Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 27823/95

by Marlen SIBBEL-BECKER

against Sweden

The European Commission of Human Rights (Second Chamber) sitting

in private on 16 October 1996, 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

L. LOUCAIDES

M.A. NOWICKI

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

P. LORENZEN

E. BIELIUNAS

E.A. ALKEMA

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 24 March 1995 by

Marlen SIBBEL-BECKER against Sweden and registered on 7 July 1995 under

file No. 27823/95;

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

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant, a Swedish citizen born in 1962, resides at Piteå.

Before the Commission she is represented by Mr. Georg Antal, a lawyer

practising in Stockholm.

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

summarised as follows.

On 14 September 1992 the Social Insurance Office (försäkrings-

kassan) of the County of Norrbotten rejected the applicant's

application for an increase of her disability allowance (handikapp-

ersättning) under the Social Insurance Act (Lagen om allmän försäkring,

1962:381). The allowance thus remained at 36 per cent of a basic

amount (basbelopp) geared to the price index.

The applicant appealed to the County Administrative Court

(länsrätten) of the County of Norrbotten, claiming that she had

additional costs which had not been taken into account by the Social

Insurance Office. Referring to medical certificates, she stated that,

on account of her intestinal illness, she was prescribed a low-fat diet

and was required to have extra meals. She did not request the Court

to hold an oral hearing in the case.

By judgment of 23 February 1993, the County Administrative Court

found that the applicant, due to the costs she had specified, was

entitled to a disability allowance amounting to 53 per cent of the

basic amount. Accordingly, the Court annulled the Social Insurance

Office's decision and referred the case back to the Office for

implementation of the judgment.

Both the applicant and the National Social Insurance Board

(Riksförsäkringsverket) appealed to the Administrative Court of Appeal

(kammarrätten) in Sundsvall. Again, the applicant did not request an

oral hearing.

On 22 February 1994 the Administrative Court of Appeal found

against the applicant and annulled the County Administrative Court's

judgment. The appellate court stated that the applicant did not have

additional costs to such an extent that she was entitled to an

allowance exceeding 36 per cent of the basic amount.

The applicant appealed to the Supreme Social Insurance Court

(Försäkringsöverdomstolen). She requested the Court to hold an oral

hearing and to order the National Social Insurance Board to clarify its

position with respect to certain aspects of the case.

On 19 October 1994 the Supreme Social Insurance Court informed

the applicant that it found no reason to request observations from the

National Social Insurance Board before deciding whether to grant the

applicant leave to appeal. The Court further stated that it rarely

holds oral hearings and invited the applicant to submit further

observations in writing within a month.

On 3 March 1995 the Supreme Social Insurance Court refused the

applicant leave to appeal.

With regard to the proceedings in the administrative courts,

Section 9 of the Administrative Procedure Act (Förvaltningsprocess-

lagen, 1971:271) provides that they are generally in writing. An oral

hearing may be held, however, if this is for the benefit of the

examination of the case or promotes its speedy determination. The

Administrative Court of Appeal shall hold an oral hearing, if it is

requested by a party and not unnecessary or inexpedient.

COMPLAINT

Invoking Article 6 of the Convention, the applicant claims that

the Supreme Social Insurance Court was not impartial. She further

complains of the refusal to hold an oral hearing.

THE LAW

The applicant complains of violations of Article 6 (Art. 6) of

the Convention, which in its relevant parts reads as follows:

"1. In the determination of his civil rights and

obligations ..., everyone is entitled to a ... public

hearing ... by an ... impartial tribunal ..."

The applicant claims that the National Social Insurance Board was

given preferential treatment by the Supreme Social Insurance Court, as

the Court refused leave to appeal without having held an oral hearing

and without having obtained further observations from the Board and so

based its decision on the Board's unconfirmed and incorrect

submissions. At the hearing, the applicant would allegedly have shown

that the Board's submissions were groundless.

The Commission first considers that the applicant, in applying

for an increase of her disability allowance, claimed an individual,

economic right under the Social Insurance Act. The Commission finds

that the examination of the claim involved a determination of the

applicant's civil rights and that, therefore, Article 6 para. 1

(Art. 6-1) of the Convention applied to these proceedings (cf. Eur.

Court HR, Salesi v. Italy judgment of 26 February 1993, Series A no.

257-E, pp. 59-60, para. 19, and Schuler-Zgraggen v. Switzerland

judgment of 24 June 1993, Series A no. 263, p. 17, para. 46).

The Commission is of the opinion, however, that when a Supreme

Court determines, in a preliminary examination of the case, whether or

not the conditions required for granting leave to appeal have been

fulfilled, it is not making a decision relating to "civil rights and

obligations" (cf. No. 11826/85, Helmers v. Sweden, Dec. 9.5.89, D.R.

61 p. 138).

In the present case, the Supreme Social Insurance Court decided

on 3 March 1995, without entering on the merits, not to grant the

applicant leave to appeal against the judgment of the Administrative

Court of Appeal. It follows that Article 6 para. 1 (Art. 6-1) of the

Convention does not apply to this decision or the Court's preceding

examination.

This part of the application is thus incompatible ratione

materiae with the provisions of the Convention within the meaning of

Article 27 para. 2 (Art. 27-2).

In so far as the applicant's complaint concerns also the lack of

oral hearings in the County Administrative Court and the Administrative

Court of Appeal, the Commission notes that the applicant did not

request these courts to hold hearings in the case.

In this respect, the Commission recalls that the right to a

"public hearing" in the sense of Article 6 para. 1 (Art. 6-1) may

entail an entitlement to an "oral hearing" (cf., e.g., Eur. Court HR,

Fredin v. Sweden (no. 2) judgment of 23 February 1994, Series A no.

283-A, p. 10, para. 21). However, neither the letter nor the spirit

of this provision prevents a person from waiving of his own free will,

either expressly or tacitly, the entitlement to have his case heard in

public, but any such waiver must be made in an unequivocal manner and

must not run counter to any important public interest (cf., e.g., the

above-mentioned Schuler-Zgraggen v. Switzerland judgment, pp. 19-20,

para. 58).

In the present case, Section 9 of the Administrative Procedure

Act provided that an oral hearing should be held if a party so

requested and if it was not unnecessary or inexpedient. As the

proceedings in the administrative courts, as indicated by that

provision, are generally in writing, the applicant could be expected

to request the County Administrative Court and the Administrative Court

of Appeal to hold hearings if she attached importance to it. She did

not do so, however. It may reasonably be considered, therefore, that

she unequivocally waived her right to a hearing before these courts.

Moreover, it does not appear that the dispute in question raised issues

of public importance such as to make a hearing necessary.

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.

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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SIBBEL-BECKER v. SWEDEN

SIBBEL-BECKER v. SWEDEN

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