FOURTH SECTION

DECISION [Note1]

AS TO THE ADMISSIBILITY OF

Application no. 35897/97

by TH- tekniikka Oy:n Konkurssipesä

against Finland [Note2]

The European Court of Human Rights ( Fourth Section ) sitting on 28 September 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 ,

with 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 1997 by TH- tekniikka Oy:n Konkurssipesä against Finland and registered on 5 May 1997 under file no. 35897/97;

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

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Finnish bankrupt’s estate, whose domicile is Tampere .

It is represented before the Court by Mr Mika Ala-Uotila , a lawyer practising in Nokia .

A. Particular circumstances of the case

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

In February 1995 the applicant brought an action for recovery against a company T before the Tampere District Court ( käräjäoikeus , tingsrätt ) . On 5 May 1995 the District Court partly rejected and partly accepted the applicant’s claims.

Both the applicant and the company T appealed to the Turku Court of Appeal ( hovioikeus , hovrätt ) . The applicant also submitted a new piece of evidence. After the time for appeal had expired, the applicant filed another submission requesting an oral hearing. The company T had requested a hearing in its appeal.

On 3 May 1996 the Court of Appeal, in written proceedings, reversed the District Court’s decision and dismissed the applicant’s action. Under Chapter 25, Section 14, Subsection 2, of the Code of Judicial Procedure ( oikeudenkäymiskaari , rättegångsbalk , see below) the Court of Appeal refused to admit the new evidence that the applicant had submitted. It found that the applicant had not proved it to be probable that it had been prevented from submitting the evidence before the District Court or that it had had a valid reason for not doing so. The applicant’s submission filed after the time-limit for appeal was taken into account. The Court of Appeal refused the requests for an oral hearing as the circumstances of the case were considered to be clear.

On 16 October 1996 the Supreme Court ( korkein oikeus , högsta domstolen ) refused the applicant leave to appeal.

B. Relevant domestic law

The relevant domestic law as in force at the relevant time may be summarised as follows:

Under Chapter 25, Section 14, Subsection 2, of the Code of Judicial Procedure, no new evidence, which had not been submitted to the District Court, was allowed before the Court of Appeal, unless the appellant could prove that he had been unable to submit the evidence before the District Court or that he had had a valid reason for not doing so.

According to Chapter 26, Section 7, Subsection 1, of the Code of Judicial Procedure, a Court of Appeal could hold, when necessary, an oral hearing, where parties, witnesses and experts could be heard, and other evidence could be taken.

COMPLAINTS

The applicant complains that it was not afforded a fair trial according to Article 6 § 1 of the Convention, as the Court of Appeal did not hold an oral hearing and as it refused to admit the new evidence the applicant submitted . The applicant maintains that in spite of Finland’s reservation the Court of Appeal should have held an oral hearing as the evaluation of evidence required it and as Chapter 26, Section 7, of the Code of Judicial Procedure provided a right to an oral hearing. The applicant further argues that it had had a valid reason to submit new evidence to the Court of Appeal, as required by Chapter 25, Section 14, Subsection 2, of the Code of Judicial Procedure.

THE LAW

The applicant complains that the Court of Appeal’s refusal to hold an oral hearing and to admit new evidence violated its right to a fair trial. It invokes 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 [a] … tribunal …”

1. As regards the applicant’s complaint that no oral hearing was held in the Court of Appeal, the Court notes that the reservation made by the Finnish Government in accordance with Article 64 (after the entry into force of Protocol No. 11 on 1 November 1998, Article 57) of the Convention, in respect of the right to a public hearing guaranteed by Article 6 § 1 of the Convention, read at the relevant time as follows:

“For the time being, Finland cannot guarantee a right to an oral hearing insofar as the current Finnish laws do not provide such a right. This applies to:

1. proceedings before the Courts of Appeal … in accordance with Chapter 26, [Section] 7, … of the Code of Judicial Procedure…”

The Court first recalls that when a right to appeal exists under domestic law, Article 6 § 1 applies also to proceedings on appeal (see e.g. Delcourt v. Belgium judgment of 17 January 1970, Series A no.11, pp. 13-15, §§ 25-26).

It is true that there was no hearing before the Court of Appeal in the applicant’s case. The Court notes the applicant’s argument that since the right to an oral hearing before the Court of Appeal was provided by Chapter 26, Section 7, of the Code of the Judicial Procedure, the reservation was inapplicable.

The Court recalls that when the Convention refers back to domestic law, compliance with such law is an integral part of the obligations of the Contracting States and the Court is accordingly competent to satisfy itself of such compliance where relevant. The scope of its task in this connection, however, is subject to limits inherent in the logic of the European system of protection, since it is in the first place for the national authorities, notably the courts, to interpret and apply domestic law (see Lukanov v. Bulgaria judgment of 20 March 1997, Reports of Judgments and Decisions 1997-II, p. 543, § 41). Similar considerations apply mutatis mutandis to the interpretation of the Finnish reservation, the scope of which is defined in part by a reference to domestic law.

In the present case the Court of Appeal rejected the applicant’s request to hold an oral hearing. This must be taken to mean that in the Court of Appeal’s opinion, Chapter 26, Section 7, of the Code of Judicial Procedure did not guarantee a right to an oral hearing in the circumstances of the applicant’s case. Having regard to the terms of Section 7, the Court cannot find that this interpretation of domestic law was in any way arbitrary. The Court therefore accepts that the rejection of the oral hearing in the Court of Appeal was in conformity with domestic law.

In view of the above and having regard to the terms of Finland’s reservation, Finland was under no Convention obligation to ensure in respect of the Court of Appeal that an oral hearing was held. While it is true that the effect of the reservation was to deny the applicant a right to an oral hearing before the Court of Appeal, this result must be considered compatible with the Convention as a consequence of the operation of a valid reservation (see Helle v. Finland judgment of 19 December 1996, Reports 1997-VIII, pp. 2925-2926, §§ 44 and 47).

It follows that the complaint concerning the lack of an oral hearing before the Court of Appeal is incompatible ratione materiae with the provisions of the Convention pursuant to Article 35 § 3.

2. As regards the applicant’s argument that the Court of Appeal’s refusal to admit new evidence was in breach of Article 6 § 1, the Court recalls that this Article does not lay down any rules on the admissibility of evidence as such, which is therefore primarily a matter for regulation under domestic law. The Court’s task is to consider whether the proceedings as a whole were fair (see e.g. Schenk v. Switzerland judgment of 12 July 1988, Series A No. 89, p. 29, § 46). Furthermore, as mentioned above, it is not the Court’s task to resolve problems of interpretation of domestic legislation. In the present case, the Court finds no appearance that the Court of Appeal’s refusal to admit new evidence was in breach of the applicant’s right to a fair trial according to Article 6 § 1.

It follows that the complaint concerning the Court of Appeal’s refusal to admit new evidence is manifestly ill-founded within the meaning of Article 35 § 3.

3. The Court concludes that the application as a whole must be rejected in accordance with Article 35 § 4 of the Convention.

For these reasons, the Court, unanimously,

DECLARES THE APPLICATION INADMISSIBLE .

Vincent Berger Georg Ress Registrar President

[Note1] Do not forget to block text with Alt+B in order to avoid that the information in the highlighted zones disappears.

[Note2] First letter in capital letters plus the article according to normal speech.