CEDH · CASELAW;REPORTS;ENG — 11 janvier 1994

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                        EUROPEAN COMMISSION OF HUMAN RIGHTS                                FIRST CHAMBER                          Application No. 17506/90                               Erkki Kerojärvi                                   against                                   Finland                          REPORT OF THE COMMISSION                        (adopted on 11 January 1994)   TABLE OF CONTENTS                                                                    Page   I.     INTRODUCTION       (paras. 1-15) . . . . . . . . . . . . . . . . . . . . . . . . 1         A.    The application            (paras. 2-4) . . . . . . . . . . . . . . . . . . . . . . 1         B.    The proceedings            (paras. 5-10). . . . . . . . . . . . . . . . . . . . . . 1         C.    The present Report            (paras. 11-15) . . . . . . . . . . . . . . . . . . . . . 2   II.    ESTABLISHMENT OF THE FACTS       (paras. 16-33). . . . . . . . . . . . . . . . . . . . . . . . 3         A.    The particular circumstances of the case            (paras. 16-24) . . . . . . . . . . . . . . . . . . . . . 3         B.    Relevant domestic law            (paras. 25-33) . . . . . . . . . . . . . . . . . . . . . 3   III.   OPINION OF THE COMMISSION       (paras. 34-53). . . . . . . . . . . . . . . . . . . . . . . . 7         A.    Complaint declared admissible            (para. 34) . . . . . . . . . . . . . . . . . . . . . . . 7         B.    Point at issue            (para. 35) . . . . . . . . . . . . . . . . . . . . . . . 7         C.    As regards Article 6 para. 1 of the Convention            (para. 36) . . . . . . . . . . . . . . . . . . . . . . . 7              a.     Whether Article 6 para. 1 is applicable                  (paras. 37-44) . . . . . . . . . . . . . . . . . . 7              b.     Whether Article 6 para. 1 has been violated                  (paras. 45-52) . . . . . . . . . . . . . . . . . . 8         CONCLUSION       (para. 53). . . . . . . . . . . . . . . . . . . . . . . . . . 9   APPENDIX I        : HISTORY OF THE PROCEEDINGS . . . . . . . . . . .10   APPENDIX II       : DECISION ON THE ADMISSIBILITY. . . . . . . . . .11   I.     INTRODUCTION   1.     The following is an outline of the case as submitted to the European Commission of Human Rights, and of the procedure before the Commission.   A.     The application   2.     The applicant is a Finnish citizen, born in 1924 and resident in Helsinki. He was represented before the Commission by Mr. Markku Fredman, a lawyer practising in Helsinki.   3.     The application is directed against Finland. The respondent Government were represented by Mr. Tom Grönberg, Director General for Legal Affairs, Ministry for Foreign Affairs, Helsinki.   4.     The application concerns the fairness of proceedings before the Supreme Court in accordance with legislation on the compensation of war injuries. The applicant invokes Article 6 para. 1 of the Convention.   B.     The proceedings   5.     The application was introduced on 25 August 1990 and registered on 29 November 1990.   6.     On 7 April 1992 the Commission decided, pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to give notice of the application to the respondent Government and to invite them to submit written observations on the admissibility and merits of the complaint regarding the fairness of the compensation proceedings and the partiality of the courts involved.   7.     The Government's observations were submitted on 11 June 1992 and the applicant's observations in reply on 29 June and 29 July 1992. On 10 July 1992 the Commission granted the applicant legal aid for the representation of his case.   8.     On 7 April 1993 the Commission declared admissible the applicant's complaint under Article 6 para. 1 of the Convention relating to the non-communication of documents in the proceedings before the Supreme Court and referred the case to the First Chamber. The remainder of the application was declared inadmissible.   9.     The text of the Commission's decision was sent to the parties on 8 April 1993 and they were invited to submit such further information or observations on the merits as they wished. The applicant submitted observations on 17 May 1993, to which the Government replied on 18 June 1993. Supplementary observations were submitted by the applicant on 13 July 1993 and by the Government on 15 November 1993.   10.    After declaring the case admissible, the Commission, acting in accordance with Article 28 para. 1 (b) of the Convention, also placed itself at the disposal of the parties with a view to securing a friendly settlement. In the light of the parties' reaction, the Commission now finds that there is no basis on which such a settlement can be effected.   C.     The present Report   11.    The present Report has been drawn up by the Commission (First Chamber) in pursuance of Article 31 of the Convention and after deliberations and votes, the following members being present:         MM.   A. WEITZEL, President            C.L. ROZAKIS            E. BUSUTTIL            A. GÖZÜBÜYÜK       Mrs. J. LIDDY       MM.   M. PELLONPÄÄ            B. MARXER            G.B. REFFI            B. CONFORTI            N. BRATZA            E. KONSTANTINOV   12.    The text of this Report was adopted on 11 January 1994 and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.   13.    The purpose of the Report, pursuant to Article 31 of the Convention, is:         i)    to establish the facts, and         ii)   to state an opinion as to whether the facts found disclose       a breach by the State concerned of its obligations under the       Convention.   14.    A schedule setting out the history of the proceedings before the Commission is attached hereto as Appendix I and the Commission's decision on the admissibility of the application as Appendix II.   15.    The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.   II.    ESTABLISHMENT OF THE FACTS   A.     The particular circumstances of the case   16.    While serving in the Home Guard during the Winter War against the Soviet Union from 1939 to 1940 the applicant was wounded in action. While serving in the Armed Forces from 1941 to 1945 in the Continuation War against the Soviet Union he was wounded a second time.   17.    On account of a back injury caused by splinter the applicant receives compensation under the 1948 Military Injuries Act (sotilasvammalaki 404/48, lag 404/48 om skada, ådragen i militärtjänst; hereinafter "the 1948 Act"). His degree of disability is considered to be less than ten per cent.   18.    In January 1988 the applicant requested that a higher degree of disability be established, referring to his inguinal hernia and chronic prostatitis. He referred to a medical report of 3 June 1987. In May 1988 he submitted a further report.   19.    On 23 August 1988 the request was rejected by the State Office for Accident Compensation   (tapaturmavirasto, olycksfallsverket; hereinafter "the Compensation Office"), as the applicant had not established that there had been an essential change in the circumstances upon which his disability degree was based.   20.    The applicant appealed to the Insurance Court (vakuutusoikeus, försäkringsdomstolen), submitting further evidence such as results of an X-ray examination and laboratory tests of 17 April 1989.   21.    The Insurance Court requested an opinion from the Compensation Office and obtained copies from the Staff of the Military District of Western Uusimaa (Länsi-Uudenmaan sotilaspiirin esikunta, staben för västra Nylands militärdistrikt) of the master file on the applicant and the file pertaining to his wartime medical examinations. The documents, which were not communicated to him for comments, showed, inter alia that in 1940 the applicant had been treated in a military hospital for inguinal hernia and that he had been operated on for this injury in 1943.   22.    In its submission of 24 October 1988 to the Insurance Court the Compensation Office proposed that the applicant's appeal be rejected. This submission was not communicated to the applicant for comments either.   23.    On 19 October 1989 the Insurance Court rejected the applicant's request for a higher degree of disability.   24.    On the applicant's appeal the Supreme Court on 7 June 1990 upheld the decision of the Insurance Court.   B.     Relevant domestic law   25.    Under the 1948 Act and the 1956 Act on Extended Application of the 1948 Act (laki 390/56 sotilasvammalain soveltamisalan laajenta- misesta, lag 390/56 angående utvidgad tillämpning av lagen om skada, ådragen i militärtjänst) benefits such as medical care, daily subsistence allowance, life and supplementary annuity shall be granted inter alia to soldiers wounded in action.   26.    Section 1, para. 1 of the 1948 Act provides:         (Finnish)         "Tämän lain mukaan suoritetaan korvausta palveluksesta       aiheutuneen ruumiinvamman tai sairauden johdosta, joka on       kohdannut:         1) asevelvollista ... ."         (Translation)         "Under this Act compensation shall be granted for an injury or       illness due to service carried out by:         1) a conscript ... ."   27.    Section 1 of the 1956 Act extends the application of the 1948 Act to, among others, soldiers wounded in the Winter and Continuation Wars.   28.    Section 2, para. 2 of the 1948 Act, as amended by Act no. 122/67, provides:         (Finnish)         "Mitä ... on sanottu palveluksen aiheuttamasta ruumiinvammasta,       koskee myös sairautta, jos todennäköisillä syillä voidaan päättää       palvelukseen tai työhön liittyneiden erikoisten olosuhteiden       aiheuttaneen sen taikka olennaisesti vaikuttaneen sen       ilmaantumiseen tai pahentumiseen. Sairautta, joka ilmaantuu vasta       vuoden kuluttua sen jälkeen, kun sairastuneen palvelus- tai       työsuhde on päättynyt, ei katsota palveluksen aiheuttamaksi,       jollei sitä ole pidettävä seurauksena palvelus- tai työsuhteen       aikana saadusta ruumiinvammasta tai ilmaaantuneesta sairaudesta."         (Translation)         "What has been stated ... about an injury caused by military       service also applies to an illness which may, on probable       grounds, be regarded as caused by the particular circumstances       of the service ... or provided that those circumstances have, in       an essential way, affected the appearance or the aggravation of       the illness. An illness appearing more than a year after the       termination of the service shall not be considered as caused by       the [military] service ... provided it is not to be regarded as       a consequence of an injury suffered or an illness which appeared       during that service ... ."   29.    Section 2, para. 3, as amended by Act no. 180/71, reads:         (Finnish)         "Ruumiinvammaa tai sairautta, joka ilmeisesti liittyy ...       korvattavan vamman tai sairauden ... synnyttämään       poikkeukselliseen alttiuteen tai taipumukseen, pidetään       olosuhteiden mukaan joko kokonaan tai osaksi korvattavana."         (Translation)         "An injury or an illness which has an obvious connection with an       extreme susceptibility or predisposition caused by an injury or       an illness to be compensated ... shall, with regard to the       circumstances, be compensated either fully or partly."   30.    Section 3 prescribes:         (Finnish)         "Korvausta ei suoriteta ruumiinvammasta tai sairaudesta, jonka       vahingoittunut tai sairastunut itse on tahallaan aiheuttanut.         Korvaus voidaan evätä tai sitä vähentää:         1) jos vahingoittunut tai sairastunut on saanut vamman tai       sairauden ollessaan rikollisessa teossa taikka jos toinen henkilö       on hänelle vamman tai sairauden tahallaan aiheuttanut, jollei       tämä ole tapahtunut hänen sotilastoimensa tai työnsä vuoksi tai       hänen suorittaessaan   saamaansa tehtävää;         2) jos vamman tai sairauden syynä on ollut hänen törkeä       huolimattomuutensa tai päihtymyksensä; tai         3) jos vamma tai sairaus on johtunut siitä, että vahingoittunut       tai sairastunut ei ole noudattanut vamman tai sairauden       välttämiseksi annettuja, käytännössä yleisesti noudatettuja       ohjeita tai määräyksiä."         (Translation)         "Compensation shall not be granted for an injury or illness       deliberately caused by the wounded or ill person himself.         Compensation may be refused or lowered:         1) if the wounded or ill person was injured or fell ill in       connection with committing a criminal offence or if another       person has deliberately injured him or caused him the       illness, provided this did not happen as a result of the       person's military post or work or when he was carrying out       a mission;         2) if the injury or illness was caused by gross negligence       or drunkenness; or         3) if the injury or illness was caused by the person's failure       to comply with instructions and orders issued for the prevention       of an injury or an illness and which are generally complied       with."   31.    Section 8, para. 1, as amended by Act no. 622/65, reads:         (Finnish)         "Jos vahingoittuneen tai sairastuneen työkyvyttömyysaste on       vähintään kymmenen sadalta, annetaan hänelle elinkorkoa. ..."         (Translation)         "A wounded or ill person with a disability degree of at       least 10 per cent shall be entitled to a life annuity. ..."   32.    Section 29, para. 2, as amended by Act no. 304/75, reads:         (Finnish)         "Vakuutusoikeuden päätökseen, mikäli on kysymys siitä,       oikeuttaako ruumiinvamma [tai] sairaus ... tämän lain mukaiseen       korvaukseen, saa hakea muutosta korkeimmalta oikeudelta ... ."         (Translation)         "A decision by the Insurance Court in a matter concerning whether       an injury [or] illness ... shall entitle to compensation under       this Act may be appealed against to the Supreme Court ... ."   33.    Chapter 30, Section 20 of the Code of Judicial Procedure (Oikeudenkäymiskaari, Rättegångs Balk), as amended by Act no. 104/79 states:         (Finnish)         "Korkein oikeus toimittaa tarvittaessa suullisen käsittelyn, ...         [Se] voi myös määrätä, että ... kuuleminen toimitetaan muussa       tuomioistuimessa."         (Translation)         "The Supreme Court may, if necessary, hold an oral hearing, ...         [It] may also order that a hearing ... take place before another       court."   III.   OPINION OF THE COMMISSION   A.     Complaint declared admissible   34.    The Commission has declared admissible the applicant's complaint relating to the non-communication of documents in the proceedings before the Supreme Court.   B.     Point at issue   35.    Accordingly, the issue to be determined is whether there has been a violation of Article 6 para. 1 (Art. 6-1) of the Convention.   C.     As regards Article 6 para. 1 (Art. 6-1) of the Convention   36.    Article 6 para. 1 (Art. 6-1) reads, insofar as it is relevant:         "In the determination of his civil rights and obligations       ..., everyone is entitled to a fair and public hearing ...       by an independent and impartial tribunal ..."         a.    Whether Article 6 para. 1 (Art. 6-1) is applicable   37.    The applicant submits that the dispute at issue concerned the determination of his "civil rights". Section 3 of the 1948 Act exhaustively prescribes the criteria for refusing compensation. These are to be strictly adhered to. The examination of requests lodged under the 1948 Act is, thus, a judicial and not a discretionary one. Further- more, the system for compensating injuries suffered during military service cannot be considered as a totally unilateral initiative by the State, military service in Finland being compulsory, as was part of the applicant's wartime service. Although his contribution to the compensation system set up by the 1948 Act was not of a pecuniary nature, it was his and his fellow soldiers' army service which made the creation of such a scheme at all possible.   38.    The Government argue that Article 6 para. 1 (Art. 6-1) is not applicable to the dispute at issue, as it did not concern a "civil right" of the applicant. Although the dispute did involve features of private law in the sense that the right claimed by the applicant was a personal, economic and individual right, the public law features of the dispute were numerous. The social protection under the 1948 Act is a unilateral initiative by the State and has few affinities with ordinary insurance schemes. It is furthermore financed exclusively by the State.   39.    The Commission recalls that, as a general rule, Article 6 para. 1 (Art. 6-1) is applicable in the field of welfare assistance (see Eur. Court H.R., Schuler-Zgraggen judgment of 24 June 1993, Series A no. 263, para. 46). In particular, State intervention alone is not sufficient to establish that Article 6 para. 1 (Art. 6-1) is inapplicable. Other considerations might argue in favour of the applicability, such as whether or not the applicant was affected in his relations with the administrative authorities as such, acting in the exercise of discretionary powers, or whether he suffered an interference with his means of subsistence. It must further be determined whether the applicant was claiming an individual, economic right flowing from specific rules laid down by law. Finally, it is also of relevance whether the protection of that right is organised in such a way that at the judicial stage disputes over it come within the jurisdiction of an ordinary court (loc. cit., see also Eur. Court H.R., Salesi judgment of 26 February 1993, Series A no. 257-E, para. 19).   40.    In the present case the compensation scheme under the 1948 Act is solely financed by the State. In this respect it can be considered a unilateral initiative taken by the State. However, although, under domestic law, the compensation system is of a public law character, the 1948 Act prescribes that benefits shall be paid to a soldier considered wounded in action or when there is causal link between his military service and a subsequent illness. Thus, under certain conditions, there is an individual and economic right to the benefits in question.   41.    The dispute in the present case arose as the applicant, referring to fresh medical evidence, requested that a higher degree of disability be established, this making him eligible for additional benefits such as life annuity in accordance with Section 8 of the 1948 Act. Those benefits must be considered to constitute an individual, economic right for the applicant flowing from specific rules in the 1948 Act. There was, moreover, a genuine dispute ("contestation") over the right in question.   42.    The examination of the conditions for raising the applicant's disability degree was governed by Section 2, paras. 2 and 3 as well as by Section 3 of the 1948 Act. It was thus bound by legal criteria and not based on discretionary considerations.   43.    Moreover, the dispute at issue was determined by two judicial bodies, first by the Insurance Court and finally by the Supreme Court.   44.    The Commission therefore concludes that Article 6 para. 1 (Art. 6-1) applies in this case.         b.    Whether Article 6 para. 1 (Art. 6-1) has been violated   45.    The applicant complains that he did not receive a fair hearing of his appeal. The Supreme Court was under an obligation to correct the procedural fault of the Insurance Court by communicating the documents to him ex officio. It must follow from Finland's reservation to Article 6 para. 1 (Art. 6-1) of the Convention as to the right to an oral hearing before, inter alia, the Supreme Court that this court should instead resort to other procedural safeguards such as communicating documents for comments in writing.   46.    The Government admit that the Supreme Court based its decision at least partly on the documents submitted by the military authorities. They argue, however, that Article 6 para. 1 (Art. 6-1) has not been violated, given that the non-communicated documents were of no significance to the outcome of the applicant's appeal. The Government refer to investigations carried out in the course of the proceedings before the Commission.   47.    The Commission recalls that it is not its task to substitute its own assessment of the facts for that of the national courts. The Convention organs' task is to ascertain whether the proceedings, including the way in which evidence was dealt with, were fair within the meaning of Article 6 para. 1 (Art. 6-1) (cf. Eur. Court H.R., Dombo Beheer judgment of 27 October 1993, Series A no. 274, para. 31).   48.    The Commission further recalls that the requirement of "equality of arms" inherent in the concept of a "fair hearing" implies that each party must be afforded a right to participate properly in the proceedings as well as a reasonable opportunity to present his case under conditions which do not place him at a substantial disadvantage vis-à-vis his opponent (cf. Eur. Court H.R., Feldbrugge judgment of 29 May 1986, Series A no. 99, pp. 17-18, para. 44 and the above- mentioned Dombo Beheer judgment, paras. 32-33).   49.    Turning to the present case the Commission finds it established that the documents not communicated to the applicant by the Supreme Court consisted of an opinion on his appeal to the Insurance Court submitted by the Compensation Office, which had rejected the applicant's request and thus could be seen as the applicant's opponent in the appeal proceedings. As admitted by the Government, the documents further included the applicant's master and medical files submitted to the Insurance Court by a regional military headquarters. As further admitted by the Government, at least the last-mentioned documents formed part of the basis for the Supreme Court's consideration of the applicant's appeal.   50.    It is not for the Commission to determine whether or not the documents had any bearing on the refusal of the applicant's appeal. Rather, the concept of a "fair hearing" would have required that the possibility to assess the significance of the documents as well as the need to present comments in writing or to request an oral hearing for this purpose be left to the applicant himself. No such opportunity was, however, given to him (cf. the above-mentioned Feldbrugge judgment, pp. 16-17, para. 42 and, e contrario, the above-mentioned Schuler- Zgraggen judgment, para. 52).   51.    In these circumstances the Commission concludes that the conditions under which the applicant could present his appeal did not allow for the applicant's proper participation in the proceedings before the Supreme Court and placed him at a substantial disadvantage vis-à-vis the Compensation Office.   Whether or not the documents have later been found to be inconclusive can be of no relevance to the assessment of the fairness of the proceedings before the Supreme Court.   52.    Accordingly, there has been a violation of Article 6 para. 1 (Art. 6-1) on account of the Supreme Court's failure to communicate the opinion of the Compensation Office as well as the applicant's master and medical files to him prior to deciding his appeal.   CONCLUSION   53.    The Commission concludes, unanimously, that in the present case there has been a violation of Article 6 para. 1 (Art. 6-1) of the Convention.   Secretary to the First Chamber         President of the First Chamber         (M.F. BUQUICCHIO)                          (A. WEITZEL)                                 APPENDIX I                         HISTORY OF THE PROCEEDINGS   Date                                Item _________________________________________________________________   25 August 1990                      Introduction of the application   29 November 1990                    Registration of the application   Examination of admissibility   7 April 1992                        Decision of the Commission to invite                                    the Government to submit                                    observations on the admissibility                                    and merits of part of the                                    application   11 June 1992                        Government's observations   29 June 1992                        Applicant's observations in reply   29 July 1992                        Applicant's supplementary                                    observations   10 July 1992                        Commission's decision to grant legal                                    aid to the applicant   7 April 1993                        Commission's deliberations and                                    decision to declare the                                    application in part admissible and                                    in part inadmissible and decision                                    to refer the case to the First                                    Chamber Examination of the merits   8 April 1993                        Decision on admissibility                                    transmitted to the parties   17 May 1993                         Applicant's further observations on                                    the merits   18 June 1993                        Government's further observations                                    on the merits   13 July 1993                        Applicant's supplementary                                    observations on the merits   19 October 1993                     Commission's consideration of the                                    state of proceedings   15 November 1993                    Government's supplementary                                    observations on the merits     8 December 1993                    Consideration of the state of                                    proceedings   11 January 1994                     Commission's deliberations on the                                    merits, final vote and adoption of                                    the Report