FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 28394/95 by Marta DÖRY against Sweden

The European Court of Human Rights ( First Section ), sitting on 23 May 2000 as a Chamber composed of

Mrs W. Thomassen, President , Mrs E. Palm, Mr L. Ferrari Bravo, Mr C. Bîrsan, Mr J. Casadevall, Mr B. Zupančič, Mr T. Panţîru, judges , and Mr M. O’Boyle , Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 21 May 1995 and registered on 31 August 1995,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

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, a Swedish citizen born in 1958, resides in Bandhagen .  Before the Court she is represented by Mr Georg Antal , a lawyer practising in Stockholm.

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

A. Particular circumstances of the case

a. Case concerning industrial injury benefits as from 28 April 1990

By a provisional decision of the Social Insurance Office ( försäkringskassan ; hereinafter “the Office”) of the County of Stockholm of 25 April 1990, payments of industrial injury benefits under the 1976 Act on Industrial Injury Insurance ( lagen om arbetsskadeförsäkring ; hereinafter “the 1976 Act”) to the applicant were discontinued as from 1 March 1990.  This decision was confirmed by a final decision of 2 July 1990.  The Office considered that the applicant’s ability to work was not reduced due to her back problems to such an extent that she was entitled to the benefits in question under the applicable rules of the 1976 Act.

The applicant later requested the Office to review its decision, which it did on 20 November 1991.  Save for the grant of benefits for the period 1 March–27 April 1990, the Office upheld its previous decision and also found that the applicant was not entitled to a life annuity.

The applicant appealed against the decision to the County Administrative Court ( länsrätten ) of the County of Stockholm, claiming that she was entitled to continued benefits after 27 April 1990.

By judgment of 8 April 1992, the County Administrative Court, having regard to the medical certificates and the other evidence in the case, upheld the Office’s decision.

The applicant then appealed against this judgment to the Administrative Court of Appeal ( kammarrätten ) in Stockholm.  She requested that an oral hearing be held.  On 5 November 1992 the court rejected the request, giving the following reasons:

(Translation)

“The proceedings before the [court] consist of a written procedure.  According to Section 9 of the Administrative Court Procedure Act, the proceedings may include an oral hearing with regard to a certain issue, when there is 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.

The [court], having regard to the subject-matter at issue and the facts currently available in the case, finds that an oral hearing is unnecessary.  [The applicant] is invited to submit her final written observations in the case within two weeks after receipt of this decision.

A decision in the case can be made notwithstanding failure to submit [such] written observations.”

On 25 February 1994 the Administrative Court of Appeal rejected the applicant’s appeal and her renewed request for an oral hearing.

The applicant appealed against the judgment to the Supreme Social Insurance Court ( Försäkringsöverdomstolen ).  She complained about the lack of oral hearings in the lower courts.

By letter of 9 February 1995, the Supreme Social Insurance Court informed the applicant that an oral hearing in the case appeared to be unnecessary.  She was given the opportunity to submit further observations on the question of leave to appeal.

On 8 June 1995 the Supreme Social Insurance Court refused the applicant leave to appeal.

b. Case concerning sickness benefits as from 1 July 1991

The applicant was on sick leave between 1 May and 30 June 1991, during which period she received per diem sickness benefits under the 1962 Social Insurance Act ( lagen om allmän försäkring ; hereinafter “the 1962 Act”).  However, by decision of 7 August 1991, the Office found that she was no longer entitled to such benefits.  At the applicant’s request, the Office reviewed its decision on 10 June 1992 but did not change it.

On 15 September 1993 the County Administrative Court, upon the applicant’s appeal, found that the available medical evidence did not show that the applicant was entitled to benefits as from 1 July 1991.  The appeal was thus rejected.

The applicant appealed against the judgment to the Administrative Court of Appeal.  She requested also in this case that the court hold an oral hearing.  On 2 December 1993 the court rejected the request, finding that, in the circumstances of the case, a hearing was unnecessary.

On 25 February 1994 the Administrative Court of Appeal rejected the applicant’s appeal and her renewed request for an oral hearing.

The applicant appealed against the judgment to the Supreme Social Insurance Court.  She requested again that an oral hearing be held in the case.  She also complained about the lack of oral hearings in the lower courts.

By letter of 9 February 1995, the Supreme Social Insurance Court informed the applicant that an oral hearing in the case appeared to be unnecessary.  She was given the opportunity to submit further observations on the question of leave to appeal.

On 8 June 1995 the Supreme Social Insurance Court refused the applicant leave to appeal.

B. Relevant domestic law

a. Industrial injury insurance

All gainfully employed persons working in Sweden are insured against industrial injuries in accordance with the 1976 Act.  Anyone who is put on the sick-list as a result of an industrial injury and who is insured under the 1962 Act is entitled to the same per diem benefit from the ordinary sickness insurance (social insurance) during the first 90 days as if he was sick for a reason other than an industrial injury.  When 90 days have passed, the insured person is entitled to a per diem sickness benefit in accordance with the 1976 Act (industrial injury insurance), if his ability to carry on with gainful employment is reduced by at least 25 per cent (50 per cent prior to 1 July 1990).  After the period of sickness has come to an end and the insured person is no longer on the sick-list, he is entitled to a life annuity if his capacity for gainful employment is reduced by at least a fifteenth.

An industrial injury shall immediately be reported to the employer, who shall report it to the appropriate social insurance office.  The office shall obtain a medical opinion concerning the injury.  A doctor shall be attached to the office in order to assist the office in medical matters (“insurance doctor”).  The assessment 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.

b. Social insurance

Anyone who is insured and registered with the Social Insurance Office has the right to a per diem sickness benefit if he has a yearly income of at least 6,000 Swedish kronor (SEK).  All Swedish nationals and other residents in Sweden are automatically insured in accordance with the 1962 Act.

A per diem benefit is granted to an insured person, whose sickness reduces his ability to work by at least 25 per cent.  The Social Insurance Office may require that a medical opinion is submitted in support of an allegation that work capacity has been reduced.  The Office shall obtain the information that is necessary in each individual case in order to assess whether an insured person is entitled to a per diem sickness benefit.  Such information may entail a medical opinion from the insured person’s own doctor and an assessment by the insurance doctor.

c. Procedure

A decision by the Social Insurance Office in accordance with the 1962 Act may be appealed against to the County Administrative Court and from there on to the Administrative Court of Appeal and, at the relevant time, to the Supreme Social Insurance Court.  The latter court was the highest social insurance court prior to 1 July 1995.  The Supreme Social Insurance Court was abolished with effect from this date and its tasks were taken over by the Supreme Administrative Court ( Regeringsrätten ).

The Supreme Social Insurance Court could not examine a case on its merits without first granting leave to appeal.  According to the provisions in force after 1 July 1993, the Court could grant leave to appeal in two different situations: if it was of importance for guidance in application of the law that the Court examine the case; and if there were extraordinary reasons for the Court to examine the case, e.g. on account of the fact that a ground existed for the re-opening of the case or that the outcome of the case in the inferior court was clearly due to a gross oversight or a gross mistake.

The procedure in the administrative courts is governed by the provisions of the 1971 Administrative Court Procedure Act ( förvaltningsprocesslagen ; hereinafter ”the 1971 Act”).  The same Act also regulated the proceedings before the Supreme Social Insurance Court.  According to Section 9 of the Act, the proceedings consist of a written procedure.  However, the proceedings may include an oral hearing with regard to a certain issue, when there is 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.  According to the third paragraph of Section 9, an oral hearing shall take place before a County Administrative Court and an Administrative Court of Appeal 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.  The opportunity for an individual party to the case to obtain an oral hearing on request under those circumstances was not available in the proceedings before the Supreme Social Insurance Court.

According to the travaux préparatoires to the 1971 Act (Government Bill 1971:30, p. 353) the oral element can be a valuable complement to the written proceedings and an oral hearing can be of advantage to the examination of a case in two respects, mainly.  First of all, in order to hear a witness, an expert witness or a party, or when it is difficult for a party to present the case in writing.  Secondly, in order to sort out the different positions in the case and to eliminate unnecessary or pointless issues of dispute.  In the latter case, the oral hearing takes on a preparatory character.  When the Act was drafted, it was stressed that oral elements in the proceedings are not to be seen as an alternative to the written procedure but as a complement to it.

The reference in Section 9 of the 1971 Act to the promotion of a rapid determination of the case was added in 1983.  The purpose was to make it clearer that an oral hearing could, and should, be held in order to further a more rapid and effective examination of the case.  The amendment aimed mainly at such cases concerning taxation that are connected with criminal proceedings before the general courts (cf. Government Bill 1982/83:134).

In connection with the enactment of the 1971 Act it was 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, the party would not be allowed to have a decisive influence in the matter.  The question whether or not an oral hearing is unnecessary should primarily be determined against the background of the available information in the case.  Other circumstances can, however, also be of relevance, for instance the importance for the party of the matter at stake or the fact that an oral hearing would enhance the party’s understanding of a future decision in the case.  A particular reason against the holding of an oral hearing can be that the case is of a trivial character or that the costs for an oral hearing would not be proportionate to the values involved in the matter at stake (cf. Government Bill 1971:30, p. 537).

COMPLAINTS

The applicant claims that the lack of an oral hearing before the courts constituted a violation of Article 6 of the Convention.

THE LAW

The applicant complains that no oral hearings were held in the court proceedings which determined her right to industrial injury benefits and sickness benefits, respectively.

She invokes Article 6 of the Convention which reads, so far as relevant, as follows:

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

She maintains that she did not give an explicit motive for her request for an oral hearing, since it must have been tacitly understood that an oral hearing is requested in an administrative court in order to further the examination of the case.

The applicant also submits that an oral hearing may be suspended only if the person concerned has explicitly waived his right thereto and, in addition, if there are exceptional circumstances justifying dispensing with the hearing.  The applicant claims that an oral hearing was indispensable in the cases.

The Government question the necessity of oral hearings in the evaluation of these particular cases.  The Government maintain that the fact that the applicant did not request the County Administrative Court to hold oral hearings means that she at least tacitly waived her entitlement to have her cases heard in public in relation to that judicial instance.

The Government assert that the applicant has not on any occasion invoked oral evidence before the courts.  Thus, the hearing of a witness or an expert was never in issue.  Nor was there ever a question of the applicant herself giving evidence.  Furthermore, the Government submit that since the applicant was represented by counsel, it cannot not be considered to have been difficult for her to argue her cases in writing.

In conclusion, the Government are of the opinion that the application is manifestly ill ‑ founded.

The Court considers, in the light of the parties’ submissions, that the applicant’s complaint raises complex issues of law and fact under the Convention, the determination of which should depend on an examination of the merits of the application.  The Court co n cludes, therefore, that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.  No other grounds for declaring it inadmissible have been established.

For these reasons, the Court, unanimously,

DECLARES THE APPLICATION ADMISSIBLE , without prejudging the merits of the case.

Michael O’Boyle Wilhelmina Thomassen Registrar President