On April 7, 2009 the third section of the European Court of Human Rights (hereinafter: ECtHR) issued a judgment in the Case of Mendel v. Sweden, which is of significance not because it adds another precedent to the long standing case law delimitating the scope of Art. 6 European Convention on Human Rights (hereinafter: ECHR) but because it underlines, once again, the inherent obstacle in the Swedish legal system to providing individuals access to courts for a review of administrative decisions by State authorities.
This following text will begin with a short description of the factual and legal background; the focus during the latter will be on the domestic legal framework as the interpretation of applicable norms under the ECHR, i.e. Arts 6 and 13, was less surprising. This will be followed by a description of the ECtHR’s judgment and reasoning and by a broader appreciation of the judgment’s significance to the legal order in Sweden.
II. Circumstances of the case and legal framework
(a) Facts and general legal parameters
The applicant, Ms Mendel from Malmö/Sweden, had been registered with the Employment Service (Arbetsförmedlingen) since 1992 and since 2001 had been taking part in various programmes provided by the Employment Service, aiming to provide participants with greater opportunities to find a job; inter alia by short term education and the possibility to try out different kinds of jobs. The participant was, by taking part in this activity guarantee scheme, obliged to attend meetings, to regularly meet his/her supervisor and to apply for suitable jobs that were offered. He/she was entitled to economic support under the Ordinance on Activity Support (Förordning om aktivitetsstöd, SFS 1996:100) but at the same time did not have any entitlement to unemployment benefits. On July 4, 2005 the Employment Service withdrew its approval for the applicant to take part in the offered programme, based on the applicant’s lack of attendance to information meetings and the unwillingness to accept job offers presented to her. As a consequence of this decision, the financial support following from the participation in the programme was also revoked, leaving Ms Mendel with basically no income. The applicant appealed the decision on July 21, 2005 to the National Labour Market Board (Arbetsmarknadsstyrelsen; hereinafter: Board), which is a possibility provided for in the applicable government Ordinance on Labour Market Policy Programmes (Förordningen om arbetsmarknadspolitiska program, SFS 2000:634; hereinafter: Ordinance). The applicant claimed that numerous facts on which the Board’s decision was based were incorrect, inter alia maintaining that she had not attended the meetings due to illness and that she informed the organizers of this in due time. The appeal was rejected on March 29, 2006, stating that the applicant had not done everything in her power to get a job, hence affirming the grounds to withdraw the entitlement to participate in the programmes. In this later decision the Board referred to the explicit prohibition of appeal against the decision in § 39 (now § 39a) Ordinance. On September 11, 2006 the applicant submitted a complaint to the Chancellor of Justice (Justitikanslern) in which she complained about the authorities’ decisions and requested damages. She did not, however, claim that there had been a breach of her rights under Art. 6 ECHR. Compensation from the State due to a wrongful decision by an administrative authority can be sought either by a petition to the Chancellor of Justice, who’s decision can not be appealed, or by a civil action against the State brought before the ordinary courts. Civil proceedings can be instituted even after a claim has been rejected by the Chancellor of Justice.
(b) Specific on the legal framework on appeals of administrative decisions
The prohibition to appeal decisions from the Board is based on the Government’s conviction that ‘[t]here is no right to receive such a measure and there is no right to retain it either.’ In the view of the Government there is equally no need for the decisions of the Board to be examined by a court. Generally, appeals against public administration decisions are governed by the Administrative Procedure Act (Förvaltningslagen, SFS 1986:223). According to § 22 Administrative Procedure Act a decision may be appealed by any person adversely affected by it, if an appeal against the decision is permitted. In such a case, the affected person shall be informed about the possibility to appeal by the authority issuing the decision. Since the Administrative Procedure Act applies subsidiary to provisions in other laws and/or ordinances (§ 3(1) Administrative Procedure Act) and since § 39a Ordinance explicitly prohibits the appeal of decisions from the Board, it indeed seems that an appeal is not possible. These prohibitions to appeal are a regular phenomenon found in many pieces of specific administrative legislation. The Swedish Supreme Court and the Supreme Administrative Court have at times set aside such prohibitions to appeal authority’s decisions when they concerned civil rights and obligations. Also, according to a new subsection to § 3 Administrative Procedure Act inserted in 2006, the provisions on appeal 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 Art. 6 § 1 ECHR. This section in § 3, however, was not yet in force at the time of the application filed with the ECtHR.
In practice the problem that has arisen out of this complex legislative construction is that the authorities will often not inform the affected individual of his/her possible right to appeal because they merely rely on the wording of the applicable specific legislation instead of delving into a case by case consideration under § 3 Administrative Procedure Act or Art. 6 ECHR.
III. The decision of the ECtHR
The government claimed that the complaint was incompatible ratione materiae as the decision was not about a ‘right’ in accordance with Art. 6 ECHR. It was suggested that the assignment to labour market policy programmes was heavily depending on the market situation (para. 32), the wording of e.g. § 8 Ordinance, showing that one ‘may’ be assigned under certain conditions (para. 33), that the assignment according to §§ 6-7 Ordinance had to be ‘motivated in terms of labour market policy’, suggesting a wide discretion for the authorities (para. 34). It was also claimed that the applicant did not exhaust the domestic remedies because she had not claimed compensation from the State for the lack of access to court. That this was a remedy the applicant should have used is supposedly shown by two cases by the Supreme Court.
The applicant asked that a distinction be made between applications for rights not yet received and revocations of already existing rights (para. 36). The latter were at hand in the present case and the authorities did not, due to the detailed and tangible criteria laid down in the Ordinance, have unfettered powers to revoke an assignment to a market policy programme (para. 37). It was also claimed that budgetary reasons could not motivate decisions regarding individuals by e.g. revoking an assignment.
The ECtHR first reiterated that any application of Art. 6(1) ECHR requires a right recognized under domestic law as Art. 6(1) ECHR in itself does not provide for these rights (para. 41). In this context both the wording and the interpretation of the relevant legal provisions by domestic courts are essential. Any margin of appreciation on the side of the national authorities does not preclude the violation of a right and thus the applicability of Art. 6 ECHR. However, the court is of the opinion that the wide margin of appreciation (‘may’; motivated in terms of labour market policy) prevented the development of a recognized ‘right’ to assignment to a market policy programme (para. 46). But the ECtHR affirmed that a right not to have one’s assignment to the programme arbitrarily revoked could exist. According to the ECtHR the conditions under which the authorities might revoke an assignment are tangible, leave no wide margin of appreciation and could be examined without difficulties by the authorities and courts. The ECtHR thus concluded that the applicant’s claim did indeed concern a right under Swedish law. It was furthermore said that at the time the application was lodged with the ECtHR there was no indication that the claim for compensation for the lack of access to court could be an effective remedy (para. 63).
The central question the ECtHR had to deal with was whether the possibility to appeal over administrative decisions, where there existed a domestic legal provision explicitly stating that the decision at issue was not subject to appeal, was sufficiently clear. The government answers this question in the affirmative, referring to the case law of the Swedish Supreme Courts on setting aside any appeal prohibition, which was established to satisfy the needs arising from Art. 6(1) ECHR (para. 72). The applicant answered it in the negative, suggesting that the legal position in Sweden was not sufficiently clear and that the information given to her by the Board, namely that an appeal was not possible, made any existing remedy not sufficiently accessible and effective (para. 71).
The ECtHR acknowledges that the national courts through their case-law had supported the right to appeal administrative decisions affecting a person’s civil rights and obligations despite any prohibition against such appeal in law or ordinance. But the ECtHR underlined that the Board did not inform the applicant on the possibility to appeal. On the contrary, the Board explicitly stated that the decision could not be appealed by the applicant, pursuant to the applicable legislation, the 2000 Ordinance (para. 77). Also, the applicant had expressed her dissatisfaction in a letter to the Board and asked for possible redress, but the Board had still not advised her of the (supposedly existing) possibility to appeal against the decision. Since in the view of the ECtHR the applicant must have been allowed to rely on the information received from the Board the applicant did not have a practical, effective right of access to court, hence a breach of Art. 6(1) ECHR had occurred.
The ECtHR did not consider it necessary to also examine the applicant’s invocation of Art. 13 ECHR since the requirements under that provision were less strict and in effect were absorbed by Art. 6(1) ECHR.
IV. Significance of the judgment
The current judgment by the ECtHR can be cited in support of some central points regarding the frequently visited Art. 6 ECHR and which are made in the case-law of the ECtHR. It e.g. affirms that a ‘right’ must be substantiated by the domestic law of the contracting States (para. 41), that the existence of the ‘right’ must be based on relevant provisions in the domestic legal order (para. 42), that the right to institute proceedings before courts in civil matters constitutes one aspect of the right to a court (para. 73), and that restrictions on the right of access are compatible with Art. 6 ECHR where they do not impair the essence of the right and pursue a legitimate aim (para. 74).
But the key assertion of the judgment is to be found in the ECtHR’s criticism or rather rejection of the Swedish prohibition of appeal contained in many pieces of administrative legislation. The lack of access to courts to appeal administrative decisions has been a problem for Sweden’s obligations under the ECHR since the 1980s, when the country on numerous occasions was found to violate Art. 6 ECHR because no right to appeal to a court was provided for. A new law was subsequently introduced in 1988 extending – but not generalizing – a right of access to court; this legislation was later incorporated in the Administrative Procedure Act. However, the current case highlights the still existing obstacle that the prohibitions of appeal contained in the more detailed pieces of legislation trump the Administrative Procedure Act, effectively still prohibiting the access to court. Certainly, the amendment to § 3 Administrative Procedure Act was not in force and thus could not be taken into consideration by the ECtHR. But even if it could have been, I doubt that the ECtHR would have reached a different verdict. The ECtHR highlighted that the applicant should have been allowed to rely on the information given by the Board, i.e. the administrative authority. But the Board was already, even without the new § 3 Administrative Procedure Act, in a position to apply Art. 6 ECHR and thus to presume a right to appeal when civil rights and obligations were found to be involved. Nevertheless the Board chose to rely on the prohibition contained in the specialized legislation; and I would even say for good reasons. There is the considerable risk that as long as these rather clear prohibitions remain, the lower level servant at an administrative agency is inclined to follow this prohibition (instead of entering an assessment of whether or not Art. 6 ECHR may be violated), and inform the affected individual that no redress before courts is possible. The situation of the affected individual is worse still especially if he/she, as is usually the case, is not supported by legal expertise that might identify the need and right to access to court to challenge a decision. The affected is even less than the civil servant likely to identify or make an assessment under Art. 6 ECHR, let alone evaluate the relevant case law of the Supreme Courts allowing access to courts.
It should, for the sake of completeness, be mentioned that Sweden certainly was not the only country found to violate Art. 6(1) ECHR because of the lack of a right to appeal against administrative decisions to a court. It should suffice to mention the case of Bentham v. Netherlands from 1985, which perhaps is one of the most significant decisions in this regard. But with the current decision the ECtHR touches upon a core element of the Swedish legal system; as far as I can assert more fundamental than in other European domestic legal systems: namely the desire to generally keep judicialization of societal processes constraint, to solve administrative concerns within the relevant State authorities instead of carrying possible conflicts to the courts, whether of ordinary or administrative jurisdiction. In other words, non-judicial means of dispute settlement have been particularly prevalent in Sweden. Administrative agencies are independent from the government (cf. RF 11:7) and out of tradition these agencies have decided on appeals by themselves and the final appeal instance has been the government regarding disputes between the individual and the State. The amendment of § 3 Administrative Procedure Act, instead of the abandonment of prohibitions to appeal in individual pieces of legislation, is a witness of the fierce struggle of a domestic legislation/legal system against Europeanization that proceeds to fast and that seeks to far reaching sweeping effect. The case law of the Supreme Courts of Sweden, which have acknowledged that the prohibitions of appeal may be disregarded, must be welcomed. But just as the amendment in § 3 Administrative Procedure Act, this development does not serve the interest of the individual who is still under the indirect influence of the provisions stating a prohibition of appeal.
It should also be mentioned that the amendment to § 3 Administrative Procedure Act is not well drafted. It’s wording suggests that the rules on appeal to court contained in the Administrative Procedure Act shall be applied despite special legislation. However, the Administrative Procedure Act merely provides procedural rules on who may appeal a decision, how an appeal is made and to which court it should be addressed. The question of whether or not appeal is possible at all is still decided by the special legislation. Hence the amendment addresses – and suggests to solve – a conflict that does not and cannot come up under the Administrative Procedure Act. A real solution would instead have to involve an examination of the prohibitions of appeal in specialized legislation.
As a summarizing remark it deserves mentioning that the current judgment has highlighted a fundamental problem, from a human rights perspective, in the Swedish administrative legislation. This obstacle may formally have been addressed and solved by the introduction of the new section of § 3 Administrative Procedure Act and the case law of the Swedish Supreme Courts. But practically the solution is far from ideal and is not able to fully serve the practical implementation of what Art. 6(1) ECHR stipulates and is moreover unlikely to fully serve the legitimate interests of the individual. Hence future judgments by the ECtHR in this regard are to be expected, unless appropriate measures are being taken as a consequence from the current judgment.
 Rule 25 (Rules of Court) Setting up of Sections: ‘The composition of the Sections shall be geographically and gender balanced and shall reflect the different legal systems among the Contracting Parties.’
 Case of Mendel v. Sweden, 7 April 2009, Application No. 28426/06.
 The Chancellor of Justice has as its main task to supervise the exercise of administrative power. For this purpose he can receive claims for damages from individuals directed to the State. He may not alter decisions made by other authorities.
 § 3 Förordningen om handläggning av skadeståndsanspråk mot staten, SFS 1995:1301: ’Justitiekanslern handlägger anspråk på ersättning med stöd av […] 2 § skadeståndslagen’. § 2 Skadeståndslagen (SFS 1972:207): ’Staten eller en kommun skall ersätta 1. personskada, sakskada eller ren förmögenhetsskada, som vållas genom fel eller försummelse vid myndighetsutövning i verksamhet för vars fullgörande staten eller kommunen svarar’.
 Prop. 2006/07:89, p. 79.
 § 22 FL: ’Ett beslut får överklagas av den som beslutet angår, om det har gått honom emot och beslutet kan överklagas.’
 § 21(2) FL: ’Om beslutet går parten emot och kan överklagas, skall han underrättas om hur han kan överklaga det.’
 NJA 1994 p. 657.
 RÅ 1997 ref. 65 and RÅ 2001 ref. 56.
 This wording has now been removed from the Ordinance.
 NJA 2005 p. 462; NJA 2007 p. 584.
 Masson and Van Zon v. the Netherlands, 28 September 1995, § 49, Series A no. 327-A.
 Pudas v. Sweden, 27 October 1987, § 34, Series A no. 125-A and Mats Jacobsson v. Sweden, 28 June 1990, § 32, Series A no. 180-A.
 (I) If a person refused an offer of suitable work or another measure under the guarantee scheme without an acceptable reason; (II) if he or she did not act in a proper manner or otherwise disrupted the activities; (III) or if there were other special reasons to revoke the assignment. See
 Golder v. the United Kingdom, 21 February 1975, §§ 35-36, Series A no. 18.
 Ashingdane v. the United Kingdom, judgment of 28 May 1985, § 57, Series A no. 93.
 Bentham v. The Netherlands, 23 October 1985, Application No. 8848/80).
 ‘No public authority, including the Riksdag and the decision-making bodies of local authorities, may determine how an administrative authority shall decide in a particular case relating to the exercise of public authority vis-à-vis a private subject or a local authority, or relating to the application of law.’