FOURTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 10736/03 by Toimi V ÄÄ N Ä NEN against Finland

The European Court of Human Rights (Fourth Section), sitting on 29 November 2005 as a Chamber composed of:

Sir Nicolas Bratza , President , Mr G. Bonello , Mr M. Pellonpää , Mr K. Traja , Mr L. Garlicki , Mr J. Borrego Borrego , Ms L. Mijović , judges , and Mr M. O ’ Boyle , Section Registrar ,

Having regard to the above application lodged on 27 March 2003 ,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Toimi V ää n ä nen , is a Finnish national who was born in 1919 and lives in Helsinki . He is represented before the Court by Mr Jouko Laurikkala , a lawyer practising in Helsinki .

A. The circumstances of the case

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

In March 1985 the applicant underwent knee surgery in Palm Beach , Florida . On 15 June 1985 he was struck on the operated knee by G. near his home in Florida . Soon after, an infection developed in his knee and the applicant became disabled.

The applicant instituted civil proceedings against G. in the Circuit Court of Palm Beach County, which, on 6 May 1988 issued its final judgment, ordering G. to pay to the applicant 500,000 US dollars in pecuniary and non-pecuniary damages.

On 11 June 1989 G. died.

As G. had failed to pay the damages ordered by the Circuit Court of Palm Beach County the applicant lodged, on 9 September 1991 , an action for damages against G. ’ s estate before the then City Court ( raastuvanoikeus , rådstuvurätt ) of Helsinki, claiming 2,008,500 Finnish Marks (FIM; amount corresponding 500,000 USD) plus interest. He alleged that his disability in movement and the following operations were caused by the G. ’ s blow. On 2 7 November 1992 the defendant was summoned.

The first hearing was held on 6 February 1992 .

In its third hearing, held on 29 October 1992 , the City Court adjourned the case in order to hear four witnesses, including T., in Florida , USA by way of international legal assistance. The City Court obtained the witnesses ’ statements on 30 November 1993 . As the applicant was dissatisfied with the witnesses ’ hearings, he requested them to be heard again. In its sixth hearing, held on 25 February 1994 , the District Court ( käräjäoikeus , tingsrätten ; formerly the City Court) of Helsinki adjourned the case in order to hear again the witnesses in Florida . Apparently the witnesses ’ statements arrived in the District Court on 26 January 1996 . On 19 April 1996 the applicant closed his case and requested that the case proceed to decision.

In its 15 th hearing, held on 23 May 1997, the District Court decided to ask for an expert opinion from the National Authority for Medicolegal Affairs ( terveydenhuollon oikeusturvakeskus , rättskyddscentralen för hälsovården ), and adjourned the case to its hearing to be held on 26 September 1997.

The District Court obtained the opinion of the National Authority for Medicolegal Affairs on 31 October 1997 .

In its 18 th hearing, held on 24 April 1998 , upon the request by the applicant, the court decided to ask for another expert ’ s opinion from the National Authority for Medicolegal Affairs .

In its 20 th hearing, held on 18 September 1998 , the District Court issued its judgment, dismissing the damage claims. It found that there was no causal link between the blow and the infection. It further ordered the applicant to reimburse the defendant ’ s legal expenses amounting to almost 30,000 euros (EUR).

On 15 October 1998 the applicant appealed to the Court of Appeal ( hovioikeus , hovrätten ) of Helsinki . The appellate court decided to ask for another expert opinion from the National Authority for Medicolegal Affairs . The appellate court received one expert opinion on 14 March 2001 and another on 4 July 2001 .

The Court of Appeal held an oral hearing on 19 – 21 December 2001. It issued its judgment on 13 March 2002 , ordering the defendant to pay the applicant 1,500 EUR for non-pecuniary damages for pain resulting from the blow and dismissing the further claims. The applicant was further ordered to reimburse the defendant ’ s legal expenses incurred before the appellate court.

The Supreme Court ( korkein oikeus , högsta domstolen ) refused the applicant leave to appeal on 1 October 2002 .

COMPLAINTS

The applicant complain s under Article 6 of the Convention that the length of the civil proceedings was excessive as they lasted over 11 years. He further complains that he was ordered to reimburse the defendant ’ s legal costs; that part of the documents (at least photographs as well as documents relating to the succession and inheritance) submitted by him were missing before the Court of Appeal and subsequently before the Supreme Court; and finally that doctors H. and T. were not heard as witnesses before the Court of Appeal.

THE LAW

1. The applicant complain s under Article 6 of the Convention about the length of the civil proceedings, which started on 9 September 1991 and ended on 1 October 2002 . Article 6, insofar as relevant, reads as follows:

“1. In the determination of his civil rights and obligations ... everyone is entitled to a fair and public hearing within a reasonable time ...”

The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

2. The applicant further complain s that he was ordered to reimburse the defendant ’ s legal costs.

A s regards the domestic courts ’ decisions to order the applicant to reimburse the defendant ’ s legal costs the Court recalls that, in accordance with Article 19 of the Convention, its task is to ensure the observance of the obligatio ns 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 Court refers on this point to its established case-law ( Schenk v. Switzerland , judgment of 12 July 1988, Series A no. 140, p. 25, § 45).

The examination of the case-file does not disclose any appearance of a violation of a fair trial in these respects. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

3. The applicant complains that there were documents missing before the domestic courts which might have affected to the outcome of the proceedings and that he was not allowed to hear his doctors H. and T. before the appellate court.

The Court recalls in the outset that according to the principles set out in its judgment in the case of Akdivar and Others v. Turkey (judgment of 16 September 1996, Reports of Judgments and Decisions , 1996-IV, pp. 1210-1222, §§ 65-69) the rule of exhaustion of domestic remedies referred to in Article 35 § 1 of the Convention obliges those seeking to bring their case against the State before an international judicial or arbitration organ to use first the remedies provided by the national legal system. Moreover, the complaints intended to be made subsequently at Strasbourg should have been made to the appropriate domestic body, at least in substance and in compliance with the formal requirements and time-limits laid down in domestic law.

As to the present case, the Court finds that the applicant did not raise in his application for leave to appeal to the Supreme Court any allegations as to the disappearance of any document or that doctors H. and T. were not heard as witnesses before the Court of Appeal. Therefore, the Court rejects this part of the application for non-exhaustion of domestic remedies pursuant to Article 35 §§ 1 and 4 of the Convention.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant ’ s complaint concerning the length of the civil proceedings ;

Declares the remainder of the application inadmissible.

Michael O ’ Boyle Nicolas Bratza Registrar President