FOURTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 61560/00 by Kalevi HAUTAKANGAS against Finland

The European Court of Human Rights (Fourth Section), sitting on 4 May 2004 as a Chamber composed of:

Sir Nicolas Bratza , President , Mr M. Pellonpää , Mrs V. Strážnická , Mr J. Casadevall , Mr S. Pavlovschi , Mr J. Borrego Borrego , Mrs E. Fura-Sandström, judges , and Mr M. O'Boyle , Section Registrar ,

Having regard to the above application lodged on 11 September 2000,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Kalevi Hautakangas, is a Finnish national, who was born in 1948 and lives in Mutala.

A. The circumstances of the case

1. Injury compensation proceedings

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

The applicant sustained injuries to his shoulder, arms and wrists in an accident on 9 March 1994 while driving a kick sled. An insurance company granted the applicant a daily allowance ( päiväraha, dagpenning ) for 100 % reduction of his working capacity from 11 March 1994 to 8 March 1995.

As the applicant apparently had continued problems, especially with his right wrist, he submitted medical opinions to the insurance company, applying for a continued daily allowance. On 14 June 1995 the insurance company cancelled the daily allowance (and denied the compensation claim for loss of income) as from 8 March 1995 maintaining that the applicant's working capacity was reduced by less than 10 % and that he was able to work at his post as technical director in a company.

The applicant sought medical help in 1996 and participated, inter alia , in a rehabilitation examination. Right elbow nerve damage and signs of damage to the right wrist as well as depression were diagnosed in a medical opinion dated 29 April 1996. The applicant also underwent an isotope survey on 7 January 1997 and submitted to the insurance company a medical opinion dated 7 March 1997 regarding his hands and wrists. On 22 October 1997 the insurance company upheld its previous finding and decided not to extend the applicant's daily allowance after 8 March 1995.

On 18 November 1997 the insurance company corrected its previous decision of 22 October 1997 so as to grant the applicant a disability pension for 100 % reduction of working capacity from 9 March to 31 March 1995.

The applicant appealed to the Accident Board ( tapaturmalautakunta, olycksfallsnämnden ) requesting a disability pension ( tapaturmaeläke, olycksfallspension ). He relied, inter alia , on a medical opinion in which he was regarded as unfit to work until 31 March 1995; on a medical opinion of 20 April 1995, in which he was regarded as unfit to work for the following year; and on documents from the rehabilitation examination in 1996.

The insurance company submitted in its observations that the applicant was not entitled to compensation after 31 March 1995. It maintained that the accident had caused impact injuries to the applicant's left shoulder joint, left forearm and both wrists. The applicant claimed that he had sustained injuries in addition to his shoulder, neck, right shoulder joint and right forearm, requesting a disability pension as from 1 April 1995 with interest.

The insurance company further adduced a medical opinion dated 11 December 1997 in which the applicant was regarded as unfit to work due to depression until 30 June 1998. The company maintained that the applicant's neck strain and depression were not caused by the accident on 9 March 1994 and that the elbow nerve damage, which was caused by the said accident, was so mild that it did not render the applicant incapable to work.

On 16 April 1998 the Accident Board upheld the insurance company's decision of 18 November 1997. It reasoned its decision as follows:

“Based on the medical evidence submitted [the applicant] has sustained impact injuries to both his wrists, left shoulder area and left forearm area as well as damage to his right elbow nerve as a result of the accident on 9 March 1994. These injuries have not reduced his working capacity by at least 10 % as from 31 March 1995 and [the applicant] is therefore not entitled to disability pension pursuant to section 18, subsection 2 of the Act on Accident Insurance. [The applicant] must be regarded as capable of working as a managing director/technical director at his post. The Accident Board holds that [the applicant's] present difficulties with his right hand and arm are to a high degree of probability not caused by the accident on 9 March 1994, given that hardly any tissue damage has been found in the magnetic scan of his right hand or in the ENMG-examination. The left elbow nerve damage, for which the applicant has received compensation from the insurance company, is mild and the Accident Board holds that it is probably sickness-related. The Accident Board further finds that [the applicant's] depression, which reduces his working capacity, was not caused by the accident of 9 March 1994, or by the subsequent injuries. Initially no neck strain was found and neither had any damage to [the applicant's] right shoulder joint been reported in connection with the accident.”

The applicant appealed to the Insurance Court requesting a disability pension as from 31 March 1995 with interest. The Insurance Court received two medical opinions dated 10 February 1998 and 13 July 1998 respectively and a certificate indicating that the applicant had tried to find employment on 9 January 1998. According to the Insurance Court's decision it invited observations from both parties and received letters from the applicant dated 15 October 1998. On 10 November 1998 the Insurance Court rejected the appeal and upheld the Accident Board's decision. The Insurance Court reasoned its decision as follows:

“Reasons mentioned in the Accident Board's decision. The submitted new evidence does not give rise to different conclusions.”

The applicant sought leave to appeal from the Supreme Court ( korkein oikeus, högsta domstolen ). The Supreme Court refused the applicant leave to appeal on 30 March 2000.

Following an appeal on 20 June 2000 the Ministry for Social Affairs and Health ( sosiaali- ja terveysministeriö; social- och hälsovårdsministeriet ) maintained that the insurance company had in some of its observations by mistake mentioned nerve damage in the applicant's left elbow whereas the nerve damage was in fact in the right elbow. It however noted that the mistake had not affected the outcome of the case as the appellate bodies had had access to the original medical opinions which described the injuries correctly. It also held that there was no indication of non-communication of documents on the Insurance Court's behalf.

2. Testifying in criminal proceedings

The applicant was heard as a witness before the District Court of Tampere ( käräjäoikeus, tingsrätten ) in a traffic accident case against a third party. On 7 October 1999 the District Court ordered that he be paid from the State a daily allowance for three days (453 Finnish marks (FIM)) and reimbursement of travelling expenses (FIM 1,107). On 17 June 1999 the applicant was fined FIM 500 for failure to attend the principal hearing.

The applicant appealed to the Court of Appeal of Turku ( hovioikeus, hovrätten ) requesting removal of the fine and two additional daily allowances as well as reimbursement of accommodation expenses in Tampere. On 19 May 2000 the Court of Appeal upheld the fine but granted the applicant an additional daily allowance. It ruled the request for reimbursement of accommodation expenses inadmissible because the applicant had not made the request in the District Court. The Supreme Court refused to grant the applicant leave to appeal on 21 November 2000.

B. Relevant domestic law

1. Disability pension

Pursuant to section 18, subsection 2 of the Act on Accident Insurance ( tapaturmavakuutuslaki, lag om olycksfallsförsäkring ; 608/1948) a person is entitled to a disability pension if his/her working capacity has been reduced by at least 10 % due to an injury or a sickness caused by an accident.

2. Procedure

Section 53, subsection 1 of the Act on Accident Insurance provides that appellate bodies in accident insurance matters are the Accident Board, the Insurance Court and the Supreme Court. Section 1 of the Decree on Accident Board ( asetus tapaturmalautakunnasta, förordning om olycksfallsnämnden ; 839/1981) provides that the Accident Board functions as the first appeal instance in matters concerning obligatory accident insurance.

Section 9, subsection 1 of the Insurance Court Act ( laki vakuutusoikeudesta, lag om försäkringsdomstolen ; 14/1958, as in force at the relevant time) provided that proceedings in the Insurance Court were written. The Insurance Court could however, when there were exceptional reasons, decide to hold an oral hearing.

Section 9, subsections 2 and 3 (as in force at the relevant time) contained provisions concerning, e.g., witness examination before the Insurance Court. Subsection 4 provided that in other respects proceedings in the Insurance Court were governed by provisions applicable to district courts.

Chapter 24, section 15 of the Code of Judicial Procedure ( oikeudenkäymiskaari, rättegångbalken ; 4/1734, as in force at the relevant time) provided that a judgment was required to be reasoned. The judgment must indicate the facts and legal argumentation on which the decision is based. The judgment also has to contain an account of the reasoning which led the court to hold a disputed issue established or unsubstantiated.

3. Composition of the Accident Board and the Insurance Court

Section 53 of the Act on Accident Insurance provides, inter alia , that in the Accident Board there are a full-time president, at least two vice presidents and at least three lawyer and medical doctor members. The president, vice presidents and other members bear the responsibility of a judge.

Section 2, subsection 1 of the Insurance Court Act, as in force at the relevant time, provided that there were a presiding judge and senior and junior insurance court judges ( vakuutustuomari, försäkringsdomare ) in the Insurance Court. In cases concerning, inter alia , compensation claims pursuant to the Act on Accident Insurance, there were also medically-qualified judges in the composition of the Insurance Court.

Section 10 of the Insurance Court Act, as in force at the relevant time, provided that member of the Insurance Court had to swear a judge's oath or make a corresponding affirmation.

4. Reservation

According to the reservation made by Finland in accordance with Article 64 of the Convention, as in force at the relevant time, Finland could not guarantee a right to an oral hearing in so far as Finnish laws at the time of the events at issue did not provide such a right. This applied, inter alia , to proceedings which were held before the Insurance Court as the court of final instance, in accordance with Section 9 of the Insurance Court Act (14/1958), and proceedings before the Supreme Court in accordance with Chapter 30, section 20, of the Code of Judicial Procedure. Finland withdrew the reservation on 1 April 1999.

COMPLAINTS

The applicant complains under Article 6 § 1 of the Convention that :

1. the Accident Board and the Insurance Court did not give adequately reasoned decisions, as they did not indicate the evidence and consequent facts which led to their rejection of his  appeal;

2. the Accident Board and the Insurance Court failed to communicate to him several documents which the insurance company had submitted to the Accident Board;

3. the insurance company failed to adduce several documents (approximately 300 pages) before the Insurance Court. The applicant claims to have weighed documents in the Supreme Court and in the insurance company and reached considerably different results on each occasion;

4. the Accident Board, Insurance Court and Supreme Court did not hold any oral hearings, in which regard he also invokes Article 6 § 3(d);

5. the Supreme Court did not reason its refusal of leave to appeal;

6. the length of the proceedings exceeded a reasonable time as it took almost four years for the domestic authorities to issue a final decision in the matter, which was of utmost importance to him;

7. a medical expert member of the Insurance Court was biased and did not have the required qualification to assess the applicant's evidence regarding a so-called Thermotest-analysis.

The applicant complains, without invoking any particular provision that:

8. he was not granted a per diem allowance when he was heard as a witness in civil proceedings in District Court.

THE LAW

1. The applicant complains that the Accident Board and the Insurance Court did not give adequately reasoned decisions, invoking Article 6 § 1 of the Convention, which insofar as relevant, reads as follows:

“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”

The Court considers that it cannot, on the basis of the case file, determine the admissibility of these complaints and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

2. The applicant complains under Article 6 § 1 of the Convention (see above) that the Accident Board and the Insurance Court failed to communicate to him several relevant documents which the insurance company submitted to the Accident Board.

The Court notes that the applicant has not specified which documents were allegedly not communicated to him and consequently, how this alleged non-communication may have affected the proceedings. This part of the complaint is accordingly unsubstantiated and must be rejected as manifestly ill-founded pursuant to Article 35 § 3 and 4 of the Convention.

3. The applicant complains that the insurance company failed to adduce several documents before the Insurance Court. The Court notes that the Convention does not guarantee rights with respect to, e.g., private insurance companies and rejects this part of the application as incompatible ratione personae pursuant to Article 35 § 3 and 4 of the Convention.

4. The applicant complains, invoking variously Article 6 §§1 and 3(d) of the Convention, that the Accident Board, the Insurance Court and the Supreme Court did not hold oral hearings. As Article 6 § 3(d) applies only where an applicant is charged with a criminal offence, the Court observes that these complaints fall to be examined under Article 6 § 1 alone.

The Court notes that by its terms the scope of the Finnish reservation was, at the relevant time, limited to relieving, e.g. , the Insurance Court and Supreme Court from the obligation to hold an oral hearing and consequently finds that the reservation was valid and applicable to the Insurance Court and Supreme Court in the present case (see Helle v. Finland , judgment of 19 December 1997, Reports of Judgments and Decisions 1997 ‑ VIII, § 44; Tamminen and Tammelin v. Finland , (dec.) no. 33003/96, 28 September 1999).

As regards the Accident Board the Court notes that the reservation did not expressly mention it. It observes, however, that in Helle v. Finland   no violation of Article 6 § 1 of the Convention was found as an oral hearing before the Supreme Administrative Court would have sufficed to satisfy the requirements of Article 6 § 1 of the Convention in a situation where a lower judicial body had not held an oral hearing (see the above-cited judgment, §§ 45-47  and also the Commission's report of 15 October 1996, §§ 53-59). Similarly, in the present case, an obligation to hold an oral hearing cannot be re-imposed on the Insurance Court or the Supreme Court during the subsistence of the reservation's validity in order to compensate for the absence of such a hearing at a lower instance in the domestic legal order.

The Court accordingly rejects these complaints as incompatible ratione materiae pursuant to Article 35 § 3 and 4 of the Convention.

5. As regards the alleged lack of reasoning of the Supreme Court's decision to refuse grant to appeal, the Court notes that an examination under Finnish law as to whether leave to appeal to the Supreme Court shall be granted only amounts to an examination as to whether the conditions under Chapter 30, section 3, para. 1 of the Code of the Judicial Procedure are fulfilled. It does not amount to an examination of the merits of the appeal. The leave to appeal examination by the Finnish Supreme Court did not, therefore, involve a determination of the applicant's civil rights within the meaning of Article 6 § 1 of the Convention (see T.H. and S.H. v. Finland , no. 19823/92, Commission decision of 9 February 1993, unpublished). It follows that this aspect of the complaint must be rejected as incompatible ratione materiae pursuant to Article 35 § 3 and 4 of the Convention.

6. Insofar as the applicant complains that the length of the proceedings exceeded a reasonable time, the Court observes that the Accident Board issued its decision on 16 April 1998, the Insurance Court on 10 November 1998 and the Supreme Court on 30 March 2000. The case-file does not indicate when the case became pending before the Accident Board: however, the contested decision of the insurance company was dated 22 October 1997. In these circumstances the Court finds that there is no indication of a failure to comply with the reasonable time requirement in Article 6 § 1 of the Convention and rejects this part of the application as manifestly ill-founded pursuant to Article 35 § 3 and 4 of the Convention.

7. As regards the applicant's complaints under Article 6 of the Convention that a medical member of the Insurance Court was biased and unqualified, the Court notes that the applicant has not substantiated his claims about bias. Furthermore, the necessary qualifications of Insurance Court judges are primarily a matter for regulation by national law. There is nothing in the case-file to support any suggestion that the medical member did not satisfy the conditions set by national law for sitting as a competent member of the court. These complaints must therefore be rejected as manifestly ill-founded pursuant to Article 35 § 3 and 4 of the Convention.

8. Finally, insofar as the applicant complains that he was not granted a per diem allowance as a witness in the District Court, the Court notes that the Convention does not guarantee a right to compensation for witnesses. The complaint must therefore be dismissed as incompatible ratione materiae pursuant to Article 35 § 3 and 4 of the Convention.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant's complaints concerning the lack of adequate reasoning in the decisions of the Accident Board and the Insurance Court;

Declares the remainder of the application inadmissible.

Michael O'Boyle Nicolas Bratza Registrar President