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FOURTH
SECTION
CASE OF VILÉN v. FINLAND
(Application
no. 22635/04)
JUDGMENT
STRASBOURG
17 February 2009
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 Vilén v.
Finland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas Bratza,
President,
Giovanni Bonello,
David Thór
Björgvinsson,
Ján Šikuta,
Päivi
Hirvelä,
Ledi Bianku,
Nebojša
Vučinić, judges,
and Lawrence
Early, Section
Registrar,
Having
deliberated in private on 27 January 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 22635/04) 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, Mr Pauli Vilén (“the
applicant”), on 15 June 2004.
- The
applicant was represented by Mr T. Takala, a lawyer practising in
Hämeenlinna. The Finnish Government (“the Government”)
were represented by their Agent, Mr A. Kosonen of the Ministry for
Foreign Affairs.
- On
13 March 2008 the President of the Fourth Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1953 and lives in Parola.
- The
applicant requested sickness benefits due to his incapacity for work
for the period from 3 June 2002 until 31 December 2002. On
10 June 2002 the applicant's doctor stated in a certificate
that he was incapable of working until 31 December 2002.
- The
Social Insurance Institution (kansaneläkelaitos - KELA,
folkpensionsanstalten – FPA, later “KELA”)
rejected his request in two decisions of 28 August 2002. In the
decisions his disability was described in detail, but he was not
considered incapable of working. The decision was based on section 14
of the Sickness Insurance Act (sairasvakuutuslaki,
sjukförsäkringslag 364/1963).
- On
13 September 2002 the applicant appealed to the Social Insurance
Board (sosiaalivakuutuslautakunta, socialförsäkringsnämd).
His appeal was rejected on 24 April 2003. In the decision no
reference was made to the certificates provided by the applicant's
doctor. It stated that the applicant had been given an opportunity to
reply to the KELA's statement, but it did not give any details of the
statement nor did it state whether the applicant had replied.
- On
4 June 2003 the applicant appealed to the Appellate Board for Social
Insurance (tarkastuslautakunta, prövningsnämnden, later
the “Appellate Board”). His appeal was rejected on 15
January 2004. In the decision no reference was made to the statements
by the applicant's doctors or the report from the time he spent in
rehabilitation between 8 January and 28 January 2003. Like the
decision of the Social Insurance Board, it stated that the applicant
had had the opportunity to reply to the KELA's statement, but failed
to specify the content of the statement and whether the applicant had
replied to it.
- On
1 March 2004 the applicant requested information on the documents in
his file with the KELA. The documents contained several statements by
a medical expert, requested by the KELA at various times. The
statements were dated 10 April, 6 June, 22 August and 17 October 2002
and 18 June 2003. None of the authorities had previously provided him
with copies of the statements.
- According
to information supplied by the Government at the Court's request,
the medical statements in question were also included in the case
file of the Appellate Board.
II. RELEVANT DOMESTIC LAW
- Section
34 of the Administrative Judicial Procedure Act
(hallintolainkäyttölaki, förvaltningsprocesslagen,
Act no. 586/1996) and section 15 of the Administrative Procedure Act
(hallintomenettelylaki, förvaltningsförfarandelagen,
598/1982, as of 1 January 2004 replaced by hallintolaki,
förvaltningslag; 434/2003) provide that, before the
disposal of a case, the parties shall be given an opportunity to
comment on the requests of other parties and on any evidence that may
affect the outcome of the case. The matter may be resolved without a
hearing of the party if his claim is dismissed without considering
its merits or immediately rejected or if the hearing is for another
reason manifestly unnecessary. For the purpose of submitting comments
a party shall also be allowed access to non-public documents if
allowed to do so pursuant to the Openness of Government Activities
Act.
- Section
11, subsection 2 of the Openness of Government Activities Act
(Openness Act, julkisuuslaki, offentlighetslagen; 621/1999)
reads as follows:
A party, his/her representative or counsel shall not
have the right of access ... to: [--]
3) a presentation memorandum, a draft decision or a
comparable document prepared by an authority for the preparation of a
matter, before the consideration of the matter by that authority has
been concluded...
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION WITH REGARD TO THE NON-COMMUNICATION OF DOCUMENTS
- The
applicant complained under Article 6 § 1 of the Convention that
he did not have access to the documents prepared by the KELA's
medical expert for the examination of his case, although those
documents were used in the examination of his appeal before the
Appellate Board.
- 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 of documents by the Appellate Board is not
manifestly ill-founded within the meaning of Article 35 § 3 of
the Convention. It further notes that the Government have not raised
any objection based on non-exhaustion of domestic remedies, and that
the application is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
- The
applicant maintained that the proceedings had not been adversarial as
his case file before the Appellate Board included medical opinions
which had been prepared by the KELA's expert doctors at various
stages of the proceedings. These opinions had not been communicated
to him. He discovered these opinions in March 2004 when he asked to
examine his case file.
- The
applicant referred in this respect to the case H.A.L. v.
Finland (no. 38267/97, 27 January 2004), stating that the
Appellate Board had the duty to ensure that the applicant was able to
participate fully in the proceedings, even if the documents in
question would only have had potential relevance to the decision.
- The
Government, referring equally to the case H.A.L. v.
Finland, contested the applicant's claim that he had not been
able to participate in the proceedings. They stated that the
Appellate Board had asked the KELA to submit a statement. In order to
prepare the statement the KELA had asked its expert doctors to submit
their opinions on the matter. These opinions were considered to form
a part of the KELA's internal preparatory documents, within the
meaning of section 11, subsection 2 of the Openness Act. The
Government noted that the substance of the medical opinions was
contained in the KELA's statement which had been submitted to the
Appellate Board and to the applicant, in accordance with section 15
of the Administrative Procedure Act and section 34 of the
Administrative Judicial Procedure Act and as mentioned in the
Appellate Board's decision of 15 January 2004.
- Accordingly,
the applicant had had access to the contents of the expert doctors'
opinions already during the proceedings through the KELA's statement.
The principle of equality of arms under Article 6 § 1 had thus
been respected.
- 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, 18 February 1997, § 23, Reports of
Judgments and Decisions 1997 I. 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, 20 February 1996, § 31, Reports of
Judgments and Decisions 1996 I). 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 v. Switzerland, cited above, § 29).
- The
Court notes that the opinions in question constituted reasoned
opinions on the merits of the applicant's appeal. The opinions were
submitted to the Appellate Board. It is irrelevant whether the
information from the opinions was included in the statements
submitted by the KELA, whether the opinions had previously been
internal preparatory documents within the KELA, and whether they
actually had an effect on the decision of the Appellate Board or not.
As they were included in the case file of the Appellate Board it was
for the applicant to assess whether they required his comments. It
was therefore the duty of the Appellate Board to afford the applicant
an opportunity to comment on the opinions prior to its decision.
- The
procedure followed did not enable the applicant to participate
properly in the proceedings and thus deprived him of a fair hearing
within the meaning of Article 6 § 1 of the Convention.
Accordingly, there has been a violation of that provision.
II. THE REMAINDER OF THE APPLICANT'S COMPLAINTS
- The
applicant further complained under Article 6 § 1 of the
Convention that the reasoning of the Appellate Board's decision was
insufficient since it did not mention the specific reasons for
disregarding the opinions of the doctors who had actually treated
him.
- The Government argued that in its decision of 15
January 2004 the Appellate Board referred generally to the various
medical opinions submitted in the case. The previous decisions
discussed the significance of various opinions and gave reasoning for
the medical findings, thereby explaining why the applicant was not
considered incapable of working. The Appellate Board appeared to
endorse those reasons. The Government were of the
opinion that, in the particular circumstances, this procedure was
sufficient for the purposes of Article 6 § 1 of the
Convention.
- The applicant contested the Government's view
complaining that the decision of the Appellate Board did not
establish whether the report of his rehabilitation period was
considered as evidence.
- The Court observes that the decision of the Appellate
Board, however short, specifically mentions the rehabilitation report
as part of the material available to it. There is no indication that
the report or any other medical opinion provided by the applicant was
disregarded.
- The Court further notes that according
to its case-law, Article 6 § 1 does not require a detailed
answer to every argument (see, Van de Hurk v. the
Netherlands, 19 April 1994, § 61, Series A no. 288)
and as the assessment of evidence is primarily the task of the
national courts (see, for example, Doorson v. the
Netherlands, 26 March 1996, § 67, Reports of Judgments
and Decisions 1996 II) these
complaints are manifestly ill-founded and must be rejected in
accordance with Article 35 §§ 3 and 4 of the Convention.
III. 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 4,000 euros (EUR) in respect of non-pecuniary
damage for mental suffering.
- The
Government found the claim too high as to quantum. In the
Government's view the applicant should be awarded a reasonable
compensation for non-pecuniary damage not exceeding EUR 2,000.
- The
Court accepts that the lack of guarantees of Article 6 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 2,000 in respect of
non-pecuniary damage.
B. Costs and expenses
- The
applicant did not claim any costs and expenses.
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
non-communication of the documents admissible and the remainder of
the application inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- 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, EUR 2,000 (two thousand euros), plus any tax that may be
chargeable, in respect of non-pecuniary damage.
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount 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 claim
for just satisfaction.
Done in English, and notified in writing on 17 February 2009,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza
Registrar President
