WIKSTEDT v. FINLAND
Inadmissible
David Thór Björgvinsson;Ján Šikuta;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä
The applicant, Mr Stig Alfred Wikstedt, is a Finnish national who was born in 1947 and lives in Esbo. He was represented before the Court by Mr Leo R. Hertzberg, a lawyer practising in Helsingfors. The Finnish Government (“the Government”) were represented by their Agent, Mr Arto Kosonen of the Ministry for Foreign Affairs. The facts of the case, as submitted by the parties, may be summarised as follows. On 13 October 2004 the Helsingfors Bailiff unsuccessfully tried to recover debts from the applicant. On 15 October 2004 a property company petitioned the Helsingfors District Court (tingsrätten, käräjäoikeus) for the applicant to be declared bankrupt. The Bailiff tried to reach the applicant six times at his registered home address in order to serve the notice on the bankruptcy proceedings. The applicant's telephone number could not be found by the directory service and he did not answer the door intercom. The Bailiff managed to get into the staircase and saw light coming from the applicant's apartment but he did not answer the doorbell. The Bailiff left a meeting request in his post box, to which the applicant also failed to react. As the applicant could not be reached during the service period set by the District Court and running from 8 November to 21 December 2004, a letter was sent to the applicant's address on 22 December 2004, confirming that the notice had been served and that the documents were kept available at the local police station. On 4 January 2005 the applicant submitted a letter to the District Court requesting that the case documents be translated from Finnish into Swedish. The letter was sent from the same address where the Bailiff had attempted to serve the notice. On an unspecified date the applicant requested that the District Court extend the deadline for his written reply. The deadline was accordingly extended until 18 February 2005. On 15 February 2005 the applicant applied for an adjustment of his debts. As required by the domestic legislation, the bankruptcy proceedings were postponed and were continued only after the District Court had refused to grant the debt adjustment. Thereafter, on 21 February 2006, the applicant was again requested to submit a written reply by 23 March 2006. When attempting to serve the above-mentioned request at the applicant's address, the Bailiff learned that the applicant had moved. He tried to reach the applicant at his new address in February 2006. Following a request made by the Bailiff on 21 February 2006, the service period was extended until 16 March 2006. On 15 March 2006 the applicant was informed by letter that the request had been served and that the documents were again made available at the local police station. The District Court resumed the bankruptcy proceedings. The applicant did not request that the deadline for his written reply be extended, nor did he submit any reply. According to the Government, the applicant was personally present at the District Court when swearing to the accuracy of the inventory of the estate. On 30 March 2006 the District Court declared the applicant bankrupt. It noted that the applicant, who had been invited to reply to the petition within a given time, had failed to do so. It also noted that the claim was based on a final default judgment and on the fact that the claims mentioned therein had been transferred to the company. The company also had in its possession promissory notes signed by the applicant and which he had not contested. The court found that the applicant was insolvent since the debt recovery on 13 October 2004 had been unsuccessful and the petition for bankruptcy had been lodged within six months from that date. The file does not disclose whether or not the District Court held an oral hearing. On 10 April 2006 the applicant appealed, applying for an injunction and an oral hearing in the appellate court with a view to hearing witnesses as to whether he was insolvent. He argued that although he had moved to a new address in the spring of 2005, the court had sent to his old address a letter dated 21 February 2006 in which he was invited to submit his reply by 23 March 2006. This letter had never reached the applicant. On 15 March 2006 the Bailiff had sent a letter to the applicant informing him that documents to be served had been deposited at the police station. The letter did not mention what those documents concerned. The applicant claimed that he had received the letter at the earliest on 16 March 2006 but as he had been travelling he had learned about the documents and the fact that they related to the bankruptcy proceedings only on 26 March 2006 when he contacted the police station. As to the merits of the appeal, he relied on Chapter 2, section 4, of the Bankruptcy Act (konkurslagen, konkurssilaki; Act no. 120/2004) according to which a debtor cannot be declared bankrupt if the creditor has a protective lien. He also argued that the creditor had failed to produce evidence of his insolvency as the Helsinki Bailiff's attestation was not sufficient for the purposes of the Bankruptcy Act. At the material time, the applicant had assets outside the Helsingfors Bailiff's district which did not appear in the attestation. On 9 May 2006 the Court of Appeal (hovrätten, hovioikeus) dismissed the request for an injunction. On 29 May 2006 it dismissed the applicant's renewed request to the same effect. In its decision of 28 June 2006 the Court of Appeal noted first that the applicant had been able to establish a probability, in accordance with Chapter 25, section 17, of the Code of Judicial Procedure (rättegångsbalken, oikeudenkäymiskaari), that he had not been able to refer to the circumstances and evidence relied on in his appeal in the District Court. For this reason the court considered all circumstances and evidence relied on in the applicant's appeal. As concerned the serving of the documents, the Court of Appeal noted that in January 2006 the Bailiff had looked for the applicant at the address which the latter had communicated to the District Court. Subsequently, the Bailiff had found out that the applicant had moved to another municipality following which he had unsuccessfully looked for the applicant at his new address in February and March 2006. In the circumstances, the Bailiff could assume that the applicant was trying to avoid the service of the documents. The court also observed that the Supreme Court in a precedent (KKO 1992:71) had taken the view that it was irrelevant for the purposes of the application of Chapter 11, section 7, of the Code of Judicial Procedure whether the person concerned later shows that he was not avoiding trial. The Court of Appeal therefore concluded that, in the present case, it had been justified to serve the documents by leaving them with the local police and rejected the applicant's view that there had been a procedural error. As to whether the conditions for declaring the applicant bankrupt were met, it endorsed the lower court's reasons, adding, inter alia, that it was clear from the appeal documents that the unemployed applicant's assets amounted to some 19,000 euros (EUR) whereas his debts ran to some EUR 81,000. It was therefore unnecessary to hold an oral hearing in order to examine whether the applicant was insolvent. The applicant sought leave to appeal, maintaining the grounds for his appeal. On 16 October 2006 the Supreme Court (högsta domstolen, korkein oikeus) refused such leave. According to Chapter 5, section 11, subsection 1, of the Code of Judicial Procedure (rättegångsbalken, oikeudenkäymiskaari; as amended by Act no. 1052/1991): “The summons shall state that the written response is to be delivered to the court registry before a deadline counted from the service of the summons. An extension may be granted for a special reason, if the request for this has been submitted before the end of the period.” Chapter 11, section 7, of the same Code (as amended by Act no. 1056/1991) provides the following: “(1) When a process server, for the purpose of service of a notice, has sought a person with a known residence in Finland, but has not found him or her or any person competent to receive service in his or her stead, and on the basis of the circumstances it may be assumed that he or she is evading the service of the notice, the process server may serve the notice by delivering the documents to a household member who has attained fifteen years of age, or, if the said person conducts a business, to a person employed in this business. If none of the above can be found, service of the notice may be performed by delivering the documents to a local police authority. (2) When the process server has performed the service of the notice pursuant to subsection 1, he or she shall notify the recipient of the same by a letter sent to the home address of the recipient. (3) The service of the notice shall be deemed to have taken place when the letter referred to in subsection 2 has been given to be delivered by post. (4) The summons in a criminal case may not be served on the defendant in the manner provided in this section. (690/1997)” Chapter 11, section 11, of the same Code regulates service procedure in a civil matter with multiple respondents the following manner: “In a civil case involving two or more parties jointly, the notices shall be separately served on each party as provided in sections 1—10. If a notice is to be served on so many recipients that separate service on each of them cannot be done without difficulty, the court may order that the notice is to be served on one of them. A summary of the contents and the name of the person on whom the notice has been served, as well as information on the place where the documents to be served are kept available, shall be published as provided in section 10. The service shall be deemed to have been performed when the public notice has been published in the Official Gazette.” As concerns the possibility to present new material in the Court of Appeal, according to Chapter 25, section 17, subsection 1, of the same Code (as amended by Act no. 165/1998): “In a civil case, the appellant may not refer in the Court of Appeal to other circumstances or evidence than those presented in the District Court, unless he or she establishes a probability that he or she had not been able to refer to the circumstance or evidence in the District Court or that he or she has had a justifiable reason for not doing so.” In its judgment of 25 May 1992 (KKO 1992:71), the Supreme Court addressed the issue of serving a notice on a presumably absent applicant in a civil case. In that precedent case the applicant had not been reached by the Bailiff but had for legitimate reasons been temporarily residing abroad and had notified the Population Registry of his temporary place of residence. A certificate on the applicant's domicile issued by the registry office did not however include information on his temporary address. As relatives and neighbours had not known about the applicant's temporary address either, the Supreme Court held that the Bailiff had rightly assumed, for the purposes of the serving of the notice, that the applicant was attempting to hide from the authorities. The applicant's later clarification of the issue was not relevant in this regard. It followed that the notice could legitimately have been served on the applicant in accordance with the requirements of Chapter 11, Section 11, of the Code of Judicial Procedure.