AS TO THE ADMISSIBILITY OF
Application No. 11450/85
by Christer WALLIN
against Sweden
The European Commission of Human Rights sitting in private
on 8 March 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
G. BATLINER
J. CAMPINOS
H. VANDENBERGHE
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 30 November
1984 by Christer Wallin against Sweden and registered on 18 March 1985
under file N° 11450/85;
Having regard to;
- the first report provided for in Rule 40 of the Rules of
Procedure of the Convention;
- the Commission's decision of 5 May 1986 to adjourn the
examination of the case;
- the second report provided for in Rule 40 of the Rules of
Procedure;
- the Commission's decision of 16 July 1986 to communicate the
application to the respondent Government for written observations
on the admissibility and merits;
- the Government's observations dated 16 October 1986;
- the applicant's observations dated 9 December 1986;
- the third report provided for in Rule 40 of the Rules of
Procedure.
Having deliberated;
Decides as follows:
THE FACTS
The facts of the case, as submitted by the parties, may be
summarised as follows:
The applicant is a Swedish citizen, born in 1943 and resident
at Uppsala. He is an electrician by profession.
Particular facts of the case
The applicant was employed by a company in Uppsala from 1974
to 31 May 1976 when he was dismissed. The applicant did not find the
dismissal fair and proceedings against the company were brought on his
behalf by his trade union.
In a decision of 8 November 1976 the Labour Court
(arbetsdomstolen) ordered that the applicant should be considered as
employed by the company until the final decision had been given.
This decision was followed by a judgment of 4 January 1977 in which
the Court declared that the dismissal of the applicant was null and
void.
However, the company refused to reinstate the applicant in his
employment. Following negotiations a friendly settlement was
achieved on 10 January 1977 according to which the applicant was
paid 90,000 SEK in compensation as full and final settlement of the
matter.
On 22 October 1979 the applicant submitted a request to the
Social Insurance Office (allmänna försäkringskassan) that his income
qualifying for sickness benefits (sjukpenninggrundande inkomst,
hereinafter, "SGI") be raised from 64.800 SEK to 85.920 SEK as if he
had still been employed as an electrician. The Office obtained
information from the applicant's former employer and further
observations from the applicant. Such information was submitted on
8 November 1979 and 13 March 1980.
On 8 May 1980 the Social Insurance Office of Uppsala decided
that the applicant should remain insured for a SGI of 64,800 SEK. The
decision contained a notice of appeal. It stated that any appeal
should be made in writing and within a time-limit of two months from
receipt of the decision. The letter of appeal should be sent to the
Social Insurance Office, which was to transmit it to the Social
Insurance Court.
On 19 May 1980 the applicant requested, over the telephone,
that the Social Insurance Office reconsider the decision of 8 May 1980.
He stated that he intended to prove that information submitted by his
former employer was incorrect. On 22 May the applicant appeared at
the office and delivered certain documents and gave some oral
information concerning his case.
On 30 June 1980 the Social Insurance Office amended the SGI to
77,500 SEK as from 21 November 1979 in application of the special
provisions concerning correction of previous decisions laid down in
Chapter 20 Section 10 of the Social Insurance Act (lagen om allmän
försäkring).
On 11 July 1980 the applicant appealed to the Social Insurance
Court for Central Sweden (försäkringsrätten för mellansverige). The
letter of appeal was filed with the Social Insurance Office on 14 July
1980. The Office submitted its opinion to the Court in a letter dated
5 September 1980, together with the appeal. In the letter the Office
stated that it had examined the applicant's appeal under Chapter 20
Sections 10 and 11 of the Social Insurance Act, but found no reason to
amend its previous decision. The Office proposed that the appeal be
rejected. The appeal reached the Court on 11 September 1980.
On 17 October 1980, the Court transmitted the letter from the
Social Insurance Office to the applicant for comments. The applicant
submitted his comments by a letter of 29 October 1980.
On 18 January 1983 the Social Insurance Court examined the
applicant's appeal. It decided to obtain information from three
different sources. By a letter of 21 January 1983 the Social
Insurance Court asked the Social Insurance Office for details about the
applicant's sick leave between May 1976 and June 1980. This request
was answered by a letter of 27 January 1983. The Court also obtained
information from the Employment Office (arbetsförmedlingen) of
Uppsala. The reply of the Office was dated 2 February 1983. The Court
finally requested information from the Swedish Factory Workers
Union (svenska fabriksarbetareförbundet) which replied by letter of
10 February 1983.
By letter of 14 February 1983 the Court transmitted the
three last-mentioned replies to the applicant for comments. The
applicant submitted his comments by a letter of 23 February 1983.
In a judgment of 19 May 1983 the Social Insurance Court
rejected the applicant's appeal stating that the conditions laid down
in Chapter 20 Section 10, for correction of the previous decision of
the Social Insurance Office, were not fulfilled. In the reasons the
Court stated inter alia:
"Chapter 20 Section 10 of the Social Insurance Act in its
wording before 1 April 1982 provided that the Social
Insurance Office should amend a decision by the Office,
which had not been examined by the Social Insurance Court,
inter alia if the decision had become incorrect as a result
of obvious misapplication of the law or other similar
reason. In the preparatory works to the said provision the
responsible Minister stated (Government Bill No. 1977/78:95)
that an amendment on this basis could be made also when the
Office in its decision had made a mistake concerning
case-law, provided that it was a question of settled
case-law.
...
In view of the above the Social Insurance Court
finds that the Social Insurance Office's decisions to
let (the applicant) keep his SGI of 64,800 SEK, following
the information given by (the applicant) concerning his
income during 1976-1978, have not become incorrect as a
result of an obvious misapplication of the law or other
similar reason. Moreover, the Court considers that there is
no other basis in Chapter 20 Section 10 ...
to fix (the applicant's) SGI at a higher amount than
64,800 SEK before 21 November 1979. As regards the
determination of the (the applicant's) SGI following the
income report which was submitted to the Insurance Office
on 22 October 1979, it is true that the information supplied
by the Swedish Factory Workers Union supports the assumption
that (the applicant's) SGI from 21 November 1979 ought to have
been fixed at a higher amount than 77,500 SEK. However, the
Court finds that, in this respect, there is no error as required
for an amendment under (Chapter 20 Section 10)."
The applicant appealed to the Supreme Insurance Court
(försäkringsöverdomstolen), which on 12 June 1984 refused to grant
leave to appeal.
The applicant then submitted a request to the Supreme
Administrative Court (regeringsrätten) for review (resning) of the
above decision of the Supreme Insurance Court. On 21 February 1986
the Supreme Administrative Court decided not to grant the applicant's
request.
Relevant legal provisions
The most significant forms of social insurance schemes are the
health insurance scheme (sjukförsäkring), the basic pension scheme
(folkpensionering) and the supplementary pension scheme
(tilläggspensionering). These are governed by the 1962 Social
Insurance Act which, insofar as relevant to the present case,
contained the following provisions.
According to Chapter 1 Section 2 of the Act, the national
insurance scheme is administered by the National Social Insurance
Board (riksförsäkringsverket), the Social Insurance Offices and local
authorities to be designated by the Government. The National Social
Insurance Board, which supervises the implementation of the scheme,
is a central Government authority. As regards the organisational
structure and the decision-making process of the Social Insurance
Offices, the following may be noted.
There shall be an Office for every County Council district
(landstingsområde) and for every Municipality (kommun) not represented
on a County Council. A board of management is charged with the duty
of deciding on any matter with which the Social Insurance Office is
required to deal. The board of management shall consist of a chairman
and a vice-chairman, appointed by the Government, and four additional
members, appointed by the County Council (landsting) or, in case of an
office the jurisdiction of which embraces only one Municipality, by
the Municipal Council (kommunfullmäktige). Any person may be
appointed member of the board of management, provided only that he is
a Swedish national and that he is not a minor and has not been
declared lacking legal capacity. The board of management may delegate
to a member of the board or an officer of the office the power to take
decisions on behalf of the board. The officers are appointed by the
National Social Insurance Board or by the office itself.
According to Chapter 1 Section 4 every person insured under
the Act is to be registered with a Social Insurance Office by
the month at which he or she reaches the age of 16. Everyone thus
registered is entitled to sickness benefits under the insurance scheme
provided that his income qualifying for sickness benefits amounts to a
minimum of 6,000 SEK, or that he or she is married and lives
permanently together with his or her spouse, or that he or she lives
permanently together with a child under the age of 16 of his or her
own, of his or her spouse, or of someone else to whom he or she has
been married or with whom he or she has had a child.
The concept of income qualifying for sickness benefits (SGI) is
defined in Chapter 3 Section 2 of the Act. In principle, this income
is supposed to correspond to the annual income, including certain
non-monetary benefits, expected to be earned by the insured person
from his own work as an employee or otherwise. According to the same
Section, the SGI is to be determined by the Social Insurance Office.
Unless the relevant facts are known to the Office, this determination
is based on information procured from, among other sources, the
insured person himself or his employer. The determination is made
when the insured person is registered with the Office and is from then
on reconsidered any time the insured person's income undergoes changes
affecting his right to such benefits.
According to Chapter 3 Section 4 sickness benefits are
calculated on the basis of the SGI and are, in principle, supposed to
correspond to 90 percent of that income. As for persons not having
such SGI the same Section provides for benefits in the form of a
fixed amount per day.
Sickness benefits may affect other benefits provided for in
the Act. Thus, supplementary pension is calculated on the basis of
the concept of pensionable income (pensionsgrundande inkomst), which
income by definition includes sickness benefits.
The health insurance scheme is financed out of Government
subsidies and charges levied not on any employee in his capacity of
insured under the scheme but on employers in general. The charges are
levied in accordance with legal provisions regulating the financing of
not only the health insurance scheme but also a variety of other
social services, such as for instance basic pensions and child care.
The assessment and collection of the charges are administered by the
tax authorities under essentially the same legal framework as that
governing the collection of taxes. The public authorities charged
with the implementation of the health insurance scheme are not
concerned with the financing of the scheme. Failures in the
fulfilment of obligations related to the financing do not affect the
rights of those entitled to benefits under the scheme.
The Social Insurance Office's determination of SGI may,
according to Chapter 20 Section 11 of the Act, be appealed to a Social
Insurance Court. The appeal, which has to be made in writing, is to
be lodged with the Social Insurance Office within two months from the
receipt of the decision.
In case an appeal is lodged by a private party the Social
Insurance Office shall, before the case is brought before the Social
Insurance Court, reconsider the decision appealed against and may
change it, provided this be done fully in accordance with what has
been requested by the complainant (Chapter 20 Section 11). If such a
change is made, the appeal shall be dismissed. Otherwise the appeal
shall be brought before the Social Insurance Court together with a
statement of opinion by the Social Insurance Office.
Section 11 reads:
"An appeal against a decision of a Social Insurance Office
or the National Social Insurance Board may be lodged with
the Social Insurance Court.
...
When an appeal has been lodged by an individual, the Office
shall reconsider the decision concerned even if there is not
such a reason for a change of the decision as indicated in
Section 10 first paragraph. Any amendment of the decision
may only be made if it conforms with the applicant's claim.
If such an amendment is made, the appeal should be
considered to have become invalid. Otherwise, the Office
should transmit the appeal to the Social Insurance Court
together with a statement of its opinion on the appeal."
A decision taken by the Social Insurance Court may,
according to provisions in the 1971 Act on Administrative Court
Procedure (förvaltningsprocesslagen), be appealed to the Supreme
Social Insurance Court.
In addition to an ordinary appeal the Social Insurance Act
provides, in Chapter 20 Section 10, that the Social Insurance Office
may change a previous decision of its own for the purpose of
correcting certain specified, obvious defects of the previous
decision.
Chapter 20 Section 10 paras. 1 and 2 of the Social Insurance
Act in its wording before 1 April 1982 reads as follows:
"A Social Insurance Office shall amend a decision in a
matter of insurance according to this Act which has been
taken by the Social Insurance Office and has not been examined
by a Social Insurance Court,
1. if, on account of a writing error, a miscalculation
or other similar inadvertence, the decision contains an obvious
mistake,
2. if the decision has become incorrect as a result
of being based on an obviously wrong or incomplete
foundation,
3. if the decision has become incorrect as a result
of an obvious misapplication of the law or other similar
reason,
(The Office may decide not to amend the decision) if the
incorrectness of the decision is of a minor importance."
The question of changing a decision under this provision
should, in principle, be raised within two years from the day the
decision was taken. However, if it only appears after the two years
have elapsed that the decision was taken on the basis of material
obviously incorrect or incomplete, or if other extraordinary reasons
call for a change, a decision may be changed without regard to any
such time limit. The amendment of a decision under this provision is
an action to be taken ex officio by the Social Insurance Office,
although, of course, a private party may draw the Office's attention
to a defect calling for such an action. A decision taken in
accordance with this provision may be appealed against as outlined
above.
The rules governing the procedure in the Social Insurance
Court are laid down mainly in the Act on Administrative Court
Procedure.
Section 9 para. 1 provides that the proceedings should be
conducted in writing. However, according to the second paragraph an
oral hearing may be held regarding a particular issue if this would be
advantageous to the examination or would further a speedy
determination of the case. Moreover, under the third paragraph, such
a hearing is mandatory in proceedings before the Social Insurance
Court when requested by a private party, provided only that the
hearing is not unnecessary and that there are no particular reasons
against holding an oral hearing.
Before a case is finally decided upon, each party shall have
been informed of all material presented in the case by anyone else than
the party himself and have been given an opportunity to comment on it.
The principle of general access to official documents is laid
down in Chapter 2 Section 1 of the 1949 Freedom of the Press Act
(tryckfrihetsförordning). Under this principle, everyone shall as a
general rule have free access to official documents kept by Swedish
authorities and courts. Exceptions to this rule are contained in the
1980 Secrecy Act (sekretesslag). Under Chapter 7 Section 7 of that
Act secrecy shall apply within any Social Insurance Office and any
Social Insurance Court in respect of any information about an
individual's condition of health or other personal circumstances, if
it can be assumed that the individual whom the information concerns or
a person closely related to him would be harmed should the information
be disclosed. However, according to Chapter 14 Section 4 of the same
Act, secrecy for the protection of a private individual shall not
apply in relation to the individual himself and may in relation to
others be waived by him.
COMPLAINTS
The applicant states that following the judgment of the Labour
Court it was established that he was to be regarded as employed in his
previous work. Nevertheless, when the Social Insurance Office
determined the SGI he was treated as if he had been dismissed on
31 May 1976. The applicant complains that, consequently, the Social
Insurance Office denied him a right recognised by the judgment of the
Labour Court.
The applicant complains that his case has been dealt with by
the Insurance Courts in a manner which is contrary to Article 6 of the
Convention. In particular, the proceedings were not public and the
tribunals not impartial. Furthermore, his case was not determined
within a "reasonable time". The applicant also invokes Article 13 of
the Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 30 November 1984 and
registered on 18 March 1985.
On 5 May 1986 the Commission, after having examined the
admissibility of the application, decided to adjourn its examination
of the case.
On 16 July 1986 the Commission decided pursuant to Rule 42
para. 2 (b) of the Rules of Procedure to give notice of the application
to the respondent Government and to invite them to submit written
observations on its admissibility and merits.
The Government's observations were dated 16 October 1986 and
the applicant's observations in reply were dated 9 December 1986.
SUBMISSIONS OF THE PARTIES
A. The Government
1. The facts
The Government point out that no appeal was ever brought
against the decision of the Social Insurance Office of 8 May 1980.
The only appeal brought by the applicant, i.e. the appeal filed with
the Office on 14 July 1980, did explicitly and exclusively refer to the
"decision of the Social Insurance Office of Uppsala of 30 June 1980
concerning the changing of income qualifying for sickness benefits".
Moreover, the scope of the proceedings initiated by that appeal was
limited to the issue of whether the extraordinary reasons for changing
a decision contained in Chapter 20 Section 10 of the Social Insurance
Act were at hand. Finally, at no time during the proceedings before
the Social Insurance Court did the applicant request an oral hearing.
2. The admissibility
The Government have no objection to make as far as the six
months rule laid down in Article 26 of the Convention is concerned.
However, the Government submit that the complaint should be
declared inadmissible on the ground that the applicant has failed to
exhaust domestic remedies as required by Article 26 of the Convention.
Alternatively, the Government maintain that the complaint in respect
11450/85
of Article 6 para. 1 should be rejected as being incompatible ratione
materiae with the provisions of the Convention, or for being
manifestly ill-founded, and that the complaint under Article 13 should
be rejected for falling outside the scope of the Convention.
They submit that the applicant's dissatisfaction concerns the
determination of his SGI. It was determined by the Social Insurance
Office of Uppsala by its decision of 8 May 1980. This decision could
have been appealed within two months to the Social Insurance Court for
Central Sweden and, ultimately, to the Supreme Social Insurance Court.
However, no such appeal was brought by the applicant. Under these
circumstances the Government maintain that the applicant has failed to
exhaust domestic remedies as required by Article 26 of the Convention.
In view of the fact that the decision of 8 May 1980 was later
reconsidered by the Social Insurance Office and that a subsequent
decision was taken on 30 June 1980, the following observations are
added. The Office's reconsideration of its previous decision was
made exclusively on the basis of the provisions contained in Chapter
20 Section 10 of the Social Insurance Act. Accordingly, this
reconsideration did not include, and could not have included, an
ordinary review of the merits of the case. The only question which
was considered, and which could have been considered, was whether the
decision as such was afflicted with any of the obvious defects
referred to in the said provisions. The proceedings did not in any
way affect the applicant's right to bring an ordinary appeal
against the decision of 8 May 1980. Such an appeal would have been
the only possible way to have the scope of the reconsideration
widened to include an ordinary review of the merits of the case. When
served with the decision of 8 May 1980, the applicant was also
notified in writing that such an appeal was to be brought in writing
and within two months. Under these circumstances the Government
submit that neither the decision of 30 June 1980, nor the proceedings
initiated by the appeal brought against it, could be of any relevance
when considering whether, in respect of the determination of his
SGI, the applicant has exhausted domestic remedies available to him.
3. The merits
3.1 Aritcle 6 para. 1 of the Convention
3.1.1 Applicability of Article 6
The complaint concerns proceedings resulting in the final
decision of the Supreme Insurance Court of 12 June 1984. The scope of
these proceedings was limited to the issue of whether the extraordinary
reasons for changing a decision contained in Chapter 20 Section 10 of
the Social Insurance Act were present. The Government submit that
Article 6 does not guarantee any rights in respect of this kind of
extraordinary proceedings and that, consequently, the complaint falls
outside the scope of this provision.
In case the Commission would find that the proceedings
complained of did, nevertheless, involve the determination of the
applicant's SGI, the question arises whether this amounts to a
determination of his "civil rights" within the meaning of Article 6
para. 1 of the Convention. In response to this question, the
Government submit the following.
When acceding to the Convention, the Government were convinced
that proceedings, like the present ones, in the field of public or
administrative law which are dominated by considerations of public
interest and determined principally by considerations of policy would
not come within the socpe of Article 6 para. 1. In the Government's
view such an interpretation is well in line with the wording of the
text and is also supported by the travaux préparatoires. Furthermore,
in view of the legal systems of many States Party to the Convention,
there are good reasons for assuming that Article 6 para. 1 was not
intended to encompass proceedings of the kind now considered. In line
with this, Governments as well as members of the Commission and the
Court have consistently advocated an interpretation that would exclude
such proceedings from the scope of Article 6 para. 1.
However, the majority of the members of the Court has taken a
different view and, by gradually widening the scope of Article 6 para.
1, construed wide areas of what has traditionally been recognised as
public or administrative law to involve the determination of "civil
rights". Of particular interest in this context are the two judgments
in the Deumeland case (Eur. Court H.R., Deumeland judgment of 29 May
1986, Series A no. 100) and the Feldbrugge case (Eur. Court H.R.,
Feldbrugge judgment of 29 May 1986, Series A no. 99) in which the Court
found certain social security benefits to be "civil rights" within the
meaning of Article 6 of the Convention. In considering the issue, the
Court identified a number of relevant factors typically found in the
field of social security and thought to be capable of clarifying and
amplifying the principles previously laid down for the interpretation
of the concept of "civil rights". Having then evaluated the relative
cogency of features of public law and features of private law, the
Court found the latter to be predominant.
By employing the same approach, the Government have considered
the present case in view of the Court's reasoning in the said cases.
In doing so the Government have reached the conclusion that the facts
of the present case, although in some respects similar to those in the
Feldbrugge case in particular, nevertheless warrant a different
outcome, i.e. that the disputed right should not be considered as a
"civil right" within the meaning of Article 6 of the Convention.
The Government firstly observe that the general character of
the relevant legislation as well as the nature of the insurance scheme
strongly suggest that the present dispute be considered as one falling
within the sphere of public law and, accordingly, not involving the
determination of "civil rights". Thus, the legal provisions governing
the insurance scheme form an integral part of a comprehensive social
insurance system containing also such public services as for instance
basic pension benefits. Furthermore, health insurance cover is
compulsory not only in the sense that the individuals concerned are
under an obligation to be insured under the scheme but also as they
automatically become entitled to the benefits flowing from the scheme
regardless of whether they have in any manner contributed to the
financing of it. Thus, viewed in its context, the scheme is clearly
not a matter of the State taking on or regulating an insurance
activity equally capable of being carried on in the private sector but
rather one of performing the State's duty to protect the health and
welfare of its citizens. In the Government's opinion such a scheme
would certainly need to embrace significant features of an undisputably
private-law nature in order for benefits under the scheme to be
considered as "civil rights" within the meaning of Article 6 of the
Convention. Apart from the fact that the applicant was claiming a
right in his personal capacity as a private individual, the Government
maintain that in the present case no such features could be found. In
view of the Court's reasoning in the Feldbrugge case, the Government
emphasise the following circumstances, which in their opinion
distinguish the present insurance scheme from that considered in
the Feldbrugge case.
In that case, the insurance scheme considered was managed
jointly by the State, by employers and by employees, the State's
engagement being confined to establishing the legal framework of the
scheme and to seeing to co-ordination. The occupational associations
responsible for the implementation of the legislation in question were
semi-public institutions operating like private insurance companies.
The supervision of the proper implementation of the legislation was
entrusted to a Social Insurance Board comprising representatives not
only of the State but also of employers and employees.
By contrast, in the present case, the State alone has assumed
the responsibility of organising and implementing the scheme. Every
aspect of the scheme, such as the categories of beneficiaries, the
protection afforded and the financing of the system, as well as the
organisation and decision-making process of the bodies involved in the
management of the scheme, are laid down in detail in the relevant
legislation. The management is carried out by bodies, none of which
comprises any representative of any particular category of individuals
such as for instance employers, employees or insured persons. The
supervision of the proper implementation of the legislation is
entrusted to a central government authority.
In the Feldbrugge case the insurance scheme was closely linked
to a contract in the private-law sphere, i.e. a contract of employment,
and the availability of benefits under the scheme was determined by
reference to the terms of, and the legislation applicable to, that
contract. As the Court concluded, the insurance provisions were in a
way grafted onto the contract of employment and, therefore, formed one
of the constituents of the relationship between employer and employee.
Individuals who were not parties to such contracts, for instance
self-employed workers, could achieve a similar insurance cover only by
taking out policies with private companies.
In the present case, there is no such link between the
insurance cover as such and any contract of a private-law character.
As follows from what has been said above, the insurance scheme covers
not only the working population but also categories of individuals
that are not, and may never have been, bound by a contract of
employment or any other private-law contract. Admittedly, as for
salaried employees the rate of the benefits available under the scheme
is calculated on the basis of the income normally earned. However, in
the Government's opinion the mere fact that the State, acting in the
exercise of its discretionary powers, has resorted to such a technique
for calculating the benefits available to one category of persons
covered by the insurance scheme cannot suffice to bring the scheme
within the sphere of private law.
In the Feldbrugge case the financing of the scheme was
structured, and the collection of contributions carried out, in a
manner showing close affinities with the techniques employed by
private insurance companies. The occupational associations operating
the insurance scheme conducted their dealings, for example as regards
the collection of contributions and the calculation of risks, in the
same way as a private company providing insurance in the private-law
sphere. Those insured under the scheme participated directly in the
financing of the scheme, inter alia by way of deductions at source
from their salaries, the deductions thus establishing a close
connection between the contributions called for and the benefits
granted under the scheme. The State, for its part, was not at all
involved in the financing of the scheme.
In the present case, on the other hand, the links between the
benefits available under the scheme and its financing are considerably
more attenuated, if at all present. The insurance is financed out of
Government subsidies and charges not levied on any individual in his
capacity as insured under the scheme. The assessment and collection
of these charges are administered by the tax authorities and are
essentially governed by the same legal framework as that governing the
collection of taxes. Furthermore, there is no link between the right
to benefits under the scheme and the proper fulfilment of an obligation
to contribute to the financing of the scheme. Thus, a right to
benefits under the scheme may well exist although the beneficiary has
not been obliged to contribute to the financing of the system, not
even indirectly by paying taxes. Also, a failure to fulfil their
obligations by those obliged to contribute to the financing does not
in any way affect the benefits available under the scheme.
Having thus considered the facts of the present case the
Government reach the conclusion that the present case does not involve
the determination of "civil rights" within the meaning of Article 6 of
the Convention. In view of this, the Government submit that the
complaint falls outside the scope of this provision.
3.1.2 Compliance with Article 6
Assuming that the contested proceedings did involve the
determination of his "civil rights", the applicant has questioned
whether they were conducted publicly and impartially and also whether
the case was decided upon within a reasonable time. The Government
fail to see that the facts could possibly raise any issue as to the
impartiality of the tribunals involved. In fact, the applicant seems
to question their impartiality on the mere ground that they did not
share his view on the issues presented. In the Government's opinion
this falls short of suggesting that the tribunals acted partially. As
regards the remaining issues raised by the applicant, the Government
submit the following.
A fair and public hearing
The applicant seems to allege that the material on the basis
of which the contested decision was taken was not available to the
public or even to the applicant himself. The Government maintain that
this allegation is without merits. They refer to the rule that before
deciding on a matter all material must have been communicated to the
parties concerned, and to the rules on general access to official
documents. They also observe that, on two occasions before delivering
its judgment, the Social Insurance Court communicated with the
applicant and that the applicant commented in writing on this
material. Moreover, under the principle of general access to official
documents there is, in principle, full publicity about proceedings
before Swedish authorities and courts even when there is no oral
hearing. Furthermore, in view of the facts of the present case it
seems extremely unlikely that any of the limited number of exceptions
provided for in the Secrecy Act could have been applied against the
will of the applicant. Under all circumstances, there could have been
no material before the deciding bodies that was not available to the
applicant. This latter fact has also been recognised by the applicant,
although in respect of certain documents he appears to have chosen not
to deal with them.
In view of the fact that no oral hearing was held in the case,
the Government observe that Article 6 para. 1 of the Convention does
not necessarily call for a public hearing for the determination of
civil rights and obligations. Rather, it merely provides that everyone
is entitled to such a hearing. In the Government's opinion, this
indicates that the right to proceedings in public could be waived. The
European Court of Human Rights has also adopted this view and, furthermore,
recognised that the waiver could be tacit (see e.g., Eur. Court H.R.,
Deweer judgment of 27 February 1980, Series A no. 35, p. 25, para. 49,
and Le Compte, Van Leuven and De Meyere judgment of 23 June 1981,
Series A no. 43, p. 25, para. 59).
In the present case, the contested decision could be, and was
in fact, brought before courts competent to review the matter in
respect of questions of law as well as questions of fact. The rules
governing such appeal proceedings comprise provisions according to
which an oral hearing may be held before the Social Insurance Court as
well as the Supreme Insurance Court and, furthermore, as a general
rule shall be held before the former Court when requested by a private
party. However, no request for such a hearing before the Social
Insurance Court was made by the applicant, nor was there any
indication that he, nevertheless, did expect a hearing to be held or
that he in any possible way could be expected to benefit from a
hearing. The applicant seems to indicate that an oral hearing was
requested before the Supreme Insurance Court. The Government have not
been able to verify that this was in fact done. Be that as it may,
the Government observe that the only question considered by this Court
was whether to grant the applicant a leave to appeal and that in
respect of such proceedings there is no requirement under the
Convention that a hearing be held.
In view of these elements the Government submit that the
requirement of Article 6 para. 1 of the Convention of a fair and
public hearing was satisfied and that this part of the complaint is
manifestly ill-founded.
In case the Commission does not share this view, the
Government question, even in case an oral hearing is requested by
the party concerned, whether Article 6 of the Convention calls for
oral proceedings regardless of the character of the issues involved.
In the present case, the only issue brought before the courts was
whether the extraordinary reasons for changing a decision contained in
Chapter 20 Section 10 of the Social Insurance Act were present. The
Government maintain that in considering the possible existence of such
an obvious defect, an oral hearing would be superfluous.
Determination "within a reasonable time"
The applicant's case was brought before the Social Insurance
Office on 22 October 1979 and finally decided by the Supreme
Insurance Court on 12 June 1984. The period to be taken into
consideration thus exceeds four and a half years. Although such a
lapse of time at first sight might seem considerable, the Government
submit that it falls short of suggesting a violation of Article 6 of
the Convention, given that during this time the case was considered by
three instances and bearing in mind also that in view of the facts of
the case no irreparable losses for the applicant could possibly have
followed from the lapse of time.
However, the applicant's case was pending before the Social
Insurance Court for more than two years and eight months, i.e. from
11 September 1980 to 19 May 1983, part of the time without any action
apparently being taken in respect of the case. In view of this, the
Government submit the following.
The consideration of the reasonableness of the duration of
proceedings coming within the scope of Article 6 para. 1 calls for an
examination and assessment mainly of the complexity of the case and
what is at stake for the person concerned as well as of the conduct of
that person and the authorities involved.
As regards the complexity of the issues involved and the
conduct of the applicant, there is nothing in the case that would
reasonably justify an otherwise unacceptable delay in the examination
of the case. On the other hand, in respect of what was at stake for
the applicant, there is also nothing in the case that would have
called for the case to be handled more urgently than cases in general
brought before a court of the kind here involved.
When considering the conduct of authorities, the European
Court of Human Rights has consistently recognised that an otherwise
unacceptable delay in the examination of a case is justified if caused
by "a temporary backlog of business" provided that the state has
"taken reasonably prompt remedial action to deal with an exceptional
situation of this kind" (see e.g. Eur. Court H.R. Buchholz judgment of
6 May 1981, Series A no. 42, p. 16, para. 51, and Zimmermann and Steiner,
judgment of 13 July 1983, Series A no. 66, p. 12, para. 29).
The Swedish Social Insurance Courts, and the Supreme Social
Insurance Court, were established on 1 January 1979 in connection with
a fundamental revision of the appeal proceedings in respect of
decisions taken by, among other authorities, the Social Insurance
Offices. The Social Insurance Courts were organised and staffed in
view of, among other things, an expected annual total case-load of
approximately 12,000 cases. Within a short time, this estimation
turned out to be too optimistic. Thus, in 1979 and 1980 the total
number of cases filed with the courts amounted to more than 13,000 and
16,500 respectively. By the end of 1980, the case-load pending before
the Social Insurance Courts totalled more than 23,500 cases and the
average waiting period for a case to be decided exceeded two years and
could be expected to rise to more than three years by the end of 1981.
In order to deal with this unsatisfactory situation, the
Government in 1981 submitted to the Parliament a proposal concerning
legislative measures with a view to "reducing the case-loads of the
Social Insurance Courts and thereby shortening the waiting periods for
cases to be decided" (Government Bill 1981/82:88, p. 1). In short,
the goals thus aimed at were thought to be achieved mainly by
extending the powers of the Social Insurance Offices to reconsider
cases, by transferring the jurisdiction over certain categories of
cases to other courts and by increasing the capacity of the Social
Insurance Courts. The extension of the Social Insurance Office's
powers to reconsider a case was to be accomplished by a new provision
in the Social Insurance Act, according to which the Office, at the
request of a private party, would have to engage in a full and
unprejudiced reconsideration of the merits of the case, and also by
limiting the right of appeal against the Office's decisions to those
resulting from such a reconsideration.
The proposed measures were approved by the Parliament, and
the new legislation entered into force on 1 April 1982. The effect of
the measures thus taken may be demonstrated by the following figures
showing the approximate total number of cases pending before the Social
Insurance Courts as of July during the years of 1982-1986:
1982 27.000
1983 20.000
1984 16.000
1985 13.800
1986 12.000
As regards the Social Insurance Court for Central Sweden
the following figures should be mentioned. The number of cases
pending before this Court in March 1982 was approximately 13.400.
The corresponding figure is now 6.200, and the balance of cases is at
present decreasing at an annual rate of 600-800 cases. Furthermore,
since March 1982 the average waiting period for a case to be decided
has dropped by approximately 55 per cent.
As regards the applicant's case, there is nothing to indicate
that the lapse of time was due to anything else than the excessive
work-load of the Social Insurance Court for Central Sweden. In fact
the approximately two and a half years the case was pending before the
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Court would appear to come very close to the average waiting time for
a case to be decided at that time. Furthermore adequate measures have
promptly been taken in order to deal with the unsatisfactory situation,
and the measures thus taken have proved to be effective. Under these
circumstances, the Government submit that there is nothing to indicate
that the applicant's case was not dealt with within a reasonable time
as required by Article 6 para. 1 of the Convention, and that,
accordingly, this aspect of the complaint is manifestly ill-founded.
3.2 Article 13 of the Convention
The applicant has alleged that Article 13 has been violated
since the Swedish authorities have not decided his case "in accordance
with the Labour Court's decree and decision, Swedish law in general
and the Swedish Constitution" and also since the Supreme
Administrative Court has not informed him whether the decision of the
Supreme Insurance Court or that of the Supreme Administrative Court
would constitute the final decision within the meaning of Article 26
of the Convention.
The Government observe that the scope of Article 13 is limited
in the sense that a national remedy is required only in respect of
claims that rights and freedoms under the Convention have been
interfered with. None of the claims referred to above, and forming
the basis of the applicant's complaint under the present Article,
concerns rights or freedoms guaranteed by the Convention. Accordingly,
the Government submit that the complaint under Article 13 falls outside
the scope of the Convention.
4. Conclusion
The position of the Government is
concerning the admissibility:
that the application should be declared inadmissible for
failure to comply with the rule on exhaustion of domestic remedies in
Article 26 or, alternatively, in so far as it concerns Article 6, for
falling outside the scope of the Convention or for being manifestly
ill-founded, and in so far as it concerns Article 13, for falling
outside the scope of the Convention, and
concerning the merits:
that there has been no violation of the Convention.
B. The applicant
1. The facts
The applicant is struck by the fact that the Government
seem to believe that this case started in the beginning of the
autumn of 1979. The applicant finds it incomprehensible how the
Government have read his application since they have not understood
that his case turns on the fact that he was not allowed to increase
his SGI in accordance with the wage agreement for 1976. To put it
11450/85
in other words, the Government have not addressed the question why the
applicant was treated differently from other workmates although the
Labour Court had decided in his favour.
As regards his appeal, the applicant refers to the provisions
of Chapter 20 Section 11 of the Social Insurance Act and to a copy of
notes taken by an employee at the Social Insurance Office who handled
the applicant's case. The applicant explains that the background to
this note is that the applicant feared losing the right to have his
case examined by the Social Insurance Court. He thought it was the
decision of 8 May 1980 which he had to appeal against and that he had
to bear in mind the time-limit of appeal indicated in that decision.
However, he submits that he was told that his request for a
reconsideration would result in a new decision and that a new
time-limit would run. The decision of 8 May 1980 had been null and
void already as a result of the request for a reconsideration. The
applicant also states that he was told that a reconsideration would be
given priority and that he could be certain that he would receive the
new decision before the time-limit of appeal against the decision of 8
May had expired.
The applicant states that the decision of 30 June 1980 is not
in accordance with the notes of the employee at the Office. It is
clear that the applicant's request was that the SGI should be raised
as from 1976. He did not receive that increase.
The applicant states that when the Social Insurance Office had
reconsidered the case it had two possibilities, either the decision
should be made in accordance with the applicant's request or his
request should be sent to the Social Insurance Court. However, the
Social Insurance Office took neither of these two courses. It
invented a third procedure. Although the applicant had requested a
reconsideration the Social Insurance Office tried to make it look as
if the reconsideration had been made ex officio in accordance with
Chapter 20 Section 10.
Consequently, the Social Insurance Office has not amended their
decision of 8 May in accordance with the applicant's request. The
Office has not followed the Social Insurance Act, Chapter 20
Section 11. The Office has furthermore disregarded the decision of
the Labour Court.
As to the Government's submission that the applicant never
requested an oral hearing, the applicant submits that when he spoke to
the official on 22 May 1980 he asked if it was possible for him to
speak on his own behalf before the Social Insurance Office, but he was
told that these matters are dealt with in another way.
2. The admissibility
The applicant fails to understand the Government's submission
under Article 26 of the Convention. All the time since 1976 and
onwards the applicant has asked the authority handling the matter for
information, advice and instructions specifically on how to handle
the case in order to be treated in the same way as his former
workmates. He has all the time followed the instructions of the
authorities.
11450/85
The applicant maintains that his complaint is based on the
Labour Court's decision, existing law and on the Constitution. He
finds nothing in the Government's submissions which would invalidate
the Labour Court's decision.
In respect of the submission of non-exhaustion of domestic
remedies the applicant states that the Government do not give any
legal support for their opinion and it is impossible to find any such
support in Chapter 20 Section 10 or Section 11. Furthermore the
applicant has followed the advice and instructions given to him by the
authorities and he considers that he should not be turned down for
that.
In reply to the Government's submission that the applicant
could have appealed against the decision of 8 May 1980, the applicant
states that he was told that that decision was made null and void as a
result of his request for a reconsideration.
3. The merits
3.1 Article 6 para. 1 of the Convention
The applicant submits that he has never questioned the reasons
for changing a decision contained in Chapter 20 Section 10. The
applicant considers however that these reasons for a change of a
decision are not extraordinary. They are the ordinary reasons the
Social Insurance Office is obliged to follow. The Office is obliged to
reconsider any case on its own initiative if it finds that any of
these reasons are at hand. When a private party requests a
reconsideration, the Office is obliged under Chapter 20 Section 11 to
make a reconsideration even if the reasons listed in Section 10 are
not at hand. When reading the decision of 30 June 1980 it appears as
if the Office has changed the earlier decision on their own initiative.
However, it is clear from the facts that the reconsideration came
about on the initiative of the applicant and, in accordance with
Section 11, the change should have been made in accordance with the
applicant's request or his request should have been sent to the Social
Insurance Court.
The Government try to prove that the authorities can disregard
the Labour Court's decision without violating the Constitution or the
Convention. The applicant submits that the Labour Court's decision
gave him back both his employment and all the accompanying rights. If
an authority can disregard a court decision at their own will without
violating the Convention then the applicant questions what is left of
the expression "civil right".
The applicant submits that whether or not the SGI as such is a
civil right is something which he is not competent to assess, but the
increase in the SGI which the applicant has tried to obtain would have
been a natural result had not the Labour Court's decision been
disregarded.
It goes without saying that Article 6 para. 1 of the
Convention not only ensures to a private party an impartial and public
hearing but also requires that the authorities shall recognise the
decision of the Court.
11450/85
The applicant observes that although his case has been
examined by the Social Insurance Office, the Social Insurance Court and
the Supreme Insurance Court they have totally disregarded the decision
of the Labour Court. It is difficult to conceive of a more obvious
partiality.
The applicant submits that he has never admitted that he has
received old material existing before the deciding bodies took their
decisions. The applicant has not chosen not to deal with any
document concerning his case. However, the Supreme Insurance Court
told the applicant that it was not necessary for him to go through the
papers. The Court assured him that it would be enough if he wrote
down what he thought relevant in addition to what he had written
before. At the same time the Court told the applicant that an oral
hearing was impossible.
The applicant cannot recall whether he asked for an oral
hearing before the Social Insurance Court but he asked the Supreme
Insurance Court for such a hearing. It was denied. The applicant
also asked for a hearing when the Social Insurance Office should
reconsider his case.
The applicant submits that he has had neither a fair nor a
public hearing.
The Government try to make an oral hearing equal to the
possibility of sending written information. The applicant finds it
unnecessary to comment upon that observation.
As regards the question of "reasonable time" the applicant
submits that the period to be taken into consideration is the time span
between his first request and the Supreme Insurance Court's decision,
that is to say the time between June 1976 and June 1984, i.e. eight
years.
The applicant submits that eight years is not within a
reasonable time. He also notes that nobody in the Social Security
Office informed him that their decisions of June and November 1976
and January 1977 could be appealed against.
The applicant submits that Article 6 of the Convention ensures
to everbody an impartial and public trial within a reasonable time
before an independent and impartial court which has been established
by law. The trials in his case can hardly be labelled impartial. The
decision of the Labour Court was totally disregarded for more than
three years. None of the authorities regard the Labour Court's
decision as valid until the autumn of 1979. Only from 21 November
1979 was the applicant's SGI increased. None of the trials have been
public.
Eight years have elapsed from the applicant's first request to
the final decision. This can hardly be said to be within a reasonable
time.
3.2 Article 13 of the Convention
The applicant submits that he has tried for eight years to
persuade the authorities to recognise the decision of the Labour Court
with the means they have advised him to use. The authorities have
totally disregarded the Labour Court's decision for that period and
the means which the authorities have given to the applicant cannot be
called effective remedies.
4. Conclusion
The Government's observations on the application totally
exclude the time from the applicant's first request for an increase of
his SGI in the beginning of June 1976 until the autumn of 1979. In
doing so the Government avoid answering the question why the Labour
Court's decision was totally disregarded until 21 November 1979 in
practice and until 30 June 1980 formally. In their decision of 30
June 1980 the Social Insurance Office had (under Chapter 20 Section 11
of the Social Insurance Act) to choose between either changing the
decision of 8 May 1980 fully in accordance with the applicant's
request or transferring the case to the Social Insurance Court. The
Office chose not to follow the law at all. It invented a procedure of
its own. In doing so the Office totally suspended the effect of
the Labour Court's decision as well as the applicant's SGI until
21 November 1979. The applicant has tried to amend the Office's
decision and follow the information, advice and instructions given to
him by the authority. Nevertheless, he has been unable to have the
Labour Court's decision recognised for the period 1976 to 1979.
Finally, nowhere in the Government's observations is there an
answer to the question why the Labour Court's decision was completely
disregarded. Nor is there an answer to the question why the applicant
was treated differently from his workmates or former workmates.
THE LAW
1. The applicant complains about the assessment of his income
qualifying for sickness benefits (SGI) in case of future illness, and
of the procedure in which the SGI was determined by the Social Insurance
Office and the Social Insurance Courts. The applicant alleges violations
of Articles 6 and 13 (Art. 6, 13) of the Convention.
2. As regards the substantive complaint that his SGI was wrongly
assessed the applicant has referred to the fact that according to the
judgment of the Labour Court he was to be regarded as employed in his
previous work as an electrician. In the applicant's opinion it should
follow that, when the Social Insurance Office calculated his SGI, it
should have calculated it on the basis that he was employed. By not
following this procedure the applicant has allegedly been deprived of
a right to which he was entitled under that judgment, and he has
consequently been treated differently from his workmates.
In this respect, the Commission has examined the applicant's
complaint in the light of Article 1 of Protocol No. 1 (P1-1) to the
Convention, which guarantees to everyone the right to peaceful
enjoyment of his possessions, and Article 14 (Art. 14) of the
Convention, which prohibits discrimination in the enjoyment of the
rights and freedoms guaranteed in the Convention.
It is in dispute between the parties whether the applicant
has, as regards the determination of his SGI, exhausted domestic
remedies as required by Article 26 (Art. 26) ) of the Convention. The
Commission considers that it can leave this issue open since this part
of the application is, in any event, inadmissible for the following
reasons.
The Commission first observes that the Convention does not as
such guarantee any right to be regarded as employed or any right to a
specific SGI.
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 SGI, 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) either taken alone or in conjunction with Article 14 (Art. 14)
of the Convention.
It follows that in this respect the application is manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of
the Convention.
3. As regards his procedural complaints, the applicant submits
that his case has not been dealt with by the Social Insurance Courts
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.
Article 6 para. 1 (Art. 6-1) first sentence provides as follows:
"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."
It must first be determined whether Article 6 para. 1 (Art.
6-1) of the Convention was applicable to the proceedings in question.
Article 6 para. 1 (Art. 6-1) would only be applicable to the
proceedings before the Social Insurance Courts if those proceedings
were decisive for a dispute ("contestation") which related to a "civil
right" of the applicant. Accordingly, the question to be determined
is whether the dispute as to the amount qualifying for sickness
benefits (SGI) in case of future illness related to the applicant's
civil rights.
It is established case-law that the concept of "civil rights"
cannot be interpreted solely by reference to the domestic law of the
State concerned. Moreover, Article 6 (Art. 6) does not only cover
private-law disputes in the traditional sense, i.e. disputes between
individuals or between an individual and the State to the extent that
the latter has been acting as a private person subject to private law.
The character of the legislation which governs how the matter is to
be determined and the authority which is invested with jurisdiction in
the matter are not decisive. What is decisive is the right at issue
(see Eur. Court H.R., König judgment of 28 June 1978, Series A no.
27, pp. 29-30, paras. 88-89).
In the Feldbrugge case (Eur. Court H.R., Feldbrugge judgment
of 29 May 1986, Series A no. 99) and the Deumeland case (Eur. Court
H.R., Deumeland judgment of 29 May 1986, Series A no. 100), the
European Court of Human Rights examined the applicability of Article 6
(Art. 6) of the Convention to certain disputes in the field of social
security, notably a sickness insurance scheme in the Netherlands
(Feldbrugge case) and an industrial-accident insurance scheme in the
Federal Republic of Germany (Deumeland case). In these cases the
Court developed certain principles for the interpretation of Article 6
(Art. 6) as to whether a specific dispute concerning social security
benefits could be said to fall within the concept of "civil rights".
Basically the Court, on the basis of the characteristics of the right
claimed by the applicant under the national law, identified, on the
one hand, certain features of public law and, on the other hand,
certain features of private law. It then assessed the different
features of public and private law and found the latter to be
predominant and, consequently, held that Article 6 (Art. 6) was
applicable (see Feldbrugge judgment, loc. cit., pp. 12-16, paras.
28-40 and Deumeland judgment, loc. cit. pp. 22-26, paras. 62-74). In
both cases, the Court identified the following features of public law:
(1) the character of the legislation, (2) the compulsory nature of
the insurance, and (3) the assumption by the State of responsibiltiy
for social protection. The Court identified the following features of
private law: (1) the personal and economic nature of the right, (2)
the connection with the contract of employment, and (3) the affinities
with insurance under the ordinary law.
Turning to the present case, the Commission recalls that the
dispute in this case related to the question of the level of the
applicant's income qualifying for sickness benefits in case of future
illness. The rules governing the right to sickness benefits in Sweden
are contained in the Social Insurance Act and are one of the elements
in a comprehensive social security system which includes a basic
pension scheme and a supplementary pension scheme.
All Swedish citizens and all persons resident in Sweden are
insured under the Act. Every insured person shall be registered with
a Social Insurance Office from the age of 16 if he is resident in
Sweden. According to Chapter 3 Section 1 of the Act in its working at
the relevant time, every insured person thus registered is entitled to
sickness benefits on the condition that his income qualifying for
sickness benefits amounts to at least 6,000 SEK, or that he or she is
married and lives permanently together with his or her spouse, or that
he or she lives permanently together with a child under the age of 16
of his own, of his or her spouse, or of someone else to whom he or she
has been married or with whom he or she has had a child. The amount
qualifying for sickness benefits is essentially fixed on the basis of
the insured person's annual income. For those who do not have such
income the benefits are fixed at a specific amount per day.
The costs of the sickness benefits are financed out of
Government subsidies and charges levied on employers and self-employed
persons. The charges levied on the employers are in essence based on
a percentage of the total amount of annual salaries paid by the
employer. The assessment and collection of the charges are
administered by the tax authorities. A failure by an employer
to fulfil his obligations to pay charges does not influence the
individual's right to sickness benefits.
The decisions on the amount qualifying for sickness benefits
are made by Social Insurance Offices whose decisions are subject to
appeal to Social Insurance Courts and in the final instance to the
Supreme Insurance Court.
Having examined the facts of the present case on the basis of
the principles laid down in the Feldbrugge case and the Deumeland
case, the Commission finds that the public law features are so
dominant as to make Article 6 para. 1 (Art. 6-1) of the Convention
inapplicable to the dispute which arose between the applicant and the
Social Insurance Office. The Commission notes the following features
in particular.
The system of sickness benefits in Sweden is governed by public
law and managed by public authorities. The insurance system is not
based on any optional or compulsory affiliation to the insurance, but
rather on an automatic affiliation. The insurance system is financed
by Government subsidies and charges levied on the employers. The
individuals insured do not themselves, apart from self-employed
persons, contribute to the financing of the system.
It is true that the right at issue is personal, economic,
individual and essential to the applicant. It is also true that the
right to sickness benefits has a certain link with the applicant's
employment since the amount of sickness benefits is based on his
salary, but the connection is more remote than in the Feldbrugge case.
However, the sickness benefits under the Swedish Social
Insurance Act do not have the affinities with insurance under the
ordinary law which in the Feldbrugge case were of particular
importance (cf. Feldbrugge judgment, loc. cit., pp 15-16, para. 39),
although the employer contributes to the financing of the sickness
insurance.
To sum up, the Commission considers that, apart from the fact
that the right at issue was personal, economic and essential to the
applicant, there are only a few features of the Swedish sickness
insurance under the Social Insurance Act which would suggest that
the asserted right was of a private-law character. The public-law
features, on the other hand, are predominant.
The Commission therefore finds that the right at issue was not
"civil" within the meaning of Article 6 para. 1 (Art. 6-1) of the
Convention.
Accordingly, the Commission concludes that Article 6 (Art. 6)
was not applicable to the proceedings before the Social Insurance
Courts and that this complaint is incompatible with the Convention
ratione materiae within the meaning of Article 27 para. 2 (Art. 27-2)
of the Convention.
4. The applicant also invokes Article 13 (Art. 13) of the
Convention, which 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 SGI was
incorrectly calculated, 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 examined above under 3,
it follows from the conclusion under 3 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.
For these reasons, the Commission
DECLARES THE APPLICATION INADMISSIBLE
Secretary to the Commission President of the Commission
(H. C. KRÜGER) (C. A. NØRGAARD)