OSORIO v. SWEDEN
Inadmissible
Angelika Nußberger;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Karel Jungwiert;Mark Villiger
The applicant, Mr Omar Osorio, is a Chilean national who was born in Tocopilla, Chile on 22 November 1970 and lives in Södertälje. He was represented before the Court by Mr K. Potthoff, from Växjö. The Swedish Government (“the Government”) were represented by their Agent, Ms G. Isaksson, of the Ministry of Foreign Affairs. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant came to Sweden as a refugee in 1979. In 1998, after a routine operation, he started to suffer from severe pain. This pain was treated by strong pain killers which allegedly caused him to suffer brain damage. He was able to recover and to work in a boat factory for a while in 1998 and 1999. In 2000, however, he again became unable to work and started to receive sickness allowance (sjukpenning), which was later transformed into an early retirement pension (förtidspension) as of 1 January 2001. The applicant applied for life annuity (livränta) from the Social Insurance Office (försäkringskassan) in Stockholm, claiming that his injuries had been caused by solvents to which he was exposed while working in the boat factory. On 29 January 2003 the Social Insurance Office decided to refuse the application for life annuity as the applicant’s brain damage could not be considered a work-related accident or a condition caused by the working environment. According to the medical opinion given on 6 November 2002 by Dr P.L., the Social Insurance Office’s own medical doctor (försäkringsläkare), it was not probable that the applicant’s brain damage was connected to his work. By letter dated 23 March 2003 the applicant appealed to the County Administrative Court (länsrätten) in Stockholm, claiming that he had a right to life annuity. He stated that he had been more sensitive to chemicals due to his prior brain damage in 1998. The applicant submitted a document by D, a professor in procedural law, entitled “Statement concerning the evidentiary requirements in work injury cases in general, with the case of [M.B.] as an example”. The applicant reserved the right to request that D be heard as an expert witness. He submitted written evidence, mainly articles from medical journals, and requested that this evidence be sent to D for comments. On 3 March 2004 the County Administrative Court, which interpreted the applicant’s request as a request for a written expert opinion, rejected the applicant’s request to obtain a statement from D. The applicant was provided with the opportunity to complete his appeal within two weeks. On 6 December 2005 the applicant requested that an oral hearing be held without giving any reasons for his request. The County Administrative Court offered the applicant the opportunity to finalise his submissions and to submit all evidence he wished to invoke. The applicant was also informed that the court would then decide on his request for an oral hearing. Furthermore, the applicant was informed about the applicable legislation concerning oral hearings and was asked to indicate whether he maintained his request. On 2 January 2006 the applicant submitted his evidence to the County Administrative Court. He did not invoke any oral evidence or comments on the issue of an oral hearing. On 24 May 2006 the County Administrative Court rejected the applicant’s request to obtain a written opinion from D., the request for an oral hearing and the applicant’s appeal. After having examined several medical certificates and opinions, included in the applicant’s case file and submitted by both parties, the court found that the medical evidence did not show that the applicant was more sensitive to solvents or that such shortterm work with solvents would have exposed him to brain damage such as he had suffered. His condition could thus not be considered as a work-related condition and he had therefore no right to life annuity. On 1 August 2006 the applicant appealed to the Administrative Court of Appeal (kammarrätten) in Stockholm and maintained what he had claimed before the first instance court. Additionally, he stated that he had invoked oral evidence before the first instance court and claimed that the rejection of his request for an oral hearing constituted a violation of his rights under the Convention. Furthermore, the applicant requested an oral hearing to be held. On 7 August 2006 the applicant was offered the opportunity to complete his appeal. He was reminded that the issue of whether to grant leave to appeal could be decided even if he did not complete his appeal. He was also informed that his request concerning an oral hearing would not be determined before the issue of leave to appeal. In a submission of 25 August 2006 the applicant confirmed that he did not request an oral hearing on the question of leave to appeal. He stated that the reasons for his request for an oral hearing concerning the factual issues were complex, that an oral hearing was not unnecessary and that there was no reason not to hold an oral hearing. On 3 October 2006 the Administrative Court of Appeal refused leave to appeal. By letter dated 2 December 2006 the applicant appealed to the Supreme Administrative Court (Regeringsrätten), reiterating the grounds of appeal already presented before the lower instances, claiming compensation and requesting the court to hold an oral hearing. The applicant stated that he had been refused an oral hearing before the lower courts and that the County Administrative Court had also rejected his request to hear an expert witness. He maintained that his case was complex and important and that, for these reasons, he had a right to an oral hearing. On 23 January 2007 the applicant was informed that the Supreme Administrative Court would, first of all, examine whether leave to appeal should be granted and that it had understood his request for an oral hearing to be related to the substance of the case. The applicant was given the opportunity to comment on both issues and to complete his appeal. On 7 May 2007 the applicant requested once again that an oral hearing be held without clarifying whether it concerned the issue of leave to appeal or the substance of the case. On 12 December 2007 the Supreme Administrative Court rejected the applicant’s request for an oral hearing regarding the issue of leave to appeal and gave the applicant the opportunity to finalise his submissions. On 9 January 2009 the applicant completed his appeal and requested that an oral hearing be held with reference to his previous requests. On 20 February 2009 the Supreme Administrative Court refused leave to appeal. Domestic provisions of relevance in the present case are found in the 1976 Work Injury Insurance Act (Lagen om arbetsskadeförsäkring, SFS 1976:380) and the Administrative Court Procedure Act (Förvaltnings-processlagen, SFS 1971:291, “the 1971 Act”). The 1976 Work Injury Insurance Act has been incorporated into Chapters 39 and 41 of the Social Insurance Code as of 1 January 2011. According to Chapter 2, section 1, of the 1976 Work Injury Insurance Act, the term “work injury” mainly refers to injuries resulting from accidents or other harmful factors at a person’s workplace. Under the Act, all gainfully employed persons working in Sweden are insured against work injuries. For an injury to qualify as a work injury, a causal link must be established between the accident or harmful factor in the workplace and the insured person’s health problems. What is meant by “harmful factor” is the influence of a factor that is very likely to cause an injury or illness such as that incurred by the insured person. At the relevant time, it had to be “highly probable” that a certain factor in the working environment could cause a person’s injuries and, thereby, be considered to constitute a harmful factor. The view that a certain factor is very likely to cause an injury has to be relatively generally accepted (Govt. Bill 1992/93:30, pp. 20 and 36). This is the case where substantial knowledge exists, within medical or other science, that a certain factor has such harmful effect. If there is a lack of such support, such as, for example, profound differences in expert opinion, this requirement cannot be considered fulfilled. Thus, the opinion of a specific researcher or medical doctor should not constitute a sufficient basis for a positive decision on the issue of harmful effect. Section 9 of the 1971 Act, as in force at the relevant time, was worded as follows: “The procedure shall be in writing. Where it may be assumed to be advantageous for the investigation or promote the expeditious determination of the case, the processing may include an oral hearing regarding certain issues. 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.” In a case concerning social insurance, leave to appeal was required for the Administrative Court of Appeal to consider an appeal against a decision enacted by a County Administrative Court. Leave to appeal was to be granted if it was of importance for the guidance of the application of law that a superior court consider the appeal, if reason existed for amendment of the County Administrative Court’s conclusion, or if there were otherwise extraordinary reasons to entertain the appeal. A decision of the Administrative Court of Appeal not to grant leave to appeal could be appealed against to the Supreme Administrative Court.