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Cite as: [2012] ECHR 247
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FIFTH SECTION
DECISION
Application no. 14628/08
Annette ESKILSSON
against Sweden
The European Court of Human Rights (Fifth Section), sitting on 24 January 2012 as a Chamber composed of:
Dean Spielmann, President,
Elisabet Fura,
Boštjan M. Zupančič,
Ann Power-Forde,
Ganna Yudkivska,
Angelika Nußberger,
André Potocki, judges,
and
Claudia Westerdiek, Section
Registrar,
Having regard to the above application lodged on 8 March 2008,
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, Mrs Annette Eskilsson, is a Swedish national who was born in 1952 and lives in Bor. The Swedish Government (“the Government”) were represented by their Agent, Ms A. Erman, of the Ministry for Foreign Affairs.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
As from 1994 the applicant held a leading position in a big hospital. From 1996 onwards she suffered increasingly from stress and hypertension to the extent that she experienced burnout and was no longer able to work and therefore went on sick leave as from August 1998. At this time she also submitted an occupational injury report (arbetsskadeanmälan) to the Social Insurance Office (Försäkringskassan) in Mora.
In June 1999 the Social Insurance Office granted her an early retirement pension on the ground that she had permanently lost her work capacity because she suffered from hypertension and burnout.
In the meantime, on 6 May 1999, the applicant filed an application for life annuity (livränta) with the Social Insurance Office, claiming that her burnout and hypertension had been directly caused by her work.
In January 2000 the applicant submitted a medical certificate from her doctor, Dr E.F., which stated that she suffered from burnout and hypertension and that her work situation had caused or worsened these conditions. However, on 7 November 2000, Dr B.K., one of the Social Insurance Office’s own medical doctors (försäkringsläkare), made the assessment that the applicant’s work had involved such a high level of stress that it had worsened her hypertension but that it had not caused it. As concerned the burnout, there was a lack of scientific consensus that burnout could be caused by factors such as those to which the applicant had been exposed at her work.
On 21 November 2000 the Social Insurance Office informed the applicant that it was considering rejecting her application for life annuity. It sent her a copy of the case-file and asked her to submit any comments she might have. The applicant replied on 26 November 2000 that she maintained her claims and, in December 2000, she submitted a new medical certificate by Dr E.F. In view of these documents, the Social Insurance Office again asked Dr B.K. to assess the applicant’s condition. Dr B.K. did not alter his assessment.
On 24 April 2001 the Social Insurance Office rejected the applicant’s application for life annuity on the ground that her medical problems could not be regarded as work-related. The medical opinion given on 7 November 2000 by Dr B.K. was attached to the decision.
By letter dated 22 May 2001 the applicant appealed to the County Administrative Court (länsrätten) of Jönköping, claiming that she had a right to a life annuity and maintaining that her medical conditions had been caused by her work.
On 17 October 2001 the County Administrative Court rejected the applicant’s appeal. It found, on the basis of several medical opinions including the ones given by Dr B.K. and Dr E.F., that it had not been established that the working conditions had caused the burnout and the hypertension.
By letter dated 5 December 2001 the applicant appealed to the Administrative Court of Appeal (kammarrätten) of Jönköping, reiterating her claims already presented before the County Administrative Court.
The appellate court decided to request an expert opinion which was received by the court on 30 April 2002. By decision of 17 December 2002, the court granted leave to appeal. Subsequently, in June 2004, the applicant, who was now represented by legal counsel, requested that an expert opinion be obtained from a psychiatrist. The court granted the request and ordered that the opinion be submitted no later than 1 October 2004. After the court had contacted the psychiatrist, Dr I.W., on five occasions over the phone and once by mail, the opinion was finally submitted on 14 March 2005. Both parties were given the opportunity to comment on the expert opinions and each others’ submissions, which they did. Moreover, the applicant requested and was granted an extension of time-limit to submit her comments and further medical certificates on several occasions.
On 9 June 2005 the Administrative Court of Appeal rejected the appeal, finding that the applicant’s working conditions had not contained harmful elements of such scale, duration and intensity that they could have caused, with a high level of probability, her hypertension and burnout.
By letter dated 1 September 2005 the applicant appealed to the Supreme Administrative Court (Regeringsrätten), reiterating the grounds of appeal already presented before the lower instances.
On 18 September 2007 the Supreme Administrative Court refused the applicant leave to appeal.
Relevant domestic law and practice
Civil liability of the State
Chapter 3 of the Tort Liability Act deals with the civil liability of the State. According to Section 2 of that chapter, acts or omissions by a public authority may give rise to an entitlement to compensation in the event of fault of negligence.
An individual who wants to claim compensation from the State may proceed in either of two different ways: He or she may either petition the Chancellor of Justice (Justitiekanslern) in accordance with Section 3 of the Ordinance on the Administration of Claims for Damages against the State (Förordning om handläggning av skadeståndsanspråk mot staten, 1995:1301), or bring a civil action against the State before a district court, with the possibility to appeal to a court of appeal and the Supreme Court. No appeal lies against a decision of the Chancellor of Justice. However, if the claim is rejected, the claimant still has the possibility to institute civil proceedings before the courts. In such proceedings, the State is represented by the Chancellor of Justice (section 2 of the Ordinance with Instructions for the Chancellor of Justice [Förordning med instruktion för Justitiekanslern, 1975:1345]).
Compensation for violations of the Convention
i. Case-law developments
In a judgment of 9 June 2005 (NJA 2005 p. 462) the Supreme Court dealt with a claim for damages brought by an individual against the Swedish State, inter alia, on the basis of an alleged violation of Article 6 of the Convention. The case concerned the excessive length of the criminal proceedings and the Supreme Court held that the plaintiff’s right under Article 6 of the Convention to have the criminal charges against him determined within a reasonable time had been violated. Based on this finding, and with reference, inter alia, to Articles 6 and 13 of the Convention and the Court’s case-law under these provisions, in particular the case of Kudła v. Poland ([GC], no. 30210/96, ECHR 2000 XI), the Supreme Court concluded that the plaintiff was entitled to compensation under Swedish law for both pecuniary and non-pecuniary damage. With respect to the level of compensation for non-pecuniary damage, the Supreme Court took note of the criteria established in the Court’s case-law stating that the Court’s practice constituted a natural point of departure in this regard.
In a decision of 4 May 2007 (NJA 2007 p. 295), the Supreme Court held that the principle concerning a right to damages established in the above-mentioned case of 9 June 2005 also applied with regard to the rights contained in Article 5 of the Convention. The Supreme Court stated that the plaintiff’s right to damages on account of a violation of Article 5 should be assessed in the first place under the Tort Liability Act (Skadeståndslagen, 1972:207) and the Act on Compensation for Deprivation of Liberty and Other Coercive Measures (Lagen om ersättning vid frihetsberövanden och andra tvångsåtgärder, 1998:714). To the extent necessary, the relevant provisions of domestic law should be interpreted in accordance with the Convention. If Sweden’s obligations under Article 5 § 5 could not be met by such an interpretation, the domestic courts should award compensation without the support of specific legal provisions. As concerned the determination of the level of compensation, the Supreme Court repeated that the Court’s case-law was a natural point of departure but also noted that account must be taken of the fact that different national conditions may lead to variations from one country to another in what should be regarded as a reasonable level of compensation.
In a judgment of 21 September 2007 (NJA 2007 p. 584), the Supreme Court held that the plaintiffs’ right to respect for their private life under Article 8 had been violated on the basis that a police decision on a medical examination of some of them had not been “in accordance with the law”. Having found that compensation for the violation could not be awarded directly on the basis of the Tort Liability Act, the Supreme Court held that there was no reason to limit the scope of application of the principle established in the above-mentioned cases of 9 June 2005 and 21 September 2007 to violations of Articles 5 and 6 of the Convention. In view of this and with reference to, inter alia, Articles 8 and 13 of the Convention and the Court’s case-law under these Articles, the Supreme Court concluded that the plaintiffs should be awarded non-pecuniary damages for the violation of Article 8. With regard to the levels of compensation, the Supreme Court concluded that they should not be too far removed from the levels which applied when awarding damages under the Tort Liability Act. Generally speaking these levels should, however, be compatible with the case-law of the Court. In the same case, Svea Court of Appeal had also concluded, in a judgment dated 12 January 2006, that there had been a violation of Article 8 and that an award for non-pecuniary damage should be made on the basis of the principle established in the case of 9 June 2005.
A further Supreme Court judgment of 28 November 2007 (NJA 2007 p. 891) concerned a claim for damages against the Swedish State on the basis of an alleged violation of Article 2 of the Convention relating to the suicide of the plaintiffs’ father while in detention. The Supreme Court concluded that the case revealed no violation of Article 2. However, in its reasoning leading to this conclusion, the Supreme Court noted, inter alia, that according to the Court’s case-law there was a right to an effective remedy under Article 13 connected to the State’s duty under the Convention to take measures to protect the lives of individuals in custody or who were otherwise deprived of their liberty, which should, in principle, include a possibility of obtaining compensation for damage. The Supreme Court referred in particular to the judgment in Keenan v. the United Kingdom (no. 27229/95, § 130, ECHR 2001 III).
In a judgment of 3 December 2009 (NJA 2009 N 70), the Supreme Court confirmed its previous case-law in a case concerning claims for damages against the Swedish State on account of excessive length of tax proceedings. The court affirmed that it is now a general principle of law that to the extent that Sweden has a duty to provide redress to victims of Convention violations through a right to compensation for damages, and that this duty cannot be fulfilled even by interpreting national tort law in accordance with the Convention (fördagskonform tolkning), compensation for damages may be ordered without direct support in law.
Lastly, on 16 June 2010 the Supreme Court ordered compensation for non-pecuniary damage to be paid to an applicant for proceedings which had complied neither with the “reasonable length” requirement in Article 6 nor the right to an effective remedy in Article 13. The proceedings in question had concerned a claim for damages against the State.
ii. Other developments
In May 2009 the Government decided to set up a working group on tort liability and the Convention to study the current legal situation. In December 2010 the working group submitted its report (Skadestånd och Europakonventionen, SOU 2010:87) to the Government. In the report it is proposed that the Tort Liability Act be amended in order to allow natural and legal persons to obtain damages from the State or a municipality for violations of the Convention. Such an action against public authorities would be examined by a general court which would need first to establish that a right provided by the Convention has been violated. The aim of the proposal is to provide a legal basis for granting non-pecuniary damages arising from disregard of the Convention and to fulfil, together with the other already existing legal remedies, Sweden’s obligations under Article 13 of the Convention.
In its comments on the above report the Office of the Chancellor of Justice, on 7 July 2011, stated that, since the autumn of 2007 following the Supreme Court’s case-law developments (as set out above), it had dealt with a large number of requests from individuals for compensation on the basis of violations of the Convention. It estimated that it had dealt with roughly 1000 cases over the previous three years. During this time the Chancellor of Justice had also represented the Swedish State in a number of cases before the civil courts concerning alleged violations of the Convention. A majority of the cases that the Office had dealt with had concerned non-pecuniary damages for excessive length of proceedings under Article 6 § 1 of the Convention. Since November 2009, it had received more than 400 such complaints and in more than half of them, the Chancellor of Justice had found a violation and granted compensation. The level of compensation for non-pecuniary damage had been determined with reference to the Court’s case-law and varied between SEK 10,000 and SEK 30,000 (approximately EUR 1,100 and EUR 3,300). Furthermore, the Chancellor of Justice had dealt with a substantial number of cases (around 160) concerning the registration of individuals in the register of the Security Police. These cases had concerned one or more of Articles 8, 10, 11 and 13 of the Convention. There had also been other individual cases relating to alleged violations of Articles 5 and 7 of the Convention, among others.
COMPLAINTS
The applicant complained of several matters under Article 6 § 1 of the Convention, namely:
a) the length of the proceedings had been excessive;
b) she had not been personally heard by the national courts;
c) she had not had a fair trial as the same medical expert had been used both by the Social Insurance Office and the County Administrative Court;
d) the outcome of the proceedings had not been fair since nobody had questioned the extent of her illness;
e) the medical expert opinion provided by her own doctor had not been correctly cited by the Administrative Court of Appeal;
f) her place of residence and gender had played a role in the outcome of the proceedings;
g) other persons in similar situations had been granted life annuity; and
h) she had never had a chance to discuss her case with the case handler in the Supreme Administrative Court even though she had been promised such an opportunity.
THE LAW
“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”
The period to be taken into consideration began on 24 April 2001 and ended on 18 September 2007. It thus lasted almost six years and five months for three levels of jurisdiction.
The Government submitted that the complaint was inadmissible on the ground that the applicant had not exhausted domestic remedies. In this respect, they referred to all of the Swedish Supreme Court’s judgments mentioned above (under relevant domestic law and practice) in which the court had awarded individual compensation for pecuniary and non-pecuniary damage concerning the violation of different Articles of the Convention. In the Government’s opinion, these showed that Swedish law now provided a remedy in the form of compensation for both pecuniary and non-pecuniary damage in respect of any violation of the Convention, including violations under Article 6 § 1 of the Convention. Although the Government acknowledged that the legal position on this matter under domestic law had been less clear prior to the Supreme Court’s judgments in 2005 and 2007, they submitted that following these judgments the legal position must have been considered sufficiently clear. Therefore, since the applicant lodged her application with the Court on 8 March 2008, she should have been aware of the Supreme Court judgments and that there was an effective domestic remedy available to her. They pointed out that the existence of mere doubts as to the prospects of success of a particular remedy, which was not obviously futile, was not a valid reason for failing to exhaust domestic remedies. Therefore, the Government held that compensation proceedings against the Swedish State constituted a domestic remedy which the applicant should have been obliged to exhaust prior to examination of the case by the Court.
In any event, they noted that the limitation period in respect of compensation claims against the State is ten years from the point in time when the damage occurred (Section 2 of the Limitation Act, preskriptionslagen, 1981:130), for which reason she could still file a claim against the State in Sweden and should do so before the Court examines her case.
The applicant disagreed and maintained that she had exhausted all domestic remedies required of her.
The Court reiterates that the purpose of Article 35 is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Convention institutions. In this way, it is an important aspect of the principle that the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights (see Selmouni v. France [GC], no. 25803/94, § 74, ECHR 1999-V, with further references).
Moreover, the Court has set out the general principles pertaining to the exhaustion of domestic remedies in a number of judgments. In Akdivar and Others v. Turkey ([GC], 16 September 1996, Reports of Judgments and Decisions 1996-IV) it held as follows (further case references – in brackets – deleted):
“66. Under Article [35] normal recourse should be had by an applicant to remedies which are available and sufficient to afford redress in respect of the breaches alleged. The existence of the remedies in question must be sufficiently certain not only in theory but in practice, failing which they will lack the requisite accessibility and effectiveness (...).
Article [35] also requires that the complaints intended to be made subsequently at Strasbourg should have been made to the appropriate domestic body, at least in substance and in compliance with the formal requirements and time-limits laid down in domestic law and, further, that any procedural means that might prevent a breach of the Convention should have been used (...).
67. However, there is, as indicated above, no obligation to have recourse to remedies which are inadequate or ineffective. In addition, according to the “generally recognised rules of international law” there may be special circumstances which absolve the applicant from the obligation to exhaust the domestic remedies at his disposal (...). ...
68. In the area of the exhaustion of domestic remedies there is a distribution of the burden of proof. It is incumbent on the Government claiming non-exhaustion to satisfy the Court that the remedy was an effective one available in theory and in practice at the relevant time, that is to say, that it was accessible, was one which was capable of providing redress in respect of the applicant’s complaints and offered reasonable prospects of success. However, once this burden of proof has been satisfied it falls to the applicant to establish that the remedy advanced by the Government was in fact exhausted or was for some reason inadequate and ineffective in the particular circumstances of the case or that there existed special circumstances absolving him or her from the requirement (...). ...
69. The Court would emphasise that the application of the rule must make due allowance for the fact that it is being applied in the context of machinery for the protection of human rights that the Contracting Parties have agreed to set up. Accordingly, it has recognised that Article [35] must be applied with some degree of flexibility and without excessive formalism (...). It has further recognised that the rule of exhaustion is neither absolute nor capable of being applied automatically; in reviewing whether it has been observed it is essential to have regard to the particular circumstances of each individual case (...). This means amongst other things that it must take realistic account not only of the existence of formal remedies in the legal system of the Contracting Party concerned but also of the general legal and political context in which they operate as well as the personal circumstances of the applicants.”
In the present case, the Government claimed that the applicant had failed to avail herself of available remedies capable of affording her sufficient redress in the form of compensation for the alleged violation. In this respect, the Court notes that, of the final domestic judgments and the decision referred to by the Government, four of them were delivered before the introduction of the present application, in cases relating to length of criminal proceedings, deprivation of liberty, private life, and the right to life. It further notes that the present case concerns the length of administrative proceedings and that the first such case was considered by the Swedish Supreme Court in December 2009 (NJA 2009 N 70, see above), about one year and nine months after the applicant lodged her case with the Court. Thus, although the Supreme Court’s judgment in 2005 concerning compensation for the length of criminal proceedings (NJA 2005 p. 462) may have given a first indication as to how that court would deal with length issues in civil and administrative proceedings, the Court considers that this judgment, even in combination with the three subsequent ones, did not, at the time of introduction of the present application before the Court, provide a sufficiently certain remedy in theory or in practice to be able to afford redress in respect of complaints relating to the excessive length of administrative proceedings (see, mutatis mutandis, Wassdahl v. Sweden, no. 36619/03, § 27, 6 February 2007, and Klemeco Nord AB v. Sweden, no. 73841/01, § 27, 19 December 2006).
However, the Government also claimed that, in any event, the applicant had had the opportunity to claim compensation before the Swedish courts after the introduction of the present application and, indeed, still had that possibility and should be obliged to use it.
In this respect, the Court observes that the administrative proceedings about which the applicant is complaining were terminated on 18 September 2007 and that the alleged violation of the length of proceedings thus must be considered to have occurred at this point in time. Consequently, in accordance with Section 2 of the Limitation Act, the applicant has the possibility to claim compensation from the Swedish State in relation to this alleged damage until 18 September 2017.
The Court would like to reiterate that the assessment of whether domestic remedies have been exhausted is normally carried out with reference to the date on which the application was lodged with it. However, this rule is subject to exceptions, which may be justified by the particular circumstances of each case (see, for example, Brusco v. Italy (dec.), no. 69789/01, ECHR 2001 IX, and Andrei Georgiev v. Bulgaria, no. 61507/00, § 78, 26 July 2007).
In particular, the Court has previously departed from this general rule in cases against Italy, Croatia, Slovakia and Poland concerning remedies against the excessive length of the proceedings (see Brusco, cited above, Nogolica v. Croatia (dec.), no. 77784/01, ECHR 2002 VIII, Andrášik and Others v. Slovakia (dec.), nos. 57984/00, 60226/00, 60237/00, 60242/00, 60679/00, 60680/00 and 68563/01, ECHR 2002 IX, and Charzyński v. Poland (dec.), no. 15212/03, § 35, ECHR 2005 V).
In the Court’s view, there are factors also in the instant case which justify a departure from the general principle. It observes specifically that, as mentioned above, the first case considered by the Supreme Court relating to compensation for the excessive length of administrative proceedings was adjudicated in December 2009. Therefore, contrary to the situation in some previous Swedish cases considered by the Court (see, among others, Gillberg v. Sweden, no. 41723/06, § 72, 2 November 2010, Fexler v. Sweden, no. 36801/06, § 44, 13 October 2011 and Wassdahl, cited above, §§ 27-28), the Convention issue that would be the subject of a compensation claim in the present case has been determined by the domestic courts for which reason the remedy must be considered as sufficiently certain.
Moreover, the Court stresses that it was in the judgment of December 2009 that the Supreme Court affirmed that it was now a general principle of law that compensation for Convention violations could be ordered without direct support in Swedish law, to the extent that Sweden has a duty to provide redress to victims of Convention violations through a right to compensation for damages. Furthermore, although the Chancellor of Justice had dealt with requests from individuals for compensation on the basis of violations of the Convention from the autumn of 2007, it was not until the end of 2009 that a general practice in relation to length of proceedings complaints appears to have been established, noting that the Chancellor of Justice from November 2009 received over 400 such complaints and found a violation and granted compensation in more than half of them. Here the Court also observes that the level of compensation for non-pecuniary damage has been determined by the Chancellor of Justice with reference to the Court’s case-law.
In the light of the foregoing, the Court finds that the case-law of the Supreme Court, in combination with the practice of the Chancellor of Justice, must be considered now to have established an accessible and effective remedy in relation to the applicant’s complaint concerning the reasonableness of the length of the domestic proceedings.
Consequently, the applicant was required by Article 35 § 1 of the Convention, and still has the opportunity, to lodge a claim with the Chancellor of Justice or the domestic courts to seek compensation for damages for the alleged excessive length of proceedings. Furthermore, there do not appear to be any exceptional circumstances capable of exempting her from the obligation to exhaust domestic remedies.
The Government’s objection must therefore be accepted and the complaint be declared inadmissible for non-exhaustion of domestic remedies within the meaning of Article 35 §§ 1 and 4 of the Convention.
2. The applicant next complained under Article 6 § 1 of the Convention that she had not been heard in person by the national courts.
The Court notes that it is true that no oral hearing was held before the administrative courts. However, it also observes that the applicant requested at no point during the proceedings that a hearing be held.
It follows that she has not exhausted domestic remedies in relation to this complaint and it must therefore be declared inadmissible in accordance with Article 35 §§ 1 and 4 of the Convention.
Having examined the materials in its possession, and insofar as the matters complained of are within its competence, the Court finds that those complaints do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.
It follows that this part of the application is inadmissible as being manifestly ill-founded, pursuant to Article 35 §§ 3 a) and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Claudia Westerdiek Dean Spielmann
Registrar President