FOURTH SECTION
DECISION
Application no. 66399/09
S.V.
against Finland
The European Court of Human Rights (Fourth Section), sitting on 24 January 2012 as a Committee composed of:
Ledi Bianku, President,
Päivi Hirvelä,
Zdravka Kalaydjieva, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having regard to the above application lodged on 15 December 2009,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr S.V., is a Finnish national who was born in 1969. The President of the Fourth Section of the Court decided that the applicant’s name should not be disclosed (Rule 47 § 3 of the Rules of Court). The applicant’s application was lodged on 15 December 2009. The Finnish Government (“the Government”) were represented by their Agent, Mr Arto Kosonen of the 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.
On 27 July 2001 the applicant and nine other persons filed a civil action with the Helsinki District Court (käräjäoikeus, tingsrätten). They requested that an arbitral award given in the same year concerning repurchase of shares be quashed or alternatively that the price payable for the shares in question be raised considerably.
In summer 2009 the District Court started to proceed with the case and summoned the parties concerned to appear in person. The applicant resided abroad until September 2009 and his foreign address was allegedly listed in the population register. All other parties to the case were summoned by a registered letter but the applicant was summoned through an advertisement in the Official Gazette (Virallinen lehti, Officiella tidningen).
As the applicant did not appear at the preparatory session of the case held on 17 June 2009, the District Court decided on 18 June 2009 to discontinue his case. The other parties to the case had meanwhile withdrawn their actions as they had reached an out-of-court agreement with the limited liability company. The applicant claims that he did not receive the decision of 18 June 2009 until early 2010, by accident, and that it did not include any instructions for appeal.
By letter dated 17 January 2010 the applicant filed a complaint with the Helsinki Appeal Court (hovioikeus, hovrätten), requesting that the District Court’s decision of 18 June 2009 be quashed or annulled and that the case be referred back to the District Court for examination. He also requested restoration of the time-limit to appeal (menetetyn määräajan palauttaminen, återställandet av försutten fatalietid). He claimed that he had been summoned in an incorrect manner.
On 1 July 2010 the Appeal Court rejected the applicant’s complaint. It found that according to the Code of Judicial Procedure (oikeuden-käymiskaari, rättegångsbalken), a case amenable to settlement should be discontinued if the opposing party failed to appear at a hearing, unless a party requested a judgment by default. A decision to discontinue a case could not be appealed against but an applicant could inform a district court within 30 days of a valid excuse. As the applicant in the present case had not done so, the decision of 18 June 2009 had acquired legal force on 19 July 2009. The applicant had thus introduced his extraordinary complaints to the Appeal Court within the time-limit. According to the Code of Judicial Procedure, a final decision could be annulled if there was a procedural mistake. The court noted that the applicant had not informed the District Court of his new procedural address or any other contact address. The population register did not contain any valid contact details at the time when the applicant was summoned or afterwards, nor did the District Court receive this information from his co-plaintiffs. The applicant knew that the District Court did not have his contact details as he himself had been in contact with the District Court. The District Court had reason to believe that the applicant resided abroad but not even the country where he resided could be verified. The Appeal Court found that the District Court had not made any procedural mistake in the case, nor could the time-limit for appeal be restored. The applicant’s extraordinary complaint could thus be rejected. Appeal against this decision lay to the Supreme Court if it granted leave to appeal.
By letter dated 30 August 2010 the applicant lodged an appeal and an extraordinary appeal with the Supreme Court (korkein oikeus, högsta domstolen), reiterating the grounds for appeal or annulment already presented before the Appeal Court. He also claimed compensation for excessive duration of the proceedings.
On 7 June 2011 the Supreme Court rejected the applicant’s compensation claim, refused him leave to appeal and dismissed his extraordinary appeal as the Appeal Court decision of 1 July 2010 was not yet final. As to the compensation claim, the court found that the applicant should have presented his compensation claim already before the Appeal Court because the Act on Compensation for Excessive Duration of Judicial Proceedings was already in force when the applicant lodged his complaint with the Appeal Court.
B. Relevant domestic law
The Act on Compensation for Excessive Duration of Judicial Proceedings (laki oikeudenkäynnin viivästymisen hyvittämisestä, lagen om gottgörelse för dröjsmål vid rättegång; Act no. 362/2009) entered into force on 1 January 2010. The Act provides for a party a right to receive compensation from State funds whenever judicial proceedings concerning that party have been excessively long.
Section 2 of the Act provides that the Act is applicable by general courts to litigious, non-contentious and criminal actions.
As to the procedure for claiming compensation, section 7, subsection 1, of the Act provides as follows:
“A claim for compensation shall be lodged with the general court in charge of the case before the consideration of the merits is closed under the pain of loss of the right of action. Such a claim cannot be lodged as late as at the Supreme Court stage without a valid reason.”
Section 9 of the Act provides that the court shall decide on the compensation claim when it decides on the merits of a case. The composition competent for deciding on the merits shall also be competent for deciding on the compensation.
Having regard also to the preparatory works of the Act (see the Government’s proposal HE 233/2008 vp), there appear to be no obstacles to a compensation claim being made and decided in the context of an extraordinary appeal.
COMPLAINTS
The applicant complained under Article 6 § 1 of the Convention that the total length of his civil proceedings was incompatible with the reasonable‑time requirement. He complained under the same Article that he had not had a fair trial because he had not been legally summoned by the District Court and therefore his case had been discontinued.
The applicant complained under Article 1 of Protocol No. 1 to the Convention that he, as a lawful owner, had lost his title to the shares and had therefore lost five million euros due to the discontinuation of the trial.
He complained under Article 14 of the Convention that he had been discriminated against because he had been the only one not summoned to the trial in the District Court while all the other persons had been summoned.
Lastly, the applicant complained under Article 13 of the Convention that he had not had an effective remedy to complain about the illegal acts committed by the District Court.
THE LAW
A. Length of the proceedings
The applicant complained under Article 6 § 1 of the Convention that the total length of his civil proceedings was incompatible with the reasonable‑time requirement. Article 6 reads, in the relevant parts, as follows:
“In the determination of his civil rights and obligations ... everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”
The Government pointed out that the applicant had not exhausted the domestic remedies because he had failed to claim compensation for the excessive length of proceedings before the Appeal Court. Such claim could no longer be lodged with the Supreme Court without a valid reason. In the Government’s view there existed no valid reason to claim compensation only before the Supreme Court. A valid reason could be, for example, that the delay took place only in the Supreme Court, which was not so in the present case. The applicant’s case became pending before the Appeal Court by letter dated 17 January 2010, thus after the Act on Compensation for Excessive Duration of Judicial Proceedings had entered into force on 1 January 2010. In the Government’s view the applicant’s complaint should be declared inadmissible for non-exhaustion of domestic remedies.
The applicant maintained that the Act on Compensation for Excessive Duration of Judicial Proceedings entered into force only on 1 January 2010 while the proceedings had finished already in summer 2009. He had also lodged his application with the Court before the entry into force of the Act. The applicant’s complaint lodged with the Appeal Court was considered as an extraordinary appeal by that court. The applicant was thus not able to present his compensation claim when the ordinary proceedings were still pending. The Supreme Court could have examined the compensation claim and awarded compensation. The applicant had a valid reason to present his claim before the Supreme Court. The applicant also argued that the Government had filed its further observations out of time.
The Court notes first of all that the Government’s further observations reached the Court within the time-limit.
As to the Government’s preliminary objection, the Court reiterates that the purpose of Article 35 of the Convention is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Convention institutions. Consequently, States are dispensed from answering for their acts before an international body before they have had an opportunity to put matters right through their own legal system. That rule is based on the assumption, reflected in Article 13 of the Convention – with which it has close affinity – that there is an effective remedy available in respect of the alleged breach in the domestic system. In this way, it is an important aspect of the principle that the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights (see the recapitulation of the relevant case-law in Selmouni v. France [GC], no. 25803/94, § 74, ECHR 1999-V).
The remedies which Article 35 of the Convention requires to be exhausted are those that relate to the breaches alleged and at the same time are available and sufficient. The existence of such remedies must be sufficiently certain not only in theory but also in practice, failing which they will lack the requisite accessibility and effectiveness; it falls to the respondent State to establish that these various conditions are satisfied (see, for example, Vernillo v. France, 20 February 1991, § 27, Series A no. 198; and Akdivar and Others v. Turkey, 16 September 1996, § 66, Reports of Judgments and Decisions 1996‑IV).
The Court has already found in the context of another case (see Ahlskog v. Finland (dec.), no. 5238/07, 9 November 2010) that a complaint under the Act on Compensation for Excessive Duration of Judicial Proceedings is an effective remedy in the sense that it is capable of providing adequate redress for excessive length of proceedings in civil and criminal cases, provided that the impugned proceedings are still pending.
In this connection, the Court reiterates that the assessment of whether domestic remedies have been exhausted is normally carried out with reference to the date on which the application was lodged with it. However, this rule is subject to exceptions which may be justified by the particular circumstances of each case (see Baumann v. France, no. 33592/96, § 47, ECHR 2001‑V (extracts)). The Court has on many occasions held in cases concerning the length of proceedings, and which had not been declared admissible by the Court, that applicants should be required to have recourse to domestic remedies notwithstanding that those remedies have been enacted after their applications have been filed with the Court (see, for example, Giacometti and Others v. Italy (dec.), no. 34939/97, ECHR 2001‑XII; Nogolica v. Croatia (dec.), no. 77784/01, ECHR 2002‑VIII; Andrášik and Others v. Slovakia (dec.), nos. 57984/00, 60237/00, 60242/00, 60679/00, 60680/00, 68563/01 and 60226/00, ECHR 2002‑IX; and Charzyński v. Poland (dec.), no. 15212/03, § 40, ECHR 2005‑V).
The Court notes that, according to the Appeal Court, the ordinary proceedings in the applicant’s case ended on 19 July 2009 when the decision of 18 June 2009 acquired legal force. The applicant’s complaint to the Appeal Court was thus an extraordinary appeal which the court subsequently rejected. The decision of the Appeal Court could be further appealed against to the Supreme Court if it granted leave to appeal. The Court notes that even though the proceedings before the Appeal Court and the Supreme Court were extraordinary proceedings, in the Supreme Court’s view there were no procedural obstacles to examining the applicant’s compensation claim for excessive length in the context of those proceedings. Nor does there appear to be any obstacle in the Act on Compensation for Excessive Duration of Judicial Proceedings itself or in the preparatory works related to it.
Taking into account the fact that the Convention mechanism is subsidiary to national systems for safeguarding human rights, and in view of the above considerations, the Court finds that the applicant should have invoked the Act on Compensation for Excessive Duration of Judicial Proceedings, which was already in force at the time when the applicant lodged his complaint with the Appeal Court, during the Appeal Court proceedings.
It follows that the Government’s objection is upheld and the applicant’s complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
B. Remainder of the application
The applicant also complained under Article 6 of the Convention that he had not had a fair trial because he had not been legally summoned by the District Court and therefore his case had been discontinued. He complained under Article 1 of Protocol No. 1 to the Convention that he, as a lawful owner, had lost his title to the shares and had therefore lost five million euros due to the discontinuation of the trial. Moreover, he complained under Article 14 of the Convention that he had been discriminated against because he had been the only one not summoned to the trial in the District Court while all the other persons had been summoned. Lastly, the applicant complained under Article 13 of the Convention that he had not had an effective remedy to complain about the illegal acts committed by the District Court.
Having regard to the case file, the Court finds that the matters complained of do not disclose any appearance of a violation of the applicant’s 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
Declares the application inadmissible.
Fatoş AracıLedi Bianku
Deputy RegistrarPresident
Full & Egal Universal Law Academy