FIFTH SECTION
PARTIAL DECISION
AS TO THE ADMISSIBILITY OF
Application no. 11548/04
by Saarekallas OÜ and Others
against Estonia
The European Court of Human Rights (Fifth Section), sitting on 15 May 2006 as a Chamber composed of:
MrP. Lorenzen, President,
MrsS. Botoucharova,
MrK. Jungwiert,
MrV. Butkevych,
MrsM. Tsatsa-Nikolovska,
MrR. Maruste,
MrJ. Borrego Borrego, judges,
andMrsC. Westerdiek, Section Registrar.
Having regard to the above application lodged on 4 March 2004,
Having deliberated, decides as follows:
THE FACTS
The first applicant (applicant company), Saarekallas OÜ, is a private limited company registered in Estonia. Mr Matti Juha Puolakka (the second applicant), Mr Pertti Olavi Koskela (the third applicant), Mr Tuomas Heinonen (the fourth applicant), Mr Timo Vainio (the fifth applicant), Mr Matias Toivainen (the sixth applicant), Mrs Heli Santavuori (the seventh applicant) and Mrs Päivi Toivainen (the eighth applicant), are Finnish nationals who live in Helsinki, except for the fifth applicant who lives in Monninkylä. The second and third applicants also represent the applicant company. The second applicant is a member of its management board and the third applicant is its executive director. The fourth, fifth and sixth applicants also represent Human Path Forum (Ihmiskunnan tie foorumi), a Finnish unregistered non-profit organisation (the first applicant society). The seventh and eighth applicants also represent Humanus iustitiae sapiens club (His‑klubi), a Finnish unregistered non-profit organisation (the second applicant society).
The facts of the case, as submitted by the applicants, may be summarised as follows.
A. Request by K. for an interlocutory measure
On 19 October 1998, T., the lawyer of K., lodged a request with the Saare County Court (Saare Maakohus) for securing a claim by K. against A. and the second applicant. According to K., she had been in the possession of six shares (corresponding to 50 per cent of the share capital) of Kallas AS, a public limited company, which had been unlawfully transformed into the applicant company, Saarekallas OÜ. The defendants had been entered in the commercial register as members of the management board of the company. K. submitted that the second applicant intended to sell the company’s buildings at 26 and 26a Pikk Street in Kuressaare, having authorised the third applicant to do so. She requested the court to enter a notation in the Buildings Register prohibiting the disposal of the buildings concerned.
On the same date the County Court granted the request.
On 26 October 1998 the applicant company appealed against the interlocutory measure. It was alleged that K. had sold her shares in Kallas AS to Tradeco Enterprises Inc already on 21 December 1996. Furthermore, as a shareholder of Tradeco Enterprises Inc, K. had been aware of the shareholders’ general meeting held on 15 August 1997. Moreover, on 14 August 1997 she had signed an authorisation for A. to act as her proxy at the meeting the next day. Finally, it was submitted that the link between K.’s claim concerning the nullity of the transformation decision and the sale of the buildings at 26 and 26a Pikk Street by the applicant company had not been established.
On 14 December 1998 the Tallinn Court of Appeal (Tallinna Ringkonnakohus) upheld the decision concerning the interlocutory measure. It noted that, although the appeal was well-founded, there was no need to quash the challenged decision. As the claim had not been lodged with the County Court within a one-month period, the County Court had, on 23 November 1998, annulled the interlocutory measure.
B. Main proceedings before the County Court
1. K.’s action
On 11 December 1998, K.’s lawyer lodged a claim against the applicant company with the County Court. The plaintiff alleged that she had been the owner of six shares (corresponding to 50 per cent of the share capital) in Kallas AS. The remaining six shares had previously belonged to the second applicant. On 1 September 1997 the second applicant and A. had notified the Registry Department of the Pärnu County Court (Pärnu Maakohtu registriosakond) that Kallas AS had been transformed into the applicant company and requested that the latter be entered into the commercial register. According to the record of the company’s extraordinary general meeting of 15 August 1997, the sole shareholder of Kallas AS had been Tradeco Enterprises Inc. The second applicant and A. had taken part in the shareholders’ general meeting as representatives of Tradeco Enterprises Inc. They had also been elected to the management board of the applicant company. The record had been signed by the second and fourth applicants. On 13 February 1998 the Registry Department of the Pärnu County Court had allowed the request and on 18 February 1998 the applicant company had been entered in the commercial register. The plaintiff maintained that her rights had been violated by the fact that she had not been entered on the list of shareholders of the applicant company. She alleged that she had never sold her shares to Tradeco Enterprises Inc. The purchase agreement of the shares on behalf of Tradeco Enterprises Inc had been signed by a fictitious person, S. In reality, it had been signed by R. As there had been no intention from the side of a representative of Tradeco Enterprises Inc to be involved in the agreement, the purchase document was fictitious. Accordingly, as the plaintiff had not sold her shares, she had become, on 18 February 1998, an owner of 50 per cent of the shares of the applicant company. The plaintiff alleged that A., the other participant in the shareholders’ general meeting of 15 August 1997 besides the second applicant according to the record of the meeting, had admitted that, in fact, he had not taken part in the meeting. Therefore, the plaintiff argued that the shareholders’ meeting had not, in fact, taken place and she requested that the court declare null and void the record of the shareholders’ meeting of 15 August 1997 and the decisions allegedly adopted by the meeting, except for the transformation decision, which could not be challenged after the change had been made in the commercial register. According to the Commercial Code (Äriseadustik), the management board of a private limited company could sell immovable property only if authorised by the shareholders’ meeting. The plaintiff alleged that the second applicant was about to sell the buildings belonging to the applicant company. The sale of the buildings would be in breach of the plaintiff’s rights. She requested that the management board of the applicant company be obliged to transfer to her a share in the value of 5,000 Estonian kroons (EEK) and that a notation prohibiting the disposal of the buildings at 26 and 26a Pikk Street be entered in the Buildings Register.
2. The proceedings
On 14 December 1998 the County Court again ordered that a notation prohibiting the disposal of the buildings at 26 and 26a Pikk Street be entered in the Buildings Register in order to secure K.’s claim.
On 11 January 1999, P., the lawyer of the applicant company, informed the County Court that the company objected to K.’s claim.
On 15 January 1999 the defendant requested that the court oblige K. to pay EEK 100,000 to the court’s account as a security against potential damage caused by the defendant’s inability to sell its buildings. By a decision of 2 February 1999 the County Court granted the request and obliged the plaintiff to pay the above sum by 12 February 1999.
On 30 March 1999 the County Court held a preliminary hearing in the case in the presence of T., K.’s lawyer, and P., the applicant company’s lawyer. T. requested that the preliminary hearing be postponed, since the parties had started negotiations. P. agreed. The court postponed the preliminary hearing until 28 April 1999.
On 28 April 1999 the parties’ lawyers were present in the County Court. The plaintiff had sent to the court a request that the hearing be adjourned. Her lawyer considered that the plaintiff’s personal attendance was necessary. The defendant’s lawyer did not object and the court postponed the preliminary hearing until 24 May 1999.
On 24 May 1999 the parties’ lawyers appeared in court. The court rejected the defendant’s request to annul the interlocutory measure. It adjourned the preliminary hearing until 25 August 1999 and ordered that the plaintiff and the statutory representatives of the applicant company participate in person in the hearing.
On 25 August 1999 K. appeared in the County Court. The applicant company was represented by lawyer P. The second applicant, member of the management board of the applicant company, had informed P. that he would not take part in the hearing. There was no information concerning A. The summonses sent to the statutory representatives of the applicant company had been received by N. The plaintiff’s lawyer submitted a draft concerning the settlement of the case between the parties. P. was of the opinion that the preliminary hearing had to be adjourned, since she had to receive instructions concerning the proposal. T. requested that the statutory representatives of the applicant company be obliged to appear in person to the hearing. P. did not object. The court granted the request and postponed the preliminary hearing until 28 September 1999.
On 28 September 1999 the plaintiff submitted to the court a request to amend the object of her action. She also wished to make further claims.
On 18 October 1999 the County Court concluded the preliminary hearing and decided to hold the trial hearing on 20 December 1999.
At the hearing of 20 December 1999 the County Court refused the plaintiff’s above requests, as she had failed twice to bring the wished amendments into conformity with the formal requirements.
On 22 December 1999 the County Court summoned the second applicant to the trial hearing which was to be held on 25 January 2000.
Only T., the plaintiff’s lawyer, appeared at the trial hearing rescheduled for 9 May 2000. The second applicant, a statutory representative of the applicant company, had received the summons. The reason for him not appearing was unknown. T. submitted a new request to amend the object of the action. He also submitted a statement of further claims. The hearing was postponed in order that the defendant company be able to familiarise itself with the amendments. The judge hearing the case made a ruling concerning her removal. The County Court had received copies of several petitions whereby the second, third and fourth applicants had requested that criminal proceedings be initiated against the judge concerned and the chairperson of the Saare County Court, since they had, allegedly, continuously committed serious crimes against the petitioners, involving denial of human existence, violence and crimes against human rights.
On 15 May 2000 the second applicant society allegedly concluded a purchase agreement with the applicant company in respect of the buildings at 26 and 26a Pikk Street.
On 3 July 2000 another judge of the County Court made a ruling concerning her removal, since the second and third applicants had made several petitions for initiating criminal proceedings also against her.
By a letter of 6 September 2000 the chairperson of the Saare County Court requested the chairperson of the Tallinn Court of Appeal to change the jurisdiction over the matter, since all of the judges of the County Court had removed themselves from the hearing of the case. On 15 September 2000 the chairperson of the Court of Appeal replied that judges could remove themselves from hearing the case only if grounds provided by Articles 18 and 19 of the Code of Civil Procedure (Tsiviilkohtumenetluse seadustik) existed. He noted that unjustified refusal to administer justice was prohibited and returned the case to the Saare County Court.
A preliminary hearing of the case was scheduled for 21 February 2001. However, on 20 February 2001 T. informed the County Court that K., the plaintiff, had died on 4 February 2001. Accordingly, the authority of T. to act on behalf of the plaintiff had expired. He requested that the proceedings be suspended. On 21 February 2001 the County Court decided to suspend the proceedings until ascertaining the identity of the plaintiff’s successor.
On 2 July 2001 the County Court requested the second, third and seventh applicants to provide translations into Estonian of their petitions submitted in Finnish. On 30 August 2001 the court extended the time-limit for providing the translations until 15 October 2001.
On 3 April 2002 the County Court resumed the proceedings and invited R. to act as the plaintiff.
On 29 April 2002 R. submitted to the court a request to amend the object of the action.
On 30 April 2002 the County Court held a preliminary hearing. R., the plaintiff; T., his lawyer; and N., member of the management board of the applicant company, appeared before the court. N. alleged that he was not authorised to represent the applicant company in this civil case. The court handed over to the defendant’s representative copies of petitions concerning the amendment of the object of the action and concerning additional claims from 9 May 2000 and 30 April 2002. The new hearing was scheduled for 5 June 2002.
On 5 June 2002 the court held a preliminary hearing at which appeared T., the plaintiff’s lawyer, and N., a member of the management board of the applicant company. According to N., he was not authorised to represent the company. The court agreed and decided that he could not take part in the proceedings. It heard T. and scheduled a new hearing for 13 August 2002.
On 13 August 2002 the court again held a preliminary hearing. There appeared T., the plaintiff’s lawyer; the third applicant, who presented a letter of authority whereby the second applicant had authorised him to represent the second applicant at the hearing; the seventh applicant to whom the applicant company had allegedly given its property as a gift; N., a member of the management board of the applicant company. The County Court decided that the third and seventh applicants were not linked to the defendant and did not allow them to take part in the proceedings. According to the applicants, the court refused the third applicant the right to act on behalf of the applicant company, although he produced a letter of authority. The court concluded the preliminary hearing and scheduled the trial hearing for 23 September 2002.
On 23 September 2002 the County Court held a trial hearing in the presence of R. and T., his lawyer. It delivered its judgment on 14 October 2002. R.’s claim was granted in part. The court obliged the management board of the applicant company to enter R. on the list of its shareholders with a share of a nominal value of EEK 5,000.
C. Subsequent proceedings
Both the applicant company and R. appealed against the judgment of the County Court. By a judgment of 21 April 2003 the Tallinn Court of Appeal quashed the County Court’s judgment and remitted the case back to it for fresh examination, since Tradeco Enterprises Inc had not taken part in the proceedings.
On 10 September 2003 the Supreme Court (Riigikohus) refused the applicant company leave to appeal.
On 15 January 2004 the Saare County Court decided to resume the proceedings and to invite Tradeco Enterprises Inc to participate therein as a third party. It requested the plaintiff’s lawyer to provide evidence concerning the status of Tradeco Enterprises Inc, including on whether this company had been dissolved and, if positive, whether there was a successor.
In the spring of 2004 T., the plaintiff’s lawyer, and the applicants were unsuccessfully seeking an opportunity to sell the buildings on Pikk Street.
D. Complaints against judges
In addition to the complaints made against the judges of the Saare County Court in 2000, the applicants made several further complaints during the proceedings.
On 23 April 2002 the second and third applicants, apparently acting on behalf of the applicant company, lodged a criminal complaint against the Saare County Court judges with the Legal Chancellor. On 20 May 2002 the Legal Chancellor replied that the matter did not lie within his competence. The applicants also lodged criminal complaints with the Supreme Court, alleging that several judges of the Saare County Court, the Tallinn Court of Appeal and the Supreme Court had acted unlawfully. By a letter of 23 August 2002 the acting president of the Supreme Court replied that the Supreme Court could not interfere with a pending civil case. He also noted that criminal charges were to be dealt with by the police.
COMPLAINTS
1. The applicants complained under Article 6 § 1 of the Convention about the length of the civil proceedings.
2. They also complained:
a) under Article 3 of the Convention that they had been treated in an inhuman and degrading manner in the proceedings;
b) under Article 6 that the Saare County Court was not an independent and impartial tribunal established by law. That being the case, they had been refused access to a court;
c) under Article 6 § 2 that the courts had acted in violation of their presumption of innocence;
d) about a number of breaches of Article 6 § 3 (a)-(e);
e) under Article 7 that they had been subject to punishment without law;
f) under Article 8 that their right to respect for private and family life had been violated by telephone calls, faxes and letters from K. and R. and by the bailiff who delivered court summons in person;
g) that their rights guaranteed under Article 10 had been violated by the criminal actions of the Saare County Court;
h) under Article 13 that the entire proceedings had been unlawful and that the courts had refused to examine this allegation. They also complained about the Supreme Court’s refusal to take measures on account of their criminal complaints concerning the violations committed by the lower courts. The higher courts, the police and the Minister of Justice supported the unlawful Saare County Court and the criminal offences committed by that court;
i) under Article 14 that they had been discriminated against by the Saare County Court;
j) that the sequestration had been unlawful and in breach of Article 1 of Protocol No. 1 to the Convention;
k) under Article 2 of Protocol No. 4 to the Convention that the Saare County Court was hindering them from visiting Saaremaa;
l) that the repetitive proceedings amounted to a breach of Article 4 of Protocol No. 7 to the Convention.
THE LAW
1. The applicants complained about the length of the civil proceedings, which had started on 19 October 1998 and had still not come to an end. Article 6 § 1 of the Convention, in so far as relevant, reads:
“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”
They have also invoked Article 13 of the Convention, which reads:
“Everyone whose rights and freedoms as set forth in [the] 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.”
a) The Court observes, at the outset, that it has repeatedly held that the word “victim” in the context of Article 34 of the Convention “denotes the person directly affected by the act or omission in issue ...” (see, among other authorities, Chevrol v. France, no. 49636/99, § 36, ECHR 2003‑III).
In the instant case the Court notes that the applicant company was the only applicant involved in the impugned proceedings. Although the second and third applicants have acted as representatives of the company, they were not involved in the civil proceedings on their own behalf.
The Court further notes that none of the applicants was a shareholder of the applicant company during the impugned proceedings. K., whose claim brought about the civil proceedings, alleged that Tradeco Enterprises Inc was not the sole shareholder of the applicant company. She maintained that 50 per cent of the shares belonged to her. Thus, it appears that there was a dispute between K. and Tradeco Enterprises Inc over the entitlement to the shares in the applicant company and that the remaining applicants’ interests could not have been violated in this connection either. Therefore, they cannot claim to be “victims” for the purposes of Article 34, whether acting on their own behalf or on behalf of the applicant societies.
It follows that, with the exception of the applicant company, this complaint is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.
b) In so far as the applicant company is concerned, 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 part of the application to the respondent Government.
2. The Court has examined the remainder of the applicants’ complaints as submitted by them. However, in the light of all the material in its possession, the Court finds that these complaints do not disclose any appearance of a violation of the rights and freedoms set out in the invoked Articles of the Convention or its Protocols. It follows that this part of the application 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 applicant company’s complaint concerning the length of the civil proceedings and the related issue of the existence of an effective remedy in this respect;
Declares the remainder of the application inadmissible.
Claudia WesterdiekPeer Lorenzen
RegistrarPresident
Full & Egal Universal Law Academy