FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 43828/98

by Terttu KANGASNIEMI

against Finland

The European Court of Human Rights ( Fourth Section) sitting on 1 June 1999 as a Chamber composed of

Mr G. Ress, President

Mr M. Pellonpää,

Mr A. Pastor Ridruejo,

Mr L. Caflisch,

Mr J. Makarczyk,

Mr I. Cabral Barreto,

Mrs N. Vajić, Judges ,

with Mr V. Berger, Section Registrar ;

Having regard to Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 2 July 1998 by Terttu KANGASNIEMI  against Finland and registered on 12 October 1998 under file no. 43828/98;

Having regard to the report provided for in Rule 49 of the Rules of Court;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Swedish citizen, born in 1944 and living in Huddinge, Sweden. She is represented before the Court by Mr Wäinö Pietikäinen, chairman of an association for patients.

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

A. Particular circumstances of the case

Since the end of the 1980’s the applicant has suffered from various health problems, e.g. arrhythmia, blood pressure, headaches, and pain in her back and neck. In 1991, she sought compensation from her insurance company on the basis of a voluntary insurance claiming her problems were related to her work as a dentist.

On 12 July 1991, the insurance company refused her claim for compensation. The Board for Accident Compensation (tapaturmalautakunta, olycksfallsnämnd) and the Insurance Court (vakuutusoikeus, försäkringsdomstol) rejected her appeals on 18 December 1991 and 6 October 1992 respectively. The Supreme Court (korkein oikeus, högsta domstolen) refused her leave to appeal on 30 August 1993. These proceedings are later referred to as “the first set of proceedings”.

After receiving new medical statements, the insurance company reviewed the applicant’s claim for compensation and, on 12 February 1996, upheld its previous refusal.

The applicant appealed to the Board for Accident Compensation, which rejected the appeal on 14 August 1996. The proceedings before the Board were conducted in writing.

The applicant appealed to the Insurance Court requesting, inter alia , an oral hearing. The Insurance Court received a statement from the insurance company and the applicant submitted her observations to it. On 7 October 1997, the Insurance Court rejected the appeal without holding an oral hearing. It reasoned its refusal to hold an oral hearing as follows:

(translation from Swedish)

“The proceedings before the Insurance Court are written. The [Insurance] Court may, however, for special reasons, decide to hold an oral hearing. In the oral hearing parties can be heard under affirmation. Witnesses and experts can be heard under oath. The Insurance Court finds an oral hearing in this matter unnecessary as the matter is considered to be clear.”

In January 1998, the applicant lodged a complaint against the Institute for Occupational Health (työterveyslaitos, institut för arbetshygien) before the County Administrative Board of Southern Finland (lääninhallitus, länsstyrelse) , which on 18 March 1999 found no reason to take any measures.

The applicant sought leave to appeal against the Insurance Court’s decision from the Supreme Court arguing, inter alia , that the Insurance Court had no legal ground for its refusal to hold an oral hearing. Furthermore, she claimed that the Supreme Court should wait for the County Administrative Board’s decision on her complaint before deciding the case. On 22 June 1998, the Supreme Court refused the applicant leave to appeal. The latter proceedings are later referred to as “the second set of proceedings”.

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

1. As regards the first set of proceedings, the applicant complains that she did not have a fair trial by an independent and impartial tribunal as the decisions of the Board for Accident Compensation and the Insurance Court were not based on facts, as the Insurance Court did not state the legal provisions on which its decision was based, and as the Supreme Court did not give reasons for its refusal to grant leave to appeal.

2. As regards the second set of proceedings, the applicant complains that she did not have a fair trial by an independent and impartial tribunal. She invokes Article 6 of the Convention. The applicant refers in this respect to the following aspects:

a) the Insurance Court did not hold an oral hearing;

b) the Insurance Court did not let her submit a closing argument;

c) the Supreme Court did not defer its decision until the County Administrative Board had given its decision on her complaint; and

d) the decisions were not based on facts and law.

THE LAW

1. The applicant submits a number of complaints concerning the fairness of the proceedings in which the final decision was given by the Supreme Court on 30 August 1993. Noting that the application was introduced on 2 July 1998, which is more than six months after the final decision regarding the applicant’s case was given by the Supreme Court, the Court considers that pursuant to Article 35 § 1 of the Convention it is not required to decide whether or not the facts submitted by the applicant disclose any appearance of a violation of the Convention.

It follows that this part of the application has been introduced out of time and must be rejected under Article 35 § 4 of the Convention.

2. As regards the second set of proceedings, the applicant claims a violation of her right to a fair trial by an independent and impartial tribunal. She invokes Article 6 of the Convention, which in its relevant parts reads as follows:

“1. In the determination of his civil rights and obligations ..., everyone is entitled to a fair and public hearing ... by an independent and impartial tribunal established by law...”

a) The applicant first complains that she was not afforded a fair trial as the Insurance Court did not hold an oral hearing.

The reservation made by the Finnish Government in accordance with Article 64 (after the entry into force of Protocol No. 11 on 1 November 1998, Article 57) of the Convention, in respect of the right to a public hearing guaranteed by Article 6 § 1 of the Convention, read at the relevant time in its relevant parts as follows:

“For the time being, Finland cannot guarantee a right to an oral hearing insofar as the current Finnish laws do not provide such a right. This applies to:

1. proceedings before ... the Supreme Court ... in accordance with Chapter 30, Section 20, of the Code of Judicial Procedure ...

3. proceedings, which are held before the Insurance Court as the Court of Final Instance, in accordance with Section 9 of the Insurance Court Act ...”

It is true that there was no hearing before the Insurance Court nor before any other body in the applicant’s case. As the Supreme Court refused the applicant leave to appeal, it must be concluded that the final proceedings as regards the merits of the case were those before the Insurance Court. According to the national law (see above Section 9, subsection 1, of the Insurance Court Act), the Insurance Court was not required to hold an oral hearing in this case. Therefore, having regard to the terms of Finland’s reservation, Finland was under no Convention obligation to ensure in respect of the Insurance Court that an oral hearing was held. While it is true that the effect of the reservation was to deny the applicant a right to an oral hearing before an independent and impartial tribunal, this result must be considered compatible with the Convention as a consequence of the operation of a valid reservation (see Helle v. Finland judgment of 19 December 1996, Reports of Judgments and Decisions 1997-VIII, pp. 2925-2926, §§ 44 and 47).

It follows that this complaint is incompatible ratione materiae with the provisions of the Convention pursuant to Article 35 § 3 of the Convention.

b) The applicant also complains that she was not allowed to submit her closing argument to the Insurance Court. She alleges a violation of Article 6 of the Convention.

In this respect the Court notes that the applicant never raised this complaint before the Finnish courts. The Court, however, need not decide whether the applicant has exhausted the domestic remedies as required by Article 35 of the Convention, as the complaint is in any event inadmissible for the following reasons.

The Court recalls that the principle of equality of arms requires that each party should be afforded a reasonable opportunity to present his case under conditions that do not place him at a substantial disadvantage vis-à-vis his opponent (Eur. Court HR, Dombo Beheer B.V. v. the Netherlands judgment of 27 October 1993, Series A no. 274, p. 19, § 33; Ankerl v. Switzerland judgment of 23 October 1996, Reports 1996-V, pp. 1567-1568, § 38). Each party must be given the opportunity to have knowledge of and comment on the observations filed or evidence adduced by the other party (Eur. Court HR, Ruiz-Mateos v. Spain judgment of 24 June 1993, Series A no. 262, p. 25, § 63; Nideröst-Huber v. Switzerland judgment of 18 February 1997, Reports 1997-I, p. 108, § 24; Werner v. Austria judgment of 24 November 1997, Reports 1997-VII, p. 2513, § 65).

In the present case the applicant filed an appeal against the decision of the Board for Accident Compensation to the Insurance Court. The insurance company’s statement to the Insurance Court was communicated to the applicant and she submitted her observations on it. In these circumstances, the Court finds no indication that the proceedings before the Insurance Court were not adversarial. The application does not disclose any appearance of a violation of Article 6 § 1 in this respect.

It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

c) Furthermore, the applicant complains that she was not afforded a fair trial as the Supreme Court gave its decision to refuse leave to appeal before she could submit further evidence.

The Court observes that an examination of the issue of whether leave to appeal shall be granted is limited to the question of whether the conditions of leave to appeal are satisfied. It is not an examination of the merits of the case. According to the previous case-law of the Convention organs, a refusal to grant leave to appeal in these circumstances does not constitute a “determination of civil rights and obligations” (see e.g. no. 10515/83, Dec. 2.10.1984, D.R. 40, p. 258 and no. 11855/85, Dec. 15.7.1987, D.R. 53, p. 190). Therefore, Article 6 § 1 does not apply to the leave to appeal proceedings before the Supreme Court.

It follows that this complaint is incompatible ratione materiae with the provisions of the Convention pursuant to Article 35 § 3 of the Convention.

d) Finally, the applicant complains that the decisions of the domestic bodies were not based on facts and law.

The Court recalls that it is not competent to deal with complaints alleging errors of fact or law on the part of domestic courts, except where it considers that such errors might have involved a possible violation of any of the rights and freedoms set out in the Convention (see e.g. no. 7987/77, Dec. 13.12.1979, D.R. 18, pp. 31, 45; no. 12505/86, Dec. 11.10.1988, D.R. 58, pp.106, 110). Moreover, what the applicant mainly seems to complain about is the evaluation of evidence. The Court recalls that it is not within its province to substitute its own assessment of the facts for that of the domestic courts and, as a general rule, it is for these courts to assess the evidence before them. The Court’s task is to ascertain whether the proceedings in their entirety were fair (see e.g. Eur. Court HR, Edwards v. the United Kingdom judgment of 16 December 1992, Series A no. 247-B, pp. 34-35, § 34). In the present case, the examination of the application does not disclose any indication that the proceedings in the applicant’s case were in any respect unfair.

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

The Court concludes that the application as a whole must be rejected in accordance with Article 35 § 4 of the Convention.

For these reasons, the Court, unanimously,

DECLARES THE APPLICATION INADMISSIBLE .

Vincent Berger Georg Ress Registrar President