FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 38629/97 by Rolf LUNDEVALL 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 28 February 1997 and registered on 17 November 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 1919, resides in Västerås .  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 6 October 1986 the applicant applied for disability benefits under Chapter 9, Section 2 of the Social Insurance Act ( lagen om allmän försäkring ; hereinafter “the 1962 Act”), claiming that he was in need of assistance and had additional costs due to a speech impediment caused by a laryngectomy operation in 1979.

On 9 April 1987 the Social Insurance Office ( försäkringskassan ; hereinafter “the Office”) of the County of Västmanland rejected the application, finding that the applicant’s needs or costs did not attain the level required under the 1962 Act.

By letter of 27 December 1990, the applicant requested the Office to review its decision under Chapter 20, Section 10a of the 1962 Act.  The applicant claimed that he had failed to fully state his need of assistance and additional costs in his original application.  On 27 April 1991 the applicant, alternatively, asked the Office to consider his request as a new application and to grant him an allowance as from November 1988.

By decision of 12 July 1991, the Office found that there was no basis for a review of its earlier decision.  Further, in regard to the applicant’s alternative claim, the Office noted that the applicant had reached the age of 65 in 1984 and that information relating to the time that followed could not be taken into account under the relevant rules.  Consequently, the applicant’s alternative claim was rejected.

The applicant appealed to the County Administrative Court ( länsrätten ) of the County of Västmanland .  On 13 November 1992 the court gave judgment in the applicant’s favour.  The court found that the Office’s decision of 27 April 1987 had been based on insufficient information and that, consequently, the Office should have reviewed that decision at the applicant’s request.  Moreover, finding that the applicant’s needs and costs attained the level required under the 1962 Act, the court granted him a disability allowance as from July 1986.  The court did not hold an oral hearing in the case.  It appears that the applicant did not request such a hearing.

On 11 December 1992 the National Social Insurance Board ( Riksförsäkringsverket ; hereinafter “the Board”) appealed against the County Administrative Court’s judgment to the Administrative Court of Appeal ( kammarrätten ) in Stockholm, requesting that the Office’s decision of 12 July 1991 be confirmed.  The Board argued that there were no grounds for a review under Chapter 20, Section 10a of the 1962 Act. In addition, the Board requested the appellate court to stay the enforcement of the appealed judgment.  The latter request was granted by the appellate court on 30 December 1992.

The applicant made submissions in response to the Board’s appeal.  On 25 February 1993 he requested the Administrative Court of Appeal to hold an oral hearing in the case during which the person in charge of the case at the Office should give evidence.  The applicant also asked the court to obtain the opinion of a medical expert.

On 12 November 1993 the Administrative Court of Appeal decided that it was not necessary to hold an oral hearing, 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 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 court further refused to obtain a medical expert’s opinion.

The applicant and the Board made further submissions in the case.  The applicant requested that the court order the Board to clarify its position in the case.  The court did not do so, however.  On account of this and the court’s decision of 12 November 1993, the applicant called into question the impartiality of the proceedings.  By letters of 16 September 1994 and 10 January 1995, he reiterated his request for an oral hearing.  He submitted, inter alia , that such a hearing would give him the opportunity to ask questions to the Board and that it would also help the court to meet him in person when assessing his condition.  The applicant further stated that an oral hearing would give him the opportunity to present judgments from similar cases in support of his application for disability benefits.  The court communicated the applicant’s submissions to the Board.

On 1 November 1995 the Administrative Court of Appeal, after having rejected the applicant’s renewed requests for an oral hearing, gave judgment in favour of the Board.  Thus, it quashed, by 3 votes to 2, the County Administrative Court’s judgment and confirmed the Office’s decision of 12 July 1991.  The court found that there had been no basis for a review of the Office’s decision of 9 April 1987.

The applicant appealed to the Supreme Administrative Court ( Regeringsrätten ).  He complained about the lack of an oral hearing in the Administrative Court of Appeal and requested that the case be referred back to the latter court which should hold a hearing and re ‑ examine the case.  He also requested the Supreme Administrative Court to hold an oral hearing.  On 24 February 1997 the Supreme Administrative Court refused the applicant leave to appeal.

On 9 October 1996 the applicant made a renewed request for a disability allowance.  By decision of 12 December 1996, the Office found that he had special needs and costs due to his handicap which attained the level required under the 1962 Act.  As an allowance might be granted retroactively only for the two years preceding the application, the applicant was granted an allowance as from October 1994.

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).

In addition to the possibility of an ordinary appeal, there is also a review procedure available.  Thus, the 1962 Act offers the Office a limited possibility of changing a previous decision of its own for the purpose of curing certain specified, obvious defects of the decision.  According to Chapter 20, Section 10a the Office shall change a decision, provided that the matter has not been considered by a court, if the decision is 1) obviously incorrect owing to an error in transcription, calculation or any other similar oversight; 2) incorrect as having been taken on the basis of obviously incorrect or incomplete material; and 3) incorrect owing to an obviously incorrect application of the law or any other similar mistake.

The question of changing a decision under the said provision should, in principle, be raised within 2 years from the day the decision was taken. However, if it would appear first after the 2 years have elapsed that the decision was taken on the basis of obviously incorrect or incomplete material, or if other extraordinary reasons would call for a change, a decision may be changed without regard to any such time-limit (ibid.).  The change of a decision under this provision is an action to be taken ex officio by the Office.  A decision taken in accordance with this provision is subject to appeal under the general rules already described.

COMPLAINTS

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

2. Further under Article 6 of the Convention, the applicant contends that the proceedings in the Administrative Court of Appeal were unfair and failed to respect the principle of “equality of arms”.  He states that the court stayed the enforcement of the County Administrative Court’s judgment without having obtained clear reasons from the National Social Insurance Board for their request to have the judgment stayed.  Further, the appellate court allegedly failed to take proper account of the applicant’s submissions and, instead, based its judgment on the vague and unverified arguments put forward by the Board.

THE LAW

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

Article 6 of the Convention 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 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.  He 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 him, and his counsel could have acted in order to make corrections as to the result of the medical evaluations at hand.

The applicant also maintains that the new procedural situation in the appellate court – with the National Social Insurance Board as his counterparty – also called for an oral hearing as well as the fact that the case was not at all clear. He recalls in this respect that two of the five members of the court wanted to decide in favour of him.

The Government contend, at the outset, that it is an open question whether the proceedings at issue actually involved the determination of the applicant’s civil rights and thus whether Article 6 is applicable to them.  The Government maintain that the proceedings before the Administrative Court of Appeal dealt with the issue of whether or not the applicant was entitled to a review of the original decision of the Office not to grant him disability benefits, which is, allegedly, mainly a procedural issue.  Further, the court did not rule on the merits of the case.  Against this background, the Government questions in the first place whether the application should not be declared inadmissible ratione materiae as being incompatible with the provisions of the Convention.

Furthermore, the Government question whether there did not exist in this particular case circumstances that justified dispensing with oral hearings.  First of all, the Government maintain, the fact that the applicant did not request the County Administrative Court to hold oral hearings means that he at least tacitly waived his entitlement to have his case heard in public in relation to that judicial instance.  Secondly, the Administrative Court of Appeal found it unnecessary to hold an oral hearing, which allegedly seems to be a fairly correct assessment considering the fact that the main issue mainly concerned points of law.  The Government also submit that the applicant’s wish to call the official in charge of his case at the Office as a witness seems rather to reflect a request to have the Office’s decisions further explained.  Hearing the official would allegedly hardly have added anything to the court proceedings.  In addition, neither would the presentation at an oral hearing of decisions and judgments from other, similar cases, which the applicant wanted to invoke in support of his own case.

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 proceedings in the Administrative Court of Appeal were unfair and failed to respect the principle of “equality of arms”.

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, invoking Article 6 of the Convention, maintains that the Administrative Court of Appeal stayed the enforcement of the County Administrative Court’s judgment without sufficient reasons and that the appellate court based its judgment on the allegedly vague and unverified arguments put forward by the Board.  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.)