PITKÄNEN v. SWEDEN
Inadmissible
Nicolas Bratza
The applicant, Mr Pentti Pitkänen, is a Swedish national, who was born in 1934 and lives in Haninge. He is represented before the Court by Mr W. Pietikäinen, who lives in Johanneshov. The respondent Government are represented by their Agent Mrs Inger Kalmerborn, Ministry for Foreign Affairs. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant worked as a refrigerator erector for many years. In October 1992 while welding he was exposed to phosgene as a result of a Freon leakage. Two weeks later he caught pneumonia. Having recovered therefrom, as from mid-November 1992 he suffered from headache, dizziness, fatigue and hypersensitivity in his left hand. On 23 June 1993 claiming that he had been exposed to an on-the-job injury the applicant requested that the Social Insurance Office in Stockholm (Försäkringskassan, Stockholms Län) pay him compensation and a life annuity (ersättning och livränta). The applicant’s medical records, a medical opinion of 28 May 1993 by a doctor at a clinic specialising in occupational medicine, and a statement of 16 October 1996 by the doctor attached to the Social Insurance Office in order to assist with medical matters, were submitted. Both doctors stated that a causal connection between the Freon leakage incident and the symptoms that the applicant later experienced was improbable. It appears that the applicant and his counsel attended a consultation with the Social Insurance Office. On 14 January 1997 the Social Insurance Office found against the applicant. On appeal to the County Administrative Court in Stockholm (Länsrätten i Stockholm), the applicant, represented by counsel, requested that an oral hearing be held and that a witness on his behalf, a former refrigerator erector, be heard. He did not specify which issues he wanted to hear the witness about, except the fact “refrigerator erectors do not live long”. By decision of 31 January 1997 the court refused to hold an oral hearing since on the material before it such was found clearly unnecessary. The court indicated that the invoked witness could not contribute to the elucidation of the question whether there was a causal link between the applicant’s exposure to phosgene and his health problems, and held that the available written evidence was sufficient for a proper assessment of the applicant’s case. The applicant was given an opportunity to submit his final observation in the case no later than 3 March 1997. On 6 February 1997 the applicant submitted his final observations, which included a fresh request that the witness be heard at an oral hearing in that “the best knowledge of industrial injuries comes from the workplace”. His request was refused on 19 February 1997 by the court, which on the same date delivered its judgment confirming the Social Insurance Office’s decision in the light of the material submitted i.e. the evidence which had also been submitted before the Social Insurance Office. Like the Social Insurance Office, the court did not question that the applicant had been exposed to phosgene, but found that no causal link existed between the exposure and the applicant’s medical problems. The applicant requested leave to appeal and an oral hearing in the leaveto-appeal proceedings, including an examination of his witness. By decision of 27 May 1998 the Administrative Court of Appeal (Kammarrätten i Stockholm) stated as follows: ”The proceedings before the Administrative Court of Appeal are written. According to Section 9 of the Administrative Court Procedure Act (förvaltningsprocesslagen) the proceedings may include an oral hearing with regard to a particular issue when there is reason to assume that holding a hearing would be to the advantage of the proceedings or further the speedy determination of the case. An oral hearing shall take place at the request of an individual party to the case if such a hearing is necessary and there are no particular reasons against holding a hearing. Having regard to the nature of the case and the evidence submitted, the Administrative Court of Appeal finds that an oral hearing and a hearing of the witness is unnecessary, and thus refuses the [applicant’s] request...” The applicant was given an opportunity to conclude his claim in writing and by decision of 28 January 1999 the Administrative Court of Appeal refused the applicant’s request for leave to appeal. On 18 February 1999 the applicant submitted his request for leave to appeal to the Supreme Administrative Court (Regeringsrätten) before which he reiterated his request for an oral hearing and an examination of his witness. On 19 April 1999 the Supreme Administrative Court informed the applicant that oral hearings are not normally hold before it. Furthermore, the court invited the applicant to submit his final observations in the case within three weeks. By decision of 22 July 1999 the Supreme Administrative Court refused the applicant’s request for leave to appeal. All gainfully employed persons working in Sweden are insured against industrial injuries in accordance with the Act on Industrial Injury Insurance (lagen om arbetsskadeförsäkring, 1976:380; hereinafter “the 1976 Act”). The term industrial injury refers mainly to injuries that result from accidents or other harmful effects at a person’s place of work. Pursuant to chapter 8, section 1 of the 1976 Act, an industrial injury shall immediately be reported to the employer, who shall report it to the Social Insurance Office. The office shall obtain a medical opinion concerning the injury. A physician shall be attached to the office in order to assist it in medical matters (the insurance doctor). The assessment of 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. For an injury to be qualified as an industrial injury a causal link must be established between the accident or the harmful effect in the workplace and the insured persons’ health problems. At the relevant time, the question of whether a particular injury or illness incurred by the insured was to be regarded as an industrial injury was subject to a rule of evidence relieving the insured person of the burden of proof. If it was clear that the insured person had suffered an accident or had been subjected to some other harmful effect at work, his or her medical problems were presumed to have been caused by the accident or the harmful effect unless there were much stronger grounds for a conclusion to the contrary (chapter 2, section 2 of the 1976 Act in its wording before 1 January 1993, which applied to injuries having occurred before that date and which had been reported to the Social Insurance Office by 30 June 1993 at the latest). The procedure in the administrative courts is governed by the provisions of the Administrative Court Procedure Act (förvaltningsprocesslagen, lag 1971:291 - hereinafter “the 1971 Act”). Section 9 provides: “The proceedings are in writing. An oral hearing may be held in regard to a certain issue, when there is reason to assume that that would be to the benefit of the proceedings or the speedy determination of the case. In the Administrative Court of Appeal and the County Administrative Court an oral hearing shall be held if requested by an individual party to the proceedings, unless it is unnecessary or there are particular reasons against holding a hearing.” The possibility for an individual party to obtain an oral hearing on request under those circumstances is not available in the proceedings before the Supreme Administrative Court. According to the preparatory documents to the 1971 Act, an oral hearing can be a valuable complement to the written proceedings and may benefit the examination of a case in two situations in particular: firstly, when it is necessary to hear a witness, an expert or a party or when it is difficult for a party to present the case in writing and, secondly, when different positions in the case need to be sorted out in order to eliminate unnecessary or pointless issues of dispute. In the latter case, the oral hearing takes on a preparatory character. It was stressed, however, that an oral hearing should not be seen as an alternative to the written procedure but as a complement to it (see Government Bill 1971:30, p. 535). It was further 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, such a request should not have a decisive influence on the matter, as the question whether an oral hearing is necessary is to be determined primarily on the basis of the available information in the case. Still, other circumstances may be of relevance, for instance the importance for the party of the matter at stake or the possibility that an oral hearing could enhance the party’s understanding of a future decision in the case. Nevertheless, if the case is of a trivial character or the costs of an oral hearing would be disproportionate to the values at stake in the case, there could be reason not to hold an oral hearing (p. 537).