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FOURTH
SECTION
CASE OF
KUKKONEN v. FINLAND
(Application
no. 57793/00)
JUDGMENT
STRASBOURG
7
June 2007
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,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Sir Nicolas Bratza, President,
Mr J.
Casadevall,
Mr G. Bonello,
Mr L. Garlicki,
Ms L.
Mijović,
Mr J. Šikuta,
Mrs P. Hirvelä,
judges,
and
Mr T.L. Early, Section Registrar,
Having
deliberated in private on 16 May 2006 and on 15 May 2007,
Delivers
the following judgment, which was adopted on the last mentioned
date:
PROCEDURE
- The
case originated in an application (no. 57793/00) 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 27 March 2000.
- The
applicant, who had been granted legal aid, 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.
- The
applicant alleged, in particular, that he was denied a fair hearing
within the meaning of Article 6 of the Convention on account of the
Insurance Court’s failure to provide him with an opportunity to
comment on some documents which were included in his case file.
- By
a decision of 16 May 2006,
the Court declared the application partly admissible.
- The
Government, but not the applicant, filed further written observations
(Rule 59 § 1). The Chamber decided,
after consulting the parties, that no hearing on the merits was
required (Rule 59 § 3 in fine).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The applicant, who is a carpenter by profession, was
born in 1967 and lives in Helsinki.
- On
31 January 1994 the applicant had an accident at work. He sustained a
splinter fracture of his left elbow which later developed into
degenerative arthritis. The insurance company paid him an
occupational injury pension (tapaturmaeläke,
olycksfallspension) 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 working 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
based on the injury to his left arm, but on his neck and shoulder
pains which had not been caused by the accident.
- 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 as well as an another medical opinion dated 4 June
1996. He submitted two further medical opinions dated 28 June 1996
and 19 January 1996 respectively.
- The
Accident Board rejected his appeal on 13 March 1997 by four votes to
one. It ruled, inter alia, as follows:
“[t]he
medical opinions at its disposal show that the strain tolerance of
[the applicant’s] left elbow was reduced due to the limitations
on moving it and its susceptibility to pain. Therefore he is
incapable of full-time carpentry work. ... In the work-testing
project (työkokeilututkimus, arbetsprövning) no plan
for vocational education was tested due to [the applicant’s]
pain. [The applicant’s] neck and head pains were not caused by
the accident and therefore cannot be compensated under the Act on
Accident Insurance.”
- The
applicant, represented by a lawyer, appealed to the Insurance Court
(vakuutusoikeus, försäkringsdomstolen) submitting
further evidence. The Insurance Court received several other
documents, for example medical opinions and case histories of the
applicant. The insurance company gave its opinion, to which the
applicant replied.
- On
17 November 1998 the Insurance Court rejected the bulk of his
appeal. It however modified the Accident Board’s decision so as
to grant the applicant a 100% occupational injury pension for the
period 20 May to 19 June 1997, during which the applicant
had participated in a work-testing project.
- Having
telephoned the Insurance Court, the applicant was told that his case
file consisted of over 1,000 pages of material. He acquainted himself
with the case file at the office of the court’s registry and
found three documents, which allegedly had not been communicated to
him by the Insurance Court. 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, including a hand-written memorandum dated 9 October
(year not indicated) written by a lawyer of the insurance company
concerning her telephone conversation with an employee of the
Insurance Rehabilitation Association (Vakuutuskuntoutus VKK r.y.,
Försäkringsbranschens Rehabilitering r.f., “the
Association”). The note included, inter alia, the
following comments: “[the applicant] does not consider pain
rehabilitation possible” and “[the applicant] is
currently awaiting the Insurance Court’s decision”. On
22 January 2002 he submitted that the case file had also
included an assessment and rehabilitation advice by the Association
dated 11 April 1995 and 8 February 1996, respectively, which had not
been sent to him.
- On
13 November 2003 the Supreme Court rejected his application by a
majority. It found that the non-communicated documents related to
decision-making within the insurance company and that it remained
unclear when and how the memorandum was included in the case file,
which was exceptionally voluminous. In any event, the
non-communicated documents were not submitted to the court in
connection with either of the parties’ submissions relied on in
evidence by them or by the court in reaching its decision. One of the
Justices considered that the three documents mentioned by the
applicant were not entirely irrelevant to the proceedings before the
Insurance Court. In his view, the Insurance Court had made a
procedural error and concluded that the applicant had not received a
fair trial within the meaning of Article 6 of the Convention.
THE LAW
ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
- The
applicant complained that he had been denied a fair hearing within
the meaning of Article 6 § 1, which, insofar as relevant, reads
as follows:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a fair ... hearing ... by
[a] ... tribunal...”
1. The parties’ submissions
- The
applicant maintained that the proceedings had not been adversarial as
his case file before the Insurance Court had included several
documents which he had not seen before a decision had been taken in
his case. In particular, there was a memorandum written by an
insurance company lawyer, which included several inaccuracies and
arguments irrelevant to the court proceedings. In his view the phrase
“[the applicant] does not consider pain rehabilitation
possible” not only gave misleading information about his
willingness to take part in pain rehabilitation but also a negative
impression of him. He alleged that an officer of the insurance
company had told him that “the memorandum was submitted to the
Insurance Court because it was considered to reveal considerable
further information on the matter”. In the applicant’s
view the memorandum had had an effect on decision-making in the
Insurance Court.
- The
Government, referring to the decision of Ylipää v.
Finland (no. 21357/93, 29 November 1995),
contested the applicant’s claim that he had been placed at a
disadvantage vis-à-vis the insurance company. The
applicant had identified only one non-communicated document. That
document, in the Government’s view, had not had any bearing on
the proceedings, being an individual’s note of a telephone
conversation, not a reasoned opinion on the merits of the applicant’s
case. The Government further observed that the applicant, who was
represented by a lawyer, had not substantiated his complaint about
the non-communication of other documents submitted to the Insurance
Court, nor had he specified how the undisclosed document might have
affected the fairness of the proceedings.
2. The Court’s assessment
- The
Court recalls that the fairness of proceedings must be assessed with
regard to the proceedings as a whole (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 case under conditions that do not place
him 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 (Lobo Machado v. Portugal, judgment of
20 February 1996, Reports 1996 I, p. 206,
§ 31). Nor is the position altered when the observations
are neutral on the issue to be decided by the court (Göç
v. Turkey [GC], no. 36590/97, § 55, ECHR 2002 V),
or in the opinion of the court concerned, the observations 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 (Nideröst-Huber, cited
above, § 29).
- In
the instant case it is undisputed that following the applicant’s
appeal to the Insurance Court, the insurance company submitted its
observations to that court. The observations were communicated to the
applicant and he filed a reply. It is likewise common ground that
after the Insurance Court’s decision, the applicant acquainted
himself with the case file and found some documents which had not
been sent to him during the proceedings. In his application to this
Court the applicant identified one such document. Consequently, the
Court will examine whether the omission to transmit this document to
the applicant by the Insurance Court amounted to a violation of
Article 6 § 1.
- The
Court observes at the outset that the impugned document was a
half-page personal note, hand-written by an insurance company lawyer
following a telephone conversation with an official of the Insurance
Rehabilitation Association. The note was not explicitly addressed to
the Insurance Court, nor was it signed. The note was dated “9/10”,
without stating the year. As it was mentioned in the note that “[the
applicant] is currently awaiting the Insurance Court’s
decision”, the Court considers it plausible that it had been
written in October 1997 or 1998 when the applicant’s case was
pending before the Insurance Court. It still remains unresolved when
and how the note was included in the applicant’s case file.
Most likely, the note was in the file before the Insurance Court
reached its decision. However, there is no indication in the
documents or in the Insurance Court’s decision that the note
would have been a document relied on by the insurance company in the
proceedings (see Bendenoun v. France, judgment of 24 February
1994, Series A no. 284, § 52, Walston v.
Norway, no. 37372/97, § 64, 3 June 2003).
- Further,
the question to be decided by the Insurance Court was whether or not
the applicant was entitled to an accident pension from 1 June 1996
onwards, i.e. whether his working capacity was reduced by less
than 10% at that time. Whatever the purpose of the hand-written note,
it referred to the applicant’s attitude at the time it was
written.
24.
The Court finds that the instant case is to be distinguished from
cases such as Fortum Corporation v. Finland
(no. 32559/96, § 41, 15 July 2003), K.S.
v. Finland (no. 29346/95, § 22-23, 31 May 2001)
and K.P. v. Finland (no. 31764/96, § 26-27, 31
May 2001), in which the Court found a violation on account of a
failure to communicate an opposing party’s opinion. In those
cases the non-communicated documents constituted reasoned opinions on
the merits of the applicant’s appeals, manifestly aimed at
influencing the court’s decision-making. In the two latter
cases the opposing party also called for the appeals to be dismissed.
Likewise, in the case of Lomaseita Oy and Others v. Finland
(no. 45029/98, § 37, 5 July 2005) the Court found a
violation of Article 6 § 1 on account of the failure
to communicate to the applicants material in which the other party
had expressed his opinion on the relevance of the supplementary
police report and the additional legal submission to the Court of
Appeal, thereby intending to influence the court’s judgment.
- The
Court does not consider that the note in the instant case constituted
a reasoned opinion on the merits of the applicant’s appeal nor
was it such a piece of evidence or an observation, filed with the
Insurance Court by the other party (the insurance company), with a
view to influencing that court’s decision. The applicant’s
lack of knowledge of the note did not adversely affect his ability to
challenge the insurance company’s and Accident Board’s
decision before the Insurance Court.
The
Court is not therefore persuaded that there was any procedural
unfairness as regards the manner in which the applicant’s case
was examined in the Insurance Court.
- Accordingly,
there has been no breach of Article 6 § 1 of the Convention.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Holds that there has been no violation of Article 6 §
1 of the Convention.
Done in English, and notified in writing on 7 June 2007, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
T.L. Early Nicolas Bratza
Registrar President
