CASE OF H.A.L. v. FINLAND
Preliminary objection dismissed (non-exhaustion of domestic remedies);Violation of Art. 6-1;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
Nicolas Bratza
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. 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.