Facts
The case concerns an insured person, born in 1978, who was involved in a road traffic accident in 1996 resulting in multiple trauma. The insurer (INSAI) had granted him in 2000 a compensation for impairment of integrity (IMI) of 20% and in 2003 a disability pension, later increased to 31%, a decision that was no longer contested.
By letter of 3 November 2017, the insured person asked INSAI to review the case. On 18 January 2021 he filed an appeal for delayed justice with the Insurance Court of the Canton of Ticino, requesting a finding of denial of justice and an order to issue a decision without delay. On 22 January 2021 INSAI issued the formal decision, maintaining the pension at 31% and increasing the IMI by 12.5%, for a total of 32.5%.
By judgment of 8 March 2021 (35.2021.6), the cantonal court struck the case from the roll, imposed court costs of CHF 200 on INSAI and ordered it to pay the insured person CHF 1,500 as costs of representation. The cantonal court had held that the overall duration of more than three years between the request for review and the appeal was excessive, in particular because of delays by the district physician, and that the proceedings should presumably conclude with a finding of delayed justice. As to costs, it had classified the case as not relating to benefits, applying Art. 29 para. 4 Lptca/TI.
INSAI challenges the judgment by way of a public law appeal to the Federal Supreme Court, requesting its annulment. The insured person requests dismissal of the appeal; the cantonal court waived submitting observations.
Main legal questions: (i) existence of delayed justice, i.e. violation of the reasonable time limit under Art. 29 para. 1 Cst.; (ii) lawfulness of levying cantonal court fees in proceedings for delayed justice after the revision of the GSSLA that entered into force on 1 January 2021.
Considerations
The Federal Supreme Court first examines the appeal from the perspective of violation of law (Art. 95 and 96 FSCA), specifying that the establishment of facts may be challenged only if manifestly incorrect or in violation of law (Art. 97 para. 1 FSCA). Where the appeal concerns procedural questions and not directly the granting or refusal of benefits, free examination of the facts is excluded (Art. 97 para. 2 and 105 para. 3 FSCA).
As to delayed justice, the Federal Supreme Court refers to Art. 29 para. 1 Cst., under which everyone has the right to have their case decided within a reasonable time. Although recalling that the principle of speed (Art. 52 para. 2 and 61 let. a GSSLA) is a cornerstone of social insurance, it does not in principle prevail over the inquisitorial principle and the duty to clarify the facts with due diligence; ordering an external expert opinion does not in itself constitute delayed justice. The appellant merely contests the cantonal court's assessment, isolating the last month before the appeal and the deadline of 15 January 2021, without demonstrating that the overall assessment of the total duration of more than three years and of the delays by the district physician was untenable. In the summary examination of the presumable outcome, the cantonal court could therefore, without violating federal law, presume delayed justice; the appeal is unfounded on this point.
On the subject of costs, the Federal Supreme Court reconstructs the evolution of Art. 61 let. a GSSLA and Art. 69 para. 1bis AIA. With the revision of the GSSLA, in force since 1 January 2021, the general exemption from costs was abolished and Art. 61 let. f bis GSSLA was introduced, under which in disputes concerning benefits the proceedings are subject to costs only if the specific law so provides, while for reckless or frivolous conduct the court may impose costs. The legislature therefore intended a differentiated solution, leaving the Cantons free to regulate the matter outside the scope of Art. 61 let. f bis GSSLA.
The question whether an appeal for cantonal delayed justice constitutes a dispute concerning benefits may remain open: in that case the AIA provides for no costs and the application of a fee would be excluded. In any event, if…