FIRST SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 28338/95
by Eva BLOM
against Sweden
The European Court of Human Rights (First Section), sitting on 14 March 2000 as a Chamber composed of
MrJ. Casadevall, President,
MrsE. Palm,
MrGaukur Jörundsson,
MrR. Türmen,
MrC. Bîrsan,
MrsW. Thomassen,
MrR. Maruste, judges,
andMrM. O’Boyle, Section Registrar,
Having regard to the above application introduced with the European Commission of Human Rights on 12 July 1995 and registered on 28 August 1995,
Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
The applicant is a Swedish national, born in 1947 and living in Huddinge. She is represented before the Court by Mr Georg Antal, a lawyer practising in Stockholm.
A.Particular circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant applied for disability benefits in November 1991. Additional information was requested from her and she was asked to fill out the appropriate form.
Her formal application for a disability allowance (handikappersättning) under Chapter 9, Section 2 of the 1962 Social Insurance Act (lagen om allmän försäkring; hereinafter “the 1962 Act”) was lodged on 26 February 1992. Six different medical opinions and also medical records from a hospital were enclosed. The applicant invoked back problems and problems relating to incontinence. She stated, inter alia, that she was unable to use public transportation.
The Social Insurance Office (försäkringskassan) of the County of Stockholm requested the opinion of two other medical doctors who were attached to the Office in order to assist in medical matters (förtroendeläkare; ”insurance doctor”). After having studied the documents in the case, the insurance doctors came to different conclusions. One doctor, T.A., considered that the applicant was unable to use public transportation and the other doctor found that the available documents failed to substantiate this contention.
On 10 February 1993 the Office rejected the application, finding that the applicant’s needs or costs did not attain the level required under the above Act.
Doctor T.A.’s statement had not been included among the documents which formed the basis of the Office’s decision, nor had the applicant been informed of the statement. After the applicant had made a complaint in these respects, the Parliamentary Ombudsman (Justitieombudsmannen) levelled serious criticism against the Office’s handling of the case.
The applicant appealed against the Office’s decision to the County Administrative Court (länsrätten) of the County of Stockholm. Before this court as well as during the following court proceedings she was represented by legal counsel. She requested the court to hold an oral hearing and to obtain the opinion of a medical expert. She gave no explicit motive for her request for an oral hearing.
On 4 May 1994 the court informed the applicant as follows:
(Translation)
“Having regard to the available material, the [court] finds no need to hold an oral hearing.
In your submission of 11 March 1993 you have also requested the court to obtain a certificate from a medical doctor with special neurological knowledge regarding the need to use a car for transport to and from work and the need for help with heavy domestic duties. Doctor [I.O.-L.] has in a certificate of 22 April 1992 made an assessment of [the applicant’s] need of a car for transports to and from work. [The court] therefore considers further material unnecessary as regards that issue. [The court] invites you to submit whether you maintain your request.
[The court] hereby gives you the opportunity to make in writing, no later than 18 May 1994, your final submissions in the case.
If you maintain your request for an oral hearing in the case, you are required to submit to [the court], within the same time, a statement of evidence indicating the evidence you want to invoke and what you want to prove with each separate piece of evidence. [...]
If no response is submitted to [the court], the case will be determined on the basis of the available material.”
No submission of evidence was made by the applicant. Instead she responded by informing the court that she regarded the court’s notification as a decision of, inter alia, her request for an oral hearing.
By judgment of 23 June 1994, the County Administrative Court, taking into account the medical certificates and the other evidence in the case, rejected the applicant’s appeal with extensive reasons. The court, referring to most of the medical certificates available in the case, found no evidence from the documentation supporting that the applicant in her everyday life needed assistance from another person to such an extent as to qualify for benefits. Neither did the court find that the applicant needed continuing assistance in order to be gainfully employed. Lastly the court found nothing to substantiate that the applicant due to a functional impairment was prevented from using public transportation to and from work, for which reason she was not entitled to benefits in order to cover any extra expenses.
The applicant then appealed to the Administrative Court of Appeal (kammarrätten) in Stockholm, submitting yet another medical certificate. She again requested that the opinion of a medical expert be obtained. She did not request the appellate court to hold an oral hearing, and the court did not hold a hearing on its own motion. By decision of 16 September 1994 the court rejected her request for a further medical opinion and instructed her to submit concluding arguments in writing.
On 7 October 1994 the Administrative Court of Appeal, after having rejected the applicant’s renewed request for a further medical opinion, upheld the County Administrative Court’s judgment with substantial reasons. The court referred to the new medical certificate and found that the functional impairments described therein did not prevent the applicant from using public transportation.
The applicant made a further appeal to the Supreme Social Insurance Court (Försäkringsöverdomstolen). She requested that an oral hearing be held and that the opinion of a medical expert be obtained. She also complained about the lack of oral hearings before the lower courts and their refusal to obtain a further medical opinion.
By letters of 15 March and 25 April 1995, the Supreme Social Insurance Court informed the applicant that it did not intend to request a further medical opinion or to hold an oral hearing. The applicant was given the opportunity to submit further observations on the question of leave to appeal.
On 12 June 1995 the Supreme Social Insurance Court refused the applicant leave to appeal against the judgment of the Administrative Court of Appeal.
B.Relevant domestic law
According to Chapter 9, Section 2 of the 1962 Act, a person who is ill or handicapped may receive disability benefits provided that he or she is insured and registered with a Social Insurance Office and has reached the age of 16. A further requirement is that the insured person before turning 65 years of age has become functionally impaired for a considerable time and to such a degree that he or she is in need of more time-consuming assistance from another person on a daily basis, is in need of continuing assistance in order to be gainfully employed or otherwise has considerable extra expenses. All Swedish nationals and other residents in Sweden are automatically insured in accordance with the 1962 Act.
It is the total need of support and assistance that determines whether an insured person is entitled to disability benefits and, should that be the case, the amount of compensation. When making this assessment, it is necessary to look into the insured person’s whole situation and to add together the need for different types of assistance and extra expenses. A medical report is required when it comes to the assessment of the functional impairment itself. As far as extra expenses are concerned, the extent to which other measures from the social services compensate also have to be taken into account, for instance assistance benefit (when the handicapped person has his or her own personal assistant). When it comes to costs for transportation to and from work by car, it also has to be considered whether it is possible to use public transportation service for the disabled. Furthermore, at the time of relevance for the present case, protection aids against incontinence were provided free of charge.
Disability benefits are not subject to taxation. They are granted on a yearly basis with 69, 53 or 36 per cent of the yearly basic amount for national security purposes (“the basic amount”), depending on the extent to which the insured person is in need of assistance and the amount of extra expenses caused by the handicap. The basic amount was 33,700 Swedish kronor (SEK) during 1992 when the applicant applied for disability benefits. In 1993, when her application was rejected by the Social Insurance Office, the amount was SEK 34,400.
A decision by the Social Insurance Office in accordance with the 1962 Act may be appealed against to the County Administrative Court and from there on to the Administrative Court of Appeal and, at the relevant time, to the Supreme Social Insurance Court. The latter court was the highest social insurance court prior to 1 July 1995. The Supreme Social Insurance Court was abolished with effect from this date and its tasks were taken over by the Supreme Administrative Court (Regeringsrätten).
The Supreme Social Insurance Court could not examine a case on its merits without first granting leave to appeal. According to the provisions in force after 1 July 1993, the Court could grant leave to appeal in two different situations: if it was of importance for guidance in application of the law that the Court examine the case; and if there were
extraordinary reasons for the Court to examine the case, e.g. on account of the fact that a ground existed for the re-opening of the case or that the outcome of the case in the inferior court was clearly due to a gross oversight or a gross mistake.
The procedure in the administrative courts is governed by the provisions of the 1971 Administrative Court Procedure Act (förvaltningsprocesslagen; hereinafter ”the 1971 Act”). The same Act also regulated the proceedings before the Supreme Social Insurance Court. According to Section 9 of the Act, the proceedings consist of a written procedure. However, the proceedings may include an oral hearing with regard to a certain issue, when there is reason to assume that such a measure would be to the advantage of the proceedings or that a rapid determination of the case is promoted. According to the third paragraph of Section 9, an oral hearing shall take place before a County Administrative Court and an Administrative Court of Appeal on the request of an individual party to the case, if such a hearing is not unnecessary and there are no particular reasons against it. Thus, the opportunity for an individual party to the case to obtain an oral hearing on request under those circumstances was not available in the proceedings before the Supreme Social Insurance Court.
According to the travaux préparatoires to the 1971 Act (Government Bill 1971:30, p. 353) the oral element can be a valuable complement to the written proceedings and an oral hearing can be of advantage to the examination of a case in two respects, mainly. First of all, in order to hear a witness, an expert witness or a party, or when it is difficult for a party to present the case in writing. Secondly, in order to sort out the different positions in the case and to eliminate unnecessary or pointless issues of dispute. In the latter case, the oral hearing takes on a preparatory character. When the Act was drafted, it was also stressed that oral elements in the proceedings are not to be seen as an alternative to the written procedure but merely as a complement to it.
The reference in Section 9 of the 1971 Act to the promotion of a rapid determination of the case was added in 1983. The purpose was to make it clearer that an oral hearing could, and should, be held in order to further a more rapid and effective examination of the case. The amendment aimed mainly at such cases concerning taxation that are connected with criminal proceedings before the general courts (cf. Government Bill 1982/83:134).
In connection with the enactment of the 1971 Act it was stated, in respect of the third paragraph of Section 9, that a party’s request for an oral hearing should be given great consideration. However, the party would not be allowed to have a decisive influence in the matter. The question whether or not an oral hearing is unnecessary should primarily be determined against the background of the available information in the case. Other circumstances can, however, also be of relevance, for instance the importance for the party of the matter at stake or the fact that an oral hearing would enhance the party’s understanding of a future decision in the case. A particular reason against the holding of an oral hearing can be that the case is of a trivial character or that the costs for an oral hearing would not be proportionate to the values involved in the matter at stake (cf. Government Bill 1971:30, p. 537).
COMPLAINTS
1.The applicant claims that the lack of an oral hearing before the courts constituted a violation of Article 6 of the Convention.
2.Further under Article 6 of the Convention, the applicant contends that the County Administrative Court and the Administrative Court of Appeal failed to mention certain medical certificates in their judgments and that their conclusions were arbitrary and not consistent with the applicable legal provisions and the evidence in the case. She also complains about their decisions not to obtain the opinion of a medical expert. Finally, she complains about the handling of the case at the Social Insurance Office, notably their failure to inform her of the statement of doctor T.A. and to include that statement among the documents which formed the basis of its decision.
THE LAW
1.The applicant complains that no oral hearings were held before the courts made their decisions.
She invokes Article 6 of the Convention which reads, so far as relevant, as follows:
“1. In the determination of his civil rights and obligations ..., everyone is entitled to a fair and public hearing ... by [a] ... tribunal ...”
The Government maintain that there was no need for an oral hearing when the County Administrative Court and the Administrative Court of Appeal examined the case. Such a hearing would not have added anything to the court proceedings and the questions involved were adequately resolved on the basis of the case-file and the applicant’s written observations. Since the applicant, who was represented by counsel throughout the proceedings, in reply to the County Administrative Court’s notification of 4 May 1994 did not persist in her request for an oral hearing, she may be said to have waived her right to such a hearing before that court. Furthermore, she did not at all request an oral hearing before the appellate court and must therefore be considered to have waived her right thereto. The applicant has not on any occasion invoked oral evidence before either the County Administrative Court or the Administrative Court of Appeal.
In conclusion, the Government are of the opinion that this part of the application is manifestly ill-founded.
The applicant maintains that her right to a fair and public hearing has been violated. She adduces that she did not give an explicit motive for her request for an oral hearing, since it must have been tacitly understood that an oral hearing is requested in an administrative court in order to further the examination of the case.
The applicant also submits that an oral hearing may be suspended only if the applicant has explicitly waived his or her right thereto and, in addition, if there are exceptional circumstances justifying dispensing with the hearing. The applicant claims that she has indeed requested an oral hearing in the case and that such a hearing was also indispensable. When the County Administrative Court decided, “on the material available”, not to hold a hearing the court denied her the right to submit an oral statement by herself as evidence, since she herself was part of the “material” available to the court. The fact that the applicant did not, in response to the court’s request, submit a statement of evidence cannot therefore be interpreted as her waiving the right to an oral hearing. Even if it is not explicitly pointed out
in the appeal to the Administrative Court of Appeal that the applicant called for an oral hearing, the court should, in the light of her request before the inferior court, have realised that she still wanted such a hearing to take place. At least the court should have acted in order to clarify her view on this matter.
The applicant claims that an oral hearing was a prerequisite for her being granted a fair trial. She would then have been able to explain her health situation and how it affects her everyday life. Another important reason for her wanting an oral hearing was that it would then have been possible for her counsel to ensure that the courts took proper notice of all the medical certificates available.
The Court first considers that the applicant, in applying for a disability allowance, claimed an individual, economic right under the Social Insurance Act. The Court finds that the examination of the claim involved a determination of the applicant’s civil rights and that, therefore, Article 6 § 1 of the Convention applies to this examination (cf., e.g., the Salesi v. Italy judgment of 26 February 1993, Series A no. 257-E, pp. 59-60, § 19, and the Schuler‑Zgraggen v. Switzerland judgment of 24 June 1993, Series A no. 263, p. 17, § 46).
The Court recalls that the right to appeal to a third level of jurisdiction does not feature among the rights and freedoms guaranteed by the Convention. No provision of the Convention, therefore, requires a State to grant persons under its jurisdiction an appeal to a Supreme Court acting as a third instance court. If a State makes provisions for such an appeal it is entitled to lay down the conditions for such an appeal (application no. 6916/75, decision of 12 March 1976, DR 6, p. 101 and application no. 10515/83, decision of 2 October 1984, DR 40, p. 258).
The Court notes that the proceedings before the Supreme Social Insurance Court only concerned the question whether or not leave to appeal should be granted. A full examination of the case would have taken place only if leave to appeal had been granted. When deciding on the question as to whether or not leave to appeal should be granted, the Supreme Social Insurance Court thus did not determine the civil rights and obligations of the applicant, and Article 6 § 1 of the Convention was therefore not applicable to these proceedings (cf. application no. 11855/85, decision of 15 July 1987, DR 53, p. 190).
As regards the proceedings before the County Administrative Court and the Administrative Court of Appeal, the Court recalls that Article 6 § 1 does not provide for a public, oral, hearing in all cases. The main purpose of the guarantee laid down in the Article is to protect litigants from the administration of justice in secret with no public scrutiny, thereby contributing also to the maintenance of confidence in the courts (cf., e.g., the Pretto and Others v. Italy judgment of 8 December 1983, Series A no. 71, p. 11, § 21). However, extensive restrictions apply. Some of them, e.g. relating to the interests of the private life of the parties, follow from Article 6 § 1 itself. Others are laid down by the Court’s case-law.
Thus, a hearing may be dispensed with if a party unequivocally waives his or her right thereto. This can be done explicitly or tacitly, in the latter case for example by refraining from submitting or maintaining a request for a hearing. In order for a waiver to be valid, there must be no important public interest consideration that calls for the public to be present (cf., e.g., the Zumtobel v. Austria judgment of 21 September 1993, Series A no. 268-A, p. 14, §§ 33–34; and the Håkansson and Sturesson v. Sweden judgment of 21 February 1990, Series A no. 171-A, p. 20, § 66).
Secondly, a hearing may not be necessary due to the particular circumstances of the case, for example when it raises no questions of fact or law which cannot be adequately resolved on the basis of the case-file and the parties’ written observations (cf., e.g., the Fredin v. Sweden judgment of 23 February 1994, Series A no. 283-A, pp. 10–11, §§ 21–22; the Fischer v. Austria judgment of 26 April 1995, Series A no. 312, pp. 20–21, § 44; and the Stallinger and Kuso v. Austria judgment of 23 April 1997, Reports of Judgments and Decisions 1997-II, pp. 679–80, § 51).
The Court notes that the applicant was represented by legal counsel throughout the proceedings before the Swedish courts. The Court also notes that she did not reiterate her request for a hearing before the court of first instance after having been informed that the court saw no reason for such a hearing and that she did not at all request a hearing before the appellate court.
In the light of all the facts submitted, the Court finds that the applicant can reasonably be considered to have waived any right to a hearing. The Court further finds that there were no important public interests calling for the public to be present at a hearing. On the contrary, the nature of the case would certainly have raised the question of excluding the press and public from a hearing in the interests of the private life of the applicant.
Furthermore, the Court does not find that the applicant’s submissions to the County Administrative Court and the Administrative Court of Appeal were capable of raising any issues of fact or of law pertaining to the matter at hand which were of such a nature as to call for a hearing for their disposition. The courts based their judgments on the written evidence before them, foremost the numerous medical certificates. The applicant had not invoked any oral testimony by a witness or an expert. Nor had she offered to give evidence herself. It should in this context also be borne in mind that the courts, not having access to any medical expertise themselves, could not have made their own assessments of the applicant’s medical status by meeting her in person. On the contrary, the courts’ task was to assess the medical evidence in the form of the available medical certificates, in the light of the provisions of the Social Insurance Act.
In conclusion, the Court finds that the fact that no oral hearing was held in the national courts does not disclose any appearance of a violation of the rights set out in Article 6 § 1 of the Convention.
It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected in accordance with Article 35 § 4.
2.The applicant complains that the court of first instance and the appellate court failed to mention certain medical certificates in their judgments and that the courts’ conclusions were not correct. She also complains that the courts did not obtain additional medical information. Finally, she complains about the mistakes made by the Social Insurance Office when handling her application.
As regards the handling of the case by the Social Insurance Office, the Court recalls that Article 6 of the Convention is not applicable to these proceedings since they did not take place before a tribunal according to the provisions of that Article.
The Court recalls that, in accordance with Article 19 of the Convention, its only task is to ensure the observance of the obligations undertaken by the Parties in the Convention. In particular, it is not competent to deal with applications concerning errors of law or fact allegedly committed by the competent national authorities, to whom it falls, in the first place, to interpret and apply domestic law. The Court has no competence to examine allegations concerning such errors except where, and to the extent that, they seem likely to have entailed a possible violation of any of the rights and freedoms set out in the Convention (cf., e.g., the Garcia Ruiz v. Spain judgment of 21 January 1999, § 28, with further reference, to be published in Reports 1999).
As regards the fact that the County Administrative Court and the Administrative Court of Appeal did not in their judgments mention all medical certificates invoked by the applicant, the Court notes that Article 6 of the Convention indeed places an obligation on the courts to indicate with sufficient clarity the grounds on which they base their decisions (cf., e.g., the Hadjianastassiou v. Greece judgment of 16 December 1992, Series A no. 252, p. 16, § 33). However, a duty to refer to or cite all arguments or documents submitted by a party cannot be derived from that provision (cf., e.g., the Van der Hurk v. the Netherlands judgment of 19 April 1994, Series A no. 288, p. 20, § 61).
In the light of the foregoing, the Court notes that the applicant at the various stages of the court proceedings was able to submit the arguments she considered relevant to her case. She was represented by legal counsel at all phases of the proceedings. The factual and legal reasons for the first-instance and appellate courts’ decisions were set out at length. The courts had already access to numerous medical certificates and other medical information relevant to the case. The Court finds that no evidence has been offered to indicate that the applicant, notwithstanding these circumstances, was not granted a fair trial.
It follows that also this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected in accordance with Article 35 § 4.
For these reasons, the Court, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
Michael O’BoyleJosep Casadevall Registrar President
Full & Egal Universal Law Academy