FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 48630/99 by Tinna ROMLIN against Sweden

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 lodged on 19 April 1999,

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, Tinna Romlin, is a Swedish national, who was born in 1965 and lives in Sollentuna. She is represented before the Court by Mr Ulf Jacobson, a juris candidate , practising in Stockholm. The Government is represented by Mrs I. Kalmerborn of the Ministry for Foreign Affairs, as Agent.

A. The circumstances of the case

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

The applicant suffers from rheumatoid arthritis.

On 14 December 1989 the applicant applied for a disability allowance ( handikappersättning ) under Chapter 9, Section 2 of the Social Insurance Act ( Lagen om allmän försäkring, 1962:381 ) on the grounds of incapacity due to rheumatoid arthritis and asthma. On 20 March 1991 the Social Insurance Office ( försäkringskassan ) of the County of Stockholm rejected the application, finding that her need for assistance and her additional costs due to her handicap did not attain the level required under the above provision. Upon appeal, the Administrative Court of Appeal ( kammarrätten ) in Stockholm, on 7 December 1992, upheld the Social Insurance Office’s decision. On 30 December 1994 the Supreme Social Insurance Court ( Försäkringsöverdomstolen ) refused the applicant leave to appeal. No oral hearing was held in those proceedings.

In the meantime, in August 1993 the applicant reapplied for a disability allowance.

According to certain minutes of the Social Insurance Office, dated 15 December 1993, the Social Security Office decided to propose to the Social Insurance Board that the applicant be provisionally granted disability benefits at the level of 36% of the basic amount ( basbeloppet ) from January until and including July 1994. According to Office minutes of 29 December 1993, the Office later considered that the applicant’s studies at a certain high school and another school could be viewed on a par with gainful employment and that the extent of her additional expenses for travelling with her own car were such as to entitle her to compensation at the level of 69% of the basic amount.

On 20 January 1994 the Social Insurance Office decided:

“As from January 1993, [the applicant’s] additional expenses because of her reduced functional capacity entitled her to a disability allowance at the level of 69 per cent of the basic amount.”

The applicant, represented by a lawyer, appealed against the Office’s decision to the County Administrative Court of the County of Stockholm, claiming that the reduction in her functional capacity caused by her handicap and her need for support had remained unaltered at any rate since August 1991 and that she should have been granted a disability allowance as from then. She invoked the existing medical reports, in particular medical certificates:

(a) A certificate of 26 March 1991 by Dr Svante Larsson, Chief Doctor at the Edsberg Labour Market Institute, to the effect that the applicant had very strong joint symptoms and that it was very unsuitable that she travel by public transport;

(b) A medical certificate of 9 September 1991 by Dr Ethel Nilsson, Acting Chief Doctor at the Clinic of Rheumatology of the Karolinska Hospital, stating that several years ago the applicant had undergone tests at the Rheumatology Ward, that she did not manage to travel with public transport and needed a specially equipped car;

(c) A medical certificate of 25 February 1993 by Dr Malcolm Puke;

(d) Various medical certificates by Dr Esbjörn Larsson, Rheumatologist;

(e) A statement of 16 June 1993 by Professor Dr Sigvard Kopp.

In the Convention proceedings, the Government have not pointed to any contrary medical evidence.

The applicant submitted that, in the investigation carried out by the Social Insurance Office, no information has emerged that lends support to the position adopted, that it could not grant disability compensation for the period prior to January 1993. The applicant asked the court to obtain the opinion of experts in rheumatology as regards the extent of the applicant’s handicap and of her need for support before and after January 1993. Moreover, she requested that the court hold an oral hearing.

On 4 May 1995 the County Administrative Court rejected her requests that it obtain an expert opinion and hold an oral hearing. It reiterated the contents of sections 8 and 9 (see under title “B” below) of the Administrative Court Procedure Act ( förvaltningsprocesslagen , 1971:291; hereinafter “the 1971 Act”). It observed that, having regard to the nature of the issue and the investigation carried out in the case, the court found it unnecessary to hold a further investigation in the form of an expert opinion and an oral hearing. The court gave the applicant two weeks within which to indicate the further circumstances she wished to invoke and to submit her final written observations. It does not appear that the County Administrative Court invited the applicant expressly to give reasons for her request for an oral hearing.

On 9 May 1995 the applicant’s lawyer, invoking Article 6 of the Convention, protested against the refusal to hold an oral hearing. As regards the merits of the case, the lawyer stressed that there was no material ground for limiting the retroactive effect of the grant of disability benefits to January 1993. In this connection, the lawyer invoked another case decided by the County Administrative Court, from which the applicant’s case could not, in his view, be distinguished.

By judgment of 22 June 1995, the County Administrative Court upheld the Social Insurance Office’s decision. The judgment contained a brief summary of the proceedings since March 1991 and of the relevant provisions in Chapter 9, section 2, and Chapter 16, section 5, of the Social Insurance Act. As regards the specific circumstances of the applicant’s case, it stated:

“The County Administrative Court, which finds that a grant of benefits under the Social Insurance Act does not constitute a civil right, does not consider that an oral hearing is necessary in order to determine the case.

The County Administrative Court makes the following assessment. The investigation in this case does not suggest that [the applicant’s] total need for assistance resulting from her handicap before January 1993 was of such a degree as to fulfil the conditions for entitlement to disability benefits. The appeal shall therefore be rejected.”

The applicant, through her lawyer, appealed against the above judgment to the Administrative Court of Appeal ( kammarrätten ) requesting that it quash the judgment and refer the case back for fresh proceedings. In the alternative, she requested the appellate court to give a new decision to the effect that she was entitled as from August 1991 to disability benefits at a level corresponding to 69% of the base amount.

As regards the merits, the applicant disputed the lower court’s findings as to her disability and need for assistance prior to January 1993. Referring to the assessments made by the Social Insurance Office on 6 August 1990 and 20 December 1993, she maintained that the County Administrative Court’s findings were “invented” and lacked credibility. She stressed that the 1993 assessment took account of the same types of need for assistance as the 1990 assessment, including the need for cover of car expenses. The applicant queried what the County Administrative Court meant by “the investigation in the case”. Since the court had not established the applicant’s need for assistance or additional expenses for the period prior to January 1993, on what grounds had it reached the conclusion that she was not entitled to disability allowance during the said period? The evidence in the case did not show any radical change around December 1992/January 1993. In the light of these considerations, the applicant asked the administrative Court of Appeal to carry out an investigation in order to establish the extent of her disability and additional expenses for the period from August 1991 to December 1992 and grant her a disability allowance for this period. The applicant also requested an oral hearing.

In December 1997 the Administrative Court of Appeal rejected her request for an oral hearing, finding this unnecessary for determining whether to grant her leave to appeal and gave her two weeks for completing her submissions in writing. On 5 January 1998 the court refused her leave to appeal.

On 9 February 1998 the Supreme Administrative Court ( Regeringsrätten ), recalling that it normally did not hold oral hearings, rejected the applicant’s request for such a hearing and gave her three weeks within which to submit additional written observations. On 25 February 1999 it refused the applicant leave to appeal.

B. Relevant domestic law

1. Disability benefits

According to chapter 9, section 2 of the 1962 Act, a person who is ill or handicapped is entitled to disability benefits, provided that, before reaching the age of 65, he or she has become functionally impaired for a considerable time and to such a degree that he or she needs time-consuming assistance from another person in everyday life or continuing assistance in order to be gainfully employed or otherwise has considerable extra expenses. The total need for support and assistance determines the eligibility for disability benefits and the amount of compensation. It is thus necessary to look at the whole situation of the person in question and to add together the need for different types of assistance and the extra expenses. According to the National Social Insurance Board’s ( Riksförsäkringsverket ; hereinafter “the Board”)  guidelines, the total cost of all extra needs due to the disability should come to at least 28.5% of a basic amount geared to the price index ( basbelopp ) in order to make the individual eligible for an allowance.

In order to be granted disability benefits, the claimant must make an application to the Social Insurance Office. Under Chapter 16, section 5 of the 1962 Act, such benefits may be disbursed retroactively with respect to a certain period prior to the application, which is not to exceed two years. The purpose of this provision was to avoid that the claimant forfeit his or her entitlement due to lack of information.

Disability benefits are not subject to taxation. According to Chapter 9, section 3, of the 1962 Act (as in force on 1 January 2001) such benefits are granted on a yearly basis at a level of 69, 53 or 36% of the basic amount, depending on the extent to which the insured person is in need of assistance and the amount of extra expenses caused by the disability. On 20 January 1994, when the Office granted the applicant disability benefits, the basic amount was SEK 35,200.

2. Procedure

A decision by the Social Insurance Office under the 1962 Act may be appealed against to the County Administrative Court and from there on to the Administrative Court of Appeal and the Supreme Administrative Court.

The procedure in the administrative courts is governed by the provisions of 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 ( I kammarrätt och länsrätt skall muntlig förhandling hållas, om enskild som för talan i målet begär det samt förhandlingen ej är obehövlig och ej heller särskilda skäl talar mot det )”.

From the case-law of the national courts, it appears that the grounds stated in the third sub-paragraph of section 9 for refusing an oral hearing have been interpreted as being alternative rather than cumulative (see Regeringsrättens Årsbok 1997 ref 62).

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 work 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 of 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).

COMPLAINT

The applicant complained that the lack of an oral hearing in her case constituted a violation of Article 6 § 1 of the Convention. Moreover, she complained under this provision that the competent courts had failed to carry out a proper review of her judicial appeal against the administrative decision in issue and consequently denied her a fair hearing.

THE LAW

Insofar as is relevant, Article 6 § 1 of the Convention reads:

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

1. The applicant complained firstly and principally that the refusal of the national courts to hold an oral hearing violated the above provision. She argued that, like the Social Insurance Office, the County Administrative Court and the Administrative Court of Appeal had failed to assess her need for assistance, which defect could have been redressed had the applicant and her counsel been given an opportunity to present oral arguments at a public hearing. She would then have explained directly to the court the situation of her medical condition and its effects on her day-to-day life, notably with respect to her need for assistance. By taking oral evidence from her and counsel for the Social Insurance Office, the courts would have been able to complete the evidence and to assess a part of the evidence that was central to the case. In practice, the two-year rule on retrospective grant of benefits applied irrespective of the claimant’s knowledge or ignorance of the possibility to apply for benefits.

The Government did not dispute that the proceedings before the County Administrative Court involved the determination of the applicant’s civil rights and that the above provision was applicable with respect to those proceedings. On the other hand, they argued that this was not so as regards the leave to appeal proceedings before the Administrative Court of Appeal and the Supreme Administrative Court, to which Article 6 § 1 was inapplicable.

As regards the County Administrative Court’s refusal to hold an oral hearing, the Government submitted that, although this court in effect acted as the only judicial instance in this case and in so doing dealt with matters of both fact and law, there were in their view exceptional circumstances that justified dispensing with an oral hearing. In the first place, they referred to the reasons given by the County Administrative Court for its refusal of 4 May 1995 to hold a hearing, which was in accordance with domestic law.

Moreover, the issue to be decided concerned only the extent to which the grant of benefits should be made retroactively under the two year limitation rule which had been introduced to avoid forfeiture of entitlements for reasons of ignorance. However, this applicant had previously applied for such benefits and certainly was not unaware of the possibilities to do so. Her functional disorder and her need for assistance and additional expenses as well as the relevant evidence had been reviewed in the context of her previous application and appeared uncontroversial. The new fact to be considered related to the applicant’s studies and when these had started, namely in January 1993, was not a matter of dispute. The issue to be determined was from what time she was entitled to the disability benefits. Thus there were strong reasons for believing that an oral hearing would not have provided the County Administrative Court with any additional information that could have been of importance to its adjudication of the applicant’s case. The issue of retroactive grant of disability benefits was one that could hardly be illuminated by meeting the applicant in person but rather by studying the relevant medical opinions and other reports.

Furthermore, the applicant did not state any reasons for her request to the County Administrative Court to hold a hearing and never invoked any witness - or other evidence. Being represented by counsel, she had no difficulty in arguing her case in writing.

It should be added that the principle of public access was secured by public access to official documents which applied to most documents contained in the court case-files.

Finally, regard should be had to the Article 6 requirement to conclude judicial proceedings within a reasonable time.

Even assuming that Article 6 was applicable to the Administrative Court of Appeal and the Supreme Administrative Court in this case, it followed from the limited nature of the leave to appeal issue and from the various considerations mentioned above with respect to the County Administrative Court, that no failure arose under this provision with regard to the appellate court’s refusal to hold a hearing.

In the light of the above, the Government requested the Court to declare the application inadmissible as being manifestly ill-founded.

The Court, having regard to the parties’ submissions, considers that the complaint about the lack of an oral hearing raises complex issues of law and fact under the Convention, the determination of which should depend on an examination of the merits of the complaint. The Court concludes, therefore, that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 1 of the Convention. No other grounds for declaring the said complaint inadmissible have been established.

2. The applicant further complained under Article 6 § 1 of the Convention that the competent courts had failed to carry out a proper review of her judicial appeal against the administrative decision at issue and consequently denied her a fair hearing.

However, the Court considers that this complaint is unsubstantiated and is moreover contradicted by the fact that the County Administrative Court actually disposed of her claim that she was entitled to disability benefits for a period prior to January 1993, going as far back as August 1991. The Court concludes that this part of the application discloses no appearance of a violation of Article 6 § 1 of the Convention. It follows that it must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares admissible, without prejudging the merits, the applicant’s complaint concerning [Note1] the lack of an oral hearing;

Declares the remainder of the application inadmissible.

Françoise Elens-Passos Nicolas Bratza                    Deputy Registrar President

[Note1] Summarise the complaints succinctly without necessarily citing the invoked Convention Articles.