Eero Martti Ensio KOLU and Alli Heleena KOLU v Finland - 56463/10 [2011] ECHR 796 (3 May 2011)

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Application no. 56463/10
by Eero Martti Ensio KOLU and Alli Heleena KOLU
against Finland

The European Court of Human Rights (Fourth Section), sitting on 3 May 2011 as a Chamber composed of:

Nicolas Bratza, President,
Sverre Erik Jebens,
Päivi Hirvelä,
Ledi Bianku,
Zdravka Kalaydjieva,
Nebojša Vučinić,
Vincent A. de Gaetano, judges,
and Fatoş Aracı, Deputy Section Registrar,

The applicants, Mr Eero Martti Ensio Kolu and Alli Heleena Kolu, are Finnish nationals who were born in 1945 and 1947 respectively and live in Nukari.

The facts of the case, as submitted by the applicants, may be summarised as follows.

The applicants own real estate which is burdened by a servitude (a road crossing it) (tierasite, vägservitut). They wanted to have the road transferred to the neighbouring estate and initiated administrative proceedings to that effect. On 20 November 2007 their application was rejected by the District Survey Office (maanmittaustoimisto, lantmäteribyrå).

By letter dated 19 December 2007 the applicants appealed to the Land Court (maaoikeus, jorddomstolen), requesting that the decision of the District Survey Office be quashed and the road transferred to the neighbouring estate.

On 5 September 2008 the Land Court rejected their appeal. It found, inter alia, that the servitude had already been confirmed by the Supreme Court in 2000 and that the situation had not considerably changed since then. As the nuisance caused to the applicants was modest, there was no reason to transfer the road elsewhere. One of the lay judges gave a dissenting opinion.

By letter dated 3 November 2008 the applicants appealed to the Supreme Court (korkein oikeus, högsta domstolen), reiterating the grounds of appeal already presented before the Land Court.

By letter dated 18 June 2009 the applicants lodged an application for the reopening of the case (tuomion purku, återbrytande) with the Supreme Court. They claimed that the earlier judgment and decisions were manifestly based on a misapplication of the law.

On 1 April 2010 the Supreme Court refused the request. It found that the applicants had not given any grounds on the basis of which the Land Court judgment or the Supreme Court decision could be reversed.

According to Chapter 31, section 7, of the Code of Judicial Procedure (oikeudenkäymiskaari, rättegångsbalken, Act no. 4/1734, as amended by Act no. 109/1960):

(1) if a member or official of the court or a representative or counsel of a party has, in connection with the case, been guilty of criminal conduct that may be assumed to have influenced the result of the case;

(2) if a document that has been used as evidence was false or its contents did not accord with the truth and the person who presented the document was aware of the same, or if a party heard under affirmation or a witness or expert witness has deliberately given a false statement and it may be assumed that the document or the statement has influenced the result;

(3) if reference is made to a circumstance or piece of evidence that has not been presented earlier, and its presentation would probably have led to a different result; or

A judgment shall not be reversed on the grounds referred to in subsection (3), unless the party can establish a probability that he or she could not have referred to the fact or piece of evidence in the court that passed the judgment or on appeal, or that he or she has had another justified reason not to do so.”

A request for the reversal of a judgment in a civil case shall be made within one year of the date on which the requester became aware of the circumstance upon which the request is based. If the request in a civil case is based on the circumstance referred to in section 7, subsection (4), the period shall be calculated from when the judgment became final. A request for the reversal of a final judgment shall be filed with the Supreme Court.

The applicants complained, without invoking any Article of the Convention, that the above-mentioned domestic decisions violated both their right to respect for their home as well as their right to property.

In so far as the applicants complain about the refusal of the Supreme Court to reopen their case, the Court notes that the Convention does not oblige States to allow individuals the opportunity of having their case re-opened once the judgment has become final. Moreover, Article 6 of the Convention is not applicable to proceedings concerning an application for reopening of civil proceedings which have been terminated by a final decision (see Schelling v. Austria (no. 2) (dec.), no. 46128/07, 16 September 2010; Steck-Risch and Others v. Liechtenstein (dec.), no. 29061/08, 11 May 2010; Mumladze v. Georgia, no. 30097/03, § 35, 8 January 2008; Sablon v. Belgium, no. 36445/97, § 86, 10 April 2001; Kuzmin v. Estonia, no. 35648/97, Commission decision of 1July 1998; and X v. Austria, no. 7761/77, Commission decision of 8 May 1978). Accordingly, this part of the application must be rejected as being incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 §§ 3 and 4 of the Convention.

As concern the rest of the applicants’ complaints, the Court must first determine whether the applicants have complied with the admissibility requirements in Article 35 § 1 of the Convention, which stipulates:

“The Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law, and within a period of six months from the date on which the final decision was taken.”

The rule of exhaustion of domestic remedies referred to in Article 35 § 1 of the Convention obliges those seeking to bring a case against a State to use first the remedies provided by the national legal system, thus allowing States the opportunity to put matters right through their own legal systems before being required to answer for their acts before an international body. In order to comply with the rule, normal recourse should be had by an applicant to remedies which are available and sufficient to afford redress in respect of the breaches alleged; there is no obligation to have recourse to remedies which are inadequate or ineffective (see, among many other authorities, Akdivar and Others v. Turkey, 16 September 1996, §§ 65-67, Reports of Judgments and Decisions 1996-IV; and Demopoulos and Others v. Turkey (dec.), nos. 46113/99, 3843/02, 13751/02, 13466/03, 10200/04, 14163/04, 19993/04 and 21819/04, § 70, ECHR 2010 ...).

The six-month rule stipulated in Article 35 § 1 is intended to promote security of the law and to ensure that cases raising issues under the Convention are dealt with within a reasonable time. It protects the authorities and other persons concerned from uncertainty for a prolonged period of time. Finally, it ensures that, insofar as possible, matters are examined while they are still fresh, before the passage of time makes it difficult to ascertain the pertinent facts and renders a fair examination of the question at issue almost impossible (see Kelly v. the United Kingdom, no. 10626/83, Commission decision of 7 May 1985, Decisions and Reports (DR) 42, p. 205; Baybora and Others v. Cyprus (dec.), no. 77116/01, 22 October 2002; Denisov v. Russia (dec.), no. 33408/03, 6 May 2004; and Williams v. the United Kingdom (dec.) no. 32567/06, 17 February 2009).

In assessing whether an applicant has complied with Article 35 § 1, it is important to recall that the requirements contained in that Article concerning the exhaustion of domestic remedies and the six-month period are closely interrelated (see Galstyan v. Armenia, no. 26986/03, § 39, 15 November 2007; and Williams v. the United Kingdom (dec.) no. 32567/06, 17 February 2009). Thus where no effective remedy is available to an applicant, the time-limit expires six months after the date of the acts or measures about which he complains, or after the date of knowledge of that act or its effect or prejudice on the applicant (see Younger v. the United Kingdom (dec.), no. 57420/00, ECHR 2003-I; and Varnava and Others v. Turkey [GC], nos. 16064/90, 16065/90, 16066/90, 16068/90, 16069/90, 16070/90, 16071/90, 16072/90 and 16073/90, § 157, ECHR 2009 ...). The pursuit of remedies which do not satisfy the requirements of Article 35 § 1 will not be considered by the Court for the purposes of establishing the date of the “final decision” or calculating the starting point for the running of the six-month rule (see Prystavska v. Ukraine (dec.), no. 21287/02, 17 December 2002; and Sapeyan v. Armenia, no. 35738/03, § 21, 13 January 2009).

The Court recalls its extensive case-law to the effect that an application for retrial or reopening or similar extraordinary remedies cannot, as a general rule, be taken into account for the purposes of applying Article 35 § 1 of the Convention (see, e.g., Denisov, cited above; and Galstyan, cited above, § 39). Furthermore, remedies the use of which depends on the discretionary powers of public officials and which are, as a consequence, not directly accessible to the applicant cannot be considered as effective remedies within the meaning of Article 35 § 1 of the Convention (see Tumilovich v. Russia (dec.), no. 47033/99, 2 June 1999; Gurepka v. Ukraine, no. 61406/00, § 60, 6 September 2005; and Tănase v. Moldova [GC], no. 7/08, § 122, ECHR 2010 ...). Similarly, remedies which have no precise time-limits, thus creating uncertainty and rendering nugatory the six-month rule contained in Article 35 § 1 of the Convention, are not effective remedies within the meaning of Article 35 § 1 (see Denisov, cited above; Galstyan, cited above, § 39; Williams, cited above; and Tucka v. the United Kingdom (dec.), no. 34586/10, 18 January 2011). In particular, the Court observes that it has consistently rejected applications in which the applicants have submitted their complaints within six months from the decisions rejecting their requests for reopening of the proceedings on the ground that such decisions could not be considered “final decisions” for the purpose of Article 35 § 1 of the Convention (see, among other authorities, Berdzenishvili v. Russia (dec.), no. 31697/03, ECHR 2004-II; Riedl Riedenstein and Others v. Germany (dec.), no. 48662/99, 22 January 2002; and Babinsky v. Slovakia (dec.), no. 35833/97, 11 January 2000).

The Court notes that the present case concerns the applicants’ request to the Supreme Court seeking to reopen the concluded civil proceedings. The request was eventually refused by the Supreme Court on 1 April 2010. It is clear from the terms of the relevant legislation, and in particular from the terms of Chapter 31, section 7, of the Code of Judicial Procedure, that any reopening is within the discretion of the Supreme Court. In the present case, the Supreme Court found that the applicants had not given any grounds on the basis of which the Land Court judgment or the Supreme Court decision could be reversed. There was thus no question about any new fact or evidence which would have become known to the applicants only after the ordinary proceedings had been terminated. The applicants’ case concerned the reassessment of the applicable law.

The Court accordingly concludes that the applicants’ request to the Supreme Court did not constitute an effective remedy for the purposes of Article 35 § 1 of the Convention. It therefore follows that the date of the final decision from which the six-month period began to run was 16 March 2009, the date on which the Supreme Court rendered a final decision in the case. As the present application was lodged with this Court on 30 September 2010, it is therefore introduced out of time and must thus be declared inadmissible pursuant to Article 35 §§ 1 and 4 of the Convention.

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You are here: BAILII >> Databases >> European Court of Human Rights >> Eero Martti Ensio KOLU and Alli Heleena KOLU v Finland - 56463/10 [2011] ECHR 796 (3 May 2011) URL: http://www.bailii.org/eu/cases/ECHR/2011/796.html Cite as: [2011] ECHR 796