CASE OF PITKANEN v. FINLAND
No violation of Art. 6-1 with regard to fairness;Violation of Art. 6-1 with regard to length;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses partial award - Convention proceedings
Nicolas Bratza
9. The applicants are a married Finnish couple, born in 1957 and 1955 respectively and resident in Helsinki. In 1987 they bought a real property from the owner of a neighbouring property, L., who had undertaken to tear down a lean-to which the latter had constructed partly on the land purchased by the applicants before splitting it up into a separate property. The applicants and L. allegedly reached a further agreement to the effect that the latter consented to the applicants’ construction of a car shelter which would be connected to a new sauna building which L. agreed to construct on his own property so as to replace the sauna in his lean-to. 10. On 26 January 1988 the Helsinki Building Inspection (rakennus-valvontavirasto, byggnadsinspektionen) granted permission to demolish the lean-to. Following that demolition, the Helsinki Building Board (rakennuslautakunta, byggnadsnämnden), on 23 February 1988, granted the applicants permission to construct a dwelling-house and a car shelter on their property. L. did not appeal but refused to demolish the whole of his lean-to and to construct the new sauna building to be connected to the applicants’ dwelling. 11. In August 1988 L. was prohibited from using his existing sauna as its chimney top was found to be partly under the roof level of the applicants’ car shelter. The applicants’ offer to have the chimney top extended was refused by L. 12. On 2 October 1990 representatives of the Building Board inspected the applicants’ car shelter and found that it complied with the building permit. L. lodged an objection with the Building Board against this finding. 13. In November 1990 L. brought a civil action against the applicants, demanding, inter alia, that they be ordered to tear down the car shelter which they had allegedly built in violation of the fire regulations. The Helsinki City Court (raastuvanoikeus, rådstuvurätten) held its first hearing in January 1991 but adjourned the case at L.’s request in anticipation of the Building Board’s forthcoming decision. 14. On 29 January 1991 the Building Board dismissed L.’s objection against the outcome of the inspection on 2 October 1990 and confirmed that the applicants had constructed their buildings in accordance with the permit delivered in 1988. The Board found that L. had contributed to the fact that he had been prohibited from using his sauna, having refused to carry out his own construction works as agreed with the applicants. Had he fulfilled his part of their joint agreement in accordance with the building permission granted to that effect, the roof of his and the applicants’ respective buildings would have been at the same height. The Board considered that the dispute between the parties was to be resolved by the civil courts. 15. L. appealed to the County Administrative Court (lääninoikeus, länsrätten) of Uusimaa, arguing that while he had consented to the applicants’ constructing up to the boundary line, he had not agreed to any construction on their part preventing him from using his existing sauna and requiring him to take construction measures of his own. Although he had informed the applicants that his consent did not cover those aspects, they had not informed the Building Board accordingly. As a result the building permit and the approval of the applicants’ construction works had been based on false premises. 16. In February 1991 the applicants filed a counter claim against L., demanding that he be ordered to carry out his part of their alleged agreement. The two suits were joined at the applicants’ request. The City Court’s second hearing was held on 7 March 1991 but the case was again adjourned at L.’s request. 17. On 17 September 1991 the County Administrative Court upheld the Building Board’s decision of 29 January 1991. L. appealed further to the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen) and also requested the annulment of the Building Board’s decision of 1988, whereby it had granted the applicants a building permit. 18. The City Court’s third hearing was held on 19 September 1991. The case was again adjourned at L.’s request, as he had not yet received the County Administrative Court’s decision of 17 September 1991. 19. On 10 October 1991 the Land Court (maaoikeus, jorddomstolen) of Southern Finland dismissed L.’s appeal against a refusal to move a marker indicating his and the applicants’ joint boundary line. 20. The civil case was again heard on 16 January 1992 but was now adjourned at the request of both parties in anticipation of the Supreme Administrative Court’s decision in respect of L.’s annulment request. 21. The City Court’s fifth hearing was held on 24 September 1992 but the case was again adjourned at L.’s request. Following a sixth hearing on 28 January 1993 the City Court adjourned the case for the summoning of witnesses. 22. On 19 February 1993 the Supreme Administrative Court dismissed L.’s request for annulment of the Building Board’s decision of 23 February 1988. The court held that an error had indeed been committed during the Building Board’s examination of the applicants’ request for a building permit. The court noted however the nature of L.’s written undertakings towards the applicants which had led to the error, the manner in which their car shelter had been built as well as the fact that it would be easy to arrange for the smoke from L.’s sauna to be evacuated in a manner acceptable from the point of view of fire safety. The court therefore considered that the Building Board’s decision of 23 February 1988 did not violate L.’s rights, nor was it necessary in the general interest to annul that decision. The court furthermore dismissed L.’s appeal against the County Administrative Court’s decision of 17 September 1991. 23. In April 1993 L. extended his civil action against the applicants by bringing further claims partly based on different legislation. At the City Court’s seventh hearing on 11 May 1993 it took evidence from the applicants’ witnesses K. and P. The case was again adjourned at L.’s request. 24. At the eighth hearing on 31 August 1993 witnesses A. and V. were heard at L.’s request and witness H. was heard at the request of the applicants. A. furthermore handed in reports of his inspections in situ dated 2 August 1989 and 8 August 1990. According to the applicants, the City Court had by then already refused their request that the court conduct its own inspection. The case was adjourned at both parties’ request so as to enable them to lodge further submissions in writing. 25. At the City Court’s ninth hearing on 23 November 1993 one further witness was heard at the applicants’ request and another witness at L.’s request. The parties requested permission to make their final pleadings in writing and the case was adjourned for judgment at a later date. 26. Each of the nine hearings was presided over by a different judge. 27. Due to a national reorganisation of the courts of first instance the case was transferred to the Helsinki District Court (käräjäoikeus, tingsrätten; formerly the City Court). In its judgment of 3 March 1994 it found that the Supreme Administrative Court’s decision of 1993 had not given rise to res judicata. The District Court, moreover, accepted L.’s extended action for consideration. It considered that whereas P. was the only witness who could have testified regarding the true character of the alleged agreement between the applicants and L., P.’s testimony had not been so detailed and certain that it could be regarded as decisive evidence that L. had agreed to tear down the whole of his lean-to. The court therefore found it established that the applicants had understood all along that L. had not intended to tear down the whole of his lean-to. By constructing the car shelter in the manner established they had effectively prevented L. from using his sauna. The applicants were therefore ordered to demolish their shelter and to restore L.’s lean-to into its original state. It followed that the applicants’ counter suit had to be dismissed. 28. The applicants were ordered to pay L. FIM 2,850 (about EUR 480) in compensation for the damage which the construction of their shelter had caused to his lean-to. They were ordered to pay a further FIM 3,000 (some EUR 500) a year (as from 1990) in compensation for the impossibility for L. to use his sauna. They also had to reimburse L.’s costs in the amount of FIM 32,668,50 (about EUR 5,500). 29. As regards the extent of the damages suffered by L., the District Court based itself exclusively on A.’s testimony. After the District Court’s judgment the applicants filed a criminal complaint against him, suspecting that he had committed perjury. 30. The applicants appealed against the District Court’s judgment and later supplemented their appeal with a copy of the record of the pre-trial investigation into the suspected perjury which in their view showed that A.’s testimony had not been truthful. 31. On 9 February 1995 the Helsinki Court of Appeal (hovioikeus, hovrätten) dismissed the applicants’ appeal and upheld the District Court’s judgment, including its reasons. The Court of Appeal refused to take into account the pre-trial investigation record concerning A., as it had been submitted out of time and no special reasons militated in favour of accepting it as evidence. The applicants were ordered to pay L.’s costs in the amount of FIM 2,500 (about EUR 420). 32. On 7 September 1995 the Supreme Court (korkein oikeus, högsta domstolen) refused the applicants leave to appeal. 33. In order to tear down their car shelter and restore L.’s lean-to the applicants were to obtain permission from the Building Inspection. In an opinion to the Supreme Court dated 22 February 1995 the Building Inspection nevertheless considered that the District Court’s demolition order was “not an equitable solution”, since the only change needed from the point of view of fire safety would be to extend L.’s chimney top to a point 80 centimetres above the applicants’ car shelter. The Building Inspection would therefore not permit the car shelter to be torn down and such demolition would be contrary to the general interest by spoiling the appearance of the neighbourhood and violate both local planning regulations and general regulations on fire safety. 34. On 20 August 1997 the Helsinki District Court convicted A. of perjury and sentenced him to nine months’ conditional imprisonment. It found it established that he had deliberately omitted various relevant information from his testimony in L.’s civil case against the applicants. In the light of this judgment the applicants requested the Supreme Court to reopen the proceedings. 35. L. died in November 1997, having sold his property. 36. On 8 March 2000 the Supreme Court granted the applicants’ request for a reopening of the proceedings in so far as they had been ordered to compensate L. for the damage which the construction of their car shelter had caused to his lean-to as well as to pay him the costs incurred in the proceedings before the lower courts. The Supreme Court referred to A.’s conviction of perjury. 37. Referring to its decision of 16 May 1997, the Supreme Court declined to examine anew the applicant’s request for a re-opening of the case in respect of the order requiring them to demolish the car shelter, to restore L.’s lean-to into its state prior to the construction of the shelter as well as to pay L. annual compensation for the fact that he had been prevented from using his sauna. 38. As of November 2002 the current owners of L.’s house had not requested, and the authorities had not enforced, the aforementioned three orders. 39. In re-opening part of the case the Supreme Court instructed the applicants to file, within three months, a new action against L. before the District Court. They initiated such proceedings against L.’s successors on 30 May 2000 and supplemented their statement of claim on 28 May 2001 in light of the defendants’ written observations. The court’s preparatory hearing was held on 5 June 2002. 40. On 13 August 2002 the parties reached a settlement whereby L.’s successors undertook to reimburse the applicants the amount of FIM 2,850 (i.e. the compensation which the applicants had paid to L.) as well as a further sum of EUR 5,045.64. L.’s insurance company undertook to reimburse EUR 3,363.76 of the costs paid by the applicants. The sums were to be divided between the applicants and their insurance company as later agreed. The applicants and L.’s successors declared that they had no further claims against one another whether in relation to the proceedings initiated in May 2000 or to any previous court proceedings or related events. 41. The settlement was approved by the District Court on 23 August 2002. 42. According to the Code of Judicial Procedure (oikeudenkäymiskaari, rättegångsbalken), as in force at the relevant time (Chapter 2, section 3), the chairman and three lay judges constituted the quorum in a district court. Each of the lay judges had a personal vote. 43. If a party considered that civil or criminal proceedings had been delayed unjustifiably, a procedural complaint (kantelu, klagan) could be lodged with the court of appeal within 30 days from the adjournment (Chapter 16, section 4, subsection 2 of the Code of Judicial Procedure). If it was important for the resolution of the case that an issue under examination in other proceedings be resolved first, or if there was another long-term impediment to the case being examined, the court could adjourn the case until such time that the impediment has ceased to exist (section 5). These provisions were repealed with effect from 1 October 1997.