FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 58759/00 
by Arja ALAKOSKI 
against Finland

The European Court of Human Rights (Fourth Section), sitting on 13 December 2005 as a Chamber composed of:

Sir Nicolas Bratza, President
 Mr J. Casadevall
 Mr M. Pellonpää
 Mr R. Maruste
 Mr S. Pavlovschi
 Mr J. Borrego Borrego, 
 Mr J. Šikuta, judges
and Mr M. O’Boyle, Section Registrar,

Having regard to the above application lodged on 8 May 2000,

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, Ms Arja Alakoski, is a Finnish national, who was born in 1942 and lives in Loppi. She was initially represented before the Court by Mr Hannu Tuomainen, and subsequently by Ms Leena Kenttämies, both lawyers practising in Riihimäki. The respondent Government were represented by their Agent, 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 parties and as they appear from the documents, may be summarised as follows.

In September 1996 the applicant fell down and injured her leg and ankle, sustaining four different lasting injuries. She was granted a temporary employment-based disability pension. In October 1997 she lodged a further application.

On 11 December 1997 the insurance company refused her a further pension, giving the following reasons for its decision:

“According to the Employee Pensions Act (työntekijäin eläkelaki, lag om pension för arbetstagare; 395/1961) section 4 (3) an employee is entitled to a disability pension if his or her capacity to work is reduced by at least two fifths for a minimum of one year as a result of sickness, a defect or an injury. When assessing the decrease of working capacity, attention shall be paid to the employee’s remaining capacity to pursue gainful employment through available work, which he or she can reasonably be expected to carry out. In addition, attention shall be paid to working experience, age and other comparable circumstances.

According to the information at hand on your state of health, you underwent rectifying surgery with a view to repositioning a fracture in January 1997, after which the ossification has gone well.

We consider that your state of health does not prevent you from returning to your previous work. For these reasons, you could not be considered incapable of working after your pension ceased. That being the case, your application for a continued disability pension has been rejected.”

The applicant appealed to the Pension Board (eläkelautakunta, pensionsnämnden).

In its observations of 12 February 1998 to the Pension Board the insurance company stated that it had reviewed the application and found that the applicant was entitled to a part-time employment-based disability pension from October 1997 onwards, but it requested that the application for a full pension still be rejected as the applicant’s work capacity had not decreased by three fifths. Moreover, the insurance company considered that the applicant did not need any professional rehabilitation. The observations were communicated to the applicant for comment.

In her written submissions the applicant primarily requested that she be granted a full disability pension as her incapacity to work had been reduced by three fifths for the preceding 20 months. Alternatively, she requested that such a pension be granted temporarily from 1 November 1997 until 31 December 1998. She argued that the insurance company had assessed her capacity for work as a bank clerk, although she worked as a real estate agent, which could not be considered as sedentary work. However, the insurance company had by February 1998 accepted the fact that she worked as a real estate agent.

On the strength of four medical statements the applicant pointed out that all three doctors examining her had considered her incapable for work as a real estate agent. The only doctor who considered her capable for work was the one who, without having ever examined the applicant in person, had reported on her case to the insurance company. If the Pension Board in written proceedings were to consider that she was not entitled to a full disability pension, the applicant requested that the Pension Board hear the doctors T., H. and B. treating her and the doctor who had reported on her case to the insurance company as witnesses before the District Court with a view to examining whether she was incapable to carry out her work as a real estate agent.

On 27 April 1998 the Pension Board, without hearing any witnesses, overturned the insurance company’s decision, finding that the applicant was entitled to a full disability pension in the form of a rehabilitation allowance from September 1996 until 30 June 1998 and to a part-time disability pension from 1 July 1998 onwards. The appeal was rejected as to the other claims. The Pension Board, referring to the Employee Pensions Act sections 4 (3, 6-7) and 5 b (1), gave the following reasons for the decision:

“Alakoski has been granted a rehabilitation allowance with a view to facilitating rehabilitation according to a care and rehabilitation plan. Alakoski is prevented from pursuing gainful employment due to incapacity for work. Alakoski’s capacity for work has due to sickness decreased by at least three fifths up until 30 June 1998 and thereafter by at least two fifths. When assessing the decrease of work capacity, attention has been paid to Alakoski’s remaining capacity for pursuing gainful employment through available work, which she can reasonably be expected to carry out. In addition, attention has been paid to [her] training, previous working, age and living conditions and other comparable circumstances.”

The applicant appealed to the Insurance Court (vakuutusoikeus, försäkringsdomstolen). She primarily requested a full disability pension as her incapacity to work had been reduced by three fifths. Alternatively, she requested such a pension temporarily from 1 November 1997 until 31 December 1998.

The applicant, adducing further written medical statements, again pointed out that the opinion of the three doctors treating her differed from the opinion of the doctor who had reported on her case to the insurance company, a person she had not even met. Moreover, she argued that the Pension Board gave no reasons as to why the date 30 June 1998 was decisive in its decision, although the doctors treating her had found that she was incapable for work at least until 31 December 1998. If the Insurance Court in written proceedings were to consider that she was not entitled to a full disability pension, the applicant repeated her request concerning hearing the doctors as witnesses. At this point she also proposed doctor P. as a witness. The applicant considered it important that they be heard also as to whether her capacity for work should be assessed differently as to the period prior to 30 June 1998 and as to the period thereafter.

In its observations of 22 July 1998 the insurance company maintained its earlier standpoint. They were communicated to the applicant for comment.

In its decision of 14 October 1999 the Insurance Court noted that the applicant had submitted five new written medical opinions. They had all been issued after the Pension Board’s decision. It refused the request to hear the doctors as witnesses before the District Court as manifestly unnecessary and upheld the Pensions Board’s decision. Referring to the Employee Pensions Act sections 4 (3) and 5 b (1) and the Insurance Court Act (laki vakuutusoikeudesta, lag om försäkringsdomstolen; 14/1958) section 9, the Insurance Court gave the following reasons for the decision:

“The reasons are given in the Pension Board’s decision. In addition, the Insurance Court notes that according to the submitted medical information the fracture on Alakoski’s left ankle was in May 1998 noted to have ossified. A faulty alignment remains and a degenerative arthritis has developed in the ankle joint. Alakoski has in a majority of the medical opinions been assessed as incapable of working either as a real estate agent or doing other work which places a strain on her legs. The medical opinions differ as to the duration of the incapacity. Alakoski has worked as a bank clerk with different tasks for a long period of time. Having been laid off, Alakoski took a real estate agent exam, but she did not manage to work as a real estate agent before she was injured. The Insurance Court finds that Alakoski can on the basis of the submitted information be considered to be partly able to work with tasks that correspond to her education and professional skills. Her ability to work can accordingly not be considered to have been reduced after 30 June 1998 in such a way, i.e. by three fifths, as to entitle her to a full pension under the Employee Pensions Act.”

No further appeal was possible.

B.  Relevant domestic law and practice

1.  Procedure

Section 16 (2) of the then Constitution (Suomen hallitusmuoto, Regeringsform för Finland; 94/1919) provided that a decision must be reasoned. A new similar provision can be found in section 21 (2) of the Constitution of Finland (Suomen perustuslaki, Finlands grundlag; 731/1999).

At the relevant time chapter 24, section 15 (1064/1991) of the Code of Judicial Procedure (oikeudenkäymiskaari, rättegångsbalken) provided that a judgment must be reasoned, indicating the facts and the legal argumentation on which it was based and the grounds which have led the court to hold a disputed issue established or unsubstantiated.

Section 9 of the then Insurance Court Act (laki vakuutusoikeudesta, lagen om försäkringsdomstolen; 14/1958) provided that proceedings in the Insurance Court were written. When there were exceptional reasons, the Insurance Court could however decide to hold an oral hearing. It also provided that the provisions concerning proceedings in general courts were, mutatis mutandis, applied to those before the Insurance Court.

2.  Reservation to the Convention

According to the reservation made by Finland in accordance with Article 64 of the Convention, as in force at the relevant time, Finland could not guarantee a right to an oral hearing in so far as Finnish laws at the time of the events in issue did not provide such a right. This applied, inter alia, to proceedings which were held before the Insurance Court as the court of final instance, in accordance with section 9 of the Insurance Court Act (14/1958), and proceedings before the Supreme Court in accordance with chapter 30, section 20 of the Code of Judicial Procedure. Finland withdrew the reservation on 1 April 1999. The reservation was applicable to the present case.

COMPLAINTS

1. The applicant complained, under Article 6 §§ 1 and 3 (d) of the Convention, that she was denied a fair trial in that the Insurance Court did not afford her an opportunity to hear as witnesses before the District Court the doctors examining her as well as the doctor who had reported on her case to the insurance company. Nor did the Insurance Court reason its decision in that regard. The applicant underlined that she did not complain about the lack of an oral hearing before the Insurance Court.

2. The applicant also complained, under Article 6 § 1 of the Convention, that the Insurance Court ignored the written medical opinions by the doctors treating her, which were the main evidence in the present case, or at least misinterpreted them. It based its decision on the written medical opinion of a doctor who had never met the applicant, let alone treated her. The Insurance Court failed to reason adequately why it disregarded the medical evidence given by the applicant’s own physicians and thus, it did not give proper reasons for its decision.

THE LAW

The applicant complained that the Insurance Court refused her request that the doctors be heard as witnesses. She also complained that the Insurance Court rejected her appeal without giving proper reasons. She relied on Article 6 §§ 1 and 3 (d) of the Convention, which read in relevant part:

“1.  In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”

...

3.  Everyone charged with a criminal offence has the following minimum rights:

...

(d)  to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;

.”

1. Insofar as the applicant complained that the doctors were not heard as witnesses, the Court considers that the applicant’s complaint is effectively a complaint that there was no hearing before the Insurance Court.

The Court notes the terms of the Finnish reservation to the Convention as to the holding of oral hearings before the Insurance Court, which was in force at the relevant time.

It follows that this complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.

2. Insofar as the applicant complained that the Insurance Court’s decision lacked proper reasoning, the Government submitted that the doctors treating the applicant had provided several written medical opinions on her injuries and her treatment, all of which were available to the Insurance Court. It incorporated in its decision the reasons given by the Pension Board and the decision of the latter was annexed to the court’s decision. In addition, the court briefly summarised the additional new documentation, including the fresh medical opinions, and gave its conclusion on the facts. It assessed the individual circumstances of the applicant as well as her current health situation, previous working experience and latest training. In cases involving a disability pension a detailed statement of reasons may often be difficult to provide because the assessment of the work capacity is based on an overall assessment. The applicant’s contention that the medical opinions submitted by her had been disregarded must be rejected as the Insurance Court specifically mentioned the five medical opinions that had been issued after the Pension Board’s decision. Whether the applicant’s work capacity had diminished by two fifths or three fifths and until what date was at the court’s discretion. It did not dispute the conclusions of the medical evidence as such, but merely assessed the length of the period of diminished working capacity, giving entitlement to a higher level of pension, differently from the conclusions in some of the medical opinions. The fact that the applicant was considered unable to continue in her previous profession did not mean that she was not able to work at all.

The Government argued that the facts of Hirvisaari v. Finland (no. 49684/99, 27 September 2001) were different from the present case. In the former case the Pension Board acknowledged the fact that the applicant’s depression had worsened and yet it decided that he was no longer entitled to the full invalidity pension he had received so far. The reference to his deteriorating state of health in a decision confirming his right to only a partial pension had left the applicant in a state of confusion. In the present case, although the court’s decision did not correspond to the applicant’s wishes, it was reasoned and not contradictory in terms. Although the reasons could have been somewhat more extensive and the application of the legislation to the specific circumstances of the case could have been set out in more detail, the court gave sufficient and non-contradictory reasons for rejecting the appeal.

The applicant submitted that the circumstances of her case were such as to require a detailed answer as to why the Insurance Court did not find in her favour. The written medical opinions were the only evidence in the case. Thus, the court should have weighed them against each other and provided reasons for its conclusions.

The applicant also argued that the Insurance Court could not simply endorse the Pension Board’s reasoning as she had submitted several written medical opinions issued after that decision. What is more, as two of the written opinions had been issued by doctors who had treated the applicant, the court was required to explain why it came to the conclusion it did. The applicant made reference to the case of Hirvisaari v. Finland (cited above), considering that case to be similar to hers. The applicant did not receive any explanation as to why her health condition was considered to have improved since 30 June 1998. No such improvement had in fact taken place. Moreover, the Pension Board made reference to a rehabilitation plan although no such plan existed. Also this would have required the Insurance Court to provide more sufficient reasoning.

The Court reiterates its judgment in Hirvisaari v. Finland 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.”

The Court observes that the applicant in the present case had initially been granted a temporary employment-based disability pension. Her further application was granted up until 30 June 1998 in the form of a rehabilitation allowance. Thereafter, she received a part-time employment-based disability pension. She had sought to substantiate her request for a full disability pension by adducing various medical opinions in which her treating doctors attested her incapacity for work, some considering the incapacity to be of a permanent nature, some considering it to be of only a temporary character. The Insurance Court identified and explained the applicable legal provision and noted the evidence adduced by the applicant. It set out its conclusions on the medical evidence. Therefore, even though its reasoning did not contain express reference to the doctors, there is no indication that the applicant’s arguments were not properly or fairly examined.

The present case can be distinguished from the case of Hirvisaari v. Finland in that the Insurance Court, having endorsed the Pension Board’s reasoning, supplemented that reasoning. Nor was its reasoning contradictory.

The Court cannot conclude therefore that the applicant in the present case was deprived of a fair hearing within the meaning of Article 6 § 1 of the Convention.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Michael O’Boyle Nicolas Bratza 
 Registrar President

ALAKOSKI v. FINLAND DECISION


ALAKOSKI v. FINLAND DECISION