THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 37901/97 by Jali RAITA and JALI RAITA CONSULTING OY against Finland

The European Court of Human Rights ( Third Section) , sitting on 15 November 2001 as a Chamber composed of

Mr G. Ress , President , Mr L. Caflisch , Mr P. Kūris , Mr R. Türmen , Mr J. Hedigan , Mrs M. Tsatsa - Nikolovska , judges, Mrs E. Palm, ad hoc judge, and Mr V. Berger, Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 4 July 1997 and registered on 25 September 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 applicants,

Having deliberated, decides as follows:

THE FACTS

The first applicant is a Finnish citizen, born in 1941 and resident in Turku . He owns and represents the limited liability company Jali Raita Consulting Oy (i.e. the second applicant). The respondent Government are represented by their Agent, Mr Arto Kosonen , of 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 company brought civil proceedings for damages against a another company. On 12 July 1995 the District Court ( käräjäoikeus , tingsrätten ) of Helsinki ordered the defendant to pay certain damages and dismissed the remainder of the action. Both parties appealed.

On 29 February 1996 the Court of Appeal ( hovioikeus , hovrätten ) of Helsinki quashed the District Court’s judgment and dismissed the whole of the applicant company's action. The panel of three judges examining the appeal comprised, among others, Judge T., an extraordinary judge on leave of absence from his permanent post as law clerk ( référendaire ; esittelijä , föredragande ) in the Supreme Court ( korkein oikeus , högsta domstolen ).

In the case in point, T. was responsible for checking any amendments to the draft judgment which the Court of Appeal’s law clerk in charge had presented for the panel’s deliberations. According to the case-file, T. had checked the draft judgment on 22 February 1996, whereas he had returned to his post at the Supreme Court with effect from 1 January 1996.

On 12 March 1996 the applicant company requested the Court of Appeal to complete its judgment in respect of one claim allegedly left without examination. On 4 April 1996 the Court of Appeal dismissed this request.

The company was subsequently informed of Judge T.’s return to the Supreme Court. In June 1996 the company sought leave to appeal to that court and also lodged a procedural complaint ( kantelu tuomiovirheen perusteella , klagan på grund av domvilla ), arguing, inter alia , that as from 1 January 1996 the Court of Appeal had not been constituted according to the law ( tuomionvoipa , domför ) in the case in question.

On 14 January 1997 the Supreme Court refused the company leave to appeal both against the Court of Appeal’s judgment of 29 February 1996 and its decision of 4 April 1996. The Supreme Court dismissed the procedural complaint, noting that the deliberations on the company’s appeal to the Court of Appeal had taken place already on 25 October 1995. The tasks which Judge T. had accomplished up to the delivery of the judgment had consisted of ordinary follow-up measures in accordance with established practice. The Court of Appeal had thus been constituted according to the law despite his having left that tribunal with effect from 1 January 1996.

B. Relevant domestic law and practice

In the Finnish court system a law clerk prepares the draft decisions and judgments of the courts of appeal and the Supreme Court but cannot take part in any vote. He or she may annex a dissenting opinion, should his or her proposal not be followed.

According to chapter 2, section 8 of the Code of Judicial Procedure ( Oikeudenkäymiskaari , Rättegångs Balk ), the quorum of a court of appeal shall comprise three judges in order for it to be constituted in accordance with the law.

According to Rules 19-20 of the 1994 Rules of Procedure of the Helsinki Court of Appeal, a judge may, after the competent panel has deliberated on the law clerk’s proposal, propose necessary amendments to the draft judgment. The revised draft is then circulated among the judges for approval. On such approval, the judgment is prepared for delivery in its final wording. If the Presiding Judge considers that a proposed amendment would change the substance of the judgment or if a judge has changed his or her opinion, the matter shall, whenever deemed necessary, be subject to a second deliberation.

In a precedent of 30 December 1996 (no. 1996:153) the Supreme Court held that a former justice could, after taking up his post as Parliamentary Ombudsman, check a draft judgment and carry out other measures in a case deliberated upon prior to his departure. Nor had his departure endangered his independence and impartiality in the case in question.

In another precedent of the same day (no. 1996:152) the Supreme Court held that a court of appeal judge had become biased after he had checked and signed the original judgment but before it had been delivered.

COMPLAINTS

The applicants complain that, for the reasons below, the applicant company was denied a fair hearing before an independent and impartial tribunal established by law, within the meaning of Article 6 § 1 of the Convention:

1. By 1 January 1996 Judge T. had returned to the Supreme Court and the Court of Appeal was therefore no longer composed in accordance with the law when rendering its judgment.

2. The son of the Presiding Judge of the Court of Appeal was in partnership with counsel of the applicant company's adversary and the Presiding Judge should therefore have stepped down.

3. Although de facto participating, until late February 1996, in the examination of the case before the Court of Appeal, Judge T. had by then already returned to his post as a law clerk in the Supreme Court. The Supreme Court was therefore partial when examining the applicant company’s case.

THE LAW

The applicants allege that the civil proceedings in question were unfair in different respects. They invoke Article 6 § 1 of the Convention which, in its relevant parts, reads as follows:

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

The Government consider the application manifestly ill-founded. Given their hierarchical rank and specific wording, the Code of Judicial Procedure (Chapter 2, section 8) and the Rules of Procedure of the Helsinki Court of Appeal fulfilled the criteria for accepting that this tribunal was “established by law”. As there was no special reason preventing Judge T. from completing the remaining tasks related to his temporary post in the Court of Appeal, he could not have refused to comply with that duty. Were this procedure to be abandoned, a great number of cases would have to be reconsidered each year and a judge retiring from office or leaving for another post would be unable to sit on any case during his or her last months in office.

The applicant finds support for his application in the Supreme Court’s precedent no. 1996:153 which shows, in his contention, that a judgment of a court of appeal is not final until all participating judges have approved and signed it. As the Supreme Court held in its precedent no. 1996:152, a judge may become biased during the period between the presentation of the case and the final approval and signature of the judgment. The applicant finally notes the Government’s concession that when signing the judgment in the applicant company’s case Judge T. was no longer a judge of the Helsinki Court of Appeal.

1. The Court notes at the outset that, unlike the limited liability company Jali Raita Consulting Oy , Mr Raita himself was not a party to the proceedings in question. For the reasons below, however, the Court need not determine whether he too may claim status as “victim”, within the meaning of Article 34, of the alleged violations of the Convention.

The Court recalls that the phrase “established by law” covers not only the legal basis for the very existence of a “tribunal” but also the composition of the bench in each case (see no. 31657/96, Dec. 4.5.2000, unreported).

In the present case the deliberations on the company’s appeal to the Court of Appeal took place already on 25 October 1995, that is to say before Judge T. had returned to the Supreme Court with effect from 1 January 1996. There is no indication that he changed his opinion in the case or proposed an amendment such as to require a further deliberation after that date.

In the overall circumstances of this case the Court finds no indication that the Court of Appeal was not “established by law” within the meaning of Article 6 § 1 when effectively examining the applicant company’s appeal. Accordingly, there is no appearance of a violation of Article 6 on this account and this aspect of the application is inadmissible as being m anifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

2. The applicant not only challenges the formal composition of the bench of the Court of Appeal but also alleges that its Presiding Judge was partial, as his son was in partnership with counsel of the applicant company’s adversary.

Under Article 35 § 1 of the Convention the Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law. There is no indication, however, that the applicant, at any stage of the proceedings, challenged the Presiding Judge on account of his alleged partiality. He has therefore failed to exhaust domestic remedies within the meaning of Article 35 § 1 of the Convention and this aspect of the application is inadmissible under Article 35 § 4 of the Convention.

3. The applicants have finally complained that Judge T.’s return to his post as law clerk in the Supreme Court by the time it considered the applicant company’s case, rendered that court partial.

The Court recalls that since Article 6 § 1 of the Convention does not apply to proceedings for leave to appeal to the Finnish Supreme Court, this aspect of the application is incompatible ratione materiae and must be rejected in accordance with Article 35 § 3 of the Convention.

It can be left open whether Article 6 § 1 can be deemed applicable to the parallel proceedings in which the applicant company challenged the Court of Appeal’s composition. At any rate, the Court finds no appearance that the Supreme Court was partial on account of T.’s return. While it is true that the objective impartiality of a tribunal may be jeopardised if a judge takes part in several consecutive stages of the same set of proceedings (see the Piersack v. Belgium judgment of 1 October 1982, Series A no. 53, pp. 14-15, § 30), the Court notes that T. was not a justice but a law clerk without the right to vote and without any function in the applicant company's case as it had not been allotted to him.

It follows that there is no appearance of any violation of Article 6 § 1 in this respect either. Accordingly, this aspect of the application is also inadmissible as being m anifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Vincent Berger Georg Ress Registrar President