Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 26323/95

by Esa KIISKINEN

and Mikko KOVALAINEN

against Finland

The European Commission of Human Rights (First Chamber) sitting

in private on 28 May 1997, the following members being present:

Mrs. J. LIDDY, President

MM. M.P. PELLONPÄÄ

A. WEITZEL

C.L. ROZAKIS

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 1 November 1994

by Esa Kiiskinen and Mikko Kovalainen against Finland and registered

on 26 January 1995 under file No. 26323/95;

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 applicants are Finnish citizens. The first applicant is a

businessman resident at Villala and the second applicant is a lawyer

in Joensuu. Before the Commission the second applicant represents the

first applicant.

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

summarised as follows.

In March 1989 the first applicant, represented by the second

applicant, sued two companies, P and I, for damages resulting from a

breach of contract relating to the first applicant's hire-purchase of

a forestry vehicle and related equipment. He argued, inter alia, that

the relevant vehicle model had not been officially approved by the

authorities. In a further suit of July 1989 he supplemented the grounds

for his action.

The parties appeared twelve times before the then City Court

(raastuvanoikeus, rådstuvurätten) of Helsinki and more than ten

witnesses were heard. The Presiding Judge apparently changed on a

number of occasions. The first session was held on 25 May 1989.

In November 1989 company I countersued the first applicant for

breach of the hire-purchase agreement. At the City Court's session on

7 December 1989 the first applicant lodged a procedural objection

against this action, claiming that it had not been properly served on

him. The City Court rejected the objection, noting that the first

applicant had acknowledged that, although he had received only copies

of certain annexes, the relevant original documents had nevertheless

been shown to him.

At the City Court's session on 1 March 1990 the companies called

K to give witness testimony. The first applicant's objection to the

hearing of K was dismissed. The City Court also heard KK, Head of the

Service Department of company P, as a witness.

In September 1990 the first applicant requested that he be

afforded legal aid and the second applicant be appointed his counsel

pursuant to the 1973 Act on Cost-Free Proceedings (laki maksuttomasta

oikeudenkäynnistä, lagen om fri rättegång 87/73).

At its session on 13 December 1990 the City Court rejected the

legal aid request. The first applicant's appeal was rejected by the

Helsinki Court of Appeal (hovioikeus, hovrätten) on 7 March 1991. The

Supreme Court (korkein oikeus, högsta domstolen) granted him leave to

appeal. On 19 November 1991 it afforded him legal aid as from

1 January 1990 and appointed the second applicant as his counsel.

In March 1991 the local Bailiff (ulosottomies, utmätningsman)

forcibly sold the first applicant's house in order to cover (at least

part of) his debts.

The City Court's last session on 28 October 1991 was presided

over by Judge T. Company I's counsel requested that a lawyer employed

by the company, PP, be heard as witness. The first applicant objected,

claiming that PP had been sitting in the audience during at least three

previous court sessions. The City Court asked PP whether he had

attended any previous court sessions in the case and whether he was a

board member or executive manager of either of the companies. PP having

answered in the negative, the City Court dismissed the objection.

By judgment of 28 October 1991 the City Court rejected the first

applicant's action. The minutes from the last court session state,

inter alia, as follows:

"... After judgment had been pronounced [the second

applicant] stated that the lack of official approval of the

... vehicle model had been one of the grounds for the

action and today ... the principal issue. Counsel ...

therefore demanded that the City Court pronounce itself on

the question of model approval. The parties having stepped

out, the City Court inserted a finding on this point in its

judgment and pronounced it to the parties. ..."

On this point the City Court found that it had not been shown

that the vehicle required model approval and that, in any case, the

first applicant had inspected and accepted the vehicle before

concluding the hire-purchase agreement.

In November 1991 the first applicant appealed against the City

Court's judgment. He also lodged a further procedural objection

according to which witness KK should not have been heard and that his

testimony should therefore be ignored.

Pursuant to the Act on Cost-Free Trial and referring to the

Supreme Court's decision of 19 November 1991, the second applicant also

requested to be reimbursed for a bill in the amount of some FIM 153.000

for his fees and costs. His fees amounted to about FIM 70.000 and the

costs to approximately FIM 83.000. The costs incurred included two

expert opinions which the second applicant had ordered from the State

Research Centre (about FIM 15.000 and FIM 28.000, respectively).

On 5 March 1993 the applicants requested that the appeal be given

priority handling. Reference was made, inter alia, to an instruction

issued by the Ministry of Justice according to which, if a commission

was of a lengthy duration, a legal aid counsel's fees and expenses were

as a rule to be compensated every six months. Further requests for

speedy handling of the appeal were lodged on 27 August and

29 September 1993.

In its judgment of 20 October 1993 the Court of Appeal rejected

the first applicant's fresh procedural objection, finding no indication

that KK had been prevented from testifying on account of his position

in company P or for any other reason. The Court of Appeal went on to

reject the appeal as a whole.

The Court of Appeal furthermore compensated the second applicant

in the amount of approximately FIM 15.000 for his work in the

proceedings before the City Court, FIM 2.000 for his work in the Court

of Appeal and the Supreme Court and FIM 8.610 for his costs. It found,

inter alia, that the cost for submitting one of the written expert

opinions (FIM 28.000) could not be considered necessary for the purpose

of presenting relevant evidence. Nor had any details been presented of

the compensation allegedly paid to the witnesses called by the

applicants. In these two respects the cost claim was therefore

rejected.

In December 1993 the applicants requested leave to appeal to the

Supreme Court.

In an affidavit signed by the first applicant's wife on

11 January 1994 she confirmed that prior to being heard as a witness

before the City Court lawyer PP of company I had been present in the

audience during at least two or three court sessions. At the beginning

of the oral proceedings the second applicant had already objected to

PP's presence in the audience.

In a further affidavit signed by the first applicant and his wife

on 13 June 1994 they stated, among other things, that while the case

was pending before the City Court both company I's counsel and its

lawyer PP repeatedly stated that because of their contacts in the

judiciary the first applicant's action was bound to fail.

On 13 May 1994 the applicants were refused leave to appeal to the

Supreme Court. The second applicant was compensated in the amount of

FIM 1.000 for having lodged the request for leave to appeal.

According to the 1973 Act on Cost-Free Proceedings, a counsel

appointed under a legal aid scheme shall receive a reasonable fee as

well as compensation for necessary costs. The court shall have

particular regard to, for instance, the nature of the case, its

difficulty and the quality of counsel's work. Court-appointed counsel

are prevented from charging their clients directly for any fees or

expenses not accepted by the courts (section 15).

On 4 September 1995 Judge T excused himself from a civil case

pending before the Helsinki District Court (formerly the City Court).

One of the parties had demanded that he step down on account of his

being a member of the freemasons (vapaamuurarit, frimurarna) like some

of the directors of the other party to the proceedings. The City Court

having rejected this request, the Parliamentary Ombudsman (eduskunnan

oikeusasiamies, riksdagens justitieombudsman) had been seised with a

petition. Apparently judge T had therefore considered that he could no

longer sit on the bench in the case.

The applicants became aware of Judge T's membership of the

freemasons through a newspaper report of 9 September 1995.

COMPLAINTS

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

The City Court examined company I's countersuit, although this had not

been properly served on the first applicant; the City Court failed to

examine the first applicant's principal argument; it heard biased

witnesses called by the first applicant's adversaries; it ignored

testimony given by an expert appointed by the first applicant; and

there was a lack of equality of arms between the parties.

Referring to the fresh information concerning Judge T's

membership of the freemasons, the first applicant supplemented his

complaint on 11 September 1995. He now also complains that Judge T of

the City Court was partial when examining his case, being a freemason

like several members of company I's board and possibly belonging to the

same branch of freemasons as they.

2. Both applicants complain that the proceedings, including the

question of reimbursement of the second applicant's fees and

costs, were deliberately stalled by the courts so as to force the first

applicant to go bankrupt and in order to "punish" the second applicant

for having criticised the manner in which the proceedings were

conducted.

3. The first applicant complains about the City Court's and the

Court of Appeal's refusal to afford him legal aid pursuant to the Act

on Cost-Free Proceedings.

4. Both applicants complain that, far from being based on the

instructions of the Ministry of Justice, the legal amount eventually

granted corresponded only to a tenth of the second applicant's fees and

that no reasons were given therefor.

The applicants invoke Articles 6 paras. 1 and 3 (d) as well as

Article 14 of the Convention.

THE LAW

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

before an impartial tribunal, as there was a lack of equality of arms

between the parties. The City Court examined company I's counteraction,

although this had not been properly served on the first applicant. The

City Court failed, however, to examine the first applicant's principal

argument. Moreover, it heard biased witnesses called by the first

applicant's adversaries but it ignored testimony given by experts

called by the first applicant.

Referring to the fresh information concerning Judge T's

membership of the freemasons, the first applicant, on

11 September 1995, also complained that Judge T of the City Court had

not been impartial when examining his case.

The Commission considers that the present complaint falls to be

considered under Article 6 para. 1 (Art. 6-1) of the Convention which,

insofar as relevant, reads as follows:

"In the determination of his civil rights ..., everyone is

entitled to a fair ... hearing within a reasonable time by

an independent and impartial tribunal established by law.

..."

The Commission considers that it cannot, on the basis of the

file, determine the admissibility of the above complaints and that it

is therefore necessary, in accordance with Rule 48 para. 2 (b) of the

Rules of Procedure, to give notice thereof to the respondent

Government.

2. Both applicants complain that the proceedings, including the

question of reimbursement of the second applicant's fees and costs,

were deliberately stalled by the courts.

The Commission has examined this complaint in the light of the

above-cited Article 6 para. 1 (Art. 6-1) of the Convention. It recalls

that the reasonableness of the length of the proceedings is to be

determined in the light of the circumstances of the case and with

reference to the criteria laid down in the Court's case-law, in

particular the complexity of the case, the conduct of the applicant as

well as that of the competent authorities. On the latter point, the

importance of what is at stake for the applicant in the litigation has

to be taken into account (see, e.g., Eur. Court HR, Hokkanen v. Finland

judgment of 23 September 1994, Series A no. 299-A, p. 25, para. 69).

Having regard to its competence ratione temporis, the Commission

considers that the period of relevance to the assessment of whether the

length of the proceedings was "reasonable" began to run on 10 May 1990,

when the Convention entered into force with respect to Finland. The

Commission will nevertheless take into account the stage reached in the

domestic proceedings at the beginning of the period under consideration

(see, e.g., No. 24559/94, Dec. 6.9.95, D.R. 82-A, pp. 76, 81).

The Commission notes that, on 10 May 1990, the first applicant's

case had already been pending for about a year in the City Court. After

that date the City Court's examination lasted approximately a further

year and a half. The Court of Appeal's examination lasted about

two years, whereas the Supreme Court's examination lasted some

eight months.

The total length of the proceedings which the Commission must

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

amounts to some four years.

The Commission observes that the case was of a certain complexity

and that a significant number of witnesses were heard. In the

circumstances of the case and considering that the proceedings involved

three court instances the Commission does not find that the present

length of the proceedings could be considered unreasonable for the

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

Accordingly, there is no appearance of a violation of that provision

on this point either.

It follows that this aspect of the complaint must also be

rejected as being manifestly ill-founded within the meaning of

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

3. The first applicant complains about the lower courts' refusal to

afford him legal aid pursuant to the Act on Cost-Free Proceedings.

The Commission recalls that under Article 25 (Art. 25) of the

Convention it may receive petitions from any person, non-governmental

organisation or group of individuals claiming to be the "victim" of a

violation by one of the High Contracting Parties of the rights set

forth in this Convention. It observes that the first applicant lodged

a successful appeal to the Supreme Court against the lower courts'

refusal to grant him legal aid. In these circumstances it finds that,

as regards this aspect of the complaint, he can no longer claim status

as a "victim" within the meaning of Article 25 (Art. 25) of the

Convention.

It follows that this complaint must be rejected as being

incompatible ratione personae with the provisions of the Convention

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

4. Both applicants complain that the legal aid amount eventually

granted corresponded only to a tenth of the second applicant's fees and

expenses and that no reasons were given therefor.

The Commission has examined this complaint in the light of the

above-cited Article 6 para. 1 (Art. 6-1) of the Convention. It recalls

that the applicability of this provision depends on whether there was

a dispute over a "right" which can be said, at least on arguable

grounds, to be recognised under domestic law, and, if so, whether this

right was of a "civil" character. In particular, 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 and,

finally, the results of the proceedings concerning the dispute must be

directly decisive for such a right (cf., e.g., Eur. Court HR, Zander

v. Sweden judgment of 25 November 1993, Series A no. 279-B, p. 38,

para. 22).

(a) The partial refusal of claims under the legal aid scheme

The present complaint concerns the amounts which the courts found

should be paid to the second applicant under the legal aid scheme. The

Commission observes that domestic law prevented the second applicant

from charging the first applicant directly for any fees or expenses not

accepted by the courts pursuant to that scheme. The courts' partial

refusal of the second applicant's claims did not therefore affect any

"civil right" of the first applicant. It follows that Article 6 para. 1

(Art. 6-1) is inapplicable, as far as the complaint has been lodged by

the first applicant.

As far as the complaint has been lodged by the second applicant,

the Commission will assume that Article 6 para. 1 (Art. 6-1) is

applicable (cf. No. 23003/93, Hummels v. the Netherlands, Dec. 28.2.96,

unpublished, and Article 28 Report 26.6.96). This provision does not,

however, guarantee that he should be paid any particular amount under

a legal aid scheme. Accordingly, this aspect of this complaint

discloses no appearance of any violation of Article 6 para. 1

(Art. 6-1) of the Convention.

(b) The alleged absence of reasons for the refusal

Article 6 para. 1 (Art. 6-1) places the "tribunal" under a duty

to conduct a proper examination of the submissions, arguments and

evidence adduced by the parties, without prejudice to its assessment

of whether they are relevant to its decision. It also obliges the

courts to give reasons for their judgments, but cannot be understood

as requiring a detailed answer to every argument. Nor are the

Convention organs called upon to examine whether arguments are

adequately met (see, e.g., Eur. Court HR, Van de Hurk v. the

Netherlands judgment of 19 April 1994, Series A no. 288, pp. 19-20,

paras. 59-61). The question whether a court has failed to fulfil the

obligation to state reasons can only be determined in the light of the

circumstances of the case (see, e.g., Eur. Court HR, Ruiz Torija v.

Spain judgment of 9 December 1994, Series A no. 303-A, p. 12,

para. 29).

The Commission notes that the Court of Appeal rejected part of

the costs claimed by the second applicant as having been incurred

unnecessarily. It found, moreover, that he had failed to present

details of the compensation allegedly paid to the witnesses called by

him.

It is true that the courts did not offer any explanation as to

why the fees actually awarded differed so radically from those claimed

by the second applicant. The Commission notes, however, that under

domestic law he was entitled to receive a reasonable fee, the courts

having particular regard to, for instance, the nature of the case, its

difficulty and the quality of his work. In the circumstances as a whole

the Commission finds no indication of a violation of Article 6 para. 1

(Art. 6-1) of the Convention on this point either.

It follows that within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention this complaint must be rejected as being

incompatible ratione materiae with the Convention, as far as lodged by

the first applicant, and as being manifestly ill-founded, as far as

lodged by the second applicant.

For these reasons, the Commission,

DECIDES TO ADJOURN the examination of the first applicant's

complaints relating to the alleged partiality of Judge T of

the Helsinki City Court and the alleged unfairness of the

proceedings; and

unanimously,

DECLARES INADMISSIBLE the remainder of the application.

M.F. BUQUICCHIO J. LIDDY

Secretary President

to the First Chamber of the First Chamber

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KIISKINEN AND KOVALAINEN v. FINLAND

KIISKINEN AND KOVALAINEN v. FINLAND

LEXI