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
Full & Egal Universal Law Academy