FOURTH SECTION
PARTIAL DECISION
AS TO THE ADMISSIBILITY OF
Application no. 25072/02
by Reino Kaarlo Antero RIIHIKALLIO and Others
against Finland
The European Court of Human Rights (Fourth Section), sitting on 18 October 2005 as a Chamber composed of:
SirNicolas Bratza, President,
MrJ. Casadevall,
MrM. Pellonpää,
MrR. Maruste,
MrK. Traja,
MsL. Mijović,
MrJ. Šikuta, judges,
and Mr M. O’Boyle, Section Registrar,
Having regard to the above application lodged on 27 June 2002,
Having deliberated, decides as follows:
THE FACTS
The applicants, Reino Kaarlo Antero Riihikallio, Klaus Antero Ketola and Olavi Johannes Niemikoski, are Finnish nationals who were born in 1949, 1939 and 1936 respectively and live in Tuusula (Finland), Mijas Costa (Spain) and Nukari (Finland). They are represented before the Court by attorney-in-law Petri Impola, a lawyer practising in Helsinki.
A. The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
On 31 December 1993 and on 18 November 1994, the Finnish Savings Bank – SSP Oy (which later became the Property Management Corporation Arsenal (Omaisuudenhoitoyhtiö Arsenal – SSP Oy, Egendomsförvaltningsbolaget Arsenal – SSP Ab; “Arsenal-SSP” hereinafter) instituted civil proceedings against 16 defendants, including the three applicants. Arsenal-SSP sought damages amounting to 1 billion 337,993,807 million Finnish Marks (FIM; corresponding to 225,034,404 euros (EUR)) plus 16 per cent interest as from 1 December 1994 for allegedly granting credit negligently in 1989-1991 and for subsequent credit losses allegedly caused by the 16 defendants in their capacity as members of the board, managing director or other delegates in the management of the Savings Bank of Keski-Uusimaa (which in 1992 merged into the Finnish Savings Bank – SSP Oy, later replaced by the Arsenal-SSP 0y). The first applicant, Riihikallio, was the Chairman of the Board, the second applicant, Ketola, was the Managing Director, and the third applicant, Niemikoski, was a member of the Board of the Savings Bank of Keski-Uusimaa.
From 6 October to 16 October 1995, the District Court held a hearing (pääkäsittely) concerning a claim made by the defendants challenging the claimant’s right to raise its claims, and concerning the seizure of the defendants’ assets.
On 17 October 1995, the District Court gave a judgment concerning the procedural issue and the seizure (välituomio).
From 26 February to 23 October 1996, the District Court held preparatory oral hearings (49 days of hearings, suullinen valmistelu).
From 11 November 1996 to 25 September 1997, the District Court examined the case, holding 121 days of oral hearings (pääkäsittely).
As regards the three applicants, Arsenal – SSP’s claims concerned credits that the Bank of Keski-Uusimaa had given to a company called Rinvest Oy and its subsidiaries. Rinvest Oy was a real estate company. Its biggest project concerned Marja-Vantaa, a large area of land the company had bought with the bank’s money with the expectation that a town was to be built there one day and the railroad would be extended to cover the transportation needs of the inhabitants.
In the tort proceedings, Arsenal – SSP claimed that the loans, amounting to FIM 75,000,000 by the end of 1990, had been granted without sufficient security, without knowing how the money would be used and without paying attention to whether it could be paid back. According to the claimant, the board had neglected to monitor the actions of the delegates, who largely acted on their own in granting continuous credit to Rinvest Oy. Once the general economic situation of the country started to worsen, it became evident that Rinvest Oy could not pay back its debts. The bank decided, at this point, to buy all the shares of Rinvest Oy. The purchase on 9 November 1990 had resulted in a substantial loss to the bank.
All three applicants denied Arsenal – SSP’s claims, maintaining that the amounts of damage allegedly caused had not been sufficiently proven. They demanded that the amounts at least be conciliated.
The first applicant, the Chairman of the Board, and the third applicant, Member of the Board, claimed that the second applicant, the Managing Director, had granted loans to Rinvest Oy partly in order to promote his own business interests (he owned a company that had dealings with Rinvest Oy). They claimed also, that the second applicant had concealed from the board facts relating to Rinvest Oy’s situation and had deliberately misled the board. It was a question of systematic malpractice which could not be detected by the board. The first and third applicants pointed out also that control of the activities of the bank was carried out by its own personnel and outside authorities, and that the board had no real possibilities to check what was going on.
The second applicant, the Managing Director, on the other hand, claimed that all decisions concerning Rinvest Oy had been taken according to customary practices of the bank. He denied having in any way neglected his responsibilities or having given false or misleading information to the board. According to him, Marja-Vantaa seemed a great business opportunity in 1989 and the Bank of Keski-Uusimaa had competed with other banks to gain Rinvest Oy as its customer. It had made sense to finance other projects of Rinvest Oy as well, and when the economic situation worsened, there was no choice but to continue financing them. He pointed out that Rinvest Oy had not been allowed to go bankrupt like other companies. The second applicant had believed that by careful management of the losses during the slump period, they could be recovered once the economy revived. He admitted he was the person in the bank with most knowledge about Rinvest Oy, but this was only because he was interested in the project and keen to bring financial gain for the bank. He further submitted to the court that he and other delegates in the bank had recognised the danger of great losses early on, and had tried to sell parts of Rinvest Oy, but by then the markets had frozen and no-one was buying.
On 15 May 1998, the District Court rendered judgment. It noted that the loans granted to Rinvest Oy had increased steeply, and all of them dated from a period of only one and a half years. The delegates of the bank, rather than the board, had decided to grant most of the credits, and the second applicant had been involved in almost all of them. During the credit increase Rinvest Oy had paid hardly anything back, new debts were added or joined with old ones, and this was done without adequate information or new security. The situation led to a constant weakening of the security coverage.
The District Court also noted that the bank’s internal rules in force in 1989 had stipulated that the board alone was authorized to grant loans of more than FIM 5,000,000. In 1990, the limit had been FIM 10,000,000. When Rinvest Oy had first been discussed by the board, on 29 March 1990, the credits had already amounted to FIM 128,378,219.
The District Court further noted, that the second applicant and a colleague of his had been largely able to handle Rinvest Oy without interference from the board or other employees. The second applicant therefore had to carry most of the responsibility for the losses caused by Rinvest Oy. The board, on the other hand, and the Chairman of the Board on account of his position more than the other members, had been responsible for neglecting to monitor the employees’ activities properly, not taking care to find out, for example, to what end the many loans to Rinvest Oy were destined.
In its judgment the District Court upheld the plaintiff’s claims. It ordered the second applicant to pay damages to the claimant in the amount of FIM 20,000,000. The first applicant, together with defendant X, was ordered to share this liability up to FIM 3,500,000. The third applicant, together with defendant Y, was ordered to share the liability up to FIM 2,800,000. Interest would run at 16 per cent from 1 December 1994. All applicants were ordered to pay substantial legal fees.
All applicants appealed to the Court of Appeal, which held preparatory oral hearings from 14 January to 18 January 2000.
On 16 February 2000, the Court of Appeal held a main hearing (pääkäsittely) concerning the District Court’s judgment (välituomio) on the claimant’s right to raise the claim and the seizures. On the former point, the District’s Court’s judgment was upheld. The seizures were also maintained in force.
From 29 February to 4 May 2000, the Court of Appeal held an oral hearing (pääkäsittely pääasiassa).
On 25 January 2001, the Court of Appeal gave judgment. It found the former Managing Director, the first applicant, responsible for the entire loss caused with regard to Rinvest Oy, which was FIM 140,000,000 (adjusted to FIM 22,000,000). The first and second applicants and five other defendants were found co-responsible for the damages up to FIM 21,000,000 (adjusted with regard to the first applicant to FIM 2,000,000 and with regard to the third applicant to FIM 450,000). All had to pay interest. The applicants were freed from paying legal fees incurred in the Court of Appeal.
On 28 December 2001, all three applicants were refused leave to appeal to the Supreme Court.
COMPLAINTS
1. The applicants complained under Article 6 § 1 of the Convention that the length of the civil proceedings was excessive as they lasted over eight years.
2. The applicants complained under Article 6 § 1 that the “equality of arms” principle was violated as the State had disproportionate resources compared to the defendants in this massive tort trial.
3. The applicants complained under Article 14 of the Convention that the State acted discriminatorily as it did not raise claims against everyone involved in causing damages to various banks during this period, and raised no claims at all against the accountants.
4. The applicants complained under Article 17 of the Convention that the State misused its rights by undertaking large trials against selected defendants and by claiming unjustified or at least unproven damages.
THE LAW
1. The applicants complain under Article 6 § 1 of the Convention about the length of the civil proceedings, which started on 31 December 1993 and ended on 28 December 2001. Article 6, insofar as relevant, reads as follows:
“1. In the determination of his civil rights and obligations... everyone is entitled to a fair and public hearing within a reasonable time...”
The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 §2 (b) of the Rules of Court, to give notice of this apart of the application to the respondent Government.
2 Under Article 6 § 1, the applicants also complain that the “equality of arms” principle was violated as the State had disproportionate financial and legal resources compared with the applicants, who were private persons.
The Court notes that the second applicant had been granted legal aid and all applicants were represented by a lawyer. It does not appear from the documents that they were unable to participate fairly and effectively in the proceedings. There is, therefore, no appearance of a breach of Article 6 in the circumstances. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
3. The applicants complain under Article 14 that the State of Finland (who owned Arsenal–SSP Oy) acted discriminatorily in that it claimed damages from only some of the persons who had worked in the management of savings banks during the period when the banks made great losses. Also, it had not claimed damages from the accountants. Article 14 reads as follows:
“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
The Court notes that Article 14 prohibits discrimination only as far as the claim falls within the orbit of rights granted elsewhere in the Convention. However, the Convention does not guarantee a freedom from being sued or impose an obligation to sue anyone. It follows that the complaint concerning Article 14 is incompatible ratione materiae with the subject-matter of the Convention and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
4. The applicants complain under Article 17 that the State of Finland misused its rights by undertaking large trials against selected defendants and by claiming unjustified or at least unproven damages. Article 17 reads as follows:
“Nothing in [the] Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention.”
The Court notes that there is no indication in the circumstances of this case that the State’s actions could be construed as being aimed at the destruction or limitation of rights provided for in the Convention. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Decides to adjourn the examination of the applicants’ complaint concerning the length of the proceedings;
Declares the remainder of the application inadmissible.
Michael O’BoyleNicolas Bratza
RegistrarPresident
Full & Egal Universal Law Academy