FOURTH SECTION
DECISION
Application no. 59531/08
by V.S.
against Finland
The European Court of Human Rights (Fourth Section), sitting on 12 January 2010 as a Chamber composed of:
Nicolas Bratza, President,
Giovanni Bonello,
David Thór Björgvinsson,
Ján Šikuta,
Päivi Hirvelä,
Ledi Bianku,
Nebojša Vučinić, judges,
and Fatoş Aracı, Deputy Section Registrar.
Having regard to the above application lodged on 9 December 2008,
Having regard to the observations and declaration submitted by the respondent Government and the comments in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
The applicant is a Finnish national who was born in 1955. He was represented before the Court by Mr Esa Puranen, a lawyer practising in Jyväskylä. The Finnish Government (“the Government”) were represented by their Agent, Mr Arto Kosonen of the Ministry for Foreign Affairs.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
On 9 March 1999 the applicant was the victim of an assault. His attackers remained unknown. After the incident, the applicant suffered from various medical problems for which he sought compensation from an insurance company on the basis of a voluntary insurance policy.
On 11 April 2001, dissatisfied with the subsequent insurance settlement, the applicant filed a civil suit against the insurance company in the Turku District Court (käräjäoikeus, tingsrätten) claiming compensation for brain damage. He had also developed bipolar disorder, allegedly as a result of the assault. The insurance company contested the claim, arguing that the applicant did not have brain damage and that his symptoms were not related to the assault. It also pointed out that the applicant had already suffered from mental problems prior to the incident.
The court held an oral hearing where it heard testimony from, inter alia, four doctors, two specialised in neurology and the other two in psychiatry. The court was also presented with written evidence, including several medical reports.
On 7 January 2003 the court issued its judgment. Noting the somewhat inconsistent findings of the medical experts the court, nevertheless, concluded that the applicant had sustained permanent and severe brain damage as a result of the assault, which left him partially disabled for his previous work and similar lines of work. Accordingly, the court confirmed that the applicant was entitled to a more extensive settlement under the applicable insurance terms.
Both parties appealed against the judgment to the Turku Court of Appeal (hovioikeus, hovrätten), the applicant claiming full disability for work. The insurance company requested that the appellate court hold an oral hearing and that an expert opinion be obtained from the National Authority for Medico-legal Affairs (Terveydenhuollon oikeusturvakeskus, Rättskyddscentralen för hälsovården). The applicant opposed these requests. In its procedural decision the court rejected the insurance company’s requests, noting that there was no dispute over the reliability of the witness testimonies as such and that it was up to the court to draw judicial conclusions from the evidence presented to it.
On 14 June 2004 the Court of Appeal gave its judgment. As to the alleged brain damage it found that the applicant had established with sufficient probability that there was a causal link between the assault and his symptoms and that those symptoms were the result of brain damage. Furthermore, it found the applicant fully disabled for work.
The insurance company sought leave to appeal to the Supreme Court (korkein oikeus, högsta domstolen) renewing its request to obtain an expert opinion from the National Authority for Medico-legal Affairs. The Supreme Court acceded to that request. On 28 June 2006, after having obtained written statements from two of its permanent medical experts, one specialised in neurology and the other in psychiatry, the authority gave its opinion, which was sent to the parties for comments. The applicant was later provided with the comments submitted by the insurance company.
On 20 November 2006 the applicant filed his response to the Supreme Court. He opposed the application for leave to appeal and commented in detail on the above-mentioned authority’s expert opinion and the statements attached to it, as well as the insurance company’s comments thereon. He argued, inter alia, that the conclusions drawn by the authority were not in conformity with the other medical evidence presented to the courts, including the statements given by its own medical experts. In this connection, he pointed out that the authority’s opinion was issued by its general director, a lawyer by profession, and a head physician, who was specialised in orthopaedics. Neither of them had the expertise required in the case at hand. The applicant also requested permission to give a separate response to the appeal, in the event that leave to appeal was granted.
On 29 November 2006 the Supreme Court granted leave to appeal. The applicant was requested to submit a response to the appeal by 19 June 2007, which time-limit was subsequently extended until 17 August 2007. The applicant filed his response to the appeal on the latter date maintaining that there was a causal link between the assault and his symptoms. In the event that the court were of a different opinion in that respect, he submitted that the court should hold an oral hearing, in order to hear the same evidence which had been presented to the District Court. Otherwise, he did not regard an oral hearing necessary. The insurance company did not request an oral hearing at this stage.
On 10 June 2008, without having held an oral hearing, the Supreme Court delivered its judgment. In the light of the medical evidence in its possession, the court concluded that the applicant had suffered mild brain damage as a result of the assault, but that this had not affected his ability to work. The assault had, however, aggravated his previously diagnosed depression, thus contributing to the development of bipolar disorder, which rendered the insurance company liable for compensation. In the absence of undisputed facts, the court estimated that the applicant’s underlying mental condition and the assault had contributed to his incapacity for work in equal proportion. For this reason the court found that the applicant was entitled to half of the full compensation under the applicable insurance terms.
B. Relevant domestic law
Pursuant to Chapter 30, Article 20 (1) of the Code of Judicial Procedure (oikeudenkäymiskaari, rättegångsbalken, as amended by Act no. 104/1979) the Supreme Court shall hold an oral hearing where necessary. At such a hearing the court may hear the parties, witnesses and expert witnesses and receive other information.
Obtaining an expert opinion from the National Authority for Medico-legal Affairs is at the discretion of the court dealing with a particular case.
COMPLAINTS
The applicant complained under Article 6 of the Convention about the length of the above proceedings. He also complained that the trial was not fair as the Supreme Court refrained from holding an oral hearing and thus did not receive, first-hand, the same oral evidence which was presented to the District Court. The lack of an oral hearing also deprived the applicant of the opportunity to put questions concerning the grounds and conclusions presented in the expert opinion delivered by the National Authority for Medico-legal Affairs.
THE LAW
A. The complaint concerning the length of proceedings
The applicant complained under Article 6 § 1 of the Convention that the civil proceedings against him had been excessively lengthy.
Article 6 reads, insofar as relevant:
“In the determination of his civil rights and obligations ... everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”
1. The parties’ submissions
By a letter dated 16 November 2009 the Government informed the Court of their unilateral declaration, signed on the same date, with a view to resolving the issue raised by this part of the application.
The declaration provided as follows:
“Whereas the efforts with a view to securing a friendly settlement of the case have been unsuccessful, the Government wishes to express – by way of a unilateral declaration – its acknowledgement that, in the special circumstances of the present case, the length of the civil proceedings have failed to fulfil the requirement of ‘reasonable’ within the meaning of Article 6 § 1 of the Convention.
Consequently, the Government is prepared to pay the applicant in compensation a total sum of EUR 3,895 (three thousand eight hundred and ninety-five euros). This sum includes EUR 2,470 for non-pecuniary damage and EUR 1,425 for costs and expenses (inclusive of VAT). In the Government’s view, the aforementioned total sum would constitute adequate redress and sufficient compensation for the impugned length of the said proceedings, and thus constitute an acceptable sum as to quantum in the present case.
The total sum will be payable within three months from the date of notification of the decision pursuant to Article 37 § 1 (c) of the Convention. In the event of a failure to pay this sum within the said three-month period, the Government undertake to pay simple interest on it, from the expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.
In the light of the above, the Government would suggest that the circumstances of the present case allow your Court to reach the conclusion that there exists ‘any other reason’, as referred to in Article 37 § 1 (c) of the Convention, justifying your Court to discontinue the examination of the application, and that, moreover, there are no reasons of a general character, as defined in Article 37 § 1 in fine, which would require the further examination of the case by virtue of that provision. Accordingly, the Government invites your Court to strike this part of the application out of its list of cases.”
In a letter dated 2 December 2009 the applicant opposed the Government’s suggestion to strike the application out of the Court’s list of cases and requested that the examination of the case be continued.
2. The Court’s assessment
The Court reiterates that the Government filed submissions with the Registry in the context of friendly settlement negotiations (Article 38 § 1 (b) of the Convention and Rule 62 of the Rules of Court). The applicant did not submit a reply in that connection and no settlement was reached.
Article 37 of the Convention provides that the Court may, at any stage of the proceedings, decide to strike an application out of its list of cases where the circumstances lead to one of the conclusions specified under (a), (b) or (c) of paragraph 1 of that Article. Article 37 § 1 (c) enables the Court in particular to strike a case out of its list if:
“for any other reason established by the Court, it is no longer justified to continue the examination of the application”.
Article 37 § 1 in fine includes the following proviso:
“However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires.”
The Court points out that, under certain circumstances, it may be appropriate to strike out an application, or part thereof, under Article 37 § 1 (c) of the Convention on the basis of a unilateral declaration filed by the respondent Government even if the applicant wishes the examination of the case to be continued. In deciding whether or not it should strike the length of proceedings complaint out of its list, the Court will examine carefully the terms of the declaration made by the Government in the light of the principles emerging from its case-law, in particular its judgments and decisions in cases such as Tahsin Acar v. Turkey [GC] (no. 26307/95, §§ 75-77, ECHR 2003-VI); Meriakri v. Moldova ((striking out), no. 53487/99, 1 March 2005); Swedish Transport Workers Union v. Sweden ((striking out), no. 53507/99, 18 July 2006); Van Houten v. the Netherlands ((striking out), no. 25149/03, ECHR 2005‑IX); Kalanyos and Others v. Romania (no. 57884/00, § 25, 26 April 2007); Viinikanoja v. Finland ((partial striking out), no. 20532/05, 6 January 2009); and Nevala v. Finland, ((partial striking out), no. 10391/06, 20 January 2009).
The Court notes that the Government’s declaration contains a clear acknowledgement that the “reasonable time” requirement has not been respected within the meaning of Article 6 § 1 of the Convention. The Court is satisfied that the total amount offered to the applicant by the Government in compensation for non-pecuniary damage and costs and expenses, that is EUR 3,895, constitutes adequate redress for the excessive length of the proceedings, having regard to all the circumstances of the case.
The Court has established in a number of cases its practice concerning complaints about the violation of one’s right to a hearing within a reasonable time (see, for example, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII and Cocchiarella v. Italy [GC], no. 64886/01, §§ 69-98, ECHR 2006-). Furthermore, it has already had occasion to address complaints related to alleged breach of one’s right to a hearing within a reasonable time in cases against Finland (see, for example, Riihikallio and Others v. Finland, no. 25072/02, §§ 22-27, 31 May 2007; F. and M. v. Finland, no. 22508/02, §§ 48-53, 17 July 2007 and Ekholm v. Finland, no. 68050/01, §§ 62-66, 24 July 2007).
Against this background, the Court considers that it is no longer justified, within the meaning of Article 37 § 1 (c) of the Convention, to continue the examination of this part of the application, and finds no reasons which would require the further examination of this part of the case (Article 37 § 1 in fine).
Accordingly, it should be struck out of the list.
B. The remainder of the application
As to the complaint concerning the lack of an oral hearing before the Supreme Court the Court observes that there had been an oral hearing at the first instance, at which a number of medical experts were heard in person. Several medical reports were also produced as evidence. The Court of Appeal refused the insurance company’s request for an oral hearing on appeal, as the reliability of the expert testimonies was not in dispute. The applicant did not request an oral hearing in the Court of Appeal. On the contrary, he found it unnecessary.
The Court notes that the Supreme Court’s jurisdiction is not limited to matters of law, but also extends to factual issues. Under Finnish law the Supreme Court may hold an oral hearing, if it deems that necessary. In practice, such hearings are held quite rarely. In the present case, the issue before the Supreme Court was whether the applicant’s incapacity for work was the result of the physical assault against him or whether it derived from his previous mental condition. In his written response to the Supreme Court, the applicant suggested that the court hold an oral hearing in the event that it should not find a causal link between the assault and his symptoms. Medical experts had issued differing opinions as to the cause of those symptoms. Presumably, it was for this reason that the Supreme Court decided to obtain an expert opinion from the National Authority for Medico-legal Affairs. That opinion, along with the statements of medical experts consulted by the authority, was sent to the applicant for comments.
The Court is not convinced that, in the case at hand, an oral hearing before the Supreme Court would have contributed to the proper conduct of the proceedings. According to the Court’s case-law, a hearing may not be necessary, for example when the case raises no questions of fact or law which cannot be adequately resolved on the basis of the case file and the parties’ written observations (see, for instance, Döry v. Sweden, no. 28394/95, § 37, 12 November 2002). The present applicant did not request that the medical experts of the above-mentioned authority be heard, nor the persons who had issued the expert opinion on behalf of that authority. He merely named the same witnesses whom had been heard before the first instance court. He had not contested the reliability of those witness testimonies on appeal. It was open for the applicant to put forward any arguments concerning the written evidence in the possession of the Supreme Court. The applicant was represented by a lawyer and could thus not be considered to have difficulties in arguing his case in writing. It was up to the Supreme Court to draw conclusions from the medical evidence before it.
Having regard to the above, the Court finds this part of the application manifestly ill-founded and rejects it in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Takes note of the terms of the respondent Government’s declaration in respect of the length of proceedings complaint under Article 6 § 1 of the Convention as well as of the modalities for ensuring compliance with the undertakings referred to therein;
Decides to strike the application out of its list of cases in so far as it relates to the above complaint in accordance with Article 37 § 1 (c) of the Convention;
Declares inadmissible the remainder of the application.
Fatoş AracıNicolas Bratza
Deputy RegistrarPresident
Full & Egal Universal Law Academy