Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 27411/95

by Lennart GUSTAFSSON

against Sweden

The European Commission of Human Rights (Second Chamber) sitting

in private on 21 May 1997, the following members being present:

Mrs. G.H. THUNE, President

MM. J.-C. GEUS

G. JÖRUNDSSON

A. GÖZÜBÜYÜK

H. DANELIUS

F. MARTINEZ

M.A. NOWICKI

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

P. LORENZEN

E. BIELIUNAS

E.A. ALKEMA

A. ARABADJIEV

Ms. M.-T. SCHOEPFER, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 3 March 1994 by

Lennart Gustafsson against Sweden and registered on 26 May 1995 under

file No. 27411/95;

Having regard to the reports provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having regard to the observations submitted by the respondent

Government on 29 August 1996 and the observations in reply submitted

by the applicant on 28 November 1996;

Having deliberated;

Decides as follows:

THE FACTS

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

Eringsboda.

The facts of the case, as submitted by the parties, may be

summarised as follows.

On 26 July 1989 the applicant instituted proceedings against a

company before the District Court (tingsrätten) of Ronneby. The

applicant claimed that he had been employed by the company for a period

of four weeks from 10 April 1989. An employment agreement had

allegedly been concluded on 4 or 5 April between a representative of

the company and E.P., an official of the local Employment Office

(Arbetsförmedlingen), acting as the applicant's representative.

However, on 10 April, some hours after the applicant had appeared at

the place of work, the company's representative had told him to leave.

The applicant maintained that he had been dismissed without objective

grounds and that the company had breached certain provisions of the Act

on Security of Employment (Lag om anställningsskydd, 1982:80). He

therefore claimed that the company was liable to pay damages.

On 25 October 1989, after having been granted a two month

extension by the court, the defendant company submitted its written

observations to the court. On 6 December the applicant replied. He

also requested the court to give the Swedish Metal Workers' Union

(Svenska metallindustriarbetareförbundet) an opportunity to submit

observations in the case.

On 27 June 1990 the court requested observations from the Swedish

Metal Workers' Union and the Swedish Engineering Employers' Association

(Sveriges Verkstadsförening). Under Chapter 49, Section 6 of the Code

of Judicial Procedure (Rättegångsbalken) (corresponding to the present

Section 7), the applicant could have appealed against this measure to

the Labour Court (Arbetsdomstolen), claiming that the court's decision

to ask for observations caused unnecessary delay. He did not do so,

however. The organisations replied on 15 August and 28 September,

respectively.

The District Court held a preparatory hearing in the case on

25 February 1991. At the hearing the applicant was ordered to specify

the legal grounds for his action and to submit a statement of evidence

before 20 March 1991.

On 23 April 1991, after the court had granted an extension of the

time-limit, the applicant's legal aid counsel replied to the order.

On the same day the counsel, invoking fundamental disagreements between

him and the applicant, requested the court to dismiss him. By decision

of 7 February 1992, the court granted the counsel's request.

On 20 June 1991 the applicant submitted his own statement in

reply to the District Court's order concerning legal grounds and

evidence. The court forwarded this statement to the defendant company

on 11 February 1992. The company's reply of 31 March was sent by the

court to the applicant on 2 June. On 25 June 1992 the applicant

submitted further observations.

At the District Court's preparatory hearing it was decided that

the main hearing should be held in September 1991. However, despite

repeated inquiries by the applicant in 1991 and 1992, there was no

hearing during these years. In June 1992 the court asked the applicant

if the case could be decided without a hearing. The applicant answered

in the negative.

On 16 October 1992 and, upon the court's request for

supplementary information, on 20 January 1993 the defendant company

submitted statements of evidence.

The parties were later summoned to the main hearing scheduled for

23 March 1993. The hearing was, however, postponed as the chairman of

the court had fallen ill.

Eventually, the main hearing took place on 7 May 1993. At the

request of the company, two of its employees, including the above-

mentioned representative, and a second official of the Employment

Office, gave evidence. At the beginning of the hearing, the parties

were, however, informed by the court that E.P., who had been called as

a witness by both parties, was unable to appear as he was, at the time,

on vacation in Austria. Instead, he gave evidence by telephone. At

the end of the hearing, the applicant objected to this procedure. He

requested that the hearing should continue at a later date and that

E.P. should be summoned to appear in person. The court, however,

rejected this request.

By judgment of 26 May 1993, the District Court found against the

applicant. It considered that he had failed to show that an

employment agreement had been concluded between him and the company.

On 15 June 1993, the applicant appealed to the Labour Court. He

requested, inter alia, that the case be referred back to the District

Court for a re-hearing during which E.P. should give evidence in

person. He further adduced, as new evidence, a tape recording of his

conversations with E.P. on 4 April 1989 and the company's

representative on 5 April 1989 as well as notes from the file of the

Employment Office.

On 28 January 1994 the Labour Court decided that the District

Court's hearing of E.P.'s testimony by telephone did not constitute a

procedural error and that the case should thus not be referred back to

the District Court.

On 7 February 1994 the Labour Court requested the applicant to

submit a statement of evidence, which he did on 4 March. Upon the

court's request, further statements were submitted on 13 April and

28 April 1994. With regard to the statement of 13 April, the applicant

requested and was granted a four-week extension of the time-limit set

by the court. The defendant company replied to the applicant's

statements on 20 May. The applicant submitted further observations on

20 May and 2 June.

By decision of 8 June 1994, the Labour Court refused to admit the

new evidence invoked by the applicant, as he had not shown a valid

excuse for not having brought the evidence before the District Court.

On 16 September 1994 the Labour Court summoned the parties and

E.P. to a hearing scheduled for 6 December 1994. This hearing was,

however, cancelled as E.P. was unable to appear.

On 28 February 1995 the Labour Court held its hearing in the

case. E.P. gave evidence in person. The testimonies of the other

witnesses who had given evidence in the District Court were played back

during the hearing.

By a final judgment of 22 March 1995, the Labour Court upheld the

District Court's judgment.

COMPLAINTS

Invoking Article 6 of the Convention, the applicant complains

that the dispute between him and the company was not determined within

a reasonable time.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 27 September 1994 and

registered on 20 January 1995.

On 15 May 1996 the Commission (Second Chamber) decided to invite

the respondent Government to submit written observations on the

admissibility and merits of the complaint concerning the length of the

proceedings. The remainder of the application was declared

inadmissible.

The Government's observations were submitted on 29 August 1996

after an extension of the time-limit fixed for that purpose. The

applicant replied on 28 November 1996, also after an extension of the

time-limit.

THE LAW

The applicant complains that the dispute between him and the

company was not determined within a reasonable time. He invokes

Article 6 (Art. 6) of the Convention which, in so far as relevant,

reads as follows:

"1. In the determination of his civil rights and

obligations ..., everyone is entitled to a ... hearing

within a reasonable time ..."

In agreement with the parties, the Commission finds that

Article 6 para. 1 (Art. 6-1) applies to the dispute in the present

case.

The respondent Government contend, however, that the application

is inadmissible as the applicant has failed to exhaust domestic

remedies. They argue that the applicant did not appeal against the

District Court's decision of 27 June 1990 to request observations from

two labour market organisations. Noting that it is an open question

whether such an appeal would have been successful, the Government

nevertheless claim that the mere fact of filing an appeal would have

prompted the District Court to pay particular attention to the general

length of the proceedings in the case.

The Commission notes that the appeal referred to by the

Government would have concerned only one measure taken by the courts

and would have been lodged at a relatively early stage of the

proceedings. Further, the replies from the organisations in question

were received within three months and the delay that may have occurred

as a result of the request to the organisations was therefore very

limited. Moreover, in so far as one organisation was concerned, the

measure had been requested by the applicant. The Commission therefore

finds that the remedy invoked by the Government did not relate to the

applicant's present complaint of unreasonable delay and did not

therefore have to be exhausted under Article 26 (Art. 26) of the

Convention.

In agreement with the parties, the Commission considers that the

period to be taken into account began on 26 July 1989 and ended on

22 March 1995. The proceedings thus lasted five years and eight

months.

As to reasonableness of the length of the proceedings, the

Government maintain that the case itself was of an uncomplicated nature

but that it was made more complicated due to the applicant's conduct.

They contend that his conduct was the main reason for the delays in the

case and that the complaint, therefore, is manifestly ill-founded.

The Government submit that the applicant, once in 1991 and once

in 1994, requested and was granted extensions of time-limits for a

total of two months and argue that neither these delays nor the delay

caused by the failure of E.P., the witness invoked by the applicant,

to appear at the Labour Court hearing can be attributed to the State.

Moreover, the applicant's litigation was on the whole characterised by

an inability to separate claims, legal grounds, evidence and pleading

arguments. Some of the evidence invoked by him was not essential and,

on several occasions, the courts had to order him to clarify what

evidence he invoked. Furthermore, there were differences of opinion

between the applicant and his counsel. They submitted different

written statements to the District Court. The counsel also asked to

be dismissed, which involved extra work for the court. In the

Government's opinion, the applicant is to blame for these delays which

were caused by his manner of litigation. Moreover, the applicant

insisted that a main hearing be held in the District Court whereas the

defendant company agreed to the case being determined without such a

hearing.

The Government further maintain that the defendant company, on

its part, caused a total delay of five months when it submitted its

first observations in the case in 1989 and when the District Court had

to ask for supplementary information at the end of 1992. Furthermore,

the District Court made justified efforts to make the parties agree on

a friendly settlement. These attempts caused a delay which should not

be considered attributable to the State.

Finally, the Government contend that the matter at stake was not

genuinely of importance for the applicant. It was, for instance, not

a matter of losing steady employment. Allegedly, in the very unlikely

event that the final judgment would have been in the applicant's

favour, he stood to win less than 60,000 Swedish crowns (SEK), not

including interest and legal costs.

The applicant submits that the case was uncomplicated and

contests that his conduct delayed the case. He argues that from the

beginning of the proceedings he stated very clearly his claims, legal

grounds and evidence. In this connection, he states that the District

Court did not ask for any clarification until at its preparatory

hearing, which was held one year and seven months after the proceedings

had been instituted by him. Allegedly, the courts understood his

statements and their subsequent requests for supplementary information

were just made in an attempt to mislead him and prolong the case.

Further, the Labour Court began its preparation of the case on

7 February 1994 when it requested a statement of evidence from the

applicant, almost eight months after he had filed his appeal.

Moreover, E.P.'s failure to appear at the Labour Court hearing cannot

be attributed to the applicant, as E.P. was going to give evidence in

his duty as a public official at the Employment Office. The applicant

also contends, inter alia, that the District Court granted the

defendant company too lengthy extensions of time-limits for its

submissions and that the request for observations from the labour

market organisations was unnecessary. In total, the applicant claims

that the delay of the case directly attributable to the state was three

and a half years. He also claims that the case was genuinely important

to him, as, if he had won, he would have been awarded approximately

155,000 SEK in damages, interest and costs.

The Commission considers, in the light of the criteria

established by the case-law of the Convention organs on the question

of "reasonable time", and having regard to all the information in its

possession, that an examination of the merits of the complaint is

required.

For these reasons, the Commission, by a majority,

DECLARES THE APPLICATION ADMISSIBLE, without prejudging the

merits of the case.

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

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