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FOURTH
SECTION
CASE OF VIENONEN AND OTHERS v. FINLAND
(Application
no. 36989/05)
JUDGMENT
STRASBOURG
24
March 2009
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Vienonen and Others v. Finland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas Bratza,
President,
Giovanni Bonello,
David Thór
Björgvinsson,
Ján Šikuta,
Päivi
Hirvelä,
Ledi Bianku,
Nebojša
Vučinić, judges,
and Fatoş Aracı,
Deputy Section Registrar,
Having
deliberated in private on 3 March 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 36989/05) against the
Republic of Finland lodged with the Court
under Article 34 of the Convention for the Protection
of Human Rights and Fundamental Freedoms (“the Convention”)
by four Finnish nationals, Mr Uolevi Vienonen and Mrs Anja
Lehtonen, Mrs Marja Kyrölä and Mrs Kirsi Alastalo on behalf
of their deceased husband and father Unto Lehtonen's estate (“the
applicants”), on 26 September 2005.
- The
applicants were represented by Mr Jaakko Ylinen, a lawyer practising
in Forssa. The Finnish Government (“the
Government”) were represented by their Agent, Mr Arto Kosonen
of the Ministry for Foreign Affairs.
- On
6 December 2007 the
President of the Fourth Section decided to give notice of the
application to the Government. It was also decided to rule on the
admissibility and merits of the application at the same time
(Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicants live in Kuusjoki, Perniö, Tuohittu and Humppila
respectively.
- The
first applicant and Mr Lehtonen were from 1989 to 1991 members of the
board of directors of a local bank which subsequently went bankrupt.
On 30 December 1993 the successor property management
company of the bank, which was owned by the Finnish State, initiated
civil proceedings before the Salo District Court (käräjäoikeus,
tingsrätten), claiming compensation from the first
applicant and Mr Lehtonen. The company claimed that the first
applicant and Mr Lehtonen along with other persons had caused the
bank damage exceeding 134 million euros (EUR) through accepting loan
applications and neglecting their duty to supervise the acts of the
management. Later the amount of damages claimed was lowered to EUR
90 million.
- The
District Court held preparatory meetings in the case on 8 March 1994,
8 November 1995, 9-10 January 1996 and 25 January 1996. On 5 February
1996 the court gave an interlocutory judgment concerning succession
issues and the application of the statute of limitations. During the
preparatory meetings the parties agreed to wait for the outcome of
other proceedings which were closely related to the case and could
provide additional information for its resolution. After the
preparatory meetings the case was processed only in writing. The
judge responsible for the case was changed a number of times and the
parties, despite several attempts, were not able to settle the case.
- During
the District Court proceedings the first applicant and Mr Lehtonen,
among others, requested that the proceedings be terminated and that
the complaints of the successor company be either rejected or
dismissed without examining the merits. They maintained that,
according to the Convention, proceedings should be terminated within
a reasonable time. That rule had not been complied with in their case
and the proceedings should therefore be discontinued.
- On
9 March 1996 Mr Lehtonen died and his estate, comprising his wife and
two daughters, continued the case on his behalf (hereafter the second
applicant).
- On
29 June 2004 the District Court decided to accept the applicants'
request and dismissed the case without examining the merits. The
court stated that from the point of view of procedural economy it
would be wise to await the outcome of the related proceedings which,
however, had lasted longer than expected and were still pending. The
case was very complex and it was expected that a judgment would only
be rendered in a few years' time. The applicants had tried to
accelerate the proceedings by proposing a settlement on several
occasions. The proposals had all been rejected by the successor
company. The court concluded that the length of the proceedings was
already excessive, that the proceedings could not be accelerated and
that the only effective remedy was to dismiss the case without
examining the merits.
- The
successor company appealed to the Turku Appeal Court (hovioikeus,
hovrätten), which on 29 November 2004 quashed the
District Court decision and referred the case back to the District
Court. The court found that Finnish law did not give a possibility to
reject or dismiss a case without examining the merits in a situation
where the proceedings had exceeded a reasonable time. Neither the
Convention nor the European Court required that in such cases the
proceedings should be terminated. The successor company had, as a
separate legal person, according to Article 6 § 1
of the Convention and the Finnish Constitution, a right to have its
case considered by a court. This meant that it had a right to have a
final decision in the case even if the length of the proceedings had
already been excessive.
- On
12 April 2005 the Supreme Court (korkein oikeus, högsta
domstolen) refused leave to appeal.
- On
13 June 2005 the District Court made a proposal for the settlement of
the case. According to the terms of the settlement, the applicants,
along with other persons, were to pay EUR 17,000 each to the
plaintiff who would then receive a total sum of EUR 297,000 from the
defendants. It was acknowledged in the settlement that the
proceedings in the case had been unreasonably long. In part IV of the
settlement it was, however, stipulated that
“[t]he District Court proposes that after an
agreement is reached the defendants would commit not to take any
legal action in the European Court of Human Rights regarding the
unreasonable length of the proceedings.”
- The
proposal was accepted by the successor company on 17 June 2005
and by the applicants on 21 June 2005. On 22 June 2005 the District
Court issued a decision confirming the settlement. No appeal lay
against this decision.
- The
Deputy Parliamentary Ombudsman (eduskunnan apulaisoikeusasiamies,
riksdagens biträdande justitieombudsman) had already found
on 19 June 2003 that the proceedings had exceeded a reasonable time.
II. RELEVANT DOMESTIC LAW
- According
to Chapter 20, section 5, of the Code of Judicial Procedure
(oikeudenkäymiskaari, rättegångsbalken, as in
force at the relevant time) it was not possible to appeal against a
decision confirming a settlement but it was possible to contest it by
lodging an action for invalidity with the court which had confirmed
the settlement, on the
basis that the content of the settlement was unclear or that the
settlement was concluded with subterfuge. No
time-limit was fixed for lodging such an action.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicants complained that the length of the civil proceedings had
been incompatible with the “reasonable time” requirement,
laid down in Article 6 § 1 of the Convention, which reads 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 contested that argument.
A. Admissibility
- The
Government pointed out that the domestic proceedings had ended with a
settlement which had been accepted by all parties and had been
confirmed by the District Court. According to the terms of the
settlement, the applicants had agreed to pay to the plaintiff EUR
17,000 each and had agreed not to take any legal action in the
European Court with respect to the excessive length of the
proceedings. The Government claimed that the applicants were thus no
longer victims within the meaning of Article 34 of the Convention.
- Moreover,
the Government claimed that the applicants had not contested the
settlement under Chapter 20, section 5, of the Code of Judicial
Procedure. They had thus not exhausted the domestic remedies
available to them.
- The
applicants claimed that they had accepted the settlement only in
order to put an end to years of uncertainty, not because they had
been happy with its contents. The applicants had had no other choice
but to accept the settlement in order to end the proceedings. They
pointed out that the contents of the settlement did not relate to the
same issue as the one before the Court, namely the length of the
proceedings.
- The
Court notes that the Government has not raised any arguments
concerning Article 37 but has claimed instead that the applicants are
no longer victims within the meaning of Article 34 of the Convention.
Thus the question is whether the applicants may continue to claim to
be victims of a violation of Article 6 § 1 of the Convention on
the grounds of the length of the civil proceedings in view of the
settlement confirmed on 22 June 2005 by the District Court.
- An
individual can no longer claim to be a victim of a violation of the
Convention when the national authorities have acknowledged, either
expressly or in substance, the breach of the Convention and afforded
redress (see Eckle v. Germany, 15 July 1982, § 66,
Series A no. 51, for the application of this principle in
the context of judicial settlements, see Inze v. Austria, 28
October 1987, § 32, Series A no. 126, and in the context of
judicial settlements and Article 6, see Schlader v. Austria
(dec.), no. 31093/96, 7 March 2000).
- Applying
these principles in the present case, the Court notes that the
District Court stated already in its judgment of 29 June 2004, and
subsequently in the settlement of 22 June 2005, that the proceedings
in the case had been unreasonably long. However, no redress
whatsoever was afforded to the applicants either during the court
proceedings or in the settlement agreement, which only dealt with the
merits of the compensation issue. Therefore, the Court considers that
the applicants can still claim to be victims of a breach of the
“reasonable time” requirement as required by Article 34
of the Convention.
- As
to the Government's other admissibility argument, the Court notes
that the decision of 22 June 2005 confirming the settlement was a
final decision in the sense that no appeal lay against it. However,
it was possible to contest it by lodging an action for invalidity
with the court that had confirmed the settlement. This remedy was
thus of an extraordinary character which, according to the Court's
case-law, does not as a rule constitute an effective remedy within
the meaning of Article 35 of the Convention unless it is established
under domestic law that a request for such proceedings in fact could
be considered as an effective remedy (see, mutatis mutandis,
X. v. Switzerland, 8850/80, Commission's decision of 7 October
1980, 22 D.R. 232). Furthermore, the applicants were satisfied to
reach a settlement in the case and had no need to contest its
validity.
- As
to the effectiveness of a remedy, the Court reiterates that the only
remedies that must be exhausted are those that relate to the breaches
alleged and at the same time are available and sufficient (see, among
others, Civet v. France [GC], no. 29340/95, § 41, ECHR
1999 VI). The Court has already found that, under Finnish law,
there is no specific legal avenue whereby the applicants could
complain of the length of the civil proceedings with a view to
expediting the determination of their dispute (see Vilho Eskelinen
and Others v. Finland [GC], no. 63235/00, § 82, ECHR 2007 ).
- The
Court concludes that the remedy in question was not effective in the
applicants' case as it could not have remedied their situation. The
Government's objection that domestic remedies have not been exhausted
must therefore be rejected.
- Consequently,
the Court notes that the application is not manifestly ill-founded
within the meaning of Article 35 § 3 of the Convention. It
further notes that it is not inadmissible on any other grounds. It
must therefore be declared admissible.
B. Merits
- The
period to be taken into consideration began on 30 December 1993
when the civil proceedings were initiated before the District Court
and ended on 22 June 2005 when the District Court issued a decision
confirming the settlement. It thus lasted almost 11 years and
6 months at three levels of jurisdiction, of which one level
twice.
- The
Court reiterates that the reasonableness of the length of proceedings
must be assessed in the light of the circumstances of the case and
with reference to the following criteria: the complexity of the case,
the conduct of the applicants and the relevant authorities and what
was at stake for the applicants in the dispute (see, among many other
authorities, Frydlender v. France [GC], no. 30979/96, §
43, ECHR 2000-VII).
- The
Government maintained that, after the District Court's decision of 29
June 2004, the case had been examined very swiftly. The case had been
very complex and it had related to several other complex sets of
proceedings pending at the same time. Although the overall length of
the proceedings did not appear to meet the requirements under Article
6 § 1 of the Convention the Government claimed that the total
sum, which the applicants had to pay to the plaintiff, had been very
much reduced from the original claim, and that this reduction had
remedied the applicants' situation.
- The
applicants claimed that the Government had not submitted any
acceptable reason why the proceedings had not been brought to a
conclusion within a considerably shorter time frame. It had not even
been claimed that the applicants had delayed the proceedings. The
applicants claimed that none of the domestic courts had assessed the
impact of the excessive duration of the proceedings on the
applicants.
- The
Court has frequently found violations of Article 6 § 1 of the
Convention in cases raising issues similar to the one in the present
case (see Frydlender, cited above).
- Having
examined all the material submitted to it, the Court considers that
the Government have not put forward any fact or argument capable of
persuading it to reach a different conclusion in the present case.
Having regard to its case-law on the subject, the Court considers
that in the instant case the length of the proceedings was excessive
and failed to meet the “reasonable time” requirement.
There
has accordingly been a breach of Article 6 § 1.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article
41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
first applicant claimed 30,000 euros (EUR) and the other applicants
EUR 10,000 each in respect of non-pecuniary damage.
- The
Government did not express an opinion on the matter.
- The
Court considers that the applicants must have sustained non-pecuniary
damage. Ruling on an equitable basis, it awards the first applicant
and Mr Lehtonen's estate EUR 10,000 each in respect of non-pecuniary
damage.
B. Costs and expenses
- The
applicants also claimed EUR 9,276.30 plus interest for the costs and
expenses incurred before the domestic courts and EUR 3,813.51
(including value-added tax) plus interest for those incurred before
the Court.
- The
Government contested the claim for the costs and expenses incurred
before the Court considering that it was excessive as to quantum
and that the award should not exceed EUR 3,100 (including
value-added tax).
- According
to the Court's case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and were
reasonable as to quantum. In the present case, regard being had to
the information in its possession and the above criteria, the Court
rejects the claim for costs and expenses in the domestic proceedings
and considers it reasonable to award the sum of EUR 3,800 (including
value-added tax) for the proceedings before the Court.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the application admissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicants, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following
amounts:
(i) EUR
10,000 (ten thousand euros) to the first applicant and Mr Lehtonen's
estate each, plus any tax that may be chargeable, in respect of
non-pecuniary damage;
(ii) EUR
3,800 (three thousand eight hundred euros) to the applicants jointly,
plus any tax that may be chargeable to them, in respect of costs and
expenses;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicants' claim
for just satisfaction.
Done in English, and notified in writing on 24 March 2009, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Nicolas Bratza
Deputy Registrar President
