Résolution CM/ResDH(2013)196 Mendel contre Suède Exécution de l arrêt de la Cour européenne des droits de l homme

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1 Résolution CM/ResDH(2013)196 Mendel contre Suède Exécution de l arrêt de la Cour européenne des droits de l homme (Requête n o 28426/06, arrêt du 7 avril 2009, définitif le 7 juillet 2009) (adoptée par le Comité des Ministres le 26 septembre 2013, lors de la 1179e réunion des Délégués des Ministres) Le Comité des Ministres, en vertu de l article 46, paragraphe 2, de la Convention de sauvegarde des droits de l homme et des libertés fondamentales, qui prévoit que le Comité surveille l exécution des arrêts définitifs de la Cour européenne des droits de l homme (ci-après nommées «la Convention» et «la Cour»), Vu l arrêt définitif qui a été transmis par la Cour au Comité dans l affaire ci-dessus et la violation constatée ; Rappelant l obligation de l Etat défendeur, en vertu de l article 46, paragraphe 1, de la Convention, de se conformer aux arrêts définitifs dans les litiges auxquels il est partie et que cette obligation implique, outre le paiement de la satisfaction équitable octroyée par la Cour, l adoption par les autorités de l Etat défendeur, si nécessaire : - de mesures individuelles pour mettre fin aux violations constatées et en effacer les conséquences, dans la mesure du possible par restitutio in integrum ; et - de mesures générales permettant de prévenir des violations semblables ; Ayant invité le gouvernement de l Etat défendeur à informer le Comité des mesures prises pour se conformer à l obligation susmentionnée ; Ayant examiné le bilan d action fourni par le gouvernement indiquant les mesures adoptées afin d exécuter l arrêt, y compris les informations fournies en ce qui concerne le paiement de la satisfaction équitable octroyée par la Cour (voir le bilan d action 1 soumis en 2010 et les documents DH-DD(2011)618 2 et DH-DD(2013)701 3 ) ; S étant assuré que toutes les mesures requises par l article 46, paragraphe 1, ont été adoptées, DECLARE qu il a rempli ses fonctions en vertu de l article 46, paragraphe 2, de la Convention dans cette affaire et DECIDE d en clore l examen. 1 Anglais uniquement. 2 Anglais uniquement. 3 Anglais uniquement.

2 Permanent representation of Sweden to the Council of Europe Strasbourg, 12 February 2010 Action report concerning the case of Mendel v. Sweden (Application No /06) The European Court of Human Rights delivered a judgment in the above-mentioned case on 7 April The Court found a violation of Article 6.1 of the Convention and held that Sweden was to pay to the applicant EUR in respect of non-pecuniary damage and EUR in respect of costs and expenses. Sweden was also to pay any tax that may be chargeable on the above amounts. The amounts were to be converted into Swedish kronor (SEK) at the rate applicable at the date of settlement. Payment was to be made within three months from the date on which the judgement became final in accordance with Article 44 2 of the Convention. The judgment became final on 7 July The following measures have been taken as a result of the judgment. Individual measures The Government decided on 24 September 2009 that payment would be made in accordance with the Court s judgment. A copy of the decision is enclosed as Appendix 1. It is noted in the decision that a sum of EUR 500 should be added to the amount concerning costs and expenses, EUR 2 000, to cover VAT in accordance with the Court s judgment. Hence, in total a sum of EUR was to be paid for costs and expenses. Further, it was decided that payment would be made to the applicant s account. Payment was subsequently made in accordance with the Government s decision. On 29 September 2009 the amount of SEK for non-pecuniary damage was paid into the above mentioned account and on 1 October 2009, the amount of SEK for costs and expenses were paid to the same account. Proof of payment is enclosed as Appendices 2 and 3. General measures The judgment of the Court has been published and disseminated. Immediately after the Court s judgment, the Enforcement Service was informed of the judgment. Furthermore, a report containing a summary of the judgment in Swedish, with a copy of the judgment attached, has been sent to relevant domestic authorities including the Employment Service, the Swedish National Courts Administration, the Bar Association, the Chancellor of justice and the Parliamentary Ombudsmen. The judgment in English and a summary of it in Swedish has also been published on the Swedish National Courts Administration s website (see Nytt fran Europadomstolen ), and the Government s human rights website Immediately after the judgment, the legal department at the Employment Service analysed the judgment, which resulted in an article for the benefit of its employees, published on 20 April 2009 at the Employment Service s intranet; see Appendix 4 (Swedish) and Appendix 5 (unofficial English translation). As is evident from the article, the analysis also resulted in a decision to change the appeal instructions (overldagandehanvisning) concerning decisions on revocation of an assignment to a labour market policy program so that it clearly stated the right to appeal to a court against the decision. It is pertinent to note that the Employment Service interpreted the Court s decision to apply to decisions of revocation regarding all labour market policy programs and not just the activity guarantee program (now replaced by the job- and activity guarantee program). It should further be noted that in the appeal instructions, specific reference is made to the Court s judgment in the present case. A copy of the appeal instruction, slightly modified compared to the text in the article is attached as Appendix 6 (in Swedish). An unofficial translation to English is attached as Appendix 7.

3 As the Government stated in its observations in the present case, appeal prohibitions (överklagandeförbud) may be set aside if a decision that is excluded from appeal concerns someone s civil rights or obligations under Article 6 of the Convention. This rule, which was initially established by case-law and subsequently codified by legislation, was adopted specifically to ensure compliance with the right of access to court in those cases where such a right had not been foreseen in the legislation concerned, or where an appeal prohibition might otherwise violate Article 6 1of the Convention. However, to ensure that the right to access to court regarding decisions on revocation of an assignment to a labour market policy program is unambiguous, the Government is currently in the process of reviewing the relevant legislation. A list of the Government ordinances concerned is found in the Employment Service s article attached as Appendices 4-5. The necessary amendments are planned to enter into force on 1July The Government holds that after the above-mentioned amendments of the Government ordinances concerned have been adopted, it has taken all the measures required as a result of the Court s judgment in the present case. Fredrike Tamas Hermelin Councellor

4 Action report concerning the case of Mendel v. Sweden (Application No /06) (16 November 2010) 1. The European Court of Human Rights delivered a judgment in the above mentioned case on 7 April The Court found a violation of Article 6 1 of the Convention and held that Sweden was to pay the applicant non-pecuniary damages as well as compensation for costs and expenses. Payment was to be made within three months from the date on which the judgment become final in accordance with Article 44 2 of the Convention. The judgment became final on 7 July In an action report dated 10 February 2010, the Swedish Government reported that the individual measures (payment of non-pecuniary damage and costs and expenses) required by the Court s judgment had been implemented within the prescribed time period. The Government also reported of the general measures taken as a result of the judgment; inter alia that the judgment had been published and disseminated and that the Government - at that point in time - was in the process of reviewing relevant legislation in order to include a right to appeal regarding decisions on revocation of an assignment to a labour market policy programme. The Government also reported that the amendments were planned to enter into force on 1 July Additionally, the Government stated how those whose assignments were revoked before the amendments entered into force were informed of their right to appeal against the decision and how they should proceed to make such an appeal. The Government finally concluded that following the adoption of the above mentioned amendments to the relevant Government ordinances, all the required measures resulting from the Court s judgment in the present case would have been taken. 3. Following the Government s action report, the Committee of Ministers considered the case and on 17 June 2010 the Committee decided, under written procedure, to resume consideration of the present case no later than their 1100th meeting (December 2010). The Committee further stated that they expected to receive information regarding the outcome of the legislative process and whether the applicant may appeal against the decision of the National Labour Market Board (on the basis of the Court s judgment or the new legislation). The Committee of Ministers further stated that it would be useful to have information on the outcome of the proceedings before the Chancellor of Justice and a copy of the Government s legislative proposal. 4. In light of the above instructions regarding what information is expected, the Government would like to submit the following supplementary information regarding the individual and general measures taken. General measures Amendments to the ordinances concerned as a result of the judgment 5. At the time of the Government s previous action report, the Government was in the process of reviewing relevant legislation to ensure the right to access to a court regarding decisions on revocation of an assignment to a labour market policy programme. Subsequently, amendments to four government ordinances concerning labour market policy programmes entered into force as expected on 1 July 2010 as a direct result of the judgment in the present case. Amendments were made to those ordinances containing provisions on revocation of assignments to labour market policy programmes. The ordinances now contain explicit provisions regarding the possibility for an individual to appeal to a general administrative court against decisions on revocation issued by the Employment Service (which has replaced the National Labour Market Board). A possibility to appeal was also introduced regarding decisions on dismissal (utskrivning) from a programme as well as readmission (återinträde) to a programme after having been dismissed. 6. The following are the amended ordinances: Recruitment Incentives Ordinance from 1997 (förordningen om anställningsstöd, SFS 1997:1275), Appendix 1; Labour Market Policy Programmes Ordinance from 2000 (förordningen om arbetsmarknadspolitiska program, SFS 2000:634), Appendix 2;

5 Ordinance on the Job and Development Guarantee from 2007 (förordningen om jobboch utvecklingsgarantin, SFS 2007:414 (hereinafter JUG)), Appendix 3; and Ordinance on Job Guarantee for Young People from 2007 (förordningen om jobbgaranti för ungdomar, SFS 2007:813 [hereinafter JOG]), Appendix Provisions on revocation of an assignment to a labour market policy programme are found in Section 15 of the Recruitment Incentives Ordinance, Section 37 of the Labour Market Policy Programmes Ordinance, Section 15 of JUG and Section 12 of JOG. Provisions on dismissal and readmission are found in Section 10, first paragraph and Section 30 c of the Labour Market Policy Programmes Ordinance, Sections 13 and 14 of JUG as well as Sections 10 and 11 of JOG. 8. According to all the above-mentioned ordinances, decisions on revocation, dismissal and readmission may now be appealed against to a general administrative court after the decision has been reviewed by the Employment Service Central Review Division. This follows from a reference in the ordinances to Section 22a of the 1986 Administrative Procedure Act [förvaltningslagen, SFS 1986:223] (see Section 39a of the Labour Market Policy Programmes Ordinance, Section 22a of the Recruitment Incentives Ordinance, Section 22a of JUG as well as Section 16a of JOG). According to Section 23 of the Administrative Procedure Act, the time for appeal is three weeks. It is further stated in the above mentioned ordinance provisions on appeal that if the decision is appealed against before a request for review has been made, the appeal shall be considered as a request for review. 9. No transitional regulation to the amendments has been incorporated into the ordinances regarding the right of appeal. However, when new procedural rules are introduced, an implicit general principle is that these rules are as a main rule - to be applied upon entry into force even with regard to pending matters. Information regarding review and appeal 10. The person concerned is informed of the right to review and appeal of the decisions on revocation, dismissal and readmission. The obligation on authorities to give such information follows from Section 21 in the Administrative Procedure Act. As is initially the case with the right to review of the decision by the Central Review Division of the Employment Service, the following information is given on the initial decision on revocation, dismissal or readmission issued by the local office of the Employment Service: Arbetsförmedlingens beslut ska omprövas om du begär det. Din begäran om omprövning ska ske skriftligt. Skrivelsen ska ges in till den arbetsförmedling som meddelat beslutet och ska ha kommit in dit inom tre veckor från dag du fick del av beslutet. Unofficial English translation: "The Employment Service s decision shall be reviewed if you so request. Your request for review shall be made in writing. The written submission shall be submitted to the Employment Service office that issued the decision and must have been received by that office within three weeks from the day you received the decision." 11. As regards the possibility to appeal against the review decision of the Employment Service Central Review Division, the Central Review Division makes a reference to the provision regarding appeal in the ordinance in question. The following is an example of such information given in a decision on review of a decision on revocation, dismissal or readmission according to the Ordinance on the Job and Development Guarantee: Enligt 22a förordning (2007:414) om jobb- och utvecklingsgarantin framgår att Arbetsförmedlingens beslut i detta ärende får överklagas. Om du vill överklaga Arbetsförmedlingens beslut ska du skriva till Förvaltningsrätten i [...]. Överklagandet ska dock skickas till Arbetsförmedlingen, Enheten Central omprövning Box 3000, Östersund. Skrivelsen måste ha kommit in till Arbetsförmedlingen inom tre veckor från den dag du fick del av beslutet. I brevet ska du tala om vilket beslut som överklagas, vilken ändring av beslutet som du önskar och skälen för ändringen.

6 Unofficial English translation: "According to Section 22a of the Ordinance on the Job and Development Guarantee (2007:414), you may appeal against the decision of the Employment Service. If you wish to appeal against the decision, you are to address the appeal to the Administrative Court in [...]. However, the appeal must be sent to: The Employment Service, the Central Review Division, Box 3000, Östersund. The written submission must have been received by the Employment Service within three weeks of the date on which you received the decision. In your letter, you must specify the decision appealed, the change you wish in the decision and the reasons for the change." Individual measures 12. Turning now to the issue of whether the applicant may appeal against the decision of the National Labour Market Board on the basis of the Court s judgment or the new legislation, the Government wishes to emphasise the following. It is primarily for the State concerned to choose, subject to supervision by the Committee of Ministers, the means to be used in its domestic legal order in order to discharge its obligation under Article 46 of the Convention (see Öcalan v.turkey GC), n o 46221/99, 210, ECHR 2005/IV and the authorities cited therein). The Government is of the opinion that the violation found in the present case does not require that the applicant may now be entitled to appeal against the decision on revocation for the following reasons. 13. Firstly, in the judgment in the present case, the Court neither made a ruling nor indicated that the applicant was to have a possibility to appeal against the decision of the National Labour Market Board (cf. e.g., Öcalan v.turkey, cited above and Assanidze v. Georgia [GC], No /01, , ECHR 2004-II). Instead, the Court awarded the applicant just satisfaction for the violation found. 14. Secondly, the present case does not entail such exceptional circumstances that make the reexamination of the case or a reopening of the proceedings the most efficient or the only means of achieving restitution in integrum 4. The circumstances in the present case are far from those in caselaw mentioned in the previous paragraph. Furthermore, the present case does not fall under the categories mentioned in Recommendation No. R(2000)2 of the Committee of Ministers regarding cases in which reopening is important, namely: where the injured party continues to suffer very serious negative consequences because of the outcome of the domestic decision at issue, which are not adequately remedied by the just satisfaction and cannot be rectified except by review or reopening, and where the judgment of the Court leads to the conclusion that the impugned domestic decision is on the merits contrary to the Convention, or the violation found is based on procedural errors or shortcomings of such gravity that a serious doubt is cast on the outcome of the domestic proceedings complained of. 15. Thirdly, the applicant has not, to the best of the Government s knowledge, put forward any request to the Employment Service for the reopening of her case or for review or appeal of the decision on revocation of her assignment subsequent to the Court s judgment. 16. In the light of the above, the Government is of the view that the just satisfaction awarded and paid to the applicant is an adequate and sufficient remedy of the violation found in the present case. 17. Nevertheless, the following information regarding the possibility for the applicant to appeal against the decision may be of interest or relevance. 18. The National Labour Market Board s decision regarding the applicant s appeal was issued on 29 March 2006 and the matter was thereby concluded. Since the matter was not pending upon the entry into force of the above mentioned amendments to the Labour Market Policy Programmes Ordinance 4 See Recommendation No. R(2000)2 of the Committee of Ministers to member states on the reexamination or reopening of certain cases at domestic level following judgments of the European Court of Human Rights adopted by the Committee of Ministers on 19 January 2000 at the 694th meeting of the Ministers' Deputies.

7 (see para. 9 above), the applicant cannot appeal against the Board s decision today on the basis of the newly introduced rules on appeal. 19. However, in the proceedings before the European Court of Human Rights, Sweden maintained that even before 1 July 2006, case-law from both the Supreme Court and the Supreme Administrative Court provided a right to appeal decisions to a court despite a prohibition against appeals, if the decision concerned civil rights or obligations (see Yearbook of the Supreme Court 1994 p. 657, Yearbook of the Supreme Administrative Court 1997, ref. 65 and Yearbook of the Supreme Administrative Court 2001, ref. 56). However, for an appeal to be examined on the basis of this caselaw, it would seem to be required that the appeal is submitted within the prescribed period, i.e. within three weeks from the date that the appellant was notified of the decision (Section 23 of the Administrative Procedure Act). As far as the applicant is concerned, the deadline for appeals may be found to have expired. Nevertheless, the applicant may have the option to apply for restoration of expired time under Section 37c of the Administrative Court Procedure Act (förvaltningsprocesslagen, SFS 1971: 291) regarding the time allowed for appealing the National Labour Market Board s decision to an administrative court. It further follows from Section 8 of the Administrative Court Procedure Act that an application for restoration of expired time under Section 37c of the same Act is to be examined by the administrative court of appeal. 20. Still, it is impossible for the Government to express a definite opinion concerning the outcome of an application for restoration of expired time since the proper authority for examining such an application is an administrative court of appeal, not the Government. For the same reason, the Government is unaware of whether the applicant has made such an application. 21. Turning to the applicant s complaint to the Chancellor of Justice: (Section 13 in the judgment), the Government submits the Chancellor of Justice s decisions (in Swedish) regarding the applicant s complaint and her request for review of the complaint (Appendices 5-6). 22. In this context, the Government wishes to draw the Committee s attention to the fact that the applicant s primary complaint to the Chancellor of Justice was that the decision on revocation was erroneous based on the merits and not on the fact that she could not appeal against the decision to a court. The Government finds it appropriate to emphasise that the Court s finding that the applicant should have had a right to a court examination of the revocation decision does not mean that the decision was erroneous based on the merits. 23. To conclude, the Government considers that the measures adopted have remedied the consequences for the applicant of the violation of the Convention found by the Court in this case, that these measures will prevent new, similar violations and that Sweden has thus complied with its obligations under Article 46, 1 of the Convention. The Government therefore looks forward to the Committee s decision to close the examination of this case.

8 Ministry for Foreign Affairs 14 June 2013 Sweden Case Summary 1. Case description: Action report No 3 Case of Mendel v. Sweden (Application 28426/06), Judgment of 7 April 2009, final on 7 July 2009 (anglais uniquement) Violation of the right of access to a court due to the lack of possibility to appeal against an administrative decision of 29 March 2006, revoking the applicant s permission to participate in a labour market policy programme organised by the State for the long-term unemployed (Article 6 1 of the Convention). Individual measures 2. Just satisfaction: The award for non-pecuniary damages and for costs and expenses (in total 4 500) has been paid and evidence thereof has been supplied previously (see the Government s Action report dated 10 February 2010). 3. Individual measures: Together with its Action report dated 16 November 2010, the Government submitted the decisions of the Chancellor of Justice as requested by the Committee of Ministers in its interim resolution dated 17 June In this regard the Government would like to add the following: The decision dated 1 August 2008 (Appendix 5 to the Action report dated 16 November 2010) concerns the applicant s request for damages due to the revocation of her assignment to the labour market policy programme. The applicant claimed that the processing of her revocation had not been correct. She did not claim any set amount for damages. The Chancellor of Justice considered that the applicant s claim for damages was based on Chapter 3, Section 2 of the Tort Liability Act (Skadeståndslagen, SFS 1972:207), according to which the State is liable to pay compensation for damages caused by a wrongful act or omission in connection with the exercise of public authority. For its examination of the applicant s claim, the Office of the Chancellor of Justice, in addition to the applicant s written submissions to the Chancellor of Justice, had access to the relevant case files of the National Labour Market Board (Arbetsmarknadsstyrelsen, AMS) and the county labour board of Skåne (Länsarbetsnämnden i Skåne). The Chancellor of Justice had also requested and received written observations from the AMS. In his decision, the Chancellor of Justice found that neither the applicant s submissions nor what had come to light during the Chancellor s examination of the matter supported the conclusion that the Employment Service had committed any wrongful act or omission that could entail a liability for the State under the Tort Liability Act. The Chancellor of Justice therefore rejected the applicant s claim for damages. In his decision, the Chancellor of Justice informed the applicant that if she was not satisfied with the decision, she could institute civil proceedings against the State before a civil court. The decision dated 2 August 2010 (Appendix 6 to the Action report dated 16 November 2010) concerns the applicant s request for a review of the Chancellor of Justice s decision on damages dated 1 August In her request for a review, the applicant claimed a certain amount for pecuniary damages. As grounds for her claim, the applicant alleged that it was evident merely from the documents in her case that the processing of her case had not been correct and that there were no grounds for revoking her assignment to the labour market policy programme. The applicant further referred to the judgment of the European Court of Human Rights in the present case. In her decision, the Chancellor of Justice noted that the European Court of Human Rights had found that the applicant s right of access to a court had been violated due to the applicant s lack of possibility to appeal against the Employment Service s decision and that the Court had awarded the applicant non-

9 pecuniary damages; however, the Court had not examined whether the revocation of the applicant s assignment had been erroneous. The Chancellor of Justice further observed that for the State to be liable for damages, they must have been caused by a wrongful act or omission in connection with the exercise of public authority. In that regard, the applicant had not referred to any new circumstances compared with her previous submissions to the Chancellor of Justice. The Chancellor of Justice held that, consequently, there was no reason for the Chancellor to reach another conclusion than in the previous decision. In her decision, the Chancellor of Justice once again informed the applicant that if she was not satisfied with the decision, she could institute civil proceedings against the State before a civil court. It may here be relevant to add that, according to the information available to the Government, the applicant has not instituted civil proceedings against the State before a civil court. At this juncture the Government finds it relevant to clarify that although the Court s judgment in the present case mentions in 13 that the applicant has submitted a complaint to the Chancellor of Justice, this fact had no bearing on the Court s examination of the merits of the present case The Government has previously (in its Action report dated 16 November 2010) submitted extensive information on the issue of appeal and re-opening of proceedings. At this time, the Government only has the following to add in this regard. According to updated information from the Employment Service on 10 June 2013, the applicant has not put forward any request to the Employment Service for the reopening of her case or for review or appeal of the decision on revocation of her assignment subsequent to the Court s judgment. In the light of the above, and of the information submitted in the previous Action reports, the Government is of the view that the just satisfaction awarded and paid to the applicant is an adequate and sufficient remedy of the violation found in the present case, and that no further individual measures are necessary. General measures 4. General measures: The Government has previously (in the Action reports dated 10 February 2010 and 16 November 2010) submitted extensive information on the general measures taken, and has submitted the texts of the relevant amended ordinances. It may here be reiterated that according to the amended ordinances, decisions on revocation, dismissal and readmission regarding labour market policy programmes may now be appealed to a general administrative court after the decision has been reviewed by the Employment Service Central Review Division. This follows from a reference in the ordinances to Section 22a of the 1986 Administrative Procedure Act (Förvaltningslagen, SFS 1986:223); see Section 39a of the 2000 Labour Market Policy Programmes Ordinance, Section 22a of the 1997 Recruitment Incentives Ordinance, Section 22a of the 2007 Ordinance on the Job and Development Guarantee, and Section 16a of the 2007 Ordinance on the Job Guarantee for Young People. According to Section 23 of the Administrative Procedure Act, the time allowed for appeal is three weeks. It is further stated in the provisions on appeal in the above-mentioned ordinances that if the decision is appealed before a request for review has been made, the appeal shall be considered as a request for review. 5. Publication and dissemination Immediately after the Court s judgment, the Enforcement Service was informed of the judgment. Furthermore, a report containing a summary of the judgment in Swedish, with a copy of the judgment attached, has been sent to relevant domestic authorities including the Employment Service, the Swedish National Courts Administration, the Bar Association, the Chancellor of Justice and the Parliamentary Ombudsmen. The judgment in English and a summary of it in Swedish have been published on the Swedish National Courts Administration s website: (see Nytt från Europadomstolen 4, 2009), and on the Government s human rights website:

10 The Government considers it unnecessary to further disseminate the judgment. 6. The Government s conclusion The Government considers that all necessary measures in view of the Court s judgment in the present case have been taken, that it has thus complied with its obligations under Article 46 1 of the Convention, and that the case should consequently be closed.