FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 55595/00 by Tapani RAIPOLA against Finland

The European Court of Human Rights (Fourth Section) sitting on 25 May 2004 as a Chamber composed of:

Sir Nicolas Bratza , President , Mr M. Pellonpää , Mrs V. Strážnická , Mr R. Maruste , Mr S. Pavlovschi , Mr L. Garlicki, Mr J. Borrego Borrego, judges,

and Mr M. O' Boyle , Section Registrar ,

Having regard to the above application lodged on 30 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

The applicant, Mr Tapani Raipola, is a Finnish national, who was born in 1952 and lives in Oulu. He is represented before the Court by  Mr Jorma Herttuainen, a lawyer practising in Oulu. The respondent Government are represented by their Agent Mr Arto Kosonen, Director in the Ministry for Foreign Affairs.

A.  The circumstances of the case

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

In 1989, the applicant set up a limited liability company, Pohjolan Tavarapörssi Oy, with another person. He purchased 50 per cent of the shares. He also became the chairman of its Board of Directors. The company's business activities ended in September 1992.

On 23 April 1993, the applicant applied for an income-related unemployment benefit. The Unemployment Fund ( työttömyyskassa, arbetslöshetskassan ) rejected his application on 18 August 1993, as he was not assessed as being unemployed. The decision was based on the Labour Commission's ( työvoimatoimikunta, arbetskraftskommissionen ) written statement, according to which, taking into account the applicant's position and partnership in the company, he was regarded as being employed by his own company. The applicant's appeals were subsequently rejected.

In 1998, the applicant instituted proceedings before the District Court of Oulu ( käräjäoikeus, tingsrätten ) against the Employment and Economic Development Centre ( työvoima- ja elinkeinokeskus, arbetskrafts- och näringslivscentralen ), i.e. formally against the State of Finland, claiming compensation for his financial loss. He argued that before setting up the company, he had called his local Labour Office ( työvoimatoimisto, arbetskraftsbyrån ), enquiring about the possibilities of receiving unemployment benefits as a shareholder of a company. An official at the Labour Office, X, had allegedly told him that he could receive unemployment benefits, provided he owned less than 51 per cent of the company's shares.

Before the District Court, the applicant argued that as his application for an unemployment benefit had been rejected, it meant that X had provided him with incorrect information.

The Employment and Economic Development Centre contested the action, arguing that X had not said that the applicant could own less than 51 per cent of a company's shares, which information was incorrect. Moreover, the applicant had failed to make reference to his position in the company during his discussion with X.

The applicant and two witnesses, who had overheard the conversation between the applicant and X as the telephone had been switched to the “hands-free” system, gave testimony in the District Court. The witnesses verified that X had said that the applicant would still be entitled to unemployment benefits, provided he owned less than 51 per cent of the shares.

On 11 August 1998, the District Court rejected the action, finding that the Unemployment Fund's decision was based both on the applicant's ownership in the company and on his membership of its Board of Directors. The District Court also found that the applicant and X had not discussed whether the membership of the Board of Directors had any effect on the grant of the benefit.  Thus, there was no causal link between the incorrect information given by X and the rejection of the application for an unemployment benefit.

The applicant appealed to the Rovaniemi Court of Appeal ( hovioikeus, hovrätten ), requesting an oral hearing and that he and his two witnesses be reheard. He also invoked as new evidence the Unemployment Fund's decision, arguing that the District Court had drawn the wrong conclusions from the wording of the decision. He claimed that his application had not been rejected due to the fact that he was a member of the Board of Directors, but solely on grounds of ownership. Due to this misinterpretation by the District Court, it was essential that the Court of Appeal hold an oral hearing.

On 3 December 1998, the Court of Appeal upheld the District Court's judgment. As to the request for an oral hearing, it noted that the applicant admitted not having informed X about his membership of the Board of Directors. Thus, the Court of Appeal found that it was not necessary to evaluate the testimonies concerning the telephone conversation between the applicant and X. Insofar as the applicant argued that the District Court had drawn the wrong conclusions from the Unemployment Fund's decision, it noted that the issue concerned interpretation of and drawing conclusions from written evidence and that the applicant had not proposed any oral evidence on this point. The Court of Appeal rejected the request for an oral hearing as being manifestly unnecessary, as the examination of the case did not depend on the credibility of oral evidence.

The applicant sought leave to appeal from the Supreme Court ( korkein oikeus, högsta domstolen ), requesting an oral hearing with a view to hearing all three witnesses that had been heard before the District Court, including the opposing party's witness, and a new witness. He also wanted to be heard in person. He argued that the Court of Appeal had wrongly evaluated the evidence and refused his request to rehear his witnesses. On 27 September 1999 the Supreme Court refused him leave to appeal.

B. Relevant domestic law and practice

Under chapter 26 (165/1998), section 14 (1) of the Code of Judicial Procedure, the applicant was in principle entitled to a hearing once he had requested one, but this request could be refused, if a hearing would have been manifestly unnecessary.

According to subsection 4, if the Court of Appeal rejects the appellant's request for an oral hearing, he or she shall, where necessary, be reserved an opportunity to supplement the appeal.

According to chapter 26, section 15 (1), the Court of Appeal shall hold an oral hearing regardless of whether one has been requested, if a decision on the matter turns on the credibility of the testimony admitted in the District Court, or the findings of the District Court in an inspection, or on new testimony to be admitted in the Court of Appeal.

COMPLAINTS

1. The applicant complains , under Article 6 § 1 of the Convention, about the lack of an oral hearing before the Court of Appeal. He also argues that, in any event, the Court of Appeal should have given him a possibility to supplement his appeal. Moreover, he complains that the District Court rejected the action on a ground not invoked by the opposing party.

2. Finally, the applicant complains, under Article 13 of the Convention, about the lack of an effective remedy against the Court of Appeal's judgment.

THE LAW

A. Article 6 § 1 of the Convention

The applicant complains, under Article 6 § 1 of the Convention, that he was denied an oral hearing before the Court of Appeal, that he should have been allowed to supplement his appeal and that the District Court rejected his action on a ground not invoked by the opposing party.

Article 6 §1 reads in relevant part:

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

1. It is not in dispute that Article 6 § 1 is applicable in the present case.

As regards the lack of an oral hearing before the Court of Appeal, the Government point out that there was an oral hearing before the District Court. They argue that the outcome of the case turned on the assessment of the Labour Commission's written statement. It was therefore possible to decide the case in a written procedure in the Court of Appeal.

The applicant argues that it was essential for the Court of Appeal to hold an oral hearing. He alleges that the District Court rejected his action on a ground not invoked by the opposing party, misinterpreted the written evidence and drew the wrong conclusions from the case as a whole. Having regard to the foregoing, the applicant should have been afforded an opportunity to plead the case in an oral hearing and rehear his witnesses.

The Court notes at the outset that an oral hearing was held at first instance. Under chapter 26 (165/1998), section 14 (1) of the Code of Judicial Procedure, the applicant was in principle entitled to a hearing in the Court of Appeal once he had requested one, but this request could be refused if a hearing would have been manifestly unnecessary. Thus, the absence of a hearing before the Court of Appeal may be justified by the special features of the proceedings at issue.

In the present case, it was undisputed that the applicant and the official at the labour office, X, did not discuss the fact that the applicant was a member of the company's Board of Directors. Furthermore, even according to the applicant, the only issue before the Court of Appeal was whether he had been denied an unemployment benefit solely due to his ownership in the company or due to this fact taken together with the fact that he was a member of its Board of Directors.

Having regard to the fact that the outcome of this issue turned on the interpretation of the Unemployment Fund's decision that was based on a written statement by the Labour Commission and that the applicant had not proposed any oral evidence on this aspect, the Court considers that the lack of an oral hearing in the Court of Appeal does not, in the circumstances of this case, disclose an appearance of any violation of Article 6 § 1 of the Convention.

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

2. As to the complaint that the Court of Appeal in any event should have given the applicant an opportunity to supplement his appeal, the Court notes that the Contracting States may set procedural rules and time-limits for an appeal. The Code of Judicial Procedure provides that an appeal must be lodged within 30 days from the District Court's judgment and that the writ of appeal must indicate, among other things, the requested changes, the reasons for these changes and the evidence referred to and what the appellant intends to prove with each piece of evidence. An appellant is therefore obliged to particularise his appeal even though he requests an oral hearing. The Court furthermore notes that in the present case, the applicant did not reserve himself an opportunity to supplement his appeal should his request for an oral hearing be rejected.

Therefore, the Court considers that this complaint does not disclose an appearance of any violation of Article 6 § 1 of the Convention.

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

3. Insofar as the applicant complains that the District Court rejected his action on a ground not invoked by the opposing party, the Court notes that it is evident from the relevant judgment that the complaint is unsubstantiated.

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

B.  Article 13 of the Convention

The applicant complains, under Article 13 of the Convention, about the lack of an effective remedy against the Court of Appeal's judgment.

Article 13 provides:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

According to the Court's case-law, Article 13 applies only where an individual has an “arguable claim” to be the victim of a violation of a Convention right (see Boyle and Rice v. the United Kingdom , judgment of 27 April 1988, Series A no. 131, § 52).

The Court has above found that the applicant's complaints under Article 6 § 1 of the Convention are manifestly ill-founded. It follows that the applicant does not have an “arguable claim” and his complaint does not attract the guarantees of Article 13. This part of the application must also be rejected as manifestly ill-founded pursuant to Article 35 §§ 3 and 4.

For these reasons, the Court unanimously

Declares the application inadmissible.

Michael O' Boyle , Nicolas bratza Registrar President