FOURTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 36457/97 by Juha LAMU against Finland

The European Court of Human Rights (Fourth Section) , sitting on 15 March 2001 as a Chamber composed of

Mr G. Ress , President , Mr A. Pastor Ridruejo , Mr L. Caflisch , Mr V. Butkevych , Mrs N. Vajić , Mr J. Hedigan , Mr M. Pellonpää , judges , and Mr V. Berger , Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 7 April 1997 and registered on 12 June 1997,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having deliberated, decides as follows:

THE FACTS

The applicant is a Finnish national, born in 1941 and living in Kokkola . He is represented before the Court by Ms Riitta Korpijärvi , public legal aid counsel in Kokkola .

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

Having been injured at his work place in 1989, the applicant was granted a daily allowance and subsequently a pension in accordance with the Act on Occupational Injury Insurance ( tapaturmavakuutuslaki , lagen om olycksfallsförsäkring 608/1948). On 31 January 1991 the applicant’s insurance company nonetheless refused to pay him an occupational injury pension from December 1990 onwards, since he could no longer be considered incapacitated for work by at least ten per cent.

The applicant appealed to the Board for Accident Compensation ( tapaturmalautakunta , olycksfallsnämnden ), requesting that he be granted a pension up to the end of January 1991, when his sick leave had ended. The Board obtained a written opinion from the insurance company in which it proposed that the appeal be rejected. In its decision of 13 June 1991 the Board accepted the appeal. It also referred back to the insurance company the applicant’s request to undergo an additional examination at the Foundation for the Disabled. The insurance company allegedly never issued a written decision in response to this request but refused it orally.

In light of fresh evidence of his continuing symptoms the applicant’s insurance company, on 12 March 1993, granted him an occupational injury pension for the period 30 October-31 December 1992. It refused his request for a pension for the period 1 February-17 November 1991, during which period he could not be considered incapacitated for work by at least ten per cent. His request for a pension for the period 18 November 1991-29 October 1992 and from 1 January 1993 onwards was likewise refused, since his incapacity for work during those periods had been, and was, due to a back illness and related symptoms which were not the result of his work injury.

The applicant’s appeal was refused by the Board for Accident Compensation on 15 December 1993 with the Chairman’s casting vote. In its opinion to the Board the insurance company had proposed that the appeal be rejected. It had also adduced fresh medical reports of 10 March and 5 April 1993. The Board considered, in light of the medical evidence adduced, that the decisive reason for the applicant’s incapacity for work during the two periods for which the insurance company had refused his pension request consisted of his back problems which were not causally related to his work injury.

In his further appeal to the Insurance Court ( vakuutusoikeus , försäkringsdomstolen ) the applicant adduced further medical reports of 1993 and 1994 and other evidence. The insurance company again submitted a written opinion. The Insurance Court further received two further medical reports of 9 February and 6 July 1994 as well as two reports from further examinations which the applicant had undergone in November 1993 and February 1994. It is not clear from the decision who submitted these reports.

On 29 November 1994 the Insurance Court  rejected the appeal by relying on the reasons given by the Board for Accident Compensation.

On 13 December 1996 the Supreme Court ( korkein oikeus , högsta domstolen )  refused leave to appeal.

COMPLAINTS

1. The applicant complains under Article 6 § 1 of the Convention that the proceedings were unfair. The Board for Accident Compensation allegedly failed to take into account a crucial medical report of 15 April 1993. Moreover, the Insurance Court did not communicate to him the opinion and other documentation submitted by the insurance company.

2. The applicant also complains, under the same Convention provision, that the proceedings were excessively lengthy, having lasted some three years and nine months and involving a most important source for his livelihood.

THE LAW

1. The applicant complains under Article 6 § 1 of the Convention that the proceedings were unfair in that the Board for Accident Compensation failed to consider a certain medical report and in that the Insurance Court did not communicate to him the opinion and other documentation submitted by the insurance company.

Article 6 § 1 provides, insofar as relevant, as follows:

"In the determination of his civil rights and obligations..., everyone is entitled to a fair … hearing within a reasonable time by an independent and impartial tribunal established by law. ...”

The Court has examined the application and finds that in his request for leave to appeal to the Supreme Court the applicant failed to raise either in form or in substance the complaint that is being made to the Court. The applicant has therefore not exhausted domestic remedies as required by Article 35 § 1 of the Convention. It follows that this part of the application must be rejected, in accordance with Article 35 § 4.

2. The applicant also complains, under the above-cited Article 6 § 1 of the Convention,  that the proceedings were excessively lengthy.

The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 3 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant’s complaint that the proceedings were unreasonably lengthy [Note1] ;

Declares inadmissible the remainder of the application.

Vincent Berger Georg Ress Registrar President

[Note1] Summarise the complaints without necessarily citing the invoked Convention Articles.