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AS TO THE ADMISSIBILITY OF

Application No. 25945/94

by Ensio HUKKATAIVAL

against Finland

The European Commission of Human Rights (First Chamber) sitting

in private on 28 February 1996, the following members being present:

Mr. C.L. ROZAKIS, President

Mrs. J. LIDDY

MM. E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

M.P. PELLONPÄÄ

B. MARXER

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

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 22 November 1994

by Ensio HUKKATAIVAL against Finland and registered on 14 December 1994

under file No. 25945/94;

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 1913. He is a

commercial counsellor residing in Helsinki. Before the Commission he

is represented by Mr. Pekka Pinomaa, a lawyer practising in Helsinki.

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

summarised as follows.

In August 1991 the applicant sued the estate of a person called

A., who had died in 1987, for a debt. The applicant claimed that in

1984 he had, together with A, entered into a guarantee. He further

claimed that he had in 1986 payed out on the guarantee alone after

having orally agreed with A that A's portion of guarantee payment was

to be commuted into a debt of FIM 350,000, which A would later pay to

the applicant.

The case was heard in the City Court (raastuvanoikeus) of

Helsinki. The court heard evidence from one witness called by the

applicant and one witness called by the estate. The witnesses evidence

was tape-recorded, and the tapes were transcribed.

On 22 June 1992 the City Court, after evaluating the evidence,

found in favour of the applicant and obliged the estate to pay the

applicant FIM 350,000.

The estate appealed to the Court of Appeal (hovioikeus) of

Helsinki.

On 26 January 1994 the Court of Appeal quashed the City Court's

judgment and rejected the applicant's claim. No oral hearing had been

requested. No oral hearing was held pursuant to chapter 26 section 7

of the Code of Judicial Procedure, according to which the Court of

Appeal may, if it considers it necessary, hold an oral hearing. In its

reasoning the Court of Appeal set out the facts and the relevant

provisions on which its judgment was based. After evaluating the

evidence it stated, inter alia, that the applicant's right of recourse,

in respect of the suretyship, had lapsed under the statute of

limitation. It furthermore stated that it had not been proven that A

had agreed to commute the guarantee into a debt.

The applicant appealed against the judgment referring, inter

alia, to the fact that no oral hearing was held in the Court of Appeal.

On 23 May 1994 the Supreme Court (korkein oikeus) refused the

applicant leave to appeal.

COMPLAINTS

1) The applicant complains, under Article 6 para. 1 of the

Convention, that his right to a fair hearing was violated. He maintains

that the Court of Appeal quashed, to his disadvantage, the City Court's

judgment without holding an oral hearing in the case.

2) The applicant further complains, under Article 6 para. 1 of the

Convention, that the Court of Appeal did not give proper reasons for

its evaluation of the witness evidence which differed from the City

Court's evaluation.

3) Finally, the applicant complains, under Article 1 of Protocol

No. 1 to the Convention, that the judgments have deprived him of his

right to peaceful enjoyment of possessions since he lost his right to

request payment from the estate.

THE LAW

1) The applicant complains that his right to a fair hearing was

violated since the Court of Appeal did not arrange an oral hearing

although it came to a different outcome from that reached by the City

Court.

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

relevant:

"1. In the determination of his civil rights and

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

hearing ... by (a) ... tribunal ... "

In respect of the oral hearing in the Court of Appeal the

Commission 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 in so far as the current Finnish laws do not

provide such a right. This applies to:

1. proceedings before the Courts of Appeal, ... in

accordance with Chapter 26 Sections 7 and 8, ... of the

Code of Judicial Procedure ..."

The Commission observes that chapter 26 section 7 of the Code of

Judicial Procedure does not provide a right to an oral hearing in

appeal proceedings in civil cases in the Court of Appeal. The

Commission finds that Finland's reservation covers the applicant's

complaint concerning the lack of an oral hearing in the Court of

Appeal.

It follows that this part of the application is incompatible

ratione materiae with the Convention within the meaning of Article 27

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

2) The applicant complains further, under Article 6 para. 1

(Art. 6-1) of the Convention, that the Court of Appeal did not give

proper reasons for its judgment.

The Commission recalls that under specific circumstances the

absence of reasons in a court decision might raise an issue as to the

fairness of the procedure (No. 8769/79, Dec. 16.7.81, D.R. 25, p. 240).

The Commission notes that the Court of Appeal set out the facts

and stated the relevant provisions on which the judgment was based. The

Commission considers that the reasons given in the Court of Appeal's

judgment do not give rise to any appearance of the proceedings having

been unfair and contrary to the requirements of Article 6 para. 1

(Art. 6-1) of the Convention in respect of the reasons given in the

relevant court decision.

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.

3) Finally, the applicant complains that the judgments resulted in

interference with his property rights.

Article 1 of Protocol No. 1 (P1-1) reads, in so far as relevant,

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 Commission recalls that a person complaining of an

interference with his right to possessions must show that such a right

existed (No. 12164/86, Dec. 12.10.88, D.R. 58, p. 63). The Commission

finds that the applicant has not shown that he has the right referred

to. Accordingly, the Commission concludes that there has been no

interference with the applicant's possessions in this respect.

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.

Secretary to the First Chamber President of the First Chamber

(M.F. BUQUICCHIO) (C.L. ROZAKIS)

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HUKKATAIVAL v. FINLAND

HUKKATAIVAL v. FINLAND

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