FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 37801/97 by Kersti Hannele SUOMINEN against Finland

The European Court of Human Rights, sitting on 26 February 2002 as a Chamber composed of

Sir Nicolas Bratza , President , Mr M. Pellonpää , Mr A. Pastor Ridruejo , Mrs E. Palm , Mr J. Makarczyk , Mr J. Casadevall , Mr S. Pavlovschi , judges , and Mr M. O’Boyle , Section Registrar ,

Having regard to the above application lodged with the European Commission of Human Rights on 17 April 1997,

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, Kersti Hannele Suominen, is a Finnish national, who was born in 1942 and lives in Forssa . She is represented before the Court by Mr Pauli Alankoja, a lawyer practising in Turku. The respondent Government are represented by their Agents, Mr Holger Rotkirch, Director General for Legal Affairs, and 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.

The applicant was the owner and managing director of company X. Between 26 June 1991 and 16 February 1993 she had made arrangements with a bank to finance her company.

In the spring of 1993 the bank refused to grant any more loans and made a request that part of the existing loans be paid back.

On 24 February 1995 the bank instituted civil proceedings against the applicant before the District Court ( käräjäoikeus , tingsrätten ) of Pori , seeking the return of loans made to her .

The applicant received an invitation dated 2 January 1996 to the preparatory hearing at the District Court. The purpose of the preparatory hearing was explained in the invitation, which indicated that the applicant had to list all the evidence she intended to present and what she intended to prove with each piece of evidence. She was also advised to present all the written evidence invoked.

The preparatory hearing was held on 25 January 1996. According to the applicant, she was prepared to hand in all the documents she wanted to submit as evidence. The presiding judge admitted only two of the documents and a list on which all the documents were listed. The applicant was allegedly told that the remaining evidence could be presented at the main hearing.

The main hearing was held on 8 February 1996. According to the applicant, she was denied the possibility to present the other evidence listed, because she had not submitted those documents earlier at the preparatory hearing. This is not mentioned in the minutes of the District Court.

On 15 February 1996 the District Court gave its judgment , accepting the bank’s claims. The applicant’s property was distrained . The applicant appealed to the Court of Appeal ( hovioikeus , hovrätten ) of Turku , requesting an oral hearing or that the case be referred to the District Court. On 3 October 1996 the Court of Appeal refused the applicant’s claims and upheld the District Court’s judgment . The Court of Appeal reasoned that the applicant had not shown it to be probable that she had not been allowed, or had been unable, to invoke all evidence in the District Court. There was thus no reason to accept the documents which she had submitted to the Court of Appeal.

On 18 March 1997, the Supreme Court ( korkein oikeus , högsta domstolen ) refused the applicant leave to appeal.

The applicant did not have legal counsel until seeking leave to appeal to the Supreme Court.

B. Relevant domestic law

According to Chapter 5, section 10, paragraphs 1 and 3, of the Code of Judicial Procedure (1052/1991, oikeudenkäymiskaari , rättegångsbalken ), the defendant must be exhorted to list, as far as possible, the evidence he intends to present and what is intended to be proved with each piece of evidence, and to state the postal addresses and telephone numbers of witnesses and other persons to be heard already in the summons.

According to Chapter 5, section 19, paragraph 3, 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 in the preparatory hearing of the civil proceedings.

According to Chapter 5, section 21, paragraph 1, of the Code of Judicial Procedure, in the preparation [of the case] a party must without delay present his claims and the grounds for them and express his opinion on what the opposing party has presented. In addition, he must list all the evidence he intends to present and what is intended to be proved with each piece of evidence. He must also present all the written evidence invoked.

According to the Government Bill for the amendment of the Code of Judicial Procedure (HE 15/1990) the purpose of the preparation of a case is to

“establish the claims of the parties to the proceedings and the grounds on which they are based, as well as the issues on which the parties disagree . The preparation should also establish what evidence the parties are going to present, what is intended to be proved with each piece of evidence and whether there are possibilities to reach a friendly settlement. [...] The court should declare the preparation terminated as soon as the claims of the parties and the issues on which they disagree have been established, [and] when the pieces of evidence to be presented have been listed ...”

Furthermore, according to the Government Bill

“a decision should already be made in the preparation as to what particular pieces of evidence shall not be admitted in the main hearing by virtue of Chapter 17, section 7.”

According to Chapter 6, section 9 of the Code of Judicial Procedure in a case amenable to settlement a party must not in the main hearing invoke a circumstance or evidence that he has not invoked in the preparation [of the case], unless he establishes a probability that he had a valid reason for not doing so.

According to Chapter 17, section 7 of the Code of Judicial Procedure (571/1948) 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 may not admit this piece of evidence.

A ccording to Chapter 25, section 14, paragraph 2, of the Code of Judicial Procedure (1052/1991), as in force at the relevant time, in case the appellant wishes to present new evidence in support of his appeal, he must inform the court of such evidence and must also mention which facts he intends to prove with the new evidence, and give the reasons for not having presented the evidence earlier. A comparable provision has been included in section 17 (1) (165/1998) of the existing Chapter 25 of the Code of Judicial Procedure.

COMPLAINTS

1. The applicant complained, under Article 6 § 1 of the Convention, that she did not receive a fair hearing as she was prevented from presenting all the evidence she wanted to present. The District Court refused to admit the evidence, although it had made a decision to the contrary at the preparatory hearing.

2. The applicant also complained, under Article 6 § 1 of the Convention, about the lack of an oral hearing as the Court of Appeal did not hold such a hearing or refer the case back to the District Court for a re-hearing.

THE LAW

1. The applicant complained, under Article 6 § 1 of the Convention, that she did not receive a fair hearing as she was not allowed to present all the evidence she wanted to present. Article 6 § 1 of the Convention reads, in so far 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 emphasised that the applicant was informed about the proceedings at the preparatory hearing in the invitation to the hearing. This is also evident from the applicant’s application as she mentions that she had copied all the documents she wanted to submit as evidence at the preparatory hearing. The judge admitted, however, only two of the documents. It is important to note that in the invitation the applicant was advised to list and present all the written evidence invoked as required in the Code of Judicial Procedure, and that is what the applicant did. The applicant had prepared a list of all the documents she wanted to present, including the information on what she intended to prove with each piece of evidence. The judge admitted the list. Furthermore, neither the domestic law nor the invitation state that the court will admit all the evidence presented. In the present case the judge admitted the list of evidence prepared by the applicant.

The Government noted that in her appeal to the Court of Appeal the applicant stated that “the court imposed no restrictions on the submission of written evidence but, on the contrary, the district judge relied on my memorandum, i.e. the list of evidence, when making his own notes. ... I was surprised by the fact that the court only admitted two of the documents I presented as evidence...” In her appeal to the Court of Appeal she also admitted that she was allowed to speak and say a few words of her own evidence in the preparatory hearing.

The applicant’s contention according to which she was told at the preparatory hearing that the remaining evidence could be presented at the main hearing must be based on a misunderstanding. There is no legal basis for this kind of procedure, nor is there any indication of such an advice in the minutes of the preparatory hearing.

The Government further observed that the judge of the preparatory hearing knew what evidence the applicant wished to present and what she intended to prove with that evidence. The District Court admitted the list of evidence as well as two pieces of the written evidence presented as such. Furthermore, at the main hearing the District Court knew what the applicant wanted to present as evidence and what she intended to prove with each piece of evidence. The District Court assessed which pieces of evidence were relevant for the consideration of the bank’s claims.

The Government noted that the evidence which, contrary to the applicant’s wishes, was not admitted had no relevance to the decision in the case. This consisted of, first, evidence concerning issues which the applicant did not challenge at the District Court. As the applicant had admitted in the District Court, the debts mentioned in the bank’s claims had become due for payment and had not been paid. She had also admitted the securities given in respect of her loans. Secondly, any evidence meant to prove the loss allegedly suffered by the applicant in consequence of the plaintiff’s measures should have been presented in a separate counteraction as it was not evidence challenging the evidence submitted by the plaintiff for the consideration of the claims at issue. Thirdly, part of the evidence was not decisive for the case concerning the recovery of debts. Under Chapter 17, section 7 of the Code of Judicial Procedure the court may not admit irrelevant evidence. The fact that part of the evidence was irrelevant could be seen in the applicant’s appeal to the Court of Appeal were she had specified what she wished to prove by each piece of evidence in the preparatory hearing of the District Court. With part of the evidence she wished to prove what was meant by good banking practice and how the plaintiff bank advertised its services, and to prove that she had been deprived of all the membership benefits of the bank and that she had been treated in a manner that was contrary to good banking practice. With some pieces of evidence she wished to prove that the bank manager was biased because of his business contacts, and with other evidence again that the bank admitted the existence of an agreement on the rearrangement of loans at the end of the loan period.

The Government further observed that in her appeal to the Court of Appeal the applicant demanded that the Court of Appeal allow her “to present [her] evidence [-] in a manner and to the extent that she finds it appropriate”. She further required that the Court of Appeal admit her evidence and make an overall assessment of the situation when deciding on the case. The applicant also demanded that the Court of Appeal allow her to present complete calculations of losses suffered and the grounds for those calculations. Once the Court of Appeal had received all the documents relating to the case, including the applicant’s list of evidence, the Court of Appeal had knowledge of the evidence that the applicant would have liked to present in the District Court. As noted above, under Chapter 17, section 7 of the Code of Judicial Procedure the court may not admit irrelevant evidence. The Court of Appeal likewise had an opportunity to assess the lawfulness of the procedure followed by the District Court, as well as its compliance with the requirements of Article 6 § 1 of the Convention.

The Government noted that the fact that the applicant was not able to present new evidence in the Court of Appeal was based on Chapter 25, section 14 (2) of the Code of Judicial Procedure, as in force at the material time. By virtue of this provision the Court of Appeal did not take new evidence into account. The applicant must have been aware of this because in the appeal instructions attached to the District Court’s decision, it is explicitly stated that in a civil case in the Court of Appeal the appellant may not invoke facts or evidence other than those which have been presented in the District Court, unless she sufficiently proves that she was not able to invoke the fact or evidence in question in the District Court or that she otherwise had a valid reason for not doing so. It is further mentioned in the appeal instructions that the appellant must identify the evidence she wishes to rely on and state what is intended to be proved with each piece of evidence. A written document which has not been presented earlier must be attached to the appeal documents.

The applicant emphasised that the domestic courts refused, without reasoning, to admit the evidence she wanted to submit. She argued that if the District Court had found part of the evidence offered to be irrelevant, such a decision should have been recorded in the minutes of the preparatory hearing and reasons should have been given. As admitted by the Government, the refusal to admit part of the evidence submitted by the applicant as well as the reasoning for such a decision is missing.

The applicant noted that she was not legally represented at the preparatory hearing and that, as a layperson, she did not understand that she was meant to request that all her claims be recorded in the minutes of the hearing.

The applicant argued that the fact that the District Court’s minutes of the case did not include the District Court’s decision not to accept the evidence offered by the applicant, was also the reason for the Court of Appeal’s dismissal of her appeal in this respect. As the evidence rejected by the District Court was assessed as “new” evidence before the Court of Appeal, the Court of Appeal could not take it into account. Therefore, the District Court’s failure to give a reasoned decision for not accepting the evidence offered caused the applicant’s loss of her rights before the Court of Appeal. Even though the Court of Appeal examined the case in accordance with law, it did not redress the District Court’s failure. The applicant did not therefore receive a fair trial.

The applicant refutes the Government’s argument according to which the District Court judge in charge of the preparatory hearing had been aware of the evidence the applicant had planned to submit, as the list of evidence was included in the court material, and that he therefore could refuse to admit part of the evidence. A court which decides on the admissibility of evidence on the basis of such a list cannot be regarded as impartial, especially when the list is submitted by a layperson who has no experience of court proceedings and the complicated rules applied to them. Furthermore, if such a decision is given without any reasoning, the applicant may well feel that she has not been afforded a fair trial. In any event, the decision should have been given in writing and with reasoning so that the applicant could have challenged it before the Court of Appeal.

The applicant also disagreed with the Government’s argument, according to which the applicant should have raised a counterclaim against the bank in order to be able to submit part of the evidence which was refused. Regardless of whether this was true or not, such an argument was not submitted at the time of the events. The Ministry of Foreign Affairs’ assessment of the relevancy of the evidence, especially as presented years later, can have no relevance to the case.

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.

2. The applicant complained, also under Article 6 § 1 of the Convention, about the lack of an oral hearing as the Court of Appeal failed to have an oral hearing or to refer the case back to the District Court for a re-hearing.

The Court recalls that the reservation made by the Finnish Government to Article 6 of the Convention was in force at the relevant time. According to the reservation, Finland could not guarantee a right to an oral hearing before, inter alia , the courts of appeal in so far as the Finnish laws did not provide such a right at the time of the events in question.

Because of the reservation, Finland was not under a Convention obligation to ensure that an oral hearing took place before the Court of Appeal. It follows that the Court of Appeal was not obliged to refer the case to the District Court for a re-hearing either.

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

For these reasons, the Court unanimously

Declares admissible, without prejudging the merits, the applicant’s complaint under Article 6 § 1 of the Convention concerning the admissibility of evidence submitted by the applicant ;

Declares inadmissible the remainder of the application.

Michael O’Boyle Nicolas Bratza Registrar President