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FOURTH
SECTION
CASE OF KUKKONEN v. FINLAND (no. 2)
(Application
no. 47628/06)
JUDGMENT
STRASBOURG
13
January 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 Kukkonen v. Finland (no. 2),
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 9 December 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 47628/06) 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 Hannu
Kukkonen (“the applicant”), on 29 November 2006.
- The
applicant was represented by Mr Jukka Ahomäki, a lawyer
practising in Järvenpää. The Finnish
Government (“the Government”) were represented by their
Agent, Mr Arto Kosonen of the Ministry for Foreign Affairs.
- On
10 January 2008 the
President of the Fourth Section decided to communicate to the
Government the complaint concerning the length of the applicant's
civil proceedings. It was also decided to rule on the admissibility
and merits of the application at the same time (Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1967 and lives in Helsinki.
- On
30 January 1994 the applicant had an accident at work. The insurance
company paid him an occupational injury pension until 31 May
1996.
- The
applicant applied to have the pension continued from 1 June 1996
onwards. On 8 May 1996 the insurance company rejected his application
finding that the applicant's work capacity had been reduced by less
than 10%. It further held that the applicant's inability to return to
his previous profession as a carpenter was not the result of the
injury sustained during the accident, but of pains which had not been
caused by the accident.
- In
June 1996 the applicant appealed to the Accident Board
(tapaturmalautakunta, olycksfallsnämnden), repeating his
requests. He relied on a medical opinion dated 13 May 1996 in which
he was found to be unfit for carpentry work. He also submitted
further medical opinions. The Board rejected his appeal on 13 March
1997. It ruled, inter alia, that he
was incapable of full-time carpentry work. However, the applicant's
pains were not caused by the accident and therefore could not be
compensated under the Employment Accidents Act.
- The
applicant, represented by a lawyer, appealed to the Insurance Court
(vakuutusoikeus, försäkringsdomstolen) submitting
further evidence. On 17 November 1998 the court rejected the
bulk of his appeal. However, it modified the Accident Board's
decision so as to grant the applicant a 100% occupational injury
pension for the period from 20 May to 19 June 1997, during
which the applicant had participated in a work-testing project. The
case was referred back to the insurance company for further measures.
- On
acquainting himself with his case file at the office of the Insurance
Court's registry, he found three documents which he claimed had not
been communicated to him. In his application for leave to appeal to
the Supreme Court (korkein oikeus, högsta domstolen) he
claimed, inter alia, that he had not been sent all the
documents relevant to his case.
- The
Supreme Court refused the applicant leave to appeal on
21 October 1999.
- On
27 March 2000 the applicant, using an extraordinary procedure,
requested the Supreme Court to annul its decision and that of the
Insurance Court. He argued that the latter court had failed to send
him documents.
- On
13 November 2003 the Supreme Court rejected his application. It found
that the non-communicated documents related to decision-making within
the insurance company and that the documents had not been submitted
to the court in connection with the parties' submissions or relied on
by the court in reaching its decision.
- On
27 March 2000 the applicant lodged an application (no. 57793/00)
with the European Court against Finland. He alleged, in particular,
that he had been denied a fair hearing within the meaning of Article
6 of the Convention on account of the failure to provide him with an
opportunity to comment on some documents which had been included in
his case file. On 7 June 2007 the Court held unanimously that
there had been no violation of Article 6 § 1 of the
Convention.
- Meanwhile,
the case was pending before the insurance company. On 7 February
2000 the insurance company decided that the new medical evidence
submitted was not capable of changing the conclusions of the Accident
Board in its decision of 13 March 1997. The insurance company found
that, even though the applicant was
incapable of full-time carpentry work, he was capable of other work.
15. On
9 March 2000 the applicant appealed to the Accident Board against the
insurance company's decision. In his appeal, which became pending
before the Accident Board on 26 July 2000, he requested compensation
for total incapacity for work. On 28 May 2002 the Board held an oral
hearing. On 26 September 2002 it modified the insurance
company's decision, changing the applicant's handicap allowance
category from 3 to 5 and ordering the insurance company to pay him a
50% occupational injury pension for the period from 16 May 2002 to 31
May 2004. As concerned the time after that date, the case was
referred back to the insurance company. The Board found that the
applicant was still capable of working in another profession where
his earnings could reach about half the level of his earnings before
the accident. The Board referred to his relatively young age and the
number of years that he could expect to work.
16. The
applicant appealed to the Insurance Court, repeating
his requests. On 14 June 2005 the court ordered the insurance company
to pay the applicant a 50%
occupational injury pension for the period from 26 June 2001
to 31 May 2004 and rejected the remainder of the claims. Referring to
several medical opinions, the court estimated that the applicant's
ability to work had been reduced from 26 June 2001 onwards, when
he started treatment for pain.
17. The
applicant appealed to the Supreme Court which, on 5 June 2006,
refused leave to appeal.
II. RELEVANT DOMESTIC LAW
- According
to section 53c (893/1994) of the Employment Accidents Act
(tapaturmavakuutuslaki, lagen om olycksfallsförsäkring),
an appeal against a decision of an insurance company must be
submitted to the company in question. If the company cannot change
the decision appealed against, it must refer the case, together with
its opinion, to the Accident Board within a period of 30 days from
the end of the appeal period or, if the time-limit has been extended,
at the latest within a period of 60 days from the end of the period
of appeal.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained under Article 6 § 1 of the Convention that
the length of the proceedings had been incompatible with the
“reasonable time” requirement, that the Supreme Court had
refused leave to appeal and its decision in this respect had not been
reasoned, and that the Accident Board's and the Insurance Court's
decisions had not been sufficiently reasoned.
- Article
6 § 1 of the Convention, in its relevant part, reads as follows:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal...”
- The
Government contested these arguments.
A. Admissibility
- The
Court notes that the complaint about the excessive length 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 the Supreme Court had refused leave to
appeal and that its decision, as well as the decisions of the
Accident Board and the Insurance Court, had not been sufficiently
reasoned.
- As to the proceedings in the Supreme Court, the Court
observes that these related only to the question of whether or not
the court should grant the applicant leave to appeal. Even assuming
that Article 6 § 1 applied to this type of
proceedings, the Court reiterates that the extent to which the duty
to give reasons applies may vary according to the nature of the
decision at issue (see Helle v. Finland, 19 December 1997,
§ 55, Reports of Judgments and Decisions 1997 VIII).
Where a supreme court refuses to accept a case on the basis that the
legal grounds for such a case are not made out, very limited
reasoning may satisfy the requirements of Article 6 of the
Convention. This principle extends to the Supreme Court's decisions
on applications for leave to appeal (see Nerva and Others v. the
United Kingdom, no. 42295/98, ECHR 2002 VIII). The
Court considers that, in the present case, it was not necessary for
the Supreme Court to give more detailed reasons for its decision.
- The
Court notes that its task is not to examine whether the applicant
should have been granted leave to appeal. This question is primarily
a matter for regulation by national law and it is, in principle, for
the national courts to assess the grounds for granting such leave.
The Court's task is to ascertain whether the proceedings as a whole
were fair (see, for example Doorson v. the Netherlands, 26
March 1996, § 67, Reports of Judgments and Decisions
1996 II).
- As
to the reasoning of the Accident Board's and the Insurance Court's
decisions, the Court reiterates that Article 6 § 1 obliges
courts to give reasons for their decisions, but cannot be understood
as requiring a detailed answer to every argument. Nor is the European
Court called upon to examine whether arguments are adequately met
(see Van de Hurk v. the Netherlands, 19 April 1994, § 61,
Series A no. 288). The Court notes that both the Accident
Board and the Insurance Court referred to several medical opinions in
their reasoning, and made an overall conclusion thereon. The
decisions were thus sufficiently reasoned.
- The
Court finds that the matters complained of do not disclose any
appearance of a violation of the applicant's rights set out in
Article 6 § 1 of the Convention. It follows that these
complaints must be rejected as being manifestly ill-founded within
the meaning of Article 35 §§ 3 and 4 of the Convention.
B. Merits
- The
Government submitted that the period to be taken into consideration
began on 26 July 2000 when the applicant's appeal became pending
before the Accident Board. The Court points out that in civil matters
the reasonable time may begin to run, in certain circumstances, even
before the issue of the writ commencing proceedings before the court
to which the plaintiff submits the dispute. This is the situation,
inter alia, when the applicant cannot seize a competent court
before having the lawfulness and the expediency of impugned
administrative acts examined in preliminary proceedings before an
administrative authority (see König v. Germany, 28 June
1978, § 98, Series A no. 27).
- In
the present case, the applicant appealed
to the Accident Board against the insurance company's decision on 9
March 2000 (see paragraphs 15 and 18 above). The Court finds
that the proceedings began on that date. They ended on 5 June 2006
when the Supreme Court refused leave to appeal. Consequently, they
lasted almost six years and three months for three levels of
jurisdiction.
- The
Court reiterates that the reasonableness of the length of proceedings
must be assessed in the light of the circumstances of the case and
with reference to the following criteria: the complexity of the case,
the conduct of the applicant and the relevant authorities and what
was at stake for the applicant in the dispute (see, among many other
authorities, Frydlender v. France [GC], no. 30979/96, §
43, ECHR 2000-VII). The Court reiterates that special diligence is
necessary in pension disputes (see H.T. v. Germany,
no. 38073/97, § 37, 11 October 2001).
- The
Government maintained that the applicant had submitted new medical
opinions and statements to the Accident Board and Insurance Court and
that these submissions had prolonged the proceedings. Although the
proceedings before the Insurance Court had lasted over two years,
there had been no periods of inactivity. The Government submitted
that the proceedings had not been very complex but that the many
submissions by the parties had rendered them procedurally more
complicated. The case file had been more voluminous than an average
case and both courts had voted on the outcome of the case. The
Government maintained that the outcome of the case had been partly in
the applicant's favour due to the time that had elapsed as the
applicant's capacity to work could be assessed over a longer period
of time.
- The
applicant maintained that the case had been important to him as it
concerned his ability to earn his living. It had been necessary for
him to submit new medical opinions but that had not prolonged the
proceedings. There had been no progress in the Insurance Court during
2003. The court could have decided the case in the spring of 2004,
but it had not done so. The applicant contested the Government's
argument that his submissions had rendered the case more complicated.
The fact that the outcome of the case had been partly favourable to
him did not justify the excessive length of the proceedings.
- The
Court has frequently found violations of Article 6 § 1 of the
Convention in cases raising issues similar to the one in the present
case (see Frydlender, cited above).
- Having
examined all the material submitted to it, the Court considers that
the Government have not put forward any fact or argument capable of
persuading it to reach a different conclusion in the present case.
Having regard to its case-law on the subject, the Court considers
that in the instant case the length of the proceedings was excessive
and failed to meet the “reasonable time” requirement.
There
has accordingly been a breach of Article 6 § 1.
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 12,000 euros (EUR) in respect of non-pecuniary
damage. He claimed that he did not receive any pension before the
Accident Board rendered its decision.
- The
Government contested the claim, finding that it was excessive as to
quantum and contending that the award should not exceed
EUR 2,000.
- The
Court considers that the applicant must have sustained non-pecuniary
damage. Ruling on an equitable basis, it awards him EUR 3,500
under that head.
B. Costs and expenses
- The
applicant also claimed EUR 640 for the costs and expenses incurred
before the Court.
- The
Government considered the applicant's claim, if inclusive of
value-added tax, reasonable.
- 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, § 63 Reports 1998-VI). 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, the Court considers it reasonable to award the applicant
the claimed amount in full (inclusive of value-added tax).
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 excessive
length of the proceedings 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, the following
amounts:
(i) EUR
3,500 (three thousand five hundred euros), plus any tax that may be
chargeable, in respect of non-pecuniary damage;
(ii) EUR
640 (six hundred and forty 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 claim
for just satisfaction.
Done in English, and notified in writing on 13 January 2009, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza
Registrar President
