FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 56451/00 by Helena KÁŇOVÁ against Slovakia

The European Court of Human Rights (Fourth Section), sitting on

29 June 2004 as a Chamber composed of:

Sir Nicolas Bratza , President , Mr M. Pellonpää , Mrs V. Strážnická , Mr R. Maruste , Mr S. Pavlovschi , Mr L. Garlicki, Mr J. Borrego Borrego , judges , and Mrs F. Elens-Passos , Deputy Section Registrar ,

Having regard to the above application lodged on 28 February 2000,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Ms Helena Káňová, is a Slovakian national, who was born in 1944 and lives in Dubnica Nad Váhom. She is represented before the Court by Mr T. Kamenec, a lawyer practising in Bratislava. The respondent Government were represented by their Agent, Mr P. Vršanský, succeeded by Mr P. Kresák as from 1 April 2003.

A. The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

In 1987 the applicant sustained an injury at work. As her health was damaged, she was granted a partial disablement pension in 1990.

In 1997 the applicant was injured in a road traffic accident. On 2 February 1998 she claimed a full disablement pension.

On 12 February 1998 the applicant’s health and ability to work were assessed by a commission established by the Pova žská Bystrica branch office of the Social Insurance Office ( Sociálna poisťovňa ). On 9 March 1998 the Bratislava central administration of the Social Insurance Office dismissed the request with reference to the conclusion reached by the above commission .

In April 1998 the applicant sought a judicial review of the decision delivered by the Bratislava central administration of the Social Insurance Office on 9 March 1998. She argued that her health was permanently damaged.

Subsequently the applicant’s health was re-assessed by a commission established by the central administration of the Social Insurance Office. In a record drawn up on 23 October 1998, t he commission reached the conclusion that the applicant was only partially disabled. The report of the commission was submitted to the Trenčín Regional Court before which the case was pending.

Before the Regional Court the applicant argued that the conclusions of the social security commissions by which her health had been assessed were contrary to the findings of doctors of the Faculty Hospital in Bratislava where she had been treated. She also requested that further evidence should be taken by ordering her examination by means of magnetic resonance.

On 30 March 1999 the Tren čín Regional Court upheld the administrative decision of 9 March 1998 after having heard the applicant. The Regional Court also had regard to documentary evidence including the above report of 23 October 1998 which, as the judgment stated, had been submitted in accordance with Section 118 of the Social Security Act of 1998 and pursuant to Section 14(b) of the Social Security State Administration Act of 1990.

In its judgment the Regional Court noted that the commission had examined both the applicant and the documents concerning her health. The court held that special medical knowledge was required for determining the point in issue, namely whether or not the applicant’s health had deteriorated to such an extent that she could not carry out any professional activity. In proceedings concerning social security claims the assessment of a person’s health was within the competence of special commissions established in accordance with the relevant law. The Regional Court held that the commission by which the applicant had been examined had assessed the applicant’s health in a comprehensive manner and that in its report of 23 October 1998 it had given relevant and sufficient reasons for its conclusions which, in the court’s view, were not contradictory.

As to the applicant’s request for her examination by means of magnetic resonance, the Regional Court noted, with reference to the case file, that the medical institution which possessed the relevant equipment had refused such examination to the applicant. The refusal was based on the fact that the post-surgery ultra-sound examination of the applicant clearly showed that there was no resistance in the area concerned. The Regional Court noted that the applicant did not raise any new argument unknown to the commission which had assessed her health and her ability to work. It therefore did not consider the taking of further evidence to be necessary.

On 27 April 1999 the applicant appealed. She claimed that the commission which had assessed her health had been biased and that there were inconsistencies between its conclusions and the existing documents relating to her health. She argued, in particular, that the Regional Court had exclusively relied on the conclusions of a commission established within the Social Insurance Office and that the latter was the defendant in the case.

On 9 July 1999 the Ministry of Health informed the applicant that it lacked power to interfere with the activities of the Social Insurance Office. The letter stated that further examinations of the applicant’s health could only be carried out upon the recommendation of a social security commission of the Social Insurance Office or, as the case might be, after the appointment of an independent expert by the court dealing with her case.

On 29 September 1999 the Supreme Court upheld the Regional Court’s decision. In its judgment the Supreme Court held, inter alia :

“Special medical knowledge is required to assess to what extent a person’s health has deteriorated. Social security commissions are empowered to carry out such assessment in the context of social security issues and also for the purpose of judicial proceedings (Section 118 of the Social Security Act and Section 14(b) of the Social Security State Administration Act). Opinions of the social security commissions are subsequently considered by courts as any other piece of evidence, that is individually and in the context of the other evidence within the meaning of Article 132 of the Code of Civil Procedure.

When assessing the evidence taken in the context of judicial proceedings, a court takes into consideration also opinions submitted by social security commissions pursuant to the statutory provisions referred to above and there is therefore no ground to consider  them as being biased as such.”

The Supreme Court noted that the commission by which the applicant had been examined had taken into account all relevant facts, including documents which the applicant had joined to her appeal against the Regional Court’s judgment. The opinion addressed the health problems of which the applicant complained and it traced the changes of her health since 1990. The social security commission gave sufficient reasons for its conclusion which, in the Supreme Court’s view, was comprehensive and without bias. The Supreme Court dismissed as unsubstantiated the applicant’s argument about alleged inconsistencies in the opinion.

B. Relevant domestic law and practice

1. The Social Security Act of 1988

Section 118 of the Social Security Act ( Zákon o sociálnom zabezpečení ) of 1988 provides that in matters relating to social security the citizens’ health and ability to work shall be assessed by the competent State authorities. When special knowledge is required and the relevant law so provides, such an assessment shall be carried out by the ministries of health and of social affairs.

2. The Social Security State Administration Act of 1990

Under Section 7(1) of the Social Security State Administration Act ( Zákon o štátnej správe sociálneho zabezpe č enia ) of 1990, the Slovak administration of social security and the district administrations of social security shall establish commissions with a view to assessing citizens’ health and capacity to work for the purposes of the Act.

Section 8(2) provides, inter alia , that the Ministry of Health shall assess a person’s health and capacity to work when the commissions established by the administration of social security are biased.

Section 14(b) provides that the Slovakian administration of social security delivers, through commissions established for that purpose, opinions which may be required in judicial proceedings relating to social security claims.

3. The Social Insurance Office Act of 1994

Under Section 2(1) of the Social Insurance Office Act ( Zákon o Sociálnej poisťovni ) of 1994, the Social Insurance Office is a public law institution.

Pursuant to Section 9, its central administration is charged with carrying out health and pension insurance as well as providing expertise for the purposes of social security claims in accordance with Section 14 and the other relevant provisions of the Social Security State Administration Act of 1990.

Section 11 provides that the central administration and the branch offices of the Social Insurance Office carry out the State administration of social security in accordance with the Social Security State Administration Act of 1990.

4. The Code of Civil Procedure

Article 17(1) provides, inter alia , that the presiding judge decides whether a court’s clerk, an expert or interpreter should be disqualified.

Pursuant to Article 120(1), parties are obliged to indicate evidence in support of their allegations. Courts may also take evidence other than that which was proposed by the parties. Courts decide on the basis of facts resulting from the evidence taken.

Article 123 gives parties the right to comment on proposals to take evidence and on the evidence which a court has taken.

Pursuant to Article 125, any means permitting the establishment of the facts of a case can serve as evidence, in particular the hearing of witnesses, expert opinions, reports and statements by authorities and legal persons, documents, inspection and the examination of parties.

Under Article 127(1), courts shall appoint an expert, after having heard the parties, when their decision depends on the assessment of facts requiring special knowledge. Paragraph 2 of Article 127 provides that courts can order that an expert opinion be reviewed by a different expert or by a scientific institution. Pursuant to Article 127(4), courts can use, in lieu of an expert opinion, a certificate or an opinion submitted by the competent authority when there is no doubt that such a certificate or opinion is correct.

Article 132 provides that a court shall assess evidence in accordance with its own considerations. In doing so it shall take into account every piece of evidence individually as well as the evidence seen as a whole in its context. It shall thereby carefully consider all facts established in the course of the proceedings including the submissions of the parties.

Article 250q(1) provides that a court dealing with a remedy against the decision of an administrative authority shall, if need be, hold a hearing. In that context it can take evidence which may be necessary for reviewing the administrative decision in issue.

Under Article 250s(2), an appeal on points of law is available against an appellate court’s decision in matters relating to social security claims. When dealing with a party’s appeal on points of law, the Supreme Court is to adequately apply the provisions of Head Three, Part Four of the Code of Civil Procedure. Those provisions govern appeals on points of law and they comprise the following relevant rules:

“Head Three

Admissibility of an appeal on points of law

Article 236

1. A final decision of an appellate court can be challenged by means of an appeal on points of law in cases provided for by law...

Article 237

An appeal on points of law against any decision of the appellate court is admissible where

a) the decision concerns a subject-matter which falls outside the jurisdiction of courts,

b) a person acting as a party to the proceedings lacked capacity to do so,

c) a party to the proceedings lacked procedural capacity and was not duly represented,

d) the same matter has been earlier determined by a final decision or where other proceedings on the same matter started earlier,

e) no request for proceedings to be started was filed despite the fact that such a request was required by the law,

f) a party has been prevented, by the appellate court’s conduct, from acting before the court,

g) the case was decided upon by a disqualified judge or where the court’s composition was incorrect...

Article 238

1. An appeal on points of law is also admissible where it concerns an appellate court’s judgment which modified the first instance court’s judgment on the merits of the case.

2. An appeal on points of law is also available against a decision of the appellate court in which the appellate court did not follow the legal opinion earlier expressed by the court of cassation on the same matter.

3. An appeal on points of law is also admissible against appellate court’s judgment confirming the first instance court’s judgment where the appellate court

a) stated in the operative part of its judgment that an appeal on points of law was admissible as the case concerned a matter of particular legal importance,

b) upheld a judgment deciding on the matter in a different manner than an earlier delivered judgment because the first instance court had been bound by the legal view of the court which had quashed such an earlier judgment...

Filing of appeal on points of law

Article 240

1. A party to the proceedings can file an appeal on points of law within one month from the binding effect of the appellate court’s decision...

Article 241

1. An appeal on points of law shall indicate ... the reasons for which the decision in question is being challenged...

2. Only the following can be invoked as reasons for an appeal on points of law:

a) flaws in the proceedings as set out in Article 237 [of the Code of Civil Procedure],

b) other flaws in the proceedings which resulted in a wrong decision on the matter,

c) a court’s decision on the basis of a factual finding which, in its substantive part, is not supported by the evidence taken,

d) a court’s decision resulting from an erroneous legal assessment of the matter.”

5. Supreme Court’s practice relating to appeals on points of law

In its decision No. 4 Cdo 6/92 of 26 March 1992 the Supreme Court held that a court’s failure to take evidence which the parties proposed could not be considered as conduct preventing the parties from acting before the court within the meaning of Article 237(f) of the Code of Civil Procedure. The decision stated that it was exclusively for the court dealing with the case to decide what evidence was to be taken. This conclusion was later confirmed in decision No. Obdo V. 56/98 of 27 November 1997.

In the above decision No. 4 Cdo 6/92 of 26 March 1992 the Supreme Court also stated that it would not examine the defendant’s objections relating to the appellate court’s failure to correctly establish the facts and to the errors of law allegedly committed by it as those were not reasons which alone rendered an appeal on points of law admissible.

In judgment No. Sdo 1/93 delivered on 1 April 1993 the Supreme Court held that, when determining the admissibility of appeal on points of law in matters relating to social security claims, Article 250s of the Code of Civil Procedure could not be interpreted without having regard to Articles 236 to 239 of the Code of Civil Procedure. The Supreme Court further examined whether the appeal on points of law in the case which related to a social security claim met the admissibility requirements laid down in Articles 237 and 238 of the Code of Civil Procedure.

6. The Administrative Proceedings Act

Section 9(1) provides that an employee of an administrative authority is disqualified from dealing with a case and from deciding on it where there can be doubts about his or her impartiality because of his or her relation to the subject-matter of the case or to the parties to the proceedings or their representatives.

Under Section 12(1), read in conjunction with Section 11(1), the question whether an employee of an administrative authority is biased is to be determined by his or her hierarchical superior.  Paragraph 2 of Section 12 provides that no appeal is available against the superior’s decision on this issue.

7. The State Liability Act of 1969

Section 1(1) of Act No. 58/1969 on the liability of the State for damage caused by a State organ’s decision or by its erroneous official action ( Z ákon o zodpovednosti za škodu spôsobenú rozhodnutím orgánu štátu alebo jeho nesprávnym úradným postupom - “the State Liability Act”) provides that the State is liable for damage caused by unlawful decisions delivered by a public authority in the context of, inter alia , civil proceedings.

Section 18(1) renders the State liable for damage caused in the context of carrying out functions vested in public authorities which results from erroneous official actions of persons entrusted with the exercise of these functions. A claim for compensation can be granted where the plaintiff shows that he or she suffered damage as a result of an erroneous action of a public authority, quantifies its amount, and shows that there is a causal link between the damage and the erroneous action in question.

COMPLAINT

The applicant complained that her right to a fair hearing had been violated in the proceedings concerning her invalidity claim. She alleged, in particular, that the principle of equality of arms had not been respected as the judicial decisions on her claim were based on the opinion reached by a commission subordinated to the Social Insurance Office, that is the defendant in the proceedings. The applicant further complained that the dismissal of her claim was arbitrary. She alleged a violation of Article 6 § 1 of the Convention.

THE LAW

The applicant complained that her right to a fair hearing had been violated in the proceedings concerning her invalidity claim. She relied on Article 6 § 1 of the Convention the relevant part of which provides:

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

The Government objected that the applicant had not exhausted domestic remedies as required by Article 35 § 1 of the Convention.

Firstly, the applicant could have challenged the Supreme Court’s judgment of 29 September 1999 by means of an appeal on points of law under Article 250s(2) of the Code of Civil Procedure relying on Article 237 of the Code of Civil Procedure and arguing that the appellate court’s finding was based on facts which, in their substantive part, were not supported by the evidence taken, and that its decision was the result of an erroneous legal assessment of the matter.

Secondly, the applicant also could have sought redress by means of an action under Section 18 of the State Liability Act of 1969.

Thirdly, the applicant could have requested that the doctor treating her be present when her health was examined in the context of the proceedings complained of. It was also open to her to challenge for bias the members of the commission under Section 9 of the Administrative Proceedings Act, to challenge experts under Article 17(1) of the Code of Civil Procedure or to submit to the courts as evidence a different opinion elaborated by a doctor of her own choice.

As to the merits, the Government submitted that the commissions assessing persons’ health and ability to work were established and acted in accordance with the Social Security State Administration Act. They elaborated opinions which served as basis for a decision, by the central administration of the Social Insurance Office, on a person’s entitlement to a social allowance relating to his or her state of health. Members of those commissions were doctors specialised in the relevant areas of medicine and they acted in the commissions on the basis of a labour contract concluded with the Social Security Office.

While admitting that members of the social security health assessment commissions were subordinated to the Social Insurance Office to a certain degree, the Government contended that the courts respected their conclusions as expert opinions of a high professional level and considered them as very reliable evidence.

In the present case, the applicant had had a sufficient opportunity to comment on the evidence before the courts. In addition, she had been free to ask an expert of her own choice to elaborate an opinion and to submit it to the courts in evidence. She could also have asked the courts to appoint an expert with a view to establishing the relevant facts.

Finally, the Government argued that the fairness of proceedings was to be considered in the light of the proceedings as a whole and that a minor inequality did not automatically involve a breach of the right to a fair hearing. They concluded that the proceedings as a whole had not been unfair and that the domestic courts’ decisions were not arbitrary.

The applicant argued that, in accordance with the Supreme Court’s case-law, a court’s failure to take evidence proposed by the parties was not a relevant reason for an appeal on points of law under Article 237(f) of the Code of Civil Procedure. As her case fell under none of the other statutory grounds for admissibility of an appeal on points of law, she was not required to use that remedy for the purpose of Article 35 § 1 of the Convention.

As regards the remedy under the State Liability Act of 1969, the applicant contended that her complaint related to unfairness of proceedings which ended in the Supreme Court’s judgment of 29 September 1999. As that judgment became final, a District Court, to which a claim for compensation under the State Liability Act would fall to be examined, had no standing to review the proceedings leading to the Supreme Court’s judgment. In particular the District Court was not in a position to determine whether or not the Supreme Court’s conduct qualified as erroneous official action, which was a prerequisite for a claim under the State Liability Act to succeed. Furthermore, the remedy invoked by the Government was neither capable of directly redressing the alleged violation of the applicant’s right to a fair hearing nor could the applicant obtain compensation for non-pecuniary damage in that context. The applicant concluded that she had exhausted domestic remedies in that she had sought a judicial review of the administrative decisions on her claim and had appealed against the first instance judgment delivered in the case.

As to the merits, the applicant submitted that the proceedings had fallen foul of the equality of arms requirement enshrined in Article 6 § 1 as the only evidence on which the courts had relied was elaborated by persons who were subordinated to the Social Insurance Office, that is the defendant in the case. The applicant drew the domestic courts’ attention to the fact that the conclusions of the commissions which had assessed her health could not be regarded as objective as they had been drawn up by employees of the defendant. In her view, the courts had decided arbitrarily, in disregard of her arguments and her request for further decision to be taken.

The Court does not consider it necessary to examine whether domestic remedies have been exhausted as required by Article 35 § 1 as, in any event, the application is inadmissible for the reasons set out below.

The principle of equality of arms – one of the elements of the broader concept of fair trial – requires each party to be given a reasonable opportunity to present his case under conditions that do not place him  or her at a substantial disadvantage vis-à-vis his or her opponent (see Dombo Beheer B.V. v. the Netherlands , judgment of 27 October 1993, Series A no. 274, p. 19, § 33, Nideröst-Huber v. Switzerland , judgment of 18 February 1997, Reports of Judgments and Decisions 1997-I, p. 107, § 23 or Morel v. France , no. 34130/96, § 27, 6 June 2000, 2000-VI). In this context, importance is to be attached to, inter alia , the appearance of the fair administration of justice. As in other aspects of Article 6, the seriousness of what is at stake for the applicant is of relevance in assessing the adequacy and fairness of the procedures (see P., C. and S. v. the United Kingdom , no. 56547/00, § 91, 16 July 2002).

According to Article 19 of the Convention, the Court’s duty is to ensure the observance of the engagements undertaken by the Contracting Parties to the Convention. In particular, it is not its function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention. Moreover, while Article 6 of the Convention guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence or the way it should be assessed, which are therefore primarily matters for regulation by national law and the national courts (see, among other authorities, Garcia Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999-I).

In the present case the applicant challenged before the courts an administrative decision concluding that her health and capacity to work had not deteriorated to such an extent that a full disablement pension could be granted to her. That administrative decision was based on the finding of a social security commission by which the applicant had been examined.

As regards the judicial proceedings complained of, the Court notes that both the Regional Court and the Supreme Court relied on the conclusions of a commission established by the central administration of the Social Insurance Office by which the applicant had been examined after she had filed a remedy against the administative decision in issue. The courts dealing with the case considered it as an item of evidence together with the other evidence available in accordance with Articles 125 and 132 of the Code of Civil Procedure. They noted that special medical knowledge was required to assess to what extent a person’s health had deteriorated and that social security commissions were empowered to carry out such assessment in the context of social security issues and also for the purpose of judicial proceedings under Section 118 of the Social Security Act and Section 14(b) of the Social Security State Administration Act.

The judgments indicate that the courts had regard to the applicant’s argument that the conclusions of the social security commissions were contrary to the findings of doctors of the Faculty Hospital in Bratislava where she had been treated. In particular, the Supreme Court noted that the second commission by which the applicant had been examined had taken into account all relevant facts, including documents which the applicant had joined to her appeal against the Regional Court’s judgment. That opinion addressed the health problems of which the applicant complained and it traced the changes of her health since 1990. The Supreme Court found that the social security commission gave sufficient reasons for its conclusion which it considered to be comprehensive and without any inconsistency having regard to the evidence available.

The Court further notes that under Article 120(1) of the Code of Civil Procedure the applicant was under an obligation to indicate evidence in support of her allegations. She had ample opportunity to submit to domestic courts arguments in support of her claim, to propose the taking of evidence which she considered appropriate and to comment on the evidence before the courts including the reports of the social security commissions. In addition, the applicant could have requested the appointment of an expert under Article 127 of the Code of Civil Procedure and, as the case might be, submitted in evidence another opinion elaborated by an expert chosen by her or suggested that the courts hear the doctors who had treated her and who, as indicated by her, were of a different opinion to the members of the social security commission.

In these circumstances, the Court finds that the applicant had a reasonable opportunity to present her case under conditions that did not place her at a substantial disadvantage vis-à-vis her opponent. The requirement of equality of arms was therefore respected in the applicant’s case. The fact that the courts ultimately relied on the conclusion reached by a social security commission established within the Social Insurance Office and refused to accept the applicant’s arguments cannot affect the position in this respect.

To the extent that the applicant may be understood as complaining that the courts dismissed her proposal for further evidence to be taken by ordering her examination by means of magnetic resonance imaging, the Court reiterates that questions relating to admissibility and taking of evidence are primarily matters to be determined by national law and courts. In the present case the domestic courts noted that the medical institution which possessed the relevant equipment had earlier refused such examination with reference to the other medical documents at hand. They therefore did not consider it necessary to order such examination of the applicant. In the light of the information available, the courts’ dismissal of the applicant’s above proposal appears to be neither arbitrary nor contrary to the requirements of a fair hearing.

To the extent that the applicant complains about the outcome of the proceedings, the Court finds no arbitrariness in the conclusions reached by the domestic courts. In these circumstances, and noting that it has only limited power to deal with alleged errors of fact or law committed by the national courts, the Court finds no basis on which to substitute its view for that of the domestic courts on this issue.

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

For these reasons, the Court unanimously

Declares the application inadmissible.

Françoise Elens-Passos Nicolas Bratza Deputy Registrar President