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FOURTH
SECTION
CASE OF S. H. v. FINLAND
(Application
no. 28301/03)
JUDGMENT
STRASBOURG
29
July 2008
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of S. H. v. Finland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Lech Garlicki, President,
Giovanni
Bonello,
Ljiljana Mijović,
David Thór
Björgvinsson,
Ján Šikuta,
Päivi
Hirvelä,
Mihai Poalelungi, judges,
and
Lawrence Early,
Section Registrar,
Having
deliberated in private on 8 July 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 28301/03) against the Republic
of Finland lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Finnish national, Ms S. H. (“the
applicant”), on 4 September 2003. The President of the
Chamber acceded to the applicant's request not to have her name
disclosed (Rule 47 § 3 of the Rules of Court).
- The
applicant was represented by Mr Kari Uoti, a lawyer practising in
Helsinki. The Finnish Government (“the Government”) were
represented by their Agent, Mr Arto Kosonen of the Ministry for
Foreign Affairs.
- The
applicant alleged, in particular, that she had been denied a fair
hearing within the meaning of Article 6 of the Convention on account
of the Insurance Court's failure to provide her with an opportunity
to comment on two medical opinions which were included in her case
file.
- On
25 April 2007 the President of the Fourth Section of the Court
decided to communicate to the Government the complaint concerning the
alleged non-communication of medical opinions by the Insurance Court.
It was also decided to examine the merits of the application at the
same time as its admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1952 and lives in Porvoo.
- In
1986 the applicant became allergic to ink used in her work as a
window-dresser and decorator and was diagnosed as
asthmatic. She was granted a rehabilitation allowance in order
to be able to change career and to qualify for a new profession. From
1989 onwards she worked as an accountant.
- In
1997 her asthma became worse. The insurance company granted her a
temporary accident pension in 1998 based on her annual income in 1986
when the asthma first started.
- The
applicant appealed to the Accident Board (tapaturmalautakunta,
olycksfallsnämnden), demanding that the accident pension be
calculated on the basis of her income as an accountant instead of her
income in 1986 since she was no longer employed in the same work as
when the occupational disease was diagnosed. Moreover, she stated in
her appeal that she was undergoing further tests for asthma in order
to find out if she was suffering from a new occupational disease.
- On
14 January 1999 the Accident Board issued a decision rejecting her
appeal with regard to the income. In so far as the applicant demanded
compensation on grounds of having contracted a new occupational
disease in her new work, the Accident Board referred the matter to
the insurance company for consideration.
- On
18 August 1999 the insurance company refused her request for a
further allowance as it found that, according to the most recent
medical opinion, the applicant was not suffering from a new
occupational disease and that her symptoms were caused by her
previously diagnosed asthma. The applicant disagreed and appealed to
the Accident Board, submitting two medical opinions in support of her
claim.
- On
12 January 2000 the Accident Board found that the medical opinions
did not support the applicant's claims and rejected her appeal.
- Represented
by a lawyer, she appealed to the Insurance Court (vakuutusoikeus,
försäkringsrätten), claiming that the decision
should be quashed. The insurance company filed its observations with
the court and the applicant was given an opportunity to reply. On 24
January 2002 the insurance company filed two further medical opinions
dated 20 April 2001 and 8 November 2001.
- The
Insurance Court upheld the decision on 11 June 2002, finding that the
new evidence did not allow it to reach a different conclusion.
- On
10 July 2002 the applicant acquainted herself with the case file
before the Insurance Court. According to the applicant, she saw in
the case file an opinion prepared by J., a doctor on the Accident
Board, as well as two medical opinions from the insurance company.
- The
applicant sought leave to appeal to the Supreme Court (korkein
oikeus, högsta domstolen). She alleged that the Insurance
Court had obtained two medical opinions from the insurance company
and an opinion from J., a doctor on the Accident Board, which had not
been communicated to her. She also claimed that the domestic
decisions were inadequate, the medical opinions erroneous and the
doctors biased.
- On
5 March 2003 she was refused leave to appeal.
- On
10 October 2003 the applicant again examined the case file before the
Insurance Court. As she did not find J.'s opinion in the public part
of the case file, she asked the Insurance Court to give her access to
it. She repeated her allegation that she had seen the said opinion in
the case file in July 2002, and said that it must have been
subsequently removed.
- On
23 October 2003 the Insurance Court remitted the applicant's request
to the Accident Board, being the competent first-instance body.
- On 11 December 2003 the Accident Board rejected her
application. It stated that the provisions of the Code on Judicial
Procedure (oikeudenkäymiskaari, rättegångsbalken)
on a judge's professional conduct applied equally to the medical
members of the Accident Board. Consequently, J.'s commentary was part
of the Accident Board's internal deliberations, and not a document
which was made public even to the complainant.
- As
the applicant did not appeal to the Supreme Administrative Court
(korkein hallinto-oikeus, högsta förvaltningsdomstolen),
the Accident Board's decision became final on 11 December 2003.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- Section
34 of the Act on Administrative Judicial Procedure
(hallintolainkäyttölaki, förvaltningsprocesslagen,
Act no. 586/1996) provides that, before the disposal of the case, the
parties shall be reserved an opportunity to comment on the requests
of other parties and on evidence that may affect the outcome of the
case. The matter may be resolved without a hearing of the party only
if his claim is dismissed without considering its merits or
immediately rejected or if a hearing is manifestly unnecessary for
some other reason.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that she had been denied a fair hearing within
the meaning of Article 6 § 1 of the Convention as the Insurance
Court had failed to communicate to her the opinions of two doctors
submitted by the insurance company on 24 January 2002. She also
complained that she had not been given an opportunity to participate
in the proceedings by acquainting herself with the opinion of J., the
medical member on the Accident Board and, further, that this opinion
had been removed from the case file after the court had reached its
decision. Moreover, the doctors had been biased and the documents and
test results had been altered during the proceedings.
- Article
6, in its relevant part, reads as follows:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a fair ... hearing ... by
[a] ... tribunal...”
- The
Government contested those arguments.
A. Admissibility
- The
Court notes that the complaint about the non-communication by the
Insurance Court of two medical opinions is not manifestly ill-founded
within the meaning of Article 35 § 3 of the Convention. It
further notes that it is not inadmissible on any other grounds. It
must therefore be declared admissible.
- The
applicant also complained that she had not been given the opportunity
to participate in the proceedings by acquainting herself with the
opinion of J., the medical member on the Accident Board and, further,
that this opinion had been removed from the case file after the court
had reached its decision.
- The
Government argued that the applicant had not, as far as this
complaint was concerned, exhausted all domestic remedies available to
her as she had not appealed against the Accident Board's decision of
11 December 2003.
- The
applicant contested the Government's view. She conceded that she had
not appealed to the Supreme Administrative Court but argued that the
Court should still consider her case in this respect as she believed
that an appeal could not have changed her situation.
- The
Court observes, as far as the opinion of J. is concerned, that the
applicant did not avail herself of the possibility to have the
decision reviewed by the Supreme Administrative Court. Therefore, the
Court accepts the Government's objection that the applicant has not
exhausted domestic remedies. In any event, there is no indication
that the refusal to disclose to the applicant an opinion of a medical
member of the Accident Board, whose opinions form part of the
internal deliberations of that body, deprived the applicant of a fair
and effective opportunity to put forward her own case or to answer
the arguments of the other party. There is in the circumstances no
appearance of a violation of Article 6 § 1 of the Convention
(see Markko v. Finland, no. 61113/00, 13 December 2005). It
follows that the complaint concerning this part of the application
must be rejected as being manifestly ill-founded pursuant to Article
35 §§ 3 and 4 of the Convention.
- As
for the remaining complaint, the applicant has not substantiated her
allegations about the bias of the doctors and alteration of the
documents and test results. Accordingly, this part of the application
is manifestly ill-founded for lack of substantiation and must be
rejected pursuant to Article 35 §§ 3 and 4 of the
Convention.
B. Merits of the complaint concerning the
non-communication of medical opinions
- The
applicant maintained that the proceedings had not been adversarial as
her case file before the Insurance Court had included two medical
opinions which had not been communicated to her before the decision
was taken in her case. The question before the Insurance Court was
whether the applicant was suffering from a new occupational disease
that had begun in the 1990s or whether it was the previously
diagnosed disease that had worsened due to new circumstances. The two
new medical opinions dated 20 April and 8 November 2001 were the most
recent ones concerning the applicant's health at the time and were
thus relevant for the assessment of her case. The applicant referred
in this respect to the case K.P. v. Finland (no. 31764/96,
31 May 2001).
- The
Government, referring to the judgment Kukkonen v. Finland
(no. 57793/00, § 25, 7 June 2007), contested the
applicant's claim that she had been placed at a disadvantage
vis-à-vis the insurance company. The medical opinions
in question had not been relevant in determining whether the
occupational disease had broken out in 1986 or whether the symptoms
causing the applicant's incapacity to work in the late 1990s could be
considered as a new occupational disease. Moreover, the
non-communicated medical opinions, in the Government's view, had not
adversely affected the applicant's ability to challenge the Insurance
Court's decision in question before the Supreme Court.
- The
Court points out that the fairness of proceedings must be assessed
with regard to the proceedings as a whole (see Dallos v. Hungary,
no. 29082/95, § 47, ECHR 2001 II). One of the
elements of the broader concept of a fair trial is the principle of
equality of arms, which requires each party to be given a reasonable
opportunity to present his or her case under conditions that do not
place him or her at a substantial disadvantage vis-à-vis
his opponent (see, among many other authorities, Nideröst-Huber
v. Switzerland, judgment of 18 February 1997, Reports of
Judgments and Decisions 1997-I, pp. 107-08, § 23). That
right means, in principle, the opportunity for the parties to a trial
to have knowledge of and comment on all evidence adduced or
observations filed, with a view to influencing the court's decision
(see Lobo Machado v. Portugal, judgment of 20 February 1996,
Reports 1996 I, p. 206, § 31). This
position is not altered when the observations are neutral on the
issue to be decided by the court (see Göç v. Turkey
[GC], no. 36590/97, § 55, ECHR 2002 V) or, in the
opinion of the court concerned, they do not present any fact or
argument which has not already appeared in the impugned decision.
Only the parties to a dispute may properly decide whether this is the
case; it is for them to say whether or not a document calls for their
comments (see Nideröst-Huber, cited above, § 29).
- In
the instant case it is undisputed that the opinions submitted by the
applicant's insurance company were not communicated to her for
possible comments prior to the Insurance Court's decision in 2002.
- The
Court notes that the opinions in question constituted reasoned
opinions on the merits of the applicant's appeal. Whatever actual
effect these opinions may have had on the decision of the Insurance
Court, it was for the applicant to assess whether they required her
comments. The onus was therefore on the Insurance Court to afford the
applicant an opportunity to comment on the opinions prior to its
decision.
- The
procedure followed, however, did not enable the applicant to
participate properly in the proceedings and thus deprived her of a
fair hearing within the meaning of Article 6 § 1 of the
Convention. Accordingly, there has been a violation of that
provision.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed EUR 7,000 in respect of non-pecuniary damage for
suffering and distress.
- The
Government considered the claim too high as to quantum. In the
Government's view the applicant should be awarded reasonable
compensation for non-pecuniary damage not exceeding EUR 1,200.
- The
Court accepts that the lack of guarantees of Article 6 has caused the
applicant non-pecuniary damage which cannot be made good by the mere
finding of a violation. Making its assessment on an equitable basis,
the Court therefore awards the applicant EUR 2,500 in respect of
non-pecuniary damage.
B. Costs and expenses
- The
applicant also claimed EUR 6,026.80 (inclusive of value-added tax)
for the costs and expenses incurred before the Court.
- The
Government left it to the Court's discretion to decide whether
sufficient detailed information to support the claims had been
submitted, as was normally required by the Court. In the Government's
view the total amount of compensation for costs and expenses should
not exceed EUR 2,000 (inclusive of value-added tax).
- The
Court reiterates that an award under this head may be made only in so
far as the costs and expenses were actually and necessarily incurred
in order to avoid, or obtain redress for, the violation found (see,
among other authorities, Hertel v. Switzerland, judgment of 25
August 1998, Reports 1998-VI, p. 2334, § 63).
- In
the present case, regard being had to the information in its
possession, the above criteria and the fact that the application was
examined under the joint procedure provided for under Article 29 §
3 of the Convention and that the applicant was represented by counsel
only after the case had been communicated, the Court considers it
reasonable to award the applicant the sum of EUR 3,000 (inclusive of
value-added tax) for the proceedings before the Court.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint concerning the
non-communication of two medical opinions admissible and the
remainder of the application inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention on account of the non-communication of
two medical opinions;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following
amounts:
(i) EUR
2,500 (two thousand five hundred euros), plus any tax that may be
chargeable, in respect of non-pecuniary damage;
(ii) EUR
3,000 (three thousand euros), plus any tax that may be chargeable to
the applicant, in respect of costs and expenses;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant's
claims for just satisfaction.
Done in English, and notified in writing on 29 July 2008, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Lech Garlicki
Registrar President
