CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 6 janvier 2009

.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 } .sA36B60A1 { font-family:Arial; font-style:italic } .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 } .s88A92475 { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .sFFD057F { margin-top:0pt; margin-left:14.2pt; margin-bottom:0pt; text-align:justify } .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 } .sF3B96856 { width:11.87pt; display:inline-block } .s51F2D829 { width:208.44pt; display:inline-block } .sA2E62387 { width:204.97pt; display:inline-block } FOURTH SECTION DECISION Application no. 20532/05 by Henri Antero VIINIKANOJA against Finland The European Court of Human Rights (Fourth Section), sitting on 6   January 2009 as a Chamber composed of:   Nicolas Bratza, President,   Giovanni Bonello,   David Thór Björgvinsson,   Ján Šikuta,   Päivi Hirvelä,   Ledi Bianku,   Nebojša Vučinić, judges, and Fatoş Aracı, Deputy Section Registrar , Having regard to the above application lodged on 7 June 2005, Having regard to the observations and declaration submitted by the respondent Government and the observations in reply submitted by the applicant, Having deliberated, decides as follows: THE FACTS The applicant, Mr Henri Antero Viinikanoja, is a Finnish national who was born in 1949 and lives in Huuvari. He was represented before the Court by Mr   Leif   Möller, a lawyer practising in Porvoo. The Finnish Government (“the Government”) were represented by their Agent, Mr   Arto   Kosonen, of the Ministry for Foreign Affairs. The circumstances of the case The facts of the case, as submitted by the parties, may be summarised as follows. The applicant was injured in a work-related accident on 28 June 1993. An insurance company compensated the costs and damage suffered by him until the end of 1993 but it rejected, on 14 January 1994, further claims for damages. On an unspecified date the applicant lodged a claim for compensation with the Accident Board ( tapaturmalautakunta, olycksfallsnämnden) which, on 20 September 1994, rejected his claim concerning the period after 1993. He appealed to the Insurance Court ( vakuutusoikeus, försäkringsdomstolen ) which, on 19   December   1995, rejected the appeal. Following a further appeal, the Supreme Court ( korkein oikeus, högsta domstolen ) granted him leave to appeal on 18 March 1998. The Supreme Court obtained an expert opinion from the National Authority for Medico-legal Affairs ( Terveydenhuollon oikeusturvakeskus, Rättskyddscentralen för hälsovården ), on which the applicant commented in writing. On 8 December 1998 the Supreme Court annulled the Insurance Court's decision and referred the case back to the latter instance. The Insurance Court held an oral hearing on 13 September 2001 during which three medical experts were heard. After the hearing, the court requested ex officio that tomography pictures taken in 1999 and one more medical opinion which had been given by a specialist in neurology on 20   March 1996 be included in the case file. According to the applicant, the medical opinion was not communicated to him. On 14 March 2002 the Insurance Court found against the applicant, holding that his injuries had not been caused by the accident. The applicant appealed to the Supreme Court complaining, inter alia , that he did not have a possibility to comment on the medical opinion of 20   March   1996. On 12   August   2003 the Supreme Court obtained a medical opinion from the National Authority for Medico-legal Affairs which referred in its opinion to the medical opinion of 20 March 1996. The applicant commented in writing on the opinion of 12 August 2003, and thus indirectly and at least partly on the opinion of 20 March 1996. He also provided a medical opinion from his own doctor. These documents were sent for comments to the National Authority for Medico-legal Affairs, which informed the court on 6   August   2004 that there was nothing in the applicant's submissions that would make it change its previous conclusions. The applicant commented on that submission in writing. On 14   December   2004 the Supreme Court refused the applicant leave to appeal without giving any reasons. COMPLAINTS The applicant complained under Article 6 § 1 of the Convention that the total length of the proceedings in his case had been incompatible with the “reasonable time” requirement. He also complained under the same Article that the proceedings had been unfair as the Insurance Court, in the second set of proceedings, had obtained a medical doctor's expert opinion which had not been communicated to him. The applicant further claimed under Article 6 § 1 that the proceedings had been unfair as the Supreme Court, in the second set of proceedings, had neither requested the expert medical doctor to examine him in person nor held a hearing where all the doctors could have been heard. Moreover, the Supreme Court had refused the applicant leave to appeal even though it clearly should have examined the case. Also, it should have given reasons for its refusal even if it had not been required to do so by law. THE LAW A.     Length of proceedings The applicant complained about the length of the civil proceedings. He relied on Article 6 §   1 of the Convention which, in so far as relevant, provides as follows:   “In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...” By letter dated 29 April 2008 the Government submitted to the Court their unilateral declaration, signed on the same date, with a view to resolving the issue raised by this part of the application. The declaration provided as follows: “1.     Whereas the efforts with a view to securing a friendly settlement of the case have been unsuccessful, the Government wishes to express – by way of a unilateral declaration – its acknowledgement that in the special circumstances of the present case the length of the civil proceedings did not fulfil the requirement of ”reasonable time” referred to in Article 6 § 1 of the Convention. 2.     Consequently, the Government is prepared to pay the applicant in compensation for non-pecuniary damage EUR 6,500 (six thousand five hundred euros). In its view, this amount would constitute adequate redress and sufficient compensation for the impugned length of the said proceedings, and thus an acceptable sum as to quantum in the present case. 3.     The Government are furthermore prepared to reimburse the applicant's costs and expenses in an amount of EUR 1,500 (one thousand five hundred euros), inclusive of value-added tax. In its view, this amount could reasonably be considered to correspond to what has actually been incurred by the applicant and as sufficient compensation for his costs and expenses in the proceedings in the present case, and also acceptable as to quantum. 4.     The total sum will be payable within three months from the date of notification of the decision pursuant to Article 37 § 1 (c) of the Convention. In the event of the failure to pay this sum within the said three-month period, the Government undertake to pay simple interest on it, from expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. 5.     In the light of above, the Government would suggest that the circumstances of the present case allow the Court to reach the conclusion that there exists “any other reason”, as referred to in Article 37 § 1 (c) of the Convention, justifying the Court to discontinue the examination of this part of the application and that, moreover, there are no reasons of a general character, as defined in Article 37 § 1 in fine , which would require the further examination of the case by virtue of that provision. Accordingly, the Government invites the Court to strike this part of the application out of its list of cases.” In a letter of 19 June 2008 the applicant expressed the view that there was no reason to strike the case out of the list of cases and requested that the examination of the case be continued. As to the compensation offered by the Government, the applicant considered it inadequate, since it did not even cover his costs and expenses. The Court reiterates that both parties filed submissions with the Registry in the context of friendly settlement negotiations (Article 38 § 1 (b) of the Convention and Rule 62 of the Rules of Court). No settlement was reached. Article 37 of the Convention provides that the Court may, at any stage of the proceedings, decide to strike an application out of its list of cases where the circumstances lead to one of the conclusions specified under (a), (b) or (c) of paragraph 1 of that Article. Article   37 §   1   (c) enables the Court in particular to strike a case out of its list if: “for any other reason established by the Court, it is no longer justified to continue the examination of the application”. Article 37 § 1 in fine includes the following proviso: “However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires.” The Court points out that, under certain circumstances, it may be appropriate to strike out an application, or part thereof, under Article 37 § 1 (c) of the Convention on the basis of a unilateral declaration filed by the respondent Government even if the applicant wishes the examination of the case to be continued. In deciding whether or not it should strike the length of proceedings complaint out of its list, the Court will examine carefully the terms of the declaration made by the Government in the light of the principles emerging from its case-law, in particular its judgments in cases such as Tahsin Acar v. Turkey [GC] (no.   26307/95, §§ 75-77, ECHR 2003-VI); Meriakri v. Moldova ((striking out), no. 53487/99, 1 March 2005); Swedish Transport Workers Union v. Sweden ((striking out), no. 53507/99, 18 July 2006); Van Houten v. the Netherlands ((striking out), no. 25149/03, ECHR 2005 ‑ IX), Kalanyos and Others v. Romania ((no. 57884/00, § 25, 26   April 2007)), and K.K. v. Finland ((striking out), no. 7779/04, 27   November   2007). The Court observes that the civil proceedings lasted some ten years and ten months. The Court notes that the Government's declaration contains a clear acknowledgment that the “reasonable time” requirement has not been respected within the meaning of Article 6 § 1 of the Convention. The Court is satisfied that the total amount offered to the applicant by the Government in compensation for non-pecuniary damage and costs and expenses, that is 8,000 euros, constitutes adequate redress for the excessive length of the proceedings having regard to all the circumstances of the case. The Court has established in a number of cases its practice concerning complaints about the violation of one's right to a hearing within a reasonable time (see, for example, Frydlender v. France [GC], no.   30979/96, § 43, ECHR 2000-VII and Cocchiarella v. Italy [GC], no.   64886/01, §§ 69-98, ECHR 2006-). Furthermore, it has already had occasion to address complaints related to alleged breach of one's right to a hearing within a reasonable time in cases against Finland (see, for example, Riihikallio and Others v. Finland , no. 25072/02, §§ 22-27, 31 May 2007; F.   and M. v. Finland , no. 22508/02, §§ 48-53, 17 July 2007 and Ekholm v. Finland , no. 68050/01, §§ 62-66, 24 July 2007). Against this background, the Court considers that it is no longer justified, within the meaning of Article 37 § 1 (c) of the Convention, to continue the examination of this part of the application, and finds no reasons which would require the further examination of this part of the case (Article 37 § 1 in fine ). Accordingly, it should be struck out of the list. B.     Complaint concerning the failure to communicate a medical opinion to the applicant The applicant further complained that the proceedings had been unfair as the Insurance Court, in the second set of proceedings, had obtained a medical opinion which had not been communicated to him. He relied on Article 6 § 1 of the Convention, the relevant part of which is cited above.   The Government provided a letter from the Insurance Court which showed that the court had communicated doctor H's medical opinion of   20   March   1996 to the applicant and had asked him to submit his comments on it within 14 days. It was indicated in the letter that, should the applicant decide not to comment, that would not hinder the Insurance Court from deciding on the matter. The applicant had also been given an opportunity to comment on the said opinion during the Supreme Court proceedings. The applicant admitted that doctor H's medical opinion of 20   March   1996 had been communicated to him and that he had had an opportunity to comment on it. However, he claimed that certain tomography pictures had not been communicated to him. As to the communication of the medical opinion, the Court observes that the parties agree that the opinion had been communicated to the applicant. The Court finds that the matter complained of does not disclose any appearance of a violation of the applicant's rights set out in Article 6 § 1 of the Convention. It follows that this complaint is manifestly ill-founded. As to the applicant's complaint about the non-communication of the tomography pictures, the Court observes that these pictures were taken in 1999 and that they are a separate issue from the medical opinion of 20   March 1996. The Court notes that this grievance was lodged with the Court for the first time in the applicant's observations of 19 June 2008. Under Article 35 § 1 of the Convention the Court may only deal with the matter within a period of six months from the date on which the final decision was taken. As the final decision in the present case dates back to 2004 this grievance is belated. It follows that this part of the application must be rejected in part as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4, and in part as being out of time, pursuant to Article 35 §§ 1 and 4 of the Convention. C.     Complaints concerning the proceedings in the Supreme Court The applicant further complained that the proceedings had been unfair as the Supreme Court, in the second set of proceedings, had neither requested the expert medical doctor to examine him in person nor held an oral hearing, had refused the applicant leave to appeal and had failed to give reasons for its refusal. He relied on Article 6 § 1 of the Convention. The Court observes that the second set of proceedings in the Supreme Court related only to the question of whether or not the court should grant the applicant leave to appeal. Even assuming that Article 6   §   1 would apply to this type of proceedings, leave-to-appeal proceedings and proceedings involving only questions of law, as opposed to questions of fact, may comply with the requirements of Article 6, although the appellant was not given an opportunity to be heard in person by the appeal or cassation court (see, among other authorities, Monnell and Morris v. the United Kingdom , 2   March 1987, §   58, Series   A no.   115). The Court considers that, in the present case, this question could be adequately resolved on the basis of the case file and the written submissions and, accordingly, the absence of an oral hearing before the Supreme Court was justified. The Court notes that the extent to which the duty to give reasons applies may also vary according to the nature of the decision at issue (see Helle v. Finland , 19 December 1997, §   55, Reports of Judgments and Decisions 1997 ‑ VIII). Where a supreme court refuses to accept a case on the basis that the legal grounds for such a case are not made out, very limited reasoning may satisfy the requirements of Article 6 of the Convention. This principle extends to the Supreme Court's decisions on applications for leave to appeal (see Nerva and Others v. the United Kingdom , no.   42295/98, ECHR 2002 ‑ VIII). The Court considers that, in the present case, it was not necessary for the Supreme Court to give more detailed reasons for its decision. What is crucial is that the Supreme Court addressed itself to the points made by the applicant in his request for leave to appeal and did not simply endorse, without further enquiry, the lower court's findings (see Helle v. Finland , 19 December 1997, §   60, Reports of Judgments and Decisions 1997 ‑ VIII). The Court reiterates that its task is not to examine whether the applicant should have been granted leave to appeal. This question is primarily a matter for regulation by national law and it is, in principle, for the national courts to assess the grounds for granting leave to appeal. The Court's task is to ascertain whether the proceedings as a whole were fair (see, for example, Doorson v. the Netherlands , 26 March 1996, §   67, Reports of Judgments and Decisions 1996 ‑ II). The Court finds that the matter complained of does not disclose any appearance of a violation of the applicant's rights set out in Article 6 § 1 of the Convention. It follows that these complaints must be rejected as being manifestly ill-founded within the meaning of Article 35 §§ 3 and 4 of the Convention. For these reasons, the Court unanimously   Takes note of the terms of the respondent Government's declaration in respect of the length of proceedings complaint under Article 6 § 1 of the Convention and of the modalities for ensuring compliance with the undertakings referred to therein; Decides to strike the application out of its list of cases in so far as it relates to the above complaint in accordance with Article 37 § 1 (c) of the Convention; Declares the remainder of the application inadmissible.   Fatoş Aracı   Nicolas Bratza Deputy Registrar   President