FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 31668/96

by S.E.

against Finland

The European Court of Human Rights ( Fourth Section ) sitting on 14 October 1999 as a Chamber composed of

Mr G. Ress, President , Mr M. Pellonpää, Mr I. Cabral Barreto, Mr V. Butkevych, Mrs N. Vajić, Mr J. Hedigan, Mrs S. Botoucharova, Judges ,

and Mr V. Berger, Section Registrar ;

Having regard to Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 16 April 1996 by S.E. against Finland and registered on 30 May 1996 under file no. 31668/96;

Having regard to the reports provided for in Rule 49 of the Rules of Court;

Having regard to the observations submitted by the respondent Government on 3 July 1998 and the observations in reply submitted by the applicant on 23 September 1998;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Finnish national, born in 1951 and living in Espoo , Finland .

A. Particular circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

The applicant owned the majority of the shares in company X until 5 January 1990 and belonged to its Board of Directors until 7 September 1990. According to the accounts of the company, X owed the applicant FIM 52,715.89.

X went into liquidation on 27 December 1991 and was wound up on 27 July 1992. The applicant filed a claim with the liquidator, but was ordered to lodge civil proceedings in order to substantiate his claim.

On 21 October 1992 a bank involved in the liquidation proceedings requested the police to investigate the accounts of X.

On 18 January 1993 the applicant lodged civil proceedings in Espoo City Court ( kihlakunnanoikeus , häradsrätt ) against X and the bank, claiming FIM 52,715.89 together with interest and his legal expenses. The claim was based on the accounts of the company. Several hearings were held before the City Court in which the applicant was represented by a lawyer. After the parties’ closing pleadings on 25 October 1993 the case was adjourned until 8 November 1993 for pronouncement of judgment. The parties were told that they should be present, if they wished to hear the pronouncement. The minutes of the City Court read, in so far as relevant, as follows:

(translation from Finnish)

“...Otherwise [the applicant’s] lawyer, K., renewed everything that was submitted and claimed by [the applicant] and left the case to be decided by the court. K. stated that [the applicant’s] legal expenses were FIM 15,000.

[The defendants’] lawyer, P., left the case to be decided by the court and stated that the defendants’ legal expenses were FIM 15,000 in total.

INTERIM DECISION

Judgment will be pronounced at a City Court hearing to be held on Monday, 8 November 1993, to be held at 1 p.m. or thereafter. The parties shall attend if they wish to listen to the pronouncing of the judgment. The case is adjourned until that hearing.”

On 8 November 1993 the applicant was not present in the City Court. The defendants’ lawyer was present and submitted that the police had been requested to investigate company X’s accounts and that the investigation was still pending. This was recorded in the minutes of the court. The applicant was not informed of this submission. The City Court pronounced its judgment rejecting all the applicant’s claims on the ground that the applicant had not been able to establish the existence of the debt. The information submitted by the defendants’ lawyer on 8 November 1993 was not mentioned in the judgment.

The applicant appealed to Helsinki Court of Appeal ( hovioikeus , hovrätt ) , submitting a letter, written by a member of the Board of Directors of X and confirming the existence and the amount of the debt. The letter was dated 15 November 1993 (i.e. after the City Court’s judgment was rendered). The letter had not been submitted before the City Court. The applicant also argued that the City Court should not have taken into account those of the defendants’ submissions which had been made in the hearing of 8 November 1993 intended only for the pronouncement of the judgment and which the applicant had not been informed of.

The defendants were entitled to give their response on the applicant’s appeal by 22 December 1993. The defendants submitted their response on 23 December 1993 but the latter was taken into account even though it was out of time. No reason for this is given in the Court of Appeal’s judgment. The applicant did not request a copy of the defendants’ response from the court.

On 26 September 1995 the Court of Appeal rejected the applicant’s claims without dealing with the applicant’s argument concerning the fact that the City Court had allowed the defendants to make a submission in his absence and without his being informed of it. The Court of Appeal refused to take the letter submitted by the applicant into account as it was regarded as a document of a private nature especially prepared for a trial and, as such, inadmissible according to Chapter 17, Section 11, of the Code of Judicial Procedure ( oikeudenkäymiskaari , rättegångsbalken ). The Court of Appeal found that the letter did not include new information and that it was therefore not necessary to hear its author before the court.

The applicant requested leave to appeal to the Supreme Court ( korkein oikeus , högsta domstolen ) , claiming that the defendants’ submission made at the City Court hearing on 8 November 1993 should not have been taken into account and that the Court of Appeal had failed to consider his appeal on this point. He also stated that criminal investigations had not led to a prosecution and that the defendants’ submission of 8 November 1993 had therefore, in any case, given a false impression of the reliability of X’s accounts. The applicant further complained about the fact that the Court of Appeal had not taken into account the letter submitted by him.

On 15 March 1996 the Supreme Court refused the applicant leave to appeal.

B. Relevant domestic law and practice

According to Chapter 25, Section 19, subsection 1, of the Code of Judicial Procedure Act, the appellant may request a copy of the other party’s response to the appellant’s appeal from the office of the lower court.

According to Chapter 17, Section 11, subsections 1 and 3 of the Code of Judicial Procedure, written submissions of a private nature and prepared for a trial, which is or shall be pending, shall not be used as evidence in a lower court unless this has been allowed by law or the court permits it for a special reason. If the appellate court finds that such submissions have to be taken into account, their author shall be heard before the appellate court or before a lower court ordered by the appellate court to take such evidence.

According to Chapter 25, Section 14, subsection 2, of the Code of Judicial Procedure (as amended by law 661/1978), an appellant, who wishes to submit new evidence in support of his or her appeal, shall inform the court of his or her submissions and specify what is to be proved by this evidence.

According to Chapter 25, Section 14, subsection 2, of the Code of Judicial Procedure (as amended by law 1052/1991), an appellant in a civil case may not submit to the Court of Appeal any evidence which was not submitted before the lower court, unless he or she can prove that it was impossible to do so at the earlier stage of the proceedings or that there was a valid reason for not doing so.

Section 3 of the Act on the Transitional Provisions for the Reform of the Procedure before First Instance Courts ( laki alioikeusuudistuksen siirtymäsäännöksistä , lag om övergångsstadganden för underrättsreformen ; 591/1993) reads as follows:

(translation from Finnish)

“Chapter 25, Section 14, subsection 2 of the Code of Judicial Procedure as it was stipulated in the amendment of the above-mentioned Act on 22 July 1991 (1052/1991), is applied to a case in which the lower court’s judgment was rendered on 1 December 1993 or later.”

According to Chapter 24, Section 4 of the Code of Judicial Procedure, the Court of Appeal must not repeat the lower court’s decision when upholding the decision.

COMPLAINT

Invoking Article 6 § 1 of the Convention, the applicant complains that he was not afforded a fair trial as:

(a) the Espoo City Court, in the applicant’s absence, accepted submissions from the defendants after the hearing had been adjourned merely for pronouncement of judgment, without giving the applicant any opportunity to respond to them, and as the appellate courts failed to consider the applicant’s appeal insofar as concerned the admissibility and the non-communication of the defendants’ last submissions to the City Court;

(b) the letter of 15 November 1993 annexed to the applicant’s appeal was not taken into account by the Helsinki Court of Appeal or the Supreme Court even though the Court of Appeal took into account the defendants’ response which was submitted after the relevant time-limit had expired; and

(c) the applicant was not given a copy of the Court of Appeal référendaire ’s memorandum.

PROCEDURE

The application was introduced on 16 April 1996 before the European Commission of Human Rights and registered on 30 May 1996.

On 20 May 1998 the Commission decided to communicate the application to the respondent Government.

The Government’s written observations were submitted on 3 July 1998. The applicant replied on 23 September 1998.

On 1 November 1998, by operation of Article 5 § 2 of Protocol No. 11 to the Convention, the case fell to be examined by the Court in accordance with the provisions of that Protocol.

THE LAW

The applicant essentially complains that he did not receive a fair trial before the Espoo City Court, the Helsinki Court of Appeal and the Supreme Court. He refers to a number of elements in the proceedings which in his view led to his being denied the guarantees afforded by Article 6 § 1 of the Convention which, in so far as relevant, reads as follows:

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

(a) The applicant’s principal complaint is that Espoo City Court, in the applicant’s absence, accepted submissions from the defendants after the hearing had been adjourned merely for pronouncement of judgment and that the court did not give the applicant any opportunity to respond to them. The appellate courts failed to consider the applicant’s appeal insofar as the admissibility and the non-communication of the defendants’ last submissions to the City Court were concerned.

The Government note that while Article 6 § 1 of the Convention obliges the courts to give reasons for their judgments, it cannot be understood as requiring a detailed answer to every argument adduced by a litigant. The extent to which the duty to give reasons applies may vary according to the nature of the decision in issue. The applicant’s right to adversarial proceedings means in principle the opportunity for the parties to a criminal or civil trial to have knowledge of and comment on all evidence adduced or observations filed with a view to influencing the court’s decision (see K.D.B. v. the Netherlands judgment of 27 March 1998, Reports of Judgments and Decisions 1998, § 44).

In the present case, the Government note that both parties were aware of the fact that the case would be considered before the Espoo City Court on 8 November 1993. The defendant was present at the hearing, whereas the applicant chose not to be present. The fact that the case was adjourned for the pronouncement of the judgment did not mean that the parties were not able to present arguments during the hearing on 8 November 1993. Under the law then in force the City Court was to take all the evidence adduced in the matter into account irrespective of the time when the evidence had been adduced. As regards courts of first instance, there was no provision according to which a party would no longer be able to present new facts and evidence at a certain stage of the proceedings.

The Government further note that the applicant was represented before the City Court by an experienced lawyer who had been a member of the Finnish Bar Association for over ten years. Accordingly, he must have been aware of the fact that arguments may be submitted to the City Court until the pronouncement of the judgment. It is emphasised by the Government that the applicant has not contested the truthfulness of the defendants’ submission that the police had been requested to investigate X’s accounts and that the investigation was still pending at the time of the City Court proceedings. In addition, the reasons for the judgment of the City Court do not imply that the defendants’ submission concerning the criminal investigations would have affected the outcome of the case as the reasons for the judgment do not refer to the criminal investigations at all. Also the fact that the City Court pronounced its judgment immediately after the submission had been recorded in the minutes of the court inevitably leads to the same conclusion. The fact that the submission was recorded in the minutes of the City Court merely indicates what happened in the hearing. Had the court considered that the submission might have affected the outcome of the case, it most likely would have adjourned the consideration of the case ex officio .

The Government recall that the applicant was able to respond to the defendant’s submission in his letter of appeal to the Court of Appeal, and that he indeed did so. The Court of Appeal examined the case in its entirety. The Court of Appeal did not comment on these issues in its decision as, according to Chapter 24, Section 4 of the Code of Judicial Procedure, the Court of Appeal shall not comment on the grounds it has approved, if it upholds the decision of a lower court. There is no indication that the City Court would have considered the defendants’ submissions of any significance for the resolution of the case. Accordingly, the Court of Appeal did not need to comment on that fact as it agreed with the City Court.

The applicant emphasises that both parties had, on 25 October 1993, given their closing pleadings and stated that they were ready to leave the case to be decided, after which the court had informed the parties of the time when the decision would be pronounced. The case was closed and could not be dealt with in the meantime without both parties being aware of that. It does not make any difference whether a party wants to find out about the decision by listening to the public pronouncement of the judgment or merely by reading it from the written judgement. After the hearing the court has accepted a submission concerning the accounts of X and the police investigations thereof. There is no doubt that such information must have affected the evaluation of the case. It is logical that if the information was not intended to affect the court decision, it would not have been brought up by the defendants. It can also be questioned why a copy of the existing police documents had not been submitted by the defendants already in the earlier stage of the proceedings as the police investigation had started already in 1992.

The applicant doubts whether the minutes of the court are very accurate and suspects that the issue concerning the police investigations might have been discussed in further depth even though it is only mentioned in one paragraph of the court minutes. According to the applicant, the minutes of the court are not very detailed and do not repeat every word that was said. It is possible that the defendants’ submissions were discussed in detail even though the details are not mentioned in the minutes of the court.

The Court notes that it is mentioned in the City Court’s minutes that the defendants submitted information concerning the police investigations. However, this information is not mentioned or referred to in the City Court’s decision which was rendered immediately after the information was submitted. Therefore, it is unlikely that the information affected the judgment. It is also noted that the City Court had a duty to record the events of the hearing, including parties’ comments which did not influence the decision. Moreover, the applicant had the possibility of giving his comments on the information before the appellate courts. He in fact did so. That the Court of Appeal did not deal with the information in its decision indicates that that court also found it to be irrelevant. In this connection the Court recalls that while Article 6 § 1 of the Convention obliges the courts to give reasons for their judgments, it cannot be understood as requiring detailed answers to every argument adduced by a litigant.

In these circumstances there is no appearance of a violation of Article 6 § 1 of the Convention in this respect.

(b) The applicant also complains that the letter of 15 November 1993 annexed to the applicant’s appeal was not taken into account by Helsinki Court of Appeal or the Supreme Court even though the Court of Appeal took into account the defendants’ response which was submitted after the relevant time-limit had expired.

The Government note that the applicant’s letter was regarded by the Court of Appeal as a document of a private nature and thus inadmissible according to Finnish procedural rules. Moreover, it was presented at the appellate level. The Government stress in this respect that it is not for the Court to substitute its views for those of the Court of Appeal concerning the admissibility or inadmissibility of the parties’ submissions.

The applicant argues that the letter annexed to his letter of appeal to the Court of Appeal was not of a private character and had not been drawn up for the trial. It was given by the only member of the Board of Directors of X. According to the applicant, the document corresponds to a bond (promissory note) and confirms X’s debt to the applicant. The nature of the document was such that it ought to have been taken into consideration. The defendants never argued the contents or the authenticity of the document. Moreover, according to the law in force at the relevant time, the Court of Appeal was obliged to accept new evidence in a case in which the City Court’s judgment was pronounced before 1 December 1993. The City Court’s judgment in the present case was rendered on 8 November 1993.

The applicant further argues that the Court of Appeal and the Supreme Court ought to have assessed the evidence presented by him or, at least, explain the reasons for not doing so. As the issues complained of are not mentioned at all in the decisions of the appellate courts, the impression is that these matters were not considered at all.

The Court recalls that Article 6 § 1 of the Convention does not lay down rules on admissibility of evidence, which is primarily a matter for regulation under national law. In the present case it is noted that the Court of Appeal found that the letter submitted by the applicant was of a private character and that it did not bring any new information. This decision was based on Chapter 17, Section 11 of the Code of Judicial Procedure. The Court finds no appearance that the Court of Appeal’s refusal to admit the document submitted by the applicant was in breach of Article 6 § 1 of the Convention.

As regards the Court of Appeal’s acceptance of the defendants’ submissions which were submitted after the expiry of the relevant time-limit, the applicant stresses that the question is of the confidence in the statements of the court and the equality of the parties. It was said in the appeal instructions, given by the City Court, that the time-limit should be respected. It is not acceptable if this principle is not honoured by both parties. The Court of Appeal cannot favour any of the parties in a case in which the statements are not handed in within the relevant time-limit.

As regards this complaint the Court notes that the applicant neither requested a copy of the defendants’ comments from the Court of Appeal nor raised this issue in his leave to appeal application made to the Supreme Court. Even assuming that the applicant has exhausted the domestic remedies on this point, the Court concludes that, in these circumstances, the acceptance of the defendants’ comments submitted on 23 December 1993 did not affect the fairness of the proceedings so as to raise an issue under Article 6 § 1 of the Convention.

(c) As regards the applicant’s complaint that he was not given a copy of the Court of Appeal référendaire ’s memorandum, the Government note that the Court of Appeal référendaire ’s memorandum in the present case did not include any public part but was the so-called deliberation memorandum. In order to have such kind of memorandum the applicant should have lodged a written request with the President of the Court of Appeal. He did not do that. The refusal of the President of the Court of Appeal, which concerns an administrative matter, could then have been appealed against in the Supreme Court.

The applicant argues that all the relevant documents ought to be public and that, at least, the parties should have access to them as they must have a right to examine all the documents relevant to the case. This is particularly important for the losing party which needs to have access to all of the documents in order to file his or her appeal. In the present case, it would have been even more important as the applicant alleges that there have been mistakes and omissions in the proceedings before the appellate courts. The memorandum of the référendaire would have clarified the possible misunderstandings and mistakes made at the presentation of the case. No such documents should be included in a case file which are not accessible to the parties of the case. According to the applicant, the respondent Government has access to such a memorandum in the proceedings before the European Court of Human Rights, which cannot be considered justified.

The applicant, further, argues that he was told by the Court of Appeal, when inquiring the matter, that not even the President of the Court of Appeal has an authority to permit access to the référendaire ’s memorandum as it is a non-public document. As regards the exhaustion of domestic remedies, the applicant finds it sufficient that he has, in his request concerning leave to appeal in the Supreme Court, requested access to the memorandum.

The Court finds it unnecessary to examine whether the applicant has exhausted the domestic remedies available to him, as there is no indication that the refusal to disclose to the applicant a copy of the référendaire ’s memorandum, which is a part of the court’s deliberations in camera, violated Article 6 § 1 of the Convention.

It follows that the application must be rejected as being manifestly ill-founded as a whole within the meaning of Article 35 § 4 of the Convention.

For these reasons, the Court, unanimously,

DECLARES THE APPLICATION INADMISSIBLE .

Vincent Berger Georg Ress

Registrar President