FOURTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 45029/98 by LOMASEITA OY and Others against Finland

The European Court of Human Rights (Fourth Section), sitting on 18 May 2004 as a Chamber composed of:

Sir Nicolas Bratza , President , Mr M. Pellonpää , Mrs V. Strážnická , Mr S. Pavlovschi , Mr L. Garlicki , Mr J. Borrego Borrego , Mrs E. Fura-Sandström, judges , and Mr M. O'Boyle , Section Registrar ,

Having regard to the above application lodged on 1 December 1998,

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

Having deliberated, decides as follows:

THE FACTS

The first and the second applicant, Lomaseita Oy and CPT Data Oy, are limited liability companies. The third applicant, Mrs Kaisaleena Laaksonen, is a Finnish national, who was born in 1947 and lives in Espoo. They are represented before the Court by Mr Raimo Laaksonen.

The respondent Government are represented by their Agent, Mr Arto Kosonen, director in the Ministry for Foreign Affairs.

A. The circumstances of the case

The facts of the case, as submitted by the parties and as they appear from the documents, may be summarised as follows.

In 1987, the third applicant founded a company called CPT Informations Systems Oy (“CPT IS” hereinafter) together with Mr Raimo Laaksonen and Mr Pekka Laaksonen. On 20 October 1993 the company was ordered to be wound-up.

The official receiver of the estate of CPT IS, P., a lawyer practising in Helsinki and a member of the Finnish Bar Association, instituted civil proceedings against the third applicant and two other companies, Lomaseita Oy and CPT Data Oy, in both of which Mr Raimo Laaksonen is the managing director and which are at least partly owned by the third applicant. In the proceedings before the District Court of Espoo ( käräjäoikeus, tingsrätten ), P. requested that assets allegedly transferred from CPT IS to the applicants before the winding-up order was issued be returned to its estate.

On 31 January 1996, the District Court found partly in favour of the estate insofar as the first and second applicants were concerned and as a whole in favour of the estate in so far as the third applicant was concerned.

All the parties to the proceedings appealed to the Helsinki Court of Appeal ( hovioikeus, hovrätten ) and subsequently submitted their observations in reply. After the relevant time-limit for appeal had elapsed, the estate on two occasions in August 1997 submitted additional documentary material to the Court of Appeal, requesting that it be taken into account.

By its judgment of 23 December 1997 the Court of Appeal found in favour of the estate. Insofar as the additional material submitted by the estate after the time-limit for appeal had elapsed was concerned, the Court of Appeal stated as follows:

“The Court of Appeal has not found any such particular reason as prescribed by chapter 26, section 5 (1) of the Code of Judicial Procedure ( oikeudenkäymiskaari, rättegångsbalken ) to take into account the additional submissions with enclosures submitted by the estate after the relevant time-limit set for the appeal had elapsed. Therefore, they are not taken into account and, accordingly, the [estate's] request for an oral hearing is rejected.”

On 18 June 1998 the Supreme Court ( korkein oikeus, högsta domstolen ) refused the applicants leave to appeal.

Having received the Supreme Court's decision, the applicants' representative, Mr Raimo Laaksonen, requested copies of all the relevant documents from the Court of Appeal. He found out that, despite what was said in the Court of Appeal's judgment about the additional submissions by the estate after the relevant time-limit for appeal had elapsed, the referendaire of the Court of Appeal had made 71 remarks to the submissions in question and as many as 161 remarks to an enclosure, an inspection report drafted by the Central Criminal Police ( keskusrikospoliisi, centralkriminalpolisen ).

On 30 November 1998, the applicants requested that the Supreme Court reopen the proceedings, claiming that they had been denied a fair trial before the Court of Appeal as the estate's submissions, which had clearly been relevant and which had been taken into account even though there was a statement to the contrary in the Court of Appeal's judgment, had not been communicated to them. They also noted that it appeared from the invoice concerning the estate's legal costs included in the court file, that P. had consulted the Court of Appeal's referendaire several times during the proceedings. In this respect, the applicants complained that they had not been informed of any such negotiations.

By its decision of 31 January 2001 the Supreme Court refused to reopen the proceedings. Insofar as the second applicant was concerned, the Supreme Court gave the following reasons:

“In the present case, the Court of Appeal decided not to take the new submissions into account. Under the provisions of law cited above [chapter 26, sections 5 and 6 of the Code of Judicial Procedure], the Court of Appeal did therefore not need to inform the other parties of the said submissions. The new submissions in question were, however, of such relevance for the issue at stake that, although there were no mandatory provisions of law to that effect, it might have been appropriate in those circumstances to communicate the submissions to the adverse parties.

The decision-making before the Court of Appeal depended on both judicial argumentation and evaluation of evidence. The Court of Appeal reached its conclusions on the basis of the material submitted to the District Court and the material in the appeal documents and the observations in reply. In its judgment, the Court of Appeal gave an account of the grounds on which it reached its conclusions. Neither the judgment nor the other documents in the file give any reason to conclude that the additional submissions by the estate after the time-limit for appeal had elapsed have de facto, and contrary to the wording of the judgment, affected the outcome of the Court of Appeal's judgment, as alleged by the company. Thus, there is no proof of such a procedural error as could be assumed to have affected the outcome of the proceedings and as would make it necessary or possible to annul the judgment under chapter 31, section 1 (4) of the Code of Judicial Procedure. ...”

The Supreme Court also rejected the annulment requests by the first and third applicants on the ground that the said police inspection report had not been submitted to the Court of Appeal in support of the estate's appeals in respect of them. Nothing indicated that the inspection report had de facto affected the outcome of the judgment.

However, the decision of the Supreme Court was not unanimous, as one of the judges in his dissenting opinion stated the following:

“One of the basic principles of court proceedings is that all relevant material submitted to the court and which may have a bearing on the outcome of the case, shall be communicated to the parties (Supreme Court's decision No. 1995:95). According to the case-law of the European Court of Human Rights (Nideröst-Huber v. Switzerland, Werner v. Austria, Kuopila v. Finland) it is up to each party to decide whether the material is such that it may affect they case and, whether it calls for the party to comment on it. A court's view that a submission or a statement has no bearing on the outcome of the case, does not therefore automatically justify the non-communication of such material to a party. Such a justification cannot be drawn from chapter 26, section 6 of the Code of Judicial Procedure, which concerns requesting written observations.

The estate of CPT Information Systems Oy submitted to the Court of Appeal, after the time-limit for appeal had elapsed, a supplementary police report, drafted by the Economic Offences Department of the police, together with an additional legal submission. The estate considered the material to be relevant to the case, requesting that it be taken into account in the decision-making. In the alternative, it requested that an oral hearing be held in order to call as a witness the person who had drafted the report. It is clear from the file that the official receiver and the referendaire of the Court of Appeal several times negotiated over the telephone about the submission of the additional material and apparently about the timetable of the proceedings. The occurrence of numerous remarks in the police report and the submission indicate that the material was at least not regarded as manifestly irrelevant. Based on general experience, economic reports, which have been drafted in an official capacity, are usually of relevance in cases concerning recovery of assets. In its judgment, the Court of Appeal revoked the District Court's judgment, accepting the essential parts of the estate's claims.

Under these circumstances, a fair trial would have required that the parties be informed, during the proceedings, of the additional material submitted by the estate as well as of the negotiations concerning the schedule of the proceedings. I find that the Court of Appeal proceedings, in which one of the essential legal principles was disregarded, amounts to a procedural error within the meaning of chapter 31, section 1 (4) of the Code of Judicial Procedure. Therefore, the judgment must be annulled and the case returned to the Court of Appeal for re-examination. Having regard to the contents of the supplementary police report, this has to be done in respect of all three applicants. ...”

Meanwhile on 13 December 1999, the first and third applicants complained to the Chancellor of Justice ( oikeuskansleri, justitiekanslern ) about the conduct of the official receiver, P., as he had allegedly knowingly given incorrect information to the Court of Appeal in a submission on behalf of the estate during the above-mentioned proceedings. The Chancellor of Justice transferred the complaint to the Finnish Bar Association. On 23 February 2001, the Bar Association Disciplinary Board admonitioned P. The Disciplinary Board found, inter alia , that P. had not corrected a piece of information he had submitted to the Court of Appeal on 24 April 1996, even though he had subsequently learned, on 29 August 1997, that the information was not true.

B. Relevant domestic law and practice

According to chapter 26, section 5 (661/1978) of the Code of Judicial Procedure, as in force at the relevant time, the Court of Appeal could on special grounds take into account a submission or other document submitted by a party after the expiry of the time-limit for lodging an appeal.

Chapter 26, section 6 (661/1978), as in force at the relevant time, provided that if the Court of Appeal was to take into account such a submission filed after the time-limit had expired and it could have a bearing on the case, the Court of Appeal was to request the parties to submit written observations, unless it was manifestly unnecessary.

COMPLAINTS

1. The applicants complain, under Article 6 § 1 of the Convention, that they did not have a fair trial before the Court of Appeal due to the fact that relevant additional material, in this case an additional legal submission and a supplementary police report, were withheld from them. They were also not informed of relevant negotiations, concerning the timetable of the proceedings, between the representative of the estate and the referendaire of the Court of Appeal .

2. In their reply of 25 March 2002 to the Government's observations, the applicants appear to complain that the police failed to carry out an adequate pre-trial investigation within a reasonable time concerning an alleged crime reported by them in 1994. They also appear to complain about the duration of a seizure of the first and second applicants' assets from February 1995 to September 1996, and about the fact that the seizure of relevant documentary material affected their trial in a negative manner and that a witness heard during the proceedings was not credible. Moreover, they complain that documentary material filed by the estate within the time-limit for the appeal was taken into account. (This complaint concerns material other than the above-mentioned complaint, which was communicated to the respondent Government). The applicants do not invoke any Articles of the Convention in this respect.

THE LAW

1. The applicants complain, under Article 6 § 1 of the Convention, about non-communication of additional material submitted by the opposing party to the Court of Appeal and that they were not informed of telephone discussions between the referendaire and the official receiver.

Article 6 § 1 provides, in relevant part:

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

The Government argue that the estate of CPT IS appealed against the District Court's judgment and invoked the relevant additional submissions only in respect of the second applicant. Thus, the submissions did not concern the first and the third applicant in any way. As to the second applicant, the Government observe, firstly, that according to the express wording of the decision of 23 December 1997 by the Court of Appeal, the said additional material was not taken into account in the judgment on the merits. Nor is there reason to question that statement. The referendaire's notes do not indicate that the material in question was taken into account, as they merely show that the material was thoroughly read with a view to assessing whether it should be taken into account. Nothing suggests that it had any bearing on the Court of Appeal's judgment. Secondly, the material in question was available to the parties on request, and the second applicant indeed did obtain it from the Court of Appeal. Thirdly, the second applicant had an opportunity to comment on the additional material when requesting leave to appeal from the Supreme Court. Article 6 § 1 of the Convention did not require that the second applicant be given the opportunity to comment on the additional material.

The Government argue that the fact that the applicants were not informed of the telephone conversations, between the official receiver and the referendaire of the Court of Appeal, concerning the submission of additional material, does not give reason to call into question the fairness of the trial. While it is apparent that the discussions related to the submission of the additional material and to its possible admission as evidence, the Government argue that they did not involve any information that should have been communicated to the other parties, and they did not have any relevance for the consideration of the case by the Court of Appeal. It appears indeed that the applicants have referred to the telephone calls mainly as showing that the Court of Appeal, at least preliminarily, considered that the additional material could affect the assessment of the case, but that issue has already been ruled out above. T he Government argue that the second applicant was able to participate properly in the proceedings and the telephone conversations did not deny him a fair hearing before the Court of Appeal.

All three applicants maintain that it is not credible that the Court of Appeal did not de facto take the additional submissions into account, in particular as the official receiver allegedly admitted that shortly before lodging the submissions in question he discussed some procedural issues with the referendaire , who had fixed a time-limit for lodging the submissions in question. Having received the submissions, the referendaire included a summary of them in his report to the judges. Eventually, the Court of Appeal decided the case in exactly the way requested by the estate in those submissions.

The applicants also allege that the submissions and the relevant part of the referendaire's report were withheld from them when they first asked for a copy of the public part of the report. They were given all the material only when they asked for it for the second time in July 1998.

The applicants argue that the mere fact that they were not given an opportunity to comment on the submissions amounted to a violation of Article 6 § 1 of the Convention.

The Court considers, in the light of the parties' submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. It concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

2. The applicants also complain, without invoking any provision of the Convention, about a failure by the police adequately to investigate an alleged offence, about an excessively lengthy seizure and the effect of this on their ability to defend themselves during the proceedings in issue and that a witness in those proceedings was not credible. Finally, they complain that documentary material filed by the estate within the time-limit was taken into account by the Court of Appeal.

(i) As to the complaint that the police have not carried out an adequate pre-trial investigation concerning an alleged offence reported by the applicants, the Court notes that neither the Convention nor its Protocols guarantee a right to have a pre-trial investigation carried out against a third party.

It follows that this complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.

(ii) As to the remainder of the complaints, the Court recalls that Article 35 § 1 of the Convention provides that it may only deal with a matter where it has been introduced within six months from the date of the final decision. It observes that the final domestic decision was given on 18 June 1998, whereas these complaints were raised on 25 March 2002.

It follows that these complaints have been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

For these reasons, the Court unanimously

Declares admissible the complaint concerning non-communication of the submissions filed after the time-limit for the appeal had elapsed and the fact that the applicants were not informed of discussions between the referendaire and the official receiver , without prejudging the merits of the case.

Declares inadmissible the remainder of the application.

Michael O'Boyle Nicolas Bratza Registrar President