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

.s800EAC49 { font-size:12pt } .s523616E0 { margin-top:0pt; margin-bottom:12pt; text-align:center; font-size:14pt } .sBB9EE52A { font-family:Arial } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .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 } .s3CA6E042 { width:12.35pt; display:inline-block } .s967D43C6 { margin-top:36pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s7EE1C8F0 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s9D48DD53 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s6B505E72 { margin:0pt; padding-left:0pt } .sE2AD579 { margin-top:18pt; margin-left:29pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:0.6pt; font-family:Arial; font-weight:bold } .sC702907E { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s45AE5F73 { font-family:Arial; letter-spacing:-0.15pt } .s13F94BDE { font-family:Arial; letter-spacing:-0.1pt } .sDD165512 { margin-top:12pt; margin-left:14.2pt; margin-bottom:0pt; text-align:justify } .s7CB9076 { margin-top:36pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid } .s9D025815 { width:20.21pt; display:inline-block } .s495E66C1 { width:192.1pt; display:inline-block } .s7602FED2 { width:18.21pt; display:inline-block } .sC1AC44A4 { width:228.11pt; display:inline-block } FOURTH SECTION FINAL DECISION AS TO THE ADMISSIBILITY OF Application no. 57793/00 by Hannu KUKKONEN against Finland The European Court of Human Rights (Fourth Section), sitting on 16   May 2006 as a Chamber composed of:   Sir   Nicolas Bratza, President,   Mr   G. 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 27 March 2000, Having regard to the partial decision of 4 May 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, Hannu Kukkonen, is a Finnish national, who was born in 1967 and lives in Kuopio. He was represented before the Court by Mr Jukka Ahomäki, a lawyer practising in Järvenpää. The respondent Government were represented by their Agent, Mr Arto Kosonen, Director in the Ministry for Foreign Affairs. A.     The circumstances of the case The facts of the case, as submitted by the parties, may be summarised as follows. The applicant, a carpenter, sustained injuries in an accident at his work place on 31 January 1994. The fall caused a splinter fracture in his left elbow which later developed into degenerative arthritis. The applicant received an accident pension ( tapaturmaeläke, olycksfallspension ) until 31   May 1996 from an insurance company. The applicant applied for a continued pension from 1 June 1996 onwards. On 8 May 1996 the insurance company dismissed his application considering that the applicant’s working capacity was reduced by less than 10 %. It further held that the applicant’s inability to return to his previous profession as a carpenter was not based on the injury to his left arm, but on his neck and shoulder pains which were not caused by the accident of 30   January 1994. The applicant appealed to the Accident Board ( tapaturmalautakunta, olycksfallsnämnden ) repeating his requests. He relied on a medical opinion dated 13 May 1996 in which he was found to be unfit for carpentry work and another medical opinion dated 4 June 1996. He submitted two further medical opinions dated 28 June 1996 and 19 January 1996 respectively. The Accident Board rejected his appeal on 13 March 1997 by four votes to one. It reasoned its decision as follows: “According to section 18, subsection 2 of the Act on Accident Insurance [( tapaturmavakuutuslaki, lag om olycksfallsförsäkring ; 608/1948)] an accident pension is paid on condition that an employee’s working capacity is estimated to have been reduced by at least 10 % because of injury or illness caused by an accident. The decrease is assessed taking into account the employee’s ability to earn income by another employment as can reasonably be required, given his/her qualifications, earlier activities, age, living conditions and other similar grounds. The medical opinions at its disposal show that the strain tolerance of [the applicant’s] left elbow was reduced due to the limitations on moving it and its aptitude for pain. Therefore he is incapable of full-time carpentry work. He is, however, fit to work, for example, as an electrician. Despite the injuries to his elbow, he could, after professional training in a vocational institute or through an apprenticeship contract, gain an equivalent income in a new occupation. In the work testing project no plan for vocational education was done due to [the applicant’s] pain. [The applicant’s] neck and head pains are not caused by the accident of 30 January 1994 and therefore can not be compensated under the Act on Accident Insurance. His working capacity on grounds of the damage in his elbow is estimated to have been reduced by less than 10   % after 31 May 1996.” The applicant appealed to the Insurance Court repeating his previous requests. He submitted some further evidence regarding the content and requirements of an electrician’s work. The Insurance Court received several other documents, for example medical opinions, case histories of the applicant, x-rays and several statements from different quarters. Both parties submitted further opinions. Between 20 May and 19 June 1997 the applicant participated in a work testing project ( työkokeilututkimus, arbetsprövning ). The Insurance Court dismissed most of the applicant’s appeal on 17   November 1998. It however changed the Accident Board’s decision so as to grant the applicant a 100 % accident pension for the period of 20 May to 19 June 1997. It accepted the reasons given by the Accident Board and held that the new evidence did not call for a different conclusion. The applicant sought leave to appeal to the Supreme Court ( korkein oikeus, högsta domstolen ), claiming, inter alia , that after the Insurance Court’s decision he had found out that the Insurance Court had returned to the insurance company almost 1000 pages of material, although he allegedly had seen only part of it and that the insurance company had refused to disclose to him all that material. The Supreme Court refused the applicant leave to appeal on 21 October 1999. On 27 March 2000 he requested the Supreme Court to annul its decision and that of the Insurance Court as the latter had allegedly failed to communicate to him documents, including a handwritten memorandum dated 9 October (without a year) written by a lawyer of the insurance company concerning a telephone conversation with a worker of the Insurance Rehabilitation Association ( Vakuutuskuntoutus VKK r.y., Försäkringsbranschens Rehabilitering r.f .) as well as an assessment and a rehabilitation advice by that Association. He alleged among other things that the note included reference to the fact that “[the applicant] does not consider pain rehabilitation possible”, which was not correct and also gave a negative impression of him. The Supreme Court rejected his application on 13 November 2003. It found that the non-communicated documents related to the decision-making within the insurance company and that it remained unclear when and how the memorandum was included in the case file. In any event, the non-communicated documents were not submitted to the court in connection with either of the parties’ submissions nor were they evidence adduced by them or evidence on which a court had based its decision. One of the Justices considered that the three documents mentioned by the applicant were not entirely irrelevant to the proceedings before the Insurance Court and concurred that the Insurance Court had therefore made a procedural error. Relevant domestic law 1.     Procedure Section 16 (969/1995) of the Constitution Act ( hallitusmuoto, regeringsform ; 94/1919), as in force at the relevant time, provided for everyone’s right to have his/her affairs considered appropriately and without undue delay by a lawfully competent court of justice or other public authority as well as the right to have a decision pertaining to his/her rights and obligations reviewed by a court of justice or other independent judicial organ. Subsection 2 of the said section provided the right to receive a reasoned decision. The said provision corresponds to section 21 of the current Constitution of Finland ( Suomen perustuslaki, Finlands grundlag ; 731/1999). Chapter 31, Article 1(4) of the Code of Judicial Procedure ( oikeudenkäymiskaari, rättegångsbalken ; 109/1960) provides that a final judgment may be annulled for procedural error ... if it is found or can be assumed to have materially influenced the result of the case. At the relevant time Chapter 24, Article 15 of the Code of Judicial Procedure (1064/1991) 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. 2.     Composition of the Accident Board Section 1 of the Decree on the Accident Board ( asetus tapaturmalautakunnasta, förordningen om olycksfallsnämnden ; 839/1981) provides that the Accident Board functions as the first appellate body in matters concerning obligatory accident insurance. Section 53 of the Accident Insurance Act ( tapaturmavakuutuslaki, lag om olycksfallsförsäkring ; 608/1948) provides that appellate bodies in accident insurance matters are the Accident Board, the Insurance Court and the Supreme Court. On the Accident Board there are a full-time president, at least two vice-presidents and at least three lawyers and medical doctor members as well as at least six members representing labour market organisations. They all bear the responsibility of a judge. The president, the vice-presidents and the lawyer members must be qualified to sit as a judge and they must have a good knowledge of accident insurance. The medical doctor members must be registered and have a good knowledge of insurance medicine. All the members and their personal substitutes were at the relevant time appointed by the Council of State for a fixed term of three years. The labour market members were appointed on a proposal by the employers’ and employees’ organisations. 3. Accident pension Section 18, subsection 2 of the Act on Accident Insurance provides that an accident pension is paid on condition that an employee’s working capacity because of the injury or illness caused by an accident is estimated to have been reduced by at least 10 %. The decrease is assessed taking into account the employee’s ability to earn an income by another employment as can reasonably be required, given his/her qualifications, earlier activities, age, living conditions and other similar grounds. COMPLAINTS 1. The applicant complained under Article 6 § 1 that the Insurance Court failed to communicate to him several relevant documents, including a memorandum written by an insurance company lawyer. 2. He also complained that   the Accident Board did not properly reason its decision, as it did not indicate the evidence and findings of fact which led to rejection of the appeal. He claimed that the decision was illogical as the Accident Board first held that he was not fit to work as a carpenter but then concluded that his working capacity was reduced by less than 10 % after 31   May 1996. He also complained that the decision of the Insurance Court was not duly reasoned, alleging that he could not effectively appeal against it. THE LAW The applicant complained about non-communication by the Insurance Court and about allegedly insufficient reasoning provided by the Accident Board and the Insurance Court. Article 6   § 1 of the Convention reads, insofar as relevant, as follows: “In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...” A. The Government’s preliminary objection The Government invoked Article 35   §   1 of the Convention, claiming that the applicant had not exhausted domestic remedies. They argued that the applicant, represented by counsel, had not at any point during the national proceedings appealed on the ground that the relevant decisions were not reasoned adequately nor had he mentioned in his appeal to the Supreme Court that certain documents were not communicated to him by the Insurance Court. In the applicant’s view he had exhausted all the available domestic remedies. He observed that in his appeal to the Supreme Court he mentioned that the Insurance Court had submitted to the insurance company almost 1000 pages documentation which had not been communicated to him admitting, however, that he did not specify the non-communicated documents. He further contended that in his request to the Supreme Court for annulment of its decision he specifically referred to the negligence of the Insurance Court in failing to communicate to him a memorandum of an insurance company lawyer as well as some other documents. The Court recalls at the outset that by Article 35 § 1 of the Convention it may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law, and in compliance with domestic formal requirements and time-limits (see, e.g ., Yahiaoui v. France , no. 30962/96, judgment of 14 January 2000, § 31). Moreover, the complaints intended to be made subsequently at Strasbourg should have been made to the appropriate domestic body, at least in substance and in compliance with the formal requirements and time-limits laid down in domestic law. The Court notes that in the present case the applicant appealed to the Insurance Court on 21 April 1997 for the decision of the Accident Board to be revoked. In his application for leave to appeal to the Supreme Court on 15 January 1999 he alleged that neither the Accident Board nor the Insurance Court had given any explanation as to why they had not taken into account the medical opinions in his favour. The Court is therefore satisfied that the applicant has raised the substance of his complaint about the inadequate reasoning of the domestic decisions before the domestic courts. As to the non-communication of certain documents the Court notes that in his application for leave to appeal to the Supreme Court the applicant alleged that the Insurance Court had submitted to the insurance company almost 1000 pages of material, although he had seen only part of the material. Although he did not identify the documents at this stage, the Court is satisfied that the applicant has raised the substance of this complaint as well. Consequently, the application cannot be rejected for failure to exhaust domestic remedies. B. Applicability of Article 6 to the Accident Board proceedings The Government did not put forward any arguments as regards this aspect of the case. In the applicant’s opinion the proceedings before the Accident Board fulfilled several requirements of a tribunal within the meaning of Article   6   §   1 of the Convention and, accordingly, Article 6 applied to its proceedings. The Court has recently found that Article 6 applies to proceedings before the Accident Board (see Hautakangas v. Finland (dec.), no. 61560/00, 17   January 2006 and Ilvesviita-Sallinen v. Finland (dec.), no. 59578/00, 10   January 2006). Consequently, Article 6 § 1 applied to the proceedings before it. C. Alleged lack of communication of documents The Government contested the applicant’s claim that he was placed at a disadvantage vis-à-vis the insurance company in question. In their view the only identified document which allegedly was not communicated to him was an individual’s note of a telephone conversation, not a reasoned opinion on the merits of the applicant’s case. The Government further observed that the applicant had not substantiated his complaint about the non-communication of other documents submitted to the Insurance Court nor had he specified how the undisclosed document might have affected the proceedings. The applicant did not comment on the Government’s observations. The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established. D. Reasoning of the decisions The Government observed that, even though in cases involving accident pensions a detailed statement of reasons might often be difficult to provide because the assessment of working capacity was based on an overall assessment, in the present case the Accident Board did, however, set out the medical reasons for its decision in addition to the applicable law. They argued that, although the decision did not satisfy the applicant, it could not be considered contradictory in its terms as in Hirvisaari v. Finland (no. 49684/99, 27 September 2001). The Government emphasised that the applicant submitted to the Accident Board several medical opinions by his doctors on his injuries and on the treatment of these injuries at different stages since 1994. All these opinions were later available at an appellate stage. The Accident Board summarised the additional new documentation and gave its conclusion on the facts. The Government pointed out that the Insurance Court listed the new evidence in its decision, and stated that the new material submitted did not change the evaluation of the applicant’s disability. They argued that the outcome of the proceedings could not be regarded as arbitrary. The Government further observed that the Insurance Court incorporated in its decision the reasons given by the Accident Board and the decision of the latter was annexed to its decision. Finally, while admitting that the Insurance Court’s decision did not go into details regarding the conclusions of the medical evidence as such, the Government contended that the fact that the applicant was considered unable to continue to function in his previous profession did not mean that he was not able to do any work at all. The applicant submitted that initially the insurance company granted him an accident pension until 31 May 1996. He applied for a continued pension as of 1 June 1996. Although he presented several medical opinions in his favour, the insurance company rejected his application, finding that his working capacity had been reduced by less than 10 % and that his working incapacity was based on the injuries to his neck and shoulder which were not caused by the impugned accident. The applicant was of the view that he was not given reasons as to how and on what grounds his working capacity was considered to have increased after 31 May 1996. He emphasised that the decision of the insurance company was against the medical opinions submitted by him.   The applicant pointed out that in his application to the Accident Board he referred to a medical opinion of 13 May 1996 in which he was found to be unfit for carpentry work, and in addition to this, he submitted three further medical opinions. He maintained that the Accident Board did not mention on which medical opinion its decision about the applicant’s ability to work after some training was based. He alleged that he did not submit any medical opinion which would have supported this view nor did any other document support it. He noted that while his application was pending before the Insurance Court he participated in a work testing project upon the Accident Board’s recommendation. However, it was found that he was not fit to work in a profession demanding a good physical condition, and he submitted to the Insurance Court two medical opinions in support. The applicant contended that the Accident Board and the Insurance Court failed to give any reasons as to why they reached a conclusion contrary to the opinion of his doctors. The Court recalls its judgment in Hirvisaari v. Finland 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: “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 (see the García Ruiz v. Spain judgment of 21   January 1999, Reports of Judgments and Decisions 1999-I, § 26; and the Helle v. Finland judgment of 19   December 1997, Reports 1997-VIII, §§ 59 and 60). 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 in the present case the applicant had initially been granted an accident pension until 31 May 1996. His application for a continued accident pension was rejected. In its decision the Accident Board set out the applicable legal provision and found that the damage in the applicant’s elbow had reduced his working capacity by less than 10 %. It also considered that the pain in his head and neck was not caused by the accident. It further found that the applicant was unfit for carpentry work but that he could, however, work in another occupation after some vocational training. The Court further notes that although Article 6 § 1 obliges courts to give reasons for their decisions, it cannot be understood as requiring a detailed answer to every argument (see Van de Hurk v. the Netherlands, judgment of 19 April 1994, Series A no. 288, p. 20, § 61). In the present case the Court recalls that the applicant sought to substantiate his request for a continued accident pension by adducing, inter alia , several medical opinions to the Accident Court and again to the Insurance Court in which his treating doctors attested his incapacity for work as a carpenter. The courts noted the evidence adduced by the applicant. There is no indication that the applicant’s arguments and his doctors’ opinions were not properly or fairly examined. While the Insurance Court upheld the Accident Board’s decision it noted the fresh evidence adduced by the applicant and found that it did not change the evaluation of the outcome of the Accident Board’s decision. Therefore, even though its reasoning did not contain an express evaluation of the new medical opinions, there is no indication that the applicant’s arguments were not properly or fairly examined. As to the applicant’s criticism of the Accident Board as illogical, the Court recalls that, in accordance with Article 19 of the Convention interpretation and application of domestic law is primarily a matter for the assessment of the national courts. As to the reasoning by the Insurance Court, the Court would note that in dismissing an appeal, an appellate court may, in principle, simply endorse the reasons for the lower court’s decision (see García Ruiz v. Spain [GC], §   26, cited above). It is significant in this respect, as in the present case, that the decision of the Accident Board was appended to the Insurance Court’s decision (see Helle v. Finland , §   56, cited above). The present case can be distinguished from 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 which, taken together with the inadequate reasoning, prevented 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 in that the reasoning of the Accident Board and Insurance Court was not contradictory in its terms. The Court is therefore not persuaded that in the circumstance of this case 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 admissible, without prejudging the merits, the applicant’s complaint concerning the non-communication of certain documents by the Insurance Court; Declares inadmissible the remainder of the application.   Michael O’Boyle   Nicolas Bratza   Registrar   President