CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 14 juin 2007

.s800EAC49 { font-size:12pt } .s523616E0 { margin-top:0pt; margin-bottom:12pt; text-align:center; font-size:14pt } .sBB9EE52A { font-family:Arial } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sB9D5CABB { width:28.35pt; display:inline-block } .s61ED8A2B { width:14.36pt; display:inline-block } .s61E420C2 { font-family:Arial; font-variant:small-caps } .sA36B60A1 { font-family:Arial; font-style:italic } .s84D0D60A { width:8.36pt; display:inline-block } .s967D43C6 { margin-top:36pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s7EE1C8F0 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .sC702907E { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s9DAED311 { width:4.99pt; text-indent:0pt; display:inline-block } .s434D37A9 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s58B8AE49 { clear:both; mso-column-break-before:always } .s9D48DD53 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .sB8084949 { width:138.49pt; display:inline-block } .s88A92475 { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .sDD165512 { margin-top:12pt; margin-left:14.2pt; margin-bottom:0pt; text-align:justify } .s7CB9076 { margin-top:36pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid } .s943B079B { width:33.54pt; display:inline-block } .s6C8459D4 { width:166.76pt; display:inline-block } .sA2E62387 { width:204.97pt; display:inline-block } THIRD SECTION DECISION AS TO THE ADMISSIBILITY OF Application no. 18724/05 by Marie STEÉN against Sweden The European Court of Human Rights (Third Section), sitting on 14   June   2007 as a Chamber composed of:   Mr   B.M. Zupančič , President ,   Mr   C. Bîrsan ,   Mrs   E. Fura-Sandström ,   Mrs   A. Gyulumyan ,   Mr   E. Myjer ,   Mr   David Thór Björgvinsson ,   Mrs   I. Berro-Lefèvre, judges , and Mr S. N aismith , Section Registrar , Having regard to the above application lodged on 9 May 2005, Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together, 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, Ms Marie Steén, is a Swedish national who was born in 1957 and lives in Stockholm. She was represented before the Court by Mr   U. Jacobson, a lawyer practising in Stockholm. The Swedish Government (“the Government”) were represented by their Agent, Mr B. Sjöberg of the 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 suffers from Crohn’s disease (a disease marked by chronic inflammation of the colon).   On 23 February 1983 the Social Insurance Office ( Försäkringskassan ) in Jönköping granted her disability benefits ( handikappersättning ) at the level of 32% of the basic amount geared to the price index ( basbeloppet ) as from August 1982. On 18 November 1988 it decided to increase the benefits to the level of 50% as from November 1987 because of her extra costs incurred as a result of the disease.   In September 1998 the applicant applied for an increase of the disability benefits, as she claimed that her costs had increased further, inter alia , she had to follow a special diet, was dependent on medication and had extra expenses to be able to work. On 20 April 1999 the Social Insurance Office granted the applicant an increase, to the level of 69% of the basic amount, as from October 1998. It noted that she had substantial extra costs due to her disease but that she did not have any need for assistance in her daily life. The applicant appealed to the County Administrative Court ( länsrätten ) of the County of Jönköping, demanding that the increase be paid retroactively as from August 1996. In a judgment of 22 October 1999, the court granted the appeal. In the meantime, on 16 October 1999, the applicant requested the Social Insurance Office, under Chapter 20 section 10 (a) of the Social Insurance Act ( Lagen om allmän försäkring , 1962:381 – hereinafter “the 1962 Act”), to change its decision of 18 November 1988, and to grant her disability benefits at the level of 65% of the basic amount retroactively from November 1987. She claimed that the original decision had been incorrect as all her extra costs had not been taken into account at the time. On 10 December 1999 an official at the Social Insurance Office made a re-assessment of the decision of 18 November 1988, in accordance with the relevant provision of the 1962 Act, and decided to reject the request on the grounds that that decision had not been made on obviously incorrect or incomplete material. In this respect, the official noted that the Office had accepted all the extra costs, as specified by the applicant at the time, except certain reductions for food expenses. The applicant appealed to the County Administrative Court, complaining that the Social Insurance Office’s decision should have been made by its board and not by a single official, for which reason the case should be returned to the Office for reconsideration by the board. In the alternative, she maintained her claim that she should granted disability benefits at the level of 65% of the basic amount retroactively from November 1987. The Social Insurance Office submitted that its decision had been duly made, as a decision for re-assessment under Chapter 20 section 10 (a) of the 1962 Act could be made by a single official. It referred to both a judgment by the Supreme Social Insurance Court (ref. FÖD 1991:26) and a general opinion ( allmänna råd 1998:14 ) issued by the National Social Insurance Board ( Riksförsäkringsverket ). Following further submissions from the parties in which the applicant continued to question the legality of the Social Insurance Office’s decision and whether it had at all tried the case on the merits, the County Administrative Court, on 24 March 2000, sent her a letter ( underrättelse ), inter alia , informing her that it appeared from the Office’s decision that it had tried her request on the merits according to Chapter 20 section 10 (a) of the 1962 Act and that the decision had been made by an official at the Office who was competent to make such a decision. The court further gave the applicant four weeks in which to finalise her submissions. In a letter of 30 March 2000, the applicant maintained her claims and added that she requested that an oral hearing be held in the case. She wished for the court to take appropriate measures to clarify how the Social Insurance Office had dealt with her case and, once she had received that information, she would consider whether she wanted to hear someone from the National Social Insurance Board before the court. The parties made further submissions, in which the applicant maintained her request for an oral hearing and added that she wished for the official who had made the decision at the Social Insurance Office and a named person at the National Social Insurance Board to be heard in order to establish whether the Office’s decision had been duly taken. In response to the applicant’s requests, the County Administrative Court, in September 2000, decided to ask the National Social Insurance Board to submit its opinion on the matter based on the applicant’s submissions. The Board delivered its opinion to the court in November 2000, and a supplementary opinion in February 2001. In these opinions, the Board agreed with the Social Insurance Office, with reference to its general opinions and to case-law, that the decision had been taken according to law. The applicant still maintained her request for an oral hearing in order to clarify whether the Social Insurance Office’s decision had been taken in due order. On 19 February 2001 the County Administrative Court invited the applicant to make her concluding submissions in the case and, on 22   February 2001, the applicant submitted that she maintained her claims and request for an oral hearing. On 22 August 2001 the County Administrative Court rejected the appeal as well as the applicant’s request for an oral hearing. It found that the official at the Social Insurance Office had been competent to take the decision and, consequently, it was unnecessary to hold an oral hearing. Moreover, the court noted that, although Article 6 of the Convention included a right to an oral hearing, this right was not absolute. Thus, since the object of the hearing in the present case would only have concerned a procedural matter, it was not in conflict with the Convention to reject the request. In any event, it noted that the circumstances of the case were clear and that the decision from 1988 had not been obviously incorrect or incomplete. On 26 September 2001 the applicant appealed to the Administrative Court of Appeal ( kammarrätten ) in Jönköping, relying on the same grounds as before the lower court, and developing her reasons further. Moreover, she complained that the County Administrative Court had not held an oral hearing in the case which was in breach of her rights under Article 6 of the Convention. In a further submission, received by the court on 15 November 2002, the applicant demanded that the Administrative Court of Appeal hold a hearing to clarify the contentious issues. The official at the Social Insurance Office should be heard about whether the case had been examined in substance and the Director-General of the National Social Insurance Board should be questioned about the Board’s position on decision-making competences, in general, at the Social Insurance Office. The parties made further submissions to the Administrative Court of Appeal and, on 19 February 2003, it rejected the applicant’s request for an oral hearing as it considered that it was not necessary in order to decide whether or not to grant leave to appeal. The applicant was given three weeks to submit supplementary written pleadings, which she did. On 14 April 2003 the Administrative Court of Appeal refused leave to appeal as it found no reasons to change the lower court’s judgment. The applicant appealed against the decision to the Supreme Administrative Court ( Regeringsrätten ), maintaining her claims and adding that the lower courts had violated Article 6 of the Convention by not granting her an oral hearing. She also requested that the Supreme Administrative Court hold an oral hearing if it granted her leave to appeal. On 28 February 2005, the Supreme Administrative Court refused leave to appeal. B.     Relevant domestic law and practice 1.     Disability benefits According to Chapter 9, section 2, of the 1962 Act (as in force until 1   January 2001, when the 1998 Act on Disability Benefits and Care Allowance - lagen (1998:703) om handikappersättning och vårdbidrag – entered into force), a person who was ill or handicapped was entitled to disability benefits, provided that, before reaching the age of 65, he or she had been functionally impaired for a considerable time and to such a degree that he or she needed time-consuming assistance from another person in everyday life or continuing assistance in order to be gainfully employed or otherwise had considerable extra expenses. The total need for support and assistance determined the eligibility for disability benefits and the amount of compensation. It was thus necessary to look at the whole situation of the person in question and to add together the need for different types of assistance and the extra expenses. According to the guidelines of the National Social Insurance Board the total cost of all extra needs due to the disability should attain at least 28.5% of a basic amount geared to the price index in order to make the individual eligible for an allowance. In 1983, when the applicant was first granted the benefit, the basic amount was SEK 19,400 and, in 1999 when she was granted increased benefits, the basic amount was SEK 36,400. According to Chapter 9, section 3, of the 1962 Act, as in force before 1   January 2001, such benefits were granted on a yearly basis at a level of 69%, 53% or 36% of the basic amount, depending on the extent to which the insured person was in need of assistance and the amount of extra expenses caused by the disability. Before 1 January 1991 the levels were 65%, 50% or 34% of the basic amount. 2.   Procedure A decision by the Social Insurance Office under the 1962 Act may be appealed against to the County Administrative Court and from there on to the Administrative Court of Appeal and to the Supreme Administrative Court. Appeals may be made against the Office’s ordinary decisions or a decision upon review under Chapter 20, section 10 (a), of the 1962 Act. The latter provision enables the Social Insurance Office to change a decision it has previously taken in order to rectify certain obvious defects of that decision, provided that it has not already been reviewed by a court. Thus, the Office must change its earlier decision if it contains a writing error, miscalculation or similar mistake or if it is incorrect due to it being based on obviously incorrect or incomplete information or an obviously incorrect application of the law or other similar reason. The question of changing a decision under section 10 (a) should, in principle, be raised within two years from the day the decision was taken. However, it may nevertheless be changed if it appears only after the elapse of this two-year period that it was based on obviously incorrect or incomplete material or if there are other exceptional reasons. A decision is to be changed under this provision even if a request to that effect has not been made by the individual concerned. The procedure in the administrative courts is governed by the provisions of the Administrative Court Procedure Act ( Förvaltningsprocesslagen , 1971:291 – hereinafter “the 1971 Act”). Section 9 provides: “The proceedings shall be in writing. An oral hearing may be held in regard to a certain issue, when there is reason to assume that that would assist in the proceedings or be conductive to 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 and if it is not unnecessary and there are no 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. From the case-law of the national courts, it appears that the grounds stated in the third paragraph of section 9 for refusing an oral hearing have been interpreted as being alternative rather than cumulative (see Regeringsrättens Årsbok 1997 ref 62). According to the preparatory work to the 1971 Act, an oral hearing could be a valuable complement to the written proceedings and could benefit the examination of a case, in particular in two situations: firstly, when it was necessary to hear a witness, an expert or a party or when it was difficult for a party to present the case in writing and, secondly, when different positions in the case needed 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 to be seen as an alternative to the written procedure but as a supplement 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 close consideration. However, such a request should not have a decisive influence on the matter, as the question whether an oral hearing was necessary was to be determined primarily on the basis of the available information in the case. However, other circumstances could 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 was of a trivial character or the costs of an oral hearing would be disproportionate to the value of what was at stake in the case, there could be reason not to hold an oral hearing (p. 537). In recent years, it appears from the case law of the Supreme Administrative Court that it has set aside a number of decisions on appeal and granted leave to appeal in the administrative courts of appeal because an oral hearing has been denied in the lower courts (see, inter alia , Regeringsrättens Årsbok 2002 ref 23, Regeringsrättens Årsbok 2003 note   68, and Regeringsrättens Årsbok 2004 note 65). COMPLAINTS   The applicant complained that her rights under Article 6 § 1 of the Convention had been violated in that she was refused an oral hearing before the national courts. Moreover, she claimed that the national courts had failed to consider her request for re-assessment of the Social Insurance Office’s decision of 1988 on the merits, thereby denying her proper access to court. THE LAW 1. The applicant complained that the lack of an oral hearing in her case constituted a violation of Article 6 § 1 of the Convention which, in so far as relevant, reads: “In the determination of his civil rights and obligations ..., everyone is entitled to a fair and public hearing ... by [a] ... tribunal...” The Government submitted that this complaint should be declared inadmissible as being manifestly ill-founded. They noted that the first and only court to have examined the case in substance was the County Administrative Court as neither of the appellate courts granted leave to appeal. However, in their view, the County Administrative Court had been justified to dispense with an oral hearing in the present case since it would essentially have concerned a procedural issue, namely, whether the Social Insurance Office’s decision had been taken in due order. In this respect, they observed that the applicant had not requested the oral hearing be held for the purposes of bringing additional medical evidence in the case or to examine the applicant personally about her situation or other matters. Instead, she had focused on having the decision-making official at the Social Insurance Office and a representative of the National Social Insurance Board heard for the primary purpose of clarification of procedure and decision-making powers at the Office. The Government contended that these issues had been examined by the courts, which was manifest from the fact that the County Administrative Court had obtained opinions from the National Social Insurance Board on the matter, as well as on other matters, as requested by the applicant. The Government further pointed out that the Social Insurance Office and the County Administrative Court unanimously had found that there were no reasons, under Chapter 20 section 10 (a) of the 1962 Act, to revise the Office’s previous decision from 1988 and that, subsequently, the appellate courts had refused leave to appeal in the case. Thus, they concluded that since it had not come to light that the purpose of the oral hearing would have been to supplement material for assessing the applicant’s situation by means of further medical investigation or personal examination of the applicant, the refusal to hold an oral hearing before the County Administrative Court had been justified and could not be considered as a violation of Article 6 § 1 of the Convention. The applicant maintained her claims. In her opinion there had been no exceptional circumstances that justified the County Administrative Court’s refusal to hold an oral hearing. This was in particular so, since the appellate courts refused leave to appeal and the lower court thus became the only court to examine the case on the merits. Moreover, she contended that the issue of what extra costs she had had as from November 1987 was not clear cut. Some of the issues, that she had wanted to ask the decision-maker at the Office about, were about the scope of the investigation and the need for support which that person had considered to exist in the case as well as whether all of the applicant’s extra expenses had been taken into account in the re-assessment of the decision of November 1988. Thus, the hearing of this person had been essential in order to clarify the matter of the case before the County Administrative Court. The applicant insisted that her case before the national courts had raised issues of both fact and law which could not be determined solely on the basis of written information. She further added that an oral hearing would have enabled the court to put supplementary questions to the decision-maker at the Office and to the applicant herself concerning her extra expenses as from November 1987. Accordingly, the applicant considered that there had been a violation of her rights under Article 6 § 1 of the Convention. 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), judgment of 23 February 1994, Series A no. 283-A, pp.   10 ‑ 11, §§ 21–22; Fischer v. Austria , judgment of 26 April 1995, Series A no. 312, pp. 20–21, § 44; Lundevall v. Sweden, no.   38629/97, § 34, 12   November 2002; Döry v. Sweden, no.   28394/95, § 37, 12 November 2002; Göç   v. Turkey [GC], no. 36590/97, §§ 47-52, ECHR 2002-V; and Miller v. Sweden , no.   55853/00, §   29, 8 February 2005). 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, § 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, mutatis mutandis , Fredin v. Sweden (no.   2), cited above, §§   21-22; Fischer v. Austria , cited above, § 44; and Salomonsson v. Sweden , no.   38978/97, §   34, 12 November 2002). In the present case, the Court observes from the outset that there can be no question of the applicant having waived any right to a hearing under Article 6 § 1 of the Convention. The applicant expressly requested an oral hearing at what, in the Court’s view, was the most appropriate stage of the proceedings - at first instance before the County Administrative Court. The applicant also maintained her request for an oral hearing before the appellate courts. However, since both the Administrative Court of Appeal and the Supreme Administrative Court refused leave to appeal, they did not make a full examination of the applicant’s case. In the Court’s view, the question of leave to appeal could be adequately resolved on the basis of the case file and the written submissions and, accordingly, the absence of an oral hearing before the appellate courts was justified. Hence, it remains for the Court to determine whether the County Administrative Court’s refusal to hold an oral hearing was justified by exceptional circumstances, keeping in mind that it was the first and only instance to examine the merits of the applicant’s case. In this respect, the Court reiterates that 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 and that 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 the following judgments cited above: Schuler-Zgraggen pp. 19-20, § 58; Salomonsson , §   38; Döry , §   41; and Miller , § 29). The applicant’s appeal against the Social Insurance Office’s decision to the County Administrative Court primarily concerned whether the Office’s decision had been taken in due order. In the alternative, the applicant stated that she maintained that she should be granted disability benefits at the level of 65% of the basic amount retroactively from November 1987 as the original decision in 1988 had been incorrect. The Court observes that the applicant’s submissions to the first instance court focused on the legality of the Office’s decision and that the Office replied to this issue, referring both to case-law of the Supreme Social Insurance Court and to a general opinion issued by the National Social Insurance Board. Following submissions by both parties to the County Administrative Court, the court sent the applicant a letter informing her that it appeared from the Office’s decision that it had tried her case on the merits and that it had been taken by a competent official. At this point it also gave the applicant four weeks to finalise her submissions. The Court notes that it was first after this letter from the first instance court that the applicant requested that an oral hearing be held in case in order to clarify how the Office had dealt with her case. For this purpose she wished for the official who had made the decision at the Office to be heard as well as a person from the National Social Insurance Board. Thus, it seems apparent to the Court that the applicant’s sole interest in holding a hearing was to discuss the legality of the Office’s decision. In this connection, the Court observes that the County Administrative Court requested the National Social Insurance Board to submit its opinion on the matter based on the applicant’s submissions in order to meet her demands for clarifications. Furthermore, the Court has regard to the fact that the case concerned whether a decision taken by the Social Insurance Office in 1988, more than ten years earlier, had been obviously incorrect or incomplete and therefore should be reconsidered. According to the applicant, the original decision had been incorrect as all her extra costs had not been taken into account at the time. Still, the applicant, who was represented by a lawyer throughout the proceedings, at no point requested that a doctor, or other specialist, should be heard at the hearing about her illness, her necessary extra costs and need for assistance nor that she, herself, should give evidence before the court about her situation as from November 1987. The Court considers that this reinforces the stance that the sole purpose of the hearing was to discuss a procedural issue and not an issue of fact or of law to clarify her substantive claim. It further observes that both the Office and the County Administrative Court found that the circumstances of the case were clear and that there were no indications that the office’s decision from 1988 had been obviously incorrect or incomplete. In any event, the Court is of the opinion that the applicant, to substantiate that the original decision had been obviously incorrect or incomplete, most easily could have submitted bills, medical certificates and other documents to show which extra costs she had had in 1988 and which had not been taken into account at the time. A hearing, more than ten years later, would not have added much to clarify this matter. Having regard to all of the above, the Court finds that there were exceptional circumstances which justified dispensing with a hearing in the applicant’s case. It follows that this complaint is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected in accordance with Article 35 § 4. 2. The applicant also complained under Article 6 § 1 that the national courts had failed to carry out an examination on the merits of her request for re-assessment of the Social Insurance Office’s decision of 1988. The Court finds that this complaint is unsubstantiated as it is clear that the County Administrative Court carried out a full examination of the applicant’s appeal to it, including an evaluation of all the evidence presented to it by the parties, before rejecting it. It follows that this part of the application is also manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention. In view of the above, it is appropriate to discontinue the application of Article   29 § 3 of the Convention and to reject the application. For these reasons, the Court unanimously Declares the application inadmissible.   Stanley Naismith   Boštjan M. Zupančič Deputy Registrar   President