FOURTH SECTION
DECISION
Application no. 47182/09
by AUTO-NESTOR OY and Others
against Finland
The European Court of Human Rights (Fourth Section), sitting on 7 September 2010 as a Committee composed of:
David Thór Björgvinsson, President,
Päivi Hirvelä,
Mihai Poalelungi, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having regard to the above application lodged on 2 September 2009,
Having regard to the observations and declaration submitted by the respondent Government and the observations in reply submitted by the applicants,
Having deliberated, decides as follows:
THE FACTS
The applicant company, Auto-Nestor Oy, is a Finnish limited liability company which has its seat in Espoo. The first, second and third applicants, Mrs Tuula Joukas-Riihimäki, Ms Katarina Salomaa and Mr Harri Riihimäki, are Finnish nationals who live in Sastamala, Mountain View (California) and Lappila respectively. They were represented before the Court by Mr Ilkka Pitkänen, a lawyer practising in Espoo. The Finnish Government (“the Government”) were represented by their Agent, Mr Arto Kosonen of the Ministry for Foreign Affairs.
The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant company was owned by R.R. In 1985 the company decided to expand its business. It applied for a loan from a bank and received in reply a preliminary acceptance for a loan of one million Finnish marks (FIM). In November 1985 the applicant company started to construct new premises. Soon after, the bank declined to issue the loan and the applicant company faced financial difficulties. In April 1986 the real estate under construction, which was owned by the applicant company, was sold to a third party.
In order to sell the property the bank was requested to release the share certificates which stood as a pledge for the debt. In exchange for releasing them, the bank demanded a deposit on two frozen bank accounts, which was received in April 1986. As there were now more funds than liabilities, the applicant company asked the bank to release the sums exceeding the amount of debt. The applicant company never received any clarification of what happened to the funds in the frozen bank accounts.
On 9 September 1987 bankruptcy proceedings were initiated against the applicant company as it could no longer fulfil its financial obligations. As the applicant company's debts remained unpaid, the bank demanded that additional real estate be sold by compulsory auction to cover the debts. This auction took place on 16 March 1989. The bankruptcy proceedings were finalised on 29 December 1995, after which the applicant company was removed from the trade register.
As it appeared that the bank had not transferred the funds in the frozen accounts to the bankruptcy estate, R.R. reported the matter to the police in July 1996. On 6 August 1996 the police concluded that no-one could be charged with a crime as the only possible suspect, the bank manager, had died in 1988.
By letter dated 20 October 1998 R.R. initiated a civil claim against the bank in the Helsinki District Court (käräjäoikeus, tingsrätten), requesting that at least the funds received from the compulsory auction be paid back to him and the applicant company.
On 20 October 2000 R.R., as the only shareholder, held a general meeting and the applicant company was reintroduced to the trade register. The company later went into liquidation.
On 15 January 2001 R.R. asked the District Court to order that the bank disclose all documents relating to the case. By letter dated 17 April 2001 he and the applicant company asked the court to order the bank to present a complete account of the applicant company's funds.
On 23 May 2001 the District Court dismissed the complaint about the reimbursement of funds without examining the merits as it concerned an issue that had taken place more than ten years earlier. This complaint had thus been introduced too late. As to the other complaints, the District Court rejected them.
On an unspecified date, the applicant company and R.R. appealed to the Helsinki Appeal Court (hovioikeus, hovrätten) claiming, inter alia, that their reimbursement claim had not been time-barred.
On 18 February 2003 the Appeal Court, without holding an oral hearing, found that the reimbursement claim had not been time-barred and that the District Court should have examined it. Therefore it referred this complaint back to the District Court. As to the rest of the complaints, it upheld the District Court's decision.
On an unspecified date the applicant company and R.R. appealed to the Supreme Court (korkein oikeus, högsta domstolen), claiming that the Appeal Court should also have ordered the bank to present a complete account of the applicant company's funds and requesting the court to give such an order.
On 10 June 2003 the Supreme Court refused this request.
On 26 June 2003 the Supreme Court refused the applicant company and R.R. leave to appeal.
On 20 April 2004 the District Court refused the applicants' request that the bank be ordered to present a complete account of the applicant company's funds.
On 28 September 2006 the District Court rejected the applicant company's and R.R.'s claims.
By letter dated 30 October 2006 the applicant company and R.R. appealed to the Appeal Court, reiterating the claims presented earlier before the other courts. In particular they claimed that, as they had sought a declaratory judgment, it could not be rejected by the District Court.
On 10 November 2008 the Appeal Court, without holding an oral hearing, upheld the District Court's judgment. It found that the bank had fulfilled its obligation to give a full account of the applicant company's funds and that there was no evidence that the transactions made by the bank were groundless. There was no evidence either that the loan of one million Finnish marks did not benefit R.R. or the applicant company. They thus had no claim against the bank.
By letter dated 8 January 2009 the applicant company and R.R. appealed to the Supreme Court, reiterating the grounds of appeal already presented before the Appeal Court.
On 31 January 2009 R.R. died. His successors are his wife, the first applicant, and his children, the second and third applicants.
On 2 March 2009 the Supreme Court refused the applicant company and R.R. leave to appeal.
COMPLAINTS
The applicants complained under Article 6 of the Convention that the length of the proceedings had exceeded the “reasonable time” requirement.
They complained under the same Article that they had not had a fair trial as the bank had not fulfilled its obligation to give an account of the funds in its possession. Moreover, the Appeal Court had shifted the burden of proof by requesting the applicants to show how funds had been used when this should have been the task of the bank. While the national courts had refused to order the bank to disclose all relevant documents, they had still accepted that there might be additional debts and therefore had refused to confirm the debt balance between the applicants and the bank. This had violated the applicants' right to a fair trial. Finally, their right to a fair trial had been violated also due to the fact that an action for a declaratory judgment had been dismissed by the courts.
Lastly, the applicants complained under Article 1 of Protocol No .1 about the deprivation of their property.
THE LAW
A. Length of the proceedings in respect of the applicant company
The applicant company complained about the length of the civil proceedings. It 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 ... hearing within a reasonable time by [a] ... tribunal ...”
By a letter dated 24 June 2010 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 a unilateral declaration - its acknowledgement that the length of the civil proceedings has failed to fulfil the requirement of ”reasonable” referred to in Article 6 § 1 of the Convention.
2. Consequently, the Government is prepared to pay the Auto-Nestor Oy an amount of EUR 3,656 (three thousand six hundred and fifty-six euros). This sum includes EUR 3,656 (three thousand six hundred and fifty-six euros) in compensation for non-pecuniary damage and EUR 0 (zero euros) for costs and expenses (inclusive of the value-added tax). In the Government's view, having regard to all the circumstances of the case and to the Court's awards in comparable length of proceedings cases, the above total amount would constitute adequate redress for the excessive length of the civil proceedings.
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 the failure to pay this sum within the said three-month period, the Government undertake to pay simple interest on it, from 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 your Court to discontinue the examination of this part of the application, 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 the case by virtue of that provision. Accordingly, the Government invites the Court to strike the application out of its list of cases.”
The applicant company did not comment on the content of 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 seven years and ten months at three levels of jurisdiction, all of which twice. 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 company by the Government in compensation for non-pecuniary damage and costs and expenses, that is 3,656 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. Remainder of the application
The first, second and third applicants also complained under Article 6 of the Convention that the length of the proceedings had exceeded the “reasonable time” requirement.
All the applicants complained under the same Article that they had not had a fair trial as the bank had not fulfilled its obligation to give an account of the funds in its possession. Moreover, the Appeal Court had shifted the burden of proof by requesting the applicants to show how funds had been used when this should have been the task of the bank. While the national courts had refused to order the bank to disclose all relevant documents, they had still accepted that there might be additional debts and therefore had refused to confirm the debt balance between the applicants and the bank. This had violated the applicants' right to a fair trial. Finally, their right to a fair trial had been violated also due to the fact that an action for a declaratory judgment had been dismissed by the courts.
Lastly, the applicants complained under Article 1 of Protocol No .1 about the deprivation of their property.
The Court finds, having regard to the case file, that the matters complained of do not disclose any appearance of a violation of the applicants' 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 applicant company's 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.
Fatoş AracıDavid Thór Björgvinsson Deputy Registrar President
Full & Egal Universal Law Academy