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)
Full & Egal Universal Law Academy