FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 37730/02 
by Risto NIVA 
against Finland

The European Court of Human Rights (Fourth Section), sitting on 28 March 2006 as a Chamber composed of:

Sir Nicolas Bratza, President
 Mr J. Casadevall
 Mr G. Bonello
 Mr M. Pellonpää
 Mr K. Traja
 Mr L. Garlicki, 
 Mr J. Borrego Borrego, judges
and Mr M. O’Boyle, Section Registrar,

Having regard to the above application lodged on 15 October 2002,

Having regard to the partial decision of 16 March 2004,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Risto Niva, is a Finnish national, who was born in 1957 and lives in Alapitkä. He is represented before the Court by Mr Jarmo Kinnunen, a lawyer practising in Helsinki. The respondent Government are represented by Mr Arto Kosonen, Director in the Ministry for Foreign Affairs.

A.  The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

On 5 October 1994 the applicant sustained injuries in a nerve fibre operation on his back in Kuopio. The applicant’s condition improved after a fresh operation carried out in Helsinki on 14 December 1994. On 14 March 1997 he issued a summons claiming pecuniary and non-pecuniary damage and compensation for costs from the Patient Insurance Association (potilasvakuutusyhdistys, patientförsäkringsförening; which was later renamed as the Patient Insurance Board (potilasvakuutuskeskus, patientförsäkringscentral).

The District Court (käräjäoikeus, tingsrätten) of Helsinki held an oral hearing in which, inter alia, five witnesses and experts were heard. In its judgment on 18 June 1998 it found the medical treatment in Kuopio inadequate and ordered the defendant to pay the applicant 20,000 Finnish marks (FIM, amounting to 3363.76 euros (EUR)) as non-pecuniary damage for pain and suffering and to reimburse his medical expenses of FIM 24,001.15 (EUR 4036.70) as well as his legal expenses of FIM 38,367.54 (EUR 6452.96), with interest. It dismissed the applicant’s claims that he was suffering from permanent damage.

Both parties appealed to the Court of Appeal (hovioikeus, hovrätten) of Helsinki. The applicant claimed non-pecuniary damages for permanent damage and a higher amount of damages for pain and suffering.

On 10 March 1999 the Court of Appeal invited the National Authority for Medicolegal Affairs (terveydenhuollon oikeusturvakeskus, rättskyddscentralen för hälsovården) to submit its report in the matter. On 7 April the Authority ordered copies of the applicant’s medical files, which were received on 19 April 1999. On 23 April 1999 the Authority requested the applicant’s X-rays. On 3 May 1999 the hospital informed the Authority that the X-rays had been given to the applicant, from whom the Authority received them on 17 May 1999.

On 18 May 1999 the Authority requested a medical opinion from Dr N., which was delivered on 28 May 1999. On 9 June 1999 the Authority requested a medical opinion from Dr M., which was delivered on 25 October 1999. Considering the two opinions partly contradictory, the Authority asked on 24 November 1999 for a third opinion from professor A.. On 10 May 2000, 2 August 2000 and 18 September 2000 the Authority inquired from professor A. whether the opinion would soon be ready.

On 11 December 2000 the doctor preparing the statement for the Authority made the same inquiry. Professor A.’s opinion was finally submitted on 28 December 2000. On 17 January 2001 the Authority submitted its report to the Court of Appeal.

The Patient Insurance Board and the applicant submitted their observations on the report on 1 February 2001 and 15 February 2001 respectively. The applicant complained, inter alia, about the delay of the National Authority of Medicolegal Affairs in submitting its statement to the Court of Appeal, and invoked Article 6 § 1 of the Convention.

The Court of Appeal held an oral hearing on 13 June 2001 in which it heard three expert witnesses appointed by the applicant and one expert witness appointed by the Patient Insurance Board. The Board decided not to call professor A. as an additional witness at the hearing. On 17 October 2001 the Court of Appeal dismissed the applicant’s claims and quashed the District Court’s judgment. It ordered the applicant to reimburse the other party’s legal expenses of FIM 11,130 (EUR 1871.93). The Supreme Court refused the applicant leave to appeal on 6 June 2002.

Meanwhile, on 31 October 2000 the applicant issued a petition to the Parliamentary Ombudsman (oikeusasiamies, ombudsman) complaining about the length of the proceedings before the National Authority for Medicolegal Affairs. On 2 January 2002 the Deputy Ombudsman criticized the Authority for unreasonable delay in issuing the requested statement. She maintained, however, that the case did not disclose any unlawfulness in violation of section 21 of the Constitution of Finland. The Deputy Ombudsman did not examine the Court of Appeal’s proceedings as the case was at the time still pending before the Supreme Court.

B.  Relevant domestic law

Under section 21 of the Constitution of Finland (perustuslaki, grundlag; 731/1999) – corresponding to section 16 of the prior Constitution Act (hallitusmuoto, regeringsformen) –, everyone is entitled to have his/her case examined before a public authority without undue delay.

Section 2, subsection 2, point 1 of the Patient Injuries Act (potilasvahinkolaki, patientskadelag; 585/1986, as in force at the relevant time) provided that a person was entitled to compensation for personal injuries and damages caused by his/her examination, treatment or other similar measure, or the lack of these.

Chapter 5, section 2 of the Tort Liability Act (vahingonkorvauslaki, skadeståndslag; 412/1974, as in force at the relevant time) provided that a person who had been subjected to bodily injury or other type of personal injury was entitled to compensation for medical expenses and other expenses caused by an accident, as well as for diminished income and maintenance, pain and suffering, handicap and permanent damage.

The activities of the Authority are regulated by an Act and a Decree on the National Authority for Medicolegal Affairs (laki terveydenhuollon oikeusturvakeskuksesta, lag om rättskyddscentralen för hälsovården 1974/1992, asetus terveydenhuollon oikeusturvakeskuksesta, förordning om rättsskyddscentralen för hälsovården, 1121/1992). According to section 19 of the Decree the Authority invites accomplished and experienced persons to act as permanent specialists for a maximum of four years to give professional assistance to the Authority.

COMPLAINTS

The applicant complained under Article 6 § 1 of the Convention that the length of civil proceedings exceeded a reasonable time and that the length of the proceedings before the National Authority for Medicolegal Affairs was excessive.

THE LAW

The applicant complained that the length of the civil proceedings as well as the proceedings before the National Authority for Medicolegal Affairs had been incompatible with the “reasonable time” requirement, provided in Article 6 § 1 of the Convention, which 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 contended that the proceedings were not particularly lengthy at any stage and thus that there was no violation of Article 6 § 1. They conceded that the proceedings before the Court of Appeal lasted some three years and three months but submitted that the delay was caused by the fact that the third medical opinion asked for by the Authority was not submitted until one year, one month and four days later. In this regard, however, the Government emphasised that the number of medical experts in any given specialised field was limited in a country of the size of Finland. It also noted that professor A., like other specialists acting on the Authority’s mandate, performed these duties in addition to their other professional activities, which affected the time required for an opinion. Furthermore, shortly before receiving the request in the present case, professor A. had received requests from the Authority in several complicated cases. No other specialist of professorial level was available. They further opined that the proceedings were somewhat complex, but conceded that the length of the proceedings had not been influenced by the applicant or other parties.

The applicant maintained that the delay caused by the Authority in the proceedings in the Court of Appeal was unacceptably long. He criticised the fact that three opinions were required and that they were asked for one at a time. He pointed out that it was the Government’s duty to make sure that the proceedings did not take too long, and that the limited amount of capable specialists was not a valid excuse in this regard.

The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

For these reasons, the Court unanimously

Declares the application admissible, without prejudging the merits of the case.

Michael O’Boyle Nicolas Bratza 
 Registrar  President

NIVA v. FINLAND DECISION


NIVA v. FINLAND DECISION