FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 24328/06 by Stig Alfred WIKSTEDT against Finland

The European Court of Human Rights (Fourth Section), sitting on 12 October 2010 as a Chamber composed of:

Nicolas Bratza , President, David Thór Björgvinsson , Ján Šikuta , Päivi Hirvelä , Ledi Bianku , Nebojša Vučinić , Vincent Anthony de Gaetano , judges, and Lawrence Early , Registrar ,

Having regard to the above application lodged on 14 June 2006,

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

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Stig Alfred Wikstedt, is a Finnish national who was born in 1947 and lives in Esbo. He was represented before the Court by Mr Leo R. Hertzberg, a lawyer practising in Helsingfors. The Finnish Government (“the Government”) were represented by their Agent, Mr Arto Kosonen of 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.

On 13 October 2004 the Helsingfors Bailiff unsuccessfully tried to recover debts from the applicant.

On 15 October 2004 a property company petitioned the Helsingfors District Court ( tingsrätten , käräjäoikeus ) for the applicant to be declared bankrupt.

The Bailiff tried to reach the applicant six times at his registered home address in order to serve the notice on the bankruptcy proceedings. The applicant ' s telephone number could not be found by the directory service and he did not answer the door intercom. The Bailiff managed to get into the staircase and saw light coming from the applicant ' s apartment but he did not answer the doorbell. The Bailiff left a meeting request in his post box, to which the applicant also failed to react.

As the applicant could not be reached during the service period set by the District Court and running from 8 November to 21 December 2004, a letter was sent to the applicant ' s address on 22 December 2004, confirming that the notice had been served and that the documents were kept available at the local police station.

On 4 January 2005 the applicant submitted a letter to the District Court requesting that the case documents be translated from Finnish into Swedish. The letter was sent from the same address where the Bailiff had attempted to serve the notice.

On an unspecified date the applicant requested that the District Court extend the deadline for his written reply. The deadline was accordingly extended until 18 February 2005.

On 15 February 2005 the applicant applied for an adjustment of his debts. As required by the domestic legislation, the bankruptcy proceedings were postponed and were continued only after the District Court had refused to grant the debt adjustment. Thereafter, on 21 February 2006 , the applicant was again requested to submit a written reply by 23 March 2006.

When attempting to serve the above-mentioned request at the applicant ' s address, the Bailiff learned that the applicant had moved. He tried to reach the applicant at his new address in February 2006.

Following a request made by the Bailiff on 21 February 2006 , the service period was extended until 16 March 2006. On 15 March 2006 the applicant was informed by letter that the request had been served and that the documents were again made available at the local police station.

The District Court resumed the bankruptcy proceedings. The applicant did not request that the deadline for his written reply be extended, nor did he submit any reply. According to the Government, the applicant was personally present at the District Court when swearing to the accuracy of the inventory of the estate.

On 30 March 2006 the District Court declared the applicant bankrupt. It noted that the applicant, who had been invited to reply to the petition within a given time, had failed to do so. It also noted that the claim was based on a final default judgment and on the fact that the claims mentioned therein had been transferred to the company . The company also had in its possession promissory notes signed by the applicant and which he had not contested. The court found that the applicant was insolvent since the debt recovery on 13 October 2004 had been unsuccessful and the petition for bankruptcy had been lodged within six months from that date.

The file does not disclose whether or not the District Court held an oral hearing.

On 10 April 2006 the applicant appealed, applying for an injunction and an oral hearing in the appellate court with a view to hearing witnesses as to whether he was insolvent. He argued that although he had moved to a new address in the spring of 2005, the court had sent to his old address a letter dated 21 February 2006 in which he was invited to submit his reply by 23 March 2006. This letter had never reached the applicant. On 15 March 2006 the Bailiff had sent a letter to the applicant informing him that documents to be served had been deposited at the police station. The letter did not mention what those documents concerned. The applicant claimed that he had received the letter at the earliest on 16 March 2006 but as he had been travelling he had learned about the documents and the fact that they rel ated to the bankruptcy proceedings only on 26 March 2006 when he contacted the police station.

As to the merits of the appeal, he relied on Chapter 2, section 4, of the Bankruptcy Act ( konkurslagen, konkurssilaki ; Act no. 120/2004) according to which a debtor cannot be declared bankrupt if the creditor has a protective lien. He also argued that the creditor had failed to produce evidence of his insolvency as the Helsinki Bailiff ' s attestation was not sufficient for the purposes of the Bankruptcy Act. At the material time, the applicant had assets outside the Helsingfors Bailiff ' s district which did not appear in the attestation.

On 9 May 2006 the Court of Appeal ( hovrätten, hovioikeus ) dismissed the request for an injunction. On 29 May 2006 it dismissed the applicant ' s renewed request to the same effect.

In its decision of 28 June 2006 the Court of Appeal noted first that the applicant had been able to establish a probability , in accordance with Chapter 25, section 17, of the Code of Judicial Procedure ( rättegångsbalken, oikeudenkäymiskaari ), that he had not been able to refer to the circumstance s and evidence relied on in his appeal in the District Court . For this reason the court considered all circumstance s and evidence relied on in the applicant ' s appeal. As concerned the serving of the documents, the Court of Appeal noted that in January 2006 the Bailiff had looked for the applicant at the address which the latter had communicated to the District Court. Subsequently, the Bailiff had found out that the applicant had moved to another municipality following which he had unsuccessfully looked for the applicant at his new address in February and March 2006. In the circumstances, the Bailiff could assume that the applicant was trying to avoid the service of the documents. The court also observed that the Supreme Court in a precedent (KKO 1992:71) had taken the view that it was irrelevant for the purposes of the application of Chapter 11, section 7, of the Code of Judicial Procedure whether the person concerned later shows that he was not avoiding trial. The Court of Appeal therefore concluded that, in the present case, it had been justified to serve the documents by leaving them with the local police and rejected the applicant ' s view that there had been a procedural error.

As to whether the conditions for declaring the applicant bankrupt were met, it endorsed the lower court ' s reasons, adding, inter alia , that it was clear from the appeal documents that the unemployed applicant ' s assets amounted to some 19,000 euros (EUR) whereas his debts ran to some EUR 81,000. It was therefore unnecessary to hold an oral hearing in order to examine whether the applicant was insolvent.

The applicant sought leave to appeal, maintaining the grounds for his appeal. On 16 October 2006 the Supreme Court ( högsta domstolen, korkein oikeus ) refused such leave.

B. Relevant domestic law and practice

According to Chapter 5, section 11, subsection 1, of the Code of Judicial Procedure ( rättegångsbalken, oikeudenkäymiskaari ; as amended by Act no. 1052/1991) :

“ The summons shall state that the written response is to be delivered to the court registry before a deadline counted from the service of the summons. An extension may be granted for a special reason, if the request for this has been submitted before the end of the period. ”

Chapter 11, s ection 7 , of the same Code ( as amended by Act no. 1056 / 1991 ) provides the following:

“ (1) When a process server, for the purpose of service of a notice, has sought a person with a known residence in Finland, but has not found him or her or any person competent to receive service in his or her stead, and on the basis of the circumstances it may be assumed that he or she is evading the service of the notice, the process server may serve the notice by delivering the documents to a household member who has attained fifteen years of age, or, if the said person conducts a business, to a person employed in this business. If none of the above can be found, service of the notice may be performed by delivering the documents to a local police authority.

(2) When the process server has performed the service of the notice pursuant to subsection 1, he or she shall notify the recipient of the same by a letter sent to the home address of the recipient.

(3) The service of the notice shall be deemed to have taken place when the letter referred to in subsection 2 has been given to be delivered by post.

(4) The summons in a criminal case may not be served on the defendant in the manner provided in this section. (690/1997) ”

Chapter 11, s ection 11, of the same Code regulates service procedure in a civil matter with multiple respondents the following manner:

“ In a civil case involving two or more parties jointly, the notices shall be separately served on each party as provided in sections 1—10. If a notice is to be served on so many recipients that separate service on each of them cannot be done without difficulty, the court may order that the notice is to be served on one of them. A summary of the contents and the name of the person on whom the notice has been served, as well as information on the place where the documents to be served are kept available, shall be published as provided in section 10. The service shall be deemed to have been performed when the public notice has been published in the Official Gazette . ”

As concerns the possibility to present new material in the Court of Appeal, according to Chapter 25, s ection 17 , subsection 1, of the same Code ( as amended by Act no. 165/1998) :

“ In a civil case, the appellant may not refer in the Court of Appeal to other circumstances or evidence than those presented in the District Court, unless he or she establishes a probability that he or she had not been able to refer to the circumstance or evidence in the District Court or that he or she has had a justifiable reason for not doing so. ”

In its judgment of 25 May 1992 ( KKO 1992:71 ), the Supreme Court addressed the issue of serving a notice on a presumably absent applicant in a civil case. In that precedent case the applicant had not been reached by the Bailiff but had for legitimate reasons been temporarily residing abroad and had notified the Population Registry of his temporary place of residence. A certificate on the applicant ' s domicile issued by the registry office did not however include information on his temporary address. As relatives and neighbours had not known about the applicant ' s temporary address either, the Supreme Court held that the Bailiff had rightly assumed, for the purposes of the serving of the notice, that the applicant was attempting to hide from the authorities. The applicant ' s later clarification of the issue was not relevant in this regard. It followed that the notice could legitimately have been served o n the applicant in accordance with the requirements of Chapter 11, Section 11 , of the Code of Judicial Procedure.

COMPLAINT S

1. The applicant complained under Article 6 § 1 of the Convention that he had not been informed of the fact that the District Court was going to examine the bankruptcy application but had learned about it only after the case had been decided.

2. He complained under Article s 6 § 1 and 13 of the Convention that the Court of Appeal had failed to grant an injunction and had refused him an oral hearing and the right to take evidence. He also complained about the lack of an effective remedy in that connection . The Court of Appeal had let the proceedings go on although there had been no lawful grounds for the decision to declare him bankrupt as he was not insolvent.

3. Lastly, the applicant complained that Chapter 4, section 4, of the Bankruptcy Act had deprived him of his right to his correspondence in breach of Article 8 of the Convention. According to that provision, the bankruptcy administrator had the right to open letters and other mail addressed to the bankrupt debtor regardless of the nature of the mail.

THE LAW

A. Complaint concerning the right to be heard

The applicant complained under Article 6 § 1 of the Convention about a failure to be heard as he had not been informed of the fact that the District Court was going to examine the bankruptcy application but had learned about it only after the case had been decided.

Article 6 § 1 of the Convention reads as follows:

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

1. The submissions of the parties

The Government pointed out that it was evident from the applicant ' s letter of 10 April 2006 to the Court of Appeal that he had become aware of the bankruptcy proceedings against him well before the District Court held a hearing. It was undisputed that he had become aware of the hearing at the latest on 26 March 2006. In any event, the applicant had never requested the District Court to extend the time-limit for his written reply. It was evident that the applicant had had a shorter period to prepare his written reply due to the fact that the documents could not be served directly on him. However, the substitute service was conducted in accordance with national law. The domestic legal system had to enable the authorities to react in situations in which the persons concerned purported to avoid the serving of a notice. The Government emphasised that a person could be reasonably required to advance actively his or her case by retrieving the served documents from a police station once that person had been informed about this possibility. The police functioned only as a depository of the documents. It was questionable whether, in the light of data protection, the police would have been allowed to open an official letter addressed to the applicant and pass on any information contained in it over the telephone. According to national law, the police were not entrusted with such a task.

The Government also pointed out that the applicant had applied for a debt adjustment and he had thus known or ought to have known that the bankruptcy proceedings would be continued after the District Court had decided on his application. The documents at the police station had thus concerned the continued consideration of a pending issue. The applicant had never even claimed that he had some other unfinished matters to which the documents could have related. The applicant ' s claim that he had not known about the subject-matter of the documents was therefore in the Government ' s view not plausible. The authorities had employed all measures available under domestic law to serve the notice on the applicant in due time and there had been no periods of inactivity attributable to them. The applicant ' s claims that he had not been informed about the bankruptcy application and that he had learned about it only after the case had been decided was untrue. The applicant had had an opportunity to be heard on the application for bankruptcy and the fact that he did not avail himself of that opportunity did not render the proceedings inconsistent with the requirements of Article 6 § 1 of the Convention.

The applicant claimed that he did not complain about how he was summoned in 2005 but about how he was summoned in 2006. He had moved from Helsingfors to Esbo in the spring of 2005 and had made the statutory change of address to the population register. Despite this, the documents were sent for serving to an incorrect address. The applicant had, due to his absence, become aware of the letter of 15 March 2006 only on 26 March 2006. The police station had confirmed that there was a letter for him but had not said anything about its content or whether he needed to react within a certain time-limit. By 30 March 2006, when the District Court had resumed the proceedings, the applicant had not been informed that the proceedings would continue on that date. He had only become aware of them when he had received the court ' s decision.

The applicant maintained that the letter of 15 March 2006 had probably reached his apartment on 17 or 20 March 2006, and that his submissions had already been due on 23 March 2006. In any event, the time-limit to prepare his reply had in practice been too short, and it had never been extended even though the serving of the request had taken a lot of time. In such a short time-limit it would have been difficult even to obtain legal aid. By the time he had found out about the documents on 26 March 2006, the time-limit for his observations had already run out. It was difficult for a person living alone and momentarily absent from his residence to know that he had been summoned or that he had to react to such summons.

2. The Court ' s assessment

The Court notes that on 21 February 2006 the District Court requested the applicant to submit his written reply by 23 March 2006. It is also undisputed that on 15 March 2006 the applicant was informed by letter that the request had been served and that the documents were kept available at the local police station. It is not clear whether the District Court held an oral hearing and whether in the letter of 15 March 2006 the applicant was also invited to attend such a hearing. The applicant apparently first learned about the nature and contents of the documents deposited at the police station on 26 March 2006. On 30 March 2006 the District Court declared the applicant bankrupt.

As concerns the time-limit to submit observations, the Court notes that it appears that this time-limit had expired before the applicant even learned about it. According to national law, the time-limit is counted from the date of service of the summons . However, it seems that in the present case the applicant did not in fact receive the request before the time-limit ran out. The applicant would not have been able to ask for an extension of the time-limit as such request ought to have been made within the same time-limit.

The Court will next examine whether this failure to hear the applicant was remedied in the later stage of the proceedings. In fact, the applicant complained about this issue to the Court of Appeal. The Court of Appeal noted in its judgment of 28 June 2006 that, as the applicant had been able to establish a probability that he had not been able to refer to the circumstance s and evidence relied on in his appeal in the District Court , the Court of Appeal considered all circumstance s and evidence relied on in the applicant ' s appeal. The applicant was thus able to submit his observations on the issue, which he did on several occasions and even when not invited to file submissions. The Court therefore concludes that even assuming that the applicant had not been properly heard before the District Court, such an error was in any event remedied by the Court of Appeal.

Accordingly, this part of the application is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.

B. Complaint concerning the lack of an oral hearing

The applicant also complained about a violation of Article 6 § 1 of the Convention due to the lack of an oral hearing in the Court of Appeal.

1. The submissions of the parties

The Government maintained that the circumstances of the applicant ' s case justified dispensing with an oral hearing. There was nothing to indicate that questions of fact or law would have emerged which could not have been adequately resolved on the basis of the case file and the written observations of the applicant. The purpose of the applicant ' s request for an oral hearing had been to challenge the conclusions drawn by the District Court on his insolvency as well as his inability to submit a written reply to the District Court. As the applicant had established a probability that he had not been able refer to all circumstances and evidence in the District Court, the Court of Appeal had therefore fully examined the case. The Court of Appeal had deemed his insolvency rate unchanged and had considered him to be insolvent. No additional information of the facts affecting the applicant ' s insolvency could thus have been gathered by hearing him personally. As the issue of collateral given by the applicant had been simultaneously addressed in another trial, new evidence concerning it could not have been received in the present proceedings, and it was not necessary to organise an oral hearing on this ground either. There was thus no violation of Article 6 § 1 of the Convention in this respect.

The applicant claimed that an oral hearing had been needed in order to produce new evidence. The applicant had intended to show that he had not been completely destitute in the manner indicated by the Bailiff but that he had had other assets convertible into cash, that he had had a full security for his claim, and that the authorities had failed to act according to the proper procedure. The applicant had not been able to put questions to the person who had declared him insolvent.

2. The Court ' s assessment

The Court reiterates at the outset that the entitlement to a “public hearing” in Article 6 § 1 necessarily implies a right to an “oral hearing”. However, the obligation under Article 6 § 1 to hold a public hearing is not an absolute one. Thus, a hearing may be dispensed with if a party unequivocally waives his or her right thereto and there are no questions of public interest making a hearing necessary. A waiver can be explicit or tacit, in the latter case for example by refraining from submitting or maintaining a request for a hearing (see, among other authorities, HÃ¥kansson and Sturesson v. Sweden , 21 February 1990, § 66 , Series A no. 171 ‑ A ; and Schuler-Zgraggen v. Switzerland , 24 June 1993, § 58 , Series A no. 263 ).

In the present case, the applicant specifically requested an oral hearing before the Court of Appeal. Thus, no question arises as to whether or not the applicant waived his right thereto. It remains to be examined whether the circumstances of the applicant ' s case were such as to justify the absence of an oral hearing.

The Court points out that in proceedings before a court of first and only instance there is normally a right to a hearing (see HÃ¥kansson and Sturesson v. Sweden , cited above, § 64). However, the absence of a hearing before a second or third instance may be justified by the special features of the proceedings at issue, provided a hearing has been held at first instance (see Helmers v. Sweden , 29 October 1991, § 36 , Series A no. 212 ‑ A ). Accordingly, unless there are exceptional circumstances that justify dispensing with a hearing, the right to a public hearing under Article 6 § 1 implies a right to an oral hearing at least before one instance. A hearing may not be necessary, for example when it raises no questions of fact or law which cannot be adequately resolved on the basis of the case file and the parties ' written observations (see, inter alia , Döry v. Sweden, no. 28394/95, § 37, 12 November 2002; Lundevall v. Sweden, no. 38629/97, § 34, 12 November 2002; Salomonsson v. Sweden , no. 38978/97, § 34 , 12 November 2002 ; Vilho Eskelinen and Others v. Finland [GC], no. 63235/00, § 73 , ECHR 2007 ‑ IV ; and mutatis mutandis , Fredin v. Sweden (no. 2) , 23 February 1994, § § 21-22 , Series A no. 283 ‑ A ; Fischer v. Austria , 26 April 1995, § 44 , Series A no. 312 ; and Elo v. Finland , no. 30742/02, § 35 , 26 September 2006 ).

The Court observes that the Finnish appellate courts ' jurisdiction is not limited to matters of law but also extends to factual issues. Under Chapter 26, section 15, of the Code on Judicial Procedure, the Court of Appeal shall hold an oral hearing if the credibility of the testimony admitted in the District Court is an issue. In the instant case the Court of Appeal was called upon to examine the case as to both the facts and the law.

The Court notes that the applicant ' s purpose in requesting a hearing was to demonstrate, inter alia , that he had not been completely destitute in the manner indicated by the Bailiff. The Court of Appeal found it unnecessary to hold an oral hearing in order to examine whether the applicant was insolvent since it was clear from the documents supplied that the applicant ' s liabilities far exceeded his assets. The Court finds force in the Government ' s argument that any issues of fact and law could in the present case be adequately addressed in, and decided on the basis of, written submissions.

The Court further observes that the applicant was not denied the possibility of requesting an oral hearing, although it was for the Court of Appeal to decide whether such a hearing was necessary (see, mutatis mutandis , Martinie v. France [GC], no. 58675/00, § 44, ECHR 2006 ‑ ). Since the applicant was given ample opportunity to put forward his case in writing and to comment on the submissions of the other party, the Court finds that the requirements of fairness were complied with and did not necessitate an oral hearing.

Accordingly, this part of the application is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.

C. Remainder of the application

T he applicant also complained under Article s 6 § 1 and 13 of the Convention that the Court of Appeal had failed to grant an injunction and that there was no effective remedy in that connection . The Court of Appeal had let the proceedings go on although there had been no lawful grounds for the decision to declare him bankrupt as he was not insolvent.

Lastly, the applicant complained that Chapter 4, section 4, of the Bankruptcy Act had deprived him of his right to his correspondence in breach of Article 8 of the Convention. According to that provision, the bankruptcy administrator had the right to open letters and other mail addressed to the bankrupt debtor regardless of the nature of the mail.

Having regard to the case file, the Court finds that the matters complained of do not disclose any appearance of a violation of the applicant ' s rights under the Convention. Accordingly, this part of the application is also manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Lawrence Early Nicolas Bratza Registrar              President