FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 70313/01 by Heikki KAISTI against Finland

The European Court of Human Rights (Fourth Section) , sitting on 14 September 2004 as a Chamber composed of :

Sir Nicolas Bratza , President , Mr M. Pellonpää , Mr L. Garlicki , Mr J. Borrego Borrego , Mrs E. Fura-Sandström , Ms L. Mijović , Mr D. Spielmann, judges , and Mr M. O ' Boyle , Section Registrar ,

Having regard to the above application lodged on 26 November 1999 ,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant;

Having deliberated, decides as follows:

THE FACTS

A. The circumstances of the case

The applicant, Mr Heikki Kaisti, is a Finnis h n ational, who was born in 1943 and lives in Piispanristi. He is rep resented before the Court by Mr Markku Fredman, a lawyer practising in Helsinki . The respondent Government are represented by their Agent, Mr Arto Kosonen, Director , Ministry for Foreign Affairs.

The facts of the case, as submitted by the parties and as they appear from the documents , may be summarised as follows.

The applicant was placed on temporary unpaid leave , on 20 August 1991 , because of his employer ' s financial difficulties. The same day the applicant registered as an unemployed person, seeking new employment at the local unemployment office. He received a certificate from the u nemployment o ffice ( työvoimatoimisto, arbetskraftsbyrå ) of Kaarina , dated 28 August 1991 , according to which he could receive unemployment benefit as from 20 August 1991 onwards.

On 10 November 1992 the Unemployment Board of Kaarina ( työvoimatoimikunta, arbetskraftskommision ) confirmed that he could receive the benefit as from 1 October 1992 .

The first set of proceedings (1994 - 1998)

On 18 October 1994 the Unemployment Fund for Engineers, Architects and Economists (IAET), which was paying the applicant ' s unemployment benefit, requested a new certificate from the applicant ' s local unemployment office. According to the new certificate of 10 February 1995 , the Unemployment Board of Kaarina found that the applicant had been de facto self-employed from 20 August 1991 in several enterprises owned partly by him or his family and that he was not entitled to receive unemployment benefit for that period.

On 3 March 1995 the IAET requested the Insurance Court ( vakuutusoikeus, försäkringsdomstolen ) to quash and annul the IAET ' s own earlier decisions (issued in 1991-1994) , according to which the applicant was entitled to receive , inter alia , unemployment benefit, and to refer the case back to the IAET to be reconsidered. The Insurance Court accepted the IAET ' s request on 29 February 1996 . The judgment was served upon the applicant by mail on 25 March 1996 .

Su bsequently, on 7, 9 and 28 August 1996 , the IAET refused the applicant his entitlement to the benefit s and decided to request the applicant to reimburse all the benefits paid, amounting to approximately EUR 50,000. The applicant lodged several appeals with the Board for Unemployment Benefits ( työttömyysturvalautakunta, arbetslöshetsnämnden; here in after “the BFUB” ). On 14 February 1997 the BFUB rejected a ll of the applicant ' s appeals against the IAET ' s decisions. On 15 April 1997 the applicant appealed against the BFUB ' s decisions to the Insurance Court . It refused his appeals on 4 June 1998 . The judgment was served upon the applicant by mail on 11 June 1998 .

The second set of proceedings (March 1995 - May 1999)

Th e applicant was employed from 13 September 1994 to 13 March 1995 . On 31 January 1995 the Unemployment Board again found that the applicant had been self-employed as from 20 August 1991 . On 6 February 1996 the IAET refused the applicant ' s unemployment benefit application as from 14 March 1995 since the Unemployment Board of Kaarina had on that date issued a new certificate, according to which the applicant had not reported as a job- seeker at the unemployment office. On 6 May 1996 the applicant appealed against the IAET ' s decisions to the BFUB, and requested to be paid unemployme nt benefit for the period of 14 March 1995 until 21 June 1996 . On 14 February 1997 t he BFUB examined the applicant ' s appeal and quashed the IAET ' s decision of 6 February 1996 and returned the case for re-examination, finding that the applicant ' s application had been dismissed without first obtaining a fresh certificate from the unemployment office .

As it appears from the documents, o n 15 April 1997 the local Unemployment Board found that the applicant was still self-employed. On 24 April 1997 the IAET dismissed the applicant ' s unemployment benefit application as from 14 March 1995 onwards because he was still found to be de facto self-employed. O n 14 July 1997 t he applicant appealed to the BFUB. On 23 July 1997 the applicant submitted his further observations. T he BFUB refused the applicant ' s appeal on 29 May 1998 . The applicant appealed against the BFUB ' s decision to the Insurance Court . It invited the IAET ' s observations and the applicant ' s observations. The applicant submitted his further observations to the Insurance Court on 3 December 1998 and 21 December 1998 . The IAET submitted additional observations and the applicant was given an opportunity to submit further observations. On 28 May 1999 the Insurance Court dismissed the appeal . According to the applicant, he was forced to reapply for his unemployment benefit for the period from 14 March to 21 June 1994 and th at he received the benefit on 9 March 2001 .

The third s et of proceedings (March - October 2000)

On 24 March 2000 the applicant requested the Insurance Court to quash and annul all the earlier Insurance Court decisions and to re-open the case on the basis of the new evidence he had this time e nclosed with his request. On 23 October 2000 the Insurance Court found in favour of the applicant and annulled its previous decisions. It considered, in the light of the new evidence, that the applicant was entitled to receive unemployment benefit as from 20 August 1991 onwards. It noted that the new evidence was, at least partly, such that the applicant had not had access to it at the time of the previous proceedings. The applicant ' s case was referred back to the IAET. He was f inally granted the benefit on 6 February 2001 .

B. Relevant domestic law

According to section 40 of the Act on Unemployment Benefits ( työttömyysturvalaki, lag om utkomstskydd för arbetslösa , 602/1984), as in force at the relevant time, whosoever was unsatisfied with a decision of an unemployment fund could appeal the decision to the Board for Unemployment Benefits, and the decision of the Board to the Insurance Court. The decision of the Insurance Court could not be appealed.

Section 31 of the Act , as in force at the relevant time, concerned the reimbursement of benefits paid. If a benefit referred to in the Act ha d been paid wrongly or in too large an amount, the excessive amount was to be recovered. Recovery could be waived completely or in part if this wa s considered reasonable. A final decision on reimbursement could be enforced in the same way as any final decisions.

Section 43 (330/1997) , as in force at the relevant time, concerned the annulment of decisions. According to that section, when a final decision concerning a benefit referred to in the Act wa s based on incorrect or insufficient information or wa s manifestly unlawful, the Insurance Court could annul the decision after having heard the other interested parties if so recommended by the relevant unemployment fund or requested by the person concerned, and order the matter to be reprocessed. After having given the said recommendation, the unemployment fund could temporarily suspend payment of the benefit or pay it in accordance with the recommendation, until the matter ha d been resolved.

According to section 1 of the Unemployment Funds Act ( työttömyyskassalaki, lag om arbetslöshetskassor ; 1984/603), the purpose of an unemployment fund is, inter alia , to provide its members unemployment benefits pursuant to the Act on Unemployment Benefits. Section 2 provides that the Ministry for Social Affairs and Health grants licenc es to establish an unemployment fund.

An unemployment fund receives s tate funding (section 24 of the Act) and its rules must be registered to the Insurance Supervisory Authority ( vakuutusvalvontavirasto, försäkringsinspektionen ), which is subordinated to the Ministry for Social Affairs and Health (Chapter 10 of the Act) . The Insurance Supervisory Authority supervises the unemployment funds and has the right to obtain information from them as well as to order the unemployment funds to take actions which the Insurance Supervisory Authority regards as necessary for the fulfilment of the provisions of the Act on Unemployment Benefits (sections 58, 58a and 59 of the Act).

COMPLAINTS

1. The appli cant complains, under Article 6 § 1 of the Convention, about the length of the proceedings concerning his entitlement to receive unemployment benefit. He insists that the proceedings las ted, at least, from 10 November 1992 until 6 February 2001 , i.e. more than eight years and two months.

2. The applicant also complains, without invoking any of the Convention Articles, that he has been discriminated against on the basis of his status as an unemployed person.

THE LAW

1. The applicant complains about the excessive length of the civil proceedings concerning his entitlement to receive unemployment benefit. He invokes Article 6 § 1 which reads, insofar as relevant, as follows:

“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”

The applicant argues that his case became pending on 10 November 1992 . According to him , the proceedings lasted until the day he was again entitled to receive the be nefit, i.e. 6 February 2001 . The proceedings, thus, lasted more than eight years and two months which must be considered as excessive in length.

The Court recalls first that Article 6 § 1 is not applicable to proceedings concerning an application for a re-opening of civil proceeding (see, inter alia, joined applications n os . 13601/88 and 13602/88 in the case of Frank Surmont and Helena De Meurechy and others v. Belgium , Dec. 6 July 1989, D.R. 62, pp. 284-302). The Court then notes, however, that if the proceedings are re-opened, the requirements of Article 6 must be respected as those proceedings, unlike the re-opening proceedings, result in a decision which directly affects the civil rights and obligations of the person concerned. Thus, Article 6 applies to the re-opened proceedings which, however, must be regarded as separate from the proceedings between 1992 and 1999.

The first set of proceedings

The Court notes that Article 6 applies to the initial proceedings which took place between 1992 and 1998. However, it is not required to decide whether or not the fact alleged by the applicant disclose s any appearance of a violation of this provision as the Insurance Court ' s final decision regarding t hese proceedings was taken on 4 July 1998, whereas the application w as submitted to the Court on 26 November 1999, that is, more than six months after the date of the decision. Furthermore, an examination of the case does not disclose the existence of any special circumstances which might have interrupted or suspended the running of that period.

It foll o ws that this part of the application has been introduced out of time within the meaning of Article 35 § 1 of the Convention and mu st be rejected under Article 35 §§ 3 and 4 of the Convention.

The second set of proceedings

As regards the later proceedings, t he Governme nt submit that the IAET is not a s tate authority and therefore any delays in the proceedings before this body were not attributable to the m . They claim that t he IAET is based on the principle of mutual responsibility and aims at providing its me m bers with certain benefits based on the Act on Unemployment Benefits, in accordance with the existing provisions of law.

The Government maintain that this set of proce edings began on 6 May 1996 when the applicant lodged his application with the BFUB and ended on 28 May 1999 , thus last ing three years and 22 days. In the ir view, the length of the proceedings was due to the fact that there were two separate sets of proceedings, involving various phases in which large amounts of further evidence concerning the facts were presented.

The applicant contest s the Government ' s allegation that the IAET is not a state authority , claiming that as an unemployment fund it exercise s public power , that its activities are based on the Unemployment Funds Act and that the Act on Unemployment Benefits governs the appeals proceedings . The case was of great importance to the applicant as his livelihood was at issue.

The applicant maintains that the entire period of time from 10 November 1992 to 6 February 2001 should be taken into consideration. Even assuming that the process could be divided into three parts, the applicant argues that the time taken by each of those phases, viewed separately, cannot be regarded as reasonable due to the connections between the issues and the importance of the issues to the applicant. In any case, a dispute arose on 18 October 1994 at the latest: on that day the IAET stated that it questioned the applicant ' s right to receive the unemployment benefit. The applicant received the benefit only when he won the dispute on 9 March 2001 .

First, the Court cannot accept the Government ' s contention that any delays in the proceedings before the IAET are not attributable to the Government. T he unemployment funds act under s tate control as provided for in the Unemployment Funds Act . Their express function is to provide its members with benefits pursuant to the Unemployment Funds Act . T heir function s clearly fall within the ambit of the public domain and, consequently, attract the guarantees of Article 6 of the Convention at least insofar as the reasonable time requirement is concerned .

Second, t he Court notes that the only set of proceedings in which the final decision was given within the above-mentioned six months ' time-limit were the proceedings which ended by the Insurance Court ' s decision issued on 28 May 1999 . Assuming that the proceedings started on the day the Unemployment Board of Kaarina issued its certificate, on 14 March 1995 , the proceedings lasted for four years , two months and 14 days.

The Court observes that this part of the applicant ' s application concerned his unemployment benefits, i.e. livelihood, for a period of three months and one week. T he time between the certificate of 14 March 1995 and the IAET ' s decision of 6 February 1996 was 10 months and 19 days. The applicant then appealed to the BFUF on 6 May 1996 , which led the BFUF to return the application for re-examination on 14 February 1997 . The new decision was issued by the IAET on 24 April 1997 . This period of one year , two months and 18 days between the IAET ' s two decisions must be regarded as attributable to the authorities as there was a procedural error which led to the re-examination.

The Court further recalls that the applicant appealed against the IAET ' s decision of 24 April 1997 on 14 July 1997 . It took the BFUF 10 months and 15 days before it dismissed the appeal on 29 May 1998 . The Insurance Court dismissed the applicant ' s subsequent appeal on 28 May 1999 , i.e. almost exactly one year later . The Court observes that the applicant submitted two fu r ther sets of observations to the Insurance Court (on 3 and 21 December 1998 ) and that the case involved a considerable amount of evidence. Against this background, the Court is of the opinion that the overall length of four years , two months and 14 days of these proceedings does not disclose an appearance of a violation of the “reasonable time” requirement under Article 6 of the Convention.

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

The third set of proceedings

Contrary to the applicant ' s allegations, the Court finds that t he period to be taken into account in respect of the se proceedings can only be counted from the da te on which t he re-opened proceedings began. As the applicant successfully requested that the proceedi ngs be re-opened on 24 March 2000 , the length of the third set of proceedings should at the earliest be calculated as from that da te . The Court notes, in this connection, that it cannot be open to an applicant , who requested re-opening many years after a final decision, to claim that the entire period from the commencement of the original proceedings should be taken into account for length purposes. It also has to be taken into account that delays flowing from the inability of the applicant to submit the new evidence cannot generally be regarded as a responsibility of the State. Thus, the length of the proceedings before the Insurance Court cannot be regarded as unreasonable as they lasted only seven months. Moreover, the applicant was then granted the requested benefit about three months later by the relevant unemployment benefit fund.

It follows that this part of the application is manifestly ill-founded and must therefore be rejecte d in accordance with Article 35 §§ 3 and 4 of the Convention.

2. The applicant also complains, without invoking any of the Convention Articles, that he has been discriminated against on the basis of his status as an unemployed person.

The Court has examined this part of the application under Article 14, which reads as follows:

“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

Insofar as the applicant complains about the alleged discrimination against him, the Court finds no indication of any violation of the applicant ' s rights in respect of the rights and freedoms set forth in the Convention.

It follows that this part of the application is also manifestly ill-founded and must therefore be rejecte d in accordance with Article 35 §§ 3 and 4 of the Convention.

For these re asons, the Court unanimously

Declares the application inadmissible.

Michael O ' Boyle Nicolas Bratza Registrar President