CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 28 mai 1997

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                          AS TO THE ADMISSIBILITY OF                         Application No. 26323/95                       by Esa KIISKINEN                       and Mikko KOVALAINEN                       against Finland         The European Commission of Human Rights (First Chamber) sitting in private on 28 May 1997, the following members being present:              Mrs.   J. LIDDY, President            MM.    M.P. PELLONPÄÄ                  A. WEITZEL                  C.L. ROZAKIS                  L. LOUCAIDES                  B. MARXER                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  G. RESS                  A. PERENIC                  C. BÎRSAN                  K. HERNDL                  M. VILA AMIGÓ            Mrs.   M. HION            Mr.    R. NICOLINI              Mrs.   M.F. BUQUICCHIO, Secretary to the Chamber         Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;         Having regard to the application introduced on 1 November 1994 by Esa Kiiskinen and Mikko Kovalainen against Finland and registered on 26 January 1995 under file No. 26323/95;         Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;         Having deliberated;         Decides as follows:   THE FACTS         The applicants are Finnish citizens. The first applicant is a businessman resident at Villala and the second applicant is a lawyer in Joensuu. Before the Commission the second applicant represents the first applicant.         The facts of the case, as submitted by the applicants, may be summarised as follows.         In March 1989 the first applicant, represented by the second applicant, sued two companies, P and I, for damages resulting from a breach of contract relating to the first applicant's hire-purchase of a forestry vehicle and related equipment. He argued, inter alia, that the relevant vehicle model had not been officially approved by the authorities. In a further suit of July 1989 he supplemented the grounds for his action.         The parties appeared twelve times before the then City Court (raastuvanoikeus, rådstuvurätten) of Helsinki and more than ten witnesses were heard. The Presiding Judge apparently changed on a number of occasions. The first session was held on 25 May 1989.         In November 1989 company I countersued the first applicant for breach of the hire-purchase agreement. At the City Court's session on 7 December 1989 the first applicant lodged a procedural objection against this action, claiming that it had not been properly served on him. The City Court rejected the objection, noting that the first applicant had acknowledged that, although he had received only copies of certain annexes, the relevant original documents had nevertheless been shown to him.         At the City Court's session on 1 March 1990 the companies called K to give witness testimony. The first applicant's objection to the hearing of K was dismissed. The City Court also heard KK, Head of the Service Department of company P, as a witness.         In September 1990 the first applicant requested that he be afforded legal aid and the second applicant be appointed his counsel pursuant to the 1973 Act on Cost-Free Proceedings (laki maksuttomasta oikeudenkäynnistä, lagen om fri rättegång 87/73).         At its session on 13 December 1990 the City Court rejected the legal aid request. The first applicant's appeal was rejected by the Helsinki Court of Appeal (hovioikeus, hovrätten) on 7 March 1991. The Supreme Court (korkein oikeus, högsta domstolen) granted him leave to appeal. On 19 November 1991 it afforded him legal aid as from 1 January 1990 and appointed the second applicant as his counsel.         In March 1991 the local Bailiff (ulosottomies, utmätningsman) forcibly sold the first applicant's house in order to cover (at least part of) his debts.         The City Court's last session on 28 October 1991 was presided over by Judge T. Company I's counsel requested that a lawyer employed by the company, PP, be heard as witness. The first applicant objected, claiming that PP had been sitting in the audience during at least three previous court sessions. The City Court asked PP whether he had attended any previous court sessions in the case and whether he was a board member or executive manager of either of the companies. PP having answered in the negative, the City Court dismissed the objection.       By judgment of 28 October 1991 the City Court rejected the first applicant's action. The minutes from the last court session state, inter alia, as follows:         "... After judgment had been pronounced [the second       applicant] stated that the lack of official approval of the       ... vehicle model had been one of the grounds for the       action and today ... the principal issue. Counsel ...       therefore demanded that the City Court pronounce itself on       the question of model approval. The parties having stepped       out, the City Court inserted a finding on this point in its       judgment and pronounced it to the parties. ..."         On this point the City Court found that it had not been shown that the vehicle required model approval and that, in any case, the first applicant had inspected and accepted the vehicle before concluding the hire-purchase agreement.         In November 1991 the first applicant appealed against the City Court's judgment. He also lodged a further procedural objection according to which witness KK should not have been heard and that his testimony should therefore be ignored.         Pursuant to the Act on Cost-Free Trial and referring to the Supreme Court's decision of 19 November 1991, the second applicant also requested to be reimbursed for a bill in the amount of some FIM 153.000 for his fees and costs. His fees amounted to about FIM 70.000 and the costs to approximately FIM 83.000. The costs incurred included two expert opinions which the second applicant had ordered from the State Research Centre (about FIM 15.000 and FIM 28.000, respectively).         On 5 March 1993 the applicants requested that the appeal be given priority handling. Reference was made, inter alia, to an instruction issued by the Ministry of Justice according to which, if a commission was of a lengthy duration, a legal aid counsel's fees and expenses were as a rule to be compensated every six months. Further requests for speedy handling of the appeal were lodged on 27 August and 29 September 1993.         In its judgment of 20 October 1993 the Court of Appeal rejected the first applicant's fresh procedural objection, finding no indication that KK had been prevented from testifying on account of his position in company P or for any other reason. The Court of Appeal went on to reject the appeal as a whole.         The Court of Appeal furthermore compensated the second applicant in the amount of approximately FIM 15.000 for his work in the proceedings before the City Court, FIM 2.000 for his work in the Court of Appeal and the Supreme Court and FIM 8.610 for his costs. It found, inter alia, that the cost for submitting one of the written expert opinions (FIM 28.000) could not be considered necessary for the purpose of presenting relevant evidence. Nor had any details been presented of the compensation allegedly paid to the witnesses called by the applicants. In these two respects the cost claim was therefore rejected.         In December 1993 the applicants requested leave to appeal to the Supreme Court.       In an affidavit signed by the first applicant's wife on 11 January 1994 she confirmed that prior to being heard as a witness before the City Court lawyer PP of company I had been present in the audience during at least two or three court sessions. At the beginning of the oral proceedings the second applicant had already objected to PP's presence in the audience.         In a further affidavit signed by the first applicant and his wife on 13 June 1994 they stated, among other things, that while the case was pending before the City Court both company I's counsel and its lawyer PP repeatedly stated that because of their contacts in the judiciary the first applicant's action was bound to fail.         On 13 May 1994 the applicants were refused leave to appeal to the Supreme Court. The second applicant was compensated in the amount of FIM 1.000 for having lodged the request for leave to appeal.         According to the 1973 Act on Cost-Free Proceedings, a counsel appointed under a legal aid scheme shall receive a reasonable fee as well as compensation for necessary costs. The court shall have particular regard to, for instance, the nature of the case, its difficulty and the quality of counsel's work. Court-appointed counsel are prevented from charging their clients directly for any fees or expenses not accepted by the courts (section 15).         On 4 September 1995 Judge T excused himself from a civil case pending before the Helsinki District Court (formerly the City Court). One of the parties had demanded that he step down on account of his being a member of the freemasons (vapaamuurarit, frimurarna) like some of the directors of the other party to the proceedings. The City Court having rejected this request, the Parliamentary Ombudsman (eduskunnan oikeusasiamies, riksdagens justitieombudsman) had been seised with a petition. Apparently judge T had therefore considered that he could no longer sit on the bench in the case.         The applicants became aware of Judge T's membership of the freemasons through a newspaper report of 9 September 1995.   COMPLAINTS   1.     The first applicant complains that he was denied a fair hearing. The City Court examined company I's countersuit, although this had not been properly served on the first applicant; the City Court failed to examine the first applicant's principal argument; it heard biased witnesses called by the first applicant's adversaries; it ignored testimony given by an expert appointed by the first applicant; and there was a lack of equality of arms between the parties.         Referring to the fresh information concerning Judge T's membership of the freemasons, the first applicant supplemented his complaint on 11 September 1995. He now also complains that Judge T of the City Court was partial when examining his case, being a freemason like several members of company I's board and possibly belonging to the same branch of freemasons as they.   2.     Both applicants complain that the proceedings, including the question of reimbursement of the second applicant's fees and costs, were deliberately stalled by the courts so as to force the first   applicant to go bankrupt and in order to "punish" the second applicant for having criticised the manner in which the proceedings were conducted.   3.     The first applicant complains about the City Court's and the Court of Appeal's refusal to afford him legal aid pursuant to the Act on Cost-Free Proceedings.   4.     Both applicants complain that, far from being based on the instructions of the Ministry of Justice, the legal amount eventually granted corresponded only to a tenth of the second applicant's fees and that no reasons were given therefor.         The applicants invoke Articles 6 paras. 1 and 3 (d) as well as Article 14 of the Convention.   THE LAW   1.     The first applicant complains that he was denied a fair hearing before an impartial tribunal, as there was a lack of equality of arms between the parties. The City Court examined company I's counteraction, although this had not been properly served on the first applicant. The City Court failed, however, to examine the first applicant's principal argument. Moreover, it heard biased witnesses called by the first applicant's adversaries but it ignored testimony given by experts called by the first applicant.         Referring to the fresh information concerning Judge T's membership of the freemasons, the first applicant, on 11 September 1995, also complained that Judge T of the City Court had not been impartial when examining his case.         The Commission considers that the present complaint falls to be considered under Article 6 para. 1 (Art. 6-1) of the Convention which, insofar as relevant, reads as follows:         "In the determination of his civil rights ..., everyone is       entitled to a fair ... hearing within a reasonable time by       an independent and impartial tribunal established by law.       ..."         The Commission considers that it cannot, on the basis of the file, determine the admissibility of the above complaints and that it is therefore necessary, in accordance with Rule 48 para. 2 (b) of the Rules of Procedure, to give notice thereof to the respondent Government.   2.     Both applicants complain that the proceedings, including the question of reimbursement of the second applicant's fees and costs, were deliberately stalled by the courts.         The Commission has examined this complaint in the light of the above-cited Article 6 para. 1 (Art. 6-1) of the Convention. It recalls that the reasonableness of the length of the proceedings is to be determined in the light of the circumstances of the case and with reference to the criteria laid down in the Court's case-law, in particular the complexity of the case, the conduct of the applicant as well as that of the competent authorities. On the latter point, the importance of   what is at stake for the applicant in the litigation has to be taken into account (see, e.g., Eur. Court HR, Hokkanen v. Finland judgment of 23 September 1994, Series A no. 299-A, p. 25, para. 69).         Having regard to its competence ratione temporis, the Commission considers that the period of relevance to the assessment of whether the length of the proceedings was "reasonable" began to run on 10 May 1990, when the Convention entered into force with respect to Finland. The Commission will nevertheless take into account the stage reached in the domestic proceedings at the beginning of the period under consideration (see, e.g., No. 24559/94, Dec. 6.9.95, D.R. 82-A, pp. 76, 81).         The Commission notes that, on 10 May 1990, the first applicant's case had already been pending for about a year in the City Court. After that date the City Court's examination lasted approximately a further year and a half. The Court of Appeal's examination lasted about two years, whereas the Supreme Court's examination lasted some eight months.         The total length of the proceedings which the Commission must assess under Article 6 para. 1 (Art. 6-1) of the Convention thus amounts to some four years.         The Commission observes that the case was of a certain complexity and that a significant number of witnesses were heard. In the circumstances of the case and considering that the proceedings involved three court instances the Commission does not find that the present length of the proceedings could be considered unreasonable for the purposes of Article 6 para. 1 (Art. 6-1) of the Convention. Accordingly, there is no appearance of a violation of that provision on this point either.         It follows that this aspect of the complaint must also be rejected as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   3.     The first applicant complains about the lower courts' refusal to afford him legal aid pursuant to the Act on Cost-Free Proceedings.         The Commission recalls that under Article 25 (Art. 25) of the Convention it may receive petitions from any person, non-governmental organisation or group of individuals claiming to be the "victim" of a violation by one of the High Contracting Parties of the rights set forth in this Convention. It observes that the first applicant lodged a successful appeal to the Supreme Court against the lower courts' refusal to grant him legal aid. In these circumstances it finds that, as regards this aspect of the complaint, he can no longer claim status as a "victim" within the meaning of Article 25 (Art. 25) of the Convention.         It follows that this complaint must be rejected as being incompatible ratione personae with the provisions of the Convention within the meaning of Article 27 para. 2 (Art. 27-2).   4.     Both applicants complain that the legal aid amount eventually granted corresponded only to a tenth of the second applicant's fees and expenses and that no reasons were given therefor.         The Commission has examined this complaint in the light of the above-cited Article 6 para. 1 (Art. 6-1) of the Convention. It recalls that the applicability of this provision depends on whether there was a dispute   over a "right" which can be said, at least on arguable grounds, to be recognised under domestic law, and, if so, whether this right was of a "civil" character. In particular, the dispute must be genuine and serious, it may relate not only to the actual existence of a right but also to its scope and the manner of its exercise and, finally, the results of the proceedings concerning the dispute must be directly decisive for such a right (cf., e.g., Eur. Court HR, Zander v. Sweden judgment of 25 November 1993, Series A no. 279-B, p. 38, para. 22).         (a)   The partial refusal of claims under the legal aid scheme         The present complaint concerns the amounts which the courts found should be paid to the second applicant under the legal aid scheme. The Commission observes that domestic law prevented the second applicant from charging the first applicant directly for any fees or expenses not accepted by the courts pursuant to that scheme. The courts' partial refusal of the second applicant's claims did not therefore affect any "civil right" of the first applicant. It follows that Article 6 para. 1 (Art. 6-1) is inapplicable, as far as the complaint has been lodged by the first applicant.         As far as the complaint has been lodged by the second applicant, the Commission will assume that Article 6 para. 1 (Art. 6-1) is applicable (cf. No. 23003/93, Hummels v. the Netherlands, Dec. 28.2.96, unpublished, and Article 28 Report 26.6.96). This provision does not, however, guarantee that he should be paid any particular amount under a legal aid scheme. Accordingly, this aspect of this complaint discloses no appearance of any violation of Article 6 para. 1 (Art. 6-1) of the Convention.         (b)    The alleged absence of reasons for the refusal         Article 6 para. 1 (Art. 6-1) places the "tribunal" under a duty to conduct a proper examination of the submissions, arguments and evidence adduced by the parties, without prejudice to its assessment of whether they are relevant to its decision. It also obliges the courts to give reasons for their judgments, but cannot be understood as requiring a detailed answer to every argument. Nor are the Convention organs called upon to examine whether arguments are adequately met (see, e.g., Eur. Court HR, Van de Hurk v. the Netherlands judgment of 19 April 1994, Series A no. 288, pp. 19-20, paras. 59-61). The question whether a court has failed to fulfil the obligation to state reasons can only be determined in the light of the circumstances of the case (see, e.g., Eur. Court HR, Ruiz Torija v. Spain judgment of 9 December 1994, Series A no. 303-A, p. 12, para. 29).         The Commission notes that the Court of Appeal rejected part of the costs claimed by the second applicant as having been incurred unnecessarily. It found, moreover, that he had failed to present details of the compensation allegedly paid to the witnesses called by him.         It is true that the courts did not offer any explanation as to why the fees actually awarded differed so radically from those claimed by the second applicant. The Commission notes, however, that under domestic law he was entitled to receive a reasonable fee, the courts having particular regard to, for instance, the nature of the case, its difficulty and the quality of his work. In the circumstances as a whole the Commission finds no indication of a violation of Article 6 para. 1 (Art. 6-1) of the Convention on this point either.         It follows that within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention this complaint must be rejected as being incompatible ratione materiae with the Convention, as far as lodged by the first applicant, and as being manifestly ill-founded, as far as lodged by the second applicant.         For these reasons, the Commission,         DECIDES TO ADJOURN the examination of the first applicant's       complaints relating to the alleged partiality of Judge T of       the Helsinki City Court and the alleged unfairness of the       proceedings; and         unanimously,       DECLARES INADMISSIBLE the remainder of the application.     M.F. BUQUICCHIO                                  J. LIDDY      Secretary                                     President to the First Chamber                         of the First Chamber