Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 21370/93

by Lennart GUSTAFSSON

against Sweden

The European Commission of Human Rights (Second Chamber) sitting

in private on 7 September 1995, the following members being present:

Mrs. G.H. THUNE, Acting President

MM. H. DANELIUS

G. JÖRUNDSSON

J.-C. SOYER

H.G. SCHERMERS

F. MARTINEZ

L. LOUCAIDES

J.-C. GEUS

M.A. NOWICKI

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

P. LORENZEN

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 2 September 1992

by Lennart Gustafsson against Sweden and registered on 10 February 1993

under file No. 21370/93;

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 3 October 1994 and the observations in reply submitted

by the applicant on 20 November 1994;

Having deliberated;

Decides as follows:

THE FACTS

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

summarised as follows.

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

Eringsboda, Sweden.

A. The particular circumstances of the case

The applicant is a member of the Industrial Employees' Recognised

Unemployment Insurance Fund (industritjänstemännens erkända

arbetslöshetskassa, hereinafter "the IEAK").

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.

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.

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 their 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 LMB").

Having obtained the parties' written observations the LMB found

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

amount in question to 57,722 SEK.

The applicant appealed against this decision to the Supreme

Insurance Court (försäkringsöverdomstolen, hereinafter "the SIC") 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 Court, however, obtained the parties' written observations.

By judgment of 11 June 1992 the Supreme Insurance Court 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

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.

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.

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 (cf. above).

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. Until

1 January 1989 the issue as to whether an insured person was entitled

to benefits 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.).

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.

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.

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 LMB)

The unemployment insurance funds are supervised by the LMB. The

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

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

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

a fund. The LMB 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 LMB may declare that the fund has

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

period of time.

Until 1 July 1993, a decision by the LMB 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 SIC)

The SIC was the last instance in legal proceedings concerning

inter alia social insurance cases and cases under the 1973 Act. The

members of the SIC are the president, four insurance judges as a

minimum and at least eight lay members. As a main rule, the SIC is

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

shall be judges.

Until 1 July 1993, cases concerning unemployment benefits were

dealt with by an unemployment insurance fund, the LMB and the SIC. As

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

unemployment insurance fund to the LMB and then to a county

administrative court (länsrätt), an administrative court of appeal

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

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

to be granted leave to appeal. The SIC 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

Provisions governing the proceedings before the SIC 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 SIC or exists

at present before the Supreme Administrative Court.

COMPLAINTS

The applicant complains of the fact that the Supreme Insurance

Court refused his request for an oral hearing. He maintains that in

such circumstances he did not get a public hearing within the meaning

of Article 6 of the Convention.

Furthermore, the applicant complains, also under Article 6 of the

Convention, that the dispute concerning the repayment of the

unemployment benefits was not determined within a reasonable time.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 2 September 1992 and registered

on 10 February 1993.

On 5 July 1994 the Commission (Second Chamber) decided to bring

the application to the notice of the respondent Government and to

invite them to submit written observations on its admissibility and

merits.

The Government's observations were submitted on 3 October 1994

and the applicant's observations in reply were submitted on

20 November 1994.

THE LAW

The application concerns alleged violations of Article 6 para. 1

(Art. 6-1) of the Convention in that the applicant was refused an oral

hearing in the proceedings determining a dispute between him and the

IEAK. It also concerns the question whether this dispute was determined

within a reasonable time.

Article 6 para. 1 (Art. 6-1) of the Convention reads, in so far

as relevant, as follows:

"In the determination of his civil rights ..., everyone is

entitled to a ... public hearing within a reasonable time

... ."

The Commission has taken cognizance of both parties' submissions.

After a preliminary examination thereof the Commission has reached the

conclusion that the case raises serious issues as to the interpretation

and application of Article 6 (Art. 6) of the Convention and that these

issues can only be determined after a full examination of their merits.

It follows that the application cannot be regarded as manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention. No other ground for declaring it inadmissible has been

established.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION ADMISSIBLE

without prejudging the merits of the case.

Secretary to Acting President of

the Second Chamber the Second Chamber

(M.-T. SCHOEPFER) (G.H. THUNE)

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GUSTAFSSON v. SWEDEN

GUSTAFSSON v. SWEDEN

LEXI