CASE OF MENDEL v. SWEDEN
Preliminary objection joined to merits and dismissed (non-exhaustion of domestic remedies);Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - award
Alvina Gyulumyan;Elisabet Fura;Ineta Ziemele;Josep Casadevall;Luis López Guerra
5. The applicant was born in 1944 and lives in Malmö. 6. Since 1992 the applicant has been registered with the Employment Service (Arbetsförmedlingen) in Malmö and, since 2001, she has been taking part in different programmes provided by it. One of these programmes, called activity guarantee (aktivitetsgaranti), was a programme for persons who were, or who were at a risk of becoming, unemployed for a long period as well as for groups of persons who often had difficulties in finding a job. The purpose of the programme was to give the participants greater opportunities to find a job and it involved different activities such as short term education and the possibility to try different kinds of work. Each person who participated in the programme had a personal supervisor from the Employment Service and together they were supposed to set up a plan for the activities in which the participant was taking part. The participant was obliged to attend meetings and to meet his or her supervisor on a regular basis, and he or she also had an obligation to apply for suitable jobs which were advertised through the Employment Service. 7. On 4 July 2005 the Employment Service (apparently on delegation from the County Labour Board (Länsarbetsnämnden)) decided to withdraw its approval for the applicant to take part in the programme in which she was participating. The decision was taken in accordance with Section 37(a) of the Ordinance on Labour Market Policy Programmes (förordningen om arbetsmarknadspolitiska program, SFS 2000:634; hereafter "the 2000 Ordinance"). According to the Employment Service, the applicant had not been acting in a proper manner in relation to the demands laid upon her. The decision was taken on the basis of a report drawn up by the Employment Service. The report stated that the applicant had been called to attend information meetings on several occasions but that she had either announced that she was not able to attend or she had simply not attended. It also stated that the applicant, at an information meeting, had made statements that led to a job interview being cancelled. 8. When the applicant’s permission to participate in the programme was revoked, her subsistence support in the form of activity support (see § 18 below) was also revoked, leaving her without any income. According to the applicant this forced her to pay for living expenses out of her savings for nine months and to take 25% early retirement in September 2005. 9. On 21 July 2005 the applicant appealed against the decision of the Employment Service to the National Labour Market Board (Arbetsmark-nadsstyrelsen –hereafter “the Board”). She claimed that there were several statements in the report which were not true. For instance, she had been ill and hospitalised and therefore had not been able to attend certain meetings and she had informed the Employment Service about the situation. She also alleged that a note in the report which stated that on one occasion she had not attended a meeting was not true. Moreover, she claimed that, at the aforementioned information meeting, she had told an official of the Employment Service that she felt she was not suited for the job in question. Thereafter, the official had told her that she could leave. 10. On 29 March 2006 the Board decided to reject the appeal. It found that the applicant had, on several occasions in August and September 2004, announced that she was not able to attend certain meetings; on one occasion because she had planned to go on vacation. The Board took into account the possibilities to adapt the kind of work the applicant was offered, and the fact that she had not proved her medical problems or shown that they were of a permanent nature, and found that she had not done everything in her power to get a job. Therefore, the Board concluded that there were grounds to withdraw her entitlement to participate in the programme. Consequently, the appeal was rejected. 11. In the Board’s decision, it was expressly stated that there was no possibility in accordance with Section 39 of the 2000 Ordinance to appeal against the decision. 12. On 6 April 2006 the applicant wrote a letter to the Board, expressing her dissatisfaction with its decision. In the letter she referred, inter alia, to the fact that the Board in its decision had noted that no appeal lay against the decision and asked how she could obtain redress. 13. On 11 September 2006 the applicant submitted a complaint to the Chancellor of Justice (Justitiekanslern) where she complained, inter alia, about the authorities’ decisions and their handling of her case. She requested damages, but did not claim that there had been a breach of her rights under Article 6 of the Convention. This complaint seems still to be pending before the Chancellor of Justice. 14. A person who is unemployed may be entitled to subsistence support through the unemployment insurance. The main regulations in this area are given in the Unemployment Insurance Act (lagen om arbetslöshets-försäkring, SFS 1997:238; hereafter "the 1997 Act") and the Unemployment Funds Act (lagen om arbetslöshetskassor, SFS 1997:239). Unemployment benefits are financed through membership contributions made by the members of the unemployment insurance funds and State funding. A person who is not a member of an unemployment insurance fund can still receive some benefit, a so-called basic insurance. Benefits are paid to a person who is unemployed and has fulfilled a qualifying period of employment, that is he or she has worked a certain number of months before becoming unemployed, and who fulfils certain basic qualifying conditions, for example, he or she must actively be looking for work. At the relevant time benefits were provided for a limited number of days. After that, a new qualifying period of employment had to be completed in order to qualify for a new period of benefits. 15. According to Section 45(a) of the 1997 Act, the benefits will be reduced for a certain period if the beneficiary, without acceptable reasons, rejects suitable work or if he or she, without having expressly rejected the work, by his or her actions causes employment not to be realised. The third time this happens the beneficiary will be disqualified from receiving benefits. According to Section 46, the same will happen if a beneficiary without acceptable reasons rejects an assignment to a labour market policy programme (arbetsmarknadspolitiskt program). Decisions regarding the right to the benefits regulated in the 1997 Act can be appealed against to the administrative courts. 16. The activity guarantee scheme was one of several different labour market policy programmes. The scheme ceased to be in force on 2 July 2007. According to Sections 8 and 21 of the 2000 Ordinance, a person could (the word “may” (får) was used in the Ordinance) be assigned to the activity guarantee scheme if he or she was at least 20 years old, was or was at risk of becoming unemployed for a long time and was searching for work through the public employment service. Section 6 of the 2000 Ordinance stated that an assignment to the programme had to be motivated in terms of labour market policy and, thus, an assignment could only be made if it appeared appropriate both for the individual and from an overall labour market policy perspective. Moreover, Section 7 stated that an assignment to the activity guarantee scheme would apply for as long as it was justified in terms of labour market policy. 17. A person who entered into the activity guarantee scheme would no longer be entitled to unemployment benefits. His or her subsistence would instead be paid according to the provisions in the Ordinance on Activity Support (förordning om aktivitetsstöd, SFS 1996:100). Section 23 of the 1997 Act stated that a person who entered into the activity guarantee scheme would lose his or her remaining days of unemployment benefits. In the preparatory works preceding the amendment of Section 23 of the 1997 Act the Government stated that it was not necessary to allow people who left the activity guarantee scheme a possibility to use their remaining days of unemployment benefits, “since the system around the activity guarantee scheme means that no one should have to leave the activity guarantee without having his or her support secured” (Government Bill 2002/03:44 p. 54). 18. The Ordinance on Activity Support stated that a person who took part in, inter alia, the activity guarantee scheme was entitled to economic support. According to Section 5 of the Ordinance, a person who was or would have been entitled to unemployment benefits or who had received unemployment benefits for the longest period for which benefits could be provided, would be given activity support equivalent to the unemployment benefits he or she would have received under the 1997 Act. A person who was not entitled to benefits as described above would still be given a specific amount per day in activity support. When a person who had been taking part in a programme such as the activity guarantee ceased to be part of it, he or she was no longer entitled to the activity support. 19. Section 37(a) of the 2000 Ordinance stated that an assignment to the activity guarantee scheme would be revoked if a person assigned to it refused an offer of suitable work or another measure under the guarantee scheme without an acceptable reason. An assignment to the activity guarantee scheme would also be revoked if the individual did not act in a proper manner or otherwise disrupted the activities. Moreover, an assignment could be revoked if there were other special reasons to do so. 20. According to Section 37(b) of the 2000 Ordinance, if an assignment to the activity guarantee scheme was revoked because the individual had refused an offer of suitable work or another measure under the guarantee scheme, without an acceptable reason, the individual would (the word “shall” (skall) was used in the Ordinance) be reassigned to the activity guarantee scheme after a suspension of 45 days, if certain basic requirements were met. In the Government Bill which preceded the introduction of this provision, the Government noted that the consequences for those who had their assignment to the activity guarantee scheme revoked would be far-reaching unless they had fulfilled a new qualifying period of employment. The Government also observed that the activity guarantee scheme had the character of a last economic protection among the labour market policy measures for those who were, or were at a risk of becoming, unemployed for a long period. Thereafter the Government stated: “The person applying should therefore in principle have a right to participate in the activity guarantee until he or she finds a solution for his or her unemployment situation, on condition that he or she in an active way contributes to such a solution. ... A person who has had his or her assignment to the activity guarantee revoked on the ground that he or she has refused an offer of suitable work or another measure under the guarantee scheme, shall therefore be offered a new assignment to the guarantee.” (Government Bill 2002/03:44 p. 66) 21. Decisions regarding the revocation of an assignment to a labour market policy programme, including the activity guarantee scheme, were taken by the County Labour Board. Appeals against the County Labour Board’s decision could be made to the National Labour Market Board. According to Section 39 of the 2000 Ordinance, no appeal lay against the National Labour Market Board’s decisions. 22. In connection with a reorganisation of the Labour Market Administration into the Employment Service, the issue of whether decisions regarding labour market policy programmes should be subject to appeal was considered by the Government. It first stated that there was a right to be assigned to the labour market policy measure called “new start jobs” (nystartjobb) and then stated, inter alia, the following: “In the case of other labour market policy measures and financial compensation, assignment decisions to them depend to a great extent on the situation in the labour market. There is no right to receive such a measure and there is no right to retain it either. This means that the decisions to be taken by the new agency in these matters, including the revocation of a measure, do not need to be examined by a court. Nor are the decisions suited to an examination by a court.” (Government Bill 2006/07:89 p 79) 23. The handling of matters in the Swedish public administration is regulated by the Administrative Procedure Act (förvaltningslagen, SFS 1986:223; hereafter "the 1986 Act"). Section 3 § 1, of the 1986 Act states that the provisions in the Act are subsidiary if they differ from the provisions in any other act or ordinance. According to Section 22, a decision may be appealed against by any person whom the decision concerns, provided the decision affects him or her adversely and an appeal against the decision is permitted. Section 22(a) states that appeals are to be made to the administrative courts. The preparatory works (Government Bill 1997/98:101 pp 59 and 112) state that one of the purposes of Section 22(a) is to assign a competent court when a prohibition to appeal against a decision has to be set aside because it would be in violation of the Convention. 24. On 1 July 2006 a new second paragraph was added to Section 3 of the 1986 Act which states that the provisions on appeal according to the Act should always apply if it is necessary in order to provide for everyone’s right to a fair trial in the determination of their civil rights or obligations as laid down in Article 6 § 1 of the Convention. According to the preparatory works (Government Bill 2005/06:56 p 10), one of the reasons for amending the 1986 Act was to make it clear that the 1986 Act’s provisions on appeal applied regardless of what was stated in other acts or provisions, if this was necessary in order to satisfy the right to access to court in accordance with the Convention. 25. Section 21 § 2 of the 1986 Act states that an authority has an obligation to inform a party about how to appeal against all decisions that affect the party adversely, if the decision can be appealed against. 26. In a decision of 22 November 1994 (NJA 1994 p. 657) the Swedish Supreme Court (Högsta domstolen) found that a dispute over agricultural subsidies concerned a civil right in the sense of Article 6 of the Convention and found that a trial before a court should be allowed. Therefore, the court set aside the prohibition to appeal against the authority’s decision. Similarly, the Supreme Administrative Court (Regeringsrätten) has set aside prohibitions to appeal against different authorities’ decisions, when the cases concerned civil rights and obligations (see, for example, decision of 25 November 1997 in RÅ 1997 ref. 65 and decision of 30 November 2001 in RÅ 2001 ref. 56). 27. It follows from Chapter 3, Section 2 of the Tort Liability Act (Skadeståndslagen, SFS 1972:207) that the State is liable to pay compensation for, inter alia, financial loss caused by a wrongful act or omission in connection with the exercise of public authority. From Chapter 3, Section 3 of the Act it follows that, under certain circumstances, the State is liable to pay compensation for financial loss caused by an erroneous instruction or advice given by an authority. 28. In a judgment of 9 June 2005 (NJA 2005 p. 462), the Supreme Court found that an individual had a right to bring a civil action against the State before the national courts on the ground that there had been a violation of Article 6 § 1 of the Convention because a criminal case against the individual had not been concluded within a reasonable time. The Supreme Court has subsequently, in a judgment on 21 September 2007 (NJA 2007 p. 584), found that individuals have a right to bring civil suits against the State for violations against any Articles of the Convention when the State, according to the Convention, has an obligation to pay damages for the violation and such obligation cannot be based on national legislation. 29. Anyone who wishes to claim compensation from the State for financial loss, which he or she considers to have been caused by a wrongful decision taken by a court or an administrative State authority, can proceed in two different ways: He or she may either petition the Chancellor of Justice in accordance with Section 3 of the Ordinance on the Administration of Claims for Damages against the State (Förordningen om handläggning av skadeståndsanspråk mot staten, SFS 1995:1301), or bring a civil action against the State in the ordinary courts. 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.