FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 7274/02 by Jarmo Mikael ESKELINEN against Finland

The European Court of Human Rights (Fourth Section), sitting on 3 February 2004 as a Chamber composed of:

Sir Nicolas Bratza , President , Mr M. Pellonpää , Mrs V. Strážnická , Mr R. Maruste , Mr S. Pavlovschi , Mr L. Garlicki , Mr J. Borrego Borrego, judges , Mr M. O’Boyle , Section Registrar ,

Having regard to the above application lodged on 7 February 2002,

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 Jarmo Eskelinen, a lawyer by profession, is a Finnish national who was born in 1951 and lives in Hämeenlinna. He is not represented before the Court. The respondent Government are represented by their Agent, Mr A. Kosonen, Director in 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.

The applicant was appointed as liquidator in the winding up of a company. He acted with another lawyer who embezzled the company’s and other companies’ funds.

In criminal proceedings, eleven companies which were being wound-up claimed compensation for losses caused by the embezzlement. The embezzler was convicted and ordered to pay compensation for the damage he had caused, but was found to be insolvent.

The companies commenced actions for compensation against the law office for which the convicted lawyer had worked, against his fellow partners and against those lawyers who had acted as co-liquidators with him as well as against their law offices.

On 12 July 1996 the company in respect of which the applicant had been appointed as liquidator, commenced an action against him, among others, before the District Court of Lahti ( käräjäoikeus, tingsrätten ). The summons was served upon the applicant on 6 August 1996. He filed his submissions on 7 October 1996.

Due to the substantial connections between the actions, the District Court decided to deal with them jointly. Negotiations for a friendly settlement between the parties were held. At least as far as the applicant was concerned, they were fruitless.

The companies submitted additional written observations on 30 April 1997. At the same time, they commenced an additional action.

The District Court held three preparatory hearings, on 5 and 10 November and 8 December 1997. The main hearings were held on 10 to 12 and 15 December 1997. The District Court dismissed the action against the applicant on 6 February 1998.

The companies, among others, appealed. At the appellants’ request, the time-limit for submission of the letters of appeal was extended. The time-limit for submission of the observations in reply was accordingly automatically extended until 14 May 1998.

On 20 May 1999 the Kouvola Court of Appeal ( hovioikeus, hovrätten ) upheld without an oral hearing the District Court’s judgment as far as the applicant was concerned.

The companies’ applications for leave to appeal were submitted on 16 July 1999.

On 11 May 2000 the Supreme Court ( korkein oikeus, högsta domstolen ) granted leave to appeal and invited the applicant, amongst others, to submit observations in reply by 16 June 2000.

The case was examined by the Supreme Court during 7 sessions, on 10 and 11 October 2000, 10 November 2000, 8 and 9 February 2001 and 4 and 30 May 2001.

On 9 August 2001 the Supreme Court annulled the Court of Appeal’s judgment and found in favour of the companies, ordering the applicant and others jointly to pay damages, amounting to FIM 1,425,440 (EUR 239,742) with interest as from 6 August 1996, and legal expenses.

The applicant’s insurance covered FIM 1,055,170 (EUR 177,467) and he paid FIM 510,749 (EUR 85,902) from his own funds.

B. Relevant domestic law

Under chapter 16, section 4 of the Judicial Procedure Code ( oikeudenkäymiskaari, rättegångsbalken ), as in force until 1 October 1997, a court was to adjourn criminal proceedings on request, for example if a party wished to adduce further evidence and the court was satisfied there was a good reason for the adjournment. The court could not adjourn criminal proceedings of its own motion save for special reasons. Where the defendant in criminal proceedings was in detention, under a travel-ban or disqualified from holding  office, a case could not be adjourned for more than two weeks save for carrying out a mental examination of the defendant. If a party considered that the proceedings had been unjustifiably delayed, a procedural complaint ( kantelu, klagan ) could be lodged with the court of appeal within 30 days from the date of adjournment.

COMPLAINTS

1. The applicant complains, under Article 6 of the Convention, that the Supreme Court did not invite his submissions concerning the question from which date interest should be payable. It should have ordered him to pay interest only from 6 August 1996 until 6 February 1998 and again from 9 August 2001 onwards. Since the lower instances had found against the plaintiff, the applicant had not been required to pay anything before the Supreme Court’s judgment was issued.

2. The applicant also complains, under Article 6 of the Convention, about the excessive length of the proceedings. Had the proceedings been speedier, his insurance would have sufficed to cover all damages.

3. Finally the applicant complains, under Article 6 of the Convention in conjunction with Article 1 of Protocol No. 1 to the Convention, that the domestic courts’ divergent conclusions and the duration of the proceedings violated his property rights.

THE LAW

The applicant complains about the length of civil proceedings, about the fact that the Supreme Court did not invite his submissions concerning the question from which date the interest should be payable and about the outcome of the proceedings relating to the obligation to pay interest. He invokes Article 6 of the Convention taken alone and read in conjunction with Article 1 of Protocol No. 1 to the Convention.

A. Article 6 of the Convention

Article 6 provides, in relevant part:

“1. In the determination of his civil rights and obligations ..., everyone is entitled to a fair and public hearing within a reasonable time by [a] ... tribunal ... “

1. The length of the proceedings

a) Exhaustion of domestic remedies

The Government allege that the applicant has failed to exhaust domestic remedies as required by Article 35 § 1 of the Convention in that he did not make a complaint about any unnecessary adjournment to the Court of Appeal under chapter 16, section 4 of the Judicial Procedure Code, as in force at the relevant time. They also argue that the applicant neither objected to any adjournment in the District Court proceedings, nor invoked the length of the proceedings before the higher courts.

The applicant argues that no effective remedy existed for the purposes of Article 35 § 1, as the provision of the Judicial Procedure Code applied only to criminal proceedings before the District Court. He also rejects the Government’s argument that he did not protest before the domestic courts against the length of the proceedings. He points out that in his submissions he drew the higher courts’ attention to the delay in connection with commenting on the obligation to pay interest.

Leaving aside the question whether the afore-mentioned provision of the Judicial Procedure Code applied to civil cases, the Court notes that it must be determined whether the means available to the applicant in the  provision for raising a complaint about the length of proceedings in his case would have been “effective” in the sense either of preventing the alleged violation or its continuation, or of providing adequate redress for any violation that had already occurred. The Court observes that the Government have failed to show how the applicant could have obtained relief by having recourse to the above-mentioned remedy. The Government have not supplied any example from domestic practice showing that, by using the means in question, it was possible for the applicant to obtain such relief. The Court recalls that this is in itself sufficient to demonstrate that the remedy referred to does not meet the standard of effectiveness of a remedy, as the required remedy must be effective both in law and in practice (see Kangasluoma v. Finland , no. 48339/99, §§ 47-48, judgment of 20 January 2004). The Court therefore concludes that no remedy was available in the present case.

The Court also observes that the Supreme Court had in its possession all the information it needed to address the reasonableness of the duration of the proceedings in the applicant’s case. In these circumstances, notwithstanding the fact that the applicant did not make an explicit request to expedite the proceedings, the Supreme Court cannot be said to have been denied the opportunity which the rule of exhaustion of domestic remedies is designed to afford to States, namely to put right the violations alleged against them before those allegations are submitted to the Court (see among other authorities, Selmouni v. France [GC], no. 25803/94, § 74, ECHR 1999-V).

It follows that the complaint about the length of proceedings cannot be rejected for failure to exhaust domestic remedies under Article 35 § 1 of the Convention.

b) The substantive complaint

The Government submit that the proceedings began on 6 August 1997, when the summons was served upon the applicant and ended on 9 August 2001, when the Supreme Court gave its decision. They point out that the case was complex and extensive and included a total of 21 parties. Many witnesses were heard, a large number of documents were submitted as evidence and the courts had recourse to no less than four expert opinions. The case file consisted of over 7,000 pages, while the District Court’s decision ran to 273 pages and the Supreme Court’s decision to 91 pages. The case was also complex as to the law and it was reviewed as a whole before the Supreme Court. The case became a precedent (KKO 2001:70).

As to the conduct of the parties, the Government submit that friendly settlement negotiations were going on when the case was pending before the District Court. The companies in question submitted additional written observations and commenced an additional action on 30 April 1997. At the parties’ request, the time-limits for lodging the appeal documents and the observations in reply with the Court of Appeal were extended. The applicant was granted the longest extension, namely one month. The applicant at no point requested that the proceedings be expedited or objected to the requests for adjournment made by the other parties. The conduct of the parties affected the length of the proceedings.

As to the conduct of the courts, the Government argue that the examination before the District Court and the Court of Appeal was carried out without undue delay, their proceedings lasting one year and six months and one year three months 14 days, respectively. The examination of this complex and extensive case before the Supreme Court lasted two years, two months and 20 days, which was only six months longer than the average.

As to what was at stake for the applicant, the Government argue that the applicant was not arrested. Nor was he subjected to any coercive measures.

The applicant submits that the date that should be considered as marking the beginning of the proceedings was 12 July 1996, when the action was commenced before the District Court. The action against him was not, in his view, complex.

As to the conduct of the parties, the applicant points out that the negotiations for a friendly settlement mainly concerned the other parties, as at the beginning of the negotiations it had already become clear that the company, in respect of which he had been appointed liquidator, was not going to withdraw any of its claims and that his insurance company for its part was not going to pay compensation voluntarily.

As to the conduct of the courts, the applicant argues that the handling of his case was delayed due to the joint examination. He contests the Government’s allegation that he requested an extension of a time-limit in the Court of Appeal, claiming that it was granted automatically.

As to what was at stake, the applicant submits that the procedure before the domestic courts had a burdensome effect on his property rights.

The Court considers that the period to be taken into consideration began on 12 July 1996, when the action was instituted before the District Court and ended on 9 August 2001, when the Supreme Court pronounced judgment. This amounts to a total length of five years and 28 days.

The Court reiterates that the reasonableness of the length of the proceedings must be assessed in the light of the circumstances of the case and with reference to the criteria established by its case-law, particularly the complexity of the case, the conduct of the applicant and of the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Humen v. Poland [GC], no. 26614/95, § 60, 15 October 1999).

The Court observes that the applicant’s case was examined jointly with a number of other compensation claims arising from the same circumstances.  The Court is satisfied that the claims had a substantial connection and that the issues as to joint liability needed to be decided at the same time. The Court observes that the cases were complex on the facts and that the fact that they were inter-related added to the procedural complexity.

As regards the conduct of the parties, the Court first notes that it is not in dispute that the parties entered into negotiations in order to reach a friendly settlement. It follows from the joint examination that the negotiations between the other parties automatically affected the handling of the applicant’s case. The Court rejects the Government’s argument that the applicant bore some other responsibility for the length of the proceedings, as nothing suggests that the delays in the proceedings were attributable to him.

As to the conduct of the authorities, the Court is satisfied that the decision on joint examination was well-founded. This being the case, no criticism can be directed against the District Court as to the delay arising from the decision to join the cases. The examination of the claims before the District Court involved a number of preliminary hearings before the first full merits hearing could take place. The claims became pending before the Court of Appeal on 14 May 1998 and the court pronounced judgment on 20 May 1999. The Court does not find any significant period of inactivity attributable to the lower courts.

However, the Court considers that an issue may arise with regard to the duration of the proceedings - over two years - before the Supreme Court. The case became pending on 16 July 1999 and leave to appeal was granted on 11 May 2000. Once leave to appeal had been granted, the parties submitted written observations. The Court observes that the case was examined during seven sessions during the period October 2000-May 2001. Judgment was pronounced on 9 August 2001.

The Court observes that the position under the relevant national law was unclear, as demonstrated by the divergent conclusions of the domestic courts. In this respect the Court notes that the Supreme Court’s chief responsibility was to elaborate jurisprudence and to provide guidance where the legal situation was unclear.

The impugned proceedings were completed within five years and 28 days and involved no less than three judicial levels. The Court cannot detect any significant period of inactivity for which the authorities could be held responsible. As the legal situation was unclear, the Court does not find that the delay could warrant the conclusion that the procedure, seen as a whole, notwithstanding what was at stake, exceeded a reasonable time (see Kroenitz v. Poland , no. 77746/01, § 22, 25 February 2003).

It follows that the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected in accordance with Article 35 § 4.

2. Other complaints under Article 6

1. The applicant complains that the Supreme Court did not invite his submissions on the obligation to pay interest. He also complains about the outcome of the proceedings as far as the interest was concerned.

The Court observes that according to the applicant’s observations in reply of 20 November 2003 to this Court, he commented on the question concerning the obligation to pay interest both in his submissions to the Court of Appeal and the Supreme Court, as is also evident from the judgments in question. The Court therefore finds no indication that Article 6 was violated in this respect.

As to the complaint about the outcome of the proceedings, the Court recalls that, in accordance with Article 19 of the Convention, its task is to ensure the observance of the obligations undertaken by the Parties in the Convention. In particular, it is not its function 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 rights and freedoms set out in the Convention. The Court refers on this point to its established case-law (see Schenk v. Switzerland , judgment of 12 July 1988, Series A no. 140, p. 25, § 45).

It follows that these complaints must be rejected as being manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and rejected in accordance with Article 35 § 4.

2. In his reply of 20 November 2003 to the Government’s observations the applicant appears to complain, without invoking any Article, that the Supreme Court overturned the lower courts’ judgments without an oral hearing, which meant that he was not able to draw the Supreme Court’s attention to the results of such a judgment.

The Court finds that the final domestic decision within the meaning of Article 35 § 1 of the Convention was given on 9 August 2001, more than six months before the date on which the applicant raised before this Court the complaint concerning the lack of an oral hearing before the Supreme Court.

Accordingly, the complaint has been submitted too late and must be rejected in accordance with Article 35 § 4 of the Convention.

B. Article 6 of the Convention read in conjunction with Article 1 of Protocol No. 1 to the Convention

The applicant complains under Article 6 of the Convention read in conjunction with Article 1 of Protocol No. 1 to the Convention that the domestic courts’ divergent conclusions and the duration of the proceedings violated his property rights.

Article 1 of Protocol No. 1 provides:

“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 preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

The Court refers to its reasoning above where it found that the length of the proceedings was not unreasonable and recalls that domestic court regulation of property disputes according to domestic law does not, by itself, raise any issues under Article 1 of Protocol No. 1 to the Convention. It finds no indication in the present case that the duration, or the divergent conclusions of the domestic courts, interfered with the applicant’s property rights contrary to Article 1 of Protocol No. 1, either taken alone or read in conjunction with Article 6 of the Convention.

It follows that this complaint is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected in accordance with Article 35 § 4.

For these reasons, the Court unanimously

Declares the application inadmissible.

Michael O’Boyle Nicolas Bratza Registrar President