CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 26 août 2003

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Pellonpää ,   Mr   M. Fischbach ,   Mr   J. Casadevall ,   Mr   S. Pavlovschi ,   Mr   J. Borrego Borrego ,   Mrs   E. Fura-Sandström, judges , and   Mr   M. O’Boyle , Section Registrar , Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant, Having deliberated, decides as follows:   THE FACTS The applicant, Mr Pentti Pitkänen, is a Swedish national, who was born in 1934 and lives in Haninge. He is represented before the Court by Mr   W.   Pietikäinen, who lives in Johanneshov. The respondent Government are represented by their Agent Mrs Inger Kalmerborn, Ministry for Foreign Affairs. A.     The circumstances of the case The facts of the case, as submitted by the parties, may be summarised as follows. The applicant worked as a refrigerator erector for many years. In October   1992 while welding he was exposed to phosgene as a result of a Freon leakage. Two weeks later he caught pneumonia. Having recovered therefrom, as from mid-November 1992 he suffered from headache, dizziness, fatigue and hypersensitivity in his left hand. On 23   June 1993 claiming that he had been exposed to an on-the-job injury the applicant requested that the Social Insurance Office in Stockholm (Försäkringskassan, Stockholms Län ) pay him compensation and a life annuity ( ersättning och livränta). The applicant’s medical records, a medical opinion of 28   May   1993 by a doctor at a clinic specialising in occupational medicine, and a statement of 16   October 1996 by the doctor attached to the Social Insurance Office in order to assist with medical matters, were submitted. Both doctors stated that a causal connection between the Freon leakage incident and the symptoms that the applicant later experienced was improbable. It appears that the applicant and his counsel attended a consultation with the Social Insurance Office. On 14   January 1997 the Social Insurance Office found against the applicant. On appeal to the County Administrative Court in Stockholm (Länsrätten   i Stockholm), the applicant, represented by counsel, requested that an oral hearing be held and that a witness on his behalf, a former refrigerator erector, be heard. He did not specify which issues he wanted to hear the witness about, except the fact “refrigerator erectors do not live long”. By decision of 31   January   1997 the court refused to hold an oral hearing since on the material before it such was found clearly unnecessary. The court indicated that the invoked witness could not contribute to the elucidation of the question whether there was a causal link between the applicant’s exposure to phosgene and his health problems, and held that the available written evidence was sufficient for a proper assessment of the applicant’s case. The applicant was given an opportunity to submit his final observation in the case no later than 3 March 1997. On 6 February 1997 the applicant submitted his final observations, which included a fresh request that the witness be heard at an oral hearing in that   “the best knowledge of industrial injuries comes from the workplace”. His request was refused on 19   February   1997 by the court, which on the same date delivered its judgment confirming the Social Insurance Office’s decision in the light of the material submitted i.e. the evidence which had also been submitted before the Social Insurance Office. Like the Social Insurance Office, the court did not question that the applicant had been exposed to phosgene, but found that no causal link existed between the exposure and the applicant’s medical problems. The applicant requested leave to appeal and an oral hearing in the leave ‑ to-appeal proceedings, including an examination of his witness. By decision of 27   May 1998 the Administrative Court of Appeal (Kammarrätten i Stockholm) stated as follows: ”The proceedings before the Administrative Court of Appeal are written. According to Section 9 of the Administrative Court Procedure Act (förvaltningsprocesslagen) the proceedings may include an oral hearing with regard to a particular issue when there is reason to assume that holding a hearing would be to the advantage of the proceedings or further the speedy determination of the case. An oral hearing shall take place at the request of an individual party to the case if such a hearing is necessary and there are no particular reasons against holding a hearing. Having regard to the nature of the case and the evidence submitted, the Administrative Court of Appeal finds that an oral hearing and a hearing of the witness is unnecessary, and thus refuses the [applicant’s]   request...” The applicant was given an opportunity to conclude his claim in writing and by decision of 28   January 1999 the Administrative Court of Appeal refused the applicant’s request for leave to appeal. On 18   February 1999 the applicant submitted his request for leave to appeal to the Supreme Administrative Court (Regeringsrätten ) before which he reiterated his request for an oral hearing and an examination of his witness. On 19   April 1999 the Supreme Administrative Court informed the applicant that oral hearings are not normally hold before it. Furthermore, the court invited the applicant to submit his final observations in the case within three weeks. By decision of 22   July 1999 the Supreme Administrative Court refused the applicant’s request for leave to appeal.   B.     Relevant domestic law A.     Industrial Injury Insurance All gainfully employed persons working in Sweden are insured against industrial injuries in accordance with the Act on Industrial Injury Insurance ( lagen om arbetsskadeförsäkring, 1976:380 ; hereinafter “the 1976 Act”). The term industrial injury refers mainly to injuries that result from accidents or other harmful effects at a person’s place of work. Pursuant to chapter 8, section 1 of the 1976 Act, an industrial injury shall immediately be reported to the employer, who shall report it to the Social Insurance Office. The office shall obtain a medical opinion concerning the injury. A physician shall be attached to the office in order to assist it in medical matters (the insurance doctor). The assessment of whether an injury qualifies as an industrial injury, as well as 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 doctor’s assessment of those opinions and any other information pertaining to the matter. For an injury to be qualified as an industrial injury a causal link must be established between the accident or the harmful effect in the workplace and the insured persons’ health problems. At the relevant time, the question of whether a particular injury or illness incurred by the insured was to be regarded as an industrial injury was subject to a rule of evidence relieving the insured person of the burden of proof. If it was clear that the insured person had suffered an accident or had been subjected to some other harmful effect at work, his or her medical problems were presumed to have been caused by the accident or the harmful effect unless there were much stronger grounds for a conclusion to the contrary (chapter 2, section 2 of the 1976 Act in its wording before 1 January 1993, which applied to injuries having occurred before that date and which had been reported to the Social Insurance Office by 30 June 1993 at the latest).     B.     Procedure The procedure in the administrative courts is governed by the provisions of the Administrative Court Procedure Act ( förvaltningsprocesslagen , lag 1971:291 - hereinafter “the 1971 Act”). Section 9 provides: “The proceedings are in writing. An oral hearing may be held in regard to a certain issue, when there is reason to assume that that would be to the benefit of the proceedings or the speedy determination of the case. 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. According to the preparatory documents to the 1971 Act, an oral hearing can be a valuable complement to the written proceedings and may benefit the examination of a case in two situations in particular: firstly, when it is necessary to hear a witness, an expert or a party or when it is difficult for a party to present the case in writing and, secondly, when different positions in the case need to be sorted out in order to eliminate unnecessary or pointless issues of dispute. In the latter case, the oral hearing takes on a preparatory character. It was stressed, however, that an oral hearing should not be seen as an alternative to the written procedure but as a complement to it (see Government Bill 1971:30, p. 535). It was further stated, in respect of the third paragraph of section 9, that a party’s request for an oral hearing should be given great consideration. However, such a request should not have a decisive influence on the matter, as the question whether an oral hearing is necessary is to be determined primarily on the basis of the available information in the case. Still, other circumstances may be of relevance, for instance the importance for the party of the matter at stake or the possibility that an oral hearing could enhance the party’s understanding of a future decision in the case. Nevertheless, if the case is of a trivial character or the costs of an oral hearing would be disproportionate to the values at stake in the case, there could be reason not to hold an oral hearing (p. 537). COMPLAINTS I.     The applicant complained that the lack of an oral hearing before the courts constituted a violation of Article 6 § 1 of the Convention. II.     Moreover, he complained under the same provision that he was denied an examination of a witness on his behalf. III.     Finally, he complained under Articles 6 § 1, 13 and 14 of the Convention that the court proceedings were partial and unlawful, notably it appears, since the courts did not require a statement from a medico-legal expert included amongst the experts appointed by the Ministry of Justice. THE LAW I.     The applicant complained that the lack of an oral hearing before the courts fell foul of Article 6 § 1 of the Convention, the relevant parts of which reads as follows: “In the determination of his civil rights and obligations ..., everyone is entitled to a fair and public hearing ... by [a] ... tribunal...” The Government contended that Article 6 § 1 of the Convention was applicable to the proceedings before the Country Administrative Court as opposed to the proceedings before the Administrative Court of Appeal and the Supreme Administrative Court, since the decision whether or not to grant the applicant leave to appeal did not involve a determination of his civil rights within the said Article. In the Government’s view there existed circumstances in the case that justified dispensing with an oral hearing, and the County Administrative Court’s decisions on this procedural matter had been fully in line with domestic law. In this respect they submitted inter alia that the disputed matter concerned the isolated question whether there was a causal link between the exposure to phosgene and the health problems the applicant suffered. In order to establish whether such a link existed the County Administrative Court, possessing no medical expertise , had to rely on the assessment made by medical experts. There was no indication that the applicant had wished to give evidence himself. Also, taking into consideration that the County Administrative Court did not question the fact that the applicant had been exposed to phosgene, there was no indication that the invoked witness, with no medical competence, could have added anything of relevance to the proceedings. Thus, the available written evidence were sufficient for a proper assessment of the applicant’s case and an oral hearing would not have provided the court with any additional information that could have been of importance for its adjudication. Moreover, the applicant had been assisted by counsel apparently familiar with the subject-matter and he could thus not be considered to have had difficulties in arguing his case in writing. Finally, the Government recalls the principle of public access to official documents, which Sweden subscribes to.   The applicant disagrees. The Court observes that the applicability of Article 6 § 1 of the Convention to the proceedings before the County Administrative Court is not in dispute, and the Court see no reason to find otherwise. As to the remainder of the proceedings, the Court recalls its finding in Blom   v.   Sweden (dec.), no. 28338/95, 14 March 2000, as to the inapplicability of Article 6   § 1 to proceedings before the Supreme Social Insurance Court, which concerned the sole question whether or not to grant leave to appeal.   Nevertheless, noting that in the present case as a result of the refusal of leave to appeal by the Administrative Court of Appeal and the Supreme Administrative Court, the County Administrative Court became the only court to examine the merits of the applicant’s case, the Court will proceed on the assumption that Article 6 § 1 of the Convention applies to the proceedings as a whole.   The Court recalls that the entitlement to a “public hearing” in Article   6   §   1 necessarily implies a right to an “oral hearing”, notably in proceedings before a court of first and only instance. However, the obligation under Article 6 § 1 to hold a public hearing is not an absolute one. Thus, a hearing may be dispensed with if a party unequivocally waives his or her right thereto and there are no questions of public interest making a hearing necessary. A waiver can be done explicitly or tacitly, in the latter case for example by refraining from submitting or maintaining a request for a hearing (see, among other authorities, Håkansson and Sturesson v. Sweden , judgment of 21 February 1990, Series A no. 171-A, p.   20, §§ 64 and 66; and Schuler-Zgraggen v. Switzerland , judgment of 24 June 1993, Series A no. 263, pp. 19-20, §   58). Furthermore, a hearing may not be necessary due to exceptional circumstances of the case, for example when it raises no questions of fact or law which cannot be adequately resolved on the basis of the case-file and the parties’ written observations (see inter alia   Salomonsson v. Sweden, no. 38978/97, § 34, 12 November 2002, unreported; Lundevall v. Sweden, no. 38629/97, § 34, 12 November 2002, unreported; Döry v. Sweden, no. 28394/95, § 37, unreported; and mutatis mutandis , Fredin v. Sweden (no.   2), judgment of 23 February 1994, Series A no. 283-A, pp.   10 ‑ 11, §§   21-22; and Fischer v. Austria , judgment of 26 April 1995, Series A no.   312, pp.   20 ‑ 21, § 44). In the present case the applicant specifically requested an oral hearing both before the County Administrative Court, the Administrative Court of Appeal and the Supreme Administrative Court. Thus no question arises as to whether or not the applicant has waived his right thereto. It remains to be examined whether the circumstance of the applicant’s case were such as to justify the absence of an oral hearing. The disputed matter before the County Administrative Court concerned the question whether there was a causal link between the applicant’s exposure to phosgene and the health problems he suffered, and accordingly whether the applicant was entitled to compensation and a life annuity. At no time was it in dispute that the applicant had been exposed to phosgene. The Court recalls its recognition that disputes concerning benefits under social ‑ security schemes are generally rather technical 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 , judgment cited above, pp. 19-20, § 58,   the above mentioned Salomonsson v. Sweden, § 38, Lundevall v. Sweden, § 38 and Döry   v.   Sweden § 41). The court notes that before it the County Administrative Court had the applicant’s medical records, and medical opinions from two doctors, one being specialist in occupational medicine, the other being the doctor attached to the Social Insurance Office in order to assist with medical matters. Both stated that a causal connection between the Freon leakage incident and the symptoms that the applicant later experienced was improbable. The applicant, who was represented by counsel throughout the whole proceedings, did not invoke any witnesses with medical competence, nor did he submit that the court require a statement from a medico-legal expert included amongst the experts appointed by the Ministry of Justice. Also, there was no indication that the applicant wished to give evidence himself, or that he found that the court would benefit from meeting him in person. In fact, the only reason submitted for his request for an oral hearing was his wish to hear a former refrigerator erector as a witness. He did not specify which issues he wanted to hear the witness about, but noted that “refrigerator erectors do not live long”. In these circumstances, the Court finds that the applicant’s submissions to the County Administrative Court were not capable of raising any issues of fact or of law, pertaining to the determination of whether there was a causal link between the applicant’s exposure to phosgene and the health problems he suffered, which were of such a nature as to require an oral hearing for their disposition (see among others Döry v. Sweden , cited above, § 43; Allan Jacobsson v. Sweden (No. 2), cited above, § 49; and Strömblad v. Sweden (dec.), no 45935/99, 11 February 2003). In this assessment the Court also take into consideration that the County Administrative Court in its decision of 31   January 1997 rejecting the applicant’s requests for an oral hearing, invited him to submit final observations in writing, which he did, and finally, that the public had access to the case-file. Moreover, the Administrative Court of Appeal and the Supreme Administrative Court only determined whether or not leave to appeal should be granted and, as a consequence of their refusal to grant leave, did not make a full examination of the applicant’s case. Even assuming that Article   6 § 1 applies to the determination of this question, the Court finds that it 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. Consequently, the Court finds that there were circumstances, which justified dispensing with a hearing in the applicant’s case. It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected in accordance with Article 35 § 4.   II.     With regard to the complaint that the applicant was denied an examination of a witness on his behalf the Courts reiterates that the right to a fair hearing entails, in both civil and criminal proceedings, that everyone who is a party to such proceedings shall have reasonable opportunity of presenting their case to the court under conditions which do not place him or her at a substantial disadvantage vis-à-vis his or her opponent, the essential aim being an equality of arms in the proceedings (see, among other authorities, Dombo Beheer B.V. v. the Netherlands judgment of 27   October   1993, Series   A   no.   274, p. 19, § 33; Ankerl v. Switzerland judgment of 23   October   1996 , Reports of Judgments and Decisions 1996-V, pp.   1567 ‑ 68, § 38 and the Nideröst-Huber v. Switzerland judgment of 18   February   1997, Reports 1997-I, p. 107, § 23). In the present case on 31   January   1997 the County Administrative Court refused the applicant’s request that a former refrigerator erector be heard as witness on his behalf since on the material before it, this witness could not contribute to the elucidation of the question whether there was a causal link between the applicant’s exposure to phosgene and his health problems. The said witness obviously had no medical expertise. Thereafter, the applicant was given an opportunity to submit his final observation in writing. Referring to its finding above, the Court finds no elements which would suggest that the County Administrative Court went beyond its discretion to proceed with the case without a hearing of the said witness or that the applicant thereby was placed at a disadvantage vis-à-vis his opponent to such an extent that the proceedings were at variance with Article 6 § 1 of the Convention. Moreover, again referring to the court’s finding above, and still proceeding on the assumption that Article 6 § 1 applies to the determination of the question whether or not to grant leave to appeal, the Court finds that this issue could be adequately resolved on the basis of the case file and the written submissions and that, accordingly, neither the Administrative Court of Appeal nor the Supreme Administrative Court went beyond its discretion to proceed with the case without a hearing of the said witness and that the applicant was not placed at a disadvantage vis-à-vis his opponent to such an extent that the proceedings were at variance with Article 6 § 1 of the Convention. It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected pursuant to Article 35 § 4. III.     As to remainder of the applicant’s complaints the Court recalls that under the notion of Article 35   § 1 of the Convention, it may only deal with a matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law. This condition is not met by the mere fact that an applicant has submitted his or her case to the various competent courts. It is also necessary for the complaint brought before the Court to have been raised by the applicant, at least in substance, during the proceedings in question. On this point the Court refers to its established case-law. In the present case the Court finds that in the proceedings before Swedish courts the applicant failed to raise either in form or in substance the complaint that is made to the Court. It follows that this part of the application is inadmissible for non ‑ exhaustion of domestic remedies within the meaning of Article   35   §   1   of the Convention and must be rejected pursuant to Article   35   §   4. For these reasons, the Court unanimously Declares the   application inadmissible.   Michael O’Boyle   Nicolas Bratza   Registrar   President [Note1]   Judges names are to be followed by a COMMA and a MANUAL LINE BREAK (Shift+Enter). Please remove any extra paragraph return(s). (There is to be no extra space between the judges’ names and that of the Registrar.)