AS TO THE ADMISSIBILITY OF
Application No. 21357/93
by Tauno YLIPÄÄ
against Finland
The European Commission of Human Rights (First Chamber) sitting
in private on 29 November 1995, the following members being present:
Mr. C.L. ROZAKIS, President
Mrs. J. LIDDY
MM. E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
M.P. PELLONPÄÄ
B. MARXER
B. CONFORTI
N. BRATZA
I. BÉKÉS
E. KONSTANTINOV
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
Mrs. M.F. BUQUICCHIO, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 21 December 1992
by Tauno YLIPÄÄ against Finland and registered on 9 February 1993 under
file No. 21357/93;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
THE FACTS
The applicant was a Finnish citizen, born in 1921. He was a war
veteran. He died in 1995. On 29 September 1995 his daughter as the
administrator of his estate informed the Commission that the estate
wanted to pursue the application pending before the Commission.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
I
In 1969 the State Office for Accident Compensation
(tapaturmavirasto), hereinafter "the Compensation Office", granted the
applicant a life annuity (elinkorko) under the 1948 Military Injuries
Act on the basis of an established ten per cent disability caused by
a wartime shrapnel wound in his left cheek and impairment of hearing.
In 1987 the applicant requested the Compensation Office to raise
this life annuity as he considered that the degree of his disability
now exceeded ten per cent. He furthermore now submitted a request for
compensation for certain other injuries which he claimed resulted from
his service in the 1941-44 war.
On 10 May 1990 the Compensation Office found in favour of the
applicant raising his degree of disability to fifteen per cent. The
existing life annuity was accordingly also raised and given retroactive
effect as from 1 April 1987. However, the Compensation Office rejected
the applicant's request for compensation in respect of the new claims
made.
The applicant appealed against this decision to the Insurance
Court (vakuutusoikeus) maintaining that the degree of his disability
should be raised even further. Secondly, he upheld his request for
compensation and thirdly, he presented two new issues: that the degree
of his disability should take effect retroactively as from 1972 instead
of 1987 and that he was entitled to compensation for certain additional
conditions not mentioned previously.
On 21 March 1991 the Insurance Court rejected the applicant's
appeal. As regards the two new issues raised in the appeal the Court
did not examine them as they had not previously been brought before the
Compensation Office, this being the competent authority.
The applicant's appeal against the above decision was rejected
by the Supreme Court (korkein oikeus) on 3 January 1992.
In the meantime the applicant had submitted a new application to
the Compensation Office in which he first requested that the increase
of the degree of his disability, which apparently in the meantime had
been raised to twenty per cent with effect from 1987, should take
effect retroactively as from 1972 instead of 1987. Secondly, he claimed
compensation for certain alleged other war injuries to his shoulder and
ankle, these being the two issues which the Insurance Court had
previously excluded from its examination (cf. above).
On 30 June 1991 the applicant requested the Military Medical
Archives at the Compensation Office (tapaturmaviraston sotilas-
lääkintäarkisto) to send him copies of his medical file kept in the
relevant archives. On 16 July 1991 these copies were sent to him.On 21
January 1992 the Compensation Office refused to give retroactive effect
to the degree of disability already as from 1972. Furthermore, the
applicant's new claims for compensation for the alleged injuries to his
shoulder and ankle were rejected. The Compensation Office took into
account the applicant's military file as well as the medical file kept
in its Military Medical Archives.
The applicant appealed against this decision to the Insurance
Court maintaining his claims as submitted to the Compensation Office
which, upon request from the Court, submitted without any further
reasoning that the appeal ought to be rejected. It appears that a copy
of this statement was not transmitted to the applicant. It also appears
that the Insurance Court had at its disposal a document of
7 April 1992, unknown to the applicant, in which the question was
raised whether further examinations were necessary in respect of a
possible operation on the applicant's jaw.
On 4 June 1992 the Insurance Court rejected the applicant's
appeal referring to the reasons set out in the Compensation Office's
decision. The Insurance Court did not in any way refer to the document
concerning the applicant's jaw in its reasoning. The Court's decision
was dispatched to the applicant on 2 July 1992.
A further appeal to the Supreme Court lay open to the applicant
in so far as the Insurance Court's decision concerned his right to
compensation on the grounds of alleged injuries to his shoulder and
ankle, but he did not avail himself of this remedy. No further appeal
lay open in so far as the decision concerned the question of giving
retroactive effect earlier than 1987.
II
On 20 May 1990 the applicant requested that he be granted a
supplementary life annuity pursuant to section 18 of the Military
Injuries Act, which reads in so far as relevant as follows:
(translation)
"A wounded or ill person whose degree of disability has by
virtue of section 8 been established to be at least twenty
per cent, may on application be granted a supplementary
life annuity for a specified period, or if the wounded or
ill person has reached the age of 65, until further
notice."
On 4 March 1991 the Compensation Office found for the applicant
and granted him a supplementary life annuity (täydennyskorko) as from
1 July 1987, the day on which a twenty per cent disability had been
established in respect of the applicant.
The applicant appealed, requesting that he be granted a
supplementary life annuity as from 3 October 1972.
The Insurance Court obtained an opinion from the Compensation
Office to the effect that the appeal should be rejected. The opinion
did not contain any further information. The Compensation Office's file
concerning the applicant's request was appended to the opinion. On
4 June 1992 the Insurance Court rejected the applicant's appeal. The
Insurance Court stated that under section 18 of the Military Injuries
Act supplementary annuity could not be granted in respect of a period
prior to the date when the disability degree of twenty per cent had
been established.
No further appeal lay against this decision which was dispatched
to the applicant on 2 July 1992.
III
It appears that on 31 June 1991 the applicant was taken against
his will to a health care institution, where he stayed until
3 August 1991.
COMPLAINTS
1. The applicant complains that he was wrongly denied further
compensation for his injuries allegedly caused by the war.
2. He also complains that the Compensation Office is not a
"tribunal" within the meaning of Article 6 para. 1 of the Convention.
3. As regards the first set of proceedings before the Compensation
Office, the Insurance Court and the Supreme Court (cf. section I of
THE FACTS) the applicant complains, under Article 6 of the Convention,
that he was denied a right to consult documents which the Insurance
Court had obtained. He submits that neither his medical file nor the
Compensation Office's opinion on his appeal was communicated to him for
comments. He submits that the Supreme Court was obliged to cure defects
in proceedings before the Insurance Court. He complains further that
the Supreme Court's decision of 3 January 1992 contained no reasoning.
4. As regards the second set of proceedings (cf. section I of
THE FACTS) the applicant complains that he was likewise denied a right
to consult the documents which the Compensation Office obtained from
its Military Medical Archives. He further complains that this material
was not communicated to him for comments prior to the Compensation
Office's decision. The applicant also alleges as regards the
proceedings in the Insurance Court that the document of 7 April 1992
concerning his jaw had been submitted to the Insurance Court by a
dentist without his knowledge. He maintains that the Insurance Court
did not communicate this document to him, nor did it communicate to him
the Compensation Office's opinion on his appeal.
5. As regards the proceedings concerning the supplementary life
annuity (section II of THE FACTS) the applicant complains that his
right to a fair hearing was violated inter alia since the Insurance
Court and the Compensation Office did not communicate to him for
comments documents obtained by them.
6. The applicant further maintains that he has been discriminated
against in connection with the examination of his different requests
and appeals.
7. Finally, the applicant complains (cf. section III of THE FACTS)
that he was unlawfully detained against his will in a health care
institution from 30 July to 3 August 1991. In this respect he invokes
no express provision of the Convention or its Protocols.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 21 December 1992 and registered
on 9 February 1993.
On 5 April 1995 the Commission (First Chamber) decided to adjourn
the application pending the judgment of the European Court of Human
Rights in the case of Kerojärvi v. Finland. The Court gave its judgment
on 19 July 1995 (Eur. Court H.R., Kerojärvi judgment of 19 July 1995,
Series A, no. 322).
THE LAW
The Commission first notes that the applicant has died in the
course of the proceedings. The Commission recalls that in such event
the applicant's heirs, especially his parents, spouse or children, are
in principle entitled to take his place in the proceedings (see Eur.
Court H.R., Scherer judgment of 25 March 1994, Series A, no. 287, p. 15
para. 31 and the other cases mentioned therein)
In the present case the applicant's estate has expressed the wish
to continue the proceedings. The Commission notes that the estate,
administered by the applicant's daughter, includes close relatives of
the applicant. The Commission therefore concludes that the applicant's
estate may take over and continue the proceedings instituted by the
applicant before the Commission.
1. In respect of the different requests for compensation and other
matters the applicant complains that he was wrongly denied further
compensation.
In this respect the Commission recalls that, in accordance with
Article 19 (Art. 19) of the Convention, its task is to ensure the
observance of the obligations undertaken by the Parties to the
Convention. In particular, it is not competent to deal with an
application alleging that errors of law or fact have been committed by
domestic courts, except where it considers that such errors might have
involved a possible violation of any of the rights and freedoms set out
in the Convention. The Commission refers, on this point, to its
constant case-law (cf., e.g., No. 21283/93, Dec. 5.4.94, D.R. 77-A
p. 88).
2. It is true, however, that the applicant has also raised a number
of points under the Convention in respect of the domestic proceedings
and his right to a fair hearing as guaranteed by Article 6 para. 1
(Art. 6-1) of the Convention which reads as far as relevant as follows:
"1. In the determination of his civil rights and
obligations ..., everyone is entitled to a fair ...
hearing ... by (a) tribunal ..."
The applicant first complains that the Compensation Office is not
a "tribunal" within the meaning of Article 6 para. 1 (Art. 6-1) of the
Convention.
The Commission recalls that whilst Article 6 para. 1 (Art. 6-1)
embodies the "right to a court", it nevertheless does not oblige the
Contracting States to submit disputes over "civil rights and
obligations" to a procedure conducted at each of its stages before
"tribunals" meeting the Article's various requirements. Demands of
flexibility and efficiency, which are fully compatible with the
protection of human rights, may justify the prior intervention of
administrative bodies which do not satisfy the said requirements in
every respect (cf., Eur. Court H.R., Le Compte, Van Leuven and De
Meyere judgment of 10 October 1980, Series A, no. 43, p. 23, para. 51)
The Commission recalls that in Finland questions concerning a
life annuity and compensation for war injuries are under the Military
Injuries Act first considered by the Compensation Office. Although this
body may not be a "tribunal" within the meaning of Article 6 para. 1
(Art. 6-1) of the Convention the Commission notes that its decisions
may be brought before the Insurance Court and in certain cases even
further to the Supreme Court. In these circumstances the Commission
finds that Finnish law secures a right to a tribunal within the meaning
of Article 6 para. 1 (Art. 6-1) of the Convention in the dispute over
"civil rights".
It follows that this part of the application is manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
3. The applicant complains under Article 6 (Art. 6) of the
Convention that during the first set of proceedings, which ended with
the decision of the Supreme Court on 3 January 1992, his right to a
fair hearing was violated on the grounds of non-communication of
certain documents obtained by the Insurance Court. He complains that
the Supreme Court did not cure the defects in the proceedings before
the Insurance Court. He further complains that the Supreme Court's
decision did not contain any reasoning.
The Commission is not, however, required to decide whether or not
the facts alleged by the applicant disclose any appearance of a
violation of Article 6 (Art. 6) as invoked by the applicant, as Article
26 of the Convention provides that the Commission "may only deal with
the matter ... within a period of six months from the date on which the
final decision was taken".
In the present case the decision of the Supreme Court, which was
the final decision regarding the subject of this particular complaint,
was given on 3 January 1992, whereas the application was submitted to
the Commission on 21 December 1992, that is, more than six months after
the date of this decision. Furthermore, an examination of the case
does not disclose the existence of any special circumstances which
might have interrupted or suspended the running of that period.
It follows that this part of the application has been introduced
out of time and must be rejected under Article 27 para. 3
(Art. 27-3) of the Convention.
4. As regards the second set of proceedings, which concerned the
compensation for the alleged injuries to the applicant's shoulder and
ankle and the question from which date the degree of disability was to
be considered, the applicant complains that he was denied a right to
consult the documents obtained by the Compensation Office from its
Military Medical Archives and that this material was not communicated
to him for comments. He also complains that the Insurance Court did not
communicate the document of 7 April 1992 concerning his jaw and the
Compensation Office's opinion to him prior to its decision.
In respect of these complaints the Commission finds it can leave
the question open whether all the issues raised concern a dispute over
a "right" and whether the applicant has in all respects exhausted
domestic remedies since it considers that this part of the application
is in any event manifestly ill-founded for the following reasons.
As regards the proceedings in the Compensation Office the
Commission recalls that on 16 July 1991 the Military Medical Archives
at the Compensation Office sent copies of the applicant's medical file
to him. Therefore, as regards the alleged denial of access to this
file, or that it was not communicated to him, the Commission finds that
these allegations are unfounded.
As regards the proceedings in the Insurance Court the Commission
recalls that the Court obtained an opinion from the Compensation Office
which contained nothing but a recommendation to reject the appeal. It
also received a document dated 7 April which apparently related to the
need for an operation to the applicant's jaw. These documents were not
communicated to the applicant.
However, the Commission further recalls that the Insurance Court
was faced with the question as to whether or not the applicant was
entitled to compensation on the ground of injuries to his shoulder and
ankle, and whether an existing life annuity should be calculated as
from 1972 or 1987. It is true that where a court determines such issues
without an appellant having had the possibility to acquaint himself
with and, if necessary, comment upon relevant documents this may raise
an issue under Article 6 (Art. 6) of the Convention (cf. the Kerojärvi
judgment mentioned above, para. 42). However, the Commission finds that
in the circumstances of the present case the applicant in fact had
access to all relevant documents of his file and that the two remaining
documents to which he has referred did not adversely affect his
capability of challenging the Compensation Office's decision in respect
of the two issues he had raised. The Commission also notes that the
applicant had requested, and received, copies of the documents material
to his requests and that therefore the procedure, seen as a whole, was
such as to allow him a proper participation in the proceedings.
Thus, taking into account the entirety of the proceedings the
Commission considers that they do not disclose any appearance of a
violation of the right to a fair hearing within the meaning of
Article 6 para. 1 (Art. 6-1) of the Convention.
It follows that this part of the application is manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
5. As regards the proceedings concerning the supplementary life
annuity (section II of THE FACTS) the applicant complains that his
right to a fair hearing was violated since the Insurance Court did not
communicate certain documents to him prior to its decision in the case.
The Commission recalls that in order for Article 6 (Art. 6) of
the Convention to apply to the proceedings in question it must first
ascertain whether there was a dispute over a right which can be said,
at least on arguable grounds, to be recognised under domestic law
(cf. for example Eur. Court H.R. Skärby judgment of 28 June 1990,
Series A no. 180-B, p. 36, para. 27). In the present case there was no
dispute as to whether the applicant was entitled to the supplementary
life annuity as his request in this respect was complied with. The
dispute concerned the possibility of obtaining this annuity
retroactively as from 1972. This was, however, a right which, as stated
by the Insurance Court, the applicant did not have since supplementary
life annuity could not be granted in respect of a period prior to the
date when the disability degree of twenty per cent had been
established. Thus he cannot claim any arguable ground that he had a
right under domestic law and Article 6 (Art. 6) therefore does not
apply to these proceedings. This complaint is accordingly incompatible
ratione materiae with the provisions of the Convention and must be
rejected under Article 27 para. 2 (Art. 27-2) of the Convention.
6. In respect of all of the above proceedings the applicant
complains, under Article 14 (Art. 14) of the Convention, that he has
been discriminated against. However, after an examination of this
complaint as submitted by the applicant, the Commission finds that it
does not disclose any appearance of a violation of Article 14
(Art. 14) of the Convention.
It follows that this part of the application is manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
7. The applicant has finally complained (cf. section III of THE
FACTS) that he was unlawfully deprived of liberty from 30 July to
3 August 1991. In this respect he has not invoked any provision of the
Convention or its Protocols.
The Commission is not required, however, to decide whether or not
the facts alleged by the applicant disclose any appearance of a
violation of the Convention or its Protocols, as Article 26 (Art. 26)
of the Convention provides that the Commission "may only deal with the
matter ... within a period of six months from the date on which the
final decision was taken".
In the present case the alleged deprivation of liberty took place
from 30 July to 3 August 1991, whereas the application was submitted
to the Commission on 21 December 1992, that is, more than six months
after the date on which the alleged deprivation of liberty ended.
Furthermore, an examination of the case does not disclose the existence
of any special circumstances which might have interrupted or suspended
the running of that period.
It follows that this part of the application has been introduced
out of time and must be rejected under Article 27 para. 3
(Art. 27-3) of the Convention.
For these reasons, the Commission, by a majority,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the First Chamber President of the First Chamber
(M.F. BUQUICCHIO) (C.L. ROZAKIS)
Full & Egal Universal Law Academy