CONCURRING OPINION OF JUDGE PEKKANEN

I have joined my colleagues in finding a br each of Article 6 para. 1 (art. 6-1) of the Convention, on the understanding that the conclusion is based on the exceptional circumstances of the case.

In procedural matters, it is the practice of the Finnish Supreme Court to assist the parties in proceedings before it as far as possible. However, an appellate court cannot in my view be required under Article 6 (art. 6) of the Convention to verify of its own motion the conduct of proceedings in a lower court and to take remedial action whenever there is reason to assume that a shortcoming has occurred. Such a principle, however desirable it might seem, would be hard to implement in practice. In the first place, the jurisdiction of courts of appeal in the Contracting States is usually limited to the claims made in the appeal. Moreover, such courts normally have an enormous case-load and were they in addition to be obliged under Article 6 (art. 6) of the Convention to perform of their own motion the role described above, they would be faced with a task which they could not realistically be expected to carry out and which might seriously obstruct the effective administration of justice. Therefore, in principle, a court of appeal should not be required under Article 6 (art. 6) of the Convention to cure a defect in proceedings before a lower court unless it has power to do so and the matter has been drawn to its attention by way of an appeal.  

In the present case, the applicant did not mention in his appeal to the Supreme Court the Insurance Court ’ s failure to communicate the documents in question to him, although, as can be inferred from the material before the European Court , he had been made aware of the fact that the documents had been included in the case file of the Insurance Court when that court notified its decision to him (see paragraph 40 of the judgment). However, despite the fact that the applicant did not complain about the non-communication to the Supreme Court, I concurred with the Court ’ s conclusion that there had been a breach of his rights under Article 6 para. 1 (art. 6-1) of the Convention.

A decisive reason for my doing so is that at the material time, as revealed by the Government at a late stage in the proceedings, it was the Insurance Court ’ s consistent practice not to communicate documents of the kind in question even when they had been obtained at the court ’ s own request. This practice could hardly be said to be compatible with the concept of a fair trial in Article 6 para. 1 (art. 6-1) of the Convention. However, as the proceedings in the Insurance Court fell outside its jurisdiction ratione temporis, the European Court could only rule on the proceedings in the Supreme Court. That court, being aware of the above-mentioned practice, could assume that the Insurance Court had not afforded the applicant a fair trial and should therefore have taken the necessary measures to cure the procedural defect in the lower court.

[1] The case is numbered 20/1994/467/548.  The first number is the case's position on the list of cases referred to the Court in the relevant year (second number).  The last two numbers indicate the case's position on the list of cases referred to the Court since its creation and on the list of the corresponding originating applications to the Commission.

[2] Rules of Court B, which came into force on 2 October 1994, apply to all cases concerning the States bound by Protocol No. 9 (P9).

[3] Note by the Registrar: for practical reasons this annex will appear only with the printed version of the judgment (volume 322 of Series A of the Publications of the Court), but a copy of the Commission's report is obtainable from the registry.