Procedural Rights before the Courts
1. Application process and deadlines
Most countries subject to this study allow the claimants between four and six weeks to file their claim before the courts.77 Nevertheless, the deadlines can vary between 3 weeks (in Sweden78) to three years (for some benefits in Italy79). In Switzerland, the
74 Art. 146 of the Constitution of the Republic of Cyprus.
75 Section 320 of the Social Welfare Consolidation Act 2005.
76 Art. 311 of the Danish Public Administration Act (Forvaltningslov Lov), Act No. 571, 19 December 1985, according to which a party who wishes to go to court must pay the costs incurred by taking these legal steps.
77 Notably Germany, Luxembourg, the Netherlands, Norway, Slovenia, Spain, Switzerland, Turkey, and the United Kingdom.
78 Section 6a of the Administrative Court Procedure Act (Förvaltningsprocesslag).
79 Art. 465(1) of the Code of Civil Procedure (Codice di Procedura Civile).
claim must be presented to the competent court within 30 days from the notification of the administrative decision.80
Most countries offer the possibility for the claimant to explain his or her case during an oral hearing. In Luxembourg,81 for example, hearings are compulsory. The proceedings are generally not adversarial in nature and the hearings are often public, unless the claimant requests a private hearing or if special considerations require confidentiality. The public character of proceedings before judicial bodies maintains public confidence in the courts, as the European Court of Human Rights (ECHR) has noted on several occasions.82
In Switzerland, according to Article 61 LPGA, the parties may be called to hearings if required in the circumstances. In France, the question of access to oral hearings is often raised.83 Attending a hearing might entail substantial additional costs for the appellant who may live far away from the local first-instance court, which creates a problem as to the accessibility of the hearings. Moreover, in Schuler-Zgraggen v Switzerland,84 the ECHR considered that systematically holding hearings could be an obstacle to the “particular diligence required in social security cases”,85 ultimately preventing compliance with the reasonable time requirement of Article 6.1.86 The right to be heard in Switzerland includes the right to translation,87 that is, the right for the claimant, where his or her mother tongue is a national language of the Swiss Confederation, to obtain a decision in this language or to get a translation by an expert.
In Estonia, the legislator has also expressly provided claimants who do not fluently speak the national language used in the proceedings, the option of being assisted by an interpreter, but these expenses are to be assumed by the claimants.88
The right to be represented is also an essential guarantee for individual claimants to understand their legal rights and obligations. Indeed, they can feel helpless when faced
80 Arts. 56-61 LPGA.
81 Art. 13 of the Grand-Ducal regulation, December 24th 1993 (Règlement grand-ducal du 24 décembre 1993 déterminant en application de l’article 294 du code des assurances sociales la procédure à suivre devant le conseil arbitral et le conseil supérieur des assurances sociales, ainsi que les délais et frais de justice)
82 Axen v Germany, 8th December 1983, European Court of Human Rights, n°8273/78, para. 25;
Werner v Austria, 25th November 1997, European Court of Human Rights, n°21839/93, para. 45.
83 See notably SAYN, Accès au juge, p. 127.
84 Schuler Zgraggen v Switzerland, 24th June 1993, European Court of Human Rights, n°14518/89.
85 Ibid. para. 58.
86 As stated in Deumeland v Germany, 29th May 1986, European Court of Human Rights, n°9384/81, para. 90.
87 This stems from an interpretation of Article 42 LPGA by the Federal Administrative Tribunal in a decision taken on 31.03.2004.
88 In Estonia, for example, Art. 17(2) of the Administrative Procedure Act (Haldusmenetluse seadus) clearly states that the claimant shall pay for the expenses of the translator.
with complicated provisions and, without proper assistance, they may be unable to resolve the issues that arise.
Yet, in most countries, legal representation is not a prerequisite to appear before the courts.89 In any case, representatives of professional organizations and/or trade unions90 or even family members can represent or assist the claimant.91 Despite the relief and moral support a claimant can benefit from by having his or her relatives involved in judicial proceedings, one can wonder whether such permission is appropriate. Ideally, only qualified persons should be able to represent a claimant (whether these persons are lawyers or union representatives who have experience in the field). In Switzerland, according to Article 61 LPGA, the right to be assisted by a counsel must be guaranteed and, when necessary, claimants can obtain free legal counselling if it is justified by his or her personal situation.92
Due to the specific character of many social security cases, when proper procedure is followed, a decision should be reached more quickly than in ordinary civil cases. In Spain, for example, the law expressly provides that the judge shall render his or her decision within 5 days.93 However, despite this deadline, extended processing times are necessary for courts to take their final decisions, in Spain as in other jurisdictions.94 In Switzerland, the courts are not bound to render a decision within a specific deadline.
Nevertheless, the Federal Administrative Court has ruled that an adequate timeframe should be respected by the authorities.95
In a number of cases, the European Court of Human Rights has insisted on the necessity for courts to render their decisions in a timely manner.96 Throughout Europe
89 In the Czech Republic, Art. 35(2) of the Administrative Code provides that the claimant “may be represented by a counsel”. The use of the word “may” clearly indicates that legal assistance is not compulsory. The same goes in Art. 13(1) of the Estonian Administrative Procedure Act (Haldusmenetluse seadus) or Section 12 of the Norwegian Public Administration Act.
90 Such right is enshrined. for example, in the legislation of Germany (Art. 13(6) of Book 10 of the Social Code (SozialGesetzbuch) and Article 73(2) of the Social Courts Act (Sozialgerichtsgesetz)), Italy (Art. 469(1) of the Code of Civil Procedure), and Spain (Art. 20(1) of Law No. 36/2011 regulating the jurisdiction of social matters (Ley reguladora de la jurisdicciòn social)).
91 See e.g. Section 12 of the Norwegian Public Administration Act of 10 February 1967, Rule 11 of the Tribunal Proceedings (First-tier Tribunal) (Social Entitlement Chamber) Rules in the United-Kingdom.
92 Art. 37 para. 4 LPGA.
93 Pursuant to Art. 97 para. 1 of Law No. 36/2011 regulating the jurisdiction of social matters (Ley 36/2011, de 10 de octubre, reguladora de la jurisdicción social).
94 For Spain, consult <http://www.citapreviainem.es/retrasos-juzgados-social-trabajador>.
95 In a decision handed down by the Administrative Federal Tribunal on 04.04.1986, 14 months were deemed to be a reasonable period of time in which to render a decision (RAMA Jurisprudence de l’office fédéral de la santé publique K 690 para. 3, p.391).
96 E.g. Deumeland v Germany, 29th May 1986, European Court of Human Rights, n°9384/81, para.
90; Salesi v Italy, 26th February 1993, European Court of Human Rights, n°13023/87, para. 24;
Burdoc v Russia, 2nd May 2002, European Court of Human Rights, n°59798/00, para. 122.
there are problems relating to delays in proceedings, due to the heavy workload of courts and the shortage of specialised lawyers competent to deal with social security cases.97 Comparing the lengths of proceedings across Europe is a difficult task since not all states publish information to this effect.