CASE OF NARINEN v. FINLAND
Violation of Art. 8;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings
Nicolas Bratza
7. The applicant was born in 1957 and lives in Klaukkala. 8. The applicant was declared bankrupt on 2 September 1993 by the District Court (kihlakunnanoikeus, häradsrätten) of Hyvinkää. J., a lawyer practising in Helsinki, was appointed by a court order to act as the official receiver to his estate. 9. By a written notice, dated 16 September 1993, J. requested the postal service to send all the mail addressed to the applicant to the law office of J. The day before, on 15 September 1993, a meeting was held between the debtor, i.e. the applicant, and the official receiver in the law office of J. According to the Government, it was agreed that the applicant’s mail be transferred to the office and handled so that the official mail was opened, whereas the private mail was put aside to be further transmitted to the applicant. According to the applicant, no such agreement was reached. 10. The applicant contacted a lawyer at the postal service who informed him that the personal mail of a person declared bankrupt should not be transferred to the official receiver. The applicant received his mail from 23 September 1993 onwards. 11. While the mail was being transferred to the law office (between 16 and 23 September 2003), J. received and opened a letter sent by an insurance company and addressed to the applicant. The letter was sent to the applicant in an official envelope of the company and signed by the representative of the company’s legal department. Apparently the letter concerned a valuation of an apartment owned by the applicant’s ex-wife. 12. On 4 June 1996, the applicant requested the police to investigate the matter. During the police investigation J. said that the applicant had sent him a message after the meeting of 15 September 1993, withdrawing his consent to the transfer of mail and that on 22 or 23 September 1993 the applicant requested the postal service to transfer the mail back to his own address as he considered that the transfer of mail to the law office had been unlawful. 13. On 22 July 1996, finding that the requested prosecution of the alleged offence had become time-barred, a prosecutor issued a decision not to prosecute. 14. The applicant then instituted civil proceedings against J., requesting that J. be ordered to return all missing letters to the applicant and, failing which, he be ordered to pay 21,911 Finnish Marks (FIM) (approximately 3,685 Euros (EUR)) in compensation for non-pecuniary damage as well as the applicant’s legal fees and expenses. The proceedings were based on the fact that J. had opened the letter sent by the insurance company. 15. A legal counsel of the postal service who was heard before the District Court of Espoo (käräjäoikeus, tingsrätt) stated that the postal service applied the principles that were included in the repealed Postal Service Decree (postiliikenneasetus, posttrafikförordning; 692/1980) concerning the sorting of mail belonging to estates in respect of which an official receiver had been appointed by the court. According to him, it was a duty of the postal service to sort the debtor’s mail and put aside official mail belonging to the estate. In cases where the official nature of the mail was not clear, post offices decided on a case by case basis where to send the mail. 16. On 7 February 1997 the District Court rejected all the claims submitted by the applicant, finding that both J. and the postal service had acted in accordance with the Bankruptcy Act (konkurssisääntö, konkursstadga; 759/1991 as in force at the relevant time), and the established practice and internal instructions of the postal service concerning the sorting of mail. The applicant was ordered to pay FIM 27,487 (approximately EUR 4,620) in compensation for J.’s legal expenses. The District Court reasoned its decision, inter alia, as follows: “The District Court agrees with the view of [J.] in that the official receiver has, in accordance with Section 50, subsection 2, of the Bankruptcy Act, a right to request that the debtor’s mail be received by the official receiver, excluding the debtor’s personal mail. ... [J.] denied that the estate was in the possession of any other mail addressed to [the applicant], excluding a letter from the insurance company [P.]. That letter was related to the clarification of the assets and debts of [the applicant] and, thus, was included in the documents belonging to the estate. The estate was not obliged to return any of the material which belonged to it. ... In the light of the evidence, [J.] has acted in accordance with the provisions of the Bankruptcy Act. The [applicant’s] claims are rejected as a whole.” 17. The applicant appealed to the Court of Appeal (hovioikeus, hovrätten) of Helsinki which, on 15 January 1998, upheld the District Court’s decision. The applicant was ordered to pay J.’s costs of FIM 2,500 (approximately EUR 420). On 2 July 1998 the Supreme Court (korkein oikeus, högsta domstolen) refused the applicant leave to appeal. 18. Section 40 of the Postal Service Decree, which was issued in 1980 and repealed in its entirety in 1991 (945/1991), but was nonetheless applied as an internal instruction within the postal service, read as follows: “Declaration of bankruptcy of a mail recipient does not affect his right to receive mail and postal orders. Where a person who proves that he has the right to represent the bankruptcy estate requires that mail and postal orders addressed to the person declared bankrupt be transferred to him, the amounts indicated on the postal order shall be paid to the bankruptcy estate. A mail delivery addressed to a recipient declared bankrupt, the receipt of which needs to be acknowledged, shall be returned to the sender unless the sender has otherwise ordered before the return of the mail. Notwithstanding the provisions in subsections 1 and 2 above, a natural person declared bankrupt shall nevertheless have the right to mail deliveries which clearly indicate that they do not belong to the bankruptcy estate.” 19. According to Chapter II, Section 12 of the former Constitution of Finland (hallitusmuoto, regeringsformen; 94/1919) as in force at the relevant time, the right to the secrecy of correspondence, telegraph messages and telephone conversations is inviolable, subject to exceptions provided for in the law. 20. The relevant sections of the Bankruptcy Act (konkurssisääntö, konkursstadga) provided at the relevant time as follows: “Chapter 4 – Property belonging to the bankrupt’s estate (759/1991) Section 45 (1) The property belonging to a bankrupt’s estate shall consist of any property which was in the debtor’s possession at the time of lodging a request for the transfer of property with a court of law, or at the time of issue of a court decision on the transfer of property upon a creditor’s request, or which the debtor was to get in his possession before the termination of the bankruptcy proceedings, and which may be lawfully seized, as well as of any property which may be recovered for the estate by virtue of the Act on the Recovery of Property for the Estate of a Bankrupt Person. (759/1991). Chapter 5 – Administration of a bankrupt’s estate Section 50 ... (a) temporary estate trustee shall receive the documents and property belonging to the bankruptcy estate, list the assets and debts of the estate, and take any other measures necessary for the performance of his or her duties. Section 65 (Reception of the estate) Upon a court order, the executors of the estate (toimitsijamiehet, sysslomännen) shall without delay request the bankruptcy trustees (uskotut miehet, gode männen) to account for the assets and debts of the estate and of its administration, shall take the property of the estate in their possession and take the necessary actions for the benefit and relief of creditors. If the trustees refuse to account for the assets and debts, the court shall place them under an obligation to do so. Should a person who is appointed executor have previously acted as trustee, he or she shall also give such account to the creditors.” 21. As the Bankruptcy Act was rather old, a well-established interpretation of its provisions developed. According to literature concerning bankruptcy in Finland (Erkki Havansi, Finnish Bankruptcy Law, 3rd revised edition, Helsinki 1992; in Finnish), the normal duties of temporary bankruptcy trustees during the temporary administration of the bankrupt’s estate included the following: (A) taking over the possession of the property, including (a) collecting information on property, (b) taking into possession, and (c) preservation of property by means of protective measures, and (B) listing of assets and liabilities with the cooperation of the debtor. The taking into possession of the property made the assessment of the property’s value, its preservation and administration possible. Cash reserves, arriving mail and accounts were included. 22. In 1999 the Finnish Office of the Bankruptcy Ombudsman gave the following recommendations concerning the matter: “Recommendations 11/99: Rights and Obligations of the Debtor in Bankruptcy Proceedings 10. Personal documents and possessions of the debtor The private life of individual persons is protected by the Constitution and international conventions. This shall be paid attention to in the administration of the bankrupt’s estate. Secrecy of correspondence is one of the rights protected by the Constitution, and there shall be no interference with the exercise of this right except such as is in accordance with a specific provision of the law. The bankruptcy trustee shall collect information on the debtor’s business correspondence. He shall try and follow practices that ensure access to such information on the business correspondence as is necessary for the management and settlement of the estate, without violating the secrecy of the debtor’s correspondence. The estate trustee shall not have the right to take over the possession of or examine the debtor’s private correspondence or other personal documents. Any personal documents of the debtor, which are of no relevance to the administration of the estate, shall be delivered to the debtor.” 23. New legislation concerning bankruptcy will enter into force on 1 September 2004, repealing the previous bankruptcy legislation (see paragraph 20 above. According to Chapter 4, section 4(1) of the new Bankruptcy Act (konkurssilaki, konkurslag: 120/2004) the bankruptcy trustee shall have the right, without the debtor’s consent, to receive and open mail and other messages, as well as parcels, addressed to the debtor which pertain to his or her economic activities.