EHRM, 07-06-2007, nr. 57793/00

The applicant maintained that the proceedings had not been adversarial as his case file before the Insurance Court had included several documents which he had not seen before a decision had been taken in his case. In particular, there was a memorandum written by an insurance company lawyer, which included several inaccuracies and arguments irrelevant to the court proceedings. In his view the phrase ‘[the applicant] does not consider pain rehabilitation possible’ not only gave misleading information about his willingness to take part in pain rehabilitation but also a negative impression of him. He alleged that an officer of the insurance company had told him that ‘the memorandum was submitted to the Insurance Court because it was considered to reveal considerable further information on the matter’. In the applicant's view the memorandum had had an effect on decision-making in the Insurance Court.

The Government, referring to the decision of Ylipää v. Finland (no. 21357/93, 29 November 1995), contested the applicant's claim that he had been placed at a disadvantage vis-à-vis the insurance company. The applicant had identified only one non-communicated document. That document, in the Government's view, had not had any bearing on the proceedings, being an individual's note of a telephone conversation, not a reasoned opinion on the merits of the applicant's case. The Government further observed that the applicant, who was represented by a lawyer, had not substantiated his complaint about the non-communication of other documents submitted to the Insurance Court, nor had he specified how the undisclosed document might have affected the fairness of the proceedings.

The Court recalls that the fairness of proceedings must be assessed with regard to the proceedings as a whole (Dallos v. Hungary, no. 29082/95, § 47, ECHR 2001-II). One of the elements of the broader concept of a fair trial is the principle of equality of arms, which requires each party to be given a reasonable opportunity to present his case under conditions that do not place him at a substantial disadvantage vis-à-vis his opponent (see, among many other authorities, Nideröst-Huber v. Switzerland, judgment of 18 February 1997, Reports of Judgments and Decisions 1997-I, pp. 107-08, § 23). 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 (Lobo Machado v. Portugal, judgment of 20 February 1996, Reports 1996-I, p. 206, § 31). Nor is the position altered when the observations are neutral on the issue to be decided by the court (Göç v. Turkey [GC], no. 36590/97, § 55, ECHR 2002-V), or in the opinion of the court concerned, the observations 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 (Nideröst-Huber, cited above, § 29).

In the instant case it is undisputed that following the applicant's appeal to the Insurance Court, the insurance company submitted its observations to that court. The observations were communicated to the applicant and he filed a reply. It is likewise common ground that after the Insurance Court's decision, the applicant acquainted himself with the case file and found some documents which had not been sent to him during the proceedings. In his application to this Court the applicant identified one such document. Consequently, the Court will examine whether the omission to transmit this document to the applicant by the Insurance Court amounted to a violation of Article 6 § 1.

The Court observes at the outset that the impugned document was a half-page personal note, hand-written by an insurance company lawyer following a telephone conversation with an official of the Insurance Rehabilitation Association. The note was not explicitly addressed to the Insurance Court, nor was it signed. The note was dated ‘9/10’, without stating the year. As it was mentioned in the note that ‘[the applicant] is currently awaiting the Insurance Court's decision’, the Court considers it plausible that it had been written in October 1997 or 1998 when the applicant's case was pending before the Insurance Court. It still remains unresolved when and how the note was included in the applicant's case file. Most likely, the note was in the file before the Insurance Court reached its decision. However, there is no indication in the documents or in the Insurance Court's decision that the note would have been a document relied on by the insurance company in the proceedings (see Bendenoun v. France, judgment of 24 February 1994, Series A no. 284, § 52, Walston v. Norway, no. 37372/97, § 64, 3 June 2003).

Further, the question to be decided by the Insurance Court was whether or not the applicant was entitled to an accident pension from 1 June 1996 onwards, i.e. whether his working capacity was reduced by less than 10% at that time. Whatever the purpose of the hand-written note, it referred to the applicant's attitude at the time it was written.

The Court finds that the instant case is to be distinguished from cases such as Fortum Corporation v. Finland (no. 32559/96, § 41, 15 July 2003), K.S. v. Finland (no. 29346/95, § 22–23, 31 May 2001) and K.P. v. Finland (no. 31764/96, § 26–27, 31 May 2001), in which the Court found a violation on account of a failure to communicate an opposing party's opinion. In those cases the non-communicated documents constituted reasoned opinions on the merits of the applicant's appeals, manifestly aimed at influencing the court's decision-making. In the two latter cases the opposing party also called for the appeals to be dismissed. Likewise, in the case of Lomaseita Oy and Others v. Finland (no. 45029/98, § 37, 5 July 2005) the Court found a violation of Article 6 § 1 on account of the failure to communicate to the applicants material in which the other party had expressed his opinion on the relevance of the supplementary police report and the additional legal submission to the Court of Appeal, thereby intending to influence the court's judgment.

The Court does not consider that the note in the instant case constituted a reasoned opinion on the merits of the applicant's appeal nor was it such a piece of evidence or an observation, filed with the Insurance Court by the other party (the insurance company), with a view to influencing that court's decision. The applicant's lack of knowledge of the note did not adversely affect his ability to challenge the insurance company's and Accident Board's decision before the Insurance Court.

The Court is not therefore persuaded that there was any procedural unfairness as regards the manner in which the applicant's case was examined in the Insurance Court.

Accordingly, there has been no breach of Article 6 § 1 of the Convention.