(Application no. 38267/97)
27 January 2004
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 H.A.L. v. Finland,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
Sir Nicolas Bratza, President,
Mr M. Pellonpää,
Mrs V. Strážnická,
Mr M. Fischbach,
Mr R. Maruste,
Mr S. Pavlovschi,
Mr L. Garlicki, judges,
and Mr M. O’Boyle, Section Registrar,
Having deliberated in private on 6 January 2004,
Delivers the following judgment, which was adopted on that date:
1. The case originated in an application (no. 38267/97) against the Republic of Finland lodged with the European Commission of Human Rights (“the Commission”) under former Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Finnish national, H.A.L. (“the applicant”), on 29 September 1997.
2. The applicant, who had been granted legal aid, was represented by Mr Markku Fredman, a lawyer practising in Helsinki. The Finnish Government (“the Government”) were represented by their Agent, Mr Arto Kosonen, Director in the Ministry for Foreign Affairs.
3. The applicant complained, in particular, that Article 6 § 1 of the Convention had been violated due to the unfair proceedings concerning his entitlement to an extended daily sickness allowance.
4. The application was transmitted to the Court on 1 November 1998, when Protocol No. 11 to the Convention came into force (Article 5 § 2 of Protocol No. 11).
5. The application was allocated to the Fourth Section of the Court (Rule 52 § 1 of the Rules of Court). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1.
6. On 1 November 2001 the Court changed the composition of its Sections (Rule 25 § 1). This case was assigned to the newly composed Fourth Section (Rule 52 § 1).
7. By a decision of 4 February 2003, the Court declared the application partly admissible.
8. The applicant and the Government each filed observations on the merits (Rule 59 § 1). The Chamber having decided, after consulting the parties, that no hearing on the merits was required (Rule 59 § 3 in fine), the parties replied in writing to each other’s observations.
I. THE CIRCUMSTANCES OF THE CASE
9. The applicant was born in 1953 and lives in Helsinki.
10. On 4 October 1995 the local office of the Social Insurance Institution (kansaneläkelaitos, folkpensionsanstalten) granted the applicant a daily sickness allowance on account of his incapacity for work from 11 September 1995 onwards. On 16 October 1995 his allowance was extended until 31 October 1995.
11. On 16 October 1995 Dr M.M., a psychiatrist treating the applicant, considered him incapacitated for work from 11 September 1995 until 31 March 1996 on account of his depression and anxiety. On the strength of that opinion the applicant requested that he be granted a daily sickness allowance for the period 1 November 1995-31 March 1996.
12. The medical expert consulted by the local office of the Social Insurance Institution, Dr U.L., found in his opinion of 24 October 1995 that the applicant’s alleged incapacity for work was principally of a subjective nature, although the criteria for serious mental distress were not met. While not considering the applicant incapable for work, Dr U.L. recommended that an opinion be obtained from an expert in psychiatry before a new decision was reached on the applicant’s request.
13. In his opinion of 27 October 1995 Dr K.K., a psychiatrist, found on the basis of the information available that the applicant had been capable of working as of 1 January 1995.
14. Neither Dr U.L. nor Dr K.K. examined the applicant in person. Their identities and opinions were not known to the applicant until they were indicated by the Government in the course of the Convention proceedings.
15. On 15 November 1995 the Social Insurance Commission (sosiaali-vakuutustoimikunta, socialförsäkringskommissionen) of Helsinki refused the applicant’s request to have his allowance extended until 31 March 1996. The Commission, relying on section 14 of the Sickness Insurance Act (sairasvakuutuslaki, sjukförsäkringslag 364/1963), reasoned as follows:
“A person who is incapacitated for work shall be entitled to a daily allowance. Incapacity for work is defined as a condition caused by an illness and during which the person is unable to perform his or her ordinary, or closely comparable, work. Your function as a tourist secretary has been regarded as your ordinary work.
On the basis of the material adduced you cannot be considered unable to perform this work or a closely comparable one.
For this reason, you are not entitled to a daily allowance.”
16. The applicant appealed to the Social Insurance Board (sosiaalivakuutuslautakunta, socialförsäkringsnämnden) for Southern Finland, adducing a report of 24 November 1995 in which his treating physician, Dr K.R., agreed with Dr M.M. that the applicant was incapacitated for work during the period in question, on account of his depression, panic feelings and neurosis. In its opinion to the Board dated 2 January 1996, but not forwarded to the applicant for his possible comments, the Social Insurance Commission explained the challenged decision as follows:
“On the basis of medical certificates of the A category, [the applicant] was granted a daily allowance until 31 October 1995 on the basis of his incapacity for work which had commenced on 11 September 1995. Subsequently he adduced a certificate of the B category in which a psychiatrist considered him incapacitated for work until 31 March 1996 on account of his depression and undefined anxiety. In the opinion of the medical expert, a psychiatrist, the insured had to be considered fit for work. A further certificate of the B category, issued by a different doctor, has been appended to the appeal. The medical expert is of the opinion that there is no reason to amend the previous decision.
Since the appellant has not adduced any new information which was not known to the [Social Insurance] Commission at the time of its decision, it is proposed that the appeal be rejected.”
17. On 29 March 1996 Dr M.M. considered that the applicant remained incapacitated for work until 30 June 1996 on account of his depression. Relying on this opinion, the applicant sought a daily allowance for the period 1 April-30 June 1996.
18. On 10 April 1996 the Social Insurance Commission refused the request for exactly the same reasons as in its decision of 15 November 1995 and again relying on section 14 of the Sickness Insurance Act.
19. The applicant appealed. In its opinion to the Social Insurance Board dated 18 April 1996, and again not forwarded to the applicant for possible comments, the Social Insurance Commission stated as follows:
“[The applicant’s] earlier request for a daily allowance for the period 1 November 1995-31 March 1996 was refused and that decision has been appealed against as well. The insured sought to have his daily allowance granted for a further period, relying on a certificate of the B category issued by a psychiatrist. According to the opinion of the medical expert, the insured has to be considered fit to work.
Since nothing new has been adduced in the [applicant’s current] appeal, it is proposed that it be rejected.”
20. In a further opinion of 30 May 1996 Dr M.M., without taking a position in regard to the applicant’s incapacity for work, maintained his diagnosis that the applicant was suffering from undefined anxiety. Relying on this opinion and on all previous evidence, the applicant sought a daily allowance from 1 July 1996 onwards.
21. On 4 July 1996 the Social Insurance Board rejected the applicant’s appeals against the Social Insurance Commission’s decisions of 15 November 1995 and 10 April 1996, relying on the reasons and the legal provision invoked in those decisions. According to the Board’s decision, it had taken note of the Social Insurance Commission’s opinions to the effect that no new material had been adduced which would have justified a change in the challenged decisions. The Board’s decision did not mention the existence of any opinions issued by the consulting medical experts. The applicant appealed to the Appellate Board for Social Insurance (tarkastuslautakunta, prövningsnämnden).
22. On 17 July 1996 the Social Insurance Commission refused the applicant a daily allowance from 1 July 1996 onwards, with the following reasoning:
“A person who is incapacitated for work shall be entitled to a daily allowance. Incapacity for work is defined as a condition caused by an illness and during which the person is unable to perform his or her ordinary, or closely comparable, work.
On the basis of the material adduced you cannot be considered unable to perform this work or a closely comparable one.
For this reason, you are not entitled to a daily allowance.”
23. On 16 September 1996 the Social Insurance Board rejected the applicant’s appeal against the aforementioned decision, to which he had appended Dr K.R.’s opinion of 3 July 1996. The Board took note of the Social Insurance Commission’s opinion to the effect that no new material had been adduced which would justify a change in the challenged decision. The Board then relied on the reasons and the legal provision invoked by the Social Insurance Commission. The Board’s decision did not mention the existence of any opinion issued by the consulting medical experts.
24. The applicant again appealed to the Appellate Board for Social Insurance, inter alia adducing a fresh medical opinion of 15 October 1996 in which Dr K.R., maintaining his previous diagnosis, had considered that the applicant remained incapacitated for work until 30 May 1997.
25. On 25 March 1997 the Appellate Board for Social Insurance rejected the applicant’s appeals against the Social Insurance Board’s decisions of 4 July and 16 September 1996 by relying on the reasons given by the Social Insurance Commission in its decisions of 15 November 1995 and 10 April 1996. The Appellate Board’s decisions were dispatched to the applicant on 8 April 1997. No further appeal lay open.
26. On 13 October 1997 the Social Insurance Institution refused the applicant’s request to undergo an examination of his capacity for work by a specialist of the Social Insurance Institution’s own choosing. It recalled that the applicant’s capacity for work had been assessed on the basis of written documentation on three separate occasions and each time by different persons. The decisions refusing him an extended daily sickness allowance had been upheld by all appellate instances and concerned the years 1995-96. The applicant’s capacity for work at that point in time could no longer be assessed by a doctor who had not been treating him at the time. The applicant’s capacity for work at that time had already been assessed by doctors who knew him then, and his requests for a further allowance had been decided on the basis of their opinions.
II. RELEVANT DOMESTIC LAW
27. According to the Sickness Insurance Act, a daily allowance shall be payable to anyone suffering a loss of income due to his or her incapacity for work. Section 14 defines such incapacity as a condition caused by an illness and during which the person is unable to perform his or her ordinary, or closely comparable, work.
28. Under section 31, subsection 1 (832/1996), of the said Act, the Social Insurance Board has a possibility to order the insured person to undergo further medical examinations and thereby request medical statements from physicians specialised in the area of medicine in question.
29. The members of the Appellate Board for Social Insurance are appointed by the Council of State (valtioneuvosto, statsrådet) for a maximum of four years but with a possibility of being re-appointed (section 54, subsections 2 and 3 of the Sickness Insurance Act).
30. According to the 1964 Decree on the Appellate Board (asetus tarkastuslautakunnasta, förordning om prövningsnämnden 422/1964), that Board shall consist of a Chairman, two Vice-Chairmen and the requisite number of further members who shall either be lawyers or medical doctors, or be experienced in the conditions of insured persons. The Chairman and the Vice-Chairmen must have a law degree and possess experience as judges (section 2, as amended by Decree no. 1121/1995). The Appellate Board may sit in chambers consisting of a Chairman, at least one lawyer and one doctor and two members experienced in the conditions of the insured (section 7, as amended by Decree no. 1121/1995). The casting vote both in plenary and chamber sessions rests with the Chairman (section 14). The Council of State may, when necessary, appoint a Chairman ad interim or appoint a member to replace a member of the Board temporarily (section 6, as amended by Decree no. 1044/1994). According to section 54, subsection 3, of the Sickness Insurance Act (as amended by Act no. 279/1999 as from 1 April 1999), the right of a member of the Appellate Board to remain in office shall be governed by the provisions concerning professional judges.
31. The rules concerning the possible bias of a member of the Appellate Board are to be found in the Code of Judicial Procedure (Oikeudenkäymiskaari, Rättegångs Balk), as read in conjunction with section 76 of the 1996 Act on Judicial Procedure in Administrative Matters (hallintolainkäyttölaki, förvaltningsprocesslag 586/1996). All members of the Appellate Board must have sworn or must swear a judicial oath before taking up office (section 9 of the 1964 Decree).
32. At the relevant time the procedural rules applicable to regular courts in principle also applied to the Appellate Board, its procedure being merely written (section 8; repealed by Decree no. 380/1999 adopted in connection with the amendment to section 54 of the Sickness Insurance Act which, in the Government’s opinion, rendered it possible to hold oral hearings before the appellate bodies in the field of social insurance).
33. According to the applicant, Finnish law never prevented social insurance bodies from holding oral hearings. Moreover, even after the 1999 amendment the law has been interpreted very narrowly as regards the need for oral hearings. The applicant refers to Supreme Court precedent no. 2003:35 by which a case was remitted to the Insurance Court with a view to an oral hearing being held for the purpose of taking testimony from a doctor who had provided a written summary of medical reports concerning the appellant. The Insurance Court had refused his request for an oral hearing, considering it manifestly unnecessary.
I. THE GOVERNMENT’S PRELIMINARY OBJECTION
34. The Government questioned whether the applicant had exhausted domestic remedies in an adequate manner, given that in his appeals to the Appellate Board for Social Insurance he could have referred to the allegedly deficient reasoning which the Social Insurance Commission and the Social Insurance Board had relied on when refusing to extend his sickness allowance.
35. The applicant maintained that he should be excused for not having included in his appeals his misgivings about the deficient reasoning in the challenged decisions. A layman could not be expected to appeal on such a ground if the decision-making authority had failed to provide adequate reasons.
36. In its decision on admissibility the Court joined this objection to the merits of the complaint under Article 6 § 1 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
37. The applicant complained under Article 6 § 1 of the Convention that the proceedings concerning his entitlement to an extended sickness allowance had been unfair. The authorities had failed to reason adequately why they had disregarded the medical evidence submitted by his own doctors and had failed to communicate to him the identities and opinions of the medical experts consulted by the authorities. He had therefore been unable to challenge effectively the assessment of his capacity for work. Instead of disregarding the opinions of his two treating doctors and adopting the views of two experts who had never examined him the Social Insurance Institution should have referred him to further examinations with a view to assessing his incapacity for work.
38. The applicant further submitted that the reasons he had been given had failed to meet the requirements of Article 6. Whereas it might be permissible under that provision for an appellate court to endorse a lower body’s reasons without adducing any of its own, deferring to the lower body’s reasons requires that those are sufficient in themselves, thereby enabling an appellant to exercise his right of appeal in an effective manner.
39. Article 6 § 1 of the Convention reads, in so far as relevant, as follows:
“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law. ...”
40. The Government left it to the Court to determine whether the requirements of Article 6 § 1 had been satisfied in the particular circumstances. Although a more substantial reasoning might have been desirable, the Social Insurance Commission and, by implication, the Appellate Board for Social Insurance had given succinct reasons for rejecting the applicant’s requests and appeals, and the proceedings in issue had therefore not been unfair or otherwise arbitrary. The Appellate Board had addressed the essence of the points which the applicant had asked it to consider. In upholding the decisions of the Social Insurance Commission – which it had appended to its own – the Appellate Board had incorporated the essence of the reasoning provided by the first-instance organ, concluding that the applicant had not presented any new submissions which would have had a bearing on the outcome of his appeal. In its reasoning the Social Insurance Commission had briefly referred to the requirements imposed by the legislation, had noted the applicant’s work description and had observed that on the basis of the material adduced by him he could not be considered unable to perform such work or a closely comparable one.
41. The Government admitted, however, that the Social Insurance Commission’s decisions and, consequently, the decision of the Appellate Board had not explained how the general grounds referred to in the relevant legal provision had been applied to the applicant’s specific circumstances. The reasons stated by the Social Insurance Commission being partly of a general nature, the Appellate Board could have specified those reasons. Nevertheless, in cases involving daily sickness allowance a detailed statement of reasons may often be difficult to produce because the conclusion as to whether or not someone was capable of working was based on an overall assessment.
42. The Government furthermore conceded that the various decisions had not mentioned the two medical experts’ views on the applicant’s requests for an extended allowance. Nevertheless, he would have had the right to see the relevant material had he expressed a wish to obtain such access. He could also have submitted further evidence during the appeal proceedings. At any rate the consulting experts had been under a duty to provide objective opinions on his requests so as to ensure the principle of equality between various applicants for social insurance benefits. For the purposes of social insurance matters, the assessment of a patient’s capacity for work was to be made by a doctor treating him or her. The applicant had not been referred to further examinations as the various opinions submitted by his treating doctors had been considered adequate. Having him undergo an examination by the consulting experts might have led to a treatment relationship between him and them, which would have disqualified the latter.
43. The Court notes at the outset that the applicability of Article 6 § 1 is not in dispute. The parties furthermore appear to agree that the Appellate Board for Social Insurance meets the requirements of a “tribunal” within the meaning of that provision. The Court sees no reason to differ, having detected no specific element which could permit it to reach a conclusion to the contrary.
44. The right to adversarial proceedings means in principle the opportunity for the parties to court proceedings falling within the scope of Article 6 to have knowledge of and comment on all evidence adduced or observations filed, with a view to influencing the court’s decision (see, for example, Kerojärvi v. Finland, judgment of 19 July 1995, Series A no. 322, p. 16, § 42; Nideröst-Huber v. Switzerland, judgment of 18 February 1997, Reports of Judgments and Decisions 1997-I, p. 108, § 24).
45. Regardless of whether or not an applicant had a theoretical right of access to the documents which the relevant authorities had failed to communicate to him, the Court in a somewhat similar case placed the onus on the competent tribunal to ensure his proper participation in the proceedings, including by communicating all documents on file, even if only potentially relevant to the outcome of the matter (see the Kerojärvi judgment, ibid.).
46. More particularly, in K.P. v. Finland (no. 31764/96, 31 May 2001) the Court held as follows:
“27. The Court notes that the opinions in question constituted reasoned opinions on the merits of the applicant’s appeals, manifestly aiming at influencing the decisions of the lower appellate bodies and the Insurance Court by calling for the appeals to be dismissed. Whatever the actual effect which the various opinions may have had on the decisions of the Insurance Court in the final instance, 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 decisions.”
47. The Court relied on similar reasoning in K.S. v. Finland (no. 29346/95, 31 May 2001) and it is equally applicable in the present case. In sum, it was for the applicant to assess whether the opinions submitted by U.L. and K.K. – in their capacity as experts consulted by the Social Insurance Institution – required his comments. The onus was therefore on the Appellate Board for Social Insurance in the last instance to afford him that possibility. As it failed to do so the applicant was unable to challenge effectively the assessment of his capacity for work, remaining unaware until the Convention proceedings of the opinions of the consulting experts, who had never even examined him in person.
48. Turning next to the allegedly inadequate reasoning for refusing the applicant’s requests and dismissing his appeals, the Court notes that initially he had been granted a sickness allowance for about six weeks. His requests for an extension were refused without any indication as to why the medical reports issued by his treating doctors had been disregarded. The superior bodies refused his appeals by referring to the reasons given by the first-instance authority.
49. The Court reiterates its judgment in Hirvisaari v. Finland (no. 49684/99, 27 September 2001), in which the Pension Board and the Insurance Court were found to have failed to provide adequate reasons for discontinuing a full disability pension and granting the applicant only a partial one. The Court found as follows:
“30. The Court reiterates that, according to its established case-law reflecting a principle linked to the proper administration of justice, judgments of courts and tribunals should adequately state the reasons on which they are based. The extent to which this duty to give reasons applies may vary according to the nature of the decision and must be determined in the light of the circumstances of the case. Although Article 6 § 1 obliges courts to give reasons for their decisions, it cannot be understood as requiring a detailed answer to every argument. Thus, in dismissing an appeal, an appellate court may, in principle, simply endorse the reasons for the lower court’s decision (see the García Ruiz v. Spain judgment of 21 January 1999, Reports of Judgments and Decisions 1999-I, § 26; and the Helle v. Finland judgment of 19 December 1997, Reports 1997-VIII, §§ 59 and 60). A lower court or authority in turn must give such reasons as to enable the parties to make effective use of any existing right of appeal.
31. In the present case, the Court observes that the first part of the reasons given by the Pension Board merely referred to the relevant provisions of law, indicating the general conditions under which an employee is entitled to receive pension. In the second part of the reasoning it was mentioned that the applicant’s mental state had deteriorated during the autumn of 1997, the symptoms of his illness, however, being considered mild. On these grounds the Pension Board found the applicant partly capable of working as from 1 June 1997. While this brevity of the reasoning would not necessarily as such be incompatible with Article 6, in the circumstances of the present case the decision of the Board failed to satisfy the requirements of a fair trial. In view of the fact that the applicant had earlier received a full invalidity pension, the reference to his deteriorating state of health in a decision confirming his right to only a partial pension must have left the applicant with a certain sensation of confusion. In these circumstances the reasoning cannot be regarded as adequate.
32. Nor was the inadequacy of the Board’s reasoning corrected by the Insurance Court which simply endorsed the reasons for the lower body’s decision. While such a technique of reasoning by an appellate court is, in principle, acceptable, in the circumstances of the present case it failed to satisfy the requirements of a fair trial. As the applicant’s main complaint in his appeal had been the inadequacy of the Pension Board’s reasoning, the more important was it that the Insurance Court give proper reasons of its own.”
50. The same considerations are in principle valid also in the present case. What is more, this applicant had substantiated his requests for an extended sickness allowance by adducing various certificates in which his treating doctors attested his incapacity for work. The Social Insurance Commission, whose reasons the Appellate Board for Social Insurance relied on, essentially described the applicable legal provision and noted the evidence adduced by the applicant but provided no reasoning as to why that evidence was considered insufficient.
51. In sum, the applicant was not provided with sufficient information enabling him to participate properly in the proceedings up to and including the Appellate Board for Social Insurance. It follows that the Government’s preliminary objection must be dismissed.
52. This leads the Court to conclude that the applicant was deprived of a fair hearing within the meaning of Article 6 § 1 of the Convention, which provision has been violated.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
53. 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. Non-pecuniary damage
54. The applicant claimed to have suffered distress owing to the breach of Article 6. He relied on a medical certificate of 22 April 2003 and requested the Court to award an appropriate amount of compensation therefore.
55. The Government likewise left it to the Court’s discretion to determine the sum to be awarded under this head.
56. The Court accepts that the lack of Article 6 guarantees in the proceedings caused the applicant distress which cannot be made good by the mere finding of a violation. Making its assessment on an equitable basis, the Court therefore awards him EUR 4,000.
B. Costs and expenses
57. The applicant claimed EUR 1,733.10, following deduction of the legal aid granted by the Court in the amount of EUR 630. He had paid EUR 222 for having a medical statement translated into English (see paragraph 54).
58. The Government considered that the costs incurred by his having a recent medical certificate translated into English did not have such a direct causal link with the possible violation that this part of his claim should be accepted. Moreover, given that two thirds of the claim concerned complaints declared inadmissible, the large majority of the costs and expenses could not be considered necessary for the purpose of enabling the applicant to assert his right to a fair hearing.
59. The Court finds the applicant’s claim justified except with regard to the translation fee. Account being taken of the legal aid granted in the amount of EUR 630 and the other circumstances of the case, the Court therefore awards him EUR 1,500.
C. Default interest
60. The Court considers that the default interest should be fixed at an annual rate equal to the marginal lending rate of the European Central Bank plus three percentage points (see Christine Goodwin v. the United Kingdom [GC], no. 28957/95, § 124, 11 July 2002, to be published in ECHR 2002-VI).
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Dismisses the Government’s preliminary objection and holds that there has been a violation of Article 6 § 1 of the Convention;
(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, the following amounts:
(i) EUR 4,000 (four thousand euros) in respect of non-pecuniary damage;
(ii) EUR 1,500 (one thousand five hundred euros) in respect of costs and expenses;
(iii) any tax that may be chargeable on the above amounts;
(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;
3. Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 27 January 2004, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Michael O’Boyle Nicolas Bratza
H.A.L. v. FINLAND JUDGMENT
H.A.L. v. FINLAND JUDGMENT