CASE OF LAMMI v. FINLAND
No violation of Art. 6-1
Nicolas Bratza
7. The applicant was born in 1936 and lives in Vantaa. He was the sole shareholder in a company, which was in the process of being wound up from 1987. 8. In 1987 the official receiver of the company requested the applicant to hand over to him all the assets of the company. The applicant who was in possession of shares in a housing company refused to deliver those shares. 9. The applicant instituted civil proceedings before the District Court (käräjäoikeus, tingsrätten) of Vantaa against the company and requested the court to confirm that the shares were owned by him and that he was under no obligation to hand them over. On 17 December 1987 the District Court held, however, that the shares belonged to the company and ordered him to hand them over to the official receiver. On 30 November 1988 the judgment was upheld by the Helsinki Court of Appeal (hovioikeus, hovrätten). On 5 June 1989 the Supreme Court (korkein oikeus, högsta domstolen) refused leave to appeal. In January 1990 the applicant lodged an extraordinary appeal. In October 1992 and September 1993 he lodged further annulment applications relating to the ownership of the shares and other issues arising out of the winding up of his company. Those applications were all dismissed as ill-founded by the Supreme Court on 21 June 1993 and 23 August 1994 respectively. Furthermore, his extraordinary appeal of 30 May 1995 was dismissed by the Supreme Court on 29 June 1995. 10. Meanwhile, the official receiver requested the bailiff to seize the shares from the applicant. On 13 October 1989 an attempt to this effect failed the applicant having argued that he held the shares by way of guarantee and refused to inform the bailiff about the shares’ whereabouts. 11. On 6 November 1989 the company requested that the police investigate whether the applicant had committed an offence by refusing inter alia to provide information about the whereabouts of the shares. On 7 December 1989 and on 9 February 1990 the police unsuccessfully carried out searches of his apartment. On 27 February 1990 he was questioned. He told the police that he had lodged, in December 1989 and January 1990 respectively, applications for an annulment of the winding up order and the final decision in the ownership proceedings. He had also lodged a complaint with the Chancellor of Justice (valtioneuvoston oikeuskansleri, justitiekanslern vid statsrådet). Further, he stated that he was not going to provide any information until the resolution of those complaints. It appears that the pre-trial investigation was completed on 30 May 1990. 12. The official receiver requested that the County Administrative Board (lääninhallitus, länsstyrelsen) of Uusimaa order the applicant to move out of the apartment in the housing company as the shares in question belonged to the company. On 7 November 1990 it issued an order to that effect. On 5 February 1991 the Helsinki Court of Appeal rejected the applicant’s appeal. 13. On 3 September 1992 a local public prosecutor decided not to bring charges for a debtor’s fraud allegedly committed on 9 February 1987. He found that it had not been sufficiently evidenced that the applicant had knowledge of the shares’ whereabouts. The company lodged a complaint with the Chancellor of Justice, who on 12 November 1992 gave instructions that a new pre-trial investigation be carried out. The official receiver and the applicant were questioned by the police on 3 December 1992 and 9 February 1993 respectively and it appears that the pre-trial investigation was completed on the latter day. 14. On 13 January 1995 the official receiver requested that the District Court of Vantaa declare the shares null and void as their lawful owner, the company, had not received them from the applicant despite numerous attempts. On 24 April 1995 the District Court refused the company’s request since the applicant had appeared at the District Court on 13 April 1995 and produced the shares without handing them over and since, according to Finnish law, only shares which had gone missing could be declared null and void. 15. Meanwhile, on 2 February 1995 the then County Prosecutor (lääninsyyttäjä, länsåklagaren) charged the applicant with aggravated embezzlement committed on 21 June 1989 when he had become aware of the Supreme Court’s judgment of 5 June 1989. The County Prosecutor assigned the case to another local public prosecutor. On 4 October 1995 the summons was served upon the applicant. 16. The District Court held three hearings, on 23 November 1995, on 1 February 1996 and on 16 March 1996. In its judgment of 21 March 1996 the District Court acquitted the applicant. It noted that the ownership of the shares had been finally decided by the Supreme Court’s relevant decision of 5 June 1989, that the applicant had admitted that the shares were in his possession and that he had failed to prove that he had a right to withhold them from the official receiver on the basis of a contract of guarantee, or any other document. However, the embezzlement could not be regarded as an aggravated one and, as the charges for a “normal” embezzlement should have been brought within five years of the date on which the offence had taken place, the relevant time limit had elapsed and the charges were time barred. The applicant was, however, ordered to pay 518,682.99 Finnish marks (FIM; about 87,200 euros (EUR)) in compensation for pecuniary damage, and FIM 6,000 (some EUR 1,000) in compensation for the company’s legal costs. 17. The parties appealed. On 5 December 1996, having found that the company had failed to request a court order according to which a conditional fine would have been imposed had the applicant refused to hand over the shares to the company, the Helsinki Court of Appeal (hovioikeus, hovrätten) altered the District Court’s judgment and rejected the company’s claims. The judgment was not unanimous. 18. Only the company requested leave to appeal. On 29 May 1997 the Supreme Court granted leave to appeal. The applicant lodged an extraordinary appeal against the decision, arguing that the Supreme Court Judges X and T had been disqualified from deciding the leave to appeal matter, but this was dismissed by the Supreme Court on 21 January 1998. 19. At the oral hearing in the Supreme Court on 6 February 1998, the applicant argued that the Supreme Court Judges T and P were biased as they had been involved in the decision-making concerning some extraordinary appeal proceedings in the applicant’s previous cases before the Supreme Court. The objection was dismissed by the Supreme Court as the cases referred to by the applicant had not concerned the same issues as the present proceedings. 20. In its judgment of 19 March 1998 the Supreme Court convicted the applicant of aggravated embezzlement and sentenced him to a suspended term of seven months’ imprisonment. He was also ordered to pay the company FIM 350,000 (approximately EUR 58,800) in compensation for the latter’s pecuniary damage. Having first found the official receiver competent to act on behalf of the company in the proceedings, and having rejected the applicant’s argument according to which the company’s compensation claim for pecuniary damage had been submitted after the relevant time limit had elapsed, the Supreme Court found him guilty as charged. It considered that he had failed to prove that he had any lawful right to refuse to hand the shares over to the official receiver. As the company had been prevented from selling the shares because of his resistance, it had suffered financial loss in the form of lost interest it would have earned from the sales price had the shares been sold in the summer of 1989 for the sales price of FIM 1,100,000 (some EUR 185,000) which was the estimated sales price at the relevant time. On 30 April 1999 the Supreme Court refused the applicant’s request to re-open the criminal proceedings. Meanwhile, on 9 October 1998, he complained about the Supreme Court criminal proceedings to the Parliamentary Ombudsman. It is not known whether the complaint is still pending before the Ombudsman.