JOHANSSON v. SWEDEN
Inadmissible
Nicolas Bratza
The applicant, Mr Birger Johansson, is a Swedish national who was born in 1943 and lives in Vedum. He was represented before the Court by Ms S. Westerberg, a lawyer practising in Göteborg. The respondent Government were represented by Ms I. Kalmerborn, Ministry for Foreign Affairs. The facts of the case, as submitted by the parties, may be summarised as follows. In February 1994 the applicant had an accident at work and injured his back. As a consequence thereof, he received a sickness allowance (sjukpenning). On 26 April 1996 the Social Insurance Office (försäkrings-kassan; hereinafter “the Office”) of Skaraborg sent a letter to the applicant informing him that he had been referred to a physician, a psychologist and a physiotherapist for examinations of his health condition and the possibilities for rehabilitation, to be conducted on 2 and 3 May 1996. He was further informed that failure to appear without a valid reason could result in a withdrawal or reduction of his sickness allowance. On 29 April 1996 the applicant, questioning the competence of the persons supposed to examine him and the need for and expediency of those examinations, stated that he refused to appear without his legal counsel and asked for the examinations to be postponed. On 30 April 1996 the Office replied that it considered that the medical material available to it was not sufficient to make an appropriate examination of his right to a continued sickness allowance and that the aim of the requested medical examinations was to remedy those deficiencies. On 2 May 1996 the applicant appealed against the request for medical examinations. On 3 May 1996 the County Administrative Court (länsrätten) of the County of Skaraborg dismissed the appeal stating that the Office could, under the Social Insurance Act (Lagen om allmän försäkring, 1962:381), request that the applicant undergo an examination of his health situation and the possibilities for rehabilitation. According to the preparatory works to the relevant provisions, measures taken by the Office should be seen as part of the handling of the case and could thus only be subject to appeal when there had been a decision to withdraw or reduce the allowance in question. Since the measure in question had not had any direct consequences for the applicant, the County Administrative Court found that it was prevented from examining the applicant’s appeal and thus dismissed it. The applicant did not appear for the medical examinations and was given a new appointment, with three chief physicians, for 19 June 1996. In letters to the physicians, he again criticised the examinations. He eventually appeared for the appointment accompanied by his legal counsel. He declared that he was not opposed to being examined but that he was not there of his own free will but under the threat of having his allowance withdrawn. The physicians considered that the applicant was not consenting to the measure and therefore did not proceed with the examination. Meanwhile, on 14 May 1996 the applicant had appealed against the County Administrative Court’s decision to dismiss the appeal regarding the request for medical examinations. On 19 June 1996 the Administrative Court of Appeal (kammarrätten) in Jönköping remitted the case to the Office for a re-examination as, according to the legal procedure, the Office should have reconsidered (omprövat) its decision before the examination by the County Administrative Court. On 2 July 1996 the Office, upon reconsideration, drew the same conclusion as the County Administrative Court had done on 3 May 1996. On 14 August 1996 the County Administrative Court again dismissed the appeal. On 6 February 1998 the Administrative Court of Appeal upheld the County Administrative Court’s decision of 14 August 1996. On 29 April 1999 the Supreme Administrative Court (Regeringsrätten) refused leave to appeal on this issue. On 7 November 1996 the Office informed the applicant that it was considering discontinuing payment of his sickness allowance and invited him to submit observations. The applicant availed himself of that opportunity. By a decision of 4 December 1996 the Office discontinued payment of the applicant’s sickness allowance as from 7 December 1996 as it had not been shown that his ability to work was reduced to such an extent that he was entitled to such an allowance. The Office had regard to complementary medical records and reports which it had obtained concerning the applicant and the opinion of one of its own medical doctors (försäkringsläkare). Upon the applicant’s request, the Office reconsidered its decision on 11 February 1997. It upheld the decision, stating, inter alia, that there had been reasons to request complementary examinations, that the applicant had refused to cooperate and, that, accordingly, his entitlement to an allowance had not been shown. On 21 March 1997 the applicant lodged an appeal with the County Administrative Court. Observations received by the court from the Office were submitted to the applicant. The applicant later lodged appeals with the court against other decisions taken by the Office. Thus, on 6 June 1997 he appealed against a decision concerning the level of income on the basis of which his sickness allowance was to be calculated (sjukpenninggrundande inkomst) and on 9 December 1998 he appealed against a decision by which the Office rejected his applications for a disability pension (förtidspension) and a life annuity (livränta). The applicant’s appeals were considered in parallel by the County Administrative Court. The applicant submitted observations to the County Administrative Court on 14 April, 2 and 5 May and 18 August 1997. On the latter date he requested an extension until 1 November 1997 of a time-limit to submit further observations. This was granted by the court. On 11 November 1997 he submitted observations and requested a further extension until 1 February 1998, noting that there was no opposite party in the proceedings who could be harmed thereby. Also this request was granted by the court. Further submissions were made by the applicant on 20 November 1997 and 22 January 1998. On 26 January 1998 the applicant’s case file was sent on loan to the Administrative Court of Appeal for use in the proceedings concerning the request that the applicant undergo medical examinations. The file was later forwarded to the Supreme Administrative Court for the same purpose. The file was returned to the County Administrative Court on 3 May 1999. On 22 May and 15 September 1998 and on 8 June and 8 September 1999 the County Administrative Court received additional observations and documents from the applicant. On 25 November 1999 the County Administrative Court delivered judgments in all the applicant’s cases. In upholding the Office’s decision to withdraw the applicant’s sickness allowance, it found that the Office had had reasons to request complementary information in order to determine whether his health situation had improved to such an extent that he would be able to go back to work. Although a medical examination could probably not be performed against a person’s will, the refusal to undergo such an examination could, under the provisions of the Social Insurance Act, lead to the loss of the benefits in question. The applicant’s stance in this regard had led the physicians to conclude that it was not possible to conduct an examination and he had consequently prevented the Office from obtaining the necessary medical evidence which, by law, it was competent to request. For these reasons, the applicant’s entitlement to a sickness allowance under the Social Insurance Act could not be properly assessed. On 23 December 1999 the applicant lodged appeals with the Administrative Court of Appeal against the County Administrative Court’s judgments. He also asked for time until 10 February 2000 to specify the relief sought and the grounds for the appeals. The court granted his request. Observations were received from the applicant on 8 February 2000 and, on the same day, the court asked the Office to comment before 10 April 2000, a time-limit later extended twice, ultimately until 15 May 2000. The Office’s reply was received on the latter date and sent to the applicant for information. On 16 February, 17 March and 16 May 2000 the applicant submitted observations and medical certificates to the appellate court. On 6 June 2000 he requested time until 1 October 2000 to submit further observations. This was granted by the court. On 30 August 2000 the applicant submitted observations and medical certificates. He also asked for a further extension until 1 September 2001, again noting that this would not cause detriment to any opposing individual party. By a decision of 30 August 2000 the appellate court ordered the applicant to conclude his case no later than 29 December 2000. The receipt of the order was acknowledged by the applicant on 20 October 2000, following two reminders sent by the court. On 9 November 2000 the applicant submitted observations and reiterated his request for an extension, at least until 1 April 2001. The Office submitted comments on these observations on 17 November 2000 which were forwarded to the applicant for information. On 29 December 2000 the appellate court granted an extension until 2 March 2001 and informed the applicant that further extensions were unlikely to be granted. On 31 January 2001 the applicant submitted further observations and again reiterated the request for an extension until 1 April 2001. By a decision of 5 February 2001 the appellate court ordered him to submit any additional material within one month of receiving the order. On 19 February 2001 the appellate court received observations from the applicant in which he requested an extension until 15 May 2001. He stated that he did not consider it correct to deny him the extension which he had requested and needed, as the opposing party in the case would not be harmed thereby but rather favoured by such a measure. By a decision of 9 March 2001 the appellate court ordered the applicant to submit any additional material by 15 May 2001. On 9 April 2001 the appellate court received observations from the applicant in which he requested an extension of the time-limit until 1 September 2001. He maintained that the court could not be criticised for having protracted the proceedings, since he had himself asked for the extension and his request was well-founded. On 17 April 2001 the appellate court ordered the applicant to submit any additional material by 1 September 2001. It also stated that it might rule on the question of leave to appeal even if he failed to abide by the order. By decisions of 29 January 2002 the Administrative Court of Appeal refused the applicant leave to appeal in all cases. On 19 February 2002 the applicant lodged appeals with the Supreme Administrative Court. He asked, inter alia, that the cases be remanded to the Administrative Court of Appeal for further extensions of the time-limit to submit observations. He also requested an extension before the Supreme Administrative Court until 15 June 2002 in order to submit additional medical evidence. The latter request was granted. On 24 May and 15 August 2002 the applicant requested further extensions until 15 September and 1 November 2002, respectively. Also these requests were granted. On 3 October 2002 the applicant submitted observations to the Supreme Administrative Court. On 25 October 2002 he requested a further extension of the time-limit until 1 February 2003. The request was granted. On 30 December 2002 and 15 January 2003 the applicant submitted further observations and a medical certificate. On 17 February 2003 he requested an extension until 5 May 2003. The request was granted. On 17 March 2003 the applicant submitted further observations. On 28 April 2003 he requested an extension of the time-limit until 15 August 2003, noting that it would not cause detriment to anyone but himself. The request was granted. On 25 August and 21 October 2003 the applicant requested further extensions until 15 October 2003 and 15 January 2004, respectively. The requests were granted. On 27 November 2003 the applicant submitted observations to the Supreme Administrative Court and requested that the previously granted extension until 15 January 2004 should continue to apply. On 12 January 2004 the applicant requested a further extension until 15 April 2004. On the latter date, he submitted his final observations in all cases, including the case concerning the sickness allowance. The cases are at present pending before the Supreme Administrative Court. Sickness allowances are, insofar as relevant to the present case, regulated in chapter 3, sections 7 and 8 a and chapter 20, section 3 of the Social Insurance Act. A person is entitled to such an allowance if his or her sickness reduces the ability to work by at least 25%. The Social Insurance Office should, if necessary for the assessment of an application for an allowance, request the person in question to undergo an examination of his medical state and working disability and the need and possibility for rehabilitation. If the person refuses without a valid reason to undergo treatment, examination or rehabilitation, the sickness allowance may be refused, entirely or partially, until further notice, provided that he or she has been notified of this consequence. According to the preparatory works of chapter 3, section 8 a of the Social Insurance Act, the decision of a local insurance office to request an individual to undergo additional medical examinations is to be regarded as constituting part of the office’s procedure for dealing with the matter of the individual’s entitlement to a continued sickness allowance. The preparatory works therefore conclude that such an action by the office should be subject to appeal only in connection with a subsequent decision to reduce or discontinue payment of the allowance in question (Government Bill 1994/95:147, p. 35).