FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 61365/00 by Elvi AALTO against Sweden lodged on 5 March 2000

The European Court of Human Rights ( Fourth Section) , sitting on 18 November 2003 as a Chamber composed of

Sir Nicolas Bratza , President , Mrs V. Strážnická , Mr M. Fischbach , Mr J. Casadevall , Mr S. Pavlovschi , Mr J. Borrego Borrego , Mrs E. Fura-Sandström, judges and Mrs F. Elens-Passos , Deputy Section Registrar ,

Having regard to the above application introduced on 5 March 2000,

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, Elvi Aalto, is a Finish national, who was born in 1935 and lives in Helsingfors, Finland. She is represented before the Court by Mr Pietikäinen, who lives in Johanneshov. The respondent Government are represented by their Agent Mrs Inger Kalmerborn, Ministry for Foreign Affairs.

A. The circumstances of the case

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

The applicant worked full-time as a cleaning assistant from 1979 until 1993 when she had to stop due to pain in her neck, shoulders, right arm, knee joints, wrists and finger joints. In March 1995 she was granted a disability pension. Alleging that her disability was the result of harmful effects in her work the applicant claimed compensation (livränta). In this respect she and her counsel attended a meeting with the Social Insurance Office (Försäkringskassan) of the County of Stockholm. Apparently, the applicant’s request that her husband be heard as a witness was refused. An opinion of 29 April 1996 from one doctor, and an opinion of 6 June 1996 from another doctor, attached to the Social Insurance Office in order to assist with medical matters ( förtroendeläkare ; “insurance doctor”), were submitted. They both found that the permanent reduction of the applicant’s working capacity was not as such a result of a “harmful effect”, rather her suffering emanated from many years of hard work and her developed age.

On 25 September 1996 the Social Insurance Office refused the applicant’s claim for compensation.

On appeal to the County Administrative Court in Stockholm (Länsrätten i Stockholm), the applicant requested that an oral hearing be held since, alleging that it was impossible for her to obtain a detailed opinion from a doctor in Sweden, her counsel wanted to submit oral arguments on her case.

By decision of 13 November 1996 the court stated as follows:

”The proceedings before the court are written. According to Section 9 of the Administrative Court Procedure Act (förvaltningsprocesslagen) the proceedings before the administrative courts may include an oral hearing with regard to a particular issue when there is reason to assume that holding a hearing would be to the advantage of the proceedings or further the speedy determination of the case. An oral hearing shall take place at the request of an individual party to the case if such a hearing is necessary and there are no particular reasons against holding a hearing.

Having regard to the nature of the case and the evidence submitted, the court finds an oral hearing unnecessary

The court invites [the applicant] to submit no later that 16 December 1996 her final observations in the case.  If no documents are submitted, the case will be determined on the basis of the available material”.

The applicant made further submissions in the case. Also, she reiterated her request for an oral hearing, stating that she questioned the professional competence of the insurance doctor, and asserted that, without an oral hearing, her case would be adjudicated in an incompetent, unlawful and partial manner. She did not invoke any witnesses or other oral evidence.

On 14 October 1997 the County Administrative Court refused an oral hearing and delivered its judgment confirming the Social Insurance Office’s decision in the light of the material submitted, including the statements from the said two doctors. As regards the question of an oral hearing, the court held as far as relevant:

“Both [the applicant] and her representative were present at the meeting, after which the Social Insurance Office made their decision in the case. Moreover, she has described thoroughly in writing her place of work and the tasks assigned to her. In these circumstances, the court finds that the case has been clarified to the extent required. Therefore, an oral hearing is unnecessary.”

The applicant requested leave to appeal and an oral hearing in the leave ‑ to-appeal proceedings. In support of the latter she stated that she wanted to hear the insurance doctor as a witness, in order that he confirm his written opinion under oath, so that he would bear some responsibility for his statements, which in the applicant’s view lacked relevance.

By decision of 29 April 1999 the Administrative Court of Appeal (Kammarrätten i Stockholm) refused an oral hearing, and gave at the same time the applicant an opportunity to submit within two weeks further observations she might wish to invoke regarding the leave-to-appeal issue. The applicant, reiterating her request for an oral hearing, stated that neither the Administrative Court of Appeal, nor the insurance doctor was adequately qualified.

By decision of 18 June 1999 the Administrative Court of Appeal refused to grant the applicant leave to appeal against the County Administrative Court’s judgment of 14 October 1997. In her appeal to the Supreme Administrative Court the applicant stated that she considered the facts of the case to be clear due to her written observations and the fact that she had been present at the meeting with the Social Insurance Office. Nevertheless, her counsel wished to make oral submission on the appeal before the Administrative Court of Appeal.

On 7 February 2000 the Supreme Administrative Court (Regeringsrätten ) refused leave to appeal against the decision of 18 June 1999.

B. Relevant domestic law

1. Industrial Injury Insurance

All gainfully employed persons working in Sweden are insured against industrial injuries in accordance with the Act on Industrial Injury Insurance ( lagen om arbetsskadeförsäkring, 1976:380 ; hereinafter “the 1976 Act”). The term industrial injury refers mainly to injuries that result from accidents or other harmful effects at a person’s place of work.

Pursuant to chapter 8, Section 1 of the 1976 Act, an industrial injury shall immediately be reported to the employer, who shall report it to the Social Insurance Office. The office shall obtain a medical opinion concerning the injury. A physician shall be attached to the office in order to assist it in medical matters (the insurance doctor). The assessment of whether an injury qualifies as an industrial injury, as well as the degree of reduction of a person’s ability to engage in gainful employment, shall be made on the basis of the available medical opinions, the insurance doctor’s assessment of those opinions and any other information pertaining to the matter.

For an injury to be qualified as an industrial injury a causal link must be established between the accident or the harmful effect in the workplace and the insured persons’ health problems. What is meant by “harmful effect“ is the influence of a factor that is very likely to cause an injury or illness such as that incurred by the insured person. At the relevant time, the question whether a particular injury or illness incurred by the insured person was to be regarded as an industrial injury was subject to the following special rule of evidence. If the insured person had suffered an accident or had been subjected to some other harmful effect at work, his or her medical problems were presumed to have been caused by the accident or the harmful effect if there were substantial grounds in support of such a conclusion (chapter 2, Section 2 of the 1976 Act in its wording from 1 January 1993 until 30 June 2002).

2. Procedure

The procedure in the administrative courts is governed by the provisions of the Administrative Court Procedure Act ( förvaltningsprocesslagen , lag 1971:291 - hereinafter “the 1971 Act”). Section 9 provides:

“The proceedings are in writing.

An oral hearing may be held in regard to a certain issue, when there is reason to assume that that would be to the benefit of the proceedings or the speedy determination of the case.

In the Administrative Court of Appeal and the County Administrative Court an oral hearing shall be held if requested by an individual party to the proceedings, and if it is not unnecessary and there are no particular reasons against holding a hearing.”

The possibility for an individual party to obtain an oral hearing on request under those circumstances is not available in the proceedings before the Supreme Administrative Court.

According to the preparatory documents to the 1971 Act, an oral hearing can be a valuable complement to the written proceedings and may benefit the examination of a case in two situations in particular: firstly, when it is necessary to hear a witness, an expert or a party or when it is difficult for a party to present the case in writing and, secondly, when different positions in the case need to be sorted out in order to eliminate unnecessary or pointless issues of dispute. In the latter case, the oral hearing takes on a preparatory character. It was stressed, however, that an oral hearing should not to be seen as an alternative to the written procedure but as a complement to it (see Government Bill 1971:30, p. 535).

It was further stated, in respect of the third paragraph of Section 9, that a party’s request for an oral hearing should be given great consideration. However, such a request should not have a decisive influence on the matter, as the question whether an oral hearing is necessary is to be determined primarily on the basis of the available information in the case. Still, other circumstances may be of relevance, for instance the importance for the party of the matter at stake or the possibility that an oral hearing could enhance the party’s understanding of a future decision in the case. Nevertheless, if the case is of a trivial character or the costs of an oral hearing would be disproportionate to the values at stake in the case, there could be reason not to hold an oral hearing (p. 537).

COMPLAINTS

1. The applicant complains, under Article 6 of the Convention, that the Swedish courts refused to hold an oral hearing.

2. Moreover, under the same provision she complains that the insurance doctor was not an expert and that the court did not ex officio require a statement from a medico-legal expert included among the experts (sakkunnige) appointed by the Ministry of Justice.

THE LAW

1. The applicant complains that the lack of an oral hearing before the courts fell foul of Article 6 § 1 of the Convention, the relevant parts of which reads as follows:

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair and public hearing ... by [a] ... tribunal...”

The Government contend that Article 6 § 1 of the Convention was applicable to the proceedings before the Country Administrative Court as opposed to the proceedings before the Administrative Court of Appeal and the Supreme Administrative Court, since the decision whether or not to grant the applicant leave to appeal did not involve a determination of her civil rights within the said Article.

In the Government’s view there existed circumstances in the case that justified dispensing with an oral hearing, and the County Administrative Court’s decisions on this procedural matter had been fully in line with domestic law. In this respect they submit inter alia that the disputed matter concerned the isolated question whether there was a causal link between harmful conditions in the applicant’s workplace and the permanent reduction of her working capacity, which led to her early retirement in 1995. In order to establish whether such a link existed the County Administrative Court, possessing no medical expertise , had to rely on the assessment made by medical experts. In the present case written observations were submitted as to the applicant’s workplace and working tasks, and opinions from two different medical specialists. Moreover, the court had access to the Social Insurance Office’s case-file. The applicant did not invoke any witnesses or other oral evidence to be heard by the County Administrative Court and there is no indication that she wished to give evidence herself. The only reason stated for her request for an oral hearing was that her counsel wanted to expound orally on her case since allegedly it was impossible in Sweden to obtain a detailed opinion from a doctor. The Government point out that the applicant could have provided the courts with further medical opinions, if she disapproved of the content of the existing ones. In these circumstances the Government maintain that the available written evidence were sufficient for a proper assessment of the applicant’s case and an oral hearing would not have provided the court with any additional information that could have been of importance for its adjudication. Moreover, the applicant had been assisted by counsel apparently familiar with the subject ‑ matter and she could thus not be considered to have had difficulties in arguing her case in writing. Finally, the Government recall the principle of public access to official documents, which Sweden subscribes to.

The applicant disagrees.

The Court observes that the applicability of Article 6 § 1 of the Convention to the proceedings before the County Administrative Court is not in dispute, and the Court sees no reason to find otherwise. As to the remainder of the proceedings, the Court recalls its finding in Blom v. Sweden (dec.), no. 28338/95, 14 March 2000, as to the inapplicability of Article 6 § 1 to proceedings before the Supreme Social Insurance Court, which concerned the sole question whether or not to grant leave to appeal.  Nevertheless, noting that in the present case as a result of the refusal of leave to appeal by the Administrative Court of Appeal and the Supreme Administrative Court, the County Administrative Court became the only court to examine the merits of the applicant’s case, the Court will proceed on the assumption that Article 6 § 1 of the Convention applies to the proceedings as a whole.

The Court recalls that the entitlement to a “public hearing” in Article 6 § 1 necessarily implies a right to an “oral hearing”, notably in proceedings before a court of first and only instance. However, the obligation under Article 6 § 1 to hold a public hearing is not an absolute one. Thus, a hearing may be dispensed with if a party unequivocally waives his or her right thereto and there are no questions of public interest making a hearing necessary. A waiver can be done explicitly or tacitly, in the latter case for example by refraining from submitting or maintaining a request for a hearing (see, among other authorities, Håkansson and Sturesson v. Sweden , judgment of 21 February 1990, Series A no. 171-A, p. 20, §§ 64 and 66; and Schuler-Zgraggen v. Switzerland , judgment of 24 June 1993, Series A no. 263, pp. 19-20, § 58).

Furthermore, a hearing may not be necessary due to the exceptional circumstances of the case, for example when it raises no questions of fact or law which cannot be adequately resolved on the basis of the case-file and the parties’ written observations (see inter alia Salomonsson v. Sweden, no. 38978/97, § 34, 12 November 2002, unreported; Lundevall v. Sweden, no. 38629/97, § 34, 12 November 2002, unreported; Döry v. Sweden, no. 28394/95, § 37, unreported; and mutatis mutandis , Fredin v. Sweden (no. 2), judgment of 23 February 1994, Series A no. 283-A, pp. 10 ‑ 11, §§ 21-22; and Fischer v. Austria , judgment of 26 April 1995, Series A no. 312, pp. 20 ‑ 21, § 44).

In the present case the applicant specifically requested an oral hearing both before the County Administrative Court and the Administrative Court of Appeal. Thus no question arises as to whether or not the applicant has waived her right thereto.

It remains to be examined whether the circumstances of the applicant’s case were such as to justify the absence of an oral hearing.

The disputed matter before the County Administrative Court concerned the question whether there was a causal link between “harmful conditions” in the applicant’s workplace and the health problems she suffered, and accordingly whether the applicant was entitled to compensation and a life annuity. The Court reiterates its recognition that disputes concerning benefits under social ‑ security schemes are generally rather technical and their outcome usually depends on the written opinions given by medical doctors. Many such disputes may accordingly be better dealt with in writing than in oral argument. Moreover, it is understandable that in this sphere the national authorities should have regard to the demands of efficiency and economy. Systematically holding hearings could be an obstacle to the particular diligence required in social-security cases (see the following judgments cited above: Schuler-Zgraggen pp. 19-20, § 58; Salomonsson § 38; Lundevall § 38 and Döry § 41).

The Court notes that the applicant, represented by counsel, did attend a meeting with the Social Insurance Office of the County of Stockholm, before it took its position on the matter.

Also, the Court notes that the County Administrative Court before it had the case-file from the Social Insurance Office, a description of the applicant’s working place and work tasks, and medical opinions from two doctors, one of whom was attached to the Social Insurance Office in order to assist with medical matters. Both stated that the permanent reduction of the applicant’s working capacity was not a result of a “harmful effect in the workplace” entailing the influence of a factor that is very likely to cause an injury or illness; rather her suffering emanated from many years of hard work combined with her developed age.

The applicant, who was represented by counsel throughout the whole proceedings, did not invoke any witnesses with medical competence, nor did she submit that the court should obtain a statement from a medico-legal expert amongst the experts appointed by the Ministry of Justice.

Also, there was no indication that the applicant wished to give evidence herself, or that she found that the court would benefit from meeting her in person.

In fact, the only reason submitted for her request for an oral hearing was that her counsel wanted to make oral submissions on her case, alleging that it was impossible for the applicant to obtain a detailed opinion from a doctor in Sweden. It does not appear that the applicant ever attempted to obtain an opinion from another doctor.

In these circumstances, the Court finds that the applicant’s submissions to the County Administrative Court were not capable of raising any issues of fact or of law, pertaining to the determination of whether within the notion of the Act on Industrial Injury Insurance there was a causal link between harmful conditions in her workplace and her health problems, which were of such a nature as to require an oral hearing for their disposition (see among others Döry v. Sweden , cited above, § 43; Allan Jacobsson v. Sweden (No. 2), cited above, § 49; and Strömblad v. Sweden (dec.), no 45935/99, 11 February 2003). In this assessment the Court also takes into consideration that the County Administrative Court in its decision of 13 November 1996 rejecting the applicant’s requests for an oral hearing, invited her to submit final observations in writing. The applicant made further submissions in the case, and reiterated her request for an oral hearing, stating that she questioned the professional competence of the insurance doctor, and asserted that without an oral hearing her case would be adjudicated in an incompetent, unlawful and partial manner. Nor this time did she invoke any witnesses or other oral evidence. Referring to its finding above, the Court finds that such a submission was not capable of raising any issues of fact or of law, pertaining to the determination of whether within the notion of the Act on Industrial Injury Insurance there was a causal link between the harmful effect in her workplace and her health problems, which were of such a nature as to require an oral hearing for their disposition. In addition, the Court reiterates, that the public had access to the case ‑ file.

As to the Administrative Court of Appeal and the Supreme Administrative Court, these courts only determined whether or not leave to appeal should be granted and, as a consequence of their refusal to grant leave, did not carry out a full examination of the applicant’s case. Before the Administrative Court of Appeal the applicant requested an oral hearing in order “that the insurance doctor confirm his written opinion under oath, so that he would bear some responsibility for his statements, which in the applicant’s view lacked relevance”. There is no indication that the applicant at this stage of the proceedings had attempted to get a second opinion from another doctor. Thus, even assuming that Article 6 § 1 applies to the determination of this question, the Court finds that it could be adequately resolved on the basis of the case file and the written submissions and that, accordingly, the absence of an oral hearing before the Administrative Court of Appeal and the Supreme Administrative Court was justified.

Consequently, the Court finds that there were particular circumstances, which justified dispensing with a hearing in the applicant’s case.

It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected in accordance with Article 35 § 4.

2. As to the complaint that the insurance doctor was not an expert, the Court notes that before the County Administrative Court the applicant questioned the professional competence of the said doctor, and that before the Administrative Court of Appeal the applicant stated that she wanted to hear the insurance doctor as a witness, in order that he confirm his written opinion under oath, so that he would bear some responsibility for his statements, which in the applicant’s view lacked relevance. It does not appear that the applicant pursued this issue before the Supreme Administrative Court. Nevertheless, even assuming that the applicant has exhausted domestic remedies as to this part of the complaint, on the evidence before it, the Court has found no elements in the case, which substantiates the applicant’s allegation that the insurance doctor was not an expert, and that therefore the proceedings were unfair or that the courts reached their decision unfairly. It follows that this part of the complaint is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected pursuant to Article 35 § 4.

With regard to the complaint that the County Administrative Court did not ex officio require a statement from a medico-legal expert included among the experts appointed by the Ministry of Justice, the Court recalls that pursuant to Article 35 § 1 of the Convention, it may only deal with a matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law. This condition is not met by the mere fact that an applicant has submitted his or her case to the various competent courts. It is also necessary for the complaint brought before the Court to have been raised by the applicant, at least in substance, during the proceedings in question. On this point the Court refers to its established case-law. In the present case the Court finds that in the proceedings before Swedish courts the applicant failed to raise either in form or in substance the complaints that is made to the Court. It follows that this part of the application is inadmissible for non ‑ exhaustion of domestic remedies within the meaning of Article 35 § 1 of the Convention and must be rejected pursuant to Article 35 § 4.

For these reasons, the Court by a majority

Declares the application inadmissible.

Françoise Elens - Passos Nicolas Bratza Deputy Registrar President