FOURTH SECTION

CASE OF VILÉN v. FINLAND

(Application no. 22635/04)

JUDGMENT

STRASBOURG

17 February 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 ,
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 LawrenceEarlySection Registrar,
Having deliberated in private on 27 January 2009,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 22635/04) 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 Pauli Vilén (“the applicant”), on 15 June 2004.
2.  The applicant was represented by Mr T. Takala, a lawyer practising in Hämeenlinna. The Finnish Government (“the Government”) were represented by their Agent, Mr A. Kosonen of the Ministry for Foreign Affairs.
3.  On 13 March 2008 the President of the Fourth Section decided to give notice of the application to the Government. It was also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 3).
THE FACTS
I.  THE CIRCUMSTANCES OF THE CASE
4.  The applicant was born in 1953 and lives in Parola.
5.  The applicant requested sickness benefits due to his incapacity for work for the period from 3 June 2002 until 31 December 2002. On 10 June 2002 the applicant's doctor stated in a certificate that he was incapable of working until 31 December 2002.
6.  The Social Insurance Institution (kansaneläkelaitos - KELA, folkpensionsanstalten – FPA, later “KELA”) rejected his request in two decisions of 28 August 2002. In the decisions his disability was described in detail, but he was not considered incapable of working. The decision was based on section 14 of the Sickness Insurance Act (sairasvakuutuslaki,  sjukförsäkringslag 364/1963).
7.  On 13 September 2002 the applicant appealed to the Social Insurance Board (sosiaalivakuutuslautakunta, socialförsäkringsnämd). His appeal was rejected on 24 April 2003. In the decision no reference was made to the certificates provided by the applicant's doctor. It stated that the applicant had been given an opportunity to reply to the KELA's statement, but it did not give any details of the statement nor did it state whether the applicant had replied.
8.  On 4 June 2003 the applicant appealed to the Appellate Board for Social Insurance (tarkastuslautakunta, prövningsnämnden, later the “Appellate Board”). His appeal was rejected on 15 January 2004. In the decision no reference was made to the statements by the applicant's doctors or the report from the time he spent in rehabilitation between 8 January and 28 January 2003. Like the decision of the Social Insurance Board, it stated that the applicant had had the opportunity to reply to the KELA's statement, but failed to specify the content of the statement and whether the applicant had replied to it.
9.  On 1 March 2004 the applicant requested information on the documents in his file with the KELA. The documents contained several statements by a medical expert, requested by the KELA at various times. The statements were dated 10 April, 6 June, 22 August and 17 October 2002 and 18 June 2003. None of the authorities had previously provided him with copies of the statements.
10.  , the medical statements in question were also included in the case file of the Appellate Board.
II.  RELEVANT DOMESTIC LAW
11.  Section 34 of the Administrative Judicial Procedure Act ( Act no. 586/1996) and section 15 of the Administrative Procedure Act (hallintomenettelylaki, förvaltningsförfarandelagen, 598/1982, as of 1 January 2004 replaced by hallintolaki, förvaltningslag; 434/2003) provide that, bthe disposal of a case, the parties shall be given an opportunity to comment on the requests of other parties and on any evidence that may affect the outcome of the case. The matter may be resolved without a hearing of the party if his claim is dismissed without considering its merits or immediately rejected or if the hearing is for another reason manifestly unnecessary. For the purpose of submitting comments a party shall also be allowed access to non-public documents if allowed to do so pursuant to the of Government Activities Act.
12.  Section 11, subsection 2 of the of Government Activities Act (Openness Act, julkisuuslaki, offentlighetslagen; 621/1999) reads as follows:
A party, his/her representative or counsel shall not have the right of access ... to: [--]
3) a presentation memorandum, a draft decision or a comparable document prepared by an authority for the preparation of a matter, before the consideration of the matter by that authority has been concluded...
THE LAW
I.  ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION WITH REGARD TO THE NON-COMMUNICATION OF DOCUMENTS
13.  The applicant complained under Article 6 § 1 of the Convention that he did not have access to the documents prepared by the KELA's medical expert for the examination of his case, although those documents were used in the examination of his appeal before the Appellate Board.
14.  Article 6, in its relevant part, reads as follows:
 “In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
15.  The Government contested those arguments.
A.  Admissibility
16.  The Court notes that the complaint about the non-communication of documents by the Appellate Board is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that the Government have not raised any objection based on non-exhaustion of domestic remedies, and that the application is not inadmissible on any other grounds. It must therefore be declared admissible.
B.  Merits
17.  The applicant maintained that the proceedings had not been adversarial as his case file before the Appellate Board included medical opinions which had been prepared by the KELA's expert doctors at various stages of the proceedings. These opinions had not been communicated to him. He discovered these opinions in March 2004 when he asked to examine his case file.
18.  The applicant referred in this respect to the case H.A.L. v. Finland(no. 38267/97, 27 January 2004), stating that the Appellate Board had the duty to ensure that the applicant was able to participate fully in the proceedings, even if the documents in question would only have had potential relevance to the decision.
19.  The Government, referring equally to the case H.A.L. v. Finland, contested the applicant's claim that he had not been able to participate in the proceedings. They stated that the Appellate Board had asked the KELA to submit a statement. In order to prepare the statement the KELA had asked its expert doctors to submit their opinions on the matter. These opinions were considered to form a part of the KELA's internal preparatory documents, within the meaning of section 11, subsection 2 of the Openness Act. The Government noted that the substance of the medical opinions was contained in the KELA's statement which had been submitted to the Appellate Board and to the applicant, in accordance with section 15 of the Procedure Act and section 34 of the Administrative Judicial Procedure Act and as mentioned in the Appellate Board's decision of 15 January 2004.
20. Accordingly, the applicant had had access to the contents of the expert doctors' opinions already during the proceedings through the KELA's statement. The principle of equality of arms under Article 6 § 1 had thus been respected.
21.  The Court points out that the fairness of proceedings must be assessed with regard to the proceedings as a whole (see Dallos v. Hungary, no. 29082/95, § 47, ECHR 2001‑II). One of the elements of the broader concept of a fair trial isthe principle of equality of arms, which requires each party to be given a reasonable opportunity to present his or her case under conditions that do not place him or her at a substantial disadvantage vis-à-vis his opponent (see, among many other authorities, Nideröst-Huber v. Switzerland, 18 February 1997, § 23, Reports of Judgments and Decisions1997‑I. 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 (see Lobo Machado v. Portugal, 20 February 1996, § 31, Reports of Judgments and Decisions1996‑I). This position is not altered when the observations are neutral on the issue to be decided by the court (see Göç v. Turkey[GC], no. 36590/97, § 55, ECHR 2002‑V or, in the opinion of the court concerned, they 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 (see Nideröst-Huber v. Switzerland, cited above, § 29).
22.  The Court notes that the opinions in question constituted reasoned opinions on the merits of the applicant's appeal. The opinions were submitted to the Appellate Board. It is irrelevant whether the information from the opinions was included in the statements submitted by the KELA, whether the opinions had previously been internal preparatory documents within the KELA, and whether they actually had an effect on the decision of the Appellate Board or not. As they were included in the case file of the Appellate Board it was for the applicant to assess whether they required his comments. It was therefore the duty of the Appellate Board to afford the applicant an opportunity to comment on the opinions prior to its decision.
23.  The procedure followed did not enable the applicant to participate properly in the proceedings and thus deprived him of a fair hearing within the meaning of Article 6 § 1 of the Convention. Accordingly, there has been a violation of that provision.
II. THE REMAINDER OF THE APPLICANT'S COMPLAINTS
24.  The applicant further complained under Article 6 § 1 of the Convention that the reasoning of the Appellate Board's decision was insufficient since it did not mention the specific reasons for disregarding the opinions of the doctors who had actually treated him.
25.  The Government argued that in its decision of 15 January 2004 the Appellate Board referred generally to the various medical opinions submitted in the case. The previous decisions discussed the significance of various opinions and gave reasoning for the medical findings, thereby explaining why the applicant was not considered incapable of working. The Appellate Board appeared to endorse those reasons. The Government were of the opinion that, in the particular circumstances, this procedure was sufficient for the purposes of Article 6 § 1 of the Convention.
26.  The applicant contested the Government's view complaining that the decision of the Appellate Board did not establish whether the report of his rehabilitation period was considered as evidence.
27.  The Court observes that the decision of the Appellate Board, however short, specifically mentions the rehabilitation report as part of the material available to it. There is no indication that the report or any other medical opinion provided by the applicant was disregarded.
28.  The Court further notes that according to its case-law, Article 6 § 1 does not require a detailed answer to every argument (see, Van de Hurk v. the Netherlands, 19 April 1994, § 61, Series A no. 288) and as the assessment of evidence is primarily the task of the national courts (see, for example, Doorson v. the Netherlands, 26 March 1996, § 67, Reports of Judgments and Decisions1996‑II) these complaints are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
29.  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
30.  The applicant claimed 4,000 euros (EUR) in respect of non-pecuniary damage for mental suffering.
31.  The Government found the claim too high as to quantum. In the Government's view the applicant should be awarded a reasonable compensation for non-pecuniary damage not exceeding EUR 2,000.
32.  The Court accepts that the lack of guarantees of Article 6 caused the applicant non-pecuniary damage which cannot be made good by the mere finding of a violation. Making its assessment on an equitable basis, the Court therefore awards the applicant EUR 2,000 in respect of non-pecuniary damage.
B.  Costs and expenses
33.  The applicant did not claim any costs and expenses.
C.  Default interest
34.  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
1.  Declares the complaint concerning non-communication of the documents admissible and the remainder of the application inadmissible;

2.  Holds that there has been a violation of Article 6 § 1 of the Convention;
3.  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, EUR 2,000 (two thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage.
(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

4.  Dismisses the remainder of the applicant's claim for just satisfaction.
Done in English, and notified in writing on 17 February 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Lawrence Early	Nicolas Bratza
	Registrar	President