FOURTH SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 27323/95 by Mauno PELTONEN against Finland

The European Court of Human Rights ( Fourth Section ), sitting on 16 March 2000 as a Chamber composed of

Mr G. Ress, President ,

Mr M. Pellonpää, Mr I. Cabral Barreto, Mr V. Butkevych, Mrs N. Vajić, Mr J. Hedigan, Mrs S. Botoucharova, judges , and Mr V. Berger , Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 13 March 1995 and registered on 15 May 1995,

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 regard to the Commission’s partial decision of 23 October 1997,

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 is a Finnish citizen, born in 1946 and currently residing in Pireus , Greece.

A. Particular circumstances of the case

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

In 1992 the applicant, then resident in Sweden, travelled to Egypt. In 1993 he officially moved from Sweden to Finland. In the light of this move the local social insurance office ( försäkringskassan ) in Sweden, on 26 January 1993, decided to stop paying him Swedish national pension benefits, referring to the possibility of his obtaining similar benefits from the Finnish authorities.

The applicant's request for a Finnish disability pension was refused by the Joutseno branch office of the Social Insurance Institution ( kansaneläkelaitos , folkpensionsanstalten ) on 15 June 1993 on the basis that he was not resident in Finland.

The applicant appealed, arguing that he was only temporarily staying in Egypt and that his return to Finland had been delayed due to the urgent treatment of an illness. On 17 February 1994 the Appellate Board for Social Insurance ( tarkastuslautakunta , prövningsnämnden ; “the Appellate Board”) dismissed his appeal, maintaining that in the light of the material adduced he was not resident in Finland. The Appellate Board referred to an opinion submitted by the Social Insurance Institution at the Appellate Board’s request.

The opinion of the Social Insurance Institution read as follows:

“Enclosed we are returning the documents transmitted to us and to which the case-file              concerning the appellant has [now] been appended.

[The applicant] is dissatisfied with the Social Insurance Institution’s decision to refuse him disability pension. He is claiming  [such a] pension because he no longer receives a national pension from Sweden as a result of his move to Finland on 1 February 1993. According to the Central Population Register [the applicant] has moved to Finland on 13 April 1993. De facto he did not move to Finland but resides, according to his statement, in Egypt, where he is receiving therapy authorised by the physician of the Swedish insurance office. In addition, he has been undergoing dental treatment in Egypt since December 1991 according to the physician. [The applicant] states that for the time being he is unable to travel. He has not resided at the Finnish address indicated by him.

The Social Insurance Institution is of the opinion that no such new evidence has been              submitted which would change [its] decision. It is submitted [by the Social Insurance              Institution] that the appeal should be rejected.” 

None of the material obtained from the Social Insurance Institution had been communicated to the applicant. Nor was the Social Insurance Institution’s opinion reproduced or summarised in the Appellate Board's decision.

The applicant appealed further, adducing, inter alia , an extract from the Finnish population register which was dated 6 April 1994 and indicated that he had been resident in Finland since April 1993. He contended, inter alia , that he was permanently resident in Finland, that his stay in Egypt was involuntary, due to his illness, and that he would return to Finland as soon as his state of health would so permit.

On 5 September 1994 the Insurance Court ( vakuutusoikeus , försäkringsdomstolen ) upheld the decision of the Appellate Board, having noted a further opinion submitted by the Social Insurance Institution at the Insurance Court’s request. The Insurance Court reasoned that the applicant’s stay abroad could not be considered to be of a temporary character. Accordingly, he could not be regarded as resident in Finland.

The Social Insurance Institution’s opinion to the Insurance Court read as follows:

“Enclosed we are returning the documents transmitted to us and to which has [now]

been appended the case-file concerning the appellant.

[The applicant] is dissatisfied with [the Appellate Board’s] decision to reject his appeal against the Social Insurance Institution’s decision of 15 June 1993 to refuse him a disability pension. [The applicant] is claiming a national pension from Finland because he no longer receives a basic [national] pension from Sweden as a result of his move to Finland. According to the Central Population Register [the applicant] has moved to Finland on 13 April 1993. He has been residing in Egypt at least as from December 1991. According to his own statement, [he is residing there] for health reasons following a remittal by a Swedish physician. Under Section 3 of the Act on Application of Social Security Legislation Based on Residence [ laki asumiseen perustuvan sosiaaliturvalainsäädännön soveltamisesta , lagen om tillämpning av lagstiftningen om bosättningsbaserad social trygghet 1573/1993] a person shall be considered to have his or her residence in Finland when he or she has a permanent domicile and home here and continuously and principally stays here.

The Social Insurance Institution is of the opinion that no such new evidence has been              submitted after the Appellate Board’s decision which would warrant a change of [the              latter’s] decision.

It is submitted [by the Social Insurance Institution] that the appeal should be rejected.” 

Neither the Social Insurance Institution’s opinion nor the accompanying documents had been communicated to the applicant, nor were they reproduced or summarised in the Insurance Court’s decision. The decision also made reference to various supplementary observations, whose contents and sender were not specified. The decision was dispatched to the applicant on 14 September 1994. No further ordinary appeal was open to him.

On 25 September 1996 the Insurance Court declined to nullify its earlier decision.

B. Relevant domestic law

At the relevant time the Insurance Court applied mainly the principles derived from the rules of procedure of the courts of appeal. Insofar as relevant, the Code of Judicial Procedure provided as follows. According to Chapter 25, sections 17 to 20, the opposing party was to be heard in proceedings before appellate courts. According to Chapter 25, section 19, subsection 1, a copy of the observations of the opposing party was to be forwarded to the appellant on request. According to Chapter 26, section 6, the court of appeal was to request written observations from the parties when it obtained evidence on its own initiative and such evidence could affect the decision in the case, unless such hearing of  the parties was manifestly unnecessary. As from 1 April 1999 the Insurance Court is applying the Act on Administrative Judicial Procedure ( hallintolainkäyttölaki , förvaltningsprocesslagen 586/1996) except with regard to extraordinary proceedings, in respect of which special rules apply (section 9 of the Act on the Insurance Court, as amended by Act no. 278/1999).

Under the Act on Publicity of Public Documents as in force at the relevant time ( laki yleisten asiakirjain julkisuudesta , lagen om allmänna handlingars offentlighet 83/1951) documents drawn up and issued by an authority, or which had been submitted to an authority and were still in that authority's possession, were public (section 2, subsection 1). An exception to the rule of full publicity was made, inter alia , for medical and similar reports, which were accessible to the public only with the consent of the person they related to (section 17). The refusal of access to a document could be submitted for reconsideration by the authority refusing such access, following which there lay an appeal under the general rules for appeals against a decision of that authority. If no right of appeal existed under such general rules, an appeal could be lodged with the superior authority. If no such authority existed, an appeal against a state authority's decision could be lodged with the Supreme Administrative Court. An appeal against a decision by another authority could be lodged with a county administrative court ( lääninoikeus , länsrätt ) (section 8, subsection 1). As of 1 December 1999 the Act on Publicity of Public Documents has been replaced by the Act on Publicity of the Activities of Public Authorities ( laki viranomaisten toiminnan julkisuudesta , lagen om offentlighet i myndigheternas verksamhet 621/1999).

COMPLAINTS

Following the partial decision of the European Commission of Human Rights rejecting part of the application, the following complaints remain to be considered:

1. The applicant complains that he was denied a fair hearing in the proceedings regarding his request for pension from Finland. He refers to the fact that before rejecting his appeals the Appellate Board and the Insurance Court did not communicate to him the material obtained from other sources. He invokes Article 6 § 1 of the Convention.

2. The applicant complains that the supplementary observations obtained by the Insurance Court, allegedly unknown to him, might consist of his private correspondence, which would then have been revealed in violation of Article 8 of the Convention.

PROCEDURE

The application was introduced before the European Commission of Human Rights on 13 March 1995  and registered on 15 May 1995.

On 23 October 1997 the Commission decided to communicate to the respondent Government the applicant’s complaints concerning the alleged unfairness of the pension proceedings and the alleged interference with his correspondence, and to declare the remainder of the application inadmissible.

The Government’s written observations were submitted on 15 January 1998. The applicant replied on 11 March 1998.

On 1 November 1998, by operation of Article 5 § 2 of Protocol No. 11 to the Convention, the case fell to be examined by the Court in accordance with the provisions of that Protocol.

THE LAW

1. The applicant complains that he was denied a fair hearing in the proceedings regarding his request for a pension from Finland. He refers to the fact that before rejecting his appeals the Appellate Board for Social Insurance and the Insurance Court did not communicate to him the material obtained from other sources. He invokes Article 6 § 1 of the Convention which reads as follows:

"In the determination of his civil rights ..., everyone is entitled to a fair …hearing ... by [a] tribunal established by law. ..."

The Government submit that the complaint is manifestly ill-founded. The Social Insurance Institution’s opinions primarily referred to the applicant’s appeals and subsequent observations as well as to the facts of the case. The opinions further included a note that no new evidence affecting the outcome of the case had been presented, and a brief recommendation to reject the appeal. The opinions did not reveal any facts which might have affected the outcome of the case, nor was any fresh evidence adduced in relation to those facts. The opinions essentially contained a proposal to reject the applicant’s appeal. Both appellate bodies having reproduced the essence of the Social Insurance Institution’s opinions, the applicant became aware of their existence and was afforded the possibility of acquainting himself with their contents. The applicant’s de facto place of residence was at no stage unclear, as he did not claim in his appeals that he had actually been residing in Finland after leaving Sweden. In the specific circumstances the non-communication of the opinions in question did not adversely affect the applicant’s capability of challenging the decision of the Appellate Board for Social Insurance before the Insurance Court. The unspecified supplementary observations referred to in the latter’s decision had been submitted by the applicant himself. 

The applicant submits that since the Social Insurance Institution’s opinions were not communicated to him he saw no need to inform the Finnish authorities that he had settled in Finland already in 1989. However, he later submitted this information in a subsequent letter and appeal.

The Court considers, in the light of the parties’ submissions, that this part of the application raises complex issues of law and fact under the Convention, the determination of which should depend on an examination of the merits. The Court concludes therefore that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring it inadmissible have been established. It follows that this part of the application should be declared admissible.

2. The applicant further complains that the supplementary observations obtained by the Insurance Court, allegedly unknown to him, might consist of his private correspondence, which would then have been revealed in violation of Article 8 of the Convention. This provision reads as follows:

"1. Everyone has the right to respect for his private and family life, his home and              his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or              morals, or for the protection of the rights and freedoms of others."

The Government consider that no issue arises under Article 8 on account of the handling of supplementary observations which the applicant himself had submitted to the Insurance Court. The applicant made no specific observations on this point.

The Court now finds it undisputed that the supplementary observations referred to in this complaint emanated from the applicant himself. In these circumstances there is no appearance of any violation of Article 8 of the Convention.

It follows that this complaint is inadmissible as being manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

For these reasons, the Court, unanimously,

DECLARES ADMISSIBLE , without prejudging the merits, the applicant ’s complaint under Article 6 § 1 of the Convention that he was denied a fair hearing in the proceedings regarding his entitlement to a disability pension;

DECLARES INADMISSIBLE the remainder of the application.

Vincent Berger Georg Ress Registrar President