FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 40847/98

by Eero TAMMINEN

against Finland

The European Court of Human Rights ( Fourth Section) , sitting on 23 September 2003 as a Chamber composed of

Sir Nicolas Bratza , President , Mr M. Pellonpää , Mr M. Fischbach , Mr J. Casadevall , Mr S. Pavlovschi , Mr J. Borrego Borrego , Mrs E. Fura-Sandström, judges , and Mr M. O’Boyle , Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 17 April 1998,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

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, Eero Tamminen, is a Finnish national , born in 1947 and living in Helsinki. He is represented before the Court by Mr Pertti Virolainen, a lawyer practising in Helsinki. The respondent Government are represented by their Agent, Mr Arto Kosonen, Director, 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.

In 1987 the applicant founded a company called “Oy Finnish Options and Futures Exchanges Ltd” (hereinafter “FOFE”).

FOFE went into liquidation on 12 August 1993 and was finally dissolved on 16 May 1994.

In the liquidation proceedings the applicant filed his claim against the estate, claiming 1,106,715 Finnish marks (FIM; approximately EUR 186,000), added by interest, of unpaid salaries and other claims related to his employment contract with FOFE. As the estate contested most of the applicant’s claims, the parties instituted civil proceedings against each other before the District Court ( käräjäoikeus, tingsrätt ) of Helsinki. The estate of FOFE argued that the applicant had not been an employee of the company but had rather had an executive position as he had owned all its shares, and insisted that the applicant be ordered to reimburse to the estate certain assets he had allegedly transferred from the company to himself before the company was dissolved. The claims made by the parties against each other were jointly considered by the District Court.

It appears that at least one of the main issues in the civil proceedings was whether the applicant had been in an executive position in the company or not.

During a preparatory hearing at the District Court, on 15 August 1995, the representatives of FOFE named, inter alia , Mr J.S., President of the Board of Directors of FOFE, Mr S.L. and Mr A.P., both former members of FOFE’s Board of Directors and Mr A.P. also its former Executive Director, to witness on their behalf. The applicant named Mr J.N, former Managing Director of FOFE, the above-mentioned Mr J.S., and Mr E.S., to be heard as his witnesses concerning his position in the company.

In his written observations of 26 September 1995 to the District Court in respect of the estate’s claims the applicant stated, inter alia , as follows:

“The estate of FOFE has called Mr S.L. and Mr A.P., both of whom were members of its Board of Directors and the latter one also its Executive Director, to give evidence. We will also hear them in respect of exactly the same issues as we will examine Mr J.S.

With the support of the above-mentioned witnesses we will prove that [the applicant] has not had any close connections with FOFE since he resigned from its Board of Directors on 3 June 1992, and that he has had no decisive position in the company.”

At another preparatory hearing, on 4 October 1995, FOFE repeated that they would call A.P. as a witness. The applicant named the witnesses he had named on 15 August 1995 and further named Mr M.S. who would tell about the applicant’s tasks. The District Court decided on the same day that A.P. would be summoned by the court ex officio .

At yet another preparatory hearing in the case, in the morning of 11 October 1995, FOFE repeated their intention to hear A.P. as their witness. According to the District Court’s minutes from that last preparatory hearing the applicant had named four witnesses, namely Mr J.N., Mr J.S., Mr E.S. and Mr M.S. Witness Mr A.P. was mentioned in the list of the adverse party’s witnesses only.

Thereafter the District Court decided that the preparatory stage of the proceedings had ended and that the main hearing would be held that same day at ten o’clock. According to the Code of Judicial Procedure ( oikeudenkäymiskaari, rättegångsbalk ), all the witnesses must be named by the parties at the preparatory stage of the proceedings in order to prevent any surprise witnesses at a later stage of the proceedings.

A.P. failed to appear before the District Court on 11 October 1995, having informed the court in advance that he would be in Estonia at the time of the hearing and would not be available until 26 and 27 October 1995. The estate of FOFE withdrew their request to call A.P. as a witness. Thereupon the applicant appointed A.P. as a witness on his behalf and requested that the main hearing be adjourned until 27 October 1995. The District Court rejected the applicant’s request, holding, in the light of the other evidence, that the hearing of A.P. was not likely to be of assistance for discovering the truth. The District Court’s decision was repeated in its judgment delivered on 26 October 1995, in which it was found that the applicant had not been an employee but rather had occupied a leading position in FOFE. Most of the applicant’s claims were rejected, with the exception of FIM 300,000 (approximately EUR 50,000) for unpaid salaries. The applicant was, inter alia , ordered to refund FIM 1,191,425 (approximately EUR 200,000) to FOFE in compensation for the assets he had transferred from the company. He was also ordered to pay FIM 137,242,18 (approximately EUR 23,000) in compensation for FOFE’s legal fees and expenses.

On 27 November 1995 the applicant appealed to the Court of Appeal ( hovioikeus, hovrätt ), requesting an oral hearing and calling A.P. as his witness. He argued that the hearing of A.P. as a former Executive Director of FOFE would be necessary for ascertaining the truth in respect of the applicant’s status in the company. He noted that A.P. had informed the District Court of his journey to Estonia at the time of the hearing but had simultaneously given the dates when he would be available. A.P. had been summoned by phone to appear before the District Court only a few days before the hearing of 11 October 1995. It had been impossible for him to cancel his business meeting in Estonia at such short notice. The applicant alleged that his request to adjourn the hearing in order to call A.P. as a witness had been inconvenient for the presiding judge of the District Court in respect of the timetable for the drafting of the decision. The hearing of A.P. was even more important at this stage as the District Court had not found the statement of J.S. to be credible in every aspect. If the court had heard A.P., who would have confirmed that the applicant had not been in any decisive position in FOFE, it would have been difficult for the District Court to decide as it did.

The Court of Appeal upheld the District Court’s decision on 20 February 1997, rejecting the applicant’s request to hold an oral hearing. The Court of Appeal stated as follows:

“...[The applicant] has called nine witnesses before the Court of Appeal. In so far as he has called Mr A.P., the Court of Appeal notes that A.P. had been appointed as a witness in the District Court only during the main hearing. According to Chapter 6, Section 9, of the Code of Judicial Procedure a party must not , in a case amenable to settlement, adduce a circumstance or evidence that he has not adduced in the preparation of the case, unless he establishes a probability that he had a valid reason for not doing so. [The applicant] has not established such a valid reason for appointing A.P. as a witness only at the main hearing. Thus, the appointment of A.P. as a witness must be regarded as if it had only taken place during the Court of Appeal proceedings. In so far as new witnesses have been appointed and new evidence appearing in the annexes to the applicant’s letter of appeal has been invoked, [the applicant] has not established a probability that he was unable to adduce the circumstance or evidence in the District Court or that he had a justifiable reason for not doing so. ... No such reason has been established in respect of the written submissions and their annexes submitted by the parties to the Court of Appeal after the relevant time-limit had elapsed, excluding the parts concerning the proposed stay of execution. In accordance with Chapter 25, Section 14, subsection 2, and Section 20, subsection 2, as well as Chapter 26, Section 5, of the Code of Judicial Procedure, the Court of Appeal leaves the submissions and their annexes unexamined, excluding the request concerning stay of execution, and rejects [the applicant’s] request to hold an oral hearing. Thus also the request to return the case to the District Court is rejected as being unnecessary.”

The applicant applied to the Supreme Court ( korkein oikeus, högsta domstolen ) for leave to appeal, noting that the District Court had refused to call A.P. as a witness because it had found that it was unnecessary in the light of the other evidence invoked. The District Court had, thus, found that the applicant had not been prevented from calling him had the hearing of his evidence been necessary. The Court of Appeal had, however, found that the applicant had appointed A.P. as his witness only at a stage of the proceedings when he was already precluded from doing so, i.e. at the main hearing. The applicant had, however, appointed A.P. as his witness already in a preparatory meeting on 15 August 1995 and repeated the request on 26 September 1995 in his written observations to the District Court. He had also had a relevant reason to request that A.P. be heard as the estate of FOFE ‑ which had originally called A.P. as a witness ‑ had withdrawn their request only at the main hearing. A.P. had been the Executive Director of FOFE and, as such, was in the best position to give a statement of the applicant’s position in the company for the period from 28 October 1992 until the insolvency proceedings. Therefore the applicant found it very important that the Supreme Court would hear A.P. as a witness or, alternatively, return the case to a lower court in order to hear the witness.

On 22 October 1997 the Supreme Court refused the applicant leave to appeal.

B. Relevant domestic law and practice

According to Chapter 5, Section 19 (1052/1991) of the Code of Judicial Procedure, the evidence that is going to be presented and what is intended to be proved with each piece of evidence, must be determined during the preparation of the hearing. This means that the parties must, by the preparatory hearing, name all those persons whom they wish to call as witnesses in the main hearing.

According to Chapter 6, Section 9, provides that a party must not in the main hearing adduce a circumstance or evidence that he has not adduced in the preparation, unless he establishes a probability that he had a valid reason for not doing so. Should the party show a valid reason, however, he may adduce the new circumstance or piece of evidence in the main hearing irrespective of the provisions of Chapter 6, Section 9 of the Code of Judicial Procedure.

The purpose of the provisions of Chapter 6, Section 9 is to ensure compliance with the fair trial requirements. It is a requirement of a fair trial that the adverse party is informed beforehand of each piece of evidence (including witnesses) to be presented in the main hearing.

There are separate provisions concerning the submission of new evidence before a Court of Appeal in Chapter 25, Section 17 of the Code of Judicial Procedure. Before the entry into force of the Act amending the Code of Judicial Procedure (165/1998) the said provisions were contained in Chapter 25, Section 14, subsection 2 (1052/1991). According to these provisions, in a civil case, the appellant shall not in the Court of Appeal refer to other circumstances or evidence than those presented in the District Court, unless he establishes a probability that he was not able to refer to the circumstance or evidence in the district court or that he had a justifiable reason for not doing so.

Even if a party to the proceedings, under Chapter 5, Section 19 of the Code of Judicial Procedure, has named his witnesses in the preparatory hearing, or had a valid reason for not invoking a certain circumstance or piece of evidence before the main hearing or the court of appeal hearing, the court may refuse to examine such a circumstance or piece of evidence as it considers clearly unnecessary. According to Chapter 17, Section 7 (571/1948)of the Code of Judicial Procedure, if a piece of evidence that a party wishes to present pertains to a fact that is not material to the case or that has already been proven, or if the fact can be proven in another manner with considerably less inconvenience or cost, the court shall not admit this piece of evidence.

Chapter 5, Section 17 (1052/1991) of the Code of Judicial Procedure provides that the court shall conduct the preparation in such a manner that the case can be dealt with in a continuous main hearing. The aim of this provision is to avoid adjournments of the main hearing.

Chapter 17, Section 26, subsection 3 (1056/1991) provides that the court shall see to the calling of witnesses to court, unless this has been entrusted to a party in accordance with Chapter 11, Section 2, according to which, on the request of a party, the court may in a civil case entrust the service of a notice to the party, if it deems there to be justified grounds for this.

COMPLAINT

The applicant complains, under Article 6 § 1 of the Convention, that he did not have a fair trial as the domestic courts refused an examination of a witness called by the applicant even though they had no legal basis for such a refusal and the proposed evidence would have been important to prove the applicant’s case. The Court of Appeal’s finding that the applicant had not appointed a witness within the relevant time-limit was arbitrary as he had clearly done so already at the very beginning of the proceedings.

THE LAW

The applicant complains that he did not have a fair trial as the domestic courts refused the examination of a witness, Mr A.P.,  called by the applicant even though they had no legal basis for such a refusal and the proposed evidence would have been important to prove the applicant’s case. The Court of Appeal’s finding that the applicant had not appointed Mr A.P. as a witness within the relevant time-limit was arbitrary as he had clearly done so already at the very beginning of the District Court proceedings. He invokes Article 6 § 1 of the Convention which reads, insofar as relevant, as follows:

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

The Government contest the applicant’s allegations. They note there is no explicit provision in the Convention concerning the right to obtain the attendance and examination of witnesses in civil proceedings, as is the case under Article 6 § 3 (d) concerning criminal proceedings. Moreover, the admissibility of evidence and related questions are primarily matters for regulation by national law and it is in principle for the national courts to assess the evidence before them.

The Government observe that the applicant failed to name A.P. as his witness until the main hearing before the District Court. His wish to name the witness in the main hearing as well as to have the main hearing adjourned in order to hear this witness was rejected by the District Court. The Court of Appeal found in its judgment that the applicant had not presented a valid reason for not naming A.P. as a witness before the District Court until in the main hearing. Thus, in the view of the Court of Appeal, the applicant did not properly name him as a witness until the proceedings in that court. Because the applicant had not established any probability that he had a justifiable reason for not naming the witness already before the District Court, the Court of Appeal, by virtue of the then Chapter 25, Section 14, subsection 2 of the Code of Judicial Procedure (existing Chapter 25, section 17, subsection 1), denied the applicant’s request to name A.P. as a witness before the Court of Appeal.

The Government recall that civil proceedings are conducted in two parts, namely the preparatory hearing and the main hearing. During the preparatory hearing all undisputed and disputed facts are listed in the minutes. Moreover, all the evidence is listed, including the naming of all witnesses. The parties’ evidence is listed separately. This aims at keeping the main hearing concentrated and swift as no new evidence nor any adjournments are permitted, unless there are exceptional reasons. The Government note that neither the applicant nor his legal counsel made any objections to the contents of the minutes of the preparatory hearings, held on 15 August, 4 October 1995 and 11 October 1995, which minutes they admitted they had received. According to these minutes of the preparatory hearings, the applicant had named altogether four witnesses on the subject. The Government emphasise that one of these witnesses, J.S., had been named by both the applicant’s adverse party and the applicant himself, i.e. contrary to the situation with respect to A.P., whom only the applicant’s adverse party had named as a witness.

The Government note that the applicant was all the time represented by a legal counsel both in the preparatory hearing and in the main hearing. Moreover, the applicant himself is a lawyer with judicial experience. Indeed, the Government cannot be considered responsible under Article 6 § 1 for the failure of the applicant or his legal counsel to name a particular witness (see, mutatis mutandis, e.g. Eur. Comm. H.R. inadmissibility decision of 14 July 1970 in the case of X v. FRG, No. 4078/1969, 35 Collections of Decisions (CD), Vol. 35, pp. 125; concerning Article 6(3) (d) of the Convention; see also Eur. Comm. H.R. inadmissibility decision of 14 October 1992 in the case of W.W. v. the United Kingdom. Application No. 18123/91) in the manner required by national law.

The fact that the District Court called A.P. ex officio to the main hearing has no relevance in this connection. According to Chapter 17, section 26, subsection 3 of the Code of Judicial Procedure, the presumption is that witnesses are summoned by the court (see section 2.2. above), even though in practice the parties to civil proceedings often call their own witnesses.

The Government note also that the naming of a witness entails responsibility for reimbursing the costs of the witness, which is also a relevant factor. Consequently, had the applicant named witness A.P., he would have also been partly liable for the costs. The question of the need to call the witness and of the application of the provisions of the Code of Judicial Procedure was decided in accordance with the national law and within the limits of the courts’ discretionary powers.

The applicant argues that he had named Mr A.P. as his witness already during the preparatory hearing at the District Court and that, thus, the Government’s arguments are false. Mr A.P. was not heard before the domestic courts only because the domestic authorities failed to fulfil their duties.

The applicant emphasises that he named Mr A.P. as his witness in his written statement of 26 September 1995 by stating that also he wished to hear Mr A.P. as a witness. He also informed the court of what he intended to prove with this witness. However, the witness failed to appear before the court on 11 October 1995 as he had informed the court that he was unavailable because of a business journey he could not postpone at such short notice. Both the minutes of the District Court and the District Court’s decision show that the estate had informed the court of its decision to waive its right to hear Mr A.P. who had failed to appear before the court. In that connection the applicant’s counsel had also requested that Mr A.P. be heard on the matter and that the hearing be adjourned until a certain date in order to do so. The District Court refused to do so, reasoning that there was no need to hear Mr A.P., taking into account all the other evidence already submitted to the court. It is, thus, clear that the District Court did not refuse to hear Mr A.P. as a witness because he had not been properly called to give evidence.

The applicant notes that if the proposed evidence was invoked in time in the District Court, he could not be prevented from adducing that evidence in the Court of Appeal. The fact that the District Court had refused to hear the witness on another ground, i.e. on the ground that the proposed evidence was assessed to be unnecessary under the circumstances, has no relevance for the matter.

The applicant emphasises that the documentation of the case shows that the applicant’s opposing party had originally called Mr A.P. to give evidence as its witness, and that it later waived that right. The same desire to hear Mr A.P. was expressed both orally and in writing by the applicant as well at an early stage of the proceedings. Thus, his right to hear Mr A.P. was not precluded in the District Court. In any event, the fact that the naming party had waived, at a later stage of the proceedings, its right to hear Mr A.P. provides the applicant with a valid reason, within the meaning of Chapter 6, Section 9 of the Code of Judicial Procedure, to call the relevant witness still at that stage of the proceedings, i.e. during the main hearing. It is not contested by the Government that the applicant had done that also at that stage.

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. The Court 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.

For these reasons, the Court unanimously

Declares the application admissible, without prejudging the merits of the case.

Michael O’Boyle Nicolas Bratza Registrar President