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FIFTH
SECTION
CASE OF ERIKSSON v. SWEDEN
(Application
no. 60437/08)
JUDGMENT
STRASBOURG
12 April
2012
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Eriksson v. Sweden,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Dean Spielmann,
President,
Elisabet Fura,
Karel
Jungwiert,
Boštjan M. Zupančič,
Mark
Villiger,
Ganna Yudkivska,
Angelika Nußberger,
judges,
and Stephen Phillips,
Deputy Section Registrar,
Having
deliberated in private on 20 March 2012,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 60437/08) against the Kingdom
of Sweden lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Swedish national, Mr Mats Eriksson (“the
applicant”), on 13 November 2008.
- The
applicant was represented by Mr R. Helenius, a lawyer practising in
Jönköping. The Swedish Government (“the Government”)
were represented by their Agent, Ms G. Isaksson, of the Ministry for
Foreign Affairs.
- The
applicant alleged, in particular, that the administrative courts had
failed to hold an oral hearing in proceedings relating to his request
for life annuity.
- On
2 February 2011 the application was communicated to the Government.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1942 and lives in Trosa.
- In
1989 the applicant was diagnosed with type II diabetes and vascular
spasms. While riding a bicycle on work-related business on 21 January
2000, the applicant suffered a heart attack which caused him to fall.
About two weeks later, he also suffered a cerebral stroke. On 2 April
2001 he reported the accident to the Social Insurance Office
(Försäkringskassan) of the County of
Södermanland which granted him early retirement pension as from
1 December 2001.
- The
applicant also requested the Social Insurance Office to grant him
life annuity (livränta) but, on 28 April 2003, the Social
Insurance Office rejected the request. It found that the applicant’s
medical problems could not be regarded as work-related and that his
ability to support himself by working was not sufficiently reduced as
a result of the accident. According to medical opinions given on
6 August and 17 September 2002 by Dr B.M., the Social Insurance
Office’s own medical doctor (försäkringsläkare),
the main reason for the applicant’s inability to work was
diabetes, from which he had suffered for 16 years at the time of the
accident, and some other medical conditions from which he suffered
and which together had caused the heart attack and the cerebral
stroke. According to him, it was not probable that work-related
factors, such as stress, had contributed to the deterioration of the
applicant’s physical condition.
- By
letter dated 6 May 2003 the applicant’s legal counsel appealed
to the County Administrative Court (länsrätten) of
the County of Södermanland, claiming that the applicant had a
right to a life annuity since his illnesses had been work-related. At
times he had had up to three different jobs, each one of which, had
been hectic and thereby created a difficult and very stressful
situation. He produced a medical opinion by Dr. C-G.E., dated 5
February 2003, which stated that known risk factors for
arteriosclerosis and heart attack were, among other factors,
diabetes, smoking and high blood pressure. Recently, the feeling of
severe stress, especially over a long period of time, had been shown
to be an element that increased the risk of developing heart and
vascular disorders as well. The interaction between various risk
factors was complex but, in general, the more risk factors were
present, the higher the risk of suffering a heart attack or
developing vascular disorders. In the applicant’s case, the
physician considered that few risk factors were present and that it
was highly probable that his stressful work situation had contributed
to the heart attack and cerebral stroke.
- On
18 March 2004 the County Administrative Court rejected the
applicant’s appeal. In reaching its decision, the court had
regard to the medical certificates by Dr B.M., which established no
link between the work situation and the applicant’s illness, as
well as to the medical opinion by Dr. C-G.E. which suggested that
there existed such a link. On the basis of these and the parties’
submissions, the court found that the applicant had been exposed to
stress in his work but that the causal link between this fact and the
applicant’s medical condition could not be established with a
sufficiently high degree of probability.
- By
letter dated 14 April 2004 the applicant, represented by the same
legal counsel, appealed to the Administrative Court of Appeal
(kammarrätten) in Stockholm, maintaining
his claims. By letter dated 3 February 2005 the applicant submitted
to the court a further medical opinion given by Dr E.H. on 23
December 2004 which supported the opinion given by Dr C-G.E.
- By
letter dated 28 April 2005 the applicant requested that the
Administrative Court of Appeal hold an oral hearing in the case
without, however, giving any reasons for his request. He repeated the
request on 14 June 2005 and specified that he wanted Dr C-G.E., Dr
E.H., Dr V.B. and Dr B.M. to be heard before the court about the
existence of a causal link between his work and his injury. In
another letter, dated 13 September 2005, he invoked Article 6 of the
Convention in relation to his right to an oral hearing and clarified
that he wanted an oral hearing to deal with his case as a whole,
including the question of leave to appeal.
- On
23 November 2005 the Administrative Court of Appeal rejected the
request for an oral hearing, finding that there was no reason to hold
one to decide on the question of leave to appeal. The court asked the
applicant to complete his written submissions.
- On
31 August 2006 the applicant submitted to the Administrative Court of
Appeal a new medical opinion, dated the same day, by Dr P.S. and Dr
B.C-D. This medical opinion also supported the opinion given by
Dr C G.E that there was a causal link between the
applicant’s work and his injury. On 12 October 2006 the
applicant requested again that an oral hearing be held in the case
and that all the medical doctors who had submitted opinions be heard
to prove that there was a causal link between his work and his
injury. He also wanted to be heard himself about his work situation
and the stressful environment.
- On
7 February 2007 the Administrative Court of Appeal refused the
applicant leave to appeal. It noted that leave to appeal should be
granted if it was important for the guidance of the application of
law that an appellate court consider the appeal, if reasons existed
to amend the lower court’s conclusion, or if there were
otherwise extraordinary reasons to entertain the appeal. As the court
found that no such grounds were at hand, it refused leave to appeal.
- By
letter dated 4 April 2007 the applicant appealed to the Supreme
Administrative Court (Regeringsrätten), reiterating the
grounds of appeal already presented before the lower instances and
requesting the court either to refer the case back to the
Administrative Court of Appeal for an oral hearing or to hold an oral
hearing itself. He reiterated that he wanted to be heard himself and
also to hear as witnesses the medical doctors whose opinions he had
submitted to the court. Having been asked by the court, the applicant
specified in his letter dated 10 June 2007 that he wanted the court
to hold an oral hearing even if it was for the purpose of deciding
whether or not to grant him leave to appeal. He again invoked Article
6 of the Convention.
- On
29 October 2007 the Supreme Administrative Court rejected the request
for an oral hearing as it found no reason to hold one in order to
decide on the question of leave to appeal. The applicant was
requested to complete his written submissions.
- On
27 May 2008 the Supreme Administrative Court refused the applicant
leave to appeal. It noted that leave to appeal was granted if the
case was a precedent case or if serious material or procedural
mistakes were involved. As this was not so in the present case, the
court found no reason to try the case on its merits.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Work Injury Insurance
- According
to the Work Injury Insurance Act (lagen om arbetsskadeförsäkring,
1976:380, hereinafter the “1976 Act”), as in force at the
relevant time, the term “work injury” mainly refers to
injuries resulting from accidents or other harmful factors at a
person’s work place (Chapter 2, Section 1 of the 1976 Act).
Under the 1976 Act, all gainfully employed persons working in Sweden
are insured against work injuries. The insurance scheme is mainly
administered by the Social Insurance Office and includes, among other
things, compensation for loss of earnings such as life annuity. The
Office must obtain a medical opinion concerning the injury and has
physicians with different areas of medical expertise attached to it
to assist in this exercise. The assessment of whether an injury
qualifies as a work injury, as well as of the degree of reduction of
a person’s ability to engage in gainful employment, shall be
made on the basis of the available medical opinions, the insurance
office doctor’s assessment of these opinions and all other
relevant information.
- For
an injury to qualify as a work injury, a causal link must be
established between the accident or harmful effect in the workplace
and the insured person’s health problems. By “harmful
effect” was meant the influence of a factor that is very likely
to cause an injury or illness such as that suffered by the insured
person (Chapter 2, Section 1 of the 1976 Act).
- Under
the amendments entering into force on 1 January 1993, which applied
to the applicant’s case, it had to be shown that it was “highly
probable”, and not merely “probable” as prior to
the amendment, that a certain factor in the working environment could
cause a person’s injuries and, thereby, be considered as having
harmful effects (Chapter 2, Section 1 2 of the 1976 Act).
The travaux préparatoires (Government Bill 1992/93:30,
p. 20 and p. 36) state that this implies that the responsible
authorities have to consider more extensively than previously whether
the exposure to a harmful effect at work has been of such a degree,
intensity and duration that, from this, it can be concluded that the
existence of harmfulness is highly probable. Furthermore, the
collected knowledge must indicate with a considerable degree of
probability that a factor in the environment is harmful. The view
that a certain factor is very likely to cause an injury has to be
relatively generally accepted. This is the case where substantial
knowledge exists, within medical or other science, that a certain
factor has such harmful effects. If there is a lack of support, as
when, for example, there are profound differences in expert opinions,
this requirement cannot be considered fulfilled. Thus, the opinion of
a specific researcher or medical doctor should not constitute
sufficient basis for a positive decision on the issue of harmful
effects. The travaux préparatoires also state that the
more rigid requirement of harmfulness in many cases presupposes more
careful investigations at workplaces regarding the harmful factors
invoked and that the question of causes of certain diseases has to be
discussed more thoroughly. This, in turn, will result in the
authorities basing their decisions more extensively on different
assessments of harmfulness within medical science.
B. Procedure before the administrative courts
- A
decision rendered by the Social Insurance Office regarding work
injuries may be appealed against to the administrative courts.
However, in these cases leave to appeal is required for the
Administrative Court of Appeal to consider an appeal on the merits
against a decision or judgment delivered by the County Administrative
Court (Section 34 a of the Administrative Court Procedure Act
(Förvaltningsprocesslagen, 1971:291, hereinafter “the
1971 Act”, compared with Chapter 8, Section 12 of the 1976
Act). Likewise, leave to appeal is required for the Supreme
Administrative Court to consider on the merits an appeal against a
decision or judgment delivered by the Administrative Court of Appeal
(Section 35 of the 1971 Act).
- Section
9 of the 1971 Act was worded as follows:
“The procedure shall be in writing.
Where it may be assumed to be advantageous for the
investigation or promote the expeditious determination of the case,
the processing may include an oral hearing regarding certain issues.
In the Administrative Court of Appeal and the County
Administrative Court an oral hearing shall be held if requested by an
individual party to the proceedings, unless it is unnecessary or
there are particular reasons against holding a hearing.”
- The
possibility for an individual party to obtain an oral hearing on
request under those circumstances is not available in the proceedings
before the Supreme Administrative Court.
- The
travaux préparatoires to the Administrative Court
Procedure Act emphasise that an oral procedure can be advantageous
for the investigation of a case in two respects in particular.
Firstly, such a hearing may be needed in order to examine a witness,
expert or party or in cases where a party has difficulty expounding
his or her claim in writing. Secondly, an oral hearing may be needed
to clarify the positions taken by the parties in the case and perhaps
eliminate unnecessary or meaningless points of dispute. In the latter
case, the procedure is typically of a preparatory nature. Moreover,
the oral form of procedure envisaged in the 1971 Act is not to be
seen as an alternative to the written form, but rather as a
complement to that form (see the Government Bill 1971:30, p. 535).
- Furthermore,
the travaux préparatoires to the 1971 Act underlined,
in connection with the provision in section 9 of the Act concerning
the right of a party to an oral hearing in certain cases, that while
serious consideration should be given to the wishes of a party for
such a hearing, the party could hardly be allowed to have a decisive
influence in the matter. The question of whether a hearing is
necessary should primarily be assessed in the light of the existing
investigation of the case, but it should also be possible to accord
significance to other factors, for example, if the case is very
important for the party and a hearing would give him a better
understanding of the import of the decision to be given in the case.
One particular reason not to arrange an oral hearing could be that
the case is of a trivial nature or that the costs of the hearing are
high compared to the value of the object of dispute (see Government
Bill 1971:30, p. 537).
- In
recent years the Supreme Administrative Court has set aside a number
of decisions on appeal and referred cases back to the administrative
courts of appeal because of the lack of an oral hearing in the lower
courts (see, for example, RÅ 2002 ref. 23, RÅ 2003 note
68, RÅ 2004 note 65, RÅ 2007 note 171 and RÅ 2009
note 73; as more specifically regards work injuries, see RÅ
2004 note 66 and RÅ 2006 note 207). In the last mentioned case,
an administrative court of appeal had changed the lower court’s
judgment to the applicant’s disadvantage without holding an
oral hearing. Furthermore, the applicant had requested that a medical
doctor be heard as a witness.
C. Compensation for violations of the Convention
1. Civil liability of the State
- Chapter
3 of the Tort Liability Act (Skadeståndslagen, 1972:207)
deals with the civil liability of the State. According to Section 2
of that chapter, acts or omissions by a public authority may give
rise to an entitlement to compensation in the event of fault of
negligence.
- An individual who wants to claim compensation from the
State may proceed in either of two different ways: He or she may
either petition the Chancellor of Justice (Justitiekanslern)
in accordance with Section 3 of the Ordinance on the Administration
of Claims for Damages against the State (Förordningen om
handläggning av skadeståndsanspråk mot staten,
1995:1301), or bring a civil action against the State before a
district court, with the possibility to appeal to a court of appeal
and the Supreme Court. No appeal lies against a decision of the
Chancellor of Justice. However, if the claim is rejected, the
claimant still has the possibility to institute civil proceedings
before the courts. In such proceedings, the State is represented by
the Chancellor of Justice (section 2 of the Ordinance with
Instructions for the Chancellor of Justice [Förordning med
instruktion för Justitiekanslern, 1975:1345]).
2. Compensation for violations of the Convention
(a) Case-law developments
- In
a judgment of 9 June 2005 (NJA 2005 p. 462) the Supreme Court dealt
with a claim for damages brought by an individual against the Swedish
State, inter alia, on the basis of an alleged violation of
Article 6 of the Convention. The case concerned the excessive length
of criminal proceedings and the Supreme Court held that the
plaintiff’s right under Article 6 of the Convention to have the
criminal charges against him determined within a reasonable time had
been violated. Based on this finding and with reference, inter
alia, to Articles 6 and 13 of the Convention and the Court’s
case-law under these provisions, in particular the case of Kudła
v. Poland ([GC], no. 30210/96, ECHR 2000 XI), the Supreme
Court concluded that the plaintiff was entitled to compensation under
Swedish law for both pecuniary and non-pecuniary damage. With respect
to the level of compensation for non-pecuniary damage, the Supreme
Court took note of the criteria established in the Court’s
case-law stating that the Court’s practice constituted a
natural point of departure in this regard.
- In
a decision of 4 May 2007 (NJA 2007 p. 295), the Supreme Court held
that the principle concerning a right to damages established in the
above-mentioned case of 9 June 2005 also applied with regard to the
rights contained in Article 5 of the Convention. The Supreme Court
stated that the plaintiff’s right to damages on account of a
violation of Article 5 should be assessed in the first place under
the Tort Liability Act and the Act on Compensation for Deprivation of
Liberty and Other Coercive Measures (Lagen om ersättning vid
frihetsberövanden och andra tvångsåtgärder,
1998:714). To the extent necessary, the relevant provisions of
domestic law should be interpreted in accordance with the Convention.
If Sweden’s obligations under Article 5 § 5 could not be
met by such an interpretation, the domestic courts should award
compensation without the support of specific legal provisions. As
concerned the determination of the level of compensation, the Supreme
Court repeated that the Court’s case-law was a natural point of
departure but also noted that account must be taken of the fact that
different national conditions may lead to variations from one country
to another in what should be regarded as a reasonable level of
compensation.
- In
a judgment of 21 September 2007 (NJA 2007 p. 584), the Supreme Court
held that the plaintiffs’ right to respect for their private
life under Article 8 had been violated on the basis that a police
decision on a medical examination of some of them had not been “in
accordance with the law”. Having found that compensation for
the violation could not be awarded directly on the basis of the Tort
Liability Act, the Supreme Court held that there was no reason to
limit the scope of application of the principle established in the
above-mentioned cases of 9 June 2005 and 21 September 2007 to
violations of Articles 5 and 6 of the Convention. In view of this and
with reference to, inter alia, Articles 8 and 13 of the
Convention and the Court’s case-law under these Articles, the
Supreme Court concluded that the plaintiffs should be awarded
non-pecuniary damages for the violation of Article 8. With regard to
the levels of compensation, the Supreme Court concluded that they
should not be too far removed from the levels which applied when
awarding damages under the Tort Liability Act. Generally speaking
these levels should, however, be compatible with the case-law of the
Court. In the same case, Svea Court of Appeal had also concluded, in
a judgment dated 12 January 2006, that there had been a
violation of Article 8 and that an award for non-pecuniary damage
should be made on the basis of the principle established in the case
of 9 June 2005.
- Another
Supreme Court judgment of 28 November 2007 (NJA 2007 p. 891)
concerned a claim for damages against the Swedish State on the basis
of an alleged violation of Article 2 of the Convention relating to
the suicide of the plaintiffs’ father while in detention. The
Supreme Court concluded that the case revealed no violation of
Article 2. However, in its reasoning leading to this conclusion, the
Supreme Court noted, inter alia, that according to the Court’s
case-law there was a right to an effective remedy under Article 13
connected to the State’s duty under the Convention to take
measures to protect the lives of individuals in custody or who were
otherwise deprived of their liberty, which should, in principle,
include a possibility of obtaining compensation for damage. The
Supreme Court referred in particular to the judgment in Keenan v.
the United Kingdom (no. 27229/95, § 130, ECHR 2001 III).
- In
a judgment of 3 December 2009 (NJA 2009 N 70), the Supreme Court
confirmed its previous case-law in a case concerning claims for
damages against the Swedish State on account of excessive length of
tax proceedings. The court affirmed that it is now a general
principle of law that to the extent that Sweden has a duty to provide
redress to victims of Convention violations through a right to
compensation for damages, and that this duty cannot be fulfilled even
by interpreting national tort law in accordance with the Convention
(fördagskonform tolkning), compensation for damages may
be ordered without direct support in law.
- Lastly,
on 16 June 2010 the Supreme Court ordered compensation for
non-pecuniary damage to be paid to an applicant for proceedings which
had complied neither with the “reasonable length”
requirement in Article 6 nor the right to an effective remedy in
Article 13. The proceedings in question had concerned a claim for
damages against the State.
(b) Other developments
- In
May 2009 the Government decided to set up a working group on tort
liability and the Convention to study the current legal situation. In
December 2010 the working group submitted its report (Skadestånd
och Europakonventionen, SOU 2010:87) to the Government. In the
report it is proposed that the Tort Liability Act be amended in order
to allow natural and legal persons to obtain damages from the State
or a municipality for violations of the Convention. Such an action
against public authorities would be examined by a general court which
would need first to establish that a right provided by the Convention
has been violated. The aim of the proposal is to provide a legal
basis for granting non-pecuniary damages arising from disregard of
the Convention and to fulfil, together with the other already
existing legal remedies, Sweden’s obligations under Article 13
of the Convention.
- In
its comments on the above report the Office of the Chancellor of
Justice, on 7 July 2011, stated that, since the autumn of 2007
following the Supreme Court’s case-law developments (as set out
above), it had dealt with a large number of requests from individuals
for compensation on the basis of violations of the Convention. It
estimated that it had dealt with roughly 1000 cases over the previous
three years. During this time the Chancellor of Justice had also
represented the Swedish State in a number of cases before the civil
courts concerning alleged violations of the Convention. A majority of
the cases that the Office had dealt with had concerned non-pecuniary
damages for excessive length of proceedings under Article 6 § 1
of the Convention. Since November 2009, it had received more than 400
such complaints and in more than half of them, the Chancellor of
Justice had found a violation and granted compensation. The level of
compensation for non-pecuniary damage had been determined with
reference to the Court’s case-law and varied between SEK 10,000
and SEK 30,000 (approximately EUR 1,100 and EUR 3,300).
Furthermore, the Chancellor of Justice had dealt with a substantial
number of cases (around 160) concerning the registration of
individuals in the Security Police register. These cases had
concerned one or more of Articles 8, 10, 11 and 13 of the Convention.
There had also been other individual cases relating to alleged
violations of Articles 5 and 7 of the Convention, among others.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION AS REGARDS THE LACK OF AN ORAL HEARING
- The
applicant complained that he had not been granted an oral hearing
before the appellate courts in breach of Article 6 § 1 of the
Convention which, in relevant parts, read:
“In the determination of his civil rights and
obligations ... everyone is entitled to a fair ... hearing ... by [a]
... tribunal ...”
- The
Government contested that argument.
A. Admissibility
- The
Government submitted that the complaint was inadmissible on the
ground that the applicant had not exhausted domestic remedies. In
this respect, they referred to all of the Swedish Supreme Court’s
judgments mentioned above (§§ 29-34) in which the court had
awarded individual compensation for pecuniary and non-pecuniary
damage concerning the violation of different Articles of the
Convention. In the Government’s opinion, these showed that
Swedish law now provided a remedy in the form of compensation for
both pecuniary and non-pecuniary damage in respect of any violation
of the Convention, including violations under Article 6 § 1 of
the Convention. Although the Government acknowledged that the legal
position on this matter under domestic law had been less clear prior
to the Supreme Court’s judgments in 2005 and 2007, they
submitted that following these judgments the legal position must have
been considered sufficiently clear. Therefore, since the applicant
lodged his application with the Court on 13 November 2008, he should
have been aware of the Supreme Court judgments and that there was an
effective domestic remedy available to him. They pointed out that the
existence of mere doubts as to the prospects of success of a
particular remedy, which was not obviously futile, was not a valid
reason for failing to exhaust domestic remedies. Therefore, the
Government held that compensation proceedings against the Swedish
State constituted a domestic remedy which the applicant should have
been obliged to exhaust prior to examination of the case by the
Court.
- In
any event, they noted that the limitation period in respect of
compensation claims against the State is ten years from the point in
time when the damage occurred (Section 2 of the Limitation Act,
preskriptionslagen, 1981:130), for which reason he could still
file a claim against the State in Sweden and should do so before the
Court examines his case.
- The
applicant disagreed and maintained that he had exhausted all domestic
remedies required of him.
- The
Court reiterates that the purpose of the requirement of exhaustion of
domestic remedies under Article 35 § 1 of the Convention is to
afford the Contracting States the opportunity to prevent or put right
the violations alleged against them before those allegations are
submitted to the Court. Consequently, States are dispensed from
answering for their acts before an international body before they
have had an opportunity to put matters right through their own legal
system. That rule is based on the assumption, reflected in Article 13
of the Convention – with which it has close affinity –
that there is an effective remedy available in the domestic system in
respect of the alleged breach. In this way, it is an important aspect
of the principle that the machinery of protection established by the
Convention is subsidiary to the national systems safeguarding human
rights. Thus the complaint intended to be made subsequently to the
Court must first have been made – at least in substance –
to the appropriate domestic body, and in compliance with the formal
requirements and time-limits laid down in domestic law (see Selmouni
v. France [GC], no. 25803/94, § 74, ECHR 1999-V, with
further references).
- However,
the only remedies which Article 35 § 1 requires to be exhausted
are those that relate to the breach alleged and are available and
sufficient. The existence of such remedies must be sufficiently
certain not only in theory but also in practice, failing which they
will lack the requisite accessibility and effectiveness: it falls to
the respondent State to establish that these conditions are satisfied
(see, among many other authorities, Mifsud v. France (dec.)
[GC], no. 57220/00, § 15, ECHR 2002 VIII; Leandro Da
Silva v. Luxembourg, no. 30273/07, §§
40 and 42, 11 February 2010; and McFarlane v. Ireland [GC],
no. 31333/06, § 107, 10 September 2010).
44. In
the present case, the applicant relied before the Administrative
Court of Appeal and the Supreme Administrative Court among other
things on the Convention and argued that he had a right to an oral
hearing in accordance with Article 6 § 1 of the Convention. He
thus did what was required of him in order to afford the national
authorities the opportunity to remedy the violation alleged by him.
- The Government claimed, however, that the applicant
had failed to avail himself of available remedies capable of
affording him sufficient redress in the form of compensation for the
alleged violation. In this respect, the Court notes that, of the
final domestic judgments and the decision referred to by the
Government, four of them were delivered before the introduction of
the present application, in cases relating to length of criminal
proceedings, deprivation of liberty, private life, and the right to
life whereas the present case concerns the lack of an oral hearing.
In these circumstances, in the Court’s view, it has not been
shown that, at the time of introduction of the present application
before the Court on 13 November 2008, there existed a remedy in
Sweden which was able to afford redress in respect of the violation
alleged by the applicant (see, Bladh v. Sweden (dec.),
no. 46125/06, 10 November 2009, §§ 23-27, and
Fexler v. Sweden, no. 36801/06,
§ 43, 13 October 2011).
- The
Government further claimed that, in any event, the applicant had had
the opportunity to claim compensation before the Swedish courts after
the introduction of the present application and, indeed, still had
that possibility and should be obliged to use it.
- In
this respect, the Court observes that the administrative proceedings
about which the applicant is complaining were terminated on 27 May
2008 and that the alleged violation of a lack of an oral hearing thus
must be considered to have occurred at this point in time.
Consequently, in accordance with Section 2 of the Limitation Act, the
applicant has the possibility to claim compensation from the Swedish
State in relation to this alleged damage until 27 May 2018.
- The
Court would like to reiterate that the assessment of whether domestic
remedies have been exhausted is normally carried out with reference
to the date on which the application was lodged with it. However,
this rule is subject to exceptions, which may be justified by the
particular circumstances of each case (see, for example, Baumann
v. France, no. 33592/96, § 47, 22 May 2001, Brusco
v. Italy (dec.), no. 69789/01, ECHR 2001 IX, and Andrei
Georgiev v. Bulgaria, no. 61507/00, § 78, 26 July
2007).
- In
the case before it, the Court observes that the Supreme Court has not
yet adjudicated a case relating to compensation for the lack of an
oral hearing before the administrative courts and it would appear
that the Chancellor of Justice has not dealt with any such case
either.
- However,
as described above (§§ 29-34), the Court recognises that,
over recent years, the Supreme Court has developed case-law
concerning the possibility to claim compensation on the basis of
alleged violations of the Convention which is welcomed. In
particular, the Court wishes to highlight the Supreme Court judgment
of December 2009 (NJA 2009 N 70) which affirmed that it was now a
general principle of law that compensation for Convention violations
could be ordered without direct support in Swedish law, to the extent
that Sweden has a duty to provide redress to victims of Convention
violations through a right to compensation for damages. In the
Court’s view, this judgment shifts the Supreme Court’s
case-law from establishing precedent in specific matters to
establishing a general principle for the domestic courts and the
Chancellor of Justice to follow in cases relating to all claims for
compensation for alleged violations of the Convention. This view is
also supported by the Supreme Court’s judgment in June 2010 in
which it clarified that the State must provide an effective remedy in
accordance with Article 13 of the Convention for alleged breaches of
the Convention.
- Moreover,
the Court notes that this case-law development has been going
hand-in-hand with an increase in applications to the Chancellor of
Justice requesting compensation for alleged violations under the
Convention. Thus, over the last three years, the Chancellor of
Justice has dealt with more than 1,000 requests by individuals
claiming compensation for alleged breaches of the Convention,
including under Articles 2, 5, 6, 7, 8, 10, 11 and 13 of the
Convention (see above, § 36). In this respect, the Court
observes that both the Supreme Court and the Chancellor of Justice
have made frequent use of the Court’s case-law when considering
the cases before them. Thus, for example, the level of compensation
for non pecuniary damage has been determined, inter alia,
with reference to the Court’s case-law.
- Against
this background, the Court considers that the case-law established
over the last seven years by the Supreme Court, together with the
Chancellor of Justice’s more recent practice, must be regarded
as sufficiently certain to find that there now exists an accessible
and effective remedy in Sweden that is capable of affording redress
in respect of alleged violations of the Convention. Potential
applicants may therefore be expected to lodge a domestic claim to
seek compensation for alleged breaches of the Convention before
applying to the Court.
- In
so far as concerns the present case, the Court notes that the
applicant lodged his application with the Court already in November
2008 at a time when, as established above, there was no effective
remedy in Sweden for his complaint. It further considers that there
are no particular circumstances in this case to justify departing
from the general rule that the assessment of whether domestic
remedies have been exhausted is carried out with reference to the
date on which the application was lodged with the Court.
Consequently, the Court finds that, in the instant case, it could not
be required of the applicant to pursue the remedy invoked by the
Government. The Government’s objection as to the exhaustion of
domestic remedies must therefore be dismissed.
- The
Court further notes that this complaint is not manifestly ill founded
within the meaning of Article 35 § 3 (a) of the Convention and
that it is not inadmissible on any other grounds. It must therefore
be declared admissible.
B. Merits
1. The parties’ submissions
(a) The applicant
- The
applicant maintained that the lack of an oral hearing before the
Administrative Court of Appeal and the Supreme Administrative Court
had violated his rights under Article 6 § 1 of the Convention.
- He
stressed that, after the County Administrative Court’s
judgment, he had been examined by specialists who had assessed his
case and had concluded that there was a high degree of probability
that he had been exposed to harm at work and that overwhelming
reasons supported that his health problems had been caused by his
work situation. He had submitted these medical opinions to the
Administrative Court of Appeal and requested an oral hearing in order
for the medical doctors’ opinions to be heard but also for
himself to be able to tell about his work situation. Moreover, he had
wanted to cross-examine the insurance doctor since he had claimed
that the applicant’s health problems did not emanate from his
work. The applicant was convinced that an oral hearing would have
resulted in the outcome of the proceedings being in his favour.
- The
applicant further argued that the Supreme Administrative Court should
have granted him a hearing since the Administrative Court of Appeal
had refused him one and it was in the interest of the fairness of the
proceedings that he be granted one. In his view, an oral hearing
would not have been unnecessary and there had been no particular
reasons against holding a hearing in his case. Furthermore, the
appellate courts had in several other cases granted a hearing to
determine whether or not to grant leave to appeal and so, by
rejecting his request for a hearing, they had deprived him of his
right to a fair procedure, in breach of Article 6 of the Convention.
(b) The Government
- The
Government submitted that the lack of an oral hearing before the
appellate courts had not violated the applicant’s right to a
fair and public hearing within the meaning of Article 6 § 1 of
the Convention.
- They
reiterated that the obligation to hold a hearing was not absolute and
that it could be dispensed with in certain circumstances, such as
through waiver or due to the nature of the issue to be determined.
Moreover, the administrative courts had to have regard to the demands
of efficiency and economy. The Government then observed that the
present case concerned social insurance benefits which, generally,
are rather technical and where the outcome usually depends on written
opinions provided by medical doctors. Many such cases could therefore
be better dealt with in writing than in oral arguments (see, among
others, Lundevall v. Sweden, no. 38629/97, § 38, 12
November 2002, and the sources quoted therein).
- The
Government considered that the applicant had waived his right to an
oral hearing before the County Administrative Court since he had not
requested one before that instant. Moreover, they noted that the
Supreme Administrative Court only determined whether or not to grant
leave to appeal and, as a consequence of its refusal to do so, did
not make a full examination of the applicant’s case. The
applicant did, however, have an opportunity to finalise his
submissions. Therefore, the Government contended that the matter
could be adequately resolved on the basis of the case-file and the
written submissions and that, accordingly, the absence of an oral
hearing before the Supreme Administrative Court had been justified.
- Turning
to the proceedings before the Administrative Court of Appeal, the
Government noted that in the interest of the proper administration of
justice, it was normally more expedient to hold an oral hearing
before the first instance than before the appellate court. They
further stressed that the applicant had been given ample time to
supplement the appeal, which he had done, after the appellate court
had rejected the request to hold a hearing but before it refused
leave to appeal. Moreover, the court’s assessment was largely
based on written medical evidence which, in the Government’s
view, was rather technical in nature and therefore could be
adequately resolved on the basis of the case-file. In this regard,
they noted that the case-file contained all the material which had
accumulated during the proceedings, including from the Social
Insurance Office and the lower court as well before the
Administrative Court of Appeal itself. Thus, the Government contended
that it was obvious that the appellate court’s consideration of
the limited question of whether or not to grant leave to appeal could
be adequately resolved on the basis of the extensive written material
to which it had access.
- The
Government added that it was not reasonable to require that, in
circumstances such as those in the present case, the higher courts
had to hold an oral hearing on the specific question of whether leave
to appeal should be granted in order to comply with the requirement
of fairness in Article 6 of the Convention. This might result in an
individual intentionally refraining from requesting an oral hearing
at the first instance in order to request one on appeal, thereby
circumventing the system of leave to appeal. As concerned the present
case, they observed that the applicant had been represented by legal
counsel during the entire process, including before the Social
Insurance Office, for which reason it could not have been difficult
for him to submit in writing his arguments and the written evidence
that he wished to invoke. Consequently, the Government concluded that
it had been justified for the Administrative Court of Appeal not to
hold an oral hearing.
2. The Court’s assessment
- It
has not been argued, nor is there anything to suggest, that this case
relating to the applicant’s claim for life annuity under the
national social security scheme did not concern a dispute
(contestation) over a “right” which could be said,
on arguable grounds, to be recognised under domestic law. In
particular, it could not be said that the applicant’s claim was
frivolous or vexatious or otherwise lacking in foundation (see
Rolf Gustafson v. Sweden, 1 July 1997, § 39 in
fine, Reports of Judgments and Decisions 1997 IV).
Nor is it disputed, and the Court is satisfied, that the right in
question was “civil” in character in the autonomous sense
of Article 6 § 1 of the Convention (see, for example,
Duclos v. France, 17 December 1996, § 53, Reports
of Judgments and Decisions 1996 VI). This provision is
accordingly applicable; the only issue is whether there was a failure
to comply with it on account of the refusal to hold an oral hearing
in the case.
- The
Court reiterates that in proceedings before a court of first and only
instance the right to a “public hearing” under Article 6
§ 1 entails an entitlement to an “oral hearing”
unless there are exceptional circumstances that justify dispensing
with such a hearing (see, for instance, Fredin v. Sweden (no.
2), 23 February 1994, §§ 21–22, Series A no.
283 A; Fischer v. Austria, 26 April 1995, § 44,
Series A no. 312; Allan Jacobsson v. Sweden (no. 2), 19
February 1998, § 46, Reports of Judgments and Decisions
1998 I; Salomonsson v. Sweden, no. 38978/97, § 34,
12 November 2002; Lundevall, cited above; Döry v.
Sweden, no. 28394/95, § 37, 12 November 2002; Göç
v. Turkey [GC], no. 36590/97, §§ 47-52, ECHR
2002 V; and Vilho Eskelinen and Others v. Finland [GC],
no. 63235/00, § 73, ECHR 2007 IV).
- The
exceptional character of the circumstances that may justify
dispensing with an oral hearing essentially comes down to the nature
of the issues to be decided by the competent national court, not to
the frequency of such situations. It does not mean that refusing to
hold an oral hearing may be justified only in rare cases. For
example, the Court has recognised that disputes concerning benefits
under social security schemes are generally rather technical, often
involving numerous figures, and their outcome usually depends on the
written opinions given by medical doctors. Many such disputes may
accordingly be better dealt with in writing than in oral argument.
Moreover, it is understandable that in this sphere the national
authorities should have regard to the demands of efficiency and
economy. Systematically holding hearings could be an obstacle to the
particular diligence required in social-security cases (see
Schuler-Zgraggen v. Switzerland, 24 June 1993, § 58,
Series A no. 263; Salomonsson, cited above, § 38;
Lundevall, cited above, § 38; Döry, cited
above, § 41; and Fexler, cited above,
§ 57).
- The
Court further reiterates that, provided a public hearing has been
held at first instance, a less strict standard applies to the
appellate level, at which the absence of such a hearing may be
justified by the special features of the proceedings at issue. Thus,
leave-to-appeal proceedings and proceedings involving only questions
of law, as opposed to questions of fact, may comply with the
requirements of Article 6, although the appellant was not given the
opportunity to be heard in person by the appeal or cassation court.
Regard must be had to the nature of the national appeal system, to
the scope of the appellate court’s powers and to the manner in
which the applicant’s interests are actually presented and
protected in the appeal, particularly in the light of the nature of
the issues to be decided by it, and whether these raise any questions
of fact or questions of law which cannot be adequately resolved on
the basis of the case file (see for instance Helmers v. Sweden,
29 October 1991, § 36, Series A no. 212 A, and Fexler,
cited above, § 58).
- Turning
to the particular circumstances of the present case, the Court
observes from the outset that no oral hearing was held at any stage
of the domestic proceedings. It further notes that the applicant did
not request an oral hearing before the County Administrative Court.
As Section 9 of the 1971 Act provided that the proceedings before the
administrative courts were normally in writing the applicant, who was
represented by legal counsel, could have been expected to request an
oral hearing before that court if he attached importance to it.
However, he did not do so and the Court therefore finds that he can
reasonably be considered to have waived his right to an oral hearing
before the County Administrative Court.
- As
concerns the proceedings before the appellate courts, the Court notes
that the applicant did request an oral hearing before the
Administrative Court of Appeal, that he gave reasons for the request
and that he maintained this request, and the reasons, before the
Supreme Administrative Court. Still, both courts refused his request.
The Court therefore has to examine whether the refusal by the
appellate courts to hold a hearing was justified or not.
- In
this respect, the Court repeats that, provided a public hearing has
been held at first instance, a less strict standard applies to the
appellate level. According to the Court’s case-law, this less
strict standard should also apply if an oral hearing has been waived
at first instance and requested only on appeal. In the interests of
the proper administration of justice, it is normally more expedient
that a hearing be held at first instance rather than only before the
appellate court (see, among others, Miller v. Sweden,
no. 55853/00, §§ 29 30, 8 February 2005, and
Sali v. Sweden (dec.), no. 67070/01, 10 January 2006).
- The
Court further notes that in proceedings relating to social security
benefits, such as life annuity, the 1971 Act, compared to the 1976
Act provided that the appellate courts could only try an appeal on
its merits if they found reason to grant leave to appeal (see above §
21). Moreover, as noted by the Administrative Court of Appeal in its
decision of 7 February 2007 (see above, § 14) and by the Supreme
Administrative Court in its decision of 27 May 2008 (see above, §
17), leave to appeal could only be granted on certain specific
grounds. As both courts found that no such specific grounds were at
hand in the applicant’s case, they refused leave to appeal.
Consequently, they did not make a full examination of his case but
limited their consideration to the question of law of whether to
grant leave to appeal.
- The
Court also considers that it may well be expected that the
applicant’s legal counsel, who represented him throughout the
proceedings, was familiar with the provisions of the 1971 Act
concerning oral hearings and the requirement for leave to appeal
before the appellate courts, as well as with the practice of the
administrative courts in this regard.
- Having
regard to all of the above, the Court is satisfied that the question
of whether or not to grant leave to appeal could be adequately
resolved on the basis of the case-file and the written submissions,
and that, accordingly, the absence of an oral hearing before the
Administrative Court of Appeal and the Supreme Administrative Court
was justified and did not therefore amount to a violation of Article
6 § 1 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION AS REGARDS THE LENGTH OF THE PROCEEDINGS
- The
applicant also complained that the length of the proceedings had been
in breach of the “reasonable time” requirement laid down
in Article 6 § 1 of the Convention. It reads, in the relevant
parts, as follows:
“In the determination of his civil rights and
obligations ... everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal ...”
- The
Government rejected the allegation.
- The
administrative proceedings began on 6 May 2003 when the applicant
appealed against the Social Insurance Office’s decision to the
County Administrative Court and ended on 27 May 2007 with the
decision of the Supreme Administrative Court. They therefore lasted
just over five years for three levels of jurisdiction.
Admissibility
- The
Court observes from the outset that in relation to this complaint the
applicant has not requested compensation from the Chancellor of
Justice or sued the State for damages before the civil courts (see,
Eskilsson v. Sweden (dec.), no. 14628/08, 24 January
2012). Still, in any event, the Court finds that this complaint must
be rejected for the following reasons. It first notes that the County
Administrative Court gave judgment within a year from the time when
the applicant lodged his appeal and that it took just over a year
before the Supreme Administrative Court. These periods cannot be
considered excessive. As concerns the period before the
Administrative Court of Appeal, this lasted for almost three years.
However, there appear to have been no prolonged periods of inactivity
as the applicant submitted new medical certificates twice and also
requested an oral hearing and reiterated this request after it had
been rejected by the court. The Social Insurance Office was each time
given the opportunity to submit comments in reply to the applicant’s
submissions. Moreover, having regard to the fact that the life
annuity applied for was not the applicant’s sole income as he
had received early retirement pension since December 2001, the Court
finds that there is no due diligence requirement involved. In these
circumstances the length of just over five years for three levels of
jurisdiction cannot be considered as unreasonable.
- It
follows that this complaint is manifestly ill-founded and must be
rejected in accordance with Article 35 §§ 3 and 4 of the
Convention.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint concerning the lack of an
oral hearing admissible and the remainder of the application
inadmissible;
- Holds that there has been no violation of
Article 6 § 1 of the Convention.
Done in English, and notified in writing on 12 April 2012, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen Phillips Dean Spielmann Deputy Registrar President
