FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 38978/97 by Hans SALOMONSSON against Sweden

The European Court of Human Rights ( First Section ), sitting on 4 May 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 with the European Commission of Human Rights on 15 September 1997 and registered on 11 December 1997,

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 1937, resides in Järfälla .  Before the Court he 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

On 17 October 1994 the applicant lodged an application for disability benefits under Chapter 9, Section 2 of the 1962 Social Insurance Act ( lagen om allmän försäkring ; hereinafter “the 1962 Act”), claiming that he had extra costs or expenses following an operation on his intestines in September 1994.

On 28 December 1994 the Social Insurance Office ( försäkringskassan ; hereinafter “the Office”) of the County of Stockholm rejected the application, finding that the applicant’s costs did not attain the level required under the 1962 Act.

Later the applicant made a new application, which was rejected by the Office on 8 February 1995.

The applicant then appealed to the County Administrative Court ( länsrätten ) of the County of Stockholm.  On 16 May 1995 the court rejected his appeal.  The court did not hold an oral hearing nor did the applicant request one.

Following the applicant’s further appeal, the Administrative Court of Appeal ( kammarrätten ) in Stockholm, by decision of 17 November 1995, refused him leave to appeal.

On 5 December 1995 the applicant made yet another application for disability benefits.  On 3 April 1996 the application was rejected by the Office, which again found that the applicant’s costs did not attain the required level.

The applicant appealed to the County Administrative Court.  Finding that the information in the case was incomplete, the court ordered the National Social Insurance Board ( Riksförsäkringsverket ; hereinafter “the Board”) to submit observations in the case.  The Board answered by letter of 13 August 1996, in which it contested the applicant’s claims.  The applicant made observations in reply.

On 16 October 1996 the County Administrative Court gave judgment in the applicant’s favour.  The court found that the applicant’s costs attained the level required under the 1962 Act and thus granted him disability benefits.  An oral hearing was not requested by the applicant nor did the court hold one on its own motion.

The Board appealed against the judgment to the Administrative Court of Appeal which, by decision of 2 April 1997, granted leave to appeal.

By letter of 23 April 1997, the applicant requested the appellate court to hold an oral hearing in the case.  On 15 May 1997 the court, considering that a hearing was unnecessary, 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 at 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 available in the case, finds that an oral hearing is unnecessary and rejects the request for such a hearing.  [The applicant] is invited to submit his 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.”

The applicant reiterated his request for an oral hearing on 22 May 1997.

On 24 June 1997 the Administrative Court of Appeal rejected the applicant’s renewed request for an oral hearing and gave judgment in favour of the Board.  Thus, it quashed the County Administrative Court’s judgment and confirmed the Office’s decision of 3 April 1996.

The applicant appealed to the Supreme Administrative Court ( Regeringsrätten ).  He requested that the case be referred back to the Administrative Court of Appeal for re ‑ examination or, alternatively, that the Supreme Administrative Court confirm the County Administrative Court’s judgment.  He complained about the lack of an oral hearing in the Administrative Court of Appeal and also requested the Supreme Administrative Court to hold an oral hearing.

On 26 August 1997 the Supreme Administrative Court refused the applicant leave to appeal.

B. Relevant domestic law

a. Disability benefits

According to Chapter 9, Section 2 of the 1962 Act an insured person who is ill or handicapped may receive disability benefits, provided that, before reaching the age of 65, he has become functionally impaired for a considerable time and to such a degree that he is in need of more time-consuming assistance from another person on a daily basis, is in need of continuing assistance in order to be gainfully employed or otherwise has considerable extra expenses.

It is the total need of support and assistance that determines whether an insured person is entitled to disability benefits and – should that be the case – the amount of compensation.  When making this assessment it is necessary to look into the insured person’s whole situation and to add together the need for different types of assistance and extra expenses. A medical report is required when it comes to the assessment of the functional impairment itself.  As far as extra expenses are concerned, the extent to which other measures from the social services compensate also has to be taken into account.

b. 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 the Supreme Administrative Court ( Regeringsrätten ).

The Supreme Administrative Court cannot examine a case on its merits without first granting leave to appeal.  The Court can grant leave to appeal in two different situations: if it is of importance for guidance in application of the law that the Court examine the case; and if there are extraordinary reasons for the Court to examine the case, e.g. on account of the fact that a ground exists 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”).  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.  Thus, 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 Administrative 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 also stressed that oral elements in the proceedings are not to be seen as an alternative to the written procedure but merely 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

1. The applicant claims that the lack of an oral hearing before the Administrative Court of Appeal and the Supreme Administrative Court constituted a violation of Article 6 of the Convention.

2. Further under Article 6 of the Convention, the applicant contends that the conclusions made by the Administrative Court of Appeal were arbitrary and not in accordance with relevant rules and the available evidence in the case.

THE LAW

1. The applicant complains about the lack of an oral hearing before the Administrative Court of Appeal and the Supreme Administrative Court.  He 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 ...”

The applicant maintains that his right to a fair and public hearing has been violated.  He submits that an oral hearing may be suspended only if the applicant 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 case.

According to the applicant the case did not only concern purely medical matters.  The main reason for an oral hearing was that he would then have been able to explain his personal health situation and how it affected him.  This would have been a complement to the written evidence available in the case and could have contributed to dispelling any uncertainties regarding the facts.  At an oral hearing the court would also have had the opportunity to direct questions to the applicant, and counsel for him could have acted in order to make corrections as to the result of the medical evaluations at hand.

The Government question whether there did not exist in this particular case circumstances that justified dispensing with an oral hearing.  The Administrative Court of Appeal based its determination of the applicant’s case solely on written evidence.  Moreover, the applicant had already in his written observations to the court submitted an account of his factual situation.  The court was therefore aware of the problems he encountered and there was, according to the Government, consequently no need for him to reiterate his problems orally.

Furthermore, the Government maintain that all available evidence of relevance was in writing and that it would not have been possible for the Administrative Court of Appeal, since it had no medical expertise of its own, to make its own assessment, as a result of meeting the applicant in person, of whether his capacity to function was impaired to such a degree that he had considerable extra expenses.  The case concerned purely medical issues or issues closely related to such issues.  It was therefore necessary for the court to lean heavily on the medical expertise at hand.  This expertise took the form of either written certificates or notes of interviews with the expert concerned.  In the light of this there was, in the Government’s contention, no need for an oral hearing.

Lastly, the Government maintain that counsel representing the applicant in the proceedings had submitted a number of writs and appears to have been familiar with the subject-matter, and that it cannot therefore be considered to have been difficult for the applicant to argue his case 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 this part of 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.

2. The applicant contends that the conclusions made by the Administrative Court of Appeal were arbitrary and not in accordance with relevant rules and the available evidence in the case.

The Court recalls that, in accordance with Article 19 of the Convention, its only task is to ensure the observance of the obligations undertaken by the Parties in the Convention.  In particular, it is not competent to deal with applications concerning errors of law or fact allegedly committed by the competent national authorities, to whom it falls, in the first place, to interpret and apply domestic law.  The Court has no competence to examine allegations concerning such errors except where, and to the extent that, they seem likely to have entailed a possible violation of any of the rights and freedoms set out in the Convention (see the Garcia Ruiz v. Spain judgment of 21 January 1999, § 28, with further reference, to be published in Reports of Judgments and Decisions 1999).

It is true that the applicant contends that the conclusions made by the Administrative Court of Appeal were arbitrary and not in accordance with relevant rules and the available evidence and invokes in this respect Article 6 of the Convention.  However, an examination of this part of the application has not disclosed any appearance of a violation of this provision.

It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

For these reasons, the Court, unanimously,

DECLARES ADMISSIBLE , without prejudging the merits of the case, the applicant ’s complaint that he was not granted 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.)