FOURTH SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 45027/98
by Jukka NARINEN
against Finland
The European Court of Human Rights (Fourth Section), sitting on 14 October 2003 as a Chamber composed of
SirNicolas Bratza, President,
MrM. Pellonpää,
MrsV. Strážnická,
MrR. Maruste,
MrS. Pavlovschi,
MrL. Garlicki,
MrJ. Borrego Borrego, judges,
and Mrs F. Elens-Passos, Deputy Section Registrar,
Having regard to the above application lodged on 1 December 1998,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Jukka Narinen, is a Finnish national, who was born in 1957 and lives in Klaukkala. He is represented before the Court by Mrs M. Toivio-Kaasinen, a lawyer practising in Järvenpää. The respondent Government are represented by their Agent, Mr Arto Kosonen, Director, 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.
The applicant was declared bankrupt on 2 September 1993 by the District Court (kihlakunnanoikeus, häradsrätten) of Hyvinkää and J., a lawyer practising in Helsinki, was appointed by a court order to act as the official receiver to his estate.
By a written notice, dated 16 September 1993, J. requested the postal service to send all the mail addressed to the applicant to the law office of J. The day before, on 15 September 1993, a meeting was held between the debtor, i.e. the applicant, and the official receiver in the law office of J. According to the Government, it was agreed that the applicant’s mail be transferred to the office and handled so that the official mail was opened, whereas the private mail was put aside to be further transmitted to the applicant. According to the applicant, no such agreement was reached.
The applicant contacted a lawyer at the postal service who informed him that the personal mail of a person declared bankrupt should not be transferred to the official receiver. The applicant has received his mail from 23 September 1993 onwards.
While the mail was being transferred to the law office (between 16 and 23 September 2003), J. received and opened a letter sent by an insurance company and addressed to the applicant. The letter was sent to the applicant in an official envelope of the company and signed by the representative of the company’s legal department. Apparently the letter considered a valuation of an apartment owned by the applicant’s ex-wife.
The applicant requested the police to investigate the matter on 4 June 1996. In the police investigation J. said that the applicant had sent him a message after the meeting of 15 September 1993, withdrawing his consent to the transfer of mail. On 22 or 23 September 1993 the applicant requested the postal service to transfer the mail back to his own address as he considered the transfer of mail to the law office had been against Finnish law.
Having found that the requested prosecution of the alleged offence had become time-barred, a prosecutor issued a decision not to prosecute on 22 July 1996.
The applicant then instituted civil proceedings against J., requesting that J. be ordered to return all the missing letters to the applicant and, failing which, that he be ordered to pay 21,911 Finnish Marks (FIM) (approximately 3,685 Euros (EUR)) in compensation for non-pecuniary damage as well as the applicant’s legal fees and expenses. The proceedings were based on the fact that J. had opened the letter sent by the insurance company.
A legal counsel of the postal service who was heard before the District Court stated that the postal service applied the principles that were included in the repealed Postal Service Decree (postiliikenneasetus, posttrafikförordning; 692/1980) concerning the sorting of mail belonging to estates in respect of which an official receiver had been appointed by the court. According to him, it was a duty of the postal service to sort the debtor’s mail and put aside official mail belonging to the estate. In cases where the official nature of the mail was not clear, post offices decided on a case by case basis where to send the mail.
On 7 February 1997 the District Court (käräjäoikeus, tingsrätt) of Espoo rejected all the claims submitted by the applicant, finding that both J. and the postal service had acted in accordance with the Bankruptcy Act (konkurssisääntö, konkursstadga; 759/1991 as in force at the relevant time), established practice and internal instructions of the postal service concerning the sorting of mail. The applicant was ordered to pay FIM 27,487 (approximately EUR 4,620) in compensation for J.’s legal fees and expenses. The District Court reasoned its decision, inter alia, as follows:
“The District Court agrees with the view of [J.] in that the official receiver has, in accordance with Section 50, subsection 2, of the Act on Bankruptcy, a right to request that the debtor’s mail be received by the official receiver, excluding the debtor’s personal mail.
...
[J.] denied that the estate was in the possession of any other mail addressed to [the applicant], excluding a letter from the insurance company [P.]. That letter was related to the clarification of the assets and debts of [the applicant] and, thus, was included in the documents belonging to the estate. The estate was not obliged to return any of the material which belonged to it.
...
In the light of the evidence, [J.] has acted in accordance with the provisions of the Act on Bankruptcy.
The [applicant’s] claims are rejected as a whole.”
The applicant appealed to the Court of Appeal (hovioikeus, hovrätten) of Helsinki which, on 15 January 1998, upheld the District Court’s decision. On 2 July 1998 the Supreme Court (korkein oikeus, högsta domstolen) refused the applicant leave to appeal.
B. Relevant domestic law and practice
Section 40 of the Postal Service Decree, which was issued in 1980 and repealed in its entirety in 1991 (945/1991), but was applied as an internal instruction within the postal service, read as follows:
“Declaration of bankruptcy of a mail recipient does not affect his right to receive mail and postal orders. Where a person who proves that he has the right to represent the bankruptcy estate requires that mail and postal orders addressed to the person declared bankrupt be transferred to him, the amounts indicated on the postal order shall be paid to the bankruptcy estate.
A mail delivery addressed to a recipient declared bankrupt, the receipt of which needs to be acknowledged, shall be returned to the sender unless the sender has otherwise ordered before the return of the mail.
Notwithstanding the provisions in subsections 1 and 2 above, a natural person declared bankrupt shall nevertheless have the right to mail deliveries which clearly indicate that they do not belong to the bankruptcy estate.”
According to Chapter II, Section 12 of the former Constitution of Finland (hallitusmuoto, regeringsformen; 94/1919) as in force at the relevant time, the right to the secrecy of correspondence, telegraph messages and telephone conversations is inviolable, subject to exceptions provided for in the law.
The relevant sections of the Bankruptcy Act (konkurssisääntö, konkursstadga) provided at the relevant time as follows:
“Chapter 4 – Property belonging to the bankrupt’s estate (759/1991)
Section 45
(1) The property belonging to a bankrupt’s estate shall consist of any property which was in the debtor’s possession at the time of lodging a request for the transfer of property with a court of law, or at the time of issue of a court decision on the transfer of property upon a creditor’s request, or which the debtor was to get in his possession before the termination of the bankruptcy proceedings, and which may be lawfully seized, as well as of any property which may be recovered for the estate by virtue of the Act on the Recovery of Property for the Estate of a Bankrupt Person. (759/1991).
Chapter 5 – Administration of a bankrupt’s estate
Section 50
Should a hearing of creditors be ordered in bankruptcy proceedings under Section 13, without a prior order on the administration of property as provided for in Sections 3, 5 and 7, the court or its president may appoint an appropriate person to take, for the purposes of the hearing, such measures in respect of the estate as may be necessary in the particular circumstances of the case.
Section 65 (Reception of the estate)
Upon a court order, the executors of the estate (toimitsijamiehet) shall without delay request the bankruptcy trustees (uskotut miehet) to give account of the assets and debts of the estate and of its administration, shall take the property of the estate in their possession and shall take the necessary actions for the benefit and relief of creditors. If the trustees refuse to give such account of the assets and debts, the court shall place them under an obligation to do so. Should a person who is appointed executor have previously acted as trustee, he or she shall also give such account to the creditors.”
As the Bankruptcy Act is rather old, a well-established interpretation of its provisions has developed. According to literature concerning bankruptcy in Finland (Erkki Havansi, Finnish Bankruptcy Law, 3rd revised edition, Helsinki 1992; in Finnish), the normal duties of temporary bankruptcy trustees during the temporary administration of the bankrupt’s estate include the following: (A) taking over the possession of the property, including a) collecting information on property, b) taking into possession, and c) preservation of property by means of protective measures, and (B) listing of assets and liabilities with the cooperation of the debtor. The taking into possession of the property makes the assessment of the property’s value, its preservation and administration possible. Even the possession of cash reserves, arriving mail and accounts shall be taken over.
The Finnish Office of the Bankruptcy Ombudsman gave in 1999 the following recommendations concerning the matter:
“Recommendations 11/99: Rights and Liabilities of the Debtor in Bankruptcy Proceedings
10. Personal documents and possessions of the debtor
The private life of individual persons is protected by the Constitution and international conventions. This shall be paid attention to in the administration of the bankrupt’s estate.
Secrecy of correspondence is one of the rights protected by the Constitution, and there shall be no interference with the exercise of this right except such as is in accordance with a specific provision of the law. The bankruptcy trustee shall collect information on the debtor’s business correspondence. He shall try and follow practices that ensure access to such information on the business correspondence as is necessary for the management and settlement of the estate, without violating the secrecy of the debtor’s correspondence.
The estate trustee shall not have the right to take over the possession of or examine the debtor’s private correspondence or other personal documents. Any personal documents of the debtor, which are of no relevance to the administration of the estate, shall be delivered to the debtor.”
COMPLAINT
The applicant complains under Article 8 of the Convention that his right to respect for his correspondence was violated as there were no legal grounds to prevent the applicant from receiving his private correspondence after he had been declared bankrupt.
THE LAW
The applicant complains that his right to respect for his correspondence was violated as there were no legal grounds to prevent him from receiving his private correspondence after he had been declared bankrupt. He invokes Article 8 of the Convention which reads as follows:
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
The Government contest the applicant’s allegations. They observe that the applicant has not contested the right of the official receiver to receive mail belonging to the estate. Therefore, and because the official receiver in fact has such a right under the law, there has been no interference as the letter in question is to be considered as belonging to the estate.
The Government note that the transfer of the applicant’s mail by the postal services to the law office of J. was based on the provisions of Sections 45 and 65 of the then Bankruptcy Act, as well as on established practice applied to the management of bankruptcy estates. It was, thus, in accordance with the Finnish law. The postal service further applied, as internal instructions, the principles enshrined in Section 40 of the repealed Postal Service Decree. According to these internal instructions, the postal service is under an obligation, upon a request made by the estate trustee, to sort out official mail to be sent to the bankruptcy estate and clearly private mail to be sent to the debtor.
The Government note that in bankruptcy proceedings the official receiver represents creditors having claims to the property and, in this capacity, has a right and a duty to list the property belonging to the estate and protect it. They also note that the procedure applied by the official receiver was agreed on with the applicant in the meeting with J. on 15 September 1993.
The Government observe that the authorisation of the official receiver to have access to the applicant’s correspondence can be considered to be in furtherance of the protection of the “rights of others” within the meaning of Article 8 § 2 of the Convention and thus to pursue a legitimate aim.
The Government state that the notion of necessity implies that the interference corresponds to a pressing social need and, in particular, that it is proportionate to the legitimate aim pursued. In determining whether an interference is “necessary in a democratic society” regard may be had to the State’s margin of appreciation. They further observe that in the field under consideration - the concealment of a bankrupt’s assets to the detriment of his creditors - the authorities may consider it necessary to have recourse to the interception of a bankrupt’s correspondence in order to identify and trace the sources of his income. Nevertheless, the implementation of the measures must be accompanied by adequate and effective safeguards which ensure minimum impairment of the right for his correspondence.
In the present case, J. had opened one single letter addressed to the applicant, which had been sent by an insurance company. The said letter concerned the price of an apartment which had been pledged as security for the payment of debts. Neither the sender’s name nor any other external fact gave reason to assume that the letter could have been, as is alleged by the applicant, of a private nature.
It is also of relevance that the delivered mail was a letter sent by an insurance company, and there was reason to believe that the letter related to property belonging to the bankrupt’s estate (such property consisting also of the personal property of a natural person, with the exception of for example, household effects). The letter could have, for example, been sent for the purpose of repudiating an insurance policy. It must also be remembered that the official receiver is under an obligation to administer the property of the bankrupt’s estate, subject to liability for damages, and this includes a duty to ensure that the property is covered by an appropriate insurance.
Moreover, in the civil proceedings at national level one of the main issues was whether the letter in question was of private nature or whether it belonged to the estate. The various courts that examined the case all observed that the contents of the letter were such that the letter could have concerned property belonging to the bankruptcy estate. The letter did not indicate who owned the apartments which were to be sold. Because the letter was addressed to the applicant, J. had justified reason to believe that it related to property belonging to the bankruptcy estate. The interference was, thus, necessary in a democratic society.
The applicant emphasises that the letter addressed to him and sent to his home address by the insurance company was received and opened by J. Nothing in the recipient or address information on the envelope indicated anything other than that it was a private letter. Just the mere fact that the letter had the insurance company’s logo printed in it does not change the nature of the letter; it was a private letter.
The applicant notes that the prosecutor’s decision of 22 July 1996 was based on the statute of limitations, not giving an opinion on the actual subject matter.
As regards the sorting of the applicant’s mail at the postal service, the applicant notes that no instructions given by J. for sorting the applicant’s private mail have been found at the postal service. To the contrary, all the mail was sent to the applicant as from 23 September 1993 onwards at the applicant’s request and no sorting took place after the request.
The applicant maintains that the Finnish law does not contain, or did not contain at the relevant time, provisions on any restrictions on a bankrupt’s right to the secrecy of his correspondence. Neither the Bankruptcy Act nor the Postal Service Decree (which was not even in force at the relevant time) provide for any such restrictions. In the absence of relevant legislation, the applicant’s right has been violated as it has not been “in accordance with law”. In this connection the applicant recalls that in order to be a law, the rule must be available and it must be written in a form sufficiently precise to ensure foreseeability. The encroachment upon the right protected by Article 8 involves a serious invasion of privacy and violation of secrecy of correspondence and, therefore, it must be based on a law which is especially precise. The law must clearly define the circle of persons and the conditions in which the secrecy of correspondence can be interfered with. The internal instructions for the authorities, such as the repealed Postal Service Decree which is applied as an internal instruction within the postal service, do not meet the requirements of accessibility and foreseeability.
The applicant reiterates that J. has admitted having opened one letter. However, J. had all the applicant’s mail forwarded to him and there is no certainty about the number of letters he received and opened. He also reiterates that the creditors’ rights are sufficiently secured by the Bankruptcy Act. The property of the debtor is used for the benefit of the creditors and, with the threat of punishment, the debtor is obligated to declare his property. The securing of the creditors’ rights cannot require an interference with the debtor’s private correspondence. Thus, it was not an interference “necessary in a democratic society”.
The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.
For these reasons, the Court unanimously
Declares the application admissible, without prejudicing the merits of the case.
Françoise Elens-PassosNicolas Bratza
Deputy RegistrarPresident
Full & Egal Universal Law Academy