FOURTH SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 59578/00 by Mirja ILVESVIITA-SALLINEN against Finland

The European Court of Human Rights (Fourth Section), sitting on 10 January 2006 as a Chamber composed of:

Sir Nicolas Bratza , President , Mr J. Casadevall , Mr M. Pellonpää , Mr R. Maruste ,

Mr S. Pavlovschi , Mr J. Borrego Borrego , Mr J. Šikuta , judges , and Mr M. O ’ Boyle , Section Registrar ,

Having regard to the above application lodged on 4 June 2000 ,

Having regard to the partial decision of 22 June 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, Mrs Mirja Ilvesviita-Sallinen, is a Finnish national, who was born in 1942 and lives in Tampere . She was represented before the Court by Janne Vuorilahti, a lawyer pracitisig in Tampere . 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 and as they appear from the documents , may be summarised as follows.

On 4 July 1994 , the applicant had an accident in the street and su ffered injuries to her head and right shoulder. An insurance company granted her a daily allowance ( päiväraha , dagpenning ) for 100 % reduction of her working capacity until 3 July 1995 and a n accident pension ( tapaturmaeläke , olycksfallspension ) for 100 % reduction of her working capacity from 4 July 1995 to 29 February 1996.

By its decision of 19 February 1996 the insurance company granted the applicant a further accident pension for 100 % reduction of her working capacity for March 1996. As to the period 1 April 1996 onwards, it considered that the injuries sustained in the accident reduced the applicant ’ s working capacity by less than 10 %. The company considered th at other medical problems rendering the applicant incapable of work ing had not been caused by the said accident. It also rejected the application for d isability compensation ( haittaraha , menersättning ) as it considered that the accident had not caused a permanent d isability of t he minimum level required for compensation .

The applicant appealed to the Accident Board ( tapaturmalautakunta , olycksfallsnämnden ) , which received the insurance company ’ s observations and communicated them to the applicant . She submitted a further written medical opinion of 24 June 1996 .

On 1 July 1996 the Accident Board rejected the appeal, giving the following reasons:

“S ection 18a (1) of the Accident Insurance Act ( tapaturmavakuutuslaki , lagen om olycksfallsförsäkring , 608/1948 ) provides that d isability compensation shall be paid to an employee, who is not entitled to a daily allowance and who as a result of an accident has suffered a permanent general d isability due to injury or illness . A general d isability is to be considered as permanent when the injury or the state of ill ness will not improve according to medical probability.

According to ... section 1 (1), the lowest level 1 d isability is applicable only t o eye and finger injury and ill ness. As to other kind s of injury, d isabilities that do not attain level 2 cannot be assessed due to their minor nature .

According to the medical information on the applicant ’ s injuries presented in the case, she is not suffering from a permanent general d isability attaining level 2.

According to the information presented in the case, the scratches on the a pplicant ’ s forehead, the strain in her right shoulder, forearm and shoulder joint reduce d working capacity by less than 10 % after 31 March 1996 . Thus, the applicant is not entitled to an accident pension after th at date . As for the injuries sustained in the accident , she is to be considered to be fit to work as a typist and a salesperson in her own company as from 31 March 1996 .

The applicant ’ s incapacity to work and the medical expenses from 31 March 1996 have been caused by a chronic symptom complex , depression, insomnia and scoliosis, which do not relate to the accident and which do not give rise to an entitle ment to accident compensation.

... ”

The applicant appealed to the Insurance Court ( vakuutusoikeus , försäkringsdomstolen ), claiming, inter alia , a n accident pension from 1 April 1996 . She underlined , referring to several medical reports , that the chronic symptom complex had been caused by the accident. She adduced further medical evidence and filed further submissions on 8 August 1996 , 14 May 1997 , 20 November 1997 , 8 December 1997 and 9 January 1998 .

The Insurance Court received the insurance company ’ s observations, which were communicated to the applicant for comment.

According to the applicant Dr S., on 11 April 1997 , sent a written medical opinion directly to the Insurance Court upon her request. In December 1997 she found out by chance that the opinion submitted to the court had included the diagnosis F45.4. The copy, which Dr S. sent to the applicant ’ s representative, did not contain that diagnosis.

In its decision of 10 February 1998 the Insurance Court noted that the applicant had submitted photographs, an article in a periodical and several fresh written medical opinions as evidence. The court upheld the Accident Board ’ s decision, giving the following reasons:

“ The reasons are mentioned in the Accident Board ’ s decision. The submitted new evidence does not give rise to different conclusions. The Insurance Court finds, having regard to the evidence , that the displacement of the shoulder blade did not result f rom the accident and therefore it does not give rise to an entitle ment to compensation based on the Accident Insurance Act. ”

The applicant sought leave to appeal from the Supreme Court, which re ceived observations from the National Board of Medico - legal Affairs and observations in reply from the insurance company and the applicant. At this point the applicant requested that the Supreme Court hold an oral hearing with a view to hearing her physician H. She also wanted to be heard in person. The applicant filed several further submissions , on 26 March 1999 , 22 October 1999 and 11 November 1999 .

By its decision of 7 December 1999 the Supreme Court refused leave to appeal.

Subsequently, apparently in June 2000, the applicant lodged an application for an annulment, inter alia , on the strength of evidence that had not been at the courts ’ disposal during the previous proceedings. She requested on oral hearing with a view to hearing medical doctors as witnesses. She also wanted to be heard in person. By its decision of 3 May 2001 the Supreme Court transferred the application to the Insurance Court .

By its decision of 3 September 2002 the Insurance Court, refusing the request for a n oral hearing as manifestly unnecessary having regard to the character of extraordinary appeal proceedings, rejected the application for a n annulment as it considered that there were no grounds for a re - examin ation of the case. The Insurance Court reasoned, inter alia :

“... the mere fact that the treating doctors and the Insurance Court have reached different conclusions in their assessments of the causality between the accident and the [applicant ’ s] health problems does not mean that the Insurance Court ’ s decision was based on incorrect or insufficient information or that it was contrary to the law, and that the decision should be annulled or that it would prevent [this court from] examining the case on the documents.”

The applicant sought leave to appeal, maintaining that she had the right to an oral hearing. On 10 June 2003 the Supreme Court refused leave to appeal.

B. Relevant domestic law and practice

1. Procedure

Section 16 (2) of the then Constitution ( Suomen hallitusmuoto , Regeringsform för Finland; 94/1919 ) provided that a decision must be reasoned. A new similar provision can be found in section 21 (2) of the Constitution of Finland ( Suomen perustuslaki , Finlands grundlag ; 731/1999).

A t the relevant time chapter 24, section 15 ( 1064 / 1991 ) of the Code of Judicial Procedure ( oikeudenkäymiskaari , rättegångsbalken ) provided that a judgment must be reasoned, indicat ing 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.

Section 9 of the then Insurance Court Act ( laki vakuutusoikeudesta , lagen om försäkringsdomstolen ; 14/1958) provided that proceedings in the Insurance Court were written. When there were exceptional reasons, the Insurance Court could however decide to hold an oral hearing. It also provided that the provisions concerning proceedings in general courts were, mutatis mutandis , applied to those before the Insurance Court.

2. Composition of the Accident Board

Section 1 of the Decree on the Accident Board ( asetus tapaturmalautakunnasta , förordning en om olycksfallsnämnden ; 839/1981) provides that the Accident Board functions as the first appel late 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.

O n the Accident Board there are a full-time president, at least two vice-presidents and at least three lawyer and medical doctor members as well as at least six members representing labour market organizations . The y 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 ’ organizations .

COMPLAINTS

1. The applicant complained that the Insurance Court failed to communicate to her additional notes in a medical report written by her physician S.

2. She also complained that the decisions by the domestic authorities were not duly reasoned. In particular, they failed to reason adequately why they had disregarded the medical reports favouring her case.

3. In her observations in reply of 16 November 2004 to those of the Government the applicant appeared to complain about the lack of an oral hearing in the Supreme Court in the proceedings ending with the decision of 10 June 2003 .

She relied on Article 6 § 1 of the Convention.

THE LAW

The applicant complained, under Article 6 § 1 of the Convention, about non-communication by the Insurance Court and about allegedly insufficient reasoning provided by the Accident Board and the Insurance Court. She also appeared to complain about the lack of an oral hearing before the Supreme Court in the proceedings ending with the decision of 10 June 2003 .

Article 6 § of the Convention reads in relevant part:

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”

A. The Government ’ s preliminary objections

The Government argued that the applicant had not raised the complaints concerning non-communication and insufficient reasoning at national level, thus failing to exhaust domestic remedies.

The applicant maintained that she had raised her complaints already during the domestic proceedings.

The Court reiterates that the rule of exhaustion of domestic remedies referred to in Article 35 § 1 of the Convention obliges those seeking to bring their case against the State before an international judicial or arbitral organ to use first the remedies provided by the national legal system. Consequently, States are dispensed from answering before an international body for their acts before they have had an opportunity to put matters right through their own legal system. The rule is based on the assumption, reflected in Article 13, with which it has close affinity, that there is an effective remedy available in respect of the alleged breach in the domestic system. In this way, it is an important aspect of the principle that the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights (see Handyside v. the United Kingdom , judgment of 7 December 1976, Series A no. 24, p. 22, § 48, and, mutatis mutandis , Akdivar and Others v. Turkey , judgment of 16 December 1996, Reports of Judgments and Decisions 1996-IV, p. 1210, § 65).

Article 35 § 1 also requires that 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 and, further, that any procedural means that might prevent a breach of the Convention should have been used (see Cardot v. France , judgment of 19 March 1991, Series A no. 200, p. 18, § 34).

The rule of exhaustion of domestic remedies thus requires an applicant to have normal recourse to remedies within the national legal system which are available and sufficient to afford redress in respect of the breaches alleged. In the present case the applicant appealed to the Insurance Court in August 1996 and further to the Supreme Court in April 1998, arguing in substance that the Accident Board and the Insurance Court respectively had not explained why they had not based their decisions on the medical evidence in her favour. The Court finds therefore that this complaint cannot be rejected for failure to exhaust domestic remedies. Accordingly, the Government ’ s preliminary objection must be rejected.

As regards the complaint concerning the alleged non-communication by the Insurance Court, the Court will examine the Government ’ s preliminary objection below together with the substantive complaint.

B. Applicability of Article 6 § 1 to the Accident Board proceedings

The Government, noting that the Accident Board fulfilled several requirements of a tribunal within the meaning of Article 6 § 1 of the Convention, left it to the Court to decide whether that provision applied to the proceedings before the Accident Board.

The applicant did not put forward any arguments as regards this aspect of the case.

The Court reiterates that a “tribunal” is characterised in the substantive sense of the term by its judicial function, that is to say determining matters within its competence on the basis of rules of law and after proceedings conducted in a prescribed manner. It must also satisfy a series of further requirements - independence, in particular of the executive; impartiality; duration of its members ’ terms of office; guarantees afforded by its procedure - several of which appear in the text of Article 6 § 1 itself (see, among other authorities , Belilos v. Switzerland , judgment of 29 April 1988 , Series A no. 132, § 64).

The Court notes that the Accident Board is an independent statutory appellate body where a person injured in an accident is entitled to bring his or her case for compensation. The Accident Insurance Act lays down provisions on the time limit for the appeal and on the conduct of the proceedings. The members of the Accident Board are appointed by the Council of State for a fixed term, which at the relevant time was three years, and they bear the responsibility of a judge.

Having regard to its case-law and having detected no specific element which would permit it to hold otherwise, the Court finds that the Accident Board fulfilled the requirements of a tribunal. Accordingly, Article 6 § 1 applied to the proceedings before it.

C. The substantive complaints

1. Insofar as the applicant complained about non-communication, the Government argued that she had not been placed at any disadvantage vis-à- vis her opponent, because the medical opinion in question had been provided directly to the applicant ’ s counsel by Dr S. Thus, the applicant must be considered to have been familiar with the document. In any event, the opinion did not have any effect on the Insurance Court ’ s decision as the court accepted the Accident Board ’ s reasoning according to which the incapacity for work was due to a chronic symptom complex not caused by the accident.

According to the applicant, Dr S. sent the written medical opinion in question upon her explicit request directly to the Insurance Court in April 1997. However, Dr S. allegedly issued two different versions of the opinion. He sent one version containing the diagnosis F45.4 to the Insurance Court, whereas he sent another version containing no such diagnosis to the applicant ’ s representative. According to the applicant, she and her counsel found this out some nine months later, in December 1997, following which she raised the issue with Dr S. in a telephone conversation on 17 December 1997 .

The Court observes that the applicant had knowledge of the alleged acts by Dr S. before 10 February 1998 when the Insurance Court rejected her appeal. She did not avail herself of the possibility to raise the issue before the Insurance Court during the ordinary appeal proceedings. In any event, the Court observes that Dr S. submitted the medical opinion directly to the Insurance Court upon the applicant ’ s explicit request. The respondent Government cannot be held responsible for the alleged act or omission by Dr S., a private person. There is thus no indication of any procedural unfairness as regards the manner in which the applicant ’ s case was examined in the Insurance Court.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

2. Insofar as the applicant complained about insufficient reasoning, the Government argued that in cases concerning an accident pension a detailed statement of reasons may often be difficult to provide because the assessment of the work capacity is based on an overall assessment. Nevertheless, the reasoning in the present case enabled the applicant to make effective use of her right to appeal. The Accident Board gave its conclusions on the facts and on which of the applicant ’ s injuries had been caused by the accident. It also assessed whether and for how long those injuries affected her work capacity. The Insurance Court stated that the fresh evidence before it did not change the Accident Board ’ s assessment of the applicant ’ s disability. Whether the work capacity had diminished by 10 per cent was at the court ’ s discretion.

As the decisions in the present case were not contradictory in terms, t he Government considered that the present case could be distinguished from Hirvisaari v. Finland ( no. 49684/99, 27 September 2001 ) and H.A.L. v. Finland ( no. 38267/97, 27 January 2004 ). H.A.L. directly involved the assessment of a person ’ s mental health, which was not the case here. In Hirvisaari and H.A.L. the relevant decisions were very brief and did not contain any substantive assessment of why the applicants were deemed incapable of work.

The applicant maintained that the Accident Board had erred in its assessment of her capacity for work. Although she had adduced fresh medical evidence upon appeal, the Insurance Court upheld the Accident Board ’ s decision. The medical evidence had not been taken into account and it appeared that the doctor members had not been qualified to take part in the decision-making in her case. In fact, it appeared that her appeals had not even been examined properly.

The applicant argued that her case was identical to that of Hirvisaari in the sense that the insufficient reasoning had made it difficult to appeal against the Accident Board ’ s decision.

The Court reiterates its judgment in the case of 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.”

T he Court observes that the applicant in the present case had initially been granted a daily allowance until 3 July 1995 and a n accident pension from 4 July 1995 to 29 February 1996 . Her further application for a disability pension was granted up until 31 March 1996 . As to the period from April 1996, t he insurance company and the appellate bodies considered that the injuries sustained in the accident reduced the applicant ’ s working capacity by less than 10 %. They thus considered that the other medical problems rendering the applicant incapable of work ing had not been caused by the said accident. They also considered that the accident had not caused a permanent general d isability attaining t he minimum level giving rise to an entitlement to accident compensation.

The Court further notes that the applicant sought to substantiate h er appeals by adducing various medical opinions in which h er treating doctors attested that her injuries originated in the accident. The Accident Board identified and explained the applicable legal provision s and noted the evidence adduced by the applicant . It set out its conclusions on the medical evidence. The Insurance Court also noted the fresh evidence adduced by the applicant and found that it did not give reasons to amend the Accident Board ’ s reasoning, which it thus endorsed. Therefore, even though the appellate bodies ’ 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 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 Hirvisaari v. Finland in that the Insurance Court, having endorsed the Accident Board ’ s reasoning, supplemented that reasoning. Nor was its reasoning contradictory.

As for the applicant ’ s argument that the doctor members of the appellate bodies were unqualified, the Court notes that the necessary qualifications of judges are primarily a matter for regulation by national law. There is no indication that the doctor members did not satisfy the conditions set by national law for sitting as competent members of the appellate bodies.

Th e 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.

3. Insofar as the applicant complained about the lack of an oral hearing in the proceedings before the Supreme Court, which ended by the decision of 10 June 2003, the Court reiterates that und er 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 within a period of six months from the date on which the final decision was taken.

The Court observes that the p roceedings addressed in this grievance ended with the decision rendered on 10 June 2003 . The applicant ’ s complaint in this respect was lodged with the Court in November 2004 , which is more than six months after that decision .

It follows that this complaint is introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Michael O ’ Boyle Nicolas Bratza Registrar President