KEROJÄRVI v. FINLAND
Doc ref: 17506/90 • ECHR ID: 001-45673
Document date: January 11, 1994
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EUROPEAN COMMISSION OF HUMAN RIGHTS
FIRST CHAMBER
Application No. 17506/90
Erkki Kerojärvi
against
Finland
REPORT OF THE COMMISSION
(adopted on 11 January 1994)
TABLE OF CONTENTS
Page
I. INTRODUCTION
(paras. 1-15) . . . . . . . . . . . . . . . . . . . . . . . . 1
A. The application
(paras. 2-4) . . . . . . . . . . . . . . . . . . . . . . 1
B. The proceedings
(paras. 5-10). . . . . . . . . . . . . . . . . . . . . . 1
C. The present Report
(paras. 11-15) . . . . . . . . . . . . . . . . . . . . . 2
II. ESTABLISHMENT OF THE FACTS
(paras. 16-33). . . . . . . . . . . . . . . . . . . . . . . . 3
A. The particular circumstances of the case
(paras. 16-24) . . . . . . . . . . . . . . . . . . . . . 3
B. Relevant domestic law
(paras. 25-33) . . . . . . . . . . . . . . . . . . . . . 3
III. OPINION OF THE COMMISSION
(paras. 34-53). . . . . . . . . . . . . . . . . . . . . . . . 7
A. Complaint declared admissible
(para. 34) . . . . . . . . . . . . . . . . . . . . . . . 7
B. Point at issue
(para. 35) . . . . . . . . . . . . . . . . . . . . . . . 7
C. As regards Article 6 para. 1 of the Convention
(para. 36) . . . . . . . . . . . . . . . . . . . . . . . 7
a. Whether Article 6 para. 1 is applicable
(paras. 37-44) . . . . . . . . . . . . . . . . . . 7
b. Whether Article 6 para. 1 has been violated
(paras. 45-52) . . . . . . . . . . . . . . . . . . 8
CONCLUSION
(para. 53). . . . . . . . . . . . . . . . . . . . . . . . . . 9
APPENDIX I : HISTORY OF THE PROCEEDINGS . . . . . . . . . . .10
APPENDIX II : DECISION ON THE ADMISSIBILITY. . . . . . . . . .11
I. INTRODUCTION
1. The following is an outline of the case as submitted to the
European Commission of Human Rights, and of the procedure before the
Commission.
A. The application
2. The applicant is a Finnish citizen, born in 1924 and resident in
Helsinki. He was represented before the Commission by
Mr. Markku Fredman, a lawyer practising in Helsinki.
3. The application is directed against Finland. The respondent
Government were represented by Mr. Tom Grönberg, Director General for
Legal Affairs, Ministry for Foreign Affairs, Helsinki.
4. The application concerns the fairness of proceedings before the
Supreme Court in accordance with legislation on the compensation of war
injuries. The applicant invokes Article 6 para. 1 of the Convention.
B. The proceedings
5. The application was introduced on 25 August 1990 and registered
on 29 November 1990.
6. On 7 April 1992 the Commission decided, pursuant to
Rule 48 para. 2 (b) of its Rules of Procedure, to give notice of the
application to the respondent Government and to invite them to submit
written observations on the admissibility and merits of the complaint
regarding the fairness of the compensation proceedings and the
partiality of the courts involved.
7. The Government's observations were submitted on 11 June 1992 and
the applicant's observations in reply on 29 June and 29 July 1992. On
10 July 1992 the Commission granted the applicant legal aid for the
representation of his case.
8. On 7 April 1993 the Commission declared admissible the
applicant's complaint under Article 6 para. 1 of the Convention
relating to the non-communication of documents in the proceedings
before the Supreme Court and referred the case to the First Chamber.
The remainder of the application was declared inadmissible.
9. The text of the Commission's decision was sent to the parties on
8 April 1993 and they were invited to submit such further information
or observations on the merits as they wished. The applicant submitted
observations on 17 May 1993, to which the Government replied on
18 June 1993. Supplementary observations were submitted by the
applicant on 13 July 1993 and by the Government on 15 November 1993.
10. After declaring the case admissible, the Commission, acting in
accordance with Article 28 para. 1 (b) of the Convention, also placed
itself at the disposal of the parties with a view to securing a
friendly settlement. In the light of the parties' reaction, the
Commission now finds that there is no basis on which such a settlement
can be effected.
C. The present Report
11. The present Report has been drawn up by the Commission (First
Chamber) in pursuance of Article 31 of the Convention and after
deliberations and votes, the following members being present:
MM. A. WEITZEL, President
C.L. ROZAKIS
E. BUSUTTIL
A. GÖZÜBÜYÜK
Mrs. J. LIDDY
MM. M. PELLONPÄÄ
B. MARXER
G.B. REFFI
B. CONFORTI
N. BRATZA
E. KONSTANTINOV
12. The text of this Report was adopted on 11 January 1994 and is now
transmitted to the Committee of Ministers of the Council of Europe, in
accordance with Article 31 para. 2 of the Convention.
13. The purpose of the Report, pursuant to Article 31 of the
Convention, is:
i) to establish the facts, and
ii) to state an opinion as to whether the facts found disclose
a breach by the State concerned of its obligations under the
Convention.
14. A schedule setting out the history of the proceedings before the
Commission is attached hereto as Appendix I and the Commission's
decision on the admissibility of the application as Appendix II.
15. The full text of the parties' submissions, together with the
documents lodged as exhibits, are held in the archives of the
Commission.
II. ESTABLISHMENT OF THE FACTS
A. The particular circumstances of the case
16. While serving in the Home Guard during the Winter War against the
Soviet Union from 1939 to 1940 the applicant was wounded in action.
While serving in the Armed Forces from 1941 to 1945 in the Continuation
War against the Soviet Union he was wounded a second time.
17. On account of a back injury caused by splinter the applicant
receives compensation under the 1948 Military Injuries Act
(sotilasvammalaki 404/48, lag 404/48 om skada, ådragen i militärtjänst;
hereinafter "the 1948 Act"). His degree of disability is considered to
be less than ten per cent.
18. In January 1988 the applicant requested that a higher degree of
disability be established, referring to his inguinal hernia and chronic
prostatitis. He referred to a medical report of 3 June 1987. In
May 1988 he submitted a further report.
19. On 23 August 1988 the request was rejected by the State Office
for Accident Compensation (tapaturmavirasto, olycksfallsverket;
hereinafter "the Compensation Office"), as the applicant had not
established that there had been an essential change in the
circumstances upon which his disability degree was based.
20. The applicant appealed to the Insurance Court (vakuutusoikeus,
försäkringsdomstolen), submitting further evidence such as results of
an X-ray examination and laboratory tests of 17 April 1989.
21. The Insurance Court requested an opinion from the Compensation
Office and obtained copies from the Staff of the Military District of
Western Uusimaa (Länsi-Uudenmaan sotilaspiirin esikunta, staben för
västra Nylands militärdistrikt) of the master file on the applicant and
the file pertaining to his wartime medical examinations. The documents,
which were not communicated to him for comments, showed, inter alia
that in 1940 the applicant had been treated in a military hospital for
inguinal hernia and that he had been operated on for this injury in
1943.
22. In its submission of 24 October 1988 to the Insurance Court the
Compensation Office proposed that the applicant's appeal be rejected.
This submission was not communicated to the applicant for comments
either.
23. On 19 October 1989 the Insurance Court rejected the applicant's
request for a higher degree of disability.
24. On the applicant's appeal the Supreme Court on 7 June 1990 upheld
the decision of the Insurance Court.
B. Relevant domestic law
25. Under the 1948 Act and the 1956 Act on Extended Application of
the 1948 Act (laki 390/56 sotilasvammalain soveltamisalan laajenta-
misesta, lag 390/56 angående utvidgad tillämpning av lagen om skada,
ådragen i militärtjänst) benefits such as medical care, daily
subsistence allowance, life and supplementary annuity shall be granted
inter alia to soldiers wounded in action.
26. Section 1, para. 1 of the 1948 Act provides:
(Finnish)
"Tämän lain mukaan suoritetaan korvausta palveluksesta
aiheutuneen ruumiinvamman tai sairauden johdosta, joka on
kohdannut:
1) asevelvollista ... ."
(Translation)
"Under this Act compensation shall be granted for an injury or
illness due to service carried out by:
1) a conscript ... ."
27. Section 1 of the 1956 Act extends the application of the 1948 Act
to, among others, soldiers wounded in the Winter and Continuation Wars.
28. Section 2, para. 2 of the 1948 Act, as amended by Act no. 122/67,
provides:
(Finnish)
"Mitä ... on sanottu palveluksen aiheuttamasta ruumiinvammasta,
koskee myös sairautta, jos todennäköisillä syillä voidaan päättää
palvelukseen tai työhön liittyneiden erikoisten olosuhteiden
aiheuttaneen sen taikka olennaisesti vaikuttaneen sen
ilmaantumiseen tai pahentumiseen. Sairautta, joka ilmaantuu vasta
vuoden kuluttua sen jälkeen, kun sairastuneen palvelus- tai
työsuhde on päättynyt, ei katsota palveluksen aiheuttamaksi,
jollei sitä ole pidettävä seurauksena palvelus- tai työsuhteen
aikana saadusta ruumiinvammasta tai ilmaaantuneesta sairaudesta."
(Translation)
"What has been stated ... about an injury caused by military
service also applies to an illness which may, on probable
grounds, be regarded as caused by the particular circumstances
of the service ... or provided that those circumstances have, in
an essential way, affected the appearance or the aggravation of
the illness. An illness appearing more than a year after the
termination of the service shall not be considered as caused by
the [military] service ... provided it is not to be regarded as
a consequence of an injury suffered or an illness which appeared
during that service ... ."
29. Section 2, para. 3, as amended by Act no. 180/71, reads:
(Finnish)
"Ruumiinvammaa tai sairautta, joka ilmeisesti liittyy ...
korvattavan vamman tai sairauden ... synnyttämään
poikkeukselliseen alttiuteen tai taipumukseen, pidetään
olosuhteiden mukaan joko kokonaan tai osaksi korvattavana."
(Translation)
"An injury or an illness which has an obvious connection with an
extreme susceptibility or predisposition caused by an injury or
an illness to be compensated ... shall, with regard to the
circumstances, be compensated either fully or partly."
30. Section 3 prescribes:
(Finnish)
"Korvausta ei suoriteta ruumiinvammasta tai sairaudesta, jonka
vahingoittunut tai sairastunut itse on tahallaan aiheuttanut.
Korvaus voidaan evätä tai sitä vähentää:
1) jos vahingoittunut tai sairastunut on saanut vamman tai
sairauden ollessaan rikollisessa teossa taikka jos toinen henkilö
on hänelle vamman tai sairauden tahallaan aiheuttanut, jollei
tämä ole tapahtunut hänen sotilastoimensa tai työnsä vuoksi tai
hänen suorittaessaan saamaansa tehtävää;
2) jos vamman tai sairauden syynä on ollut hänen törkeä
huolimattomuutensa tai päihtymyksensä; tai
3) jos vamma tai sairaus on johtunut siitä, että vahingoittunut
tai sairastunut ei ole noudattanut vamman tai sairauden
välttämiseksi annettuja, käytännössä yleisesti noudatettuja
ohjeita tai määräyksiä."
(Translation)
"Compensation shall not be granted for an injury or illness
deliberately caused by the wounded or ill person himself.
Compensation may be refused or lowered:
1) if the wounded or ill person was injured or fell ill in
connection with committing a criminal offence or if another
person has deliberately injured him or caused him the
illness, provided this did not happen as a result of the
person's military post or work or when he was carrying out
a mission;
2) if the injury or illness was caused by gross negligence
or drunkenness; or
3) if the injury or illness was caused by the person's failure
to comply with instructions and orders issued for the prevention
of an injury or an illness and which are generally complied
with."
31. Section 8, para. 1, as amended by Act no. 622/65, reads:
(Finnish)
"Jos vahingoittuneen tai sairastuneen työkyvyttömyysaste on
vähintään kymmenen sadalta, annetaan hänelle elinkorkoa. ..."
(Translation)
"A wounded or ill person with a disability degree of at
least 10 per cent shall be entitled to a life annuity. ..."
32. Section 29, para. 2, as amended by Act no. 304/75, reads:
(Finnish)
"Vakuutusoikeuden päätökseen, mikäli on kysymys siitä,
oikeuttaako ruumiinvamma [tai] sairaus ... tämän lain mukaiseen
korvaukseen, saa hakea muutosta korkeimmalta oikeudelta ... ."
(Translation)
"A decision by the Insurance Court in a matter concerning whether
an injury [or] illness ... shall entitle to compensation under
this Act may be appealed against to the Supreme Court ... ."
33. Chapter 30, Section 20 of the Code of Judicial Procedure
(Oikeudenkäymiskaari, Rättegångs Balk), as amended by Act no. 104/79
states:
(Finnish)
"Korkein oikeus toimittaa tarvittaessa suullisen käsittelyn, ...
[Se] voi myös määrätä, että ... kuuleminen toimitetaan muussa
tuomioistuimessa."
(Translation)
"The Supreme Court may, if necessary, hold an oral hearing, ...
[It] may also order that a hearing ... take place before another
court."
III. OPINION OF THE COMMISSION
A. Complaint declared admissible
34. The Commission has declared admissible the applicant's complaint
relating to the non-communication of documents in the proceedings
before the Supreme Court.
B. Point at issue
35. Accordingly, the issue to be determined is whether there has been
a violation of Article 6 para. 1 (Art. 6-1) of the Convention.
C. As regards Article 6 para. 1 (Art. 6-1) of the Convention
36. Article 6 para. 1 (Art. 6-1) reads, insofar as it is relevant:
"In the determination of his civil rights and obligations
..., everyone is entitled to a fair and public hearing ...
by an independent and impartial tribunal ..."
a. Whether Article 6 para. 1 (Art. 6-1) is applicable
37. The applicant submits that the dispute at issue concerned the
determination of his "civil rights". Section 3 of the 1948 Act
exhaustively prescribes the criteria for refusing compensation. These
are to be strictly adhered to. The examination of requests lodged under
the 1948 Act is, thus, a judicial and not a discretionary one. Further-
more, the system for compensating injuries suffered during military
service cannot be considered as a totally unilateral initiative by the
State, military service in Finland being compulsory, as was part of the
applicant's wartime service. Although his contribution to the
compensation system set up by the 1948 Act was not of a pecuniary
nature, it was his and his fellow soldiers' army service which made the
creation of such a scheme at all possible.
38. The Government argue that Article 6 para. 1 (Art. 6-1) is not
applicable to the dispute at issue, as it did not concern a "civil
right" of the applicant. Although the dispute did involve features of
private law in the sense that the right claimed by the applicant was
a personal, economic and individual right, the public law features of
the dispute were numerous. The social protection under the 1948 Act is
a unilateral initiative by the State and has few affinities with
ordinary insurance schemes. It is furthermore financed exclusively by
the State.
39. The Commission recalls that, as a general rule, Article 6 para. 1
(Art. 6-1) is applicable in the field of welfare assistance (see Eur.
Court H.R., Schuler-Zgraggen judgment of 24 June 1993, Series A
no. 263, para. 46). In particular, State intervention alone is not
sufficient to establish that Article 6 para. 1 (Art. 6-1) is
inapplicable. Other considerations might argue in favour of the
applicability, such as whether or not the applicant was affected in his
relations with the administrative authorities as such, acting in the
exercise of discretionary powers, or whether he suffered an
interference with his means of subsistence. It must further be
determined whether the applicant was claiming an individual, economic
right flowing from specific rules laid down by law. Finally, it is also
of relevance whether the protection of that right is organised in such
a way that at the judicial stage disputes over it come within the
jurisdiction of an ordinary court (loc. cit., see also Eur. Court H.R.,
Salesi judgment of 26 February 1993, Series A no. 257-E, para. 19).
40. In the present case the compensation scheme under the 1948 Act
is solely financed by the State. In this respect it can be considered
a unilateral initiative taken by the State. However, although, under
domestic law, the compensation system is of a public law character, the
1948 Act prescribes that benefits shall be paid to a soldier considered
wounded in action or when there is causal link between his military
service and a subsequent illness. Thus, under certain conditions, there
is an individual and economic right to the benefits in question.
41. The dispute in the present case arose as the applicant, referring
to fresh medical evidence, requested that a higher degree of disability
be established, this making him eligible for additional benefits such
as life annuity in accordance with Section 8 of the 1948 Act. Those
benefits must be considered to constitute an individual, economic right
for the applicant flowing from specific rules in the 1948 Act. There
was, moreover, a genuine dispute ("contestation") over the right in
question.
42. The examination of the conditions for raising the applicant's
disability degree was governed by Section 2, paras. 2 and 3 as well as
by Section 3 of the 1948 Act. It was thus bound by legal criteria and
not based on discretionary considerations.
43. Moreover, the dispute at issue was determined by two judicial
bodies, first by the Insurance Court and finally by the Supreme Court.
44. The Commission therefore concludes that Article 6 para. 1
(Art. 6-1) applies in this case.
b. Whether Article 6 para. 1 (Art. 6-1) has been violated
45. The applicant complains that he did not receive a fair hearing
of his appeal. The Supreme Court was under an obligation to correct the
procedural fault of the Insurance Court by communicating the documents
to him ex officio. It must follow from Finland's reservation to
Article 6 para. 1 (Art. 6-1) of the Convention as to the right to an
oral hearing before, inter alia, the Supreme Court that this court
should instead resort to other procedural safeguards such as
communicating documents for comments in writing.
46. The Government admit that the Supreme Court based its decision
at least partly on the documents submitted by the military authorities.
They argue, however, that Article 6 para. 1 (Art. 6-1) has not been
violated, given that the non-communicated documents were of no
significance to the outcome of the applicant's appeal. The Government
refer to investigations carried out in the course of the proceedings
before the Commission.
47. The Commission recalls that it is not its task to substitute its
own assessment of the facts for that of the national courts. The
Convention organs' task is to ascertain whether the proceedings,
including the way in which evidence was dealt with, were fair within
the meaning of Article 6 para. 1 (Art. 6-1) (cf. Eur. Court H.R., Dombo
Beheer judgment of 27 October 1993, Series A no. 274, para. 31).
48. The Commission further recalls that the requirement of "equality
of arms" inherent in the concept of a "fair hearing" implies that each
party must be afforded a right to participate properly in the
proceedings as well as a reasonable opportunity to present his case
under conditions which do not place him at a substantial disadvantage
vis-à-vis his opponent (cf. Eur. Court H.R., Feldbrugge judgment of
29 May 1986, Series A no. 99, pp. 17-18, para. 44 and the above-
mentioned Dombo Beheer judgment, paras. 32-33).
49. Turning to the present case the Commission finds it established
that the documents not communicated to the applicant by the Supreme
Court consisted of an opinion on his appeal to the Insurance Court
submitted by the Compensation Office, which had rejected the
applicant's request and thus could be seen as the applicant's opponent
in the appeal proceedings. As admitted by the Government, the documents
further included the applicant's master and medical files submitted to
the Insurance Court by a regional military headquarters. As further
admitted by the Government, at least the last-mentioned documents
formed part of the basis for the Supreme Court's consideration of the
applicant's appeal.
50. It is not for the Commission to determine whether or not the
documents had any bearing on the refusal of the applicant's appeal.
Rather, the concept of a "fair hearing" would have required that the
possibility to assess the significance of the documents as well as the
need to present comments in writing or to request an oral hearing for
this purpose be left to the applicant himself. No such opportunity was,
however, given to him (cf. the above-mentioned Feldbrugge judgment,
pp. 16-17, para. 42 and, e contrario, the above-mentioned Schuler-
Zgraggen judgment, para. 52).
51. In these circumstances the Commission concludes that the
conditions under which the applicant could present his appeal did not
allow for the applicant's proper participation in the proceedings
before the Supreme Court and placed him at a substantial disadvantage
vis-à-vis the Compensation Office. Whether or not the documents have
later been found to be inconclusive can be of no relevance to the
assessment of the fairness of the proceedings before the Supreme
Court.
52. Accordingly, there has been a violation of Article 6 para. 1
(Art. 6-1) on account of the Supreme Court's failure to communicate the
opinion of the Compensation Office as well as the applicant's master
and medical files to him prior to deciding his appeal.
CONCLUSION
53. The Commission concludes, unanimously, that in the present case
there has been a violation of Article 6 para. 1 (Art. 6-1) of the
Convention.
Secretary to the First Chamber President of the First Chamber
(M.F. BUQUICCHIO) (A. WEITZEL)
APPENDIX I
HISTORY OF THE PROCEEDINGS
Date Item
_________________________________________________________________
25 August 1990 Introduction of the application
29 November 1990 Registration of the application
Examination of admissibility
7 April 1992 Decision of the Commission to invite
the Government to submit
observations on the admissibility
and merits of part of the
application
11 June 1992 Government's observations
29 June 1992 Applicant's observations in reply
29 July 1992 Applicant's supplementary
observations
10 July 1992 Commission's decision to grant legal
aid to the applicant
7 April 1993 Commission's deliberations and
decision to declare the
application in part admissible and
in part inadmissible and decision
to refer the case to the First
Chamber
Examination of the merits
8 April 1993 Decision on admissibility
transmitted to the parties
17 May 1993 Applicant's further observations on
the merits
18 June 1993 Government's further observations
on the merits
13 July 1993 Applicant's supplementary
observations on the merits
19 October 1993 Commission's consideration of the
state of proceedings
15 November 1993 Government's supplementary
observations on the merits
8 December 1993 Consideration of the state of
proceedings
11 January 1994 Commission's deliberations on the
merits, final vote and adoption of
the Report