FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application No. 29329/95

by T.O.

against Finland

The European Court of Human Rights ( Fourth Section) sitting on 1 December 1998 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 ,

with Mr V. Berger, S ection 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 12 July 1995 by T.O. against Finland and registered on 21 November 1995 under file No. 29329/95;

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

Having regard to the observations submitted by the respondent Government on 1 October 1997 and the observations in reply submitted by the applicant on 13 November 1997;

Having deliberated;

Decides as follows:

THE FACTS

The applicant, a Finnish citizen born in 1947, is on an early retirement pension and lives in Lahti , Finland .

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

A. Particular circumstances of the case

On 21 May 1993 the applicant’s insurance company refused the applicant’s request for compensation for an occupational injury (a rash). The company considered that his rash was neither an occupational illness nor a substantial aggravation of another illness within the meaning of the 1948 Accident Insurance Act ( tapaturmavakuutuslaki 608/1948, lag om olycksfallsförsäkring ) .

In his appeal to the Board for Accident Compensation ( tapaturmalautakunta , olycksfallsnämnden ) on 15 June 1993 the applicant required that the decision of the insurance company be overturned and that his rash be compensated as an occupational illness.

The Board for Accident Compensation requested the insurance company to provide it with the relevant documents and an opinion. In its opinion the insurance company simply suggested that the appeal be dismissed on the grounds mentioned in the company’s decision. Without obtaining further evidence or making the opinion available to the applicant, the Board for Accident Compensation gave a decision on the matter on 2 November 1993, dismissing the applicant’s appeal. The grounds for the decision summarized section 2 of the Occupational Diseases Decree ( ammattitautiasetus 1347/1988, yrkessjukdomsförordning ) which explains when an illness can be considered as an occupational one. It was further noted in the decision that the applicant’s work had no causal connection with his rash and that therefore the rash was not an occupational illness. Nor had the work of the applicant aggravated his long-term chronic rash caused by an illness. It was noted in the decision that the insurance company had proposed that the appeal be dismissed.

On 16 November 1993 the applicant appealed to the Insurance Court ( vakuutusoikeus , försäkringsdomstolen ) repeating his claim. He argued that his rash had appeared when he had started working for the storehouse in 1975 and that it had always got worse when he had returned to work after a period of sick leave. According to the documents, no further evidence had been attached to the appeal.

The Insurance Court requested an opinion from the insurance company. In its opinion the insurance company merely stated that there was no reason to overturn the appealed decision. Without obtaining further evidence or making the opinion available to the applicant, the Insurance Court gave a decision on the matter on 20 December 1994, dismissing the appeal on the grounds mentioned in the decision of the Board for Accident Compensation. It was indicated in the decision that an opinion had been acquired from the insurance company.

On 4 July 1995 the Supreme Court ( korkein oikeus , högsta domstolen ) refused the applicant leave to appeal.

B. Relevant domestic law and practice

According to section 53 of the Accident Insurance Act, the appeal bodies in cases concerning accident insurance are the Board for Accident Compensation, the Insurance Court and the Supreme Court. The members of the Board for Accident Compensation, which is the appeal body of first instance, include a full-time president, at least two vice-presidents, three lawyers and three doctors and six persons representing the labour market organisations. The Board is a special appeal body designed to deal with cases concerning accident insurance. According to section 8 of the Decree on the Board for Accident Compensation ( asetus tapaturmalautakunnasta 839/1981, förordning om olycksfallsnämnden ), the rules of procedure in civil cases are applied to the Board’s procedure.

An appeal from a decision given by the Board for Accident Compensation is made to the Insurance Court which is a special court for the consideration of cases concerning social security. According to the Insurance Court Act ( laki vakuutusoikeudesta 14/1958, lag om försäkringsdomstolen ), the rules of procedure of the ordinary courts are applied to the Insurance Court , save for certain exceptions.

An appeal from a decision given by the Insurance Court can be made to the Supreme Court, inter alia , in cases where the Insurance Court has given a ruling on the right to compensation for an injury, illness or death. An appeal to the Supreme Court is subject to leave to appeal granted by the Supreme Court in accordance with Chapter 30, section 3, of the Code of Judicial Procedure ( oikeudenkäymiskaari , rättegångsbalken ) .

Leave to appeal may be granted if it is necessary for the application of law in similar cases or for the uniformity of case-law to bring the case before the Supreme Court, or if there are special grounds for this due to a procedural or other fault that requires the reversal or nullification of a judgment, or if there are other weighty grounds for granting leave to appeal.

The Board for Accident Compensation and the Insurance Court apply mainly the principles derived from the rules of procedure of the courts of appeal. As in force at the relevant time, and insofar as the relevant for issues in the present case, the Code of Judicial Procedure provided as follows. According to Chapter 25, sections 17 to 20, the opposing party shall be heard in appeal courts proceedings. According to Chapter 25, section 19, subsection 1, a copy of the observations of the opposing party are given to the applicant on request. According to Chapter 26, section 6, the court of appeal shall request written observations from the parties when it obtains evidence on its own initiative and such evidence may affect the decision in the case, unless this is manifestly unnecessary.

In its Kerojärvi v. Finland judgment of 19 July 1995 the Court noted that, according to what had been stated on behalf of the Government at the hearing, it was the practice both of the Insurance Court and the Supreme Court not to communicate documents of the kind in question in that case (Series A no. 322, p. 16, § 42). Following the Kerojärvi judgment the Insurance Court has instructed its members and staff to see to it that a party be heard (in writing) in respect of "new information, unless this is clearly unnecessary". In respect of "observations in reply" a party shall always be heard (instruction of 30 October 1995).

COMPLAINTS

The applicant complains that he was not afforded an opportunity to comment on the insurance company’s opinions before the appeal bodies.

The applicant further complains that his compensation request and related appeals were not properly examined and thus wrongly dismissed. Moreover, the insurance company’s medical experts found that his illness was not of an occupational character, although they never examined him in person.

The applicant does not invoke any express Convention provisions.

PROCEEDINGS BEFORE THE COURT

The application was introduced before the European Commission of Human Rights on 12 July 1995 and registered on 21 November 1995.

On 2 July 1997 the Commission decided to communicate the applicant’s complaint concerning the fairness of the proceedings to the respondent Government.

The Government’s written observations were submitted on 1 October 1997. The applicant replied on 13 November 1997.

With entry into force on 1 November 1998 of Protocol No. 11 to the Convention and in accordance with Article 5 § 2 of Protocol No. 11 to the Convention, this application has been transferred to the Court for examination.

THE LAW

a) The applicant complains, without invoking any express Convention provisions, that he was not afforded an opportunity to comment on the insurance company’s opinions before the appeal bodies.

Article 6 § 1 of the Convention, insofar as relevant, provides:

"In the determination of his civil rights and obligations... everyone is entitled to a fair and public hearing...”

In agreement with the parties, the Court finds that Article 6 § 1 of the Convention applies to the dispute in the present case. It is also undisputed that the applicant has appealed to all domestic levels of the judiciary and that the application was introduced within six months of the final domestic decision as required by Article 35 § 1 of the Convention.

The respondent Government, however, submit that, in his appeal from the decision of the Board for Accident Compensation and his request for leave to appeal from the Supreme Court, the applicant did not invoke the fact that he had not been informed of the opinions of the insurance company, although the opinions were referred to in the decisions. According to the general doctrine of the rule of exhaustion of domestic remedies referred to in Article 26 (Article 35 since the entry into force of Protocol No. 11) of the Convention as summarised and refined by the Court in §§ 65-69 of its judgment of 16 September 1996 in the case of Akdivar and Others v. Turkey (Reports of Judgments and Decisions 1996-IV, pp. 1210-1211), this would mean that the applicant has not exhausted domestic remedies. In this connection the Government notes the Court’s ruling in the Kerojärvi judgment (p. 16, § 42) wherein Mr. Kerojärvi’s failure to complain about the non-communication of the documents mentioned in the Insurance Court’s decision was not considered material as the Supreme Court had a duty under Article 6 § 1 to take measures to make the documents available to him. As this statement by the Court was made in connection with the examination of the merits of the case, the Government, however, doubts whether it can be generally applied also to the examination of the question concerning the exhaustion of domestic remedies.

The Court indeed finds that the present case is distinguishable from the Kerojärvi case insofar as the exhaustion of domestic remedies is concerned. Not only was the domestic remedies rule not invoked by the Government in the last-mentioned case. In addition, the issue in that case was the fairness of the proceedings before the Supreme Court which, to quote the judgment of the European Court of Human Rights, “was competent to examine the merits of the case” (§ 42). There was no remedy against the decision of the Supreme Court. In those circumstances the Supreme Court could be expected to see to it that the applicant be made aware of the documents in question even in the absence of a specific request made by him.

In the present case the Supreme Court never reached the merits which were finally examined and decided by the Insurance Court . The applicant had a remedy against the decision of the Insurance Court in that he could apply for leave to appeal to the Supreme Court. He did apply for such leave without, however, invoking the procedural error, i.e. the non-communication of the insurance company’s opinions to him by the Board for Accident Compensation and the Insurance Court , now alleged to constitute a violation of Article 6. Instead he based his application on the alleged material wrongfulness of the decision attacked.

The Court recalls that although the rule requiring the exhaustion of domestic remedies must be applied with some flexibility, it does not require merely that applications should have been made to the appropriate domestic courts and that use should be made of remedies designed to challenge decisions already given. It normally requires also that the complaints intended to be made subsequently to Strasbourg should have been made to those domestic courts, at least in substance and in compliance with the formal requirements of domestic law (Eur. Court HR, Cardot v. France judgment of 19 March 1991, Series A no. 200, p. 18, § 34). By not drawing the Supreme Court’s attention to the procedural fault allegedly committed by the Board for Accident Compensation and the Insurance Court the applicant cannot be said to have made, even in substance, to the highest national court the complaint which he is making now. The Court notes that when making his application to the Supreme Court the applicant must be assumed to have been aware of the fact that the Board for Accident Compensation and the Insurance Court had received the two opinions of the insurance company, as this fact is clearly mentioned in the decisions of the Board for Accident Compensation and the Insurance Court. The Court further notes that reliance before the Supreme Court on the procedural fault now alleged cannot be regarded as having been devoid of any real chance of success in view of the facts that the Convention is in force in Finland as domestic law and that a procedural error is one of the grounds on the basis of which leave to appeal can be granted.

It follows that the applicant has not complied with the condition as to the exhaustion of domestic remedies and this part of his application must be rejected under Article 35 § 1 of the Convention.

b) The applicant further complains that his compensation requests and related appeals were not properly examined and were thus wrongly dismissed. Moreover, the insurance company’s medical experts found that his illness was not of an occupational character, although they never examined him in person.

The Court finds that these complaints also fall within the scope of Article 6 § 1 of the Convention. In this respect the domestic remedies were exhausted, as the applicant raised the complaint in his application for leave to appeal before the Supreme Court.

With regard to this complaint, the Court recalls that, in accordance with Article 19 of the Convention, its only task is to ensure the observance of the obligations undertaken by the Parties to the Convention. In particular, it is not competent to deal with an application alleging that errors of law or fact have been committed by domestic courts, except when they consider that such errors might have involved a possible violation of any of the rights and freedoms set out in the Convention. The Court refers, on this point, to the Convention organs’ established case-law (see e.g. No. 25062/94, Dec. 18.10.95, D.R. 83, p. 77).

The Court further reiterates that the admissibility of evidence is primarily a matter for regulation by national law. As a rule, it is for the national courts to assess the evidence before them, whereas it is the Court’s task to ascertain whether the proceedings considered as a whole, including the way in which evidence was taken, were fair (see Eur. Court HR, Asch v. Austria judgment of 26 April 1991, Series A no. 203, p. 10, § 26).

The Court has examined the applicant’s above complaint as it has been submitted by him. However, it finds no indication that in the course of the proceedings complained of, he was debarred from putting forward his submissions, or that the courts concerned rejected any relevant evidence or that the proceedings were unfairly conducted in any other way.

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

For these reasons, the Court, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

Vincent Berger Georg Ress Registrar President