CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 31 août 2004

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Strážnická ,   Mr   J. Casadevall ,   Mr   R. Maruste ,   Mr   L. Garlicki ,   Mrs   E. Fura-Sandström ,   Ms   L. Mijović, judges , and Mr M. O’Boyle , Section Registrar , Having regard to the above application lodged on 22 September 1999, Having regard to the partial decision of 5 November 2002, 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, Ritva Toimi, is a Finnish national, who was born in 1938 and lives in Hälleforsnäs. She is represented before the Court by Mr   W.   Pietikäinen, Johanneshov, and Mr P.   Stadig, a lawyer practising in Stockholm. The respondent Government are represented by Ms E. Jagander, 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 moved from Finland to Sweden in 1987. In 1990 she was granted a pension from the Swedish State in addition to the pension she already received from the Finnish State, in accordance with the Nordic Convention on Social Security ( Nordiska konventionen om social trygghet ) of 1981. On 10 February 1995 the Social Insurance Office ( försäkringskassan ) of the County of Stockholm, after having recalculated the applicant’s pension in accordance with the new Nordic Convention on Social Security of 1992, decided that she was entitled to a Swedish pension of 3,754 Swedish kronor (SEK) per month. As from 1996 the applicant was attached to the Social Insurance Office of the County of Södermanland, in Flen. Apparently, in August 1997 the entry in the computerised pension register concerning her pension was changed so that, as from September 1997, she received a monthly pension of SEK 776 from Sweden. The applicant received a notice that the amount had been deposited on her bank account from the office in Flen. The deposit notice also indicated that if she considered it to be incorrect she could ask the office to correct it within two months. Later investigations revealed that the entry in the pension register had been made by the Stockholm office. The applicant’s case file, however, disappeared. The applicant did not receive a decision concerning the reduction of her pension. Nevertheless, on 29 October 1997 counsel for the applicant sent a letter to the National Social Insurance Board ( Riksförsäkringsverket ) demanding the revocation of the social-insurance office’s decision and the establishment of her right to an unchanged pension. On 13 November 1997 the Board forwarded this letter to the Flen office. On 30 October 1997 the applicant herself sent a letter to the Stockholm office, in which she complained that her pension had been reduced by more than SEK 3,000 without any decision in the matter having been taken and that “she appealed against the enclosures”. The enclosed document was the decision of 10   February 1995. Following an internal inquiry regarding which office was to deal with the case, the case was, on 10 February 1998, sent to the Stockholm office. This office later asked the applicant to send all the decisions she had received in order to establish what had happened in the case. Apart from this and attempts to locate the case file, the offices did not take any further action. The applicant lodged a complaint against the Stockholm office with the Parliamentary Ombudsman ( Justitieombudsmannen ). She stated, inter alia , that the office had failed to take a decision in the matter against which she could appeal. By a decision of 28 May 1998 the Ombudsman found no reason to take any action in the matter. It noted that the decision of 10 May 1995 had contained directions on how to appeal and that letters sent by the applicant in 1997 and 1998 had been answered, albeit somewhat belatedly, by the Stockholm office. The applicant’s later remark that she was not dissatisfied with the 1995 decision but complained about the reduction of her pension as from September 1997 did not cause the Ombudsman to take any further action. On 23 June 1998 the applicant complained to the Chancellor of Justice ( Justitiekanslern ). She claimed that, despite her efforts, no action had been taken in her case by the authorities and that her possibility to appeal had thereby been blocked. She demanded that the pension fixed before the reduction be paid to her with interest retroactively from September 1997. She also requested damages for physical and mental suffering. The Chancellor of Justice requested the National Social Insurance Board ( Riksförsäkringsverket ) to give its opinion in the matter. The Board in turn asked the social-insurance offices concerned to comment. When an official at the Stockholm office examined the case in August 1998 in order to reply to the Board, it became clear to the office that the applicant was actually complaining against the pension reduction of September 1997. In its opinion, submitted to the Chancellor of Justice on 7 October 1998, the National Social Insurance Board acknowledged that there had been deficiencies in the handling of the applicant’s case by the two social-insurance offices which could involve a liability to damages under the Tort Liability Act ( Skadeståndslagen , 1972:207). However, the Board considered that the claim for damages relating to the applicant’s contention that she was not receiving the pension to which she was entitled could not be examined until there was a decision by a social-insurance office or a judgment by a court in the matter which had gained legal force. The Board further expressed the opinion that the applicant was not entitled to non-pecuniary damages under the applicable law. In 1999 the applicant reported officials at the Flen office for breach of duty and theft. The public prosecutor decided not to investigate the matter and the applicant’s appeals – eventually to the Prosecutor-General – were to no avail. By a decision of 9 May 2000 the Chancellor of Justice severely criticised the two social-insurance offices for their handling of the applicant’s case. He noted that, as the case file had gone missing, it was not possible to clarify who had decided in 1997 to reduce her pension or on which basis the decision had been taken. Although the applicant’s letters to the offices had to be seen as appeals or requests for review, no re-examination of the decision had been made. Noting that, due to the offices’ handling of the case, the applicant had been deprived of her right to appeal, the Chancellor found it highly remarkable that the offices had not yet taken any action to make possible a review of the decision. He concluded that the offices could not escape severe criticism for that lack of action. However, the Chancellor came to the same conclusion as the National Social Insurance Board and stated that, lacking a final determination of the applicant’s pension, there was no basis on which to assess whether the 1997 decision was incorrect and had led to pecuniary damage for the applicant in that she had received too small a pension. The Chancellor therefore refused to determine the claim for pecuniary damages. He also agreed with the Board as regards the claim for non-pecuniary damages. In this respect, he stated that compensation for non-pecuniary damage could be awarded under the Tort Liability Act only under certain circumstances, one of which was that suffering had been induced through certain crimes against the individual’s personal integrity. The circumstances of the applicant’s case were thus not such as to constitute a liability for the responsible authorities to pay damages for mental suffering. Nor had it been shown that the applicant had suffered any physical injury. On 23 August 2000 the Stockholm office produced a decision replacing the missing decision from September 1997. It noted that the pension decision of 10 February 1995 had been incorrect and that there were thus reasons to review it under chapter 20, section 10   a of the Social Insurance Act ( Lagen om allmän försäkring, 1962:381). Having regard to the provisions of the Nordic Convention on Social Security and the pension the applicant received from Finland, the office found that the applicant was entitled to a Swedish pension of SEK 776. Attached to the decision were directions on how to appeal. The applicant appealed to the County Administrative Court ( länsrätten ) of the County of Stockholm. Following an oral hearing on 10 May 2001, the court rejected the appeal by a judgment of 30 May 2001. It noted that the Swedish pension the applicant had been receiving since 1990 was incorrect as proper account had not been taken of her Finnish pension. The mistake had been discovered and corrected in September 1997, until which date the applicant had received about SEK 200,000 more in pension than she had been entitled to. The court found that there had been a legal basis for the correction under the Social Insurance Act and that there were no exceptional reasons not to reduce the applicant’s pension. On 24 October 2001 and 17 September 2003, respectively, the Administrative Court of Appeal ( kammarrätten ) in Stockholm and the Supreme Administrative Court ( Regeringsrätten ) refused the applicant leave to appeal. B.     Relevant domestic law and practice 1.     The procedure in pension cases The social-insurance office is responsible for decisions about and disbursement of pensions. If the office learns that a decision, which it has made itself and which has not been examined by a court, is incorrect in any significant way, the office shall change it of its own accord under chapter 20, section 10   a of the Social Insurance Act. An earlier decision by the office may, however, not be changed to the detriment of the insured person if there are extraordinary reasons against such a measure. Moreover, unless there are extraordinary reasons for such a measure, the issue of a change of an earlier decision may not be dealt with by the office at all if more than two years have passed since the date when the decision was issued. Appeals against a decision by a social-insurance office may be made to the County Administrative Court and, subject to leave to appeal being granted, the Administrative Court of Appeal and the Supreme Administrative Court. 2.     The Parliamentary Ombudsmen The functions and powers of the Parliamentary Ombudsmen are laid down in particular in chapter 12, section 6 of the Instrument of Government ( Regeringsformen ) and in the Act with Instructions for the Parliamentary Ombudsmen ( Lagen med instruktion för justitieombudsmännen , 1986:765). The main task of the four Parliamentary Ombudsmen is to supervise the application, within the public administration, of laws and other regulations. Both the social-insurance offices and the courts and their activities come under the supervision of the Ombudsmen. An Ombudsman exercises supervision either in response to a complaint from an individual or on his own initiative by carrying out inspections and other investigations which he deems necessary. The examination of a matter is concluded by a decision in which the Ombudsman states his opinion on whether the measure contravenes the law or is otherwise wrongful or inappropriate. The Ombudsman may also make pronouncements aimed at promoting a consistent and proper application of the law. An Ombudsman’s decisions are considered to be expressions of his own personal opinion. They are not legally binding upon the authorities. However, they command great respect and are adhered to in practice. An Ombudsman may institute criminal proceedings against an official who has committed an offence by departing from the obligations incumbent upon him in his official duties (for example, misuse of office). He may also report an official for disciplinary measures to those who have the competence to decide on such measures. He may be present at the deliberations of the courts and administrative authorities and is entitled to have access to their minutes and other documents. 3.     The Chancellor of Justice The functions and powers of the Chancellor of Justice are set out in the Act on Supervision by the Chancellor of Justice ( Lagen om justitiekanslerns tillsyn , 1975:1339) and in the Ordinance with Instructions for the Chancellor of Justice ( Förordningen med instruktion för justitiekanslern , 1975:1345). The Chancellor is appointed by the Government and is subordinate to the Government. However, pursuant to chapter 11, section 7 of the Instrument of Government, he is, like other authorities subordinate to the Government, entirely independent of all public authorities, including the Government, when making a decision in a particular case. The duties of the Chancellor of Justice include supervising the public authorities and their officials in order to ensure that they exercise their powers in accordance with the applicable laws and regulations and fulfil their obligations in all other respects. In this capacity, he often receives and examines complaints from individuals. The Chancellor has no power to alter a decision taken by a public authority but he is free to make statements about actions that he deems to be contrary to the law or inappropriate. He may also institute criminal proceedings against public servants if there is any suspicion of breach of duty and he may report them for disciplinary measures in case of neglect of duty. He has the right to attend all deliberations held by courts and administrative authorities and he is entitled to have access to minutes and other documents. As with the Parliamentary Ombudsmen, the decisions of the Chancellor of Justice command great respect and are adhered to in practice. COMPLAINTS 1.     The applicant claims that she has been denied effective access to a court as, for three years, she was not given a decision on the reduction of her pension against which she could appeal. She also complains about the length of the proceedings. She relies on Article 6 § 1 of the Convention. 2.     The applicant further complains that she unsuccessfully approached several public authorities about the handling of her case, including the Parliamentary Ombudsman, the Chancellor of Justice, the National Social Insurance Board, the police and the public prosecutor. She contends that she did not have an effective remedy under Article 13 of the Convention. THE LAW A.     The complaints under Article 6 § 1 of the Convention The applicant complains she did not have effective access to a court and that the length of the proceedings was excessive. She relies on Article 6 § 1 of the Convention which, in relevant parts, provides the following: “In the determination of his civil rights and obligations ..., everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. ...” 1.     Applicability of Article 6 § 1 of the Convention The Court, noting that the respondent Government acknowledge that the proceedings in question involved the determination of the applicant’s civil rights within the meaning of Article 6 § 1 of the Convention, finds that this provision is applicable in the instant case. 2.     Effective access to a court The Government submit that when the Social Insurance Office in Stockholm received the applicant’s letter of 30 October 1997, it unsuccessfully attempted to locate her file. Since, in her letter, she had “appealed against the enclosures”, i.e. the decision of 10 February 1995, the office understood her complaint to mean that she was dissatisfied with that decision. It was not until August 1998 that it became clear to the office that she was dissatisfied with the decision to reduce her pension as from September 1997. After the criticism of the Chancellor of Justice, a formal notification of the decision to reduce the applicant’s pension was issued which was later forwarded to the County Administrative Court. The Government further state that, although the applicant had not received the actual decision to reduce her pension and thus did not know on what grounds she could contest it and although she had not been informed about how to appeal, the possibility to appeal under the Social Insurance Act covers not only decisions in a formal sense, but every measure taken by a social-insurance office with respect to an insured person’s benefits is considered to constitute a decision by the office. Also, as indicated by the deposit notice of September 1997, the applicant could have asked for a correction of her pension whereupon the office would have been required to review the amount that had been disbursed to her. Its decision in this regard would have been subject to appeal to the County Administrative Court. The fact that the applicant’s complaint was not treated as a request for correction was due to a number of unfortunate circumstances. On the whole, the Government leave it to the Court to decide whether the applicant had an effective access to a court for the determination of her pension. The applicant maintains her complaints and emphasises that, before the reconstruction of her file, she did not receive any decision against which she could appeal. The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established. 3.     Length of the proceedings The Government submit that the period to be taken into consideration began on 29 October 1997 when the National Social Insurance Board received the request to annul the decision of the Social Insurance Office. They note that, at the time of submitting their observations, the proceedings before the Supreme Administrative Court were still pending. As regards the complexity of the case, the Government contend that the matter was of greater complexity than is usual in a case concerning a pension. The fact that the Social Insurance Office miscalculated the applicant’s pension in the decisions taken in 1990 and on 10 February 1995 indicates that the matter was not a simple one. The Government further submit that some delays in the proceedings must be attributed to the applicant herself and point out, inter alia , the following. The letter of 29 October 1997 was addressed to the National Social Insurance Board whereas it should have been sent to the competent social-insurance office. Moreover, the letter did not clearly state what the complaint referred to. Likewise, the letter of 30 October 1997 was addressed to the Stockholm office which at the time was not responsible for the applicant. Its wording further made that office believe that her complaint concerned the decision of 10 February 1995. On 15 April 1998 the applicant submitted copies of the deposit notice of September 1997 for the first time. The Government maintain that a certain protraction of the proceedings before the Social Insurance Office must be deemed to have been justified considering the particular circumstances of the applicant’s case. Even so, they admit that the time that elapsed from 29   October 1997 until the office issued its decision of 23 August 2000 and forwarded the complaint to the County Administrative Court was somewhat excessive. With respect to the court proceedings, the Government contend that the three court instances dealt with the case within a reasonable time. As regards the Supreme Administrative Court they submit that, since that court is the final instance with the role of developing case-law, complainants cannot usually expect their cases to be handled with the same promptness as before the lower instances. The Government further maintain that, even if the case was not of little importance to the applicant, she did receive a pension from Finland and a certain amount from Sweden every month. The dispute was therefore not of such a nature that special expedition was required. On the whole, the Government leave it to the Court to establish whether the applicant’s claim concerning her pension was determined within a reasonable time within the meaning of Article 6 § 1 of the Convention. The applicant maintains her complaints. The Court agrees with the Government regarding the period to be taken into consideration in assessing the reasonableness of the length of the proceedings. Thus, the period in question started on 29 October   1997 when counsel for the applicant sent a letter to the National Social Insurance Board and ended on 17 September 2003 when the Supreme Administrative Court refused leave to appeal. It thus lasted approximately five years and ten and a half months. The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established. B.     The complaint under Article 13 of the Convention The applicant complains under Article 13 of the Convention that she did not have an effective remedy for her complaints about the handling of her case. Article 13 reads as follows: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” The Government contest this. Firstly, they argue that Article 13 of the Convention cannot be read as requiring the provision of an effective remedy that would enable an individual to complain about the absence in domestic law of access to a court as secured by Article 6 § 1 of the Convention. Secondly, in regard to the issue of the length of the proceedings, the Government contend that two effective remedies were available to the applicant, as she could complain to the Parliamentary Ombudsman and the Chancellor of Justice. The fact that the complaint to the Parliamentary Ombudsman did not result in any relief does not imply that the remedy as such is ineffective. Further, the Chancellor of Justice’s inspection of the relevant social-insurance offices’ handling of the applicant’s case resulted in very serious criticism on his part. This criticism, expressed in the decision of 9 May 2000, almost immediately led to a measure being taken by the Stockholm office – the decision of 23 August 2000. In the Government’s opinion, this remedy must be considered to meet the standards of “effectiveness” for the purposes of Article 13 of the Convention, since it did expedite the handling of the applicant’s case. In addition, the Chancellor’s decision actually led to the institution of proceedings before the County Administrative Court. The Government therefore maintain that the applicant had domestic remedies at her disposal for her complaint under Article 6 § 1 of the Convention concerning the length of the domestic proceedings and that these remedies satisfied the requirements of Article 13 of the Convention. The applicant maintains her complaint. The Court first reiterates its conclusion in the Kudła case that “Article 13 cannot be read as requiring the provision of an effective remedy that would enable the individual to complain about the absence in domestic law of access to a court as secured by Article 6 § 1” ( Kudła v. Poland [GC], judgment of 26 October 2000, Reports of Judgments and Decisions 2000-XI, p. 236, § 151). It finds that this principle applies to the applicant’s complaint in the present case that she did not have effective access to a court. What remains to be determined is whether the applicant had an effective remedy to which she could complain about the length of the proceedings in her case. Whereas the scope of the Contracting States’ obligations under Article 13 varies depending on the nature of the applicant’s complaint, the remedy required by Article 13 must be “effective” in practice as well as in law. The “effectiveness” of a “remedy” within the meaning of Article 13 does not depend on the certainty of a favourable outcome for the applicant. Nor does the “authority” referred to in that provision necessarily have to be a judicial authority; but if it is not, its powers and the guarantees which it affords are relevant in determining whether the remedy before it is effective. Also, even if a single remedy does not by itself entirely satisfy the requirements of Article 13, the aggregate of remedies provided for under domestic law may do so. The Court has to determine whether the means available to the applicant in Swedish law for raising a complaint about the length of the proceedings in her case were “effective” in the sense either of preventing the alleged violation or its continuation, or of providing adequate redress for any violation that had already occurred (see the above-mentioned Kudła v. Poland judgment, pp. 239-240, §§ 157-158). Noting that the Parliamentary Ombudsman, by its decision of 28 May 1998, found no reason to take any action in the applicant’s case and that, in any event, the powers of and the guarantees afforded by the Parliamentary Ombudsman and the Chancellor of Justice are very similar, the Court concludes that, in assessing whether an effective remedy was available to the applicant in regard to her complaint about the length of the proceedings, the action taken by the Chancellor of Justice in his decision of 9 May 2000 and its significance and effect are of crucial importance. The Court first reiterates that the statutory duties of the Chancellor of Justice include the supervision of the public authorities and their officials and that, in the exercise of that power, he may issue statements about actions that he deems to be contrary to applicable laws and regulations or in breach of the authorities’ and their officials’ obligations in other respects. He may also institute criminal proceedings against public servants if there is any suspicion of breach of duty and he may report them for disciplinary measures in case of neglect of duty. Whereas the Chancellor has no power to alter a decision taken by a public authority, his decisions nevertheless command great respect and are adhered to in practice. The Court further notes that, in the present case, the Chancellor of Justice, in his decision of 9 May 2000, severely criticised the two social-insurance offices for their handling of the applicant’s case. Noting, inter alia , that, due to the offices’ handling of the case, the applicant had been deprived of her right to appeal, the Chancellor found it highly remarkable that the offices had not yet, at the time of his decision, taken any action to make possible a review of the decision. In the Court’s view, the Chancellor’s severe criticism of that lack of action necessarily involved a condemnation of the time that had passed in the applicant’s case. Shortly following the Chancellor’s decision the Social Insurance Office in Stockholm, on 23 August 2000, issued a decision replacing the missing decision from September 1997. The Court therefore concludes that, in practice, the Chancellor’s decision resulted in effective proceedings being resumed in regard to the requests made by the applicant’s counsel on 29   October 1997. Without prejudice to the question of the general effectiveness of a complaint to the Chancellor of Justice, the Court notes that the action taken by the Chancellor resulted in a favourable outcome for the applicant. Consequently, in the particular circumstances of the case, the applicant must be considered to have had an effective remedy for the purposes of Article 13 of the Convention for her complaints about the handling of her 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 pursuant to Article 35 § 4 of the Convention. For these reasons, the Court unanimously Declares admissible, without prejudging the merits, the applicant’s complaints under Article 6 § 1 concerning the effective access to a court and the length of the proceedings; Declares the remainder of the application inadmissible.   Michael O’Boyle   Nicolas Bratza   Registrar   President