AS TO THE ADMISSIBILITY OF
Application Nos 12257/86 and 12319/86
by C.
against Sweden
The European Commission of Human Rights sitting in private
on 12 December 1988, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
G. SPERDUTI
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
J. CAMPINOS
Mrs. G.H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
Mr. H.C. KRÜGER Secretary to the Commission
Having regard to Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 24 April 1986
by C. against Sweden and registered on 13 June 1986 under file No.
12257/86;
Having regard to the application introduced on 10 February
1986 by C. against Sweden and registered on 30 July 1986 under file
No. 12319/86;
Having regard to the report provided for in Rule 40 of the
Rules of Procedure of the Commission;
Having deliberated;
Decides to join applications Nos 12257/86 and 12319/86;
Decides as follows:
THE FACTS
The facts of the cases, as they appear from the applicant's
submissions, may be summarised as follows.
The applicant is a Swedish citizen, born in 1951 and resident
at Stockholm.
On 6 May 1983 the applicant, then called Lundvall, introduced
an application (No. 10473/83) with the Commission concerning inter
alia the use of personal identity numbers and alleged wrongful
taxation. The applicant alleged violations of Articles 8, 9, 10 and 13
of the Convention. On 11 December 1985 the Commission declared that
application inadmissible after a hearing.
As a result of accidents in November 1983 and January 1984,
the applicant took early retirement as from October 1984. He received
a monthly pension of 3.890 SEK after deduction of taxes.
Under the relevant legal provisions the applicant is only
entitled to the pension if he is a resident in Sweden. He maintains
however that he wishes to live in a warmer climate and move to Asia
and to benefit from his pension there.
On 26 March 1984 the Social Insurance Office decided that the
applicant's sickness insurance should only cover sickness care
benefits (sjukvårdsförmåner) as from 3 November 1983. Consequently, as
from that day the applicant was no longer entitled to sickness allowance
(sjukpenning). The Office also decided, on 28 March 1984, to cancel
the applicant's sickness allowance following an illness reported to the
Office on 4 October 1983.
The applicant then applied to the Social Insurance Office
requesting that it reconsidered its decisions of 26 and 28 March. The
Office decided on 25 June 1984 not to amend its previous decisions.
The applicant appealed to the Social Insurance Court for
Central Sweden (försäkringsrätten för mellansverige) claiming that his
income qualifying for future sickness allowance (sjukpenninggrundande
inkomst, SGI) be fixed at 140.000 SEK and that he be granted a sickness
allowance. On 15 April 1985 the Court rejected the appeal.
The applicant lodged a further appeal with the Supreme
Insurance Court (försäkringsöverdomstolen), which refused leave to
appeal on 17 September 1985.
Subsequently, the applicant again requested that the previous
decisons in his case be amended. On 7 May 1986 the Social Insurance
Office decided not to amend its decisions.
Upon appeal from the applicant the Social Insurance Court, on
27 April 1987, quashed the decision of the Social Insurance Office on
the ground that the previous decisions had acquired legal force. On
24 November 1987 the Supreme Insurance Court refused leave to appeal.
The applicant asked for re-opening (resning) of the
proceedings before the Supreme Administrative Court (regeringsrätten).
On 25 March 1988 the Court refused to grant the request.
The applicant has requested assistance in the form of a taxi
services certificate from the Certificates Council
(legitimeringsnämnden) of the County Council (landstinget) of the
Stockholm County. However, this has been refused.
The applicant has been engaged in trading crude oil. He was
engaged in negotiations with the National Board for Economic Defence
(överstyrelsen för ekonomiskt försvar) which gave him an order to sell
400.000 tons of oil. However, later the Board broke this agreement
allegedly in violation of Swedish law. The applicant was left without
a job he had been promised and his insurance cover was thus less than
if he had had the income from that job.
COMPLAINTS
The applicant has made a number of complaints, inter alia, the
following.
1. He complains that, as he cannot enjoy his pension if he leaves
Sweden, he cannot move freely, nor choose his residence or enjoy his
possessions. He alleges a violation of Article 1 of Protocol No. 1 to
the Convention, Article 2 of Protocol No. 4 to the Convention and of
Article 13 of the Convention.
2. The applicant complains that the decisions of the Social
Insurance Office concerning his sickness benefits were preceded by
incorrect handling of the matter since the applicant, who was staying
abroad, was not informed that he might lose his right to sickness
allowance. If he had been informed thereof he would have taken a private
insurance. The result of the activities of the Social Insurance Office
was that the applicant lost his insurance cover without being warned
in time. The applicant invokes Articles 6 and 13 of the Convention and
Article 1 of Protocol No. 1 to the Convention.
3. The applicant complains that he cannot bring proceedings
against the National Board for Economic Defence before a court and
that, consequently, there has been a breach of Article 6 of the
Convention.
4. The applicant complains that the Swedish Telecommunications
Company (televerket) has set up as a condition for his rental that he
pay a security of 70.000 SEK. The applicant also alleges that his
telephone has been illegally tapped. He invokes Articles 8, 13 and 50
of the Convention.
THE LAW
Complaint concerning pension rights
1. Article 1 of Protocol No. 1 (P1-1) secures to everyone the right to
the peaceful enjoyment of his possessions. However, the second
paragraph of the said provision provides that this right shall not "in
any way impair the right of a State to enforce such laws as it deems
necessary to control the use of property in accordance with the
general interest". The Convention does not as such guarantee a right
to a pension. In a previous decision (No. 6572/74, Dec. 4.3.76, D.R. 8
p. 70) concerning the German Social Insurance Act the Commission found
that the suspension of payment of pension where the individual was a
foreigner and no longer living in the Federal Republic of Germany was
a regulation concerning the modalities of the payment of pensions
which was compatible with the second paragraph of Article 1 of
Protocol No. 1 (P1-1).
The Commission has also held that in order to establish a
right to benefit from a pension under a social security system it is
required that the individual satisfy the domestic legal conditions
governing that right (cf. No. 7459/76, Dec. 5.10.77, D.R. 11 p. 114).
In a decision concerning the United Kingdom the Commission found that
the reduction of pension benefits resulting from emigration did not
amount to deprivation of property in breach of Article 1 of
Protocol No. 1 (P1-1) (cf. No. 9776/82, Dec. 3.10.83, D.R. 34 p. 153).
Even assuming that the applicant, if he were to move abroad,
would lose his early retirement pension, the Commission considers
that, on the basis of the case-law accounted for above, such an effect
would not be contrary to Article 1 of Protocol No. 1 (P1-1) to the
Convention.
It follows that, in this respect, the complaint concerning
pension rights is manifestly ill-founded within the meaning of Article
27 para. 2 (Art. 27-2) of the Convention.
2. Assuming that under Swedish law the applicant is entitled to a
pension only if he resides in Sweden, the Commission nevertheless
considers that this fact cannot be characterised as a restriction on
the right to liberty of movement and the freedom to choose residence,
or the right to leave any country as guaranteed by Article 2 of
Protocol No. 4 (P4-2) to the Convention.
It follows that in this respect, the complaint concerning
pension rights is also manifestly ill-founded within the meaning of
Article 27 para. 2 (Art. 27-2) of the Convention.
3. As regards Article 13 (Art. 13) of the Convention, the
Commission notes that the applicant complains about the state of the
law. In respect of such complaints, Article 13 does not guarantee a
"remedy" (see inter alia Eur. Court of H.R., James and Others
judgment of 21 February 1986, Series A No. 98, p. 47 para. 85).
It follows that, in this respect, the complaint is again
manifestly ill-founded within the meaning of Article 27 para. 2 (Art.
27-2) of the Convention.
Complaint concerning sickness benefits
4. The applicant invokes Article 1 of Protocol No. 1 (P1-1) to the
Convention which guarantees the right to peaceful enjoyment of his
possessions.
The Commission first observes that the Convention does not as
such guarantee any right to specific sickness benefits.
With regard to the judicial decisions of which the applicant
complains, the Commission further recalls that, in accordance with
Article 19 (Art. 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 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 (see e.g. No. 458/59, Dec. 29.3.60, Yearbook 3
pp. 222, 236 ; No. 5258/71, Dec. 8.2.73, Collection 43 pp. 71, 77 ;
No. 7987/77, Dec. 13.12.79, D.R. 18 pp. 31, 45). It follows that the
Commission cannot review the assessment of the applicant's sickness
benefits, except where it considers that the assessment involved a
possible violation of the rights and freedoms set forth in the
Convention.
However, from the applicant's submissions there is no
appearance of any possible violation of Article 1 of Protocol No. 1
(P1-1).
It follows that, in this respect, the complaint concerning
sickness benefits is manifestly ill-founded within the meaning of
Article 27 para. 2 (Art. 27-2) of the Convention.
5. The applicant further submits that his claim for sickness
benefits has not been dealt with in a way which satisfies the
conditions of Article 6 (Art. 6) of the Convention. He also invokes
Article 13 (Art. 13) of the Convention.
As regards Article 6 (Art. 6) of the Convention, it is
recalled that in a previous application against Sweden (No. 11450/85,
Dec. 8.3.88, to be published in D.R.) the Commission has held that
Article 6 (Art. 6) of the Convention does not apply to disputes over
sickness benefits under the Swedish social security system as provided
for in the Social Insurance Act, since such disputes do not relate to
a "civil" right within the meaning of Article 6 para. 1 (Art. 6-1) of
the Convention.
The Commission finds no reason to depart from this view in the
present case.
Consequently, in this respect, the complaint concerning
sickness benefits is incompatible ratione materiae with the provisions
of the Convention within the meaning of Article 27 para. 2 (Art. 27-2).
Article 13 (Art. 13) of the Convention guarantees the right to
an effective remedy before a national authority to everyone whose
rights and freedoms under the Convention are violated. This provision
has been interpreted to mean that everyone has a right to an effective
remedy on the condition that he has "an arguable claim to be the
victim of a violation" (see Eur. Court H.R., Silver and Others
judgment of 25 March 1983, Series A No. 61, p. 42, para. 113).
As regards the applicant's complaint that his sickness
benefits were incorrectly assessed, the Commission considers that the
applicant did not have an "arguable" claim of a violation of the
Convention. He was therefore not entitled to an effective remedy under
Article 13 (Art. 13) of the Convention in that respect.
It follows that this aspect of the complaint under Article 13
(Art. 13) is manifestly ill-founded within the meaning of Article 27
para. 2 (Art. 27-2) of the Convention.
Insofar as the complaint under Article 13 (Art. 13) of the
Convention relates to the procedural complaint under Article 6 (Art.
6) of the Convention, it follows from the conclusion above that the
complaint under Article 13 (Art. 13) is also incompatible ratione
materiae with the provisions of the Convention within the meaning of
Article 27 para. 2 (Art. 27-2) of the Convention.
Other complaints
6. The Commission has examined the remainder of the applicant's
complaints, as submitted by him. However, it finds that they do not
disclose the appearance of any violation of the rights and freedoms
guaranteed by the Convention or its Protocols Nos 1 or 4 (P1, P4).
It follows that the applicant's remaining complaints are
manifestly ill-founded within the meaning of Article 27 para. 2 (Art.
27-2) of the Convention.
For these reasons, the Commission
DECLARES THE APPLICATIONS INADMISSIBLE
Secretary to the Commission President of the Commission
(H. C. KRUGER) (C. A. NØRGAARD)