FOURTH SECTION
PARTIAL DECISION
AS TO THE ADMISSIBILITY OF
Application no. 55164/00
by Ritva TOIMI
against Sweden
The European Court of Human Rights (Fourth Section), sitting on 5 November 2002 as a Chamber composed of
SirNicolas Bratza, President,
MrA. Pastor Ridruejo,
MrsE. Palm,
MrsV. Strážnická,
MrM. Fischbach,
MrJ. Casadevall,
MrR. Maruste, judges,
and Mr M. O’Boyle, Section Registrar,
Having regard to the above application lodged on 22 September 1999,
Having deliberated, decides as follows:
THE FACTS
The applicant, Ritva Toimi, is a Finnish national, who was born in 1938 and lives in Hälleforsnäs, Sweden. She is represented before the Court by Mr W. Pietikäinen, Johanneshov, Sweden.
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 10 February 1995 the Social Insurance Office (försäkringskassan; hereinafter “the Office”) of the County of Stockholm, after having recalculated the applicant’s pension in accordance with the Nordic Convention on Social Security (Nordiska konventionen om social trygghet) decided that the applicant was entitled to a Swedish pension of 3,754 Swedish kronor (SEK) per month.
As from 1996 the applicant was attached to the Office of the County of Södermanland. Apparently, in August 1997 the entry in the computerised pension register concerning the applicant’s pension was changed so that, as from September 1997, the applicant received a monthly pension of SEK 776 from Sweden. Later investigations revealed that the entry was made by the Stockholm Office. The applicant’s case file, however, disappeared.
The applicant did not receive a decision concerning the reduction of her pension. Nevertheless, on 31 October 1997 she sent a letter, designated as an appeal, to the Stockholm Office, in which she complained that her pension had been reduced without any decision in the matter having been taken. On 17 November 1997 she sent a similar letter to the Södermanland Office, which was forwarded to the Stockholm Office. Except for attempts to locate the case file, the offices did not take any further action.
The applicant lodged a complaint against the Stockholm Office with the Parliamentary Ombudsman (Justitieombudsmannen). She stated, inter alia, that the Office had failed to take a decision in the matter against which she could appeal.
By a decision of 28 May 1998 the Ombudsman found no reason to take any action in the matter. It noted that the decision of 10 May 1995 had contained directions on how to appeal and that letters sent by the applicant in 1997 and 1998 had been answered, albeit somewhat belatedly, by the Stockholm Office. The applicant’s later remark that she was not dissatisfied with the 1995 decision but complained about the reduction of her pension as from September 1997 did not cause the Ombudsman to take any further action.
The applicant then claimed damages from the Chancellor of Justice (Justitiekanslern). She demanded that the pension fixed before the reduction be paid to her with interest retroactively from September 1997. She also requested damages for physical and mental suffering.
In an opinion of 7 October 1998, submitted to the Chancellor, the National Social Insurance Board (Riksförsäkringsverket) acknowledged that there had been deficiencies in the handling of the applicant’s case by the two social-insurance offices which could involve a liability to damages under the Tort Liability Act (Skadeståndslagen, 1972:207). However, the Board considered that the claim for damages relating to the applicant’s contention that she was not receiving the pension to which she was entitled could not be examined until there was a decision by an office or a judgment by a court in the matter which had gained legal force. The Board further expressed the opinion that the applicant was not entitled to non-pecuniary damages under the law.
In 1999 the applicant reported officials at the Södermanland Office for breach of duty and theft. The public prosecutor’s office decided not to investigate the matter and the applicant’s appeals – eventually to the Prosecutor-General – were to no avail.
By a decision of 9 May 2000 the Chancellor of Justice severely criticised the two social insurance offices for their handling of the applicant’s case. He noted that, as the case file had gone missing, it was not possible to clarify who had decided in 1997 to reduce her pension or on which basis the decision had been taken. Although the applicant’s letters to the offices had to be seen as appeals or requests for review, no re-examination of the decision had been made. Noting that, due to the offices’ handling of the case, the applicant had been deprived of her right to appeal, the Chancellor found it highly remarkable that the offices had not yet taken any action to make possible a review of the decision. However, the Chancellor came to same conclusion as the National Social Insurance Board and stated that, lacking a final determination of the applicant’s pension, there was no basis on which to assess whether the 1997 decision was incorrect and had led to pecuniary damage for the applicant in that she had received too small a pension. The Chancellor therefore refused to determine the claim for pecuniary damages. He also agreed with the Board as regards the claim for non-pecuniary damages.
On 23 August 2000 the Stockholm Office produced a decision replacing the missing decision from September 1997. It noted that the pension decision of 10 February 1995 had been incorrect and that there were thus reasons to review it under chapter 20, section 10 a of the Social Insurance Act (Lagen om allmän försäkring, 1962:381). Having regard to the provisions of the Nordic Convention on Social Security and the pension the applicant received from Finland, the Office found that the applicant was entitled to a Swedish pension of SEK 776. Attached to the decision were directions on how to appeal.
The applicant appealed to the County Administrative Court (länsrätten) of the County of Stockholm. Following an oral hearing on 10 May 2001, the court rejected the appeal by a judgment of 30 May 2001. It noted that the Swedish pension the applicant had been receiving since 1990 was incorrect as proper account had not been taken of her Finnish pension. The mistake had been discovered and corrected in September 1997, until which date the applicant had received about SEK 200,000 more in pension than she had been entitled to. The court found that there had been a legal basis for the correction under the Social Insurance Act and that there were no exceptional reasons not to reduce the applicant’s pension.
Apparently, the appeal against this judgment is pending before the Administrative Court of Appeal (kammarrätten) in Stockholm.
COMPLAINTS
1. The applicant claims that she has been denied effective access to a court as, for three years, she was not given a decision on her pension against which she could appeal. It appears that she also complains about the length of the proceedings. She relies on Article 6 § 1 of the Convention.
The applicant also complains that she unsuccessfully approached several public authorities about the handling of her case, including the Parliamentary Ombudsman, the National Social Insurance Board, the Chancellor of Justice, the police and the prosecutor’s office. She contends that she did not have an effective remedy under Article 13 of the Convention.
2. Furthermore, the applicant claims that the reduction of her pension constitutes theft, that it jeopardises her health and that it might force her to sell her house. She also contends that she is being discriminated against, as she is a poor woman in a dispute with the Swedish State. She refers to Articles 2, 8 and 14 of the Convention.
THE LAW
1. The applicant claims that she has not had effective access to a court, that the length of the proceedings has not been reasonable and that she has not had an effective remedy for her complaints about the handling of her case. She relies on Article 6 § 1 and Article 13 of the Convention which provisions, in so far as relevant, read as follows:
Article 6 § 1:
“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing within a reasonable time by [a] ... tribunal ... .”
Article 13:
“Everyone whose rights and freedoms as set forth in [the] 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 Court considers that it cannot, on the basis of the case file, determine the admissibility of these complaints and that it is therefore necessary, in accordance with Rule 54 § 3 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.
2. The applicant also claims that the reduction of her pension constitutes theft, that it jeopardises her health and that it might force her to sell her house. She also contends that she is being discriminated against, as she is a poor woman in a dispute with the Swedish State. She refers to Articles 2, 8 and 14 of the Convention.
The Court, noting that the court proceedings determining the applicant’s pension have not been concluded and that the Convention does not guarantee a right to a pension of a particular amount, finds that the material in its possession does not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols in respect of the present complaints.
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.
For these reasons, the Court unanimously
Decides to adjourn the examination of the applicant’s complaints under Article 6 § 1 and Article 13 of the Convention that she has not had effective access to a court, that the length of the proceedings has not been reasonable and that she has not had an effective remedy for her complaints about the handling of her case;
Declares inadmissible the remainder of the application.
Michael O’BoyleNicolas Bratza
RegistrarPresident
Full & Egal Universal Law Academy