transcripts, acted in

a way which would render the proceedings unfair. Thus, this part of the

application does not disclose any appearance of a violation of

Article 6 para. 1 (Art. 6-1) of the Convention.

It follows that this part of the application is manifestly ill-

founded within the meaning of Article 27 para 2 (Art. 27-2) of the

Convention.

c) Thirdly, the applicant complains that the Court of Appeal was not

an impartial tribunal as some of the Court of Appeal judges had

participated in one of her cases in 1993.

The Commission recalls that the existence of impartiality for the

purposes of Article 6 para. 1 (Art. 6-1) must be determined according

to a subjective test, that is on the basis of the personal conviction

of a particular judge in a given case, and also according to an

objective test, that is ascertaining whether the judge offered

guarantees sufficient to exclude any legitimate doubt in this respect

(cf. e.g. No. 15975/90, Dec. 1.7.91, D.R. 71, p. 245 and Eur. Court HR,

Hauschildt v. Denmark judgment of 24 May 1989, Series A no. 154, p. 21,

para. 46).

As to the subjective test, the personal impartiality of a judge

must be presumed until there is a proof to the contrary. In the present

case the Commission has not found any substantiated facts which could

raise doubt in this respect.

Under the objective test, it must be determined whether there

were ascertainable facts which may raise doubts as to their

impartiality. In this respect, even appearances may be of a certain

importance. According to the established case-law of the Commission,

the fact that some of the judges have participated in previous

proceedings against the applicant does not in itself justify doubts as

to their impartiality (cf. e.g. No. 11879/85, Dec. 6.12.89, D.R. 63,

p. 105, No. 13635/88, Dec. 4.4.90, D.R. 65, p. 232 and No. 17722/91,

Dec. 8.4.91, D.R. 69, p. 345).

In this case, the fear of lack of impartiality was based on the

fact that the Court of Appeal judges who decided a case lodged by YJ

against the applicant in 1993 also decided on the appeal in the present

case. This kind of situation may occasion misgivings on the part of a

party as to the impartiality of the judges, misgivings which are

understandable but which nevertheless cannot necessarily be treated as

objectively justified. Whether they should be so treated depends on the

circumstances of each particular case.

In this respect the Commission recalls that the applicant

mentioned two of the Court of Appeal Judges in her written observations

to the District Court. Those judges subsequently participated in the

determination of the present case in the Court of Appeal on 16 May

1995. However, their names were just mentioned in the written

observations as a fact and no claims were made against them. As the

case of 1993 were of no relevance in this case and as the judges were

not among those individuals from whom the applicant claimed damages,

the Commission does not find that the applicant has submitted any

evidence which would call into question the impartiality of the court.

Thus, the Commission finds that this part of the application does

not disclose any appearance of a violation of Article 6 para. 1

(Art. 6-1) of the Convention.

It follows that this part of the application is manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

d) Furthermore, the applicant complains that she was not afforded

a fair and public hearing as the Court of Appeal allegedly withheld two

pages from her appeal to the Supreme Court.

The Commission notes, that the Deputy Chancellor of Justice

examined this claim and found that the pages which were claimed to be

missing were actually copied twice to the files of the Supreme Court.

Therefore, the Commission finds that this part of the application does

not disclose any appearance of a violation of Article 6 para. 1

(Art. 6-1) of the Convention.

It follows that this part of the application is manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

e) The applicant also complains that she was not afforded a fair

trial as the Supreme Court did not give reasons for its decision to

refuse leave to appeal.

An examination as to whether leave to appeal shall be granted is,

in the Commission's opinion, only an examination as to whether the

conditions of leave to appeal are satisfied and not an examination of

the merits of the appeal. The Commission refers to its previous case-

law according to which an examination of an application for leave to

appeal by the Supreme Court does not involve a determination of "civil

rights and obligations" (cf. No. 11855/85, Dec. 15.7.87, D.R. 53,

p. 190 and No. 17925/91, Dec. 8.10.91, unpublished). Therefore,

Article 6 (Art. 6) does not apply to the leave to appeal proceedings

before the Supreme Court.

It follows that this complaint is incompatible ratione materiae

with the provisions of the Convention and must be rejected pursuant to

Article 27 para. 2 (Art. 27-2) of the Convention.

2. Finally, the applicant complains that she did not have an

effective remedy before a national authority as her claims for

compensation against the civil servants were not investigated. She

invokes Article 13 (Art. 13) of the Convention which reads as follows:

"Everyone whose rights and freedoms set forth in this

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 Commission recalls that the word "remedy", within the meaning

of this provision, does not mean a remedy which is bound to succeed,

but simply an accessible remedy before an authority competent to

examine the merits of a complaint (cf. No. 9276/81. Dec. 17.11.83,

D.R. 35, p. 13 and No. 10496/83, Dec. 14.5.84, D.R. 38, p. 189).

In the present case, the applicant's claims were heard before two

court instances in proceedings satisfying Article 6 (Art. 6) of the

Convention. The Commission finds, therefore, that the requirements of

Article 13 (Art. 13) of the Convention are equally satisfied.

It follows that this part of the application is manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

M.F. BUQUICCHIO N. BRATZA

Secretary Acting President

to the First Chamber of the First Chamber

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KARJALAINEN v. FINLAND

KARJALAINEN v. FINLAND

LEXI