FOURTH SECTION

DECISION

Application no. 50875/99 by Markku Juhani IMMONEN against Finland

The European Court of Human Rights (Fourth Section), sitting on 27 May 2003 as a Chamber composed of

Sir Nicolas Bratza , President , Mr M. Pellonpää , Mrs E. Palm , Mr M. Fischbach , Mr J. Casadevall , Mr S. Pavlovschi ,

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

Having regard to the above application lodged on 4 June 1999,

Having deliberated, decides as follows:

THE FACTS

The original applicant, Mr Markku Juhani Immonen, was a Finnish national, who was born in 1949 and died on 18 March 2002. His heirs are his widow, Mrs Pirkko-Liisa Manninen, and his sons Jarno and Hannu Immonen. They are represented before the Court by Mr Panu Voutilainen, a lawyer practising in Espoo. The respondent Government are represented by their Agent, Mr Arto Kosonen, Director, Ministry of Foreign Affairs.

A. The circumstances of the case

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

The applicant is an aircraft mechanic who had an accident at work on 14 January 1993 when he fell three and a half metres down from a ladder which was situated on top of a van. He was taken to hospital where he was diagnosed, inter alia , with concussion. No brain injury was found in a computed tomography (CT) scan.

According to the insurance company’s decision of 16 June 1993, the applicant’s insurance scheme covered the expenses and loss of income until 30 April 1993 as he was found to be unable to work due to the accident until that date. The applicant’s disability as from that date onwards was found to have reduced to under ten per cent (10 %) of his full capacity. It was, thus, decided that the applicant’s medical expenses and loss of income would no longer be refunded from the insurance scheme.

The applicant appealed against the insurance company’s decision to the Board for Accident Compensation ( tapaturmalautakunta , olycksfallsnämnd ). He argued that his disability, caused by brain injuries he suffered in the accident, prevented him from working. He submitted several medical statements in support of his appeal, according to which further medical examinations carried out in his case had revealed that he was suffering from a permanent brain injury caused by the accident and was, thus, unable to continue in his previous work as an aircraft mechanic.

On 30 November 1993 the Board refused the applicant’s appeal without an oral hearing which the applicant had requested. It found that the applicant’s symptoms were not likely to have been caused by the accident. As the CT scan carried out shortly after the accident had revealed no signs of brain injury, the applicant had failed to prove that he was suffering from a brain injury caused by the accident.

The applicant appealed against the Board’s decision to the Insurance Court ( vakuutusoikeus , försäkringsdomstol ), submitting new medical evidence in support of his appeal. He also requested an oral hearing. In its decision of 15 August 1995 the Insurance Court ordered the insurance company to pay the applicant a daily allowance in compensation for his lost income for the period of time of the medical examinations, i.e. until 31 May 1994. It refused the rest of the applicant’s appeal without an oral hearing, finding that the applicant has not been diagnosed with a brain injury which had been caused by the accident in question.

On 7 December 1998 the Supreme Court ( korkein oikeus , högsta domstolen ) refused the applicant leave to appeal, after having requested observations from the National Board of Medicolegal Affairs ( terveydenhuollon oikeusturvakeskus , rättskyddscentralen för hälsovården ) in the applicant’s case. Two expert opinions were attached to the Board’s observations. According to the first one, the applicant’s brain had been injured in the accident, causing his disability. According to the second opinion, the accident had caused the applicant at most a mild brain injury, if any. Even though the applicant was to be regarded as permanently disabled, it was found that the brain injury was not the main cause of his disability.

The applicant died on 18 March 2002.

B. Relevant domestic law

According to Section 9, subsection 1, of the Insurance Court Act ( laki vakuutusoikeudesta , lagen om försäkringsdomstolen 14/58) as in force at the relevant time, the proceedings before the Insurance Court were written. However, the Insurance Court could for special reasons decide to hold an oral hearing where the parties, witnesses and experts could be heard. It could also request that evidence be taken by an ordinary court of first instance.

According to Section 53(b) of the Accident Insurance Act ( tapaturmavakuutuslaki , lagen on olycksfallsförsäkring 608/48), one who wants to appeal against the Insurance Court’s decision to the Supreme Court must seek leave to appeal, which can be granted under the provisions set out in Chapter 30, Section 3, of the Code of Judicial Procedure ( oikeudenkäymiskaari , rättegångsbalk ) .

According to Chapter 30, Section 20, of the Code of Judicial Procedure, the Supreme Court may, when necessary, hold an oral hearing, where the parties, witnesses and experts may be heard, and other evidence may be taken.

COMPLAINTS

The applicant complained under Article 6 § 1 of the Convention that he did not have a fair hearing by an independent and impartial tribunal. He refers in this respect to the following aspects:

1. The length of the proceedings was excessive. In particular, it took the Supreme Court three years and four months to refuse him leave to appeal.

2. The Board for Accident Compensation and the Insurance Court did not give adequate reasons for their decisions concerning the applicant’s alleged inability to prove that he had suffered brain damage even though the applicant had submitted numerous medical statements to that effect.

3. There was no oral hearing before the Board for Accident Compensation and the Insurance Court.

THE LAW

By letter dated 28 November 2002 the Court invited the Government to submit observations on the admissibility and merits of the case. The Government proposed, by letter dated 11 March 2003, that they were prepared to pay to the applicant’s heirs a sum of EUR 3,333 for non-pecuniary damage and a sum of EUR 2,000 for costs and expenses in full and final settlement of the matter.

By their letter to the Court of 8 April 2003 the applicant’s heirs accepted the Government’s offer and stated that they were willing to give up all further claims against the State of Finland, based on the facts of the present application.

By letter dated 16 April 2003 the Government confirmed that the settlement had been concluded on the following terms:

“The settlement has been made on ex gratia basis. The Government will pay the heirs of the applicant for non-pecuniary damage EUR 3,333 as well as for costs and expenses EUR 2,000. The heirs of the applicant declare that, subject to the fulfilment by the Government of what is stated in the settlement to be outlined, they have no further claims against the Finnish State, based on the facts of the present application.”

The Court notes that the matter has been resolved within the meaning of Article 37 § 1 (b) of the Convention. It is further satisfied that the parties’ agreement is based on respect for human rights as defined in the Convention or its Protocols (Article 37 § 1 in fine ). Accordingly, the case should be struck out of the Court’s list of cases.

For these reasons, the Court unanimously

Decides to strike the application out of its list of cases.

Michael O’Boyle Nicolas Bratza Registrar President