CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 21 mai 2013

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Zupančič,   Ann Power-Forde,   André Potocki,   Paul Lemmens, judges,   Johan Hirschfeldt, ad hoc judge, and Claudia Westerdiek, Section Registrar, Having regard to the above application lodged on 3 February 2010, Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant, Having regard to the decision taken by the President of the Chamber to appoint Mr Johan Hirschfeldt to sit as ad hoc judge (Article 26 § 4 of the Convention and Rule 29 § 1 of the Rules of Court), as Mrs Helena Jäderblom, the judge elected in respect of Sweden, had withdrawn from the case (Rule 28 of the Rules of Court), Having deliberated, decides as follows: THE FACTS 1.     The applicant, Mr Krzysztof Ruminski, is a Swedish national who was born in 1950 and lives in Jordbro. He was represented before the Court by Mr I. Vita, a lawyer practising in Stockholm. The Swedish Government (“the Government”) were represented by their Agent, Ms H. Lindquist, of the Ministry for Foreign Affairs A.     The circumstances of the case 2.     The facts of the case, as submitted by the parties, may be summarised as follows. 3.     The applicant suffered for many years from, inter alia , pain in his back and legs and numbness in his right arm. He was granted a full disability pension in 2002, after the diagnosis of lumbago, sciatica and myositis. 4.     In 2004 he applied for life annuity and alleged that his physical problems had been caused by his former employment as a driver (1973 to 1974), as a dairy worker (1974 to 1984) and as a food science technician (1984 to 1991). The Social Insurance Office ( Försäkringskassan , hereinafter “the Office”) appointed an in-house specialist in orthopaedic surgery who, in a written statement, concluded that there was not a high degree of probability ( hög grad av sannolikhet ) that any harmful element in the applicant’s former employment had caused his problems. 5.     On 17 May 2005, after having held an oral hearing, the Office rejected the application. Referring to, inter alia , the specialist statement by the insurance doctor, the Office held that the applicant had not been subject to any harmful influences which, with a high degree of probability, could have caused or worsened his problems. 6.     The applicant appealed to the County Administrative Court ( länsrätten ) of Stockholm. On 19 April 2007 the court, after having held an oral hearing, upheld the Office’s decision in full. 7.     Upon further appeal to the Administrative Court of Appeal ( kammarrätten ) of Stockholm, the applicant submitted, inter alia , a medical statement ( epikris ) issued in February 2008 by the Centre of Public Health, division of labour and environmental medicine ( Centrum for folkhälsa, Arbets- och miljömedicin ). According to the medical statement, there were reasons to believe that the applicant’s work had caused his problems. The applicant requested that an oral hearing be held by the Administrative Court of Appeal before it decided whether to grant leave to appeal as well as before it decided on the merits of the case. He also requested expert witnesses to be heard before the court. 8.     In a written statement to the appellate court, the Office questioned the conclusions in the medical statement and, furthermore, referred to medical records from 1997, in which the applicant was held to be fully able-bodied and in which it was noted that no somatic evidence had been found in support of the applicant’s symptoms. 9.     On 2 October 2007 the Administrative Court of Appeal decided not to hold an oral hearing prior to deciding on the question of leave to appeal. It referred to the circumstances of the case and the fact that the County Administrative Court had held an oral hearing. The applicant was given the opportunity to submit further observations. It is unclear whether he did so. 10.     On 17 March 2008, the Administrative Court of Appeal granted leave to appeal. Subsequently, on 5 September 2008 it decided not to hold an oral hearing before deciding on the merits of the case. It referred to the nature of the case and to the fact that an oral hearing had been held before the County Administrative Court. The applicant was given the opportunity to submit further observations. It is again unclear whether he took advantage of this opportunity. 11.     In a judgment on 27 October 2008, the Administrative Court of Appeal upheld the lower court’s judgment in full, giving the following reasons: “The medical and other evidence in the case does not support that the applicant has been exposed to any such harmful influences in his work which could, with a high degree of probability, have caused his problems. His problems can thus – as has been found also by the Office and the County Administrative Court – not be defined as a work-related injury.” 12.     The applicant appealed to the Supreme Administrative Court ( Högsta förvaltningsdomstolen ). He complained about the lack of reasoning in the Administrative Court of Appeal’s judgment and argued that that court’s refusal to hold an oral hearing had infringed his right to a fair trial within the meaning of Article 6 of the Convention. If the Supreme Administrative Court were to grant leave to appeal, he requested an oral hearing. 13.     On 4 August 2009, the Supreme Administrative Court refused leave to appeal. B.     Relevant domestic law and practice 1.     Civil liability of the State 14.     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 or negligence. 15.     An individual who wants to claim compensation from the State may proceed in either of two ways: he or she may 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 later to 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]). 16.     According to section 2 of the Limitations Act ( Preskriptionslagen , 1981:130), the period of limitation in respect of claims against the State is ten years from the point in time when the claim arose, unless the period has been interrupted beforehand. 2.     Compensation for violations of the Convention (a)     Case-law developments 17.     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. 18.     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. 19.     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, the 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. 20.     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). 21.     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. 22.     Furthermore, on 16 June 2010 (NJA 2010 p. 363), the Supreme Court ordered compensation for non-pecuniary damage to be paid to an applicant for proceedings which had complied neither with the “reasonable time” requirement in Article 6 § 1 nor with the right to an effective remedy in Article 13. The proceedings in question had concerned a claim for damages against the State. 23.     In two judgments of 11 April 2012 (T 5858-10 and T 3470-10), the Supreme Court ordered compensation to be paid to an applicant for civil proceedings (first case) and administrative proceedings (second case) which had not complied with the “reasonable time” requirement in Article 6 § 1 of the Convention. 24.     In a judgment of 21 December 2012 (B 1982-11), the Supreme Court reduced the sentence to be served by the defendant in a case where criminal proceedings had not complied with the “reasonable time” requirement in Article 6 § 1 of the Convention. 25.     Lastly, in a judgment on the same day (T 5644-11), the Supreme Court ordered compensation for non-pecuniary damage to be paid to an applicant for criminal proceedings which had not complied with the “reasonable time” requirement in Article 6 § 1 of the Convention. (b)     Other developments 26.     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. 27.     In its comments of 7 July 2011 on the above report, the Office of the Chancellor of Justice 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 1,650 and EUR 3,500). 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. 28.     There continue to be other individual cases relating to alleged violations of Articles 5, 7 and 13 of the Convention, among others. For example, in a decision of 8 February 2012 ( dnr 2453-11-40 ), the Chancellor of Justice held that the reasoning in a District Court’s judgment failed to fulfil the requirements set by Article 6 of the Convention. Referring to the case-law of the Supreme Court, the Chancellor of Justice stated that the applicant therefore could be awarded compensation for the damage caused by the violation of the Convention. However, due to the particular circumstances of that case, the applicant was not granted compensation. Furthermore, in a decision of 27 November 2012 ( dnr 4560-12-40 ), the Chancellor of Justice found that a County Administrative Court, in dismissing the applicant’s appeal against a decision by the Employment Service ( Arbetsförmedlingen ), had violated his right to access to court (the Chancellor referred to the case of Mendel v. Sweden , no. 28426/06, 7 April 2009). Consequently, the applicant was awarded damages. COMPLAINTS 29.     The applicant complained under Article 6 § 1 of the Convention that the proceedings had not been fair. In particular, he complained that: (i)             the decision to refuse him life annuity had been based on an incorrect statement written by the Office’s in-house physician; (ii)           he had been denied an oral hearing before the Administrative Court of Appeal with the result that the Office’s in-house physician was never heard in person and could not be questioned; and (iii)         the judgment of the Administrative Court of Appeal was not reasoned and thus did not mention the new evidence presented by the applicant. THE LAW 30.     The applicant invoked Article 6 § 1 of the Convention, which reads as follows: “In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”. 31.     The Government argued that domestic remedies had not been exhausted since the applicant still had the possibility to turn to the domestic courts or the Chancellor of Justice and claim compensation for the alleged breaches of Article 6 of the Convention. In the Government’s opinion, the case-law of the Swedish Supreme Court and the practice of the Chancellor of Justice as regards compensation for violations of the Convention constituted a domestic remedy that was available to the applicant for the purposes of Article 35 § 1 of the Convention at the time when the application was lodged with the Court. 32.     The applicant disagreed and maintained that he had exhausted all domestic remedies required of him. He argued in particular that the appropriate redress in the present case would be a re-hearing, redress impossible to achieve before the domestic courts. 33.     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 (see, Selmouni v. France [GC], no. 25803/94, § 74, ECHR 1999-V, with further references). 34.     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, and McFarlane v. Ireland [GC], no. 31333/06, § 107, 10 September 2010). 35.     In the present case, the applicant relied, inter alia , on the Convention before the Supreme Administrative Court and argued that the Administrative Court of Appeal’s lack of reasoning and refusal to hold an oral hearing had infringed his right to a fair trial within the meaning of Article 6 of the Convention. He thus did what was required of him in order to afford the national authorities the opportunity to remedy the violations alleged by him. 36.     The Government claimed, however, that the applicant had failed to avail himself of remedies capable of affording him sufficient redress in the form of compensation for the alleged violations, since he could turn to the Chancellor of Justice or the ordinary courts. In this respect, the Court notes its finding in the case of Eriksson v. Sweden (no. 60437/08, § 52, 12 April 2012) namely that: “... [T]he 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.” 37.     Thus, in its judgment of 12 April 2012, the Court considered that there existed an effective remedy in Sweden that was capable of affording redress in respect of alleged violations of the Convention. The Court sees no reason to come to a different conclusion now, only one year later. This is in particular so having regard to the continued development of the domestic case-law before the Supreme Court and the practice of the Chancellor of Justice in matters related to alleged violations of the Convention (see above under domestic law). Consequently, as also noted in Eriksson , potential applicants may, as a general rule, be expected to lodge a domestic claim to seek compensation for alleged breaches of the Convention before applying to the Court. 38.     Noting that applicants can either lodge a complaint with the Chancellor of Justice or sue the State before the ordinary courts, the Court would clarify that if more than one potentially effective remedy is available, an applicant is only required to have used one remedy of his or her own choice (see, amongst other authorities, T.W. v. Malta [GC], no. 25644/94, §   34, 29 April 1999, and Karakó v. Hungary , no. 39311/05, § 14, 28 April 2009). Consequently, applicants may choose which of the two avenues available in Sweden to take. 39.     Turning to the case before it, the Court can find no ground to depart from the general rule set out above. On the contrary, the Court notes that the applicant complains about issues under Article 6 of the Convention, a provision which has been the subject of several Supreme Court cases, and that the Chancellor of Justice has already dealt with the specific question of lack of reasoning in judgments. Thus, there is no reason to believe that the ordinary courts or the Chancellor of Justice, for some exceptional reason, would refuse to consider the alleged violations invoked in the present case. 40.     The applicant’s contention that the only appropriate redress would be a rehearing of his case is not shared by the Court. It is clear from its case ‑ law that it accepts compensation as suitable redress (see, among others, Scordino v. Italy (no. 1) [GC], no. 36813/97, §§ 143-144, ECHR 2006 ‑ V, concerning compensation for length of proceedings; Demopoulos and Others v. Turkey (dec.) [GC], nos. 46113/99, 3843/02, 13751/02, 13466/03, 10200/04, 14163/04, 19993/04 and 21819/04, §§ 87-129, ECHR 2010, relating to compensation for interference with property rights; Nagovitsyn and Nalgiyev v. Russia (dec.), nos. 27451/09 and 60650/09, §§ 29-30, 23   September 2010, concerning compensation for failure to execute domestic judgments; and Łatak v. Poland (dec.), no. 52070/08, §81, 12   October 2010, concerning compensation for prison overcrowding). 41.     Having said 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 the Court (see, for example, Brusco v. Italy (dec.), no. 69789/01, ECHR 2001 ‑ IX, and Andrei Georgiev v. Bulgaria , no.   61507/00, § 78, 26 July 2007). Hence, the further question arises, of whether there was a domestic remedy available to the applicant at the time when the application was lodged with the Court on 3 February 2010. 42.     Here, the Court returns to its findings in Eriksson (cited above, §   50): “... [T]he 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 [3] 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. ” 43.     Furthermore, the Court notes that the existence of mere doubts as to the prospects of success of a particular remedy which is not obviously futile is not a valid reason for failing to exhaust domestic remedies (see, Giacometti and Others v. Italy (dec.), no. 34939/97, ECHR 2001 ‑ XII, and Michalak v. Poland , no. 16864/02, § 35, 18 September 2007). 44.     In the light of the above, the Court is satisfied that, following the Supreme Court’s judgment of 3 December 2009, the existence of a domestic remedy for claims for compensation relating to alleged violations of the Convention must be considered sufficiently clear. Thus, since the applicant lodged his application with the Court on 3 February 2010, two months after the Supreme Court’s judgment, there was an effective remedy available in Sweden at that time. 45.     The Court also observes that the proceedings about which the applicant is complaining were terminated on 4 August 2009. That is the date on which the alleged violations of Article 6 of the Convention must be considered to have occurred, in the sense of section 2 of the Limitations Act. Consequently, the applicant still has the possibility to claim compensation from the Swedish State in relation to the alleged damage. 46.     It follows from the above that the Government’s objection must be accepted and the application be declared inadmissible for non ‑ exhaustion of domestic remedies within the meaning of Article 35 §§ 1 and 4 of the Convention. For these reasons, the Court unanimously Declares the application inadmissible.   Claudia Westerdiek   Mark Villiger   Registrar   President