CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 3 décembre 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. 27866/95                       by Jaakko Johannes MARKKULA                       against Finland           The European Commission of Human Rights (First Chamber) sitting in private on 3 December 1997, the following members being present:              Mrs    J. LIDDY, President            MM     M.P. PELLONPÄÄ                  E. BUSUTTIL                  A. WEITZEL                  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 15 May 1995 by Jaakko Johannes Markkula against Finland and registered on 17 July 1995 under file No. 27866/95;         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 applicant is a Finnish citizen, born in 1926 and resident in Kangasala, Finland. Before the Commission he is represented by Mr Pekka Suojanen, a lawyer practising in Tampere.         The facts of the case, as submitted by the applicant, may be summarised as follows.         The applicant and his brother owned jointly some real estates and other property they had inherited from their parents. On 23 February 1990 the applicant and his wife on the one side and the applicant's brother and his wife on the other side signed a contract concerning the partition of the said property.         On 13 August 1992 the Pirkkala District Court (kihlakunnanoikeus, häradsrätten) found the applicant incapable of caring for his economic affairs and ordered his wife to act as his trustee as regards such matters until further notice.         In 1992 the applicant and his wife instituted civil proceedings before the Pirkkala District Court against the applicant's brother and the latter's wife with a view to having the contract of 23 February 1990 declared void. They argued, inter alia, that at the time of the transaction they had been incapable of evaluating the contents and consequences of the contract and that they therefore had been incapable of contracting. Accordingly, they contended that the contract could not bind them. Furthermore, they referred to the alleged unfairness of the partition.         In the course of the proceedings the plaintiffs submitted written medical statements concerning the applicant's legal capacity. According to the statements the applicant had a diminished legal capacity which in particular appeared in situations involving division of property, especially, if he was under any pressure. The court heard witnesses as to the alleged incapacity from the medical and psychological points of view and as to the circumstances relating to the contract at issue. According to a witness, an expert in psychiatry, the incapacity from which the applicant allegedly suffered was rare.         According to chapter 3 of the Legal Transactions Act (laki varallisuusoikeudellisista oikeustoimista, lag om rättshandlingar på förmögenhetsrättens område 228/1929) as in force at the relevant time, a legal transaction may be declared void under certain conditions, inter alia, on account of a person's lack of understanding.         On 1 February 1993 the District Court considered, on the basis of the available evidence, that it could not be established that pressure had been used during the negotiations for the contract or its signing and that the applicant and his wife for this or any other reason would have been incapable of judging clearly the contents and consequences of the transaction at issue or that they would have lacked the sense of judgment the contract at issue had required and that they, accordingly, would have been incapable of contracting. The District Court therefore rejected the claims.         Subsequently, the applicant and his wife appealed against the judgment to the Turku Court of Appeal (hovioikeus, hovrätten). They submitted several written medical statements, some of them after the   time-limit for lodging an appeal, and requested an oral hearing to examine several witnesses two of whom had been heard before the District Court.         According to chapter 25, section 12 of the Code of Judicial Procedure (Oikeudenkäymiskaari, Rättegångs Balk), as in force at the relevant time, the time limit for lodging an appeal is 30 days from the day the lower court renders its judgment or decision. According to chapter 26, section 5 of the Code of Judicial Procedure the Court of Appeal may, if a special reason appears, take into consideration submissions and documents which arrive after the lime limit.         On 4 August 1994 the Court of Appeal decided to disregard the evidence which had been submitted belatedly since no special reason for taking it into account had been presented, deemed an oral hearing unnecessary and, without holding one, upheld the judgment of the District Court. In its reasoning the Court of Appeal noted, inter alia, that a psychologist and a psychiatrist heard as witnesses had been of the opinion that the applicant had been in a state in which he was incapable of safeguarding his interests in the partition. However, two witnesses, lawyers who had been present during the transaction, had noticed nothing to the effect that the applicant's interests would not have been attended to. Accordingly, the Court of Appeal considered that the statements of the above-mentioned psychologist and psychiatrist did not show that the applicant had been in such a state that he was unable to understand the meaning of the transaction and to safeguard his interests therein.         The applicant and his wife requested leave to appeal to the Supreme Court (korkein oikeus, högsta domstolen). On 23 November 1994 the Supreme Court refused their request.     COMPLAINTS   1.     The applicant complains that he was not afforded a fair trial. He maintains that the courts decided the case contrary to the evidence presented and thus refused him the protection the law provided. He also contends that the Turku Court of Appeal refused to hold an oral hearing to examine witnesses and disregarded part of the medical statements submitted. He invokes Article 6 para. 1 of the Convention.   2.     Furthermore, the applicant complains that he was denied an effective remedy taking into consideration that the courts decided the case against the evidence given of his capacity to contract. He invokes Article 13 of the Convention.   3.     The applicant also complains that he was discriminated against on the ground of his health. He maintains that he did not receive the legal protection he was entitled to although his incapacity was proved by the evidence. In this connection he invokes Article 14 of the Convention.   4.     Finally, the applicant complains that his right to the peaceful enjoyment of his possessions was interfered with. He claims that by rejecting his action the national courts failed to give him the necessary protection. The applicant invokes Article 1 of Protocol No. 1 to the Convention.   THE LAW   1.     The applicant complains that he was denied a fair hearing. He claims that the courts decided the case contrary to the evidence. He also maintains that the Court of Appeal refused to hold an oral hearing and disregarded part of the evidence. He invokes Article 6 para. 1 (Art. 6-1) of the Convention, which, in so far as relevant, reads as follows:         "In the determination of his civil rights and obligations       ..., everyone is entitled to a fair and public hearing       within a reasonable time by an independent and impartial       tribunal established by law. ..."         The Commission recalls that, in accordance with Article 19 (Art. 19) of the Convention, its only task is to ensure the observance of the obligations undertaken by the Parties to the Convention. In particular, it is not competent to deal with an application alleging that errors of law or fact have been committed by domestic courts, except where it considers that such errors might have involved a possible violation of any of the rights and freedoms set out in the Convention or one of its Protocols (cf. Eur. Court HR, Schenk v. Switzerland judgment of 12 July 1988, Series A no. 140, p. 29, para. 45).         The applicant claims that the courts decided the case contrary to the evidence presented. The Commission notes, however, that the District Court and the Court of Appeal rendered judgments in which they assessed the evidence and, on the basis of this assessment, reached a reasoned conclusion. The Commission has not found any appearance of a violation of the Convention or its Protocols as regards this particular aspect of the proceedings.         The Commission has examined next whether the refusal to hold an oral hearing in the Court of Appeal discloses any appearance of a violation of the applicant's right to a fair trial within the meaning of Article 6 (Art. 6). It notes Finland's reservation to Article 6 (Art. 6) which reads, in so far as relevant, 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, the Supreme       Court, ... in accordance with Chapter 26, Sections 7 and 8,       as well as Chapter 30, Section 20 of the Code of Judicial       Procedure..."         The Commission finds that the above-mentioned reservation covers the applicant's complaint concerning the lack of an oral hearing before the Court of Appeal. It follows that the Commission is barred ratione materiae from examining this part of the applicant's complaints in respect of the proceedings in the Court of Appeal.         As regards the evidence the Court of Appeal disregarded the Commission recalls that the admissibility of evidence is primarily governed by the rules of domestic law. The task of the Convention organs is to ascertain whether the proceedings, considered as a whole, were fair (cf. e.g. Eur. Court HR, Lüdi v. Switzerland judgment of 15 June 1992, Series A no. 238, p. 20, para. 43 and the reference therein).       The Commission observes that the Court of Appeal decided to disregard only the evidence which was submitted belatedly. The decision was based on the Court's view that no special reason appeared for taking this evidence into account. The applicant had 30 days to submit documents to the Court of Appeal. Nevertheless, he submitted part of the evidence after the time reserved for submissions had expired. The applicant has not claimed that he could not have submitted the evidence earlier, nor has he presented any special reason why the evidence ought to have been taken into consideration. Having regard to this the Commission finds that the Court of Appeal did not go beyond its discretion as regards the evidence in question. In these circumstances and considering the proceedings as a whole, the Commission cannot find any indication that the proceedings were unfair.         It follows that this part of the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.     The applicant complains that he was denied an effective remedy since the courts allegedly decided the case contrary to the evidence. He invokes Article 13 (Art. 13) of the Convention, which provides as follows:         "Everyone whose rights and freedoms as set forth in this       Convention are violated shall have an effective remedy       before a national authority notwithstanding that the       violation has been committed by persons acting in an       official capacity."         The Commission notes that the applicant had available to him a court remedy as required by Article 6 para. 1 (Art. 6-1) of the Convention in respect of the dispute concerning the partition of the property. Furthermore, the Commission has recognised that the procedural guarantees of Article 6 (Art. 6) take precedence over those of Article 13 (Art. 13) where a "civil right" is at issue, because the guarantees of this Article are more rigorous than those of Article 13 (Art. 13) (see e.g. No. 11949/86, Dec. 1.12.86, D.R. 51, p. 195).         Thus, the Commission considers that, having regard to its decision relating to Article 6 para. 1 (Art. 6-1), it is unnecessary to examine the application from the standpoint of Article 13 of the Convention since the requirements of the latter provision are less strict and are here absorbed by those of Article 6 para. 1 (Art. 6-1).         Accordingly, this part of the application must be rejected as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   3.     The applicant complains that he was discriminated against on the ground of his health. He invokes Article 14 (Art. 14) of the Convention which provides as follows:         "The enjoyment of the rights and freedoms set forth in this       Convention shall be secured without discrimination on any       ground such as sex, race, colour, language, religion,       political or other opinion, national or social origin,       association with a national minority, property, birth or       other status."         The Commission notes that the proceedings the applicant complains of involved the evaluation of his health. The District Court found that it had not been established that this played any significant role at the time of the transaction. The Court of Appeal upheld this judgment and the Supreme Court refused the applicant leave to appeal. Furthermore, the applicant has not shown that there would have been any discrimination as regards the proceedings in general. In these circumstances the Commission finds the applicant's allegation to be unsubstantiated.         It follows that this part of the application must be rejected as manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   4.     The applicant finally complains under Article 1 of Protocol No. 1 (P1-1) to the Convention that the national courts failed to give him the necessary protection by not finding in his favour.         Article 1 of Protocol No. 1 (P1-1) to the Convention reads as follows:         "Every natural or legal person is entitled to the peaceful       enjoyment of his possessions. No one shall be deprived of       his possessions except in the public interest and subject       to the conditions provided for by law and by the general       principles of international law.         The preceding provisions shall not, however, in any way       impair the right of a State to enforce such laws as it       deems necessary to control the use of property in       accordance with the general interest or to secure the       payment of taxes or other contributions or penalties."         The Commission must first consider whether there has been a deprivation of or other interference with the applicant's possessions within the meaning of Article 1 of Protocol No. 1 (P1-1).         The Commission recalls that the second sentence of Article 1 of Protocol No. 1 (P1-1) dealing with deprivation of possessions is generally intended to refer to acts whereby a State lays hands on, or authorises a third person to lay hands on, a particular piece of property for a purpose which is to serve the public interest. Property transfers which take place in the context of the settlement of relations between individuals do not normally amount to deprivation of possessions within the meaning of Article 1 (Art. 1), notwithstanding the fact that the State through its courts may have provided a forum for such a settlement (see No. 8588/79 & 8589/79, Dec. 12.10.82, D.R. 29, p. 64 and No. 11949/86, Dec. 1.12.86, D.R. 51, p. 195). In the Commission's view similar principles apply in the determination of whether there has been an interference with possessions where this interference is not covered by the second sentence.         In the present case the alleged violation of the property rights took place in connection with civil proceedings between private parties which the Commission has found above to have been in conformity with Article 6 (Art. 6). It follows that there is no appearance of a violation of Article 1 of Protocol No. 1 (P1-1).         This part of the application must therefore be rejected as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.         For these reasons, the Commission, unanimously,         DECLARES THE APPLICATION INADMISSIBLE.     M.F. BUQUICCHIO                                  J. LIDDY      Secretary                                     President to the First Chamber                         of the First Chamber