FOURTH SECTION

PARTIAL 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 9 September 2003 as a Chamber composed of

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

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

Having deliberated, decides as follows:

THE FACTS

The applicant, Birger Johansson, is a Swedish national, who was born in 1943 and lives in Vedum, Sweden. He is represented before the Court by Ms S. Westerberg, a lawyer practising in Gothenburg.

A. The circumstances of the case

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

In February 1994 the applicant had an accident at work and injured his back. As a consequence thereof, he received sickness benefits ( 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 could result in a withdrawal or reduction of his sickness benefits. The 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. The Office replied that it considered that the medical material available to it was not sufficient to make an appropriate examination of his right to continued sickness benefits and that the aim of the requested medical examinations was to remedy those deficiencies.

The 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 benefits 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 benefits withdrawn. The physicians considered that the applicant was not consenting to the measure and therefore did not proceed with the examination.

Meanwhile, 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.

By a decision of 4 December 1996 the Office decided to withdraw the applicant's sickness benefits 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 benefits. 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 benefits had not been shown.

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.

By a judgment of 25 November 1999 the County Administrative Court upheld the Office's decision to withdraw the applicant's sickness benefits. The court found that the Office had had reasons to request complementary information. Although it was questionable whether the applicant could be legally forced to undergo the medical examinations, his stance in this regard had led the physicians to conclude that it was not possible to conduct the examinations in question and 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 sickness benefits could not be properly assessed under the Social Insurance Act.

The applicant appealed against the judgment to the Administrative Court of Appeal which, on 29 January 2002, refused leave to appeal. The applicant has since appealed to the Supreme Administrative Court where, it appears, the case is presently pending.

On 19 March 2002 the applicant contacted the Office in order to obtain copies of all the material in its possession concerning him. The Office replied that, considering the large amount of material in the applicant's file, the file was available for consultation at the Office during its working hours. The applicant subsequently complained to the Parliamentary Ombudsman ( Justitieombudsmannen ), requesting that copies of the documents in his file be given to him. The applicant also sent a similar request to the Office. On 4 July 2002 the Office informed the applicant that the requested material would be sent to the applicant for a statutory fee. In a subsequent letter to the Parliamentary Ombudsman, the applicant requested that the civil servants involved be charged with miscarriage of duty ( tjänstefel ). It appears that the Ombudsman has not taken any decision in this matter.

B. Relevant domestic law

Sickness benefits are, insofar as relevant to the present case, regulated in chapter 3, sections 7 and 8a and chapter 20, section 3 of the Social Insurance Act. A person is entitled to such benefits 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 benefits, 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 benefits may be refused, entirely or partially, until further notice, provided that he or she has been notified of this consequence.

COMPLAINTS

1. The applicant complains, under Article 8 of the Convention, that his right to integrity was violated by the Office's request that he undergo medical examinations. In his view, the examinations were superfluous as, allegedly, exhaustive medical reports were already available.

2. The applicant claims, under Articles 3 and 10 of the Convention and Article 1 of Protocol No. 1 to the Convention, that medical examinations, like the ones in question, often cause great suffering to the patient which he was able to avoid only with the support of his lawyer. Further, his liberty of expression was violated since his opinions, expressed verbally and in writing, on the examinations were interpreted as a refusal to cooperate and punished by the withdrawal of his sickness benefits. That withdrawal allegedly also violated his right to property.

The applicant also complains that the Office did not provide him access to all the material in his file, as he had requested. He does not rely on any provision of the Convention or its Protocols in this context.

3. The applicant further complains, under Articles 6 and 13 of the Convention, that no appeal lay against the Office's request that he undergo the examinations in question.

4. The applicant finally maintains, under Article 6 of the Convention, that the length of the proceedings concerning his appeal against the Office's request for examinations was excessive. He further expresses dissatisfaction with the delays in the proceedings concerning the withdrawal of the sickness benefits.

THE LAW

1. The applicant complains that the request for a medical examination of him was contrary to Article 8 of the Convention. That provision reads as follows:

“1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

The Court notes that the concept of “private life” is a broad term not susceptible to exhaustive definition (see, among other authorities, Pretty v. United Kingdom , no. 2346/02, § 61, 29 April 2002). There are therefore reasons to consider that a request for a medical examination, like the present one, may fall within the scope of Article 8. However, it is not necessary for the Court to make a definitive statement on this matter since it finds that, in any event, the possible interference was justified under the second paragraph of Article 8 for the following reasons. For the same reasons, although the case concerning the withdrawal of sickness benefits – in which proceedings the Office's request for medical examinations is assessed – is pending before the Supreme Administrative Court, the Court needs not determine the question of exhaustion of domestic remedies.

The second paragraph of Article 8 requires that any interference under the first paragraph must be “in accordance with the law”, have an aim or aims that is or are legitimate under that paragraph and be “necessary in a democratic society” for the aforesaid aim or aims. When assessing the notion of necessity, the Court will determine whether the interference in question was proportionate to the legitimate aim pursued. In so doing, the Court will take into account that a margin of appreciation is left to the national authorities.

Turning to the present case, the Court observes that the measures in question were taken in accordance with the relevant provisions of the Social Insurance Act and were thus in accordance with the law. It further finds that those provisions and the measures taken in the present case served the legitimate aim of ensuring that the deciding body had efficient means to make correct assessments. In regard to the “necessity” criterion, the Court finds no indication that the domestic authorities, in the circumstances of the case, were unreasonable in finding that further medical examinations were necessary and thus requesting the applicant to undergo such examinations in order to assess his eligibility to sickness benefits. Moreover, it should be noted that the applicant was not obliged to submit to medical examinations as they were only a condition for his receiving the benefits in question, which he had applied for himself. Thus, having regard also to the margin of appreciation afforded to Contracting States under Article 8 of the Convention, the Court considers that the requested measures were not disproportionate to the legitimate aim pursued.

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

2. The applicant claims that his rights under Articles 3 and 10 of the Convention and Article 1 of Protocol No. 1 to the Convention were violated in the case. He further complains that he was not given full access to his file at the Social Insurance Office.

Leaving aside the question of exhaustion of domestic remedies, the Court finds that the material in its possession does not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols in respect of the present complaints.

It follows that these complaints are also manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

3. The applicant further complains that no appeal lay against the Office's request that he undergo the examinations in question. In this respect, he relies on Articles 6 and 13 of the Convention which, insofar as relevant, read as follows:

Article 6 § 1:

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

Article 13:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

Leaving aside the question whether the issue at stake could be classified as a civil right within the meaning of Article 6 of the Convention, the Court observes that the administrative courts found that no separate appeal lay against the request in question which could thus only be appealed against in conjunction with an appeal against a decision to withdraw or reduce benefits. The applicant challenged the request for a medical examination in his appeal regarding the withdrawal of benefits and it appears from the reasoning of the County Administrative Court in its judgment of 25 November 1999 that it assessed whether the Social Insurance Office had had sufficient reasons to request the medical examinations. The Court thus finds that the applicant had a court examination, constituting an effective remedy, of the Office's request.

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

4. The applicant finally maintains, under Article 6 of the Convention, that the length of the proceedings concerning his appeal against the Office's request for examinations was excessive. He further expresses dissatisfaction with the delays in the proceedings concerning the withdrawal of the sickness benefits.

The Court finds that the applicant has, in substance, complained under Article 6 of the Convention about the length of both sets of proceedings in the case.

The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 3 (b) of the Rules of the Court, to give notice of this part of the application to the respondent Government.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant's complaint concerning the length of the proceedings;

Declares the remainder of the application inadmissible.

Michael O'Boyle Nicolas Bratza Registrar President