FIRST SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 45935/99 by Einar STRÖMBLAD against Sweden

The European Court of Human Rights (First Section) , sitting on 7 November 2000 as a Chamber composed of

Mrs W. Thomassen , President , Mrs E. Palm, Mr Gaukur Jörundsson , Mr R. Türmen , Mr C. Bîrsan , Mr J. Casadevall , Mr R. Maruste , judges , [Note1]

and Mr M. O’Boyle, Section Registrar ,

Having regard to the above application introduced on 12 November 1998 and registered on 4 February 1999,

Having deliberated, decides as follows:

THE FACTS

The applicant is a Swedish national, born in 1950 and living in Kristianstad .

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

The applicant is the father of 3 children born in 1985, 1986 and 1990.  His children live permanently with their mother.  Since the applicant’s children do not live with both their parents they are entitled to a certain monthly allowance, called maintenance support, from the Social Insurance Office ( Försäkringskassan ).  The monthly amount is 1,173 SEK per child. This system is regulated by the Maintenance Support Act ( lagen om underh Ã¥llsstöd, 1996 : 1030). According to this Act the parent who is liable under civil law for maintenance must in whole or in part repay the community’s costs for maintenance support.  The amount that shall be repaid is determined as a percentage of the income of the person liable for maintenance.  If the liable parent has 3 children he or she shall pay as a maximum 5% of their income for each child.  The Maintenance Support Act came into force on 1 December 1996.

On 20 January 1997 the Social Insurance Office decided that the applicant should repay a total sum of 2,247 SEK every month for the community’s costs for the maintenance support concerning his 3 children.  Thus, according to the decision the applicant should repay 749 SEK per month for each of his 3 children.  According to Section 25 of the Maintenance Support Act the income which was considered by the Social Insurance Office when determining the amount the applicant should repay was based on the most recent tax assessment decision.

By letter of 23 January 1997 the applicant requested the Social Insurance Office to review its decision under Section 38 of the Maintenance Support Act.  The applicant claimed that the Social Insurance Office had failed to estimate correctly his ability to pay the amount in question.  In this respect he argued that the Social Insurance Office should have based its calculations on his income today and not on the most recent tax assessment decision.  By decision of 7 March 1997 the Social Insurance Office found that there was no basis for a review of its earlier decision.

The applicant appealed to the County Administrative Court ( Länsrätten ).  In his appeal the applicant argued that he did not have enough income to pay the amount set by the Social Insurance Office.  He pointed out that the calculations regarding his ability to repay maintenance support were based on his income before the Maintenance Support Act came into force.  The applicant argued that the decision, therefore, had a retroactive effect incompatible with the Swedish Constitution, i.e. the Instrument of Government ( Regeringsformen ).  Furthermore, the applicant pointed out that the Social Insurance Office, when calculating his income, had added to his income from business activity a deficit from a previous fiscal year, which he had used as a deduction from his income for the relevant year.  The applicant argued that this method of calculation resulted in confiscation and did not reflect his ability to pay maintenance support.

In his appeal the applicant also requested the County Administrative Court to hold an oral hearing in the case.  In this respect the applicant argued that he personally wanted to participate in an oral hearing due to the issue of principle in the case and the great economic impact a judgment could have on him.

On 8 April 1997 the County Administrative Court informed the applicant as follows:

(Translation)

“The proceedings before [the court] consist of a written procedure.  The proceedings may include an oral hearing with regard to a certain issue, when there is a reason to assume that such a measure would be to the advantage of the proceedings or that a rapid determination of the case is promoted.  An oral hearing shall take place on the request of an individual party to the case, if such a hearing is not unnecessary and there are no particular reasons against it...

…It appears that you do not want to submit any new information at the hearing but rather conduct a legal argumentation about the retroactivity of the legislation concerned and on how your deficit from earlier years’ taxation should be regarded when determining the amount that should be repaid.  Having regard to these circumstances [the court] finds that the examination of the case is limited to issues concerning the application of the law.  Therefore, [the court] finds an oral hearing unnecessary.

[The court] hereby gives you the opportunity to submit no later than 22 April 1997 your final observations in the case.  If no response is submitted to [the court], the case will be determined on the basis of the available material.”

The applicant made further submissions in the case and reiterated his request for an oral hearing.

On 18 June 1997 the County Administrative Court delivered its judgment confirming the Social Insurance Office’s decision.  The court found that the calculation of the applicant’s income was done in accordance with the rules set out in the Maintenance Support Act.  The court noted that it was true that the calculation of the applicant’s income was based on the most recent tax assessment decision, but that the amount that he was obliged to repay concerned future maintenance support.  Therefore, the court did not consider the decision as retroactive within the meaning of the Instrument of Government.

As regards the question of oral hearing the Court held as follows:

(Translation)

“Considering what [the applicant] has argued in the case [the court] finds that the examination of the case is limited to issues concerning the application of the law.  Having regard to this [the court] considers an oral hearing unnecessary.”

The applicant appealed to the Administrative Court of Appeal ( Kammarr ä tten ) .  In his appeal the applicant complained about the lack of an oral hearing in the County Administrative Court and maintained all his other requests.  By decision on 28 January 1998 the Court of Appeal refused leave to appeal.

The applicant appealed to the Supreme Administrative Court ( Regeringsrätten ).  On 17 September 1998 the Supreme Administrative Court refused leave to appeal.

COMPLAINTS

1. The applicant complains that the lack of an oral hearing in his case constituted a violation of Article 6 § 1 of the Convention.

2. The applicant complains also that the judgment of the County Administrative Court had retroactive effect in that the calculation of the amount he should repay to the Social Insurance Office concerning maintenance support was based on his income for 1995 and that the Maintenance Support Act entered into force on 1 December 1996.  In this respect the applicant invokes Article 7 of the Convention.

3. Furthermore, the applicant complains that the County Administrative Court did not consider whether he was actually able to pay the amount and that Swedish legislation does not even make it possible for the courts to consider his ability to pay.  In this respect he invokes Article 1 of Protocol No. 1 to the Convention.

4. Finally, the applicant complains that the County Administrative Court did not consider or investigate both parents’ financial situation when fixing the amount he should repay.  Therefore, he argues that the decision constituted a violation Article 5 of Protocol No. 7 to the Convention.

THE LAW

1. The applicant complains that the lack of an oral hearing in his case constituted a violation of Article 6 § 1 of the Convention.

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

2. The applicant also complains under Article 7 of the Convention that the judgment of the County Administrative Court had retroactive effect.

Article 7 of the Convention provides that no one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence at the time when it was committed.  It also provides that a heavier penalty shall not be imposed than the one that was applicable at the time the criminal offence was committed.

The Court notes that the applicant was not the subject of any criminal charge or conviction.  Thus, Article 7 of the Convention does not apply.

It follows that this part of the application is incompatible ratione materiae with the provisions of the Convention, within the meaning of Article 35 § 3 of the Convention and must be rejected in accordance with Article 35 § 4.

3. Furthermore, the applicant complains under Article 1 of Protocol No. 1 to the Convention that he has been forced to repay an amount he has no means to pay.

Under Article 1 of Protocol No. 1 to the Convention every natural or legal person is entitled to the peaceful enjoyment of his possessions . Furthermore, the Article provides that no one shall be deprived of his possessions except in the interest and subject to the conditions provided for by law and by the general principles of international law.

The Court notes that the amount the applicant is obliged to pay to the Social Insurance Office is a repayment for the maintenance support that the office has paid to the applicant’s children.  The applicant is not obliged to pay a higher amount to the Social Insurance Office than actually has been paid for his children’s maintenance.  Furthermore, it should be noted that the Maintenance Support Act provides the conditions for repayment.  In this respect it should also be noted that the applicant’s ability to repay the amount in question was considered by setting the amount as a certain percentage of his taxable income.

Under these circumstances the Court finds that an examination of this part of the application fails to disclose any appearance of a violation of Article 1 of Protocol No. 1 to the Convention.  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.

4. Finally, the applicant complains that the County Administrative Court did not consider both parents’ financial situation when fixing the amount he should repay.  Therefore, he argues that the decision constitutes a violation of Article 5 of Protocol No. 7 to the Convention.

Article 5 of Protocol No. 7 to the Convention reads as follows:

“Spouses shall enjoy equality of rights and responsibilities of a private law character between them, and in their relations with their children, as to marriage, and in the event of its dissolution. This Article shall not prevent states from taking such measures as are necessary in the interest of the children.”

The Court finds that an examination of this part of the application fails to disclose any appearance of a violation of Article 5 of Protocol No. 7 to the Convention.

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.

For these reasons, the Court, unanimously,

DECIDES TO ADJOURN the examination of the applicant ’s complaint about lack of an oral hearing.

DECLARES INADMISSIBLE the remainder of the application.

Michael O’Boyle Wilhelmina Thomassen Registrar President

[Note1] Judges names are to be followed by a COMMA and a MANUAL LINE BREAK ( Shift+Enter ). When inserting names via AltS please remove the substitute judge’s name, if necessary, and the extra paragraph return(s). (There is to be no extra space between the judges’ names and that of the Section Registrar.)