CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 16 mai 2006

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Bonello,   Mr   M. Pellonpää,   Mr   K. Traja,   Mr   L. Garlicki,   Ms   L. Mijović,   Mr   J. Šikuta, judges, and Mr M. O’Boyle , Section Registrar , Having regard to the above application lodged on 22 August 2002, Having regard to the partial decision of 14 September 2004, Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant, 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. The Finnish Government (“the Government”) are represented by their Agent, Mr Arto Kosonen of the Ministry for Foreign Affairs. A.     The circumstances of the case The facts of the case, as submitted by the parties and as they appear from the documents, may be summarised as follows. The first set of proceedings On 30 March 1994 the Municipal Pensions Board ( kuntien eläkelautakunta, kommunernas pensionsnämnd ) dismissed the applicant’s application for a disability pension from 1 January 1994. On 30 March 1995 the Supreme Administrative Court ( korkein hallinto-oikeus, högsta förvaltningsdomstolen ) quashed the decision and remitted the case for fresh examination. On 18 April 1995 the Local Government Pensions Institution ( kuntien eläkevakuutus, kommunernas pensionsförsäkring ) issued a new decision granting the applicant a disability pension from 1 February 1995 based on her inability to work since 11 January 1995, i.e. it did not grant her a pension for the period 1 January 1994 to 31 January 1995. The applicant appealed to the Insurance Court ( vakuutusoikeus, försäkringsdomstolen ), which upheld the decision on 7 November 1996. 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 only from 1 February 1995. The applicant appealed to the Municipal Pensions Board, maintaining that she had been unfit to work from 26 November 1993 and requesting a disability pension from 1 January 1994 with interest. She relied on a medical doctor’s statement of 22 March 1997 (according to which she had been unfit to work 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 Board dismissed the appeal, maintaining that the applicant’s working capacity prior to 11 January 1995 had not been reduced to an extent entitling her to a disability pension. The applicant appealed further to the Insurance Court, 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 she was regarded as unfit to work from 26 November 1993, and which, inter alia , described her 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 appeal, giving the following reasons: “The reasons are mentioned in the Municipal Pensions Board’s decision. The presented evidence doest not warrant a different conclusion as regards the assessment of [the applicant’s] capacity for work.” The third set of proceedings On 22 December 1999 the applicant applied again for a disability pension from 1 January 1994 maintaining her unfitness to work 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, having examined the application in the light of the fresh medical report, dismissed it, maintaining that there was no new evidence which justified any different conclusion as regards the date of her incapacity to work. The applicant appealed to the Municipal Pensions Board, repeating her previous requests and claiming interest, reimbursement of her appeal costs and an oral hearing and also relying on 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. She relied on 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. The Local Government Pensions Institution submitted its observations and the applicant submitted her observations in reply. On 27   September 2000 the Municipal Pensions Board 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 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 from 1 January 1994 with interest has consequently been dismissed. As regards an oral hearing, the Municipal Pensions Board finds, based on the presented medical and other evidence, that it is not necessary to hold one.” The applicant appealed further to the Insurance Court claiming a disability pension from 1 January 1994 with interest, reimbursement of her appeal costs and an oral hearing. She complained that the Municipal Pensions Board had taken into account the medical doctor’s statement of 27   March 2000 although she had expressly stated in her observations in reply that she would not submit the statement in question. She complained that the Municipal Pensions Board 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 Board, in particular as regarded the problem with her fingers, so-called limited joint mobility. 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 from 1993 or 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 court dismissed the appeal without an oral hearing. It reasoned, inter alia : “Based on the available documents, [the medical doctor’s] statement of 27   March   2000 arrived at the Municipal Pensions Board from the Local Government Pensions Institution on 15 June 2000 together with the applicant’s appeal. Consequently, the Municipal Pensions Board did not invite the statement in question and has therefore not acted erroneously as claimed by the applicant.” As regards the requested oral hearing it reasoned: “... 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 or she must indicate the reasons why it would be necessary and what kind of evidence he or 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] 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 at 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 on 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 court held: “The reasons are mentioned in the Municipal Pensions Board’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 problem has 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.” B.     Relevant domestic law and practice At the time of the first two sets of proceedings the procedure in the Municipal Pensions Board and Insurance Court was written. When there were exceptional reasons, the court could however decide to hold an oral hearing. As to the third set of proceedings, the Municipal Pensions Board and the Insurance Court were under a Convention obligation to hold a public hearing. If not otherwise provided by an Act, the Administrative Judicial Procedure Act ( hallintolainkäyttölaki, förvaltningsprocesslagen ; Act no. 586/1996) applies to proceedings before the Municipal Pensions Board and the Insurance Court. They must hold an oral hearing when necessary for the purposes of establishing the facts of the case. The parties, witnesses and experts may be heard and other evidence received in an oral hearing. The Insurance Court must hold an oral hearing if a private party so requests, unless a hearing is manifestly unnecessary in view of the nature of the matter or for another reason (sections 37 and 38). The compositions of the Municipal Pensions Board and the Insurance Court include a medical doctor in cases where medical assessment is necessary (section 7 of the then Act on Municipal Pensions ( kunnallisten viranhaltijain ja työntekijäin eläkelaki, lagen om pension för kommunala tjänsteinnehavare och arbetstagare ) and section 5 of the then Insurance Court Act). Everyone is entitled to have his or her case examined before a public authority without undue delay (section 21 of the Constitution of Finland ( perustuslaki, grundlag ; Act no. 731/1999). A decision must be reasoned (section 21(2) of the Constitution of Finland ( Suomen perustuslaki, Finlands grundlag ; 731/1999). At the relevant time Chapter 24, Article 4 (165/1998) of the Code of Judicial Procedure ( oikeudenkäymiskaari, rättegångsbalken ) provided that a judgment must be reasoned, indicating the facts and the legal argumentation on which it was based and the grounds which have led the court to hold a disputed issue established or unsubstantiated. COMPLAINTS 1.     The applicant complained under Article 6 of the Convention that the Municipal Pensions Board and the Insurance Court did not hold an oral hearing in the third set of proceedings. 2.     She also complained 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 LAW The applicant complained about the lack of an oral hearing in the third set of proceedings and that the Insurance Court’s decision of 30 May 2002 had been inadequately reasoned. Article 6 § 1 reads in its relevant part: “In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...” The parties’ submissions The Government submitted that the applicant had been represented by counsel throughout the proceedings and could not therefore be considered to have had difficulties in arguing her case in writing. Proceedings in the Municipal Pensions Board were normally conducted and evidence received in writing. The necessity of oral hearings must be considered in casu , the requirements of promptness, economy and simplicity of the procedure being weighed against an applicant’s opportunity to be present. The task of the treating doctor was to produce comprehensive medical information on the applicant to form the basis for the decision-making. The Municipal Pensions Board’s medical expertise was ensured by the physician in its composition. If there was proper and adequate written evidence, it was usually unnecessary to hold an oral hearing in order to receive testimony as regards subjective medical hardship. In the present case, the applicant’s own views of her illness and capacity for work had been established on many occasions during the proceedings. All three applications had aimed at receiving a pension for the same period. The doctors proposed as witnesses had met the applicant only several years after the relevant period. They had issued their written statements based on earlier statements by others and the applicant’s description of the events. At a hearing, the doctors could only have produced the same information. As to the lack of an oral hearing in the Insurance Court, the Government made reference to the court’s reasoning. As regards the allegedly insufficient reasoning, the Government submitted that although detailed reasons may often be difficult to provide in a disability pension case, the Insurance Court had provided the applicant with sufficient reasons. The applicant emphasised that given the fact that the dispute concerned medical issues, the court had to decide in casu whether to hold an oral hearing. Dr K. had been the first physician to observe the finger symptoms the applicant had suffered from for years. It was irrelevant when Drs K. and L. had first examined the applicant and the documents on her file. In addition, Drs K. and L. were experts in insurance medicine. Therefore, their expertise should not have been overlooked or rejected. Instead, they should have been allowed to give oral testimony. Also the time that had elapsed since January 1994 should have warranted holding an oral hearing in the Insurance Court. The respondent State had for the first time been under a Convention obligation to hold an oral hearing in the third set of proceedings. The presence of a physician in the Municipal Pensions Board had not sufficed to guarantee a fair and equal treatment of the case. The physician in question had not been objective because he or she had also worked part-time in the Municipal Pensions Board. Nor had the fact that there had been a physician in the composition of the Insurance Court sufficed to guarantee a fair hearing of the applicant’s case. As for the Insurance Court’s reasoning, the applicant submitted that each case was different and therefore the reasoning should have been more detailed in her case, in particular as regards the new facts, the finger symptoms. The Court’s assessment Oral hearing The entitlement to a “public hearing” in Article 6 § 1 necessarily implies a right to an “oral hearing”. However, the obligation to hold a public hearing is not an absolute one. Thus, a hearing may be dispensed with if a party unequivocally waives his or her right thereto and there are no questions of public interest making a hearing necessary. A waiver can be done explicitly or tacitly, in the latter case for example by refraining from submitting or maintaining a request for a hearing (see Håkansson and Sturesson v. Sweden , judgment of 21 February 1990, Series A no. 171-A, p.   20, §   66 and Schuler-Zgraggen v. Switzerland , judgment of 24 June 1993, Series   A no.   263, pp. 19-20, §   58). In proceedings before a court of first and only instance there is normally a right to a hearing (see Håkansson and Sturesson v.   Sweden , judgment cited above, p. 20, § 64). However, the absence of a hearing before a second or third instance may be justified by the special features of the proceedings at issue, provided a hearing has been held at first instance (see Helmers v.   Sweden , judgment of 29   October   1991, Series A no. 212-A, p. 16, § 36). Accordingly, unless there are exceptional circumstances that justify dispensing with a hearing, the right to a public hearing under Article 6 § 1 implies a right to an oral hearing at least before one instance. A hearing may not be necessary due to exceptional circumstances of the case, for example when it raises no questions of fact or law which cannot be adequately resolved on the basis of the case-file and the parties’ written observations (see, mutatis mutandis , Fredin v   Sweden (no.   2) , judgment of 23 February 1994, Series A no. 283-A, pp.   10-11, §§   21-22; and Fischer v.   Austria , judgment of 26 April 1995, Series   A no.   312, pp. 20-21, § 44). The Court reiterates that the exceptional character of the circumstances that may justify dispensing with an oral hearing essentially comes down to the nature of the issues to be decided by the competent national court, not to the frequency of such situations. It does not mean that refusing to hold an oral hearing may be justified only in rare cases (see Miller v. Sweden , no.   55853/00, §   29, 8 February 2005). Thus, the Court has recognised that disputes concerning benefits under social-security schemes are generally rather technical and their outcome usually depends on the written opinions given by medical doctors. Many such disputes may accordingly be better dealt with in writing than in oral argument. Moreover, it is understandable that in this sphere the national authorities should have regard to the demands of efficiency and economy. Systematically holding hearings could be an obstacle to the particular diligence required in social-security cases (see Schuler-Zgraggen v.   Switzerland , judgment cited above, pp. 19-20, §   58). The Court observes that the jurisdiction of the Municipal Pensions Board and the Insurance Court was not limited to matters of law but also extended to factual issues. The issue before them was whether the applicant had been unfit to work before January 1995. The question is whether oral evidence or argument could have adduced anything relevant and decisive that was not entailed in the written evidence or submissions. The Municipal Pensions Board found, based on the written medical and other evidence in the case-file, that it was not necessary to hold a hearing. When considering the request for an oral hearing the Insurance Court found that the applicant’s views had already been adequately established in the prior examinations, and that hearing her in person was therefore unnecessary taking into account in particular the lapse of time. The same issue had been examined in written procedures before. As to the medical doctors, the Insurance Court found that Dr K., who had personally attended to the applicant from 1997 and Dr L., who had met her for the first time in 1999, could not give a valuation based on their personal examination about her state of health at the relevant time, i.e. in 1993 and 1994. The Insurance Court, whose composition included a medical doctor in order to guarantee its medical expertise, found the written evidence to be sufficient. The Court sees no reason to differ and thus finds that the dispute could adequately have been resolved on the basis of the medical statements and the written submissions. The Court also notes that the same issue had been examined at several levels of jurisdiction in two previous sets of proceedings ending in 1996 and 1998 respectively, i.e. in proceedings much closer in time to the period in dispute. Accordingly, there were circumstances which justified dispensing with a hearing in the applicant’s case. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article   35 §§   3 and   4 of the Convention. Reasoning The Court reiterates its judgment in Hirvisaari v. Finland (no. 49684/99, 27 September 2001) in which the Pension Board and the Insurance Court were found to have failed to provide adequate reasons for discontinuing a full disability pension and granting the applicant only a partial one. The Court found as follows (case-law references omitted): “30.     The Court reiterates that, according to its established case-law reflecting a principle linked to the proper administration of justice, judgments of courts and tribunals should adequately state the reasons on which they are based. The extent to which this duty to give reasons applies may vary according to the nature of the decision and must be determined in the light of the circumstances of the case. Although Article 6   §   1 obliges courts to give reasons for their decisions, it cannot be understood as requiring a detailed answer to every argument. Thus, in dismissing an appeal, an appellate court may, in principle, simply endorse the reasons for the lower court’s decision. A lower court or authority in turn must give such reasons as to enable the parties to make effective use of any existing right of appeal. 31.     In the present case, the Court observes that the first part of the reasons given by the Pension Board merely referred to the relevant provisions of law, indicating the general conditions under which an employee is entitled to receive pension. In the second part of the reasoning it was mentioned that the applicant’s mental state had deteriorated during the autumn of 1997, the symptoms of his illness, however, being considered mild. On these grounds the Pension Board found the applicant partly capable of working as from 1 June 1997. While this brevity of the reasoning would not necessarily as such be incompatible with Article 6, in the circumstances of the present case the decision of the Board failed to satisfy the requirements of a fair trial. In view of the fact that the applicant had earlier received a full invalidity pension, the reference to his deteriorating state of health in a decision confirming his right to only a partial pension must have left the applicant with a certain sensation of confusion. In these circumstances the reasoning cannot be regarded as adequate. 32.     Nor was the inadequacy of the Board’s reasoning corrected by the Insurance Court which simply endorsed the reasons for the lower body’s decision. While such a technique of reasoning by an appellate court is, in principle, acceptable, in the circumstances of the present case it failed to satisfy the requirements of a fair trial. As the applicant’s main complaint in his appeal had been the inadequacy of the Pension Board’s reasoning, the more important was it that the Insurance Court give proper reasons of its own.” The Court observes that the applicant in the present case had been granted a disability pension from 1 February 1995. Her request that she be granted a pension also for the period 1 January 1994 to 31 January 1995 had been refused. In the third set of the proceedings she sought to substantiate her request concerning the period in dispute by adducing various medical opinions. The Insurance Court identified and explained the applicable legal provision and noted the evidence adduced by the applicant. It set out its conclusions on the medical evidence. Therefore, even though its reasoning did not contain express reference to the doctors, there is no indication that the applicant’s arguments were not properly or fairly examined. The present case can be distinguished from the case of H.A.L. v. Finland (no. 38267/97, 27 January 2004) in which the Court found a violation on account of the fact that the domestic authorities withheld information taken together with the inadequate reasoning, thus preventing the applicant from participating properly in the proceedings up to and including the Appellate Board for Social Insurance. The present case can also be distinguished from the case of Hirvisaari v.   Finland (cited above) in that the Insurance Court, having endorsed the Municipal Pensions Board’s reasoning, supplemented that reasoning. Nor was its reasoning contradictory. The Court cannot conclude therefore that the applicant in the present case was deprived of a fair hearing within the meaning of Article 6 § 1 of the Convention. 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 Declares the remainder of the application inadmissible.   Michael O’Boyle   Nicolas Bratza   Registrar   President