CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 14 septembre 2004

.s800EAC49 { font-size:12pt } .s523616E0 { margin-top:0pt; margin-bottom:12pt; text-align:center; font-size:14pt } .sBB9EE52A { font-family:Arial } .s5BA5B7C7 { margin-top:12pt; margin-bottom:12pt; text-align:center; font-size:14pt } .s662121A1 { margin-top:12pt; margin-bottom:12pt; text-align:center } .sB8987CE9 { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .sB9D5CABB { width:28.35pt; display:inline-block } .sFEE8C148 { width:13.68pt; display:inline-block } .s61E420C2 { font-family:Arial; font-variant:small-caps } .sA36B60A1 { font-family:Arial; font-style:italic } .s61ED8A2B { width:14.36pt; display:inline-block } .s84D0D60A { width:8.36pt; display:inline-block } .s3CA6E042 { width:12.35pt; display:inline-block } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .sBB5E682E { margin-top:0pt; margin-bottom:36pt; text-indent:14.2pt } .sF604F523 { margin-top:36pt; margin-bottom:12pt; font-size:14pt } .s147369FC { margin-top:12pt; margin-bottom:18pt; text-indent:14.2pt } .sDEA336FF { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt } .s29100277 { font-family:Arial; font-weight:bold } .s377C1984 { margin-top:0pt; margin-bottom:12pt; text-indent:14.2pt } .sAF0B4C7 { margin-top:12pt; margin-left:48.75pt; margin-bottom:6pt; text-indent:-17pt; font-size:10pt } .s7A3B44D7 { margin-top:6pt; margin-bottom:12pt; text-indent:14.2pt } .s451A1BF5 { margin-top:6pt; margin-bottom:0pt; text-indent:14.2pt } .sE8EB5753 { margin-top:0pt; margin-bottom:6pt; text-indent:14.2pt } .s6BBACBD8 { margin-top:6pt; margin-left:20.15pt; margin-bottom:12pt; text-indent:8.8pt; font-size:10pt } .s160BBE39 { margin-top:12pt; margin-left:20.15pt; margin-bottom:6pt; text-indent:8.8pt; font-size:10pt } .s8AD34D0 { margin-top:6pt; margin-left:20.15pt; margin-bottom:6pt; text-indent:8.8pt; font-size:10pt } .s9671CAED { margin-top:6pt; margin-bottom:6pt; text-indent:14.2pt } .sEEE3CE35 { margin-top:12pt; margin-left:20.15pt; margin-bottom:12pt; text-indent:8.8pt; font-size:10pt } .sFE6327B5 { margin-top:6pt; margin-bottom:18pt; text-indent:14.2pt } .s9019FD2F { margin-top:12pt; margin-bottom:6pt; text-indent:14.2pt } .sA918FEC8 { margin-top:12pt; margin-bottom:12pt; text-indent:14.4pt } .s588BDBF1 { margin-top:12pt; margin-left:14.2pt; margin-bottom:12pt } .sBED5F98F { margin-top:12pt; margin-left:14.2pt; margin-bottom:36pt } .sF7A4323 { margin-top:36pt; margin-bottom:0pt; text-align:left } .s9D025815 { width:20.21pt; display:inline-block } .sA3B71503 { width:197.8pt; display:inline-block } .s7602FED2 { width:18.21pt; display:inline-block } .s60570E66 { width:233.81pt; display:inline-block } FOURTH SECTION PARTIAL DECISION AS TO THE ADMISSIBILITY OF Application no. 32447/02 by Arja Tuulikki PIRINEN against Finland The European Court of Human Rights (Fourth Section), sitting on 14   September 2004 as a Chamber composed of:   Sir   Nicolas Bratza , President ,   Mr   M. Pellonpää ,   Mr   L. Garlicki ,   Mr   J. Borrego Borrego ,   Mrs   E. Fura-Sandström ,   Ms   L. Mijović ,   Mr   D. Spielmann, judges , and Mr M. O’Boyle , Section Registrar , Having regard to the above application lodged on 22 August 2002, Having deliberated, decides as follows:                     THE FACTS The applicant, Ms Arja Tuulikki Pirinen, is a Finnish national, who was born in 1946 and lives in Palojoki. She is represented before the Court by Mr Jarmo Kinnunen, a lawyer practising in Espoo. A.     The circumstances of the case The facts of the case, as submitted by the applicant and as they appear from the documents, may be summarised as follows. On 30 March 1995 the Supreme Administrative Court ( korkein hallinto-oikeus, högsta förvaltningsdomstolen ) quashed the decision of the Municipal Pensions Institution ( kuntien eläkelautakunta, kommunernas pensionsnämnd ) of 30 March 1994, in which the applicant’s application for a disability pension as from 1 January 1994 had been dismissed. The Supreme Administrative Court returned the application for fresh examination before the Local Government Pensions Institution ( kuntien eläkevakuutus, kommunernas pensionsförsäkring ). The applicant received a disability pension from 1 January 1995 to 30   April 1995 under the State Retirement Pension Act ( kansaneläkelaki, folkpensionslag ; 347/1956). 1.     The first set of proceedings On 18 April 1995 the Local Government Pensions Institution issued a new decision granting the applicant a disability pension as from 1 February 1995 based on inability to work since 11 January 1995 (i.e., it did not grant a pension for the period of 1 January 1994-31 January 1995). The applicant appealed to the Insurance Court ( vakuutusoikeus, försäkringsrätten ), which upheld the decision on 7 November 1996. 2.     The second set of proceedings On 13 December 1996 the applicant applied again for a disability pension from 1 January 1994 to 31 January 1995. On 16 December 1996 the Local Government Pensions Institution upheld its previous provisional decision of 5 January 1996, according to which the applicant was granted a disability pension as from 1 February 1995. The applicant appealed to the Municipal Pensions Institution maintaining that she had been unfit to work as from 26 November 1993 and requesting a disability pension as from 1   January 1994 with interest. The applicant submitted to the Municipal Pensions Institution a medical doctor’s statement of 22 March 1997 (according to which the applicant was unfit to work as from 26 November 1993) and an ENMG-report of 3 March 1997. The Local Government Pensions Institution submitted its observations and the applicant submitted her observations in reply. On 14 May 1997 the Municipal Pensions Institution dismissed the applicant’s appeal maintaining, inter alia , that the applicant’s working capacity had not been reduced to an extent entitling her to a disability pension prior to 11 January 1995. On 18 June 1997 the applicant appealed to the Insurance Court requesting a disability pension as from 1 January 1994 and repeating her contention about the date of her inability to work and appending, inter alia , a medical doctor’s statement of 20 August 1997 (in which the applicant was regarded as unfit to work as from 26 November 1993, and which, inter alia , described the applicant’s finger problems). The Local Government Pensions Institution submitted its observations and the applicant submitted her observations in reply. On 26   February 1998 the Insurance Court dismissed the applicant’s appeal. 3.     The third set of proceedings On 22 December 1999 the applicant applied again for a disability pension as from 1 January 1994 maintaining her unfitness to work as from 26 November 1993. She appended a medical doctor’s report of 14-15 December 1999. On 14 February 2000 the Local Government Pensions Institution dismissed the application maintaining that there was no new evidence which justified any different conclusion as regards the date of her incapacity to work. On 13 March 2000 the applicant appealed to the Municipal Pensions Institution repeating her previous requests and claiming interest, reimbursement of her appeal costs and an oral hearing and also invoking Article 6 of the Convention. She identified herself and two medical doctors (K. and L., or alternatively H.) as witnesses and specified the topics for their proposed testimony. The Municipal Pensions Institution received two medical doctors’ statements of 27 March 2000 and 26-30 June 2000, respectively, a copy of a scientific article and two copies of a doctoral thesis. On 14 June 2000 the Local Government Pensions Institution submitted its observations and the applicant submitted her observations in reply on 7 July 2000. On 27 September 2000 the Municipal Pensions Institution dismissed the appeal. It held: “On 18 April 1995 the Local Government Pensions Institution found that your working capacity has been reduced to an extent entitling you to a disability pension as from 11 January 1995. Based on the newly presented medical evidence your disability to work cannot be regarded as having begun earlier than 11 May 1995. Your request for a disability pension as from 1 January 1994 with interest has consequently been dismissed. As regards the oral hearing, the Municipal Pensions Institution finds, based on the presented medical and other evidence, that it is not necessary to hold one.” On 10 November 2000 the applicant appealed to the Insurance Court claiming a disability pension as from 1 January 1994 with interest, reimbursement of her appeal costs and an oral hearing. She complained that the Municipal Pensions Institution had taken into account the medical doctor’s statement of 27 March 2000 although she had expressly stated in her observations of 7 July 2000 that she would not submit the statement in question. She complained that the Municipal Pensions Institution had apparently invited the statement of its own motion and that she had not been given an opportunity to present her observations on that statement. She also complained about the allegedly inadequate reasoning of the Municipal Pensions Institution, in particular as regarded the problems with her fingers. She further pointed out that there had been a typing error as regards the date of her disability to work. She proposed herself and two medical doctors (K. and L.) as witnesses for an oral hearing and specified that she would testify about her illnesses and inability to work as from 1993/1994 and the effect of her finger problems on her working capacity, and that the doctors were to be heard concerning the date of the applicant’s incapacity to work and, in particular, the effects of her finger problems. The Insurance Court received medical doctors’ statements of 2 October 1998, 12 April 1999, 28 February 2001 and 25 January 2002, respectively. The Local Government Pensions Institution submitted its observations and the applicant submitted her observations in reply. On 30 May 2002 the Insurance Court dismissed the applicant’s appeal and her request for an oral hearing. It held, inter alia , as follows: “Based on the available documents, [the medical doctor’s] statement of 27 March 2000 arrived at the Municipal Pensions Institution from the Local Government Pensions Institution on 15 June 2000 together with the applicant’s appeal. Consequently, the Municipal Pensions Institution did not invite the statement in question and has therefore not acted erroneously as claimed by the applicant.” It further held, as regards the requested oral hearing, as follows: “Proceedings before the Insurance Court are normally in writing. The Insurance Court must hold an oral hearing if requested by a private party. A case may however be examined without an oral hearing if ... it is manifestly unnecessary due to the nature of the matter or other reasons. If a party requests an oral hearing he/she must indicate the reasons why it would be necessary and what kind of evidence he/she would present at the hearing. The lack of necessity for an oral hearing is assessed on the basis of these grounds and a hearing may be dispensed with if it is highly likely that it would not be useful. An oral hearing concerning subjective medical hardships is usually unnecessary provided that there is proper and adequate written medical evidence at hand. The case concerns the question whether [the applicant] was ... unfit to work before January 1995. The same issue has been examined in written proceedings before. The Insurance Court finds that [the applicant’s] subjective views have already been adequately established in the prior examinations, and that hearing her for this reason is therefore unnecessary, taking into account in particular the lapse of time. It appears from the documents that ... K. has personally attended to [the applicant] as from 29 January 1997. ... L. met [the applicant] for the first time on 30 March 1999. The heading of L.’s medical statement of 12 April 1999 reads: ‘A specialist’s statement and summary for the Insurance Court, based on documents and one meeting with the patient.’ Both medical doctors’ opinions are therefore based on what [the applicant] had told them and on an assessment of documents, which means that they cannot give a valuation based on their personal examination about the applicant’s state of health on the relevant time. The Insurance Court has apparently had at its disposal similar documentary evidence as they did. In these circumstances written evidence is regarded as sufficient. There is a medical doctor in the composition of the Insurance Court, which guarantees sufficient expertise in medical questions. The Insurance Court finds that the hearing of K. and L. about their conclusions concerning [the applicant’s] working capacity based on written material is unnecessary, taking into account the Insurance Court’s composition and the fact that their observations are apparent from their written statements ...” As regards the subject-matter of the appeal, the Insurance Court maintained the following: “The reasons are mentioned in the Municipal Pensions Institution’s decision. The Insurance Court however corrects the date of 11 May 1995 to 11 January 1995. The presented new evidence does not give rise to different conclusions about the applicant’s working capacity. In addition, the Insurance Court notes the following: In the previous proceedings in the matter, which have taken place closer in time to the disputed events, the alleged finger problems have not been raised in the pension applications, appeals or other documents, and its importance to the applicant’s working capacity has not been identified as significant in the previous medical doctors’ statements. The newly presented evidence ... does not warrant a conclusion that the applicant was unfit to work during the time mentioned in the application either.” According to the applicant, a secretary from the applicant’s representative’s law firm visited the registries of the Insurance Court and the Local Government Pensions Institution and found that the medical doctor’s statement of 22 March 1997 was not included in the Insurance Court’s archives. A copy was found in the Local Government Pensions Institution, but according to the applicant, it did not contain a stamp acknowledging its receipt in the Insurance Court. B.     Relevant domestic law According to section 155, subsection 4 of the Act on Municipal Pensions ( kunnallinen eläkelaki, lag om kommunala pensioner ; 2003/549), if not otherwise provided, the Administrative Judicial Procedure Act ( hallintolainkäyttölaki, förvaltningsprocesslag ; 586/1996) is applied in the proceedings before the Municipal Pensions Institution. The Municipal Pensions Institution shall hold an oral hearing as provided in section 37 of the Administrative Judicial Procedure Act, when necessary for the examination of the case. Section 34 of the Administrative Judicial Procedure Act ( hallintolainkäyttölaki, förvaltningsprocesslag ; 586/1996) provides that before the resolution of the matter, the parties shall be given an opportunity to comment on the demands of other parties and on evidence that may affect the resolution of the matter. According to subsection 2, the matter may be resolved without a hearing of the party if his claim is dismissed without considering its merits or immediately rejected or if the hearing is for another reason manifestly unnecessary. According to section 37 of the Administrative Judicial Procedure Act, where necessary, an oral hearing shall be conducted for purposes of establishing the facts of the case. The parties, witnesses and experts may be heard and other evidence received in an oral hearing. According to section 38, subsection 1 of the Administrative Judicial Procedure Act an Administrative Court shall conduct an oral hearing if a private party so requests. The oral hearing requested by a party need not be conducted if the claim is dismissed without considering its merits or immediately rejected or if an oral hearing is manifestly unnecessary in view of the nature of the matter or for another reason. Subsection 3 provides that if a party requests an oral hearing, he/she shall state why the conduct thereof is necessary and what evidence he/she would present in the oral hearing. COMPLAINTS The applicant complains under Article 6 of the Convention that: 1.     the Municipal Pensions Institution and the Insurance Court did not hold an oral hearing in the third set of proceedings; 2.     the Insurance Court’s decision of 30 May 2002 was inadequately reasoned as it did not specify which documents or medical criteria were decisive in the matter; 3.     the Municipal Pensions Institution and the Insurance Court took into account the medical doctor’s statement of 27 March 2000 without giving her an opportunity to submit her observations on it; and 4.     the Insurance Court did not have at its disposal in the second and third set of proceedings the medical doctor’s statement of 22 March 1997. She maintains that the statement in question was not found in the Insurance Court and when it was subsequently found in the Local Government Pensions Institution’s registry it turned out that, unlike every other document, it did not contain the Insurance Court’s stamp acknowledging receipt. THE LAW 1.     The applicant complains under Article 6 of the Convention that the Municipal Pensions Institution and the Insurance Court did not hold an oral hearing in the third set of proceedings. Article 6 § 1, insofar as relevant, reads as follows: “1.     In the determination of his civil rights and obligations ... everyone is entitled to a fair and public hearing ... by [a] tribunal established by law...” The Court considers that it cannot, on the basis of the case-file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.   2.     The applicant complains under Article 6 § 1 of the Convention (see above) that the Insurance Court’s decision of 30 May 2002 was inadequately reasoned as it did not specify which documents or medical criteria were decisive in the matter. The Court considers that it cannot, on the basis of the case-file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.   3.     The applicant complains under Article 6 § 1 of the Convention (see above) that the Municipal Pensions Institution and the Insurance Court took into account the medical doctor’s statement of 27 March 2000 without giving her an opportunity to submit her observations on it. The Court need not decide whether the alleged non-communication of the statement rendered the first instance proceedings before the Municipal Pensions Institution unfair, because in determining issues of fairness for the purposes of Article 6 of the Convention, the Court must consider the proceedings as a whole, including the decision of the appellate court ( Edwards v. the United Kingdom , judgment of 16 December 1992, Series A no. 247-B, § 34, and C.G. v. the United Kingdom , no. 43373/98, judgment of 19   December 2001, § 35). It is not its function to substitute its own assessment of the facts for that of the domestic courts and, as a general rule, it is for these courts to assess the evidence before them. The Court’s task is to ascertain whether the proceedings in their entirety were fair (see Doorson v. the Netherlands , judgment of 26 March 1996, Reports 1996-II, p. 470, §   67). The Court considers that the real issue in the case is whether the Insurance Court was capable of remedying any perceived unfairness at the Municipal Pensions Institution. It is well-established in the Court’s case law that a defect at first instance may be remedied on appeal, so long as the appeal body has full jurisdiction. Where a complaint is made of alleged non-communication of documents, the concept of “full jurisdiction” involves that the reviewing court not only considers the complaint but has the ability to quash the impugned decision and either to take the decision itself, or to remit the case for a new decision by an impartial body ( De Haan v. the Netherlands, judgment of 26 August 1997, Reports 1997 ‑ IV, §§ 53-54; and more recently, Kingsley v. the United Kingdom, no. 35605/97, § 58, 7 November 2000, unreported). Turning to the present case, the Court notes that the decision of the Municipal Pensions Institution was open for review both as to the facts and as to the law before the Insurance Court. Thus, the Insurance Court enjoyed “full jurisdiction” in the sense described above. As to procedure before the Insurance Court, the Court notes that the applicant had ample opportunity to convince it of the merits of her argument. The Court observes that in her letter of appeal the applicant confined herself in this regard to complaining about the non-communication as a procedural error; although free to do so, she did not put forward any substantive complaints as regards the contested statement. Accordingly, the Court finds that the proceedings were not unfair overall and that this part of the complaint is manifestly ill-founded. It must therefore be declared inadmissible under Article 35 §§ 3 and 4.   4.     The applicant complains under Article 6 § 1 of the Convention (see above) that the Insurance Court did not have at its disposal in the second and third set of proceedings the medical doctor’s statement of 22 March 1997. The Court first observes that the second set of proceedings ended on 26   February 1998 when the Insurance Court dismissed the applicant’s appeal and that the application before this Court was lodged on 22 August 2002, i.e. more than six months after the decision. It follows that the complaint as regards the second set of proceedings is introduced out of time and must be rejected in accordance with Article   35 §§   1 and   4 of the Convention. As regards the third set of proceedings the Court notes that the applicant referred in her observations submitted to the Municipal Pensions Institution and in her letter of appeal to the Insurance Court to all her previous requests and their grounds. The medical doctor’s statement of 22 March 1997 was not mentioned in the decisions of the third set of proceedings. The statement was, however, mentioned in the Municipal Pensions Institution’s decision of 14 May 1997 in the second set of proceedings. The Court observes that the applicant did not complain about the alleged failure to take this statement into account in her letter of appeal to the Insurance Court dated 18 June 1997 (second set of proceedings), nor in her letter of appeal of 10 November 2001 (third set of proceedings). According to an appended statement by the applicant to his application, a secretary visited the registries of the Insurance Court and the Local Government Pensions Institution on 15 August 2002, i.e. after the proceedings, and confirmed the alleged facts as described above. Leaving aside the question of whether the circumstances of the case disclose a failure to exhaust domestic remedies, the Court notes in any event that the applicant did not expressly rely on the statement of 22 March 1997 in her letters of appeal or in her observations, and furthermore that it has not been claimed that the domestic authorities did not take into account all those items of evidence on which the applicant expressly relied in those documents. Further, the Court finds that the applicant has not substantiated her complaint as to how the alleged failure to take into account the statement of 22 March 1997 was prejudicial to her or rendered the trial unfair. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article   35 §§   3 and   4 of the Convention. For these reasons, the Court unanimously Decides to adjourn the examination of the applicant’s complaints concerning the lack of an oral hearing in the third set of proceedings and the alleged inadequate reasoning of the Insurance Court’s decision of 30   May 2002; Declares the remainder of the application inadmissible.   Michael O’Boyle   Nicolas Bratza   Registrar   President