Lexploria

EUROPEAN COMMISSION OF HUMAN RIGHTS

SECOND CHAMBER

Application No. 21370/93

Lennart Gustafsson

against

Sweden

REPORT OF THE COMMISSION

(adopted on 4 September 1996)

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1-15). . . . . . . . . . . . . . . . . . . . . .1

A. The application

(paras. 2-4). . . . . . . . . . . . . . . . . . . .1

B. The proceedings

(paras. 5-10) . . . . . . . . . . . . . . . . . . .1

C. The present Report

(paras. 11-15) . . . . . . . . . . . . . . . . . .2

II. ESTABLISHMENT OF THE FACTS

(paras. 16-34) . . . . . . . . . . . . . . . . . . . . .3

A. The particular circumstances of the case

(paras. 16-22). . . . . . . . . . . . . . . . . . .3

B. Relevant domestic law

(paras. 23-34). . . . . . . . . . . . . . . . . . .4

III. OPINION OF THE COMMISSION

(paras. 35-54) . . . . . . . . . . . . . . . . . . . . .6

A. Complaints declared admissible

(para. 35). . . . . . . . . . . . . . . . . . . . .6

B. Points at issue

(para. 36). . . . . . . . . . . . . . . . . . . . .6

C. As to the alleged violation of Article 6 para 1

of the Convention due to the lack of an oral

hearing

(paras. 37-44). . . . . . . . . . . . . . . . . . .6

CONCLUSION

(para. 45). . . . . . . . . . . . . . . . . . . . .8

D. As to the alleged violation of Article 6 para. 1

of the Convention due to the length of the

proceedings

(paras. 46-51). . . . . . . . . . . . . . . . . . .8

CONCLUSION

(para. 52) . . . . . . . . . . . . . . . . . . . .9

E. Recapitulation

(paras. 53-54). . . . . . . . . . . . . . . . . . .9

APPENDIX: DECISION OF THE COMMISSION AS TO THE

ADMISSIBILITY OF THE APPLICATION . . . . . . 10

I. INTRODUCTION

1. The following is an outline of the case as submitted to the

European Commission of Human Rights, and of the procedure before the

Commission.

A. The application

2. The applicant is a Swedish citizen, born in 1953. He resides at

Eringsboda, Sweden.

3. The application is directed against Sweden. The respondent

Government were represented by their Acting Agent, Ms. Eva Jagander of

the Ministry for Foreign Affairs.

4. The case concerns the proceedings in a dispute between the

applicant and an insurance fund. The applicant considers that the

dispute was not determined within a reasonable time and that he did not

get a "public hearing". He invokes Article 6 para. 1 of the Convention.

B. The proceedings

5. The application was introduced on 2 September 1992 and registered

on 10 February 1993.

6. On 5 July 1994 the Commission (Second Chamber) decided to give

notice of the application to the respondent Government and to invite

the parties to submit written observations on its admissibility and

merits.

7. The Government's observations were submitted on 3 October 1994.

The applicant's observations in reply were submitted on

20 November 1994.

8. On 7 September 1995 the Commission declared the application

admissible.

9. The text of the Commission's decision on admissibility was sent

to the parties on 14 September 1995 and they were invited to submit

further observations on the merits as they wished. The Government

informed the Commission on 24 October 1995 that they would not avail

themselves of the opportunity to submit any further evidence or

observations in the case. The applicant submitted certain evidence on

24 October 1995.

10. After declaring the case admissible, the Commission, acting in

accordance with Article 28 para. 1 (b) of the Convention, also placed

itself at the disposal of the parties with a view to securing a

friendly settlement. In the light of the parties' reactions, the

Commission now finds that there is no basis on which such a settlement

can be effected.

C. The present Report

11. The present Report has been drawn up by the Commission (Second

Chamber) in pursuance of Article 31 of the Convention and after

deliberations and votes, the following members being present:

Mrs. G.H. THUNE, President

MM. J.-C. GEUS

G. JÖRUNDSSON

A. GÖZÜBÜYÜK

J.-C. SOYER

H. DANELIUS

F. MARTINEZ

L. LOUCAIDES

M.A. NOWICKI

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

P. LORENZEN

E. BIELIUNAS

12. The text of this Report was adopted on 4 September 1996 and is

now transmitted to the Committee of Ministers of the Council of Europe,

in accordance with Article 31 para. 2 of the Convention.

13. The purpose of the Report, pursuant to Article 31 of the

Convention, is:

(i) to establish the facts, and

(ii) to state an opinion as to whether the facts found disclose

a breach by the State concerned of its obligations under

the Convention.

14. The Commission's decision on the admissibility of the application

is annexed hereto.

15. The full text of the parties' submissions, together with the

documents lodged as exhibits, are held in the archives of the

Commission.

II. ESTABLISHMENT OF THE FACTS

A. The particular circumstances of the case

16. The applicant is a member of the Industrial Employees' Recognised

Unemployment Insurance Fund (industritjänstemännens erkända

arbetslöshetskassa, hereinafter "the IEAK").

17. On 26 February 1988 the IEAK informed the applicant that they had

obtained information which indicated that he had received unwarranted

unemployment benefits. It appeared that the applicant had been admitted

to the University of Stockholm's law school on 1 September 1984 and had

passed eleven examinations between 31 October 1984 and 17 December

1987, obtaining a total of 92 points.

18. The IEAK accordingly intended to investigate the matter further,

inter alia, with a view to determining whether the applicant might be

required to repay part of the unemployment benefits received during

this period of time. The applicant was therefore requested to submit

certain information. On 18 March 1988 the applicant submitted inter

alia that although he had pursued his studies at the University he

nevertheless considered that he was entitled to unemployment benefits.

19. Following the investigation in the above matter the IEAK found,

on 17 June 1988, that the applicant had received unwarranted

unemployment benefits during the years 1984, 1985 and 1987, and

requested him to repay a total of 98,287 SEK. The applicant disputed

that he was obliged to repay this sum and requested the IEAK to

reconsider the matter. However, the IEAK maintained its position by

decision of 3 November 1988 following which the applicant, on

22 November 1988, brought the question of repayment before the Labour

Market Board (Arbetsmarknadsstyrelsen, hereinafter "the AMS").

20. Having obtained the parties' written observations the AMS found

in favour of the IEAK by decision of 18 May 1989, but lowered the

amount in question to 57,722 SEK.

21. The applicant appealed against this decision to the Supreme

Insurance Court (försäkringsöverdomstolen, hereinafter "the FÖD") on

9 June 1989 and requested, inter alia, permission to be present during

the examination of the case. The Court considered this as a request for

an oral hearing, which was refused by the Court on 26 September 1990.

The applicant was informed thereof on 23 October 1990. On 23 May 1991

the FÖD commenced obtaining factual information from various employment

offices and certain further observations were submitted by the AMS in

November 1991.

22. By judgment of 11 June 1992 the FÖD found that the applicant was

obliged to repay certain unemployment benefits received during the

years 1984, 1985 and 1987 and following this judgment the applicant was

informed by the IEAK, on 8 December 1992, that the total sum he was

obliged to pay was 52,070 SEK.

B. Relevant domestic law

23. The 1973 Act on Unemployment Insurance (hereinafter "the 1973

Act") includes provisions which govern certain aspects of the

activities of the forty unemployment insurance funds which administer

unemployment insurance in Sweden. The Act also includes provisions on

unemployment benefits. In order to be insured, according to the Act,

a person has to be a member of an unemployment insurance fund. Anyone

who fulfils the requirements of the by-laws of a fund, with respect to

employment within the fund's field of activities, has the right to

become a member.

24. An unemployment insurance fund is entitled to State subsidies

covering benefits paid out in accordance with the provisions of the

1973 Act. Until 1 January 1994, in order to help finance State costs

to cover unemployment benefits, the funds had to pay a certain fee to

the State for every member of the fund.

25. According to Section 54 of the 1973 Act, a fund shall collect a

fixed membership fee from each member. The fees shall be fixed in such

a way that, together with other income, they can be presumed to suffice

to pay for the administration of the fund and other expenses and -

until 1994 - for the fee to be paid by the fund to the State for every

fund member.

26. Until 1 January 1989 the issue as to whether an insured person

was entitled to benefits pursuant to section 4 of the 1973 Act was

assessed in the light of the provisions concerning the obligation to

be at the disposal of the labour market. According to practice

unemployment benefits were refused if a person was deemed to be

prevented, by his or her studies, from accepting a job offer

(cf. Government Bill 1987/88:114, p. 33 et seq.). According to

Section 4 of the 1973 Act in its wording as of 1 January 1989,

unemployment benefits cannot be obtained by a person engaged in

education unless there are special reasons.

27. Unemployment benefits shall be repaid in accordance with

Section 36 of the 1973 Act if, by means of incorrect information or

through failure to fulfil an obligation, a person has obtained

unemployment benefits although he or she did not qualify for such

benefits, or when too large an amount has been paid out, or if in any

other way benefits have been obtained by a person not entitled thereto

or when too large an amount has been obtained and the person concerned

reasonably should have realised that.

28. The obligation to repay the amount so obtained shall be entirely

or partly remitted if there are reasons for such a measure in the

particular case.

29. Under Section 96 a of the 1973 Act, a decision by an unemployment

insurance fund shall be reconsidered at the request of the insured

person whom the decision concerns. According to Section 97, an appeal

may subsequently be lodged with the Labour Market Board.

The Labour Market Board (the AMS)

30. The unemployment insurance funds are supervised by the AMS. The

funds are obliged to let a representative of the AMS attend the

meetings of the fund as well as its board meetings. The AMS may issue

any reminders which may be called for with regard to the activities of

a fund. The AMS may also order a fund to take such corrective measures

as are necessary in order to comply with the applicable rules. Should

such an order not be complied with and if the contested conditions have

not been otherwise eliminated, the AMS may declare that the fund has

lost entirely or partly its right to State subsidies for a certain

period of time.

31. Until 1 July 1993, a decision by the AMS concerning a fund

member's entitlement to unemployment benefits could be appealed against

to the Supreme Insurance Court in accordance with Section 98 of the

1973 Act in its former wording.

The Supreme Insurance Court (the FÖD)

32. The FÖD was the last level of jurisdiction in legal proceedings

concerning inter alia social insurance cases and cases under the 1973

Act. The members of the FÖD were the president, four insurance judges

as a minimum and at least eight lay members. As a main rule, the FÖD

was competent to determine a case with five members. Three of those

members should be judges.

33. Cases concerning unemployment benefits were until 1 July 1993

dealt with by an unemployment insurance fund, the AMS and the FÖD. As

from that date, decisions in those cases are appealed from an

unemployment insurance fund to the AMS and then to a county

administrative court (länsrätt), an administrative court of appeal

(kammarrätt) and finally, until 1 July 1995, to the FÖD. In order to

have his or her case examined on the merits by the FÖD, a person had

to be granted leave to appeal. The FÖD ceased its activities on

1 July 1995, when its tasks were taken over by the Supreme

Administrative Court (Regeringsrätten).

Oral hearings before the Supreme Insurance Court (the FÖD)

34. Provisions governing the proceedings before the FÖD are found in

the 1971 Administrative Procedure Act (förvaltningsprocesslagen,

hereinafter "the 1971 Act"). According to Section 9 of the 1971 Act,

the proceedings are in writing but may include an oral hearing when

there is reason to assume that the proceedings would benefit therefrom.

As regards the County Administrative Court and the Administrative Court

of Appeal a party has in principle a right to have an oral hearing upon

request, whereas no such right existed in respect of the FÖD or exists

at present before the Supreme Administrative Court.

III. OPINION OF THE COMMISSION

A. Complaints declared admissible

35. The Commission has declared admissible the applicant's complaints

that he was refused an oral hearing in the proceedings determining the

dispute between him and the IEAK. It has also declared admissible the

complaint that the dispute was not determined within a reasonable time.

B. Points at issue

36. Accordingly, the issues to be determined are

- whether there has been a violation of Article 6 para. 1

(Art. 6-1) of the Convention due to the lack of an oral hearing;

and

- whether there has been a violation of Article 6 para. 1

(Art. 6-1) of the Convention in that the dispute was not

determined within a reasonable time.

C. As to the alleged violation of Article 6 para 1 (Art. 6-1) of the

Convention due to the lack of an oral hearing

37. The applicant complains that he was refused an oral hearing in

the Supreme Insurance Court and alleges a violation of Article 6

para. 1 (Art. 6-1) of the Convention, which, in so far as relevant,

provides:

"In the determination of his civil rights and obligations

..., everyone is entitled to a fair and public hearing

within a reasonable time by (a) ... tribunal ..."

a) Applicability of Article 6 para. 1 (Art. 6-1) of the

Convention

38. Whereas the applicant maintains that Article 6 (Art. 6) of the

Convention applies to the proceedings in issue the Government contest

this. They argue that the applicant was not entitled to the

unemployment benefits in question and thus had no "right" thereto under

domestic law. Furthermore, they contend that the Swedish system of

unemployment insurance discloses features which taken together tend to

suggest that the unemployment insurance scheme should be considered as

falling within the sphere of public law. In particular they refer to

the fact that the State has assumed the responsibility of regulating

by legislation the framework of the unemployment insurance scheme in

question, that the insurance funds are placed under the supervision of

the AMS which is a State authority and that the State guarantees an

insurance fund full coverage for the unemployment benefits paid out.

39. The Commission recalls that when considering the applicability

of Article 6 (Art. 6) to the proceedings in question it has first to

ascertain whether there was a dispute over a "right" which can be said,

at least on arguable grounds, to be recognised under domestic law. The

dispute must be genuine and serious. It may relate not only to the

actual existence of a right but also to its scope and the manner of its

exercise. Finally, the result of the proceedings must be directly

decisive for the right in question (cf. for example Eur. Court HR,

Zander v. Sweden judgment of 25 November 1993, Series A no. 279-B,

p. 38, para. 22).

40. In the present case the Commission recalls that the dispute

between the applicant and the IEAK did not concern whether there

existed a right to unemployment benefits under domestic law but rather

the manner of its exercise. Furthermore, the applicant obtained from

the IEAK unemployment benefits during the years 1984, 1985 and 1987

pursuant to section 4 of the 1973 Act which entitles him to such

benefits provided a number of requirements as to his availability to

the labour market were fulfilled. Accordingly, the Commission finds it

established that the applicant could, on arguable grounds, claim that

he had a right to such benefits and that this was recognised under

domestic law.

41. The Commission has no doubt that the dispute was genuine and

serious as it related to a considerable amount of money which the

applicant was requested to repay on the assumption that he had

obtained benefits without having fulfilled the requirements therefor.

The outcome of the dispute was directly decisive for the applicant's

entitlement to unemployment benefits. The proceedings thus involved the

determination of a "right" for the purposes of Article 6 para. 1

(Art. 6-1) of the Convention.

42. As to the question whether the determination involved a "civil"

right the Commission recalls that the dispute arose between the

applicant and an insurance fund of which he was a member and to which

he contributed financially in order to be covered in case of

unemployment. Despite the public-law features to which the Government

refer the applicant was affected in his relation with a private

contractor and also suffered an interference with his means of

subsistence. Therefore, and having regard to the case-law of the

European Court of Human Rights in the case of Feldbrügge v. the

Netherlands (judgment of 29 May 1986, Series A no. 99), Deumeland v.

Germany (judgment of 29 May 1986, Series A no. 100), Salesi v. Italy

(judgment of 26 February 1993, Series A no. 257-E) and Schuler-Zgraggen

v. Switzerland (judgment of 24 June 1993, Series A no. 263), the

Commission finds that the applicant's right was a "civil right" within

the meaning of Article 6 (Art. 6) of the Convention. Consequently, this

provision applies in the present case.

b) Compliance with Article 6 para. 1 (Art. 6-1) of the

Convention

43. As regards the general scope of the right to an oral hearing in

Article 6 para. 1 (Art. 6-1) of the Convention, the Commission finds

it established under its own case-law, and that of the European Court

of Human Rights, that in proceedings before a court of first, and only,

instance the right to a "public hearing" in the sense of Article 6

(Art. 6) may entail an entitlement to an "oral hearing" (cf. for

example Eur. Court HR, Fredin (No. 2) v. Sweden judgment of 23 February

1994, Series A no. 280-A, p. 10, para. 21).

44. In the present case it is undisputed that the Supreme Insurance

Court was the first and only judicial instance in the contested

proceedings. It is likewise undisputed that its jurisdiction was not

limited to matters of law, but also extended to factual issues.

Furthermore, the Commission finds that in this case the applicant's and

the IEAK's claims before the Supreme Insurance Court were such as to

raise issues of both fact and law. In such circumstances the Commission

considers that Article 6 para. 1 (Art. 6-1) guarantees a right to an

oral hearing. Accordingly, the refusal by the Supreme Insurance Court

to hold an oral hearing in the applicant's case did not comply with the

requirements of Article 6 (Art. 6) of the Convention.

CONCLUSION

45. The Commission concludes, unanimously, that there has been a

violation of Article 6 para. 1 (Art. 6-1) of the Convention due to the

lack of an oral hearing in the Supreme Insurance Court.

D. As to the alleged violation of Article 6 para. 1 (Art. 6-1) of

the Convention due to the length of the proceedings

46. The Commission has already found that Article 6 (Art. 6) of the

Convention applies in the present case (paras. 38-42). It thus remains

to be examined whether the proceedings progressed with a reasonable

speed.

47. The proceedings commenced, in the Commission's view, on

22 November 1988 when the applicant referred the dispute between

himself and the IEAK to the AMS. They came to an end on 11 June 1992

when the Supreme Insurance Court pronounced judgment in the case and

thereby settled the dispute in question. The proceedings accordingly

lasted approximately three years and seven months.

48. Whereas the applicant maintains that this period was unreasonable

but otherwise leaves this question to the Commission to decide, the

Government maintain that the proceedings entailed a certain measure of

complexity in that the Supreme Insurance Court had to obtain

information from various authorities which proved to be rather time-

consuming. They furthermore maintain that the applicant's conduct

prolonged the proceedings as he allegedly referred in his submissions

to other matters. Finally, the Government maintain that the issues

involved were not of considerable importance to the applicant.

49. The Commission recalls that the reasonableness of the length of

the proceedings must be assessed in the light of the particular

circumstances of the case and having regard to the following criteria:

the complexity of the case, the conduct of the parties and the conduct

of the authorities dealing with the case (see for example Eur. Court

HR, Vernillo v. France judgment of 20 February 1991, Series A no. 198,

p. 12, para. 30).

50. In the present case the Commission has not found elements which

made the issue concerning the unemployment benefits particularly

complex, nor has it been established that the applicant's conduct was

such as to explain the length of the proceedings. As regards the

conduct of the Swedish authorities the Commission notes that the

dispute between the applicant and the IEAK was decided by the AMS on

18 May 1989. The period of time involved at this level would not, as

such, in the circumstances give rise to criticism. However, the

applicant's appeal was pending before the Supreme Insurance Court from

9 June 1989 until 11 June 1992, i.e. a period of three years. The

Commission considers that no convincing explanation for this period has

been advanced by the respondent Government. In particular during the

period from June 1989 until May 1991 it appears that no procedural

decisions, other than refusing the applicant's request for an oral

hearing, were taken. In these circumstances the Commission is not

satisfied that the proceedings in the Supreme Insurance Court

progressed with a reasonable speed.

51. Accordingly, in the light of the criteria established by its

case-law and having regard to all the information in its possession,

the Commission finds that the length of the proceedings complained of

exceeded the "reasonable time" referred to in Article 6 para. 1

(Art. 6-1) of the Convention.

CONCLUSION

52. The Commission concludes, unanimously, that there has been a

violation of Article 6 para. 1 (Art. 6-1) of the Convention as regards

the length of the proceedings determining the dispute between the

applicant and the IEAK concerning the unemployment benefits.

E. Recapitulation

53. The Commission concludes, unanimously, that there has been a

violation of Article 6 para. 1 (Art. 6-1) of the Convention due to the

lack of an oral hearing in the Supreme Insurance Court (para. 45).

54. The Commission concludes, unanimously, that there has been a

violation of Article 6 para. 1 (Art. 6-1) of the Convention as regards

the length of the proceedings determining the dispute between the

applicant and the IEAK concerning the unemployment benefits (para. 52).

M.-T. SCHOEPFER G.H. THUNE

Secretary President

to the Second Chamber of the Second Chamber

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GUSTAFSSON v. SWEDEN

GUSTAFSSON v. SWEDEN

LEXI