ROMLIN proti Švédsku



AS TO THE ADMISSIBILITY OF

Application No. 27122/95

by Tinna ROMLIN

against Sweden

The European Commission of Human Rights (Second Chamber) sitting

in private on 4 September 1996, the following members being present:

Mrs. G.H. THUNE, President

MM. J.-C. GEUS

G. JÖRUNDSSON

A. GÖZÜBÜYÜK

J.-C. SOYER

H. DANELIUS

F. MARTINEZ

L. LOUCAIDES

M.A. NOWICKI

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

P. LORENZEN

E. BIELIUNAS

E.A. ALKEMA

M. VILA AMIGÓ

Ms. M.-T. SCHOEPFER, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 13 January 1995

by Tinna ROMLIN against Sweden and registered on 25 April 1995 under

file No. 27122/95;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant, a Swedish citizen born in 1965, resides at

Sollentuna. Before the Commission she is represented by Mr. Georg

Antal, a lawyer practising in Stockholm.

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

summarised as follows.

On 14 December 1989 the applicant applied for a disability

allowance (handikappersättning) under Chapter 9, Section 2 of the

Social Insurance Act (Lagen om allmän försäkring, 1962:381) on the

grounds of incapacity due to rheumatoid arthritis and asthma.

On 20 March 1991 the Social Insurance Office (Försäkringskassan)

of the County of Stockholm rejected the application, finding that the

applicant's need for assistance and her additional costs due to her

handicap did not attain the level required under the above provision.

Upon appeal, the Administrative Court of Appeal (Kammarrätten)

in Stockholm, on 7 December 1992, upheld the Social Insurance Office's

decision. The applicant did not request an oral hearing in the

appellate court nor did the court order one of its own motion.

The applicant then appealed to the Supreme Social Insurance Court

(Försäkringsöverdomstolen). She requested the court to hold an oral

hearing. She did not, however, complain about the lack of an oral

hearing before the Administrative Court of Appeal.

On 13 July 1994 the Supreme Social Insurance Court decided not

to hold a hearing and on 30 December 1994 it refused the applicant

leave to appeal against the appellate court's judgment.

With regard to the proceedings in the administrative courts,

Section 9 of the Administrative Procedure Act (Förvaltningsprocess-

lagen, 1971:271) provides that they are generally in writing. An oral

hearing may be held, however, if this is for the benefit of the

examination of the case or promotes its speedy determination. The

Administrative Court of Appeal shall hold an oral hearing, if it is

requested by a party and not unnecessary or inexpedient.

COMPLAINT

The applicant claims that the refusal to hold an oral hearing

constituted a violation of Article 6 of the Convention.

THE LAW

The applicant complains that she was denied an oral hearing. She

invokes Article 6 (Art. 6) of the Convention, which in its relevant

parts reads as follows:

"1. In the determination of his civil rights and

obligations ..., everyone is entitled to a ... public

hearing ... by ... [a] tribunal ..."

The Commission first considers that the applicant, in applying

for an disability allowance, claimed an individual, economic right

under the Social Insurance Act. The Commission finds that the

examination of the claim involved a determination of the applicant's

civil rights and that, therefore, Article 6 para. 1 (Art. 6-1) of the

Convention applies to this examination (cf. Eur. Court HR, Salesi v.

Italy judgment of 26 February 1993, Series A no. 257-E, pp. 59-60,

para. 19, and Schuler-Zgraggen v. Switzerland judgment of 24 June 1993,

Series A no. 263, p. 17, para. 46).

The Commission is of the opinion, however, that when a Supreme

Court determines, in a preliminary examination of the case, whether or

not the conditions required for granting leave to appeal have been

fulfilled, it is not making a decision relating to "civil rights and

obligations" (cf. No. 11826/85, Helmers v. Sweden, Dec. 9.5.89, D.R.

61 p. 138).

In the present case, the decision of the Supreme Social Insurance

Court of 13 July 1994 not to hold an oral hearing was taken during the

proceedings in which that court, without entering on the merits,

refused the applicant leave to appeal against the judgment of the

Administrative Court of Appeal. It follows that Article 6 para. 1

(Art. 6-1) of the Convention does not apply to this decision.

This part of the application is thus incompatible ratione

materiae with the provisions of the Convention within the meaning of

Article 27 para. 2 (Art. 27-2).

In so far as the applicant's complaint concerns also the lack of

an oral hearing in the Administrative Court of Appeal, the Commission

recalls that the applicant neither requested that court to hold an oral

hearing nor complained to the Supreme Social Insurance Court about the

appellate court's failure to hold a hearing.

In this respect, the Commission recalls that the right to a

"public hearing" in the sense of Article 6 para. 1 (Art. 6-1) may

entail an entitlement to an "oral hearing" (cf., e.g., Eur. Court HR,

Fredin v. Sweden (no. 2) judgment of 23 February 1994, Series A no.

283-A, p. 10, para. 21). However, neither the letter nor the spirit

of this provision prevents a person from waiving of his own free will,

either expressly or tacitly, the entitlement to have his case heard in

public, but any such waiver must be made in an unequivocal manner and

must not run counter to any important public interest (cf., e.g., the

above-mentioned Schuler-Zgraggen v. Switzerland judgment, pp. 19-20,

para. 58).

In the present case, Section 9 of the Administrative Procedure

Act provided that an oral hearing should be held if a party so

requested and if it was not unnecessary or inexpedient. As the

proceedings in the administrative courts, as indicated by that

provision, are generally in writing, the applicant could be expected

to request the Administrative Court of Appeal to hold an oral hearing

if she attached importance to it. She did not do so, however. It may

reasonably be considered, therefore, that she unequivocally waived her

right to a hearing in the appellate court. Moreover, it does not

appear that the dispute in question raised issues of public importance

such as to make a hearing necessary.

It follows that this part of the application is manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

M.-T. SCHOEPFER G.H. THUNE

Secretary President

to the Second Chamber of the Second Chamber