Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 26909/95

by Peter Andreas and

Monika Kristina TENNENBAUM

against Sweden

The European Commission of Human Rights (Second Chamber) sitting

in private on 3 December 1997, the following members being present:

Mrs G.H. THUNE, President

MM J.-C. GEUS

G. JÖRUNDSSON

A. GÖZÜBÜYÜK

J.-C. SOYER

H. DANELIUS

F. MARTINEZ

M.A. NOWICKI

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

P. LORENZEN

E. BIELIUNAS

E.A. ALKEMA

A. ARABADJIEV

Ms M.-T. SCHOEPFER, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 28 December 1994

by Peter Andreas and Monika Kristina Tennenbaum against Sweden and

registered on 29 March 1995 under file No. 26909/95;

Having regard to the reports provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having regard to the observations submitted by the respondent

Government on 22 October 1996 and the observations in reply submitted

by the applicants on 27 January 1997;

Having deliberated;

Decides as follows:

THE FACTS

The applicants, Swedish citizens born in 1948 and 1945

respectively, reside in Malmö.

The facts of the case, as submitted by the parties, may be

summarised as follows.

a. The particular circumstances of the case

On 27 August 1991 the applicants applied to the Central Social

Council (Socialnämnden, Centrumbyrån; hereinafter "the Council") of

Malmö for social welfare assistance. They requested that the Council

provide them with a place to live and grant them an allowance for their

living expenses.

The same day the Council rejected the applicants' request for an

allowance. Temporary accommodation was, however, arranged for them at

the Salvation Army's hostel in Malmö during the period 27 August -

16 September 1991. The Council stated that, due to the applicants'

behaviour at the places where they had previously been accommodated,

the hostel was the only available alternative. The assistance was

given under Section 6 of the Social Services Act (Socialtjänstlagen,

1980:620).

On 20 September 1991 the applicants appealed against the decision

in so far as it concerned the housing to the County Administrative

Court (länsrätten) of the County of Malmöhus. They claimed that they

should be given an allowance to cover the cost of staying at Hotel

Alexandra in Malmö from 27 August until either the Council had provided

them with permanent housing or the court had examined the case.

By judgment of 20 November 1991, the County Administrative Court,

noting that its examination was limited to the period referred to in

the Council's decision, rejected the appeal. It found that the

applicants, on 27 August, had been in urgent need of a place to live

after they had left their previous housing and that, in these

circumstances, the arrangements made by the Council were satisfactory,

although the hostel was not suitable for permanent housing purposes.

On 3 January 1992 the applicants appealed to the Administrative

Court of Appeal (kammarrätten) in Gothenburg. By judgment of

20 January 1992, the appellate court upheld the County Administrative

Court's judgment.

On 4 February 1992 the applicants lodged an appeal with the

Supreme Administrative Court (Regeringsrätten). They wished to have

confirmed that they had been entitled to hotel accommodation during the

period in question. They did not claim any compensation, however.

On 25 August 1992 the Supreme Administrative Court directed the

Council to submit an opinion in the case. On 6 October the Council

submitted its opinion to the court, which forwarded it two days later

to the applicants. The applicants then submitted comments on 20 and

28 October. On the latter date they also informed the court of their

post office box address in Malmö.

On 15 December 1992 the Supreme Administrative Court granted the

applicants leave to appeal. At the same time it directed the National

Board of Health and Welfare (Socialstyrelsen; hereinafter "the Board")

to submit an opinion in the case no later than 15 February 1993, a

time-limit later extended until 15 March 1993.

Between December 1992 and December 1993 the applicants were

living in a flat in Malmö provided by the Council. The applicants

allege that they were unable to receive mail at home, as their flat was

situated in a neighbourhood populated by Moslem refugees from the

Middle East and the applicants, therefore, could not put their Jewish

surname on the door. Furthermore, they could no longer afford to pay

for their post office box. The applicants allege that they informed

the Supreme Administrative Court, by letter and by telephone, of their

problems and asked the court to correspond with them via the Council.

The respondent Government state, however, that there is no notation in

the court's case-file of a request for correspondence via the Council.

On 15 March 1993 the Board submitted its opinion to the court.

By notices of 24 March, 6 May, 29 June, 10 August and

19 September 1993, the Board's opinion was sent to the applicants with

an invitation to comment within four weeks. The notices were sent

together with a receipt form by mail, the first three times to the

applicants' post office box and later to an address in Malmö.

On 13 October 1993 the applicants returned the signed receipt

form. Thus, the Board's opinion had been served on the applicants.

On 22 December 1993 the applicants replied that they wished to

make no further comments.

On 5 December 1993 the applicants moved to Halmstad, in

February 1994 they moved to Gothenburg and in April 1994 they moved to

Trelleborg. They informed the Supreme Administrative Court of their

changes of address.

By letters to the court of 18 January, 30 June and

17 October 1994, the applicants requested information on the handling

of the case. On 1 March 1994 they submitted further observations on

the merits.

By decision of 18 October 1994, the Supreme Administrative Court

found that the applicants' accommodation at the Salvation Army's hostel

could reasonably be accepted during a transitional period not exceeding

a week. For the remainder of the period in question, i.e. the last two

weeks of the period 27 August - 16 September 1991, housing of a higher

standard should have been provided for the applicants by the Council.

However, as the applicants' claim concerned past time and did not

involve any sum of money, the court decided to take no further action

in the matter. It thus struck the case out of its list of cases.

b. Relevant domestic law

Section 6 of the Social Services Act provides the following:

(Translation)

"The individual is entitled to assistance from the Social

Council for his subsistence and other living expenses, if

his needs cannot be provided for in any other way.

The assistance shall assure the individual of a

reasonable standard of living. The assistance shall be

such as to strengthen his ability to lead an independent

life."

According to Section 73 of the Act, the Social Council's decision

in regard to social welfare assistance under Section 6 may be appealed

against to the administrative courts.

COMPLAINTS

1. The applicants complain of the length of the proceedings in the

case. They invoke Article 6 of the Convention.

2. Further under Article 6 of the Convention, they claim that the

Supreme Administrative Court failed to determine their case, as it was

struck out of the court's list of cases.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 28 December 1994 and registered

on 29 March 1995.

On 27 June 1996 the Commission decided to communicate the

application to the respondent Government, pursuant to Rule 48

para. 2 (b) of the Rules of Procedure, in so far as it concerned the

complaint concerning the length of the proceedings.

The Government's written observations were submitted on

22 October 1996, after an extension of the time-limit fixed for that

purpose. The applicants replied on 27 January 1997.

THE LAW

1. The applicants complain of the length of the proceedings in the

case. They invoke Article 6 (Art. 6) of the Convention which, in

relevant part, reads as follows:

"1. In the determination of his civil rights ..., everyone

is entitled to a fair ... hearing within a reasonable time

..."

The respondent Government contest that Article 6 para. 1

(Art. 6-1) is applicable to the present case. They claim that the

proceedings did not involve a determination of a civil right.

As to the merits of the present complaint, the Government first

submit that the period to be considered started on 20 September 1991

when the County Administrative Court received the applicants' appeal

against the Council's decision and ended on 18 October 1994 when the

Supreme Administrative Court took its decision. Although the case

itself was not complex, the Government maintain that the complaint is

manifestly ill-founded. They argue that the delays in the proceedings

were mainly due to the Supreme Administrative Court's difficulties in

corresponding with the applicants. Thus, the case was delayed for

approximately seven months when the court tried to serve the opinion

of the National Board of Health and Welfare on the applicants.

Moreover, the Government claim that the matter at stake in the

proceedings was of no importance to the applicants, as the period at

issue had come to an end already before they appealed to the courts.

The applicants submit that the case concerned their civil rights.

They have no complaints with regard to the examination of the case at

first and second instance. However, the time spent by the Supreme

Administrative Court was excessive. The applicants state that almost

one year elapsed before that court decided to grant leave to appeal and

that, save for directing the National Board of Health and Welfare to

submit an opinion in the case, the court made no further investigations

in the case. The applicants claim that they informed the court where

they could be reached. First they asked the court to correspond with

them via the Council, with which they were in constant contact, and

later, when they moved from Malmö, they informed the court of their

changes of address.

Noting that the Government contest the applicability of Article 6

para. 1 (Art. 6-1) of the Convention, the Commission considers that it

is not necessary to determine this question as, even assuming that that

Article applies, the present complaint is inadmissible for the

following reasons.

As regards the period to be considered, the Commission notes that

the applicants' request for assistance had to be determined by the

Social Council before they had recourse to the courts. The Commission

therefore considers that the relevant period started when their

application was filed with the Council, i.e. on 27 August 1991. The

period ended on 18 October 1994 when the Supreme Administrative Court

issued its decision. Thus, the total length of the proceedings to be

assessed under Article 6 para. 1 (Art. 6-1) was almost three years and

two months.

From a general point of view the reasonableness of the length of

the proceedings must be assessed with reference to the complexity of

the case, the conduct of the applicants and that of the authorities

before which the case was brought (cf., e.g., Eur. Court HR, Boddaert

v. Belgium judgment of 12 October 1992, Series A no. 235-D, p. 82,

para. 36).

Recalling that the examination by the Social Council and the

courts at first and second instance took less than five months in

total, the Commission finds, in agreement with the parties, that there

is no reason to criticise the handling of the case during these stages

of the proceedings.

The question remains whether the length of the proceedings before

the Supreme Administrative Court was excessive. The Commission recalls

that the case was pending before that court for a period of about two

years and eight and a half months. During that period the court

obtained the opinions of the Social Council and the National Board of

Health and Welfare. Furthermore, it decided separately and

consecutively on both the question of leave to appeal and the merits

of the case (in the latter respect, cf. under 2 below).

As regards the conduct of the applicants, the Commission

considers that they caused a considerable delay in the case on account

of the difficulties in corresponding with them. They have failed to

show that the Supreme Administrative Court received any request for

correspondence via the Social Council. The delay of approximately

seven months resulting from the court's unsuccessful attempts at

serving the opinion of the National Board of Health and Welfare on the

applicants is therefore imputable to them. In this connection, the

Commission further notes that it took the applicants more than two

months to reply that they wished to make no comments on that opinion.

It is true that, after the Supreme Administrative Court had been

seized with the case, more than six months elapsed before the court

requested the Social Council's opinion and, following the receipt of

that opinion and the applicants comments thereon, proceeded to decide

on the question of leave to appeal. Moreover, following the

applicants' reply to the opinion of the National Board of Health and

Welfare, the court took almost ten months to decide the case.

However, acknowledging that cases concerning basic social welfare

benefits normally call for special diligence, the Commission considers

that there was no particular need of a speedy determination of the

applicants' case. The applicants only sought a confirmation of their

right to a certain kind of accommodation for a period which had already

ended when they lodged their appeal with the County Administrative

Court. Furthermore, during the court proceedings they appear to have

had sufficient housing. Thus, between December 1992 and December 1993

they lived in a flat provided by the Social Council.

Having regard to the above and taking into account the overall

length of the proceedings in the case, the Commission considers that

they did not go beyond what may be considered reasonable in the

particular circumstances of the case. Thus, the present complaint does

not disclose any appearance of a violation of Article 6 para. 1

(Art. 6-1) of the Convention.

It follows that this part of the application is manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

2. Further under Article 6 (Art. 6) of the Convention, the

applicants claim that the Supreme Administrative Court failed to

determine their case, as it was struck out of the court's list of

cases.

However, the Commission recalls that, on 15 December 1992, the

Supreme Administrative Court granted the applicants leave to appeal.

By decision of 18 October 1994, it found partly in favour of the

applicants in concluding that - save for the first week of the period

at issue - they should have been given housing of a higher standard by

the Council. Consequently, the applicants claim was examined on the

merits.

It follows that this part of the application is also manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

M.-T. SCHOEPFER G.H. THUNE

Secretary President

to the Second Chamber of the Second Chamber

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TENNENBAUM v. SWEDEN

TENNENBAUM v. SWEDEN

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