AS TO THE ADMISSIBILITY OF
Application No. 29033/95
by Tomas SANDRÉN
against Sweden
The European Commission of Human Rights (Second Chamber) sitting
in private on 16 October 1996, the following members being present:
Mrs. G.H. THUNE, President
MM. J.-C. GEUS
G. JÖRUNDSSON
A. GÖZÜBÜYÜK
J.-C. SOYER
H. DANELIUS
F. MARTINEZ
L. LOUCAIDES
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
P. LORENZEN
E. BIELIUNAS
E.A. ALKEMA
Ms. M.-T. SCHOEPFER, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 21 August 1995 by
Tomas Sandrén against Sweden and registered on 31 October 1995 under
file No. 29033/95;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a Swedish citizen, born in 1939 and residing at
Henån. He is a former telecommunication worker, presently on early
retirement pension. Before the Commission he is represented by
Mrs. Siv Westerberg, a lawyer in Gothenburg.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
Due to a back injury the applicant was declared incapable of work
in 1986 and started receiving a sickness allowance. He has been
receiving an early retirement pension since September 1989.
The applicant started carrying out administrative tasks as a
volunteer for a non-profit organisation. As the Social Insurance Office
of Bohuslän (Bohusläns allmänna försäkringskassa) was informed of his
activities, it contacted him so as to re-assess whether he was still
incapable of work and thereby entitled to a full pension.
In the beginning of 1995 an official of the Social Insurance
Office requested the applicant to undergo an examination by one of its
physicians of confidence (förtroendeläkare), who had not previously
examined him, or he would allegedly lose his pension.
The applicant objected to this allegedly forced examination but,
since he did not want to risk losing his pension, he nevertheless
underwent the examination on 16 March 1995. In view of the fresh
medical findings the Social Insurance Office has apparently proposed
that his early retirement pension should be reduced by 50%.
According to the 1962 Insurance Act (lag 1962:381 om allmän
försäkring), a person entitled to a certain benefit within the meaning
of the Act may lose it if he or she refuses to be examined by a
physician (chapter 20, section 3). An appeal lies with the
administrative courts against a decision by the Social Insurance Office
or the National Insurance Office concerning entitlement to a benefit
(chapter 20, section 11).
COMPLAINTS
1. The applicant complains that his right to respect for his private
life under Article 8 para. 1 of the Convention was infringed, since he
allegedly had to undergo a medical examination against his will.
2. He also complains under Article 6 para. 1 of the Convention that
he had no access to a court so as to obtain a review of the Social
Insurance Office's order that he be examined by its physician of
confidence.
3. He finally complains under Article 13 of the Convention that he
had no effective remedy before a national authority against the Social
Insurance Office's order.
THE LAW
1. The applicant complains that his right to respect for his
private life was infringed, since he allegedly had to undergo a medical
examination against his will. He invokes Article 8 (Art. 8) of the
Convention which reads, as far as relevant, as follows:
"1. Everyone has the right to respect for his private ...
life, ...
2. There shall be no interference by a public authority
with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic
society in the interests of national security, public
safety or the economic well-being of the country, for the
prevention of disorder or crime, for the protection of
health or morals, or for the protection of the rights and
freedoms of others."
The Commission recalls that a compulsory medical intervention,
even if it is of minor importance, must be considered an interference
with the right to respect for private life (see, e.g., No. 21132/93,
Dec. 6.4.94, D.R. 77-A pp. 75,79).
In the present case the Social Insurance Office apparently
ordered the applicant to undergo an examination by a physician
appointed by itself. The Commission notes that he could nevertheless
have refused to be examined. Such a refusal would not necessarily in
itself have prejudged the outcome of the proceedings for the purpose
of re-assessing his right to a full early retirement pension. A
decision in that respect would initially have to be made by the
competent administrative body and, on his possible appeal, by an
administrative court.
Even assuming that in these circumstances the examination order
amounted to an interference with the applicant's right to respect for
his private life within the meaning of Article 8 para. 1 (Art. 8-1),
the Commission considers that this interference was justified under
Article 8 para. 2 (Art. 8-2) for the following reasons.
In order to be justified under the terms of Article 8 para. 2
(Art. 8-2) an interference must satisfy three conditions: it must be
"in accordance with the law", it must pursue one or more of the
legitimate aims enumerated in Article 8 para. 2 (Art. 8-2) and it must
be "necessary in a democratic society" for that or those legitimate
aims. The notion of necessity implies that the interference corresponds
to a pressing social need and, in particular, requires that it be
proportionate to the legitimate aim pursued. In determining whether an
interference is "necessary in a democratic society", the Commission
will also take into account that a margin of appreciation is left to
the Contracting States. The Commission's review is not limited to
ascertaining whether a respondent State exercised its discretion
reasonably, carefully and in good faith. It must also determine whether
the reasons adduced to justify the interferences at issue were
"relevant and sufficient" (cf. e.g., Eur. Court HR, Olsson v. Sweden
judgment of 24 March 1988, Series A no. 130, pp. 31-32, paras. 67-68).
In the present case the Commission notes that the examination
order was based on chapter 20, section 3 of the 1962 Act and was thus
issued "in accordance with the law". The aim of the order was to obtain
fresh medical evidence of relevance to the question whether the
applicant's state of health continued to entitle him to a full early
retirement pension. This aim must be considered "legitimate" in that
it served the interests of the economic well-being of the country.
The Commission finally notes that in ordering the applicant to
undergo an examination by one of its physicians of confidence, who had
not previously examined him, the Social Insurance Office sought to
obtain fresh medical evidence enabling it to re-assess whether the
applicant remained incapable of work and thereby entitled to a full
pension. The Commission considers that this reason was clearly relevant
and sufficient to justify the examination order. It also observes that
the Social Insurance Office's order in no way prevented the applicant
from adducing medical opinions submitted by physicians of his own
choosing. For these reasons the examination order was not
disproportionate to the aim sought to be achieved.
Having regard, moreover, to the State's margin of appreciation,
the Commission is satisfied that the Social Insurance Office was
reasonably entitled to consider its examination order necessary in a
democratic society for the purpose of achieving the above-mentioned
legitimate aim. Accordingly, there is no appearance of any violation
of Article 8 (Art. 8).
It follows that this complaint is manifestly ill-founded within
the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
2. The applicant also complains under Article 6 para. 1 (Art. 6-1)
of the Convention that he had no access to a court so as to obtain a
review of the examination order issued by the Social Insurance Office.
Article 6 para. 1 (Art. 6-1) reads in its relevant parts:
"In the determination of his civil rights and obligations
... everyone is entitled to a ... hearing ... by ... [a]
tribunal ..."
The applicability of Article 6 para. 1 (Art. 6-1) depends on
whether there was a dispute over a "right" which can be said, at least
on arguable grounds, to be recognised under domestic law, and, if so,
whether this right was of a "civil" character within the meaning of
that provision. The dispute must be genuine and serious; it may relate
not only to the actual existence of a right but also to its scope and
the manner of its exercise; and the results of the proceedings
concerning the dispute must be directly decisive for such a right (see,
e.g., Eur. Court HR, Zander v. Sweden judgment of 25 November 1993,
Series A No. 279-B, p. 38, para. 22).
The Commission has already found that the applicant could have
refused to undergo the medical examination on 16 March 1995 and that
such a refusal would not necessarily in itself have prejudged the
outcome of the proceedings for the purpose of re-assessing his right
to a full early retirement pension. Any decision in that respect can -
or could initially be appealed against to the County Administrative
Court which is competent to review all the evidence presented to it,
including expert reports submitted by physicians of the applicant's own
choosing.
Accordingly, even assuming that the Social Insurance Office's
examination order was directly decisive for any of the applicant's
"civil rights" within the meaning of Article 6 para. 1 (Art. 6-1), the
Commission notes that he had - or has - access to a "tribunal" within
the meaning of the same provision.
It follows that this complaint is also manifestly ill-founded
within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
3. The applicant finally complains under Article 13 (Art. 13) of
the Convention that he had no effective remedy before a national
authority against the examination order. Article 13 (Art. 13) reads as
follows:
"Everyone whose rights and freedoms as set forth in this
Convention are violated shall have an effective remedy
before a national authority notwithstanding that the
violation has been committed by persons acting in an
official capacity."
The Commission recalls that Article 13 (Art. 13) has been
interpreted by the European Court of Human Rights as requiring a remedy
in domestic law only in respect of grievances which can be regarded as
"arguable" in terms of the Convention (see, e.g., Eur. Court HR, Powell
and Rayner v. the United Kingdom judgment of 21 February 1990, Series
A No. 172, p. 15, para. 33).
The applicant's complaint under Article 8 (Art. 8) of the
Convention has just been considered manifestly ill-founded within the
meaning of Article 27 para. 2 (Art. 27-2). The Commission therefore
finds that the applicant had no arguable claim of a violation of his
Convention rights. Consequently, there is no appearance of any
violation of Article 13 (Art. 13).
It follows that this complaint is likewise manifestly ill-founded
within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
For these reasons the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
M.-T. SCHOEPFER G.H. THUNE
Secretary President
to the Second Chamber of the Second Chamber
Full & Egal Universal Law Academy