CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 16 avril 1998

.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. 30519/96                       by Martta Annikki KARJALAINEN                       against Finland           The European Commission of Human Rights (First Chamber) sitting in private on 16 April 1998, the following members being present:              MM     N. BRATZA, Acting President                  M.P. PELLONPÄÄ                  A. WEITZEL                  C.L. ROZAKIS            Mrs    J. LIDDY            MM     L. LOUCAIDES                  B. MARXER                  I. BÉKÉS                  G. RESS                  A. PERENIC                  C. BÎRSAN                  K. HERNDL            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 6 March 1996 by Martta Annikki KARJALAINEN against Finland and registered on 19 March 1996 under file No. 30519/96 ;         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 1918. She resides in Kuopio.         The facts of the case, as submitted by the applicant, may be summarised as follows.         In 1979 the applicant bought her present apartment and moved in. She began to suspect that the accounts of the housing company taking care of the apartment building were wrong and that the management of finances was not done correctly. In 1984 she reported these alleged crimes to the police claiming that certain individuals had forged the accounts in order to obtain financial benefits for some shareholders of the housing company. The police   conducted certain investigations but they were closed as there was no evidence to support the applicant's allegations.         In 1985 the persons accused by the applicant instituted criminal proceedings against her in the District Court (käräjäoikeus, tingsrätt). The applicant was charged with slander. By judgment of 23 July 1985 the applicant was convicted of slander and fines were imposed. She was also ordered to pay compensation and legal expenses. The applicant appealed to the Court of Appeal (hovioikeus, hovrätt) which upheld the judgment in its essentials on 12 May 1987.         In the meantime, in 1986, the applicant had requested the police to investigate the alleged forgery again, but that was rejected by the police as the case had already been investigated once and as the applicant had submitted no relevant new information.         In 1987 the applicant's share in the housing company was seized as she owed some money to the company which had obtained a court judgment allowing the seizure of the applicant's apartment. The applicant had also failed to pay the fines imposed by the Court of Appeal in 1987. The applicant's apartment was therefore sold to YJ against her will and part of the money was used in order to pay her debts and fines. The applicant had to be removed by the police from the auction in which the apartment was sold as she had disturbed the occasion.         In 1989 the applicant requested the police for the third time to investigate the alleged forgery of the accounts of the housing company. Her request was rejected again as she had not submitted any new evidence.         In 1991 YJ lodged civil proceedings in the District Court against the applicant claiming the applicant to pay a debt which apparently had to do with the fact that YJ had bought the applicant's flat from the seizure auction. The District Court ordered the applicant to pay YJ on 25 October 1991. The applicant appealed to the Court of Appeal, which rejected the applicant's appeal on 4 February 1993. The applicant has not submitted any documents to the Commission concerning these proceedings.         In 1991 the applicant requested the County Administrative Board (lääninhallitus, länsstyrelse) to order the police to investigate her case. The request was transferred to the local police which rejected the request once more as there was no new evidence.         On 23 August 1993 the applicant instituted civil proceedings against the State of Finland and against the persons who had been involved in the management of the housing company. She claimed compensation amounting to more than FIM 5.3 million alleging that the civil servants who had been involved in her case during the previous years, including all police officers and judges involved, and the persons who had dealt with the accounts of the housing company had caused her mental and financial damage which had to be compensated.         On 17 December 1993 the first hearing was held in the District Court before judge OH whose employment as a judge was of a fixed duration. The applicant presented two witnesses. The defendants claimed that the claims should be rejected as there were no grounds therefor and as they were not based on law. The applicant submitted a substantial amount of documents and requested that several other witnesses be called. The case was adjourned in order to allow the applicant to identify and call such witnesses.         The case was heard on 18 February 1994 before another judge, KL, to whom the case and its entire file had been transferred. The applicant had not called further witnesses but she now wanted to institute proceedings also against a lawyer who had acted as her counsel during the previous criminal proceedings. The case was therefore adjourned once more.         The third District Court hearing was held on 14 March 1994 before judge KL. There were no witnesses heard. In its judgment of the same day, the District Court rejected all the claims stating, inter alia, as follows:   (Translation)         "According to chapter 3, section 5 of the Tort Liability       Act (vahingonkorvauslaki, skadeståndslag), it is       impossible to institute civil proceedings claiming       compensation for alleged damage following a court judgment,       if the judgment has not been quashed or amended or if the       person liable for the damage has not been convicted of a       criminal offence in his/her official capacity. [The       applicant] has claimed   compensation for the alleged damage       caused by the District Court judgment of 23 July 1985 by       judges P, JT and MS and by the Court of Appeal judgment of       12 May 1987 by judges AS, KP, MU and Pe. As the       above-mentioned judgments have not been quashed or amended       and as the judges have not been charged with having       committed any offence in their official capacity as regards       these judgments, there is no reason to investigate the       claims submitted by [the applicant].         [The applicant] has also claimed compensation for her       mental sufferings.         According to the Tort Liability Act such compensation can       only be claimed in criminal proceedings. As the present       proceedings are civil the claim must be rejected as it is       not in accordance with the law.         The burden of proof lies with [the applicant] also when the       claims are lodged against civil servants in their official       capacity.         To support her claims, [the applicant] has submitted a       large amount of documents and calculations to the court.         [The applicant] has presented VL and IP as witnesses in       court. The witnesses had investigated the accounts of the       housing company beforehand. The witnesses could not confirm       [the applicant's] claims concerning the misconduct of the       financial management of the housing company.         [The applicant] has not been able to prove that other       parties to the proceedings have committed such offences or       acted with such negligence as alleged by her that they have       caused [the applicant] damage. The Court does not find it       established that there are any grounds for   compensation to       be paid by the State of Finland or other defendants       according to the law. All the claims for compensation are       therefore found to be groundless."         On the basis of above findings the District Court rejected the claims. The applicant appealed to the Court of Appeal complaining, inter alia, that the judgment showed bias against her and violated her human rights. The applicant also complained that she was not allowed to read aloud some of the documents submitted by her in court and that the documents were held in a separate document file instead of the minutes of the court. She finally disagreed with the reasoning of the judgment and found that she had been able to prove her case.         On 16 May 1995 the Court of Appeal upheld the judgment of the District Court.         The applicant appealed to the Supreme Court complaining that she had not been afforded a fair trial as her compensation claims had not been investigated and as the rest of her claims had been rejected. She also complained that the District Court judge had decided the case without having heard the witnesses herself. She further complained that two of the Court of Appeal judges had participated in a case against her in 1993.         On 13 September 1995 the Supreme Court (korkein oikeus, högsta domstolen) refused to grant leave to appeal.         On 28 November 1995 and 22 February 1996 the applicant complained to the Chancellor of Justice (oikeuskansleri, justitiekansler) claiming that she had not been afforded a fair hearing by an independent and impartial tribunal and that the judges involved had committed offence in their official capacity. She also complained that she could not have the alleged crimes investigated by the police. She further claimed that the Court of Appeal had forged her appeal as the Court of Appeal had allegedly withheld two pages from the annexes of her appeal when the documents were sent to the Supreme Court. Finally, she complained that the Supreme Court had not given any reasons for its decision to refuse to grant leave to appeal.         On 27 June 1996 the Deputy Chancellor of Justice (apulais- oikeuskansleri, justitiekansleradjoint) rejected the applicant's claims stating, inter alia, as follows: (Translation)         "The judgment of the Court of Appeal is final as the       Supreme Court refused leave to appeal. Such a judgment can       only be set aside if the Supreme Court agrees to reopen the       case according to section 31 of the Code of Judicial       Procedure (oikeudenkäymiskaari, rättegångs balk).         There are no grounds for the Chancellor of Justice to lodge       such proceedings ex officio. [The applicant] has a       possibility to apply for the reopening of the case herself       if she so wishes.         ...         [The applicant] mailed a copy of her appeal [to the Supreme       Court] both to the Court of Appeal [where it was supposed       to be mailed] and also to the Supreme Court at the same       time. She   suspected that the Court of Appeal had withheld       two pages from the appeal which had been sent to the Court       of Appeal. The Chancellor of Justice has received a copy of       the documents from the Supreme Court and in the annexes of       those documents there were two copies of the pages which       had been claimed to be missing. Thus, there is no reason to       suspect that the Court of Appeal withheld those pages from       the appeal.         As regards the decision of the police not to conduct       investigations, the Deputy Chancellor of Justice agrees       with the reasons given in the decision and ,therefore,       there are no such findings which could lead to the       conclusion that the police has exceeded its authority.         Therefore, the Deputy Chancellor of Justice has found no       reasons for further actions in this case."     COMPLAINTS   1.     Invoking Article 6 para. 1 of the Convention the applicant complains that she did not have a fair trial by an independent and impartial tribunal. She refers in this respect to the following aspects:   a)     The applicant complains that the District Court was not an independent tribunal as the first hearing was held before judge OH whose employment as a judge was of a fixed duration.   b)     The applicant complains that she was not afforded a fair trial as the following two hearings were held before another judge who decided the case although she had not heard or seen the witnesses heard in the first hearing.   c)     The applicant further complains that the Court of Appeal was not an impartial tribunal as some of the Court of Appeal judges had participated in a case against her in 1993.   d)     Furthermore, the applicant complains that she was not afforded a fair and public hearing as the Court of Appeal allegedly withheld two pages from her appeal to the Supreme Court.   e)     The applicant also complains that she was not afforded a fair trial as the Supreme Court did not give reasons for its decision to refuse leave to appeal.   2.     The applicant finally complains that she did not have an effective remedy before a national authority as her claims for compensation against the civil servants were not investigated. She invokes Article 13 of the Convention.     THE LAW   1.     The applicant submits a number of complaints concerning the fairness of the civil proceedings instituted by her. She invokes in this respect Article 6 para. 1 (Art. 6-1) of the Convention which in its relevant parts reads as follows:         "1. In the determination of his civil rights and       obligations ..., everyone is entitled to a fair and public       hearing ... by an independent and impartial tribunal       established by law..."         With regard to the judicial decisions of which the applicant complains, 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 in 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. The Commission refers, on this point, to the established case-law of the Convention organs (cf. e.g. Eur. Court HR, Schenk v. Switzerland judgment of 12 July 1988, Series A no. 140, p.25, para. 45).         It is true that in this case the applicant also complains of a number of procedural shortcomings but the Commission considers that these complaints are inadmissible for the following reasons:   a)     The applicant first complains that the District Court was not an independent tribunal as the first hearing was held before judge OH whose employment as a judge was of a fixed duration.         With regard to the alleged lack of independence of the District Court in general, the Commission notes that the applicant has not indicated how the District Court failed in its duty to be independent. On the other hand, the applicant maintains that the District Court judge OH, the sole judge, remained dependent on the State of Finland as his employer, particularly on account of the fact that he was required to exercise judicial powers only for a short fixed period.         In this respect the Commission notes that the applicant never raised this complaint before the Finnish courts. The Commission, however, need not decide whether the applicant has exhausted domestic remedies as required by Article 26 (Art. 26) of the Convention, as the complaint is in any event inadmissible for the following reasons.         According to the Commission's established case-law, the requirement for a judge to be independent does not necessarily imply that he should be appointed for life (No. 12717/87, Dec. 8.9.88, D.R. 57, p. 196)) or that he should have security of tenure in law (in other words, that he cannot be given other duties without his consent). It is essential, however, that he should not be subject to any authority in the performance of his duties as a judge (No. 8209/78, Dec. 1.3.79, D.R. 16, p. 166). The District Court judge cannot be removed for the duration of his or her mandate. Moreover, when he or she sits as a judge he or she is not answerable to anyone about the way in which he or she administer justice. The District Court judge is not subject to any authority in the exercise of his or her judicial functions. The District Court judge's independence is further guaranteed by the fact that the District Court judge makes a public and solemn undertaking to abide by the obligations of independence and impartiality.         An examination by the Commission of this part of the application does not therefore disclose any appearance of a violation of Article 6 para. 1 (Art. 6-1) of the Convention.         It follows that this part of the application is manifestly ill- founded and must in this respect be rejected under Article 27 para. 2 (Art. 27-2) of the Convention.   b)     Secondly, the applicant complains that she was not afforded a fair trial in the District Court as the last two hearings were held before another judge who then decided the case without having heard two witnesses personally.         According to the established case-law of the Convention organs, the question whether the proceedings have been conducted in accordance with the requirements of a fair trial, as provided for in Article 6 para. 1 (Art. 6-1) of the Convention, must be decided on the basis of an assessment of the proceedings as a whole (cf. e.g. No. 12952/87, Dec. 6.11.90, D.R. 67, p. 175 and No. 22909/93, Dec. 6.9.95, D.R. 82-B, p. 25).         The Commission recalls that the case was transferred to judge KL in its entirety including transcripts of the statements of the witnesses concerned. It is not in dispute that the transcripts correctly set out the statements made by the witnesses; nor is it alleged that any arbitrary conclusions were drawn therefrom. Nor has any evidence been submitted which could lead to the conclusion that it would have been of relevance to hear these witnesses once more. In these circumstances, and having regard also to the subject matter of the applicant's claims before the domestic courts, the Commission does not find that judge KL, in relying on the court transcripts, acted in a way which would render the proceedings unfair. Thus, this part of the application does not disclose any appearance of a violation of Article 6 para. 1 (Art. 6-1) of the Convention.         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.   c)     Thirdly, the applicant complains that the Court of Appeal was not an impartial tribunal as some of the Court of Appeal judges had participated in one of her cases in 1993.         The Commission recalls that the existence of impartiality for the purposes of Article 6 para. 1 (Art. 6-1) must be determined according to a subjective test, that is on the basis of the personal conviction of a particular judge in a given case, and also according to an objective test, that is ascertaining whether the judge offered guarantees sufficient to exclude any legitimate doubt in this respect (cf. e.g. No. 15975/90, Dec. 1.7.91, D.R. 71, p. 245 and Eur. Court HR, Hauschildt v. Denmark judgment of 24 May 1989, Series A no. 154, p. 21, para. 46).         As to the subjective test, the personal impartiality of a judge must be presumed until there is a proof to the contrary. In the present case the Commission has not found any substantiated facts which could raise doubt in this respect.         Under the objective test, it must be determined whether there were ascertainable facts which may raise doubts as to their impartiality. In this respect, even appearances may be of a certain importance. According to the established case-law of the Commission, the fact that some of the judges have participated in previous proceedings against the applicant does not in itself justify doubts as to their impartiality (cf. e.g. No. 11879/85, Dec. 6.12.89, D.R. 63, p. 105, No. 13635/88, Dec. 4.4.90, D.R. 65, p. 232 and No. 17722/91, Dec. 8.4.91, D.R. 69, p. 345).         In this case, the fear of lack of impartiality was based on the fact that the Court of Appeal judges who decided a case lodged by YJ against the applicant in 1993 also decided on the appeal in the present case. This kind of situation may occasion misgivings on the part of a party as to the impartiality of the judges, misgivings which are understandable but which nevertheless cannot necessarily be treated as objectively justified. Whether they should be so treated depends on the circumstances of each particular case.         In this respect the Commission recalls that the applicant mentioned two of the Court of Appeal Judges in her written observations to the District Court. Those judges subsequently participated in the determination of the present case in the Court of Appeal on 16 May 1995. However, their names were just mentioned in the written observations as a fact and no claims were made against them. As the case of 1993 were of no relevance in this case and as the judges were not among those individuals from whom the applicant claimed damages, the Commission does not find that the applicant has submitted any evidence which would call into question the impartiality of the court.         Thus, the Commission finds that this part of the application does not disclose any appearance of a violation of Article 6 para. 1 (Art. 6-1) of the Convention.         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.   d)     Furthermore, the applicant complains that she was not afforded a fair and public hearing as the Court of Appeal allegedly withheld two pages from her appeal to the Supreme Court.         The Commission notes, that the Deputy Chancellor of Justice examined this claim and found that the pages which were claimed to be missing were actually copied twice to the files of the Supreme Court. Therefore, the Commission finds that this part of the application does not disclose any appearance of a violation of Article 6 para. 1 (Art. 6-1) of the Convention.         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.   e)     The applicant also complains that she was not afforded a fair trial as the Supreme Court did not give reasons for its decision to refuse leave to appeal.         An examination as to whether leave to appeal shall be granted is, in the Commission's opinion, only an examination as to whether the conditions of leave to appeal are satisfied and not an examination of the merits of the appeal. The Commission refers to its previous case- law according to which an examination of an application for leave to appeal by the Supreme Court does not involve a determination of "civil rights and obligations" (cf. No. 11855/85, Dec. 15.7.87, D.R. 53, p. 190 and No. 17925/91, Dec. 8.10.91, unpublished). Therefore, Article 6 (Art. 6) does not apply to the leave to appeal proceedings before the Supreme Court.         It follows that this complaint is incompatible ratione materiae with the provisions of the Convention and must be rejected pursuant to Article 27 para. 2 (Art. 27-2) of the Convention.   2.     Finally, the applicant complains that she did not have an effective remedy before a national authority as her claims for compensation against the civil servants were not investigated. She invokes Article 13 (Art. 13) of the Convention which reads as follows:         "Everyone whose rights and freedoms 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 recalls that the word "remedy", within the meaning of this provision, does not mean a remedy which is bound to succeed, but simply an accessible remedy before an authority competent to examine the merits of a complaint (cf. No. 9276/81. Dec. 17.11.83, D.R. 35, p. 13 and No. 10496/83, Dec. 14.5.84, D.R. 38, p. 189).         In the present case, the applicant's claims were heard before two court instances in proceedings satisfying Article 6 (Art. 6) of the Convention. The Commission finds, therefore, that the requirements of Article 13 (Art. 13) of the Convention are equally satisfied.         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.         For these reasons, the Commission, unanimously,         DECLARES THE APPLICATION INADMISSIBLE.     M.F. BUQUICCHIO                                  N. BRATZA      Secretary                                  Acting President to the First Chamber                         of the First Chamber