EUROPEAN COMMISSION OF HUMAN RIGHTS
Application No. 11540/85
Haim KARNI
against
SWEDEN
REPORT OF THE COMMISSION
(adopted on 15 December 1988)
TABLE OF CONTENTS
page
I. INTRODUCTION (paras. 1-14) ............................ 1
A. The application (paras. 2-4) ...................... 1
B. The proceedings (paras. 5-10) ..................... 1
C. The present Report (paras. 11-14) ................. 2
II. ESTABLISHMENT OF THE FACTS (paras. 15-45) ............. 3
A. The particular circumstances of the case
(paras. 15-28) .................................... 3
B. Relevant domestic law (paras. 29-45) .............. 5
III. SUBMISSIONS OF THE PARTIES (paras. 46-79) ............. 11
A. The applicant (paras. 46-64) ...................... 11
B. The Government (paras. 65-79) ..................... 13
IV. OPINION OF THE COMMISSION (paras. 80-97) .............. 17
A. Point at issue (para. 80) ......................... 17
B. Article 6 of the Convention (paras. 81-97) ........ 17
APPENDIX I : HISTORY OF THE PROCEEDINGS ................. 20
APPENDIX II : DECISION ON THE ADMISSIBILITY .............. 21
I. INTRODUCTION
1. The following is an outline of the case as submitted to the
European Commission of Human Rights, and of the procedure before the
Commission.
A. The application
2. The applicant is a Swedish citizen, born in 1917 and resident
at Trelleborg. He is a doctor of medicine. Before the Commission, he
is represented by Mr. Kenneth Borin, a lawyer practising at
Trelleborg.
3. The application is directed against Sweden. The respondent
Government are represented by their Agent, Mr. Hans Corell,
Ambassador, Under-Secretary at the Ministry for Foreign Affairs,
Stockholm.
4. The case relates to the procedures engaged by the applicant, a
doctor, to ensure his affiliation to the social security system, and
the question whether he had any possibility of having the dispute
concerning the refusal to affiliate him examined by a tribunal
satisfying the conditions of Article 6 para. 1 of the Convention.
B. The proceedings
5. The application was introduced on 20 February 1985 and
registered on 15 May 1985. On 1 December 1986 the Commission decided,
in accordance with Rule 42 para. 2 (b) of its Rules of Procedure, to
give notice of the application to the respondent Government and to
invite them to present before 6 March 1987 their observations in
writing on the admissibility and merits of the application with regard
to Article 1 of Protocol No. 1 to the Convention and Article 6 para. 1
of the Convention.
The Government's observations were dated 5 March 1987 and the
applicant's observations in reply, after an extension of the time-
limit to 30 May 1987, were dated 19 May 1987. The applicant submitted
a further letter dated 15 September 1987.
6. Legal aid under the Addendum to the Commission's Rules of
Procedure was granted by the President on 7 April 1987.
7. On 8 March 1988 the Commission decided to declare inadmissible
the applicant's complaint of a violation of Article 1 of Protocol No.
1 of the Convention. The remainder of the application (Article 6
para. 1 of the Convention) was declared admissible.
8. The parties were then invited to submit any additional
observations on the merits of the application which they wished to
make.
The applicant submitted further observations by letter of
8 June 1988 and the Government submitted further observations on
30 June 1988, arguing inter alia that the application should be
rejected as inadmissible. The observations of each party were
communicated to the other party for information. Additional
observations from the applicant were dated 11 August 1988.
9. On 9 July 1988 the Commission considered the state of
proceedings of the case.
On 6 and 15 December 1988 the Commission considered the
parties' submissions. It found no basis for the application of Article
29 of the Convention. The Commission then deliberated on the merits
and took the final votes in the case.
10. After declaring the case admissible the Commission, acting in
accordance with Article 28 (b) of the Convention, placed itself at the
disposal of the parties with a view to securing a friendly settlement
of the case. In the light of the parties' reactions the Commission
now finds that there is no basis on which a friendly settlement can be
effected.
C. The present Report
11. The present Report has been drawn up by the Commission in
pursuance of Article 31 of the Convention and after deliberations and
votes in plenary session, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.C. SOYER
H.G. SCHERMERS
H. DANELIUS
H. VANDENBERGHE
Mrs. G.H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
The text of the Report was adopted by the Commission on
15 December 1988 and is now transmitted to the Committee of Ministers
in accordance with Article 31 para. 2 of the Convention.
12. The purpose of the Report, pursuant to Article 31 para. 1 of
the Convention, is:
(1) to establish the facts, and
(2) to state an opinion as to whether the facts found
disclose a breach by the State of its obligations
under the Convention.
13. A schedule setting out the history of the proceedings before
the Commission is attached hereto as Appendix I and the Commission's
decision on the admissibility of the application forms Appendix II.
14. The full text of the parties' submissions, together with the
documents lodged as exhibits, are held in the archives of the
Commission.
II. ESTABLISHMENT OF THE FACTS
A. The particular circumstances of the case
15. The applicant moved from Switzerland to Sweden in 1982. After
having retired in January 1983 the applicant decided to open a private
medical practice at Trelleborg since his income from his pension was
insufficient.
16. On 21 August 1984 the applicant applied for affiliation to the
social security system. According to the application the applicant
intended to carry on medical practice at Trelleborg. He did not intend
to work full time but 30 hours a week.
By letter of 17 September 1984, the Social Insurance Office of
Malmöhus (Malmöhus allmänna försäkringskassa) informed the applicant
that, as from 28 August to 31 December 1984, he had been entered on
the list of private medical practitioners within the Office's area,
who were affiliated to the social security system. The applicant was
also informed of the fees he was entitled to charge his patients.
17. Following his affiliation to the social security system the
applicant maintains that he set up his medical practice at Trelleborg.
He signed a contract for the premises for his practice and furnished
it with an electrocardiograph and other special instruments. In all,
he invested some 90.000 SEK.
18. By a letter dated 15 October 1984, the applicant received from
the Social Insurance Office a preliminary notice as regards his
affiliation to the social security system as from 1 January 1985.
It read as follows:
"In view of the fact that new rules concerning affiliation
to the social security system will enter into force as from
January 1985, the Social Insurance Office informs you as
follows.
The Social Insurance Office has found, after investigation,
that you do not fulfil the conditions for continued
affiliation to the rules on remuneration for medical care
under the social security system. The Office therefore
intends to strike you off its list at the end of 1984.
In the annexed notice concerning the new rules an account is
given inter alia of the conditions for being entered on the
Insurance Office's list as from the coming year and of the
possible exemptions.
If, in view of the above, you intend to submit a request for
exemption or otherwise have any objection against the
Insurance Office's assessment you should make this known
immediately and at the latest within 14 days. The
communication should be sent to the Social Insurance Office
together with the documents you wish to invoke.
You will be informed later of the decision on the question
of affiliation."
19. On 26 October 1984 the applicant telephoned the Social
Insurance Office stating that he had made investments during the
autumn and would submit documents to show these investments.
20. In an application of 27 November 1984 to the Insurance
Office, the applicant requested to be allowed to continue as a doctor
affiliated to the social insurance system also after 1 January 1985.
He referred to conversations and correspondence with the County
Council of the County of Malmöhus (Malmöhus läns landsting). The
application also contained a copy of a letter from the applicant to
the County Council, dated 27 November 1984.
21. In the letter to the County Council, the applicant requested
to be allowed to continue as affiliated to the insurance system after
1 January 1985. Besides referring to a conversation during a visit to
the County Council on 22 October 1984, the applicant also stated that
he had been abroad and had only learned at the end of October 1984 of
the new regulations for affiliation after 1 January 1985 and also that
he had been granted affiliation without having been advised of the
impending changes. He claimed that his arrangements for establishing
the practice were substantially complete by the end of October and
that he had invested considerable sums, including signing a year's
contract for premises and the purchase of expensive apparatus and
furniture. He claimed that his medical practice was a vital necessity
for him. He had no alternative, since he was not entitled to any form
of pension.
22. The Social Insurance Office made no decision concerning the
applicant's affiliation after the decision notified in the preliminary
notice of 15 October 1984, and no decision was given on his
application of 27 November 1984. There is no explanation as to the
reason for this silence. Nor has the Office taken any other measures
concerning the applicant's affiliation. The National Social Insurance
Board (riksförsäkringsverket) has not received any petition concerning
the applicant's affiliation, neither from the applicant himself nor
from the Insurance Office.
23. According to records kept at the Insurance Office, the
applicant received insurance remuneration for 24 consultations during
the book-keeping period of November 1984 and for 11 consultations
during the book-keeping period of December 1984. The total
remuneration amounted to just under 9,000 SEK.
24. By letter of 20 December 1984 the applicant received
inter alia the following information from the County Council:
"Your application will be dealt with together with the other
applications for new establishments and applications for
continued private and leisure practice from the private and
leisure practitioners who do not fulfil the basic conditions
for continued affiliation to the Social Insurance Office.
Thus, the intention is to make an overall assessment of the
need of private medical care, the present medical resources
under private and public regime and the financial
consequences for the County Council.
Since the time-limit for applications for continued private
and leisure practice expires on 31 December 1984, the
examination of your application can only be made in the
beginning of 1985. According to the guidelines of the
administrative committee, all applications shall have been
examined by 31 March 1985.
Awaiting the outcome of your application you have the
possibility to continue your practice from 1 January 1985
on the following conditions. Remuneration will be paid
according to unchanged principles for a maximum of 200
consultations per month. The remuneration will be paid by
the County Council and should therefore be accounted for
on a special form which will be sent to you shortly.
The above permission does not imply any stand as to
continued practice after 31 March 1985. If the application
is rejected, no further prolongation will be granted."
25. By letter of 25 January 1985 the applicant informed the County
Council that his affiliation to the social security system had been
granted without mentioning the subsequent reorganisation of the rules.
He also informed the Council of his investments in his practice.
26. By letter of 14 February 1985 the applicant was informed that
on 13 February 1985 the Health and Social Delegation (hälso- och
sjukvårdsdelegationen) of the County Council had rejected his
application for an agreement on a medical practice implying his
affiliation to the social security system.
27. The applicant closed down his practice immediately.
28. On 17 February 1985 the applicant applied to the County
Council for a contribution towards the costs for the closing down of
his medical practice. This request was rejected by the County Council
on 5 March 1985.
B. Relevant domestic law
29. Medical attendance in Sweden is mainly a matter for the public
sector. Of 21,000 doctors in 1985, 18,500 were employed at hospitals
and other medical institutions within the public sector. Another 1,000
were employed within the occupational health service. Of the remaining
group some 1,000 are estimated to work as private practitioners.
30. Benefits for medical care are provided by the social insurance
system which also covers, for example, pensions and child allowances.
The legal basis for the system is the 1962 Social Insurance Act (lagen
om allmän försäkring).
31. This Act applies to Swedish citizens and those who, although
not Swedish citizens, are resident in Sweden. The administration of
the system is carried out by Social Insurance Offices and the National
Social Insurance Board. Allowances for medical expenses are paid by
local Social Insurance Offices pursuant to Chapter 2 of the Act, and
include remuneration for out-patient medical care (läkarvård i öppen
vård). Remuneration is paid if such care is provided by the State, a
county council or a municipal authority not part of a county council
(public medical care) or by a doctor affiliated to the social
insurance system (alternative medical care). Most private
practitioners are affiliated to the system. According to the Act
remuneration is paid on grounds stipulated by the Government.
32. New rules came into force on 1 January 1985 regarding health
insurance benefits for out-patient care and regarding the affiliation
of private practitioners to the health insurance system.
33. Prior to 1 January 1985 remuneration was paid for each visit
to the doctor. This applied to both public care and alternative
care. The patient paid a stipulated maximum patient's fee, and the
doctor affiliated to the social insurance system received a stipulated
sum for each patient's visit, directly from the social insurance
office. If the doctor was employed within public medical care, for
instance by a County Council, the County Council received the
corresponding sum.
34. The reform entailed the application of new rules for
remuneration as from 1 January 1985. In order to limit social
insurance expenses, and to achieve better regional distribution of
care throughout Sweden and taking into consideration that the medical
care principal (sjukvårdshuvudmannen) had the responsibility for
medical care planning within its area, the previous form of
remuneration calculated on the number of patient's consultations was
replaced by a form of a more roughly estimated remuneration.
35. In the new system the sum is calculated on the basis of the
number of inhabitants within the medical care area for which the
medical care principal is responsible and covers medical care provided
both by doctors employed by the medical care principals and by other
doctors. The remuneration is paid to the medical care principal after
deduction of the sum paid per consultation to private practitioners
affiliated to the social insurance system.
36. To enable joint planning of medical care, and since a
deduction is made on remuneration to the medical care principals for
private medical care, the rules were at the same time changed for
affiliation of private practitioners to the system. Prior to
1 January 1985, any doctor could upon application be affiliated to the
social insurance system. The Insurance Office entered the doctor on a
list kept by the Offices for this purpose. Subsequent to 1 January
1985, private practitioners may in principle only be affiliated to the
system at the recommendation of the medical care principal (not
necessary in areas with very few doctors).
37. However, any private practitioner already affiliated when the
new regulations came into force on 1 January 1985 was permitted to
remain within the system without recommendation from the medical care
authorities, provided the doctor's practice had been of a certain
magnitude.
38. The reform was proposed in a Government Bill to the Parliament
in April 1984 (Bill No. 1983/84:190). A main purpose of the reform was
to improve the possibilities for people living in those parts of
Sweden which are sparsely populated - for example wide areas in the
northern parts of Sweden - to get access to medical care. The
Government saw this as a fulfilment of the aims set up in the 1982
Health and Medical Services Act (hälso- och sjukvårdslagen), which
stipulates that the aim for the health and medical care is good health
and medical care supplied on the same conditions to the whole
population. In the sparsely populated areas there was a considerable
lack of doctors in the public as well as in the private care. In the
city regions the case was the reverse. In order to see to it that the
population within the area for which the medical care principal is
responsible gets access to good health and medical care, as prescribed
in the Health and Medical Services Act, the medical care principals
had to be made capable of estimating the range of the care supplied.
It was therefore deemed necessary that the activities of private
practitioners affiliated to the social insurance system were also
co-ordinated with the activities of the medical care principals as
far as planning was concerned. The medical care principals therefore
were given a determining influence when deciding whether private
practitioners can be affiliated to the social insurance system.
39. The Bill was approved by Parliament on 5 June 1984. The
proposed reform had caused general debate in the newspapers and other
mass media. By approving the Bill, Parliament authorised the
Government to regulate the basis for remuneration for medical
treatment and also to issue directives regarding the extent to which
private practitioners should be included in the lists kept by the
Social Insurance Offices and thus affiliated to the insurance system.
The amendments came into force on 1 January 1985.
40. The basis for remuneration to medical care principals laid
down by the Government appear in the 1984 Ordinance on Remuneration to
Medical Care Principals from the Social Insurance under the Social
Insurance Act. The basis for remuneration from the national social
security system to private practitioners is stipulated by the
Government in the 1974 Tariff of Medical Care Charges
(läkarvårdstaxan; hereinafter referred to as "the tariff"), as
amended. The tariff states the conditions under which private
practitioners may join the social security system by being entered on
the Social Insurance Office list, thus being entitled to remuneration
from the insurance. The tariff also stipulates the maximum fee which
a doctor may charge for a treatment or consultation. Of that fee the
doctor receives a fixed sum directly from the patient (the patient's
fee in 1985 was 55 SEK). The remaining part of what has been charged
is paid to the doctor from the Social Insurance Office. Such
remuneration is paid to the doctor for each patient's visit even
subsequent to the reform.
41. The new regulations in the tariff following the parliamentary
decision of 5 June 1984 were issued on 16 October 1984 (Ordinance No.
1984:767). As from 1 January 1985, a private practitioner thus may
join the social insurance system only if recommended by the medical
care principal. However, this requirement does not apply to a person
taking over a practice from a doctor who is already affiliated to the
system. Neither does it apply to the establishment of new practices
in certain areas of Sweden in special need of doctors (Section 3 of
the tariff). The areas concerned are the sparsely populated wide
areas situated mainly in the northern parts of Sweden.
42. The Ordinance included certain transitional provisions
relating to doctors affiliated to the national insurance system at
the time when the new regulations came into force. The transitional
provisions correspond to what was recommended in the Bill (pp. 32-33)
and approved by Parliament, and read as follows:
(Swedish)
"Denna förordning träder i kraft den 1 januari 1985.
1. En läkare som vid utgången av år 1984 är uppförd på
förteckning hos allmän försäkringskassa skall från och med
den 1 januari 1985 av försäkringskassan föras av från
förteckningen om han inte uppfyller kraven för att stå kvar på
denna.
2. En läkare som är uppförd på förteckningen vid utgången av
år 1984 och som inte är heltidsanställd hos sjukvårdshuvudman
skall även fortsättningsvis vara uppförd på förteckningen utan
krav på tillstyrkan från sjukvårdshuvudmannen. En
förutsättning är att verksamheten bedrivs på samma ort och att
läkaren under tiden juli 1983 - mars 1984 har bedrivit
verksamheten i sådan omfattning att han fått ersättning från
den allmänna försäkringen motsvarande minst två månaders
heltidsverksamhet. Har läkaren under denna tid på grund av
sjukdom varit förhindrad att i tillräcklig omfattning bedriva
verksamhet skall detta krav ändå anses uppfyllt. Detsamma
gäller om verksamheten hindrats av annat skäl som godtas av
riksförsäkringsverket.
En läkare som börjat sin verksamhet så sent att han inte har
kunnat bedriva den i tillräcklig omfattning under den i första
stycket angivna tiden, men som före april 1984 gjort betydande
investeringar eller vidtagit andra långtgående åtgärder i
verksamheten, får efter särskild prövning av riksförsäkringsverket
medges att även fortsättningsvis vara uppförd på
förteckningen.
I de fall läkaren under år 1984 har övertagit en befintlig
praktik från en läkare som är uppförd på förteckning hos
försäkringskassan, får han åberopa den tidigare innehavarens
verksamhet för att uppfylla förut angivna förutsättningar.
3. Läkare som avses under punkt 2, som inte är heltidsanställd
hos sjukvårdshuvudman och som inte uppfyller där angivna krav
för att även fortsättningsvis vara uppförd på försäkringskassans
förteckning, får vara kvar på denna tills vidare eller under
viss tid efter utgången av år 1984 om sjukvårdshuvudmannen
tillstyrker det."
(English translation)
"This Ordinance shall come into force on 1 January 1985.
1. A doctor who was included in the list kept by the social
insurance office at the end of 1984 shall be deleted
therefrom as from 1 January 1985, if he does not fulfil
the requirements for remaining on the list.
2. A doctor who was included in the list at the end of
1984, and who is not employed full-time by the medical
care principal, may continue to be included in the list
without having to be recommended by the medical care
principal, provided the practice is run at the same
place and that, over the period July 1983 to March 1984,
the doctor has carried out his practice to such an extent
that he has received remuneration from the social insurance
office corresponding to at least two months full-time
activity. Should the doctor have been prevented by
illness during this time from carrying on his practice
to the extent required, this requirement shall in any
case be considered to have been fulfilled. The same
applies in the event of the practice not having been
carried on for some other reason accepted by the National
Social Insurance Board.
A doctor who established his practice too late to have
been able to carry it on to a sufficient extent during
the period stated in the first paragraph but who, prior
to April 1984, has made considerable investments or taken
other long-term measures regarding the practice may,
upon special examination by the National Social Insurance
Board, be permitted to remain on the list.
In the event of a doctor having taken over an existing
practice in 1984 from a doctor who is already on the
Social Insurance Office list, he may refer to the
activities of the previous owner in order to fulfil
the stipulated requirements.
3. Doctors referred to under point 2, who are not
employed full-time by a medical care principal and who
do not fulfil the requirements stipulated therein for
remaining on the Social Insurance Office list, may
remain until further notice, or for a certain period
after the end of 1984, if recommended by the medical
care principal."
43. In accordance with what was recommended in the Bill (p. 33),
doctors not fulfilling the requirements for automatically remaining in
the insurance system should be notified thereof as soon as possible
after 1 July 1984 and advised of the conditions for affiliation after
1 January 1985. During autumn 1984 the National Social Insurance
Board issued information to the local Social Insurance Offices, and
the doctors affected were informed individually by these offices.
According to the National Social Insurance Board, information should
be issued from the local offices in the following manner:
A preliminary notice from the Insurance Office should be sent
to the doctor stating that upon investigation it had been found that
the doctor did not fulfil the requirements for continued affiliation
to the insurance system and that the office therefore intended to
delete the doctor from its list at the expiry of 1984. Information as
to the new regulations, including the transitional provisions, was to
be included with the notice.
The notice stated that a petition for exemption or objections
to the assessment of the Insurance Office should be submitted
immediately or within 14 days and should be addressed to the local
Social Insurance Office. The preliminary notice should state that a
decision concerning affiliation would be communicated later.
The question of affiliation was then to be examined by
the Insurance Office. Petitions for exemption from the
requirements stipulated by the transitional provisions point
2, regarding practice having been carried on prior to 1 April 1984,
were to be forwarded to the National Social Insurance Board
for examination.
As to the question of affiliation of new private practitioners
to the insurance system during the period up to 1 January 1985, when
the Act came into force, the Bill stated that decisions to include
such practitioners in the Insurance Office's list after 1 July 1984
should only apply until the end of 1984 (the Bill p. 33). A provision
to that effect was also included in an amendment to the transitional
provisions to the tariff. In that provision, which entered into force
on 1 July 1984, it was stipulated that a decision to enter a private
practitioner on the list after 30 June 1984 was to apply only until
the end of 1984. The establishment of new practices in areas in
special need of doctors was exempted from the provision.
44. Pursuant to Chapter 20 Section 11 of the 1962 Social Insurance
Act appeals can be lodged with the Regional Social Insurance Court
(försäkringsrätten) against a decision of the Social Insurance Offices
and of the National Social Insurance Board. Further appeals can be
addressed to the Supreme Social Insurance Court (försäkringsöver-
domstolen). However, an appeal may not be filed against the decision
of a Social Insurance Office by an individual until the Insurance
Office has reconsidered its decision pursuant to Chapter 20 Section 10
of the Social Insurance Act. An appeal lodged prior to the
reconsideration of the decision shall be deemed to be a request for
reconsideration. These provisions also apply to decisions not to
include doctors in the list for doctors affiliated to the system.
45. Chapter 7 Section 1 of the Local Government Act
(kommunallagen) provides that a decision by a Municipal Council or a
County Council is subject to a municipal appeal (kommunalbesvär) to
the Administrative Court of Appeal (kammarrätten) if the decision:
(1) has not been taken in accordance with the law,
(2) violates the law or any other statute,
(3) has been taken outside the legal authority of the
Municipal Council or the County Council,
(4) violates the private rights of the claimant, or
(5) for some other reason must be considered unfair.
Further appeals can be made to the Supreme Administrative
Court (regeringsrätten).
III. SUBMISSIONS OF THE PARTIES
A. The applicant
46. In order to have patients it is necessary for the private
practitioner to be affiliated to the social insurance system. Doctors
outside this system in Sweden of today are rare, if they exist at all.
The applicant realised the necessity to be affiliated to the system.
Before 1985 a doctor could easily be affiliated to the social
insurance system. He only had to notify the Insurance Office and he
was affiliated with no condition other than that he had to apply the
obligatory tariff.
47. During 1984, not having got any temporary post, the applicant
spent part of the year with his daughter in Switzerland. He notified
his affiliation to the social insurance system, which was accepted in
September 1984. The applicant was not informed that the regulations
for the affiliation were to be changed.
48. During September - October 1984 the applicant acquired
apparatus and furniture for his practice. He also signed a contract
for the consultation room. He invested an amount of about 100,000
SEK. His affiliation was valid to the end of 1984. Being informed by
some colleagues that such an affiliation was always given for the
running year only he was convinced that the affiliation would
automatically be prolonged. He started his practice at the beginning
of November 1984. Shortly thereafter he was informed in writing by the
Insurance Office that his affiliation would not be prolonged after the
end of 1985. As a result of the rules of that time the applicant
considered the affiliation as a pure formality. In order to secure
his affiliation after the new year 1985 he contacted persons in the
county administration who were competent to pass a resolution and
wrote petitions to the Social Insurance Office and to the County
Council. All his measures resulted only in a limited prolongation of
the affiliation until 31 March 1985. The applicant terminated his
practice in February 1985. The activity, which had hardly begun, was
in a phase of building up and not of any considerable proportions.
49. It is important to give the background of the personal life
situation of the applicant. His dream was once more to get in contact
with patients of his speciality, cardiology. For this purpose he
equipped his practice with expensive apparatus. The applicant is today
71 years old. One can easily imagine what kind of psychological
consequences the smashing of this dream had. If he had been
20-30 years younger he would not have taken any legal steps but would
have tried once more. However in his high age, and financially ruined,
a new start was simply impossible. He strongly felt that the last
train had left him. No single person is apparently responsible, but
the faceless bureaucracy can be made responsible for this severe hit
against a person of high character with a benevolent aim for his eyes.
50. The applicant's petitions to the authorities were partly an
appeal against not being affiliated, partly an application to be
affiliated under the new rules valid from 1 January 1985.
51. The applicant emphasises that the new rules had a very harmful
impact on the working conditions of the private doctors. Prior to the
reform only an announcement was necessary for the affiliation. Under
the new rules a recommendation of the County Council is necessary. The
radical change of the rules for the affiliation to the insurance
system called for extensive transitional provisions. The Ordinance
(the tariff) was issued on 16 October 1984. According to the new
regulations all doctors who were registered as affiliated to the
social insurance system would be struck off the list if they did not
comply with the new conditions.
52. The applicant had principally two possibilities to retain his
affiliation. First, he could apply for a new affiliation according to
the new rules. For this purpose it was necessary to have a
recommandation of the County Council. Such a recommendation is a
political decision. The County Council is not a court. A decision to
refuse a recommendation cannot be appealed to a court for
reconsideration. There is no right to complain.
53. Another possibility was to request that under the transitional
provisions the applicant should continue to be affiliated. Such issues
were dealt with by the National Social Insurance Board. A decision of
this Board could be appealed to the Insurance Court. According to the
transitional provisions an examination by a court was possible. The
applicant has sent several applications to the County Council and to
the Social Insurance Office in order to have his affiliation
prolonged. For some inexplicable reason these applications have never
been forwarded to the National Social Insurance Board. It was the
duty and responsibility of the Council and of the Office to forward
these applications to the National Social Insurance Board. There are
special regulations according to which the Social Insurance Office
has to forward applications to the competent body. Consequently in
this case the authorities have without any reason failed to take a
decision. Since no decision was given there was no decision to appeal
against.
54. The way the authorities dealt with this case was strange,
especially having regard to the fact that the applicant was
extraordinarily active to maintain his rights. He contacted personally
the authorities to which he described his situation. The obstruction
the applicant was exposed to is so astounding that it can only be
explained by a conscious aversion against his person.
55. The applicant received the preliminary notice of not being
affiliated after 1 January 1985 at the end of October 1984. He
protested personally on 22 October 1984 to chairman Holgersson at the
County Council, who assured the applicant that he could count on a
continuation of his affiliation. In November 1984 the applicant sent
applications to the Social Insurance Office and to the County Council.
None of these applications have been dealt with properly since they
have not been forwarded to the National Social Insurance Board. His
letter of 25 January 1985 has not been treated properly either.
The submission "this means in fact that his application for
affiliation in a formal sense still remains unanswered by the office"
is very near the truth, namely, that damage has been caused to the
applicant during four years, because his request has not been
correctly handled.
56. The applicant has not appealed against the decision of
September 1984 to affiliate him only to the end of 1984. It was the
common practice to sign a contract for the running year only. The
applicant supposed that the affiliation would be prolonged
automatically for the next year.
57. The Government assert that it is insignificant that the
applicant did not have the final decision on his application for
continuation of the affiliation because he nevertheless does not
fulfil the conditions in the transitional provisions. This is
incorrect. Certain regulations make it possible that the applicant
continues to be affiliated. In any case one does not know what would
have been the outcome if his applications had been dealt with by the
National Social Insurance Board or reconsidered by the Court.
58. The applicant submits that, in his efforts to obtain
affiliation to the social insurance system after the expiry of 1984,
he was seeking a determination of his civil rights.
59. The applicant has requested compensation for the financial
loss the treatment has caused him. It is correct that the ordinary
courts may examine a compensation claim against the State. In the
case of the applicant such a possibility does not exist, since there
is no administrative decision which could form the basis for such a
claim. The applicant lacks the possibility to have his claim
examined.
60. It is necessary to distinguish between the examination under
the transitional provisions and under the new legislation. Under the
transitional provisions the applicant never received any final
decision and no notice of appeal. His case was never transferred to
the National Social Insurance Board. By failing to fulfil their
duties the authorities deprived the applicant of his right to have his
case examined.
61. Under the new legislation the decision of the County Council
cannot be appealed to a court. The County Council is not a court but
a political organ.
62. Consequently, since the affiliation was important for his
practice and his possibility to earn a living this is a question of
his "civil rights". The applicant has been prevented from working
in his profession as a result of the refusal of affiliation. He
maintains that Article 6 of the Convention has been violated.
63. In support of his application the applicant invokes the
Benthem case (Eur. Court H.R., Benthem judgment of 23 October 1985,
Series A No. 97) and the van Marle case (Eur. Court H.R., van Marle
and others judgment of 26 June 1986, Series A No. 101).
64. The Government's reference to the possibility of lodging a
municipal appeal with the Administrative Court is in his view
misleading. This special kind of appeal does not result in a
reconsideration of the case. So in fact the decision of the County
Council cannot be appealed to a court in the meaning of Article 6 of
the Convention.
B. The Government
65. In the Government's opinion it seems that the applicant
started his practice in the autumn of 1984 without having checked the
conditions for affiliation to the social insurance system or which
provisions were to be applied.
66. Since the applicant never received any decision regarding his
application of 27 November 1984 he was never given an opportunity to
make use of his right to appeal. It seems that the applicant was not
aware of his right to make appeals. However, it would be useless for
the applicant to bring his case to the courts and to do this after
such a long time. The law is clear and the transitional provisions do
not give the applicant any chance of having his application for
affiliation to the social system granted in the way he wished. The
courts which have to apply the new legislation and the transitional
provisions thereto cannot possibly arrive at any other conclusion.
67. According to the letter of 17 September 1984, the applicant
was affiliated to the national insurance system only for a limited
period, i.e. from 28 August to 31 December 1984. During this period it
could be said that the applicant was given a right to be affiliated to
the system. This decision could have been appealed to the Social
Insurance Court but this was never done. With respect to this period
there seems to be no need to examine whether this right could be
regarded as a civil right within the meaning of the Convention.
68. The question which then arises is whether after the expiry of
1984 it could be said that the sets of proceedings which took place
were concerned with a determination of any right of the applicant and,
if so, if such a right could be regarded as a civil right. Here the
Government point out that from the expiry of 1984 the applicant had no
right at all under the Swedish legislation to remain affiliated to the
national insurance system. The matter was closed by the decision
taken by the office in its letter of 17 September 1984. This appears
from the fact that the transitional provisions were not applicable to
the applicant's case. These provisions took aim at those
practitioners who were affiliated to the insurance system without any
time-limit and who would have remained affiliated if the reform had
never been introduced. This is not the case regarding the applicant.
Since he did not fulfil the requirements of the transitional
provisions, it was not necessary to notify the applicant as was done
by the preliminary notice of 15 October 1984.
69. The applicant's right to be affiliated to the social insurance
system expired at the end of 1984. From that date he had no such
right. The communication from the County Council of 20 December 1984
did not alter this situation. The information given in that letter
could be described as a proposal for an ex gratia agreement awaiting
the outcome of the application to the County Council for a cooperation
agreement concerning the applicant's private practice. The letter did
not imply that the applicant was affiliated to the social insurance
system, only that he would be paid by the County Council for a limited
period according to the same grounds. It is evident that a proposal
of this kind cannot, if accepted, be said to give rise to a prolonged
right.
70. Thus the sets of proceedings that have taken place after the
letter of 17 September 1984 deal only with a right to be affiliated
which the applicant wanted to acquire after 1 January 1985 and not
with a right that he still enjoyed. For that reason the applicant's
efforts to obtain affiliation to the social insurance system after the
expiry of 1984 cannot be regarded as if he was seeking a
determination of any of his rights regardless of whether they shall be
considered to be of a "civil" character or not.
71. A parallel could be drawn with a number of cases in which the
exercise of various activities requiring a licence or an authorisation
of some kind was at issue. Reference is made i.a. to the König case
(Eur. Court H.R., König judgment of 28 June 1978, Series A No. 27),
the case of Le Compte and others (Eur. Court H.R., Le Compte, Van
Leuven and De Meyere judgment of 23 June 1981, Series A No. 43), the
Benthem case (Eur. Court H.R., Benthem judgment of 23 October 1985,
Series A No. 97) and the Pudas case (Eur. Court H.R., Pudas judgment
of 27 October 1987, Series A No. 125-A). In all these cases the Court
found that a dispute pertaining to a civil right was at issue and thus
that Article 6 was applicable. But in those cases there was a
question of withdrawing a licence or interfering with a commercial
activity already being exercised and there was no time-limit for
the licence or authorisation. It has always been a question of
changing the conditions in an existing situation. In the Benthem
case, for instance, the Court must be understood as having attached
importance to the fact that the licence had in fact already been made
use of. It was against this background that the Court found that
there existed direct links between the granting of the licence and the
entirety of the applicant's commercial activities (see the Benthem
judgment, loc. cit.). There seems to be no case decided by the Court
in which the granting of an application for a new licence or
authorisation has been regarded as a determination of the individual's
civil rights.
72. The present case must be looked upon in the same way as if a
person applies for a licence required for a special kind of economic
activity without having carried out such an activity before. Thus, it
is no question of prolonging an existing right to be affiliated but of
deciding whether a new right shall be granted. In any case the
Government contest that such a right, i.e. a right to be affiliated to
the social insurance system, could be regarded as a civil right.
73. It could be argued that the way the Social Insurance Office
has handled the matter was not quite correct from a formal point of
view. The applicant's request for affiliation, made to the Social
Insurance Office by letter of 27 November 1984, should have been dealt
with by the Office. Having heard the County Council, the Office
should have taken a decision on the matter, which decision could have
been examined by a tribunal as stipulated in Article 6 para. 1.
74. The examination which the Commission has to make in the
present case thus concerns a way of dealing with the matter which was
not intended by the legislator.
75. If the Commission takes the view that the proceedings before
the Social Insurance Office involved a determination of the
applicant's civil rights, the Government admit that no formal decision
was taken by the Office neither following the notice of 15 October
1984 nor in response to the applicant's request of 27 November 1984.
The Government have not obtained any explanation to this by the
authority concerned. The way the Social Insurance Office has dealt
with the applicant's request is a matter that could be examined by the
Parliamentary Ombudsman or the Chancellor of Justice. As far as it is
known to the Government the applicant has taken no initiative in that
direction. Nor has he insisted on a decision of the Office which
could then be appealed to the Regional Social Insurance Court. This
means that his application for affiliation in a formal sense still
remains unanswered by the Office.
76. Regarding the decision of the County Council of 14 February 1985
the Government refer to Chapter 7 of the Local Government Act. If the
applicant was not satisfied with the decision of the County Council he
could lodge a municipal appeal provided he was a member of the County
Council of Malmö. This he should have been, since he lived within a
municipality under that County Council. Even if a court examination
under this provision aims at ensuring the legality of a decision such an
examination should satisfy the requirements laid down in Article 6
para. 1 of the Convention.
77. The Government conclude that the decision only to affiliate
the applicant to the social insurance system up to the expiry of 1984
could have been appealed to an impartial tribunal within the meaning
of Article 6 para. 1. The applicant's request for affiliation after
the expiry of 1984 does not seem to have been handled quite correctly.
However, neither the proceedings before the Social Insurance Office,
nor those before the County Council were concerned with a
determination of the applicant's civil rights. For that reason
Article 6 does not apply to any of these proceedings. The decision
that ought to have been taken by the Social Insurance Office could
have been reviewed by an impartial tribunal as stipulated in Article 6
para. 1. The decision taken by the County Council could also have
been reviewed by a court in accordance with Article 6 para. 1. The
applicant has not made use of this right to appeal.
78. In view of the scope of the examination which the Commission
has laid down in its decision on the admissibility the Government
still maintain that the complaints under Article 6 should be declared
inadmissible, as far as the proceedings before the County Council are
concerned, for failure to exhaust domestic remedies, and, regardless
hereof, ratione materiae, since none of these concerned a
determination of the applicant's civil rights.
79. If this view is not accepted by the Commission the Government
maintain that the complaints under Article 6 para. 1 are manifestly
ill-founded, there being no violation of Article 6 in any of these
proceedings.
IV. OPINION OF THE COMMISSION
A. Point at issue
80. The only issue to be decided is whether or not Article 6
para. 1 (Art. 6-1) of the Convention is applicable in the present case and, if
so, whether or not there has been a violation of that provision.
B. Article 6 para. 1 (Art. 6-1) of the Convention
81. The applicant alleges a violation of Article 6 para. 1 (Art. 6-1) of
the Convention in that he was refused continued affiliation to the social
security system without legal process. The Government submit that this
complaint is ill-founded either on the ground that Article 6 para. 1 (Art. 6-1)
was not applicable or on the ground that sufficient remedies were available to
the applicant.
82. Article 6 para. 1 (Art. 6-1) first sentence reads:
"In the determination of his civil rights and obligations or
of any criminal charge against him, everyone is entitled to a
fair and public hearing within a reasonable time by an
independent and impartial tribunal established by law."
83. Article 6 para. 1 (Art. 6-1) of the Convention would only apply if the
applicant were seeking a determination of a dispute (French:
"contestation") over a "right" and if that "right" were "civil" in
character.
84. In the examination of whether Article 6 para. 1 (Art. 6-1) is
applicable in the present case the Commission has first examined whether there
was a dispute ("contestation") over a "right".
85. The "rights" referred to in Article 6 para. 1 (Art. 6-1) are those
which can be said, at least on arguable grounds, to be recognised under
domestic law. The provision does not in itself guarantee any particular
content of the substantive rights recognised in the laws of the Contracting
States (cf. Eur. Court H.R., Lithgow and Others judgment of 8 July 1986,
Series A no. 102, p. 70, para. 192).
86. It follows from the case-law of the Convention organs in
regard to Article 6 para. 1 (Art. 6-1) that the dispute which gives a right to a
determination by a court must be "genuine and of a serious nature"
(see Eur. Court H.R., Benthem judgment of 23 October 1985, Series A
no. 97, p. 14, para. 32). The dispute may relate not only to the
actual existence of a right but also to its scope or the manner in
which it may be exercised. The dispute may concern both questions of
fact and questions of law (cf. Eur. Court H.R., van Marle and Others
judgment of 26 June 1984, Series A no. 101, p. 11, para. 32).
87. In the present case, the question is therefore whether the
applicant could, at least on arguable grounds, claim a right under
Swedish law to be affiliated to the social security system as from
1 January 1985 and whether there existed a genuine dispute of a
serious nature regarding his right to be affiliated to that system.
88. The Commission recalls that the applicant was affiliated to
the social security system from 28 August 1984 and that on this basis
he set up his medical practice at Trelleborg. However, his affiliation
was expressly limited until 31 December 1984 in accordance with the
transitional provisions to the medical care tariff which had entered
into force on 1 July 1984 and which provided that a decision to enter
a private medical practitioner on the Social Insurance Office's list
after 30 June 1984 was to apply only to the end of 1984. It follows
that the applicant could not from this affiliation to the social
security system derive any right to remain affiliated after
31 December 1984.
89. Moreover, when the applicant was affiliated to the system in
the autumn 1984, it was already known which new rules would apply as
from 1 January 1985. New legislation on this matter had been adopted
by Parliament on 5 June 1984 on the basis of a Government Bill
submitted to Parliament in April 1984.
90. Under the new rules which were contained in the amended
medical care tariff of 16 October 1984, a medical practitioner would -
with certain exceptions which are not relevant here - only be
affiliated to the social security system upon recommendation of the
medical care principal. However, according to the transitional
provisions, medical practitioners who had already been affiliated to
the social security system and who satisfied certain conditions could
remain affiliated to the system.
91. The conditions for continued affiliation, which were laid down
in point 2 of the transitional provisions, were that the medical
practitioner should have performed work corresponding to at least two
months' full-time work during the period July 1983 - March 1984 or
that he had, before April 1984, made important investments or taken
other long-term measures in connection with his medical practice. It
is clear that the applicant did not satisfy these requirements and
that he could not therefore base a "right" to continue being
affiliated to the system on this transitional provision.
92. It is true that point 3 of the transitional provisions stated
that medical practitioners not falling within any of the specified
categories could nevertheless, if recommended by the medical care
principal, remain affiliated to the social security system until
further notice or for a limited time after 1 January 1985. However,
leaving aside the prolongation of the applicant's affiliation until
31 March 1985, the applicant had not, before 1 January 1985, obtained
any such recommendation from the medical care principal. The reply
which he subsequently received to his request on this matter implies
that his affiliation could not be recommended. Consequently, the
applicant did not satisfy the conditions in point 3 of the
transitional provisions.
93. Given the applicant's situation it follows that the question
whether the applicant could be affiliated to the social security
system after 1 January 1985 was wholly dependent on whether the
medical care principal accepted it. The applicant does not even claim
that he fulfilled the conditions for continued affiliation. In any
event, he has not alleged that, under the new legislation, the refusal
to accept his continued affiliation was unlawful under Swedish law.
94. It follows that there was not any "genuine" and "serious"
dispute concerning any "right" under Swedish law.
95. Finally, the fact that the applicant's petitions were not
properly dealt with by the competent Swedish authorities, although
being a disturbing element, cannot affect the issue of the
applicability of Article 6 para. 1 (Art. 6-1) of the Convention to the present
case.
96. Consequently, Article 6 para. 1 (Art. 6-1) is not applicable. It
follows that there can be no violation of the said provision.
Conclusion
97. The Commission concludes, by 14 votes to 1, that there has
been no violation of Article 6 para. 1 (Art. 6-1) of the Convention.
Secretary to the Commission President of the Commission
(H. C. KRUGER) (C. A. NØRGAARD)
APPENDIX I
HISTORY OF THE PROCEEDINGS
Date Item
________________________________________________________________________
20 February 1985 Introduction of the application
15 May 1985 Registration of the application
Examination of admissibility
1 December 1986 Commission's deliberations and decision
to invite the Government to submit
observations on the admissibility and
merits of the application
5 March 1987 Government's observations
19 May 1987 Applicant's reply
8 March 1988 Commission's further deliberations and
decision to declare the application
partly admissible and partly inadmissible
Examination of the merits
8 June 1988 Applicant's letter containing
observations on the merits
30 June 1988 Government's observations on the merits
9 July 1988 Commission's consideration of state
of proceedings
11 August 1988 Letter from applicant containing further
observations on the merits
6 December 1988 Commission's deliberations on the merits
15 December 1988 Commission's deliberations on the
merits, final votes and adoption of
the Report