CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 19 janvier 2010

.s800EAC49 { font-size:12pt } .s523616E0 { margin-top:0pt; margin-bottom:12pt; text-align:center; font-size:14pt } .sBB9EE52A { font-family:Arial } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sB9D5CABB { width:28.35pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .s967D43C6 { margin-top:36pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s7EE1C8F0 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .sC702907E { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s8378218E { margin-top:12pt; margin-left:48.75pt; margin-bottom:6pt; text-indent:-17pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sF9B3189B { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify } .s4B8D41EE { font-family:Arial; font-size:10pt } .s9D48DD53 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s88A92475 { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .sFFD057F { margin-top:0pt; margin-left:14.2pt; margin-bottom:0pt; text-align:justify } .sDD165512 { margin-top:12pt; margin-left:14.2pt; margin-bottom:0pt; text-align:justify } .s7CB9076 { margin-top:36pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid } .sF8DCB537 { width:16.53pt; display:inline-block } .s25347E17 { width:182.43pt; display:inline-block } .s7602FED2 { width:18.21pt; display:inline-block } .sC1AC44A4 { width:228.11pt; display:inline-block } FOURTH SECTION DECISION Application no. 12490/06 by Carita Linnea ACKERMANN against Finland The European Court of Human Rights (Fourth Section), sitting on 19   January 2010 as a Chamber composed of:   Nicolas Bratza, President,   Lech Garlicki,   Ljiljana Mijović,   David Thór Björgvinsson,   Ján Šikuta,   Päivi Hirvelä,   Mihai Poalelungi, judges, and Lawrence Early, Section Registrar , Having regard to the above application lodged on 3 April 2006, Having regard to the observations and declaration submitted by the respondent Government and the observations in reply submitted by the applicant, Having deliberated, decides as follows: THE FACTS The applicant, Ms Carita Linnea Ackermann, is a Finnish and Swiss national who was born in 1945 and lives in Helsinki. She was represented before the Court by Mr Leo Hertzberg, a lawyer practising in Helsinki. The Finnish Government (“the Government”) were represented by their Agent, Mr   Arto   Kosonen of the Ministry for Foreign Affairs. A.     The circumstances of the case The facts of the case, as submitted by the parties, may be summarised as follows. 1.     The substantive proceedings A.     Background In 1992 the applicant and X. divorced. The Helsinki District Court ( käräjäoikeus, tingsrätten ) ordered Mr E.P., a lawyer, to administer and divide the ex-spouses’ property. When entering into marriage they had concluded a marriage contract according to which neither of them had a matrimonial right to the other’s property. On 1 February 1994 Mr E.P. drew up the deed of partition dividing the property. He upheld the applicant’s claim for making the partition equitable, finding that the upholding of the marriage contract as such would be unreasonable in the circumstances as they had been married for seventeen years and had two children, the applicant had given up her employment when their first child was born to attend to the home and the children, and she had no income nor professional skills on the strength of which she could easily find work. These factors were weightier than other factors speaking against adjustment which, however, worked to prevent a complete acceptance of the applicant’s claims. In short, the partition deed stated that the applicant had a matrimonial right to the equivalent of some 400,000   euros (EUR), consisting of bank deposits and the shares of the apartment the spouses had used as their home. Her marital share in the property therefore amounted to about EUR 200,000. In this connection, it should be noted that X. kept his portion (one fourth) of a property called Westerkulla, to which the applicant did not have a marital right as he had previously received it on such condition. B.     The Helsinki District Court On 30 July 1994 the applicant and X., separately, challenged the partition. The District Court served X.’s application for a summons on the applicant without undue delay. However, it took the court until 15   May   1997 before her application for a summons was served on X. On 16 July 1999 X. died and his undivided estate succeeded him in the proceedings. Later that year, the District Court ordered a Mr   U.M. to administer and divide the property of his estate. In 2000 he was replaced by a Mr G.G. On 4 August 2000 the District Court, having held an oral hearing, upheld the partition. As to the adjustment claim, the court specifically endorsed the reasons in the deed of partition. C.     The Helsinki Court of Appeal Both parties appealed against the District Court’s judgment. The applicant no longer requested that the Westerkulla real property should be taken into account when adjusting the partition. On 21   November and 3 December 2004 the Court of Appeal ( hovioikeus, hovrätten ) held an oral hearing but not on the issue of whether there were grounds to make the partition equitable. On 21 February 2005 the Court of Appeal gave judgment. In short, it found no reasons for making the partition equitable and overturned the lower court’s judgment. While the case was pending before the Court of Appeal, T., an estate which owned half of the Westerkulla property, bought the estate portions of two of X.’s children. Thereby T. became a party to the partition proceedings. The applicant argues that T. had an interest in the outcome of the partition proceedings as it was affected by whether or not the partition was made equitable, which in turn affected the value of X.’s estate. One fourth of the real property was owned by X.’s estate and another fourth by X.’s sister. D.     The Supreme Court The applicant appealed, maintaining her action. She also contended that the presiding judge of the Court of Appeal should have withdrawn as he was biased. On 4 October 2005 the Supreme Court ( korkein oikeus, högsta domstolen ) refused the applicant leave to appeal. 2.     Alleged partiality on the part of the Court of Appeal The presiding judge of the Court of Appeal was at the material time involved in various other proceedings challenging the city of Helsinki’s plan to build the Nordsjö harbour ( Vuosaaren satama, Nordsjö hamn ), which allegedly affected an island owned by him. Those proceedings allegedly had a bearing also on the Westerkulla real property which was partly owned by X.’s estate, partly by T.’s estate and partly by a Ms I.A., the applicant’s ex-sister-in-law. The applicant argues that T.’s estate and the presiding judge had a mutual interest in influencing the city’s plans so that the value of their real estates would not drop. The applicant also argues that T.’s estate and the presiding judge might to some extent also have had opposing interests. It was, however, clear that the interests of the presiding judge differed from those of X.’s estate as the latter was in favour of building the harbour. The applicant alleges that she became aware of these proceedings only after the Court of Appeal had delivered its judgment in the partition case. She does not, however, specify the circumstances in which she learned about them. B.     The relevant domestic law According to section 103 b, subsection 2, paragraph 3, of the Marriage Act ( avioliittolaki, äktenskapslagen ; Act no. 411/1987), when adjusting the distribution of matrimonial property, it may be ordered that all or part of the property which has been excluded from the marital right of the other spouse by way of a marriage settlement shall, in the distribution, be considered as property subject to the marital right of the other spouse. Chapter 18, section 1, of the Code of Inheritance ( perintökaari, ärvdabalken ; Act no. 40/1987) provides that: [t]he heirs, the universal beneficiaries under a testament and the surviving spouse shall be shareholders in the deceased’s estate. If the distribution of matrimonial property has been carried out or the spouse does not have a marital right to the property of the other spouse, the surviving spouse shall not be a shareholder unless he or she is an heir or a universal beneficiary. A person who has the right to inherit or receive under a testament only after the death of another heir or universal beneficiary shall be a sharehold er in the estate of this latter person, but not in the estate of the first deceased. COMPLAINTS 1.     The applicant complained under Articles 6 and 14 of the Convention about the length of the proceedings and that the State had failed to ensure the availability of a satisfactory number of judges with sufficient knowledge of the Swedish language in the Helsinki Court of Appeal. The sole reason for the delay had been the fact that the applicant had chosen to use the Swedish language in the proceedings, a right which was accorded to her by law. 2.     She also complained that the Court of Appeal should have held a hearing as regards the whole case. The Court of Appeal should not have overturned the lower court’s judgment without holding a hearing. 3.     Lastly, she complained that the presiding judge of the Court of Appeal had been biased as he and T.’s estate had been parties to another set of proceedings pending at the same time before the administrative court. THE LAW A.     Length of the proceedings The applicant complained about the length of the civil proceedings. She relied on Article 6 §   1 of the Convention which, inter alia , provides as follows: “In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing within a reasonable time by [a] ... tribunal ...” By a letter dated 23 October 2009 the Government informed the Court of their unilateral declaration, signed on the same date, with a view to resolving the issue raised by this complaint. The declaration provided as follows: “1.     Whereas the efforts with a view to securing a friendly settlement of the case have been unsuccessful, the Government wishes to express – by way of its unilateral declaration – its acknowledgement, in the special circumstances of the present case, that the length of the civil proceedings have failed to fulfil the requirement of ”reasonable” within the meaning of Article 6 § 1 of the Convention. 2.     Consequently the Government is prepared to pay the applicant in compensation a total sum of EUR 10,450 (ten thousand four hundred and fifty euros). This sum includes EUR 9,975 (nine thousand nine hundred and seventy five euros) for non-pecuniary damage and EUR 475 (four hundred and seventy five euros) for costs and expenses (inclusive of VAT). In the Government’s view, the aforementioned total sum would constitute adequate redress and sufficient compensation for the impugned length of the said civil proceedings, and thus constitute an acceptable sum as to quantum in the present case. 3.     The total sum will be payable within three months from the date of notification of the decision pursuant to Article 37 § 1 (c) of the Convention. In the event of a failure to pay this sum within the said three-month period, the Government undertakes to pay simple interest on it, from the expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. 4.     In the light of above, the Government would suggest that the circumstances of the present case allow the Court to reach the conclusion that there exists ‘any other reason’, as referred to in Article 37 § 1 (c) of the Convention, justifying the Court to discontinue the examination of the application in terms of the said impugned violation of Article 6 § 1 of the Convention with respect to the applicant, and that, moreover, there are no reasons of a general character, as defined in Article 37 § 1 in fine , which would require the further examination of that complaint by virtue of that provision. 5.     Accordingly, the Government invites the Court to strike the application in terms of the impugned violation of Article 6 § 1 of the Convention out of its list of cases. The applicant did not comment on the Government’s unilateral declaration. The Court notes that both parties filed submissions with the Registry in the context of friendly settlement negotiations (Article 38 § 1 (b) of the Convention and Rule 62 of the Rules of Court). No settlement was reached. Article 37 of the Convention provides that the Court may, at any stage of the proceedings, decide to strike an application out of its list of cases where the circumstances lead to one of the conclusions specified under (a), (b) or (c) of paragraph 1 of that Article. Article 37 § 1 (c) enables the Court in particular to strike a case out of its list if: “for any other reason established by the Court, it is no longer justified to continue the examination of the application”. Article 37 § 1 in fine includes the following proviso: “However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires.” The Court points out that, under certain circumstances, it may be appropriate to strike out an application, or part thereof, under Article   37   §   1   (c) of the Convention on the basis of a unilateral declaration filed by the respondent Government even if the applicant wishes the examination of the case to be continued. In deciding whether or not it should strike the length of proceedings complaint out of its list, the Court will examine carefully the terms of the declaration made by the Government in the light of the principles emerging from its case-law, in particular its judgments in cases such as Tahsin Acar v. Turkey [GC] (no.   26307/95, §§   75-77, ECHR 2003-VI); Meriakri v. Moldova ((striking out), no.   53487/99, 1 March 2005); Swedish Transport Workers Union v. Sweden ((striking out), no. 53507/99, 18 July 2006); Van Houten v. the Netherlands ((striking out), no. 25149/03, ECHR 2005 ‑ IX), Kalanyos and Others v. Romania ((no.   57884/00, § 25, 26 April 2007)), and K.K. v. Finland ((striking out), no. 7779/04, 27 November 2007). The Court observes that the civil proceedings lasted eleven years and two months at three levels of jurisdiction. It notes that the Government’s declaration contains a clear acknowledgment that the “reasonable time” requirement has not been respected within the meaning of Article 6 § 1 of the Convention. The Court is satisfied that the total amount offered to the applicant by the Government in compensation for non-pecuniary damage and costs and expenses, that is 10,450 euros, constitutes adequate redress for the excessive length of the proceedings having regard to all the circumstances of the case, and that this amount is consistent with the amounts awarded in other similar cases. The Court has established in a number of cases its practice concerning complaints about the violation of one’s right to a hearing within a reasonable time (see, for example, Frydlender v. France [GC], no.   30979/96, § 43, ECHR 2000-VII and Cocchiarella v. Italy [GC], no.   64886/01, §§ 69-98, ECHR 2006-). Furthermore, it has already had occasion to address complaints related to alleged breach of one’s right to a hearing within a reasonable time in cases against Finland (see, for example, Riihikallio and Others v. Finland , no. 25072/02, §§ 22-27, 31 May 2007; Ekholm v. Finland , no. 68050/01, §§ 62-66, 24 July 2007; and Rafael Ahlskog v. Finland , no. 23667/06, §§ 18-24, 13 November 2008). Against this background, the Court considers that it is no longer justified, within the meaning of Article 37 § 1 (c) of the Convention, to continue the examination of this part of the application, and finds no reasons which would require the further examination of this part of the case (Article 37 § 1 in fine ). Accordingly, it should be struck out of the list. B.     Partiality complaint The applicant further complained under Article 6 of the Convention that the presiding judge of the Court of Appeal had been biased as he and T.’s estate had been parties to another set of proceedings pending at the same time before the administrative court. The Government maintained that, as regards the partiality complaint, the applicant could not be considered a “victim” within the meaning of Article 34 of the Convention and that this part of the application should therefore be declared inadmissible. When entering into marriage the applicant and her ex-spouse had concluded a marriage contract according to which neither of them had a matrimonial right to the other’s property. The Code of Inheritance provided that, in such cases, the surviving spouse was not a shareholder in the deceased’s estate unless he or she was an heir or a universal beneficiary. In the present case the applicant was thus not a shareholder in X.’s estate. The Government also pointed out that the applicant had not requested before the Court of Appeal that the Westerkulla real property be taken into account when adjusting the partition. The applicant maintained that she had never, at any stage, claimed to possess a part of the Westerkulla real estate but only that X.’s considerable property should have been taken into account when performing the division. The Court notes that X. had received one fourth of the Westerkulla real property on such conditions that the applicant did not have a marital right to it. During the partitioning proceedings, all domestic courts left this property outside the possible property of X. that could be made subject to adjustment. It is also common ground that the applicant was not a shareholder in X.’s estate nor had any claim on his part of the Westerkulla real estate. She had not even requested that the real estate be taken into account when performing the division, such request only being made in respect of certain bank deposits belonging to X. and the shares of the apartment the spouses had used as their home. The Court considers that, as the Westerkulla real estate, or its value, had no relevance to the present proceedings, there is no appearance of a breach of the impartiality requirement. Accordingly, this part of the application is manifestly ill-founded and must be rejected pursuant to Article 35   §§ 3 and 4 of the Convention. C.     The remainder of the application The applicant also complained under Article 6 of the Convention that the Court of Appeal should not have overturned the lower court’s judgment without holding an oral hearing. Lastly, she complained under Article 14 of the Convention that the State had failed to ensure the availability of a satisfactory number of judges with sufficient knowledge of the Swedish language in the Helsinki Court of Appeal and that the sole reason for the delay had been the fact that the applicant had chosen to use the Swedish language in the proceedings, a right which was accorded to her by law. The Court finds, having regard to the case file, that the matters complained of do not disclose any appearance of a violation of the applicant’s rights under the Convention. Accordingly, this part of the application is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.   For these reasons, the Court unanimously   Takes note of the terms of the respondent Government’s declaration in respect of the length of proceedings complaint under Article 6 § 1 of the Convention and of the modalities for ensuring compliance with the undertakings referred to therein; Decides to strike the application out of its list of cases in so far as it relates to the above complaint in accordance with Article 37 § 1 (c) of the Convention; Declares the remainder of the application inadmissible.   Lawrence Early   Nicolas Bratza   Registrar   President