FOURTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 5952/03 by Stefan EKHOLM against Finland

The European Court of Human Rights (Fourth Section), sitting on 14 March 2006 as a Chamber composed of:

Sir Nicolas Bratza , President , Mr G. Bonello , Mr M. Pellonpää , Mr K. Traja , Mr L. Garlicki , Mr J. Borrego Borrego , Ms L. Mijović , judges , and Mr M. O ’ Boyle , Section Registrar ,

Having regard to the above application lodged on 11 February 2003 ,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Stefan Ekholm , is a Finnish national who was born in 1951 and lives in Espoo .

A. The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

1. Proceedings concerning the repayment of the unemployment allowance

Since 15 May 1987 the applicant had been registered as an unemployed person. He received an unemployment allowance from the Unemployment Fund of Commercial College Graduates ( Merkonomien työttömyyskassa , Merkonomernas arbetslöshetskassa , “Fund” ).

On 25 and 27 May 1993 the police conducted searches and seizures of the applicant ’ s documents pertaining, inter alia , to unemployment allowances paid to him in 1987 – 1991. Later, on 12 September 1994 the Supreme Court ( korkein oikeus , högsta domstolen ) ordered the seizures to be revoked, as requested by the applicant, as the time-limit of four months had passed since they had been seized and no charges had been brought against the applicant during that time. The decision became a precedent (KKO 1994:83).

As part of the material had not, however, been returned to the applicant, he instituted proceedings before the District Court ( käräjäoikeus , tingsrätten ) of Helsinki on 12 January 2000, claiming that the National Bureau of Investigation ( keskusrikospoliisi , centralkriminalpolisen ) had not returned all the seized material and that the State of Finland be ordered to pay him 8,000 Finnish marks (FIM, amounting to 1,345.50 euros (EUR)) in compensation for the lost material. On 29 May 2001 the District Court found in favour of the applicant, confirming that part of the seized material had been lost and ordering the State to pay the applicant FIM 8,000 (EUR 1,345.50) as compensation for his pecuniary damage and FIM 44,875 (EUR 7,547.43) as compensation for his legal expenses. This judgment became final as none of the parties appealed in time.

Meanwhile, on 18 November 1993 the Fund reported an offence against the applicant for allegedly having obtained an unemployment allowance by fraud. He was interrogated by the police on 21 May 1995 for the first time.

On 15 January 1996 the Fund requested the Insurance Court ( vakuutusoikeus , försäkringsdomstolen ) to cancel the decisions made by the Fund in 1987, 1991 and 1993, respectively, to pay an unemployment allowance to the applicant, and that the court order the case to be referred back to the Fund for reconsideration. The Fund argued that it had during the periods in question paid an unemployment allowance to the applicant, but that the Employment Office of Espoo had in its statement of 10 January 1996 considered that since May 1987 the applicant had been employed as an entrepreneur. The Fund also stated that its Board had decided to dismiss the applicant from the Fund ’ s membership in August 1995. On 25 June 1998 , after the applicant had given his observations to the Insurance Court, it annulled the Fund ’ s decisions and sent the case back to the Fund for reconsideration by four votes to one. One of the judges deciding on the case was M.T. The court further found an oral hearing, as requested by the applicant, to be manifestly unnecessary as the case was clear and as it would be reconsidered by the Fund in any case. The Insurance Court ’ s referendary noted in his/her memorandum that “Furthermore, the Fund reported an offence against [the applicant], which led to a police investigation. Apparently no charges have been lodged yet.”

On 21 and 22 September 1998 the Fund issued 13 decisions, by which it considered, inter alia , that it had paid the applicant unwarranted unemployment allowances and training allowances during various periods between years 1987 – 1994 and ordered him to repay them, amounting to FIM 410,324 (69,011.90 EUR).

On 30 October 1998 the applicant appealed to the Unemployment Appeal Board ( työttömyysturvalautakunta , arbetslöshetsnämnden ), which upheld the Fund ’ s decisions on 30 June 2000 as far as they concerned the period 1987 – 1991.

Apparently on 20 April 1999 the public prosecutor decided not to press charges against the applicant in respect of the alleged fraud.

On 17 August 2000 the applicant appealed to the Insurance Court , claiming that he had not earned his living in any business activity between the years 1987 - 1991. He alleged that in any case, if the unemployment allowance had to be repaid, a common period of limitation of 10 years should be taken into account. Apparently he also requested an oral hearing. On 12 October 2001 the Insurance Court asked the applicant whether he wished to maintain his request for an oral hearing, and if that was the case, to name his witnesses. It further informed the applicant that the provisions of the Act on Cost-free Trial ( laki maksuttomasta oikeudenkäynnistä , lag om fri rättegång ) would not apply to the proceedings before the Insurance Court. The Insurance Court issued its decision on 16 January 2003 , without having held an oral hearing. It confirmed that the applicant did not have a right to the allowances in question and ordered him to repay them, save for payments which were more than 10 years old. M.T. participated in the decision making.

Subsequently, the applicant requested the Supreme Court to annul the Insurance Court ’ s decision for procedural error, alleging that M.T. was biased as he had sat in the Insurance Court ’ s composition both in 1998 and in 2003. He further alleged that he was denied a right to an oral hearing as he did not have a right to a cost-free trial. He also requested that the decision be reversed, alleging, inter alia , that the fact that the police had lost some evidence was not taken into account when his case was decided.

On 15 April 2004 the Supreme Court gave its final decision, rejecting the applicant ’ s request to reverse the Insurance Court ’ s decision. As to his complaint about the alleged bias of M.T., the court examined his application, finding that there were no grounds to believe that M.T. had been partial in deciding the applicant ’ s case twice. It reasoned, inter alia , that the legal nature of the two cases was different and found that M.T. did not have preconceived ideas that would have prevented his being regarded as impartial when the latter decision was taken.

2. Compensation proceedings

On 25 May 1993 the applicant was questioned by the police in relation to alleged dishonesty as a debtor in his role as a shareholder (and a manager) in two limited liability companies. He was subsequently arrested and detained for two days.

Later the Court of Appeal ( hovioikeus , hovrätten ) of Helsinki removed the charges from the docket as the applicant and the complainant (creditor) had reached a settlement in the case. The domestic proceedings came to an end on 21 January 2002 when the Supreme Court refused him leave to appeal.

On 14 March 2002, basing his application on the Act on Compensation from State Funds for the Arrest or Detention of an Innocent Person ( laki syyttömästi vangitulle tai tuomitulle valtion varoista vapauden menetyksen johdosta maksettavasta korvauksesta , lag om ersättning av statens medel som till följd av frihetsberövande skall betalas tilll oskyldigt häktad eller dömd ), the applicant requested the State Treasury ( Valtiokonttori , Statskontoret ) to reimburse him EUR 7,785 euros for non-pecuniary damage and EUR 525 for costs for his unlawful arrest.

On 16 April 2002 the State Treasury issued its decision. It regarded it as reasonable to reimburse the applicant EUR 650 for non-pecuniary damage and EUR 512 for costs. The decision could not be appealed against. However, under the domestic legislation the applicant had a possibility to institute civil proceedings against the State before a District Court within three months of the State Treasury ’ s decision. On 5 July 2002 the applicant appealed against the decision to the District Court of Helsinki. His appeal was rejected on 10 October 2002 and subsequently by the Court of Appeal of Helsinki on 4 March 2003 . On 4 September 2003 the Supreme Court refused him leave to appeal.

B. Relevant domestic law and practice

Se ction 43 of the Unemployment Security Act ( työttömyysturvalaki , lag om utkomstskydd för arbetslösa ; 98/1990 ) as in force at the relevant time provided that after having heard the person concerned, the Insurance Court could cancel a leg ally valid decision concerning, inter alia , an unemployment allowance, if a decision wa s based on untrue or insufficient informa tion or was manifestly unlawful.

Section 5, subsection 1, paragraph 8 of the said Act provided that those who were considered to have employed as entrepreneurs or were otherwise self-employed were not entitled to unemployment allowance for the period concerned.

C OMPLAINTS

1. The applicant complains under Article 6 of the Convention that :

(a) the proceedings concerning the repayment of unemployment allowance were excessively lengthy, lasting over nine years and eight months when counted from the date when the search and seizure was conducted;

(b) he was refused free legal aid by the Insurance Court, which meant that he could not have an oral hearing to hear witnesses;

(c) the Insurance Court ’ s referendary ’ s memorandum included comments which violated the presumption of innocence and his right to enjoy a good reputation;

(d) that the same Insurance Court ’ s judge decided a part of his case in 1998 and another part in 2003 and was therefore biased on the latter occasion.

2. He further complains under Article 1 of Protocol No. 1 that the police lost or destroyed various documents seized from him. He further alleges that this violated his rights to a fair trial under Article 6 § 1 as it meant that judicial evidence was lost or destroyed.

3. Finally he complains that the compensation proceedings exceeded a reasonable time as the criminal proceedings concerning the debtor ’ s dishonesty took so long that he was not able to claim compensation for wrongful arrest suffered in 1993 before 21 January 2002, when the criminal proceedings against him ended before the Supreme Court, and that the compensation proceedings lasted until 4 September 2003.

THE LAW

1. The applicant complains that the proceedings concerning the repayment of unemployment allowance were unfair for a number of reasons. He invokes Article 6 §§ 1, 2 and 3 (d), which read in its relevant parts as follows:

“1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. ...

2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.

3. Everyone charged with a criminal offence has the following minimum rights:

...

(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;              “

The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

2. The applicant further complains that some documents were lost during the seizure, invoking the above-mentioned Article 6 and Article 1 of Protocol No. 1, which reads as follows:

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.”

As to an alleged violation of Article 1 of Protocol No. 1, the Court observes that the applicant previously lodged an application (application no. 38581/97) with the Commission (from which it was transferred to the Court in accordance to Article 5 § 2 of Protocol No. 11 to the Convention), complaining about the violation of his property rights due to the fact that some documents were lost during the seizure. That application was declared inadmissible by the Court on 16 March 2004 .

The Court finds that the applicant ’ s complaint under Article 1 of Protocol No. 1 is substantially the same as that raised in the earlier application examined by it and that the applicant has not submitted any “relevant new information” in that connection (see X v. the United Kingdom , no. 8206/78, Commission Decision of 10 July 1981 , Decisions and Reports (DR) 25, p. 147). Consequently, the present complaint must be rejected in accordance with Article 35 § 2 (b) of the Convention.

Insofar as the applicant alleges a violation of Article 6, the Court notes that the applicant has not specified how the loss of the material could have affected the fairness of the proceedings. This part of the complaint is accordingly unsubstantiated and must be rejected as manifestly ill-founded in accordance with Article 35 § 3 and 4 of the Convention.

3. Finally the applicant complains that the compensation proceedings exceeded a reasonable time as he was wrongfully arrested in 1993 and was not able to claim compensation for this until January 2002 and that the compensation proceedings lasted until 4 September 2003 .

As regards the period to be taken into account under Article 6 § 1, the Court finds however that the compensation proceedings cannot be regarded as continuing from 1993 to 2003, as alleged by the applicant. While it is true that the applicant was not able to claim compensation for his wrongful arrest before the criminal proceedings against him ended, i.e . on 21 January 2002 , for the purposes of Article 6 the compensation proceedings began on 14 March 2002 and continued until 4 September 2003 , lasting no more than one year and six months.

In the light of the criteria laid down in its case-law and having regard to all the circumstances of the case, the Court considers therefore that the length of the compensation proceedings was not excessive and did not fail to satisfy the reasonable time requirement.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant ’ s complaints concerning the alleged violations of Article 6 § 1 of the Convention ;

Declares the remainder of the application inadmissible.

Michael O ’ Boyle Nicolas Bratza Registrar President