Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 27866/95

by Jaakko Johannes MARKKULA

against Finland

The European Commission of Human Rights (First Chamber) sitting

in private on 3 December 1997, the following members being present:

Mrs J. LIDDY, President

MM M.P. PELLONPÄÄ

E. BUSUTTIL

A. WEITZEL

L. LOUCAIDES

B. MARXER

B. CONFORTI

N. BRATZA

I. BÉKÉS

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

M. VILA AMIGÓ

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 15 May 1995 by

Jaakko Johannes Markkula against Finland and registered on 17 July 1995

under file No. 27866/95;

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 1926 and resident in

Kangasala, Finland. Before the Commission he is represented by

Mr Pekka Suojanen, a lawyer practising in Tampere.

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

summarised as follows.

The applicant and his brother owned jointly some real estates and

other property they had inherited from their parents. On

23 February 1990 the applicant and his wife on the one side and the

applicant's brother and his wife on the other side signed a contract

concerning the partition of the said property.

On 13 August 1992 the Pirkkala District Court (kihlakunnanoikeus,

häradsrätten) found the applicant incapable of caring for his economic

affairs and ordered his wife to act as his trustee as regards such

matters until further notice.

In 1992 the applicant and his wife instituted civil proceedings

before the Pirkkala District Court against the applicant's brother and

the latter's wife with a view to having the contract of

23 February 1990 declared void. They argued, inter alia, that at the

time of the transaction they had been incapable of evaluating the

contents and consequences of the contract and that they therefore had

been incapable of contracting. Accordingly, they contended that the

contract could not bind them. Furthermore, they referred to the alleged

unfairness of the partition.

In the course of the proceedings the plaintiffs submitted written

medical statements concerning the applicant's legal capacity. According

to the statements the applicant had a diminished legal capacity which

in particular appeared in situations involving division of property,

especially, if he was under any pressure. The court heard witnesses as

to the alleged incapacity from the medical and psychological points of

view and as to the circumstances relating to the contract at issue.

According to a witness, an expert in psychiatry, the incapacity from

which the applicant allegedly suffered was rare.

According to chapter 3 of the Legal Transactions Act (laki

varallisuusoikeudellisista oikeustoimista, lag om rättshandlingar på

förmögenhetsrättens område 228/1929) as in force at the relevant time,

a legal transaction may be declared void under certain conditions,

inter alia, on account of a person's lack of understanding.

On 1 February 1993 the District Court considered, on the basis

of the available evidence, that it could not be established that

pressure had been used during the negotiations for the contract or its

signing and that the applicant and his wife for this or any other

reason would have been incapable of judging clearly the contents and

consequences of the transaction at issue or that they would have lacked

the sense of judgment the contract at issue had required and that they,

accordingly, would have been incapable of contracting. The District

Court therefore rejected the claims.

Subsequently, the applicant and his wife appealed against the

judgment to the Turku Court of Appeal (hovioikeus, hovrätten). They

submitted several written medical statements, some of them after the

time-limit for lodging an appeal, and requested an oral hearing to

examine several witnesses two of whom had been heard before the

District Court.

According to chapter 25, section 12 of the Code of Judicial

Procedure (Oikeudenkäymiskaari, Rättegångs Balk), as in force at the

relevant time, the time limit for lodging an appeal is 30 days from the

day the lower court renders its judgment or decision. According to

chapter 26, section 5 of the Code of Judicial Procedure the Court of

Appeal may, if a special reason appears, take into consideration

submissions and documents which arrive after the lime limit.

On 4 August 1994 the Court of Appeal decided to disregard the

evidence which had been submitted belatedly since no special reason for

taking it into account had been presented, deemed an oral hearing

unnecessary and, without holding one, upheld the judgment of the

District Court. In its reasoning the Court of Appeal noted, inter alia,

that a psychologist and a psychiatrist heard as witnesses had been of

the opinion that the applicant had been in a state in which he was

incapable of safeguarding his interests in the partition. However, two

witnesses, lawyers who had been present during the transaction, had

noticed nothing to the effect that the applicant's interests would not

have been attended to. Accordingly, the Court of Appeal considered that

the statements of the above-mentioned psychologist and psychiatrist did

not show that the applicant had been in such a state that he was unable

to understand the meaning of the transaction and to safeguard his

interests therein.

The applicant and his wife requested leave to appeal to the

Supreme Court (korkein oikeus, högsta domstolen). On 23 November 1994

the Supreme Court refused their request.

COMPLAINTS

1. The applicant complains that he was not afforded a fair trial.

He maintains that the courts decided the case contrary to the evidence

presented and thus refused him the protection the law provided. He also

contends that the Turku Court of Appeal refused to hold an oral hearing

to examine witnesses and disregarded part of the medical statements

submitted. He invokes Article 6 para. 1 of the Convention.

2. Furthermore, the applicant complains that he was denied an

effective remedy taking into consideration that the courts decided the

case against the evidence given of his capacity to contract. He invokes

Article 13 of the Convention.

3. The applicant also complains that he was discriminated against

on the ground of his health. He maintains that he did not receive the

legal protection he was entitled to although his incapacity was proved

by the evidence. In this connection he invokes Article 14 of the

Convention.

4. Finally, the applicant complains that his right to the peaceful

enjoyment of his possessions was interfered with. He claims that by

rejecting his action the national courts failed to give him the

necessary protection. The applicant invokes Article 1 of Protocol No. 1

to the Convention.

THE LAW

1. The applicant complains that he was denied a fair hearing. He

claims that the courts decided the case contrary to the evidence. He

also maintains that the Court of Appeal refused to hold an oral hearing

and disregarded part of the evidence. He invokes Article 6 para. 1

(Art. 6-1) of the Convention, which, in so far as relevant, reads 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 established by law. ..."

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 to 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 or one of its Protocols (cf. Eur. Court HR, Schenk v.

Switzerland judgment of 12 July 1988, Series A no. 140, p. 29, para.

45).

The applicant claims that the courts decided the case contrary

to the evidence presented. The Commission notes, however, that the

District Court and the Court of Appeal rendered judgments in which they

assessed the evidence and, on the basis of this assessment, reached a

reasoned conclusion. The Commission has not found any appearance of a

violation of the Convention or its Protocols as regards this particular

aspect of the proceedings.

The Commission has examined next whether the refusal to hold an

oral hearing in the Court of Appeal discloses any appearance of a

violation of the applicant's right to a fair trial within the meaning

of Article 6 (Art. 6). It notes Finland's reservation to Article 6

(Art. 6) which reads, in so far as relevant, as follows:

"For the time being, Finland cannot guarantee a right

to an oral hearing insofar as the current Finnish laws do

not provide such a right. This applies to:

1. proceedings before the Courts of Appeal, the Supreme

Court, ... in accordance with Chapter 26, Sections 7 and 8,

as well as Chapter 30, Section 20 of the Code of Judicial

Procedure..."

The Commission finds that the above-mentioned reservation covers

the applicant's complaint concerning the lack of an oral hearing before

the Court of Appeal. It follows that the Commission is barred ratione

materiae from examining this part of the applicant's complaints in

respect of the proceedings in the Court of Appeal.

As regards the evidence the Court of Appeal disregarded the

Commission recalls that the admissibility of evidence is primarily

governed by the rules of domestic law. The task of the Convention

organs is to ascertain whether the proceedings, considered as a whole,

were fair (cf. e.g. Eur. Court HR, Lüdi v. Switzerland judgment of

15 June 1992, Series A no. 238, p. 20, para. 43 and the reference

therein).

The Commission observes that the Court of Appeal decided to

disregard only the evidence which was submitted belatedly. The decision

was based on the Court's view that no special reason appeared for

taking this evidence into account. The applicant had 30 days to submit

documents to the Court of Appeal. Nevertheless, he submitted part of

the evidence after the time reserved for submissions had expired. The

applicant has not claimed that he could not have submitted the evidence

earlier, nor has he presented any special reason why the evidence ought

to have been taken into consideration. Having regard to this the

Commission finds that the Court of Appeal did not go beyond its

discretion as regards the evidence in question. In these circumstances

and considering the proceedings as a whole, the Commission cannot find

any indication that the proceedings were unfair.

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.

2. The applicant complains that he was denied an effective remedy

since the courts allegedly decided the case contrary to the evidence.

He invokes Article 13 (Art. 13) of the Convention, which provides as

follows:

"Everyone whose rights and freedoms as 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 notes that the applicant had available to him a

court remedy as required by Article 6 para. 1 (Art. 6-1) of the

Convention in respect of the dispute concerning the partition of the

property. Furthermore, the Commission has recognised that the

procedural guarantees of Article 6 (Art. 6) take precedence over those

of Article 13 (Art. 13) where a "civil right" is at issue, because the

guarantees of this Article are more rigorous than those of Article 13

(Art. 13) (see e.g. No. 11949/86, Dec. 1.12.86, D.R. 51, p. 195).

Thus, the Commission considers that, having regard to its

decision relating to Article 6 para. 1 (Art. 6-1), it is unnecessary

to examine the application from the standpoint of Article 13 of the

Convention since the requirements of the latter provision are less

strict and are here absorbed by those of Article 6 para. 1

(Art. 6-1).

Accordingly, this part of the application must be rejected as

being manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

3. The applicant complains that he was discriminated against on the

ground of his health. He invokes Article 14 (Art. 14) of the Convention

which provides as follows:

"The enjoyment of the rights and freedoms set forth in this

Convention shall be secured without discrimination on any

ground such as sex, race, colour, language, religion,

political or other opinion, national or social origin,

association with a national minority, property, birth or

other status."

The Commission notes that the proceedings the applicant complains

of involved the evaluation of his health. The District Court found that

it had not been established that this played any significant role at

the time of the transaction. The Court of Appeal upheld this judgment

and the Supreme Court refused the applicant leave to appeal.

Furthermore, the applicant has not shown that there would have been any

discrimination as regards the proceedings in general. In these

circumstances the Commission finds the applicant's allegation to be

unsubstantiated.

It follows that this part of the application must be rejected as

manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

4. The applicant finally complains under Article 1 of Protocol No. 1

(P1-1) to the Convention that the national courts failed to give him

the necessary protection by not finding in his favour.

Article 1 of Protocol No. 1 (P1-1) to the Convention reads as

follows:

"Every natural or legal person is entitled to the peaceful

enjoyment of his possessions. No one shall be deprived of

his possessions except in the public interest and subject

to the conditions provided for by law and by the general

principles of international law.

The preceding provisions shall not, however, in any way

impair the right of a State to enforce such laws as it

deems necessary to control the use of property in

accordance with the general interest or to secure the

payment of taxes or other contributions or penalties."

The Commission must first consider whether there has been a

deprivation of or other interference with the applicant's possessions

within the meaning of Article 1 of Protocol No. 1 (P1-1).

The Commission recalls that the second sentence of Article 1 of

Protocol No. 1 (P1-1) dealing with deprivation of possessions is

generally intended to refer to acts whereby a State lays hands on, or

authorises a third person to lay hands on, a particular piece of

property for a purpose which is to serve the public interest. Property

transfers which take place in the context of the settlement of

relations between individuals do not normally amount to deprivation of

possessions within the meaning of Article 1 (Art. 1), notwithstanding

the fact that the State through its courts may have provided a forum

for such a settlement (see No. 8588/79 & 8589/79, Dec. 12.10.82, D.R.

29, p. 64 and No. 11949/86, Dec. 1.12.86, D.R. 51, p. 195). In the

Commission's view similar principles apply in the determination of

whether there has been an interference with possessions where this

interference is not covered by the second sentence.

In the present case the alleged violation of the property rights

took place in connection with civil proceedings between private parties

which the Commission has found above to have been in conformity with

Article 6 (Art. 6). It follows that there is no appearance of a

violation of Article 1 of Protocol No. 1 (P1-1).

This part of the application must therefore be rejected as being

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 J. LIDDY

Secretary President

to the First Chamber of the First Chamber

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MARKKULA v. FINLAND

MARKKULA v. FINLAND

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