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FOURTH
SECTION
CASE OF RAFAEL AHLSKOG v. FINLAND
(Application
no. 23667/06)
JUDGMENT
STRASBOURG
13
November 2008
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 Rafael Ahlskog 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 Lawrence
Early, Section
Registrar,
Having
deliberated in private on 21 October 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 23667/06) 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 a Finnish national, Mr Rafael
Johannes Ahlskog (“the applicant”), on 6 June 2006.
- The
applicant was represented by Mr P. Impola, a lawyer
practising in Helsinki. The Finnish Government (“the
Government”) were represented by their Agent, Mr A. Kosonen of
the Ministry for Foreign Affairs.
- On
20 December 2007 the
President of the Fourth Section decided to communicate the
application. It was also decided to rule on the admissibility and
merits of the application at the same time (Article 29 § 3).
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1955 and lives in Kokkola.
- On
4 September 1996 the applicant gave a directly enforceable guarantee
to cover the debt of a limited liability company. The debt fell due
on 31 March 1999 and was not paid.
- On
30 June 1999 the creditor bank initiated civil proceedings in the
District Court (käräjäoikeus, tingsrätten)
requesting the company and the applicant, along with other persons,
to pay the debt.
- On
8 February 2000 the District Court asked the defendants to indicate
clearly in writing whether or not they contested the claim, at the
risk of a default judgment. The applicant and the company filed their
statements of reply on 15 and 20 March 2000 respectively but failed
to indicate clearly their position.
- On
21 March 2000 the District Court gave a default judgment in which it
ordered the applicant and the company to pay the debt. The judgment
was served on 9 May 2000.
- On
12 May 2000 the applicant lodged an appeal against the default
judgment with the District Court requesting that the judgment be
quashed and the claims of the creditor bank be rejected.
- On
15 June 2000 the District Court ordered a stay of execution of the
judgment.
- The
District Court proceedings comprised three different sets of civil
proceedings which were joined on 7 May 2003. These were the
applicant's claim for refund of benefit by unjust enrichment, the
appeal against the default judgment and an action for damages, which
was subsequently withdrawn.
- On
6 February 2004 the court, after having held oral hearings
in October and December 2003, quashed the default judgment and
rejected the creditor bank's claims as far as the applicant was
concerned.
- In
March 2004 all parties to the case appealed to the Appeal Court
(hovioikeus, hovrätten). The applicant's appeal only
concerned costs and expenses. The Appeal Court held an oral hearing
in February 2006. On 4 April 2006 it upheld the District Court's
judgment as far as the applicant was concerned.
- The
applicant did not apply for leave to appeal to the Supreme Court
(korkein oikeus, högsta domstolen) as he was no longer in
need of legal protection. Consequently, the Appeal Court judgment
became final on 6 June 2006.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that the length of the 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
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 June 1999 when the
creditor bank initiated civil proceedings in the District Court and
ended on 6 June 2006 when the Appeal Court judgment became final. It
thus lasted over six years and eleven months for two 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 applicant and the relevant authorities and what
was at stake for the applicant in the dispute (see, among many other
authorities, Frydlender v. France [GC], no. 30979/96, §
43, ECHR 2000-VII).
- The
Government argued that the proceedings as such were not very complex,
but that the different claims made by the parties during the
proceedings rendered them more complicated. The parties had requested
extensions of time-limits in all three cases thirteen times
altogether and, for example, on one occasion, the time-limit was
extended by eight months. The applicant had three different counsel
during the District Court proceedings, the appointment of whom was
subject to separate decisions on at least four occasions between May
2001 and October 2003. A partiality claim was made by one of the
defendants, both in the District Court and in the Appeal Court.
Moreover, the oral hearing in the District Court was adjourned for
two weeks as some of the witnesses, one of whom was appointed by the
applicant, did not come to the hearing.
- The
Government further noted that the outcome of the case was positive
for the applicant in the District Court and that he had not made an
ordinary appeal but a counter-appeal concerning only his costs and
expenses.
- The
applicant pointed out that he had had no influence over the conduct
of the other parties or the witnesses in his case. Neither did the
fact that he had had three different counsel prolong the proceedings
but, quite the contrary, the excessively long proceedings were the
reason for using three different counsel. It was irrelevant whether
the outcome of his case had been positive in the District Court or
that he had lodged a counter-appeal for costs and expenses. The
applicant did not prolong the proceedings or make them more
complicated.
- 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
applicant claimed 20,000 euros (EUR) in respect of non-pecuniary
damage.
- The
Government contested the claim considering that it was excessive as
to quantum and that the award should not exceed EUR 2,000.
- The
Court considers that the applicant must have sustained non-pecuniary
damage. Ruling on an equitable basis, it awards him EUR 5,000
under that head.
B. Costs and expenses
- The
applicant also claimed EUR 1,647 (inclusive of value-added tax) for
the costs and expenses incurred before the Court.
- The
Government considered the applicant's claim reasonable.
- The
Court reiterates that an award under this head may be made only in so
far as the costs and expenses were actually and necessarily incurred
in order to avoid, or obtain redress for, the violation found (see,
among other authorities, Hertel v. Switzerland, judgment of 25
August 1998, Reports 1998-VI, p. 2334, § 63).
- In
the present case, regard being had to the information in its
possession, the above criteria and the fact that the application was
examined under the joint procedure provided for under Article 29 §
3 of the Convention, the Court considers it reasonable to award the
applicant the claimed amount in full (inclusive of value-added tax).
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 applicant, 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
5,000 (five thousand euros), plus any tax that may be chargeable, in
respect of non-pecuniary damage;
(ii) EUR
1,647 (one thousand six hundred and forty seven euros), plus any tax
that may be chargeable to the applicant, 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 applicant's claim
for just satisfaction.
Done in English, and notified in writing on 13 November 2008,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza
Registrar President
