FOURTH SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 52556/99 by Birger JOHANSSON against Sweden

The European Court of Human Rights (Fourth Section), sitting on 31 August 2004 as a Chamber composed of:

Sir Nicolas Bratza , President , Mr M. Pellonpää , Mr J. Casadevall , Mr S. Pavlovschi , Mr J. Borrego Borrego , Mrs E. Fura-Sandström , Ms L. Mijović, judges , and Mr M. O ’ Boyle , Section Registrar ,

Having regard to the above application lodged on 23 October 1999 ,

Having regard to the partial decision of 9 September 2003 ,

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, Mr Birger Johansson, is a Swedish national who was born in 1943 and lives in Vedum. He was represented before the Court by Ms S. Westerberg, a lawyer practising in Göteborg. The respondent Government were represented by Ms I. Kalmerborn , Ministry for Foreign Affairs.

A. The circu ms tances of the case

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

1. First set of p roceedings : The Social Insurance Office ’ s request that the applicant undergo medical examinations

In February 1994 the applicant had an accident at work and injured his back. As a consequence thereof, he received a sickness allowance ( sjukpenning ). On 26 April 1996 the Social Insurance Office ( försäkrings-kassan ; hereinafter “the Office”) of Skaraborg sent a letter to the applicant informing him that he had been referred to a physician, a psychologist and a physiotherapist for examinations of his health condition and the possibilities for rehabilitation, to be conducted on 2 and 3 May 1996 . He was further informed that failure to appear without a valid reason could result in a withdrawal or reduction of his sickness allowance . On 29 April 1996 t he applicant, questioning the competence of the persons supposed to examine him and the need for and expediency of those examinations, stated that he refused to appear without his legal counsel and asked for the examinations to be postponed. On 30 April 1996 t he Office replied that it considered that the medical material available to it was not sufficient to make an appropriate examination of his right to a continued sickness allowance and that the aim of the requested medical examinations was to remedy those deficiencies.

On 2 May 1996 t he applicant appealed against the request for medical examinations. On 3 May 1996 the County Administrative Court ( länsrätten ) of the County of Skaraborg dismissed the appeal stating that the Office could, under the Social Insurance Act ( Lagen om allmän försäkring , 1962:381), request that the applicant undergo an examination of his health situation and the possibilities for rehabilitation. According to the preparatory works to the relevant provisions, measures taken by the Office should be seen as part of the handling of the case and could thus only be subject to appeal when there had been a decision to withdraw or reduce the allowance in question. Since the measure in question had not had any direct consequences for the applicant, the County Administrative Court found that it was prevented from examining the applicant ’ s appeal and thus dismissed it.

The applicant did not appear for the medical examinations and was given a new appointment, with three chief physicians, for 19 June 1996 . In letters to the physicians, he again criticised the examinations. He eventually appeared for the appointment accompanied by his legal counsel. He declared that he was not opposed to being examined but that he was not there of his own free will but under the threat of having his allowance withdrawn. The physicians considered that the applicant was not consenting to the measure and therefore did no t proceed with the examination.

Meanwhile, on 14 May 1996 the applicant had appealed against the County Administrative Court ’ s decision to dismiss the appeal regarding the request for medical examinations. On 19 June 1996 the Administrative Court of Appeal ( kammarrätten ) in Jönköping remitted the case to the Office for a re-examination as, according to the legal procedure, the Office should have reconsidered ( omprövat ) its decision before the examination by the County Administrative Court . On 2 July 1996 the Office, upon reconsideration, drew the same conclusion as the County Administrative Court had done on 3 May 1996 . On 14 August 1996 the County Administrative Court again dismissed the appeal.

On 6 February 1998 the Administrative Court of Appeal upheld the County Administrative Court ’ s decision of 14 August 1996 . On 29 April 1999 the Supreme Administrative Court ( Regeringsrätten ) refused leave to appeal on this issue.

2. Second set of p roceedings : The discontinuation of payment of sickness allowance

On 7 November 1996 the Office informed the applicant that it was considering discontinu ing payment of his sickness allowance and invited him to submit observations. The applicant availed hi ms elf of that opportunity.

By a decision of 4 December 1996 the Office d iscontinue d payment of the applicant ’ s sickness allowance as from 7 December 1996 as it had not been shown that his ability to work was reduced to such an extent that he was entitled to such an allowance . The Office had regard to complementary medical records and reports which it had obtained concerning the applicant and the opinion of one of its own medical doctors ( försäkringsläkare ). Upon the applicant ’ s request, the Office reconsidered its decision on 11 February 1997 . It upheld the decision, stating, inter alia , that there had been reasons to request complementary examinations, that the applicant had refused to cooperate and, that, accordingly, his entitlement to an allowance had not been shown.

On 21 March 1997 the applicant lodged an appeal with the County Administrative Court . Observations received by the court from the Office w ere submitted to the applicant.

The applicant later lodged appeals with the court against other decisions taken by the Office. Thus, on 6 June 1997 he appealed against a decision concerning the level of income on the basis of which his sickness allowance was to be calculated ( sjukpenninggrundande inko ms t ) and on 9 December 1998 he appealed against a decision by which the Office rejected his applications for a disability pension ( förtidspension ) and a life annuity ( livränta ). The applicant ’ s appeals were considered in parallel by the County Administrative Court .

The applicant submitted observations to the County Administrative C ourt on 14 April, 2 and 5 May and 18 August 1997 . On the latter date he requested an extension until 1 November 1997 of a time-limit to submit further observations. This was granted by the court. On 11 November 1997 he submitted observations and requested a further extension until 1 February 1998 , noting that there was no opposite party in the proceedings who could be harmed thereby. Also this request was granted by the court. Further submissions were made by the applicant on 20 November 1997 and 22 January 1998 .

On 26 January 1998 the applicant ’ s case file wa s sent on loan to the Administrative Court of Appeal for use in the proceedings concerning the request that the applicant undergo medical examinations. The file was later forwarded to the Supreme Administrative Court for the same purpose. The file was returned to the County Administrative Court on 3 May 1999 .

On 22 May and 15 September 1998 and on 8 June and 8 September 1999 the County Administrative Court received additional observations and documents from the applicant.

On 25 November 1999 the County Administrative Court delivered judgments in all the applicant ’ s cases. In u ph olding the Office ’ s decision to withdraw the applicant ’ s sickness allowance , it found that the Office had had reasons to request complementary information in order to determine whether his health situation had improved to such an extent that he would be able to go back to work . Although a medical examination could probably not be performed against a person ’ s will, the refusal to undergo such an examination could, under the provisions of the Social Insurance Act, lead to the loss of the benefits in question. The applicant ’ s stance in this regard had led the physicians to conclude that it was not possible to conduct an examination and he had consequently prevented the Office from obtaining the necessary medical evidence which, by law, it was competent to request. For these reasons, the applicant ’ s entitlement to a sickness allowance under the Social Insurance Act could not be properly assessed .

On 23 December 1999 the applicant lodged appeal s with the Administrative Court of Appeal against the County Administrative Court ’ s judgments . He also asked for time until 10 February 2000 to specify the relief sought and the grounds for the appeal s . The court granted his request. Observations were received from the applicant on 8 February 2000 and, on the same day, the court asked the Office to comment before 10 April 2000 , a time-limit later extended twice, ultimately until 15 May 2000 . The Office ’ s reply was received on the latter date and sent to the applicant for information.

On 16 February, 17 March and 16 May 2000 the applicant submitted observations and medical certificates to the appellate court. On 6 June 2000 he requested time until 1 October 2000 to submit further observations. This was granted by the court. On 30 August 2000 the applicant submitted observations and medical certificates. He also asked for a further extension until 1 September 2001 , again noting that this would not cause detriment to any opposing individual party.

By a decision of 30 August 2000 the appellate court ordered the applicant to conclude his case no later than 29 December 2000 . The receipt of the order was acknowledged by the applicant on 20 October 2000 , following two reminders sent by the court.

On 9 November 2000 the applicant submitted observations and reiterated his request for an extension, at least until 1 April 2001 . The Office submitted comments on these observations on 17 November 2000 which were forwarded to the applicant for information. On 29 December 2000 the appellate court granted an extension until 2 March 2001 and informed the applicant that further extensions were unlikely to be granted.

On 31 January 2001 the applicant submitted further observations and again reiterated the request for an extension until 1 April 2001 . By a decision of 5 February 2001 the appellate court ordered him to submit any additional material within on e month of receiving the order.

On 19 February 2001 the appellate court received observations from the applicant in which he requested an extension until 15 May 2001 . He stated that he did not consider it correct to deny him the extension which he had requested and needed, as the opposing party in the case would not be harmed thereby but rather favoured by such a measure. By a decision of 9 March 2001 the appellate court ordered the applicant to submit any additional material by 15 May 2001 .

On 9 April 2001 the appellate court received observations from the applicant in which he requested an extension of the time-limit until 1 September 2001 . He maintained that the court could not be criticised for having protracted the proceedings, since he had hi ms elf asked for the extension and his request was well-founded. On 17 April 2001 the appellate court ordered the applicant to submit any additional material by 1 September 2001 . It also stated that it might rule on the question of leave to appeal even if he failed to abide by the order.

By decision s of 29 January 2002 the Administrative Court of Appeal r efused the applicant leave to appeal in all cases .

On 19 February 2002 the applicant lodged appeal s with the Su preme Administrative Court . He asked , inter alia , that the case s be remanded to the Administrative Court of Appeal for further extensions of the time-limit to submit observations. He also requested an extension before the Supreme Administrative Court until 15 June 2002 in order to submit additional medical evidence. The latter request was granted. On 24 May and 15 August 2002 the applicant requested further extensions until 15 September and 1 November 2002 , respectively. Al so these requests were granted.

On 3 October 2002 the applicant submitted observations to the Supreme Administrative Court . On 25 October 2002 he requested a further extension of the time-limit until 1 February 2003 . The request was granted.

On 30 December 2002 and 15 January 2003 the applicant submitted further observations and a medical certificate. On 17 February 2003 he requested an extension until 5 May 2003 . The request was granted.

On 17 March 2003 the applicant submitted further observations. On 28 April 2003 he requested an extension of the time-limit until 15 August 2003 , noting that it would not cause detriment to anyone but hi ms elf. The request was granted.

On 25 August and 21 October 2003 the applicant requested further extensions until 15 October 2003 and 15 January 2004 , respectively. The requests were granted.

On 27 November 2003 the applicant submitted observations to the Supreme Administrative Court and requested that the previously granted extension until 15 January 2004 should continue to apply.

On 12 January 2004 the applicant requested a further extension until 15 April 2004 . On the latter date, he submitted his final observations in all cases, including the case concerning the sickness allowance.

T he case s are at present pending before the Supreme Administrative Court .

B. Relevant domestic law

Sickness allowances are, insofar as relevant to the present case, regulated in chapter 3, sections 7 and 8 a and chapter 20, section 3 of the Social Insurance Act. A person is entitled to such an allowance if his or her sickness reduces the ability to work by at least 25%. The Social Insurance Office should, if necessary for the assessment of an application for an allowance , request the person in question to undergo an examination of his medical state and working disability and the need and possibility for rehabilitation. If the person refuses without a valid reason to undergo treatment, examination or rehabilitation, the sickness allowance may be refused, entirely or partially, until further notice, provided that he or she has been notified of this consequence.

According to the preparatory works of chapter 3, section 8 a of the Social Insurance Act, the decision of a local insurance office to request an individual to undergo additional medical examinations is to be regarded as constituting part of the office ’ s procedure for dealing with the matter of the individual ’ s entitlement to a continued sickness allowance. The prepa ratory works therefore conclude that such an action by the office should be subject to appeal only in connection with a subsequent decision to reduce or discontinue payment of the allowance in question (Government Bill 1994/95:147, p. 35).

COMPLAINT

The applicant complained under Article 6 of the Convention about the length of the proceedings concerning his appeal against the Office ’ s request for examinations and the proceedin gs concerning the discontinuation of payment of the sickness allowance .

THE LAW

The applicant complained that the length of the proceedings in his case was unreasonable. He relied on Article 6 of the Convention, the relevant part of which provides:

“1. In the determination of his civil rights and obligations ... , everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ... .”

The respondent Government maintained that, insofar as the first set of proceedings was concerned, the applicant ’ s compla i nt was incompatible ratione materiae . They argued that these proceedings, having been initiated by the applicant despite the absence of a procedural possibility to contest the Office ’ s request by way of a separate appeal, were not capable of being “directly decisive” for his continued right to sickness allowance. Moreover, the request for the applicant ’ s participation in medical examinations could not be regarded as an interference with his right to respect for his private life within the meaning of Article 8 § 1 of the Convention, as the applicant was not under an obligation to submit to such examinations but these were only a possible condition for his continued receipt of sickness allowance.

In regard to the second set of proceedings, the Government acknowledged that Article 6 § 1 of the Convention was applicable but submitted that the applicant ’ s complaint was manifestly ill-founded. In this respect, they claimed that, whereas a case concerning the right to continued sickness allowance could not, per se , be considered to be of a particularly complicated character, the applicant ’ s case had been made more complicated than usual as the Office and the courts had had to examine numerous submissions and a large quantity of medical evidence and other documentation submitted by him at every stage of the proceedings. Moreover, the case at issue was but one of several proceedings brought by the applicant concerning matters relating to his requests for different for ms of economic benefits on account of his medical condition. As regards the conduct of the authorities, the Government note d that there was a period of inactivity before the County Administrative Court between January 1998 and May 1999 when the case file was on loan at the Administrative Court of Appeal and the Supreme Administrative Court as part of the material in the first set of proceedings. They maintain ed , however, that this was the sole major period of inactivity in the entire proceedings for which the applicant did not bear the responsibility. They also submit ted that it was appropriate for the County Administrative Court to await the outcome of the first set of proceedings. With respect to the applicant ’ s conduct and what was at stake for him, the Government submit ted that the applicant constantly requested extensions of time-limits inter alia in order to be able to provide additional evidence in the form of medical certificates, apparently due to the importance he attached to the matter. Despite the efforts of the Administrative Court of Appeal to end the proceedings, the applicant merely responded with renewed requests for extensions. He expressly stated on several occasions that further extensions could not cause detriment to anyone but hi ms elf and that a court could not be criticised for granting the requests. In the Government ’ s view, the mere number of requests for such extensions clearly demonstrated that the applicant was not anxious for the case to be determined within the shortest possible time. In sum, the Government maintained that an overall assessment of the length of the proceedings should lead to the conclusion that it had not been unreasonable.

The applicant submitted that Article 6 § 1 of the Convention was applicable to the first set of proceedings. He argued that he was facing compulsory medical examinations against which he was protected under the Swedish Constitution. Although he was very well aware that there was no possibility under Swedish law to appeal against the Office ’ s decision in this regard, he claimed that he had a right to a court determination under Article 6 § 1 and had hoped that the courts would apply the Convention. He also maintained that the issue was not simply that he could not make a separate appeal; instead, he claimed that the Office ’ s request had not been examined at all by the courts, neither in the first nor in the second set of proceedings. As to the length of the first set of proceedings, he submitted that it had been unreasonably long, as it was not at all a complicated case.

As regards the second set of proceedings, the applicant maintained that the County Administrative Court had taken an unreasonably long time. Allegedly, the case was not complicated and just some months of the delay depended on his actions. He acknowledged that he had asked for many extensions of time-limits in the two appellate instances, but explained that he had needed a lot of time to obtain medical certificates due to the long waiting-lists at medical clinics. Further, as he did not have any court determination of the Office ’ s request for medical examinations, he had understood that his only chance of being granted further sickness benefits was to produce as many me dical certificates as possible.

The Court first notes that the Social Insurance Act does not provide for a possibility to appeal separately against the request of a social-insurance office that the individual undergo a medical examination for the purpose of determining his right to continued sickness benefits. Instead, complaints against such a measure may be made in connection with an appeal against a subsequent decision to reduce or discontinue payment of the benefits in question. It further notes that the applicant, in his appeal against the Office ’ s decision of 4 December 1996, made a complaint concerning the Office ’ s request for medical examinations and that the County Administrative Court, in its judgment of 25 November 1999, examined whether the Office had been authorised, under the law, to make such a request and whether, in the particular circu ms tances of the case, it had had good reason to do so. Accordingly, the applicant ’ s assertion that his objections in this regard were not determined by a court must be rejected. Moreover, his separate appeal against the Office ’ s request for medical examinations lacked a basis in law and he was well aware of this fact. In these circu ms tances, the Court concludes that the proceedings concerning this appeal were not “directly decisive” for the applicant ’ s right to a sickness allowance, for which reason Article 6 § 1 of the Convention was not applicable to the first set of proceedings.

As regards the second set of proceedings, t he Court notes that the parties were in agreement that Article 6 § 1 of the Convention was applicable. Reiterating that the proceedings concerned the applicant ’ s right to a continued sickness allowance, it considers that the y involved a determination of the applicant ’ s civil rights under Article 6 § 1 and that this provision wa s thus applicable to the proceedings in question.

The period to be taken into consideration in assess ing the reasonableness of the length of the proceedings st art ed on 7 November 199 6 when the Office informed the applicant that it was considering to discontinue payment of his sickness allowance . Following the applicant ’ s submission of final observations on 15 April 2004 , the proceedings are pending before the Supreme Administrative Court . Thus, to date, the proceedings have lasted a lmost seven years and ten months.

The reasonableness of the length of the proceedings is to be assessed in the light of the particular circu ms tances of the case , regard being had to the criteria laid down in the Court ’ s case-law, in particular the complexity of the case, the applicant ’ s conduct and that of the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII).

As regards the complexity of the case, the Court notes firstly that the proceedings complained of concerned the applicant ’ s right to a continued sickness allowance. As acknowledged by the Government, such proceedings cannot per se be considered as particularly complex. However, following his appeal against the Office ’ s decision of 4 December 1996 to discontinue payment of sickness allowance, the applicant also lodged appeals against the Office ’ s decisions on the level of income on the basis of which his sickness allowance was to be calculated and on his applications for a disability pension and a life annuity. As these issues were related, the courts for good reason considered them in parallel. For this reason, the proceedings became more complex than a single case concerning simply the question of sickness allowances. More importantly, the courts have had to examine voluminous submissions and evidence submitted by the applicant at different stages of the proceedings. The proceedings must therefore be considered to have been of a certain complexity.

With respect to the conduct of the authorities, the Court sees no reason to criticise the handling of the matter by the Office, the Administrative Court of Appeal and the Supreme Administrative Court . The Office dealt with the matter speedily and the two mentioned court instances have not been able to bring the proceedings to an end due to the applicant ’ s requests for extensions of time-limits. It is true that, in the interest of the good administration of justice, a court may be required to make efforts in order to speed up the proceedings. However, in the present case, the only party to be affected by the continuation of the proceedings was the applicant hi ms elf. When the Administrative Court of Appeal, in 2000 and 2001, tried to bring the proceedings to an end by ordering the applicant to conclude his case and informing that further extensions were unlikely to be granted, he replied that it would not be correct to deny him the requested extensions and that the court could not be criticised for having protracted the proceedings as he had hi ms elf asked for the extensions. It should further be noted that the applicant was of the opinion that his only chance of being granted further sickness benefits was to produce as many medical certificates as possible. It is thus clear that he had no interest in having the proceedings before the two appellate court instances speeded up but instead desired more time to produce medical evidence in the case. In these circu ms tances, the Administrative Court of Appeal and the Supreme Administrative Court cannot be criticised for having granted the extensions requested by the applicant.

The conduct of the County Administrative Court remains to be examined. The proceedings before that instance lasted about two years and eight months. During that period there was virtually no activity between 26 January 1998 and 3 May 1999 when the case file was on loan at the Administrative Court of Appeal and the Supreme Administrative Court for use in the proceedings concerning the Offi ce ’ s request that the applicant undergo medical examinations. While this period appears somewhat excessive, the Court has some understanding for the County Administrative Court ’ s apparent decision to await the conclusion of those proceedings before determining the case concerning the discontinuation of the applicant ’ s sickness allowance. There is no reason to criticise the remainder of the proceedings before the County Administrative Court .

In regard to the applicant ’ s conduct, the Court observes that he constantly requested extensions of the time-limits set for his submission of observations. Throughout the proceedings, he made numerous submissions to the court, containing a very large number of medical certificates and other documents. As noted above in respect of the two appellate court instances, the courts cannot, in the circu ms tances, be blamed for having granted the extensions in question. Instead, the delays in the proceedings – save for the above-mentioned period of inactivity before the County Administrative Court – must be considered as entirely attributable to the applicant ’ s conduct. It also appears that t he applicant found these delays to be in his own interest. Noting that the proceedings are still pending, the Court reiterates that, whereas the applicant lodged appeals with the Supreme Administrative Court on 19 February 2002 , he only recently – on 15 April 2004 – submitted his final observations to that court.

While not disregarding that the matter at stake was of importance to the applicant, the Court cannot but find that he must be held responsible for a very major part of the length of the proceedings . While there is some concern about the period of inactivity before the County Administrative Court, the Court finds, having regard to the above and taking into account the proceedings as a whole, that the length of the proceedings to date have not exceeded what can be considered reasonable within the meaning of Article 6 § 1 of the Convention.

It follows that the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected pursuant to Article 35 § 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Michael O ’ Boyle Nicolas Bratza Registrar President