Lexploria

AS TO THE ADMISSIBILITY OF

Application Nos 12257/86 and 12319/86

by C.

against Sweden

The European Commission of Human Rights sitting in private

on 12 December 1988, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

G. SPERDUTI

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

J. CAMPINOS

Mrs. G.H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

Mr. H.C. KRÜGER Secretary to the Commission

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 April 1986

by C. against Sweden and registered on 13 June 1986 under file No.

12257/86;

Having regard to the application introduced on 10 February

1986 by C. against Sweden and registered on 30 July 1986 under file

No. 12319/86;

Having regard to the report provided for in Rule 40 of the

Rules of Procedure of the Commission;

Having deliberated;

Decides to join applications Nos 12257/86 and 12319/86;

Decides as follows:

THE FACTS

The facts of the cases, as they appear from the applicant's

submissions, may be summarised as follows.

The applicant is a Swedish citizen, born in 1951 and resident

at Stockholm.

On 6 May 1983 the applicant, then called Lundvall, introduced

an application (No. 10473/83) with the Commission concerning inter

alia the use of personal identity numbers and alleged wrongful

taxation. The applicant alleged violations of Articles 8, 9, 10 and 13

of the Convention. On 11 December 1985 the Commission declared that

application inadmissible after a hearing.

As a result of accidents in November 1983 and January 1984,

the applicant took early retirement as from October 1984. He received

a monthly pension of 3.890 SEK after deduction of taxes.

Under the relevant legal provisions the applicant is only

entitled to the pension if he is a resident in Sweden. He maintains

however that he wishes to live in a warmer climate and move to Asia

and to benefit from his pension there.

On 26 March 1984 the Social Insurance Office decided that the

applicant's sickness insurance should only cover sickness care

benefits (sjukvårdsförmåner) as from 3 November 1983. Consequently, as

from that day the applicant was no longer entitled to sickness allowance

(sjukpenning). The Office also decided, on 28 March 1984, to cancel

the applicant's sickness allowance following an illness reported to the

Office on 4 October 1983.

The applicant then applied to the Social Insurance Office

requesting that it reconsidered its decisions of 26 and 28 March. The

Office decided on 25 June 1984 not to amend its previous decisions.

The applicant appealed to the Social Insurance Court for

Central Sweden (försäkringsrätten för mellansverige) claiming that his

income qualifying for future sickness allowance (sjukpenninggrundande

inkomst, SGI) be fixed at 140.000 SEK and that he be granted a sickness

allowance. On 15 April 1985 the Court rejected the appeal.

The applicant lodged a further appeal with the Supreme

Insurance Court (försäkringsöverdomstolen), which refused leave to

appeal on 17 September 1985.

Subsequently, the applicant again requested that the previous

decisons in his case be amended. On 7 May 1986 the Social Insurance

Office decided not to amend its decisions.

Upon appeal from the applicant the Social Insurance Court, on

27 April 1987, quashed the decision of the Social Insurance Office on

the ground that the previous decisions had acquired legal force. On

24 November 1987 the Supreme Insurance Court refused leave to appeal.

The applicant asked for re-opening (resning) of the

proceedings before the Supreme Administrative Court (regeringsrätten).

On 25 March 1988 the Court refused to grant the request.

The applicant has requested assistance in the form of a taxi

services certificate from the Certificates Council

(legitimeringsnämnden) of the County Council (landstinget) of the

Stockholm County. However, this has been refused.

The applicant has been engaged in trading crude oil. He was

engaged in negotiations with the National Board for Economic Defence

(överstyrelsen för ekonomiskt försvar) which gave him an order to sell

400.000 tons of oil. However, later the Board broke this agreement

allegedly in violation of Swedish law. The applicant was left without

a job he had been promised and his insurance cover was thus less than

if he had had the income from that job.

COMPLAINTS

The applicant has made a number of complaints, inter alia, the

following.

1. He complains that, as he cannot enjoy his pension if he leaves

Sweden, he cannot move freely, nor choose his residence or enjoy his

possessions. He alleges a violation of Article 1 of Protocol No. 1 to

the Convention, Article 2 of Protocol No. 4 to the Convention and of

Article 13 of the Convention.

2. The applicant complains that the decisions of the Social

Insurance Office concerning his sickness benefits were preceded by

incorrect handling of the matter since the applicant, who was staying

abroad, was not informed that he might lose his right to sickness

allowance. If he had been informed thereof he would have taken a private

insurance. The result of the activities of the Social Insurance Office

was that the applicant lost his insurance cover without being warned

in time. The applicant invokes Articles 6 and 13 of the Convention and

Article 1 of Protocol No. 1 to the Convention.

3. The applicant complains that he cannot bring proceedings

against the National Board for Economic Defence before a court and

that, consequently, there has been a breach of Article 6 of the

Convention.

4. The applicant complains that the Swedish Telecommunications

Company (televerket) has set up as a condition for his rental that he

pay a security of 70.000 SEK. The applicant also alleges that his

telephone has been illegally tapped. He invokes Articles 8, 13 and 50

of the Convention.

THE LAW

Complaint concerning pension rights

1. Article 1 of Protocol No. 1 (P1-1) secures to everyone the right to

the peaceful enjoyment of his possessions. However, the second

paragraph of the said provision provides that this right shall not "in

any way impair the right of a State to enforce such laws as it deems

necessary to control the use of property in accordance with the

general interest". The Convention does not as such guarantee a right

to a pension. In a previous decision (No. 6572/74, Dec. 4.3.76, D.R. 8

p. 70) concerning the German Social Insurance Act the Commission found

that the suspension of payment of pension where the individual was a

foreigner and no longer living in the Federal Republic of Germany was

a regulation concerning the modalities of the payment of pensions

which was compatible with the second paragraph of Article 1 of

Protocol No. 1 (P1-1).

The Commission has also held that in order to establish a

right to benefit from a pension under a social security system it is

required that the individual satisfy the domestic legal conditions

governing that right (cf. No. 7459/76, Dec. 5.10.77, D.R. 11 p. 114).

In a decision concerning the United Kingdom the Commission found that

the reduction of pension benefits resulting from emigration did not

amount to deprivation of property in breach of Article 1 of

Protocol No. 1 (P1-1) (cf. No. 9776/82, Dec. 3.10.83, D.R. 34 p. 153).

Even assuming that the applicant, if he were to move abroad,

would lose his early retirement pension, the Commission considers

that, on the basis of the case-law accounted for above, such an effect

would not be contrary to Article 1 of Protocol No. 1 (P1-1) to the

Convention.

It follows that, in this respect, the complaint concerning

pension rights is manifestly ill-founded within the meaning of Article

27 para. 2 (Art. 27-2) of the Convention.

2. Assuming that under Swedish law the applicant is entitled to a

pension only if he resides in Sweden, the Commission nevertheless

considers that this fact cannot be characterised as a restriction on

the right to liberty of movement and the freedom to choose residence,

or the right to leave any country as guaranteed by Article 2 of

Protocol No. 4 (P4-2) to the Convention.

It follows that in this respect, the complaint concerning

pension rights is also manifestly ill-founded within the meaning of

Article 27 para. 2 (Art. 27-2) of the Convention.

3. As regards Article 13 (Art. 13) of the Convention, the

Commission notes that the applicant complains about the state of the

law. In respect of such complaints, Article 13 does not guarantee a

"remedy" (see inter alia Eur. Court of H.R., James and Others

judgment of 21 February 1986, Series A No. 98, p. 47 para. 85).

It follows that, in this respect, the complaint is again

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

27-2) of the Convention.

Complaint concerning sickness benefits

4. The applicant invokes Article 1 of Protocol No. 1 (P1-1) to the

Convention which guarantees the right to peaceful enjoyment of his

possessions.

The Commission first observes that the Convention does not as

such guarantee any right to specific sickness benefits.

With regard to the judicial decisions of which the applicant

complains, the Commission further recalls that, in accordance with

Article 19 (Art. 19) of the Convention, its only task is to ensure the

observance of the obligations undertaken by the Parties in the

Convention. In particular, it is not competent to deal with an

application alleging that errors of law or fact have been committed by

domestic courts, except where it considers that such errors might have

involved a possible violation of any of the rights and freedoms set

out in the Convention. The Commission refers, on this point, to its

constant case-law (see e.g. No. 458/59, Dec. 29.3.60, Yearbook 3

pp. 222, 236 ; No. 5258/71, Dec. 8.2.73, Collection 43 pp. 71, 77 ;

No. 7987/77, Dec. 13.12.79, D.R. 18 pp. 31, 45). It follows that the

Commission cannot review the assessment of the applicant's sickness

benefits, except where it considers that the assessment involved a

possible violation of the rights and freedoms set forth in the

Convention.

However, from the applicant's submissions there is no

appearance of any possible violation of Article 1 of Protocol No. 1

(P1-1).

It follows that, in this respect, the complaint concerning

sickness benefits is manifestly ill-founded within the meaning of

Article 27 para. 2 (Art. 27-2) of the Convention.

5. The applicant further submits that his claim for sickness

benefits has not been dealt with in a way which satisfies the

conditions of Article 6 (Art. 6) of the Convention. He also invokes

Article 13 (Art. 13) of the Convention.

As regards Article 6 (Art. 6) of the Convention, it is

recalled that in a previous application against Sweden (No. 11450/85,

Dec. 8.3.88, to be published in D.R.) the Commission has held that

Article 6 (Art. 6) of the Convention does not apply to disputes over

sickness benefits under the Swedish social security system as provided

for in the Social Insurance Act, since such disputes do not relate to

a "civil" right within the meaning of Article 6 para. 1 (Art. 6-1) of

the Convention.

The Commission finds no reason to depart from this view in the

present case.

Consequently, in this respect, the complaint concerning

sickness benefits is incompatible ratione materiae with the provisions

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

Article 13 (Art. 13) of the Convention guarantees the right to

an effective remedy before a national authority to everyone whose

rights and freedoms under the Convention are violated. This provision

has been interpreted to mean that everyone has a right to an effective

remedy on the condition that he has "an arguable claim to be the

victim of a violation" (see Eur. Court H.R., Silver and Others

judgment of 25 March 1983, Series A No. 61, p. 42, para. 113).

As regards the applicant's complaint that his sickness

benefits were incorrectly assessed, the Commission considers that the

applicant did not have an "arguable" claim of a violation of the

Convention. He was therefore not entitled to an effective remedy under

Article 13 (Art. 13) of the Convention in that respect.

It follows that this aspect of the complaint under Article 13

(Art. 13) is manifestly ill-founded within the meaning of Article 27

para. 2 (Art. 27-2) of the Convention.

Insofar as the complaint under Article 13 (Art. 13) of the

Convention relates to the procedural complaint under Article 6 (Art.

6) of the Convention, it follows from the conclusion above that the

complaint under Article 13 (Art. 13) is also incompatible ratione

materiae with the provisions of the Convention within the meaning of

Article 27 para. 2 (Art. 27-2) of the Convention.

Other complaints

6. The Commission has examined the remainder of the applicant's

complaints, as submitted by him. However, it finds that they do not

disclose the appearance of any violation of the rights and freedoms

guaranteed by the Convention or its Protocols Nos 1 or 4 (P1, P4).

It follows that the applicant's remaining complaints are

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

27-2) of the Convention.

For these reasons, the Commission

DECLARES THE APPLICATIONS INADMISSIBLE

Secretary to the Commission President of the Commission

(H. C. KRUGER) (C. A. NØRGAARD)

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CINNAN v. SWEDEN

CINNAN v. SWEDEN