Resolution CM/ResDH(2009)148 [1]

Execution of the judgment of the European Court of Human Rights

Lomaseita Oy and others against Finland

(Application No. 45029/98, judgment of 05/07/2005 , final on 05/10/2005 )

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);

Having regard to the judgment transmitted by the Court to the Committee once it had become final;

Recalling that the violation of the Convention found by the Court in this case concerns the breach of the right to a fair trial as the applicants were not informed of additional material submitted by the other party to the appellate court (violation of Article 6§1) (see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the mea s ures taken to comply with Finland ' s obligation under Article 46, paragraph 1, of the Conve n tion to abide by the judgment;

Having examined the information provided by the government in accordance with the Committee ' s Rules for the application of Article 46, paragraph 2, of the Convention;

Having satisfied itself that, within the time-limit set, the respondent state paid the a p plicants the just satisfaction provided in the judgment (see details in Appendix),

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded in the judgment, the adoption by the respondent state, where appropriate:

- of individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum ; and

- of general measures, preventing similar violations;

DECLARES, having examined the measures taken by the respondent state (see Appendix), that it has exe r cised its functions under Article 46, paragraph 2, of the Convention in this case and

DECIDES to close the examination of this case.

Appendix to Resolution CM/ResDH(2009)148

Information on the measures to comply with the judgment in the case of

Lomaseita Oy and others against Finland

Introductory case summary

The case concerns a violation of the principle of equality of arms due to the failure of the Appeal Court to communicate to the applicants material that the opposing party had submitted to it (violation of Article 6§1). Following a liquidation procedure, the official receiver of the liquidated estate brought civil proceedings against the three applicants requesting that assets allegedly transferred from the estate to the applicants before issuing of a winding-up order were to be returned to the estate. During the appeal procedure, after the expiry of the deadline for lodging appeals, the estate submitted additional documentary material which was not communicated to the applicants.

The European Court found that only the parties could properly decide whether or not the submissions called for their comments and consequently procedural fairness required that they should have been given an opportunity to assess the material and to comment on it as they deemed appropriate.

I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

-

2 000 EUR

4 000 EUR

6 000 EUR

Paid on 05/01/2006

b) Individual measures

According to Chapter 31 of the Code of Judicial Procedure, extraordinary appeals may be lodged against final decisions if, inter alia , “a procedural error has been committed which may have had an effect on the decision”. This provision allows the applicants to request the reopening of civil proceedings found to violate the Convention, if they wish to do so. The applicants have, however, made no such request.

II. General measures

Appeal court procedures are regulated by the Code of Judicial Procedure, which provides that parties to proceedings are given the opportunity, in an oral hearing, to comment on other parties ' requests and on evidence which may affect the resolution of the matter. Exceptions to this principle exist where such an oral hearing is found to be “manifestly unnecessary”. Nevertheless, the direct effect afforded by the Finnish courts to the case-law of the European Court should determine that their discretion when interpreting such an exception will be exercised in accordance with the principle of fair trial enshrined in Article 6 of the Convention.

The judgment of the European Court was published in the Finlex database. A summary of the judgment in Finnish was published in the same database. Moreover, the judgment was sent out to the relevant national authorities.

III. Conclusions of the respondent state

The Government considers that the measures adopted will prevent similar violations and that Finland has thus complied with its obligations under Article 46, paragraph 1, of the Convention.

[1] Adopted by the Committee of Ministers on 3 December 2009 at the 1072nd meeting of the Ministers’ Deputies