AS TO THE ADMISSIBILITY OF
Application No. 22377/93
by T.M.
against Finland
The European Commission of Human Rights sitting in private on
21 October 1996, the following members being present:
Mr. S. TRECHSEL, President
Mrs. G.H. THUNE
Mrs. J. LIDDY
MM. E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H. DANELIUS
F. MARTINEZ
L. LOUCAIDES
M.P. PELLONPÄÄ
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
N. BRATZA
I. BÉKÉS
J. MUCHA
D. SVÁBY
A. PERENIC
C. BÎRSAN
P. LORENZEN
K. HERNDL
E. BIELIUNAS
E.A. ALKEMA
M. VILA AMIGÓ
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 16 May 1993 by
T.M. against Finland and registered on 28 July 1993 under file
No. 22377/93;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having regard to the observations submitted by the respondent
Government on 4 January 1996 and the observations in reply submitted
by the applicant on 15 January 1996;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a Finnish citizen, born in 1934 and resident at
Kerava. He is a lawyer.
A. The particular circumstances of the case
The facts of the case, as submitted by the parties, may be
summarised as follows.
The applicant lost his job in December 1986 and was thereafter
granted earnings-related unemployment allowance for 900 days of
unemployment, i.e. up to 19 November 1990, by a decision of the
Unemployment Fund for Lawyers and Legal Associates ("the Unemployment
Fund"). The applicant had reached the age of 55 before having collected
the allowance for the maximum number of 500 days stipulated in section
26, subsection 1 of the 1984 Act on Unemployment Benefits (työttömyys-
turvalaki 602/84, lag 602/84 om utkomstskydd för arbetslösa; "the 1984
Act"). Due to his age and a 1987 amendment to section 26, subsection
3 of the 1984 Act he had therefore been entitled to continue collecting
an allowance for an additional 400 days.
According to a further amendment to section 26, subsection 3 of
the 1984 Act which was enacted in 1990 and entered into force on
1 January 1991, an earnings-related allowance which an unemployed had
been receiving while reaching the age of 55 could be paid until he or
she reached the age of 60, regardless of the maximum number of
unemployment days prescribed in section 26, subsection 1.
In January 1991 the applicant requested a further earnings-
related allowance, referring to the 1990 amendment to section 26 of the
1984 Act. His request was rejected by the Unemployment Fund on
29 January 1991, the Fund having found that his right to such allowance
had ceased to exist on 20 November 1990, i.e. when he had been
collecting it for the then maximum period of 900 days.
The applicant appealed to the Board for Unemployment Benefits
(työttömyysturvalautakunta, arbetslöshetsnämnden), again referring to
the 1990 amendment and the preparatory works relating to the 1984 Act.
Before deciding on his appeal the Board obtained an opinion from the
Unemployment Fund in which reference was made to certain instructions
issued by the Ministry for Social Affairs and Health (sosiaali- ja
terveysministeriö, social- och hälsovårdsministeriet) concerning the
application of the 1990 amendment. Pursuant to these instructions an
earnings-related allowance could also be granted to an unemployed who
had reached the age of 55 and who, on 1 January 1991, had been
collecting an allowance under the old legislation for more than 500
days. The Unemployment Fund noted that the applicant's right to collect
an allowance for the 400-day period exceeding the 500 day-period
prescribed in section 26, subsection 1 of the 1984 Act had ceased to
exist prior to 1 January 1991.
The Unemployment Fund's opinion was not communicated to the
applicant. The full text thereof has not been made available to the
Commission.
In its decision of 27 August 1991 the Board for Unemployment
Benefits summarised the facts, the applicant's appeal and the
Unemployment Fund's opinion. Agreeing with the essence of that opinion,
the Board then went on to reject the appeal, finding that his right to
collect an earnings-related allowance had ceased to exist before
1 January 1991. Section 26 of the 1984 Act was therefore applicable as
amended in 1987.
The applicant appealed further to the Insurance Court (vakuutus-
oikeus, försäkringsdomstolen), arguing that the 1990 amendment to the
1984 Act had not delegated any right to the Ministry to issue any
instructions restricting the scope of those entitled to an earnings-
related allowance.
On 9 January 1992 the Social Insurance Commission (sosiaali-
vakuutustoimikunta, socialförsäkringskommissionen) of Kerava rejected
the applicant's request for a basic unemployment allowance. The Social
Insurance Commission noted a binding opinion which it had obtained from
the Employment Commission (työvoimatoimikunta, arbetskrafts-
kommissionen) of Kerava. According to that opinion of 7 January 1992,
the applicant had repeatedly declined to accept offers of employment
or education. The Social Insurance Commission stated, however, that
provided the other conditions for receiving the basic allowance were
fulfilled, the applicant would again be entitled thereto after having
worked or received education for eight weeks.
The applicant appealed to the Board for Unemployment Benefits
against the Social Insurance Commission's refusal, requesting to be
exempted from the obligatory work or education while the appeal
proceedings concerning his entitlement to an earnings-related allowance
were pending.
Before deciding on the applicant's appeal the Board for
Unemployment Benefits obtained opinions both from the Employment
Commission and the Social Insurance Commission. In its observations of
23 January 1992 the Deputy Director of the Kerava branch of the Social
Insurance Institution (kansaneläkelaitos, folkpensionsanstalten),
apparently acting on behalf of the Social Insurance Commission, stated
as follows:
"The Kerava branch of the Social Insurance Institution has
rejected the applicant's request for a basic unemployment
allowance as from 11 November 1991, having regard to the
... binding opinion of the Employment Commission.
... The applicant has appealed ...
... The Employment Commission has been heard in respect of
the appeal and has, on 22 January 1992, submitted an
additional opinion. ... Reference is made to [that]
opinion. ..."
Annexed was the Employment Commission's opinion of 22 January
1992 which, apart from recollecting the facts of the case, read as
follows:
"The ... Employment Commission has acquainted itself with
[the applicant's appeal] and does not propose any change to
its ... opinion of 7 January 1992, given that [his] appeal
does not contain anything ... which was not known [to the
Employment Commission] when it issued [that] opinion. ..."
None of the above-cited observations were communicated to the
applicant.
In its decision of 6 May 1992 the Board for Unemployment Benefits
summarised the facts, the applicant's appeal and the Employment
Commission's opinion. It also noted that the Social Insurance
Commission had referred to the Employment Commission's opinion.
Agreeing with the essence of that opinion, the Board then went on to
reject the appeal, noting that the salary which he could have received,
had he accepted the employment offered to him, would have exceeded the
basic allowance. It furthermore found that the pending appeal
proceedings concerning his entitlement to an earnings-related allowance
did not constitute a valid reason for his refusal to accept the post
offered to him.
The applicant again appealed to the Insurance Court, where his
appeals were joined. Before deciding on them it obtained observations
both from the Unemployment Fund (as regards his entitlement to an
earnings-related allowance) and the Social Insurance Commission (as
regards his entitlement to a basic unemployment allowance).
In its observations of 20 December 1991 the Unemployment Fund
stated, apart from summarising the facts of the case and the 1991
amendment to the 1984 Act, as follows:
"... In his appeal the applicant repeats his views as
expressed in his appeal to the Unemployment Fund.
... An earnings-related unemployment allowance can,
according to the instructions of the Ministry of Social
Affairs and Health, be paid up to the age of 60 provided
that the person is at least 55 years old and is, on 1
January 1991, collecting an allowance for an additional
[400] days. Since [the applicant's] right to an allowance
for additional days ceased to exist on 19 November 1990,
the Unemployment Fund has not granted him any allowance for
the period 1-20 January 1991.
Since the applicant has not in his appeal to the Insurance
Court submitted any new relevant information which was not
known to the Unemployment Fund at the time of deciding the
matter, [the Fund] proposes that its decision be upheld."
In her submissions of 18 September 1992 the Director of the
Kerava branch of the Social Insurance Institution, apparently acting
on behalf of the Social Insurance Commission, stated, apart from
summarising the facts of the case, as follows:
"... In his appeal to the Insurance Court the applicant has
requested ... that the decision concerning his [entitlement
to] a basic unemployment allowance be amended.
The Employment Commission's opinion has been requested once
more and [it] does not propose any change to its opinion of
7 January 1992 [to the Unemployment Board].
Our opinion is that no reason has been put forward for
amending the decision which has been appealed against."
Apparently annexed to the above opinion was the Employment
Commission's opinion of 7 September 1992 which, apart from summarising
the facts of the case, read as follows:
"The ... Employment Commission has acquainted itself with
[the applicant's appeal] and does not propose any change to
its ... opinion of 7 January 1992, given that [his] appeal
does not contain anything ... which was not known [to the
Employment Commission] when it issued [that] opinion. ..."
None of the above-cited observations were communicated to the
applicant.
In its decision of 18 February 1993 the Insurance Court
summarised the applicant's appeals and noted that the Unemployment Fund
and the Social Insurance Commission had lodged observations in reply.
It then went on to reject the appeals, referring to the reasoning of
the Board for Unemployment Benefits in its respective decisions.
B. Relevant domestic law
1. Unemployment benefits
The 1984 Act prescribes, as a general condition, that an
unemployment allowance shall be paid to any unemployed person who is
capable of working and has reported himself or herself to the
unemployment authority for the purpose of obtaining full-time work and
provided that no employment or education has been found (section 4).
The 1984 Act also sets out specific conditions which are to be
met by an unemployed before he or she can be granted an earnings-
related allowance. These comprise, for instance, membership in an
unemployment fund during a certain period of time preceding the loss
of employment (section 16). If an unemployed has received an earnings-
related allowance for the full number of days laid down by the law, he
or she has to meet the specific conditions anew in order to qualify for
a further period (section 26, subsection 3).
An unemployed who meets the conditions stipulated by section 4
and who is in need of financial assistance can be granted a basic
unemployment allowance which is not related to previous earnings
(section 13).
The Board for Unemployment Benefits shall afford an appellant an
opportunity to be heard in respect of material which is not known to
him or her already (section 39, subsection 4)
According to the 1958 Insurance Court Act (laki vakuutus-
oikeudesta, lag om försäkringsdomstolen 14/58), the provisions
governing the proceedings in the ordinary courts may, when appropriate,
be applied to those in the Insurance Court (section 9, subsection 4).
According to the Code of Judicial procedure (Oikeudenkäymiskaari,
Rättegångs Balk), if a court of appeal (hovioikeus, hovrätt) has
obtained of its own motion an opinion or other written statement which
may have an impact on its determination of the case, it must, unless
it is clearly unnecessary, request the parties concerned to comment
thereon in writing (chapter 26, section 6).
2. Access to the case-files of authorities
Under the 1951 Act on Publicity of Public Documents (laki 83/51
yleisten asiakirjain julkisuudesta; lag 83/51 om allmänna handlingars
offentlighet, "the 1951 Act") documents drawn up and issued by an
authority, or which have been submitted to an authority and are still
in that authority's possession, are public (section 2, subsection 1).
An exception to the rule of full publicity is made, inter alia, for
medical and similar reports, which are accessible to the public only
with the consent of the person they relate to (section 17).
If a public official refuses access to a document, that decision
may be submitted for reconsideration by the authority on whose behalf
he or she has acted, following which there lies an appeal under the
general rules for appeals against a decision of that authority. If no
right of appeal exists under those general rules, an appeal may be
lodged with the superior authority. If no such authority exists, an
appeal against a state authority's decision may be lodged with the
Supreme Administrative Court (korkein hallinto-oikeus, högsta
förvaltningsdomstolen). An appeal against a decision by another
authority may be lodged with a County Administrative Court (läänin-
oikeus, länsrätten) (section 8, subsection 1 of the 1951 Act, as
amended by Act no. 472/87).
COMPLAINTS
1. The applicant complains under Article 6 para. 1 of the Convention
that he was denied a fair hearing in the proceedings relating to his
entitlement to a further unemployment allowance on the basis of the
1990 amendment to the 1984 Act. Allegedly, neither the refusal to grant
him such an allowance nor the subsequent decisions to reject his
appeals had any basis in domestic law. In particular, the Ministry's
instructions on the application of the 1990 amendment were issued in
the absence of any delegation in the amendment itself and were contrary
to its ratio. The decisions on the applicant's appeals allegedly
included grounds which had not been invoked by the Unemployment Fund
in its refusal of his request. Allegedly, he was also unable to comment
on the Unemployment Fund's opinion which was obtained by the Board for
Unemployment Benefits and taken into account both by that Board and by
the Insurance Court.
2. Under Article 6 para. 1 as well as Article 13 of the Convention
the applicant also complains that he was denied a fair hearing in the
proceedings relating to his entitlement to a basic unemployment
allowance. Allegedly, the refusal to grant him such an allowance while
the appeal proceedings concerning the refusal to grant him a further
earnings-related allowance were pending sought to prevent him from
enjoying the benefits which he would have been entitled to, had his
appeals in this respect been successful.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 16 May 1993 and registered on
28 July 1993.
On 18 October 1995 the Commission (First Chamber) decided to
communicate the application.
The Government's written observations were submitted on 4 January
1996. The applicant replied on 15 January 1996.
On 15 October 1996 the plenary Commission ordered the transfer
of the application to itself.
THE LAW
1. The applicant complains under Article 6 para. 1 (Art. 6-1) of the
Convention that he was denied a fair hearing in the proceedings
relating to his entitlement to a further unemployment allowance on the
basis of the 1990 amendment to the 1984 Act. It is alleged that the
refusal to grant him such an allowance and the subsequent decisions to
reject his appeals had no basis in domestic law. The decisions on his
appeals allegedly included grounds which had not been invoked by the
Unemployment Fund in its refusal of his request. Allegedly, he was also
unable to comment on the Unemployment Fund's opinion which was obtained
by the Board for Unemployment Benefits and taken into account both by
that Board and by the Insurance Court.
Article 6 para. 1 (Art. 6-1) of the Convention reads, in so far
as it is relevant, as follows:
"In the determination of his civil rights and obligations
..., everyone is entitled to a fair ... hearing ... by [a]
... tribunal established by law. ..."
The Government dispute the applicability of Article 6 (Art. 6)
as the applicant had - prior to the entry into force of the 1990
amendment to the 1984 Act - lost his "right" to any further earnings-
related unemployment allowance. In the alternative, the Government
submit that Article 6 (Art. 6) has not been violated in the special
circumstances of the case. It is true that the Board for Unemployment
Benefits did not communicate to him the opinion of the Unemployment
Fund, where a reference was made to the instructions issued by the
Ministry for Social Affairs and Health. Nor was the Fund's opinion to
the Insurance Court communicated to him. However, the Fund's opinion
to the Board was virtually reproduced in that body's decision, as was
the Fund's opinion to the Insurance Court in the decision of that
court. The non-communicated submissions did not include any information
which was new to the applicant or which he could not have obtained by
consulting the case-file of the respective authorities.
The Government stress that the case is distinguishable from the
case of Kerojärvi v. Finland (Eur. Court HR, judgment of 19 July 1995,
Series A no. 322) in that the present applicant, by virtue of his legal
profession, was aware of his possibility of consulting the case-files
and commenting on the various opinions as they had been reproduced
without that material having been formally communicated to him. In sum,
he had ample opportunity to challenge the lower authorities' views at
the latest in his appeal to the Insurance Court.
The applicant contends that Article 6 para. 1 (Art. 6-1) applies.
Under the 1990 amendment to the 1984 Act he retained his right to a
further earnings-related unemployment allowance. The instructions
issued by the Ministry for Social Affairs and Health effectively
restricted the scope of applicability of the 1990 amendment.
The applicant also maintains that the proceedings were unfair.
The Unemployment Fund did not base its decision on the Ministry's
instructions and these were never communicated to him. Their inclusion
in the decision of the Board for Unemployment Benefits caught him by
surprise, as he had no reason to believe that the decisions would be
based on material which had not been communicated to him. His legal
profession is irrelevant, as the same requirement of fairness must
apply irrespective of someone's professional background.
The Commission must ascertain whether Article 6 para. 1
(Art. 6-1) of the Convention is applicable in the instant case and,
first, whether there was a dispute over a "right" which can be said,
at least on arguable grounds, to be recognised under domestic law. The
dispute must be genuine and serious; it may relate not only to the
actual existence of a right but also to its scope and the manner of its
exercise. Finally, the result of the proceedings must be directly
decisive for the right in question (e.g., the above-mentioned Kerojärvi
judgment, p. 12, para. 32).
The Commission observes that the disagreement between the
applicant and the authorities concerned the question whether he was
still entitled to an earnings-related unemployment allowance under the
1984 Act as amended in 1990. This dispute related to the existence of
a "right" of the applicant which could be said, at least on arguable
grounds, to be recognised under domestic law. The outcome of the
proceedings was, moreover, directly decisive, for the purposes of
Article 6 para. 1 (Art. 6-1), for that right. Consequently, there was
a genuine and serious dispute over a "right".
The Commission has next examined whether the right at issue was
"civil" within the meaning of Article 6 para 1 (Art. 6-1). It recalls
that, as a general rule, this provision is applicable in the field of
social insurance, including even welfare assistance (Eur. Court HR,
Schuler-Zgraggen v. Switzerland judgment of 24 June 1993, Series A no.
263-A, p. 17, para. 46; Salesi v. Italy judgment of 26 February 1993,
Series A no. 257-E, pp. 59-60, para. 19). Thus, State intervention
alone is not sufficient to establish that Article 6 para. 1
(Art. 6-1) is inapplicable. Other considerations might argue in favour
of the applicability, such as whether or not the applicant was affected
in his relations with the administrative authorities as such, acting
in the exercise of discretionary powers, or whether he suffered an
interference with his means of subsistence. It must further be
determined whether the applicant was claiming an individual, economic
right flowing from specific rules laid down by law (ibid.)
The Commission observes that the right in question had certain
public law features in that it related to a allowance-scheme
established by law and administered by public authorities. However,
other considerations argue in favour of the applicability of Article
6 (Art. 6). The possibility for the applicant to obtain an earnings-
related allowance was dependent on, among other things, his membership
in the relevant Unemployment Fund prior to his loss of employment. The
allowance at issue was individual and pecuniary in nature and was aimed
at compensating for loss of means of subsistence resulting from
unemployment. Accordingly, the Commission concludes that the
entitlement in issue was a "civil" right and that Article 6 para. 1
(Art. 6-1) therefore applies.
The Commission must next examine whether the relevant proceedings
were "fair" within the meaning of Article 6 para. 1 (Art. 6-1). It
recalls that it is normally not competent to deal with a complaint
alleging that errors of law and fact have been committed by domestic
courts, except where it considers that such errors might have involved
a possible violation of any of the rights and freedoms set out in the
Convention or one of its Protocols, for instance in that a judgment has
no legal justification and thereby violates a party's right to receive
a fair trial (cf. Eur. Court HR, De Moor v. Belgium judgment of 23 June
1994, para. 55, to be published in Series A no. 292-A; No. 7987/77,
Dec. 13.12.79, D.R. 18 pp. 31, 45). The Commission's power to review
compliance with domestic law is limited (e.g., Eur. Court HR, Fredin
v. Sweden judgment of 18 February 1991, Series A no. 192, pp. 16-17,
para. 50). As a general rule, it is for the domestic courts to assess
the evidence before them. The task of the Convention organs is to
ascertain whether the proceedings, considered as a whole, including the
way in which evidence was taken and submitted, were fair (e.g., Eur.
Court HR, Lüdi v. Switzerland judgment of 15 June 1992, Series A
no. 238, p. 20, para. 43).
In the present case the Commission finds no indication that the
decisions of the authorities to refuse the applicant a further
earnings-related unemployment allowance lacked a legal justification.
As furthermore regards the fairness of the proceedings in themselves,
it is undisputed that the opinion on the applicant's appeal which the
Board for Unemployment Benefits had obtained from the Unemployment Fund
was not communicated to the applicant before the Board reached its
decision. The Commission notes, however, that the essence of the Fund's
opinion was reproduced in the decision of the Board for Unemployment
Benefits. In his appeal to the Insurance Court the applicant indeed
made reference to this opinion, thereby challenging those arguments
which in his view had not been put forward by the Unemployment Fund in
its own refusal of his request. He did not, however, complain about the
fact that the Board for Unemployment Benefits had not communicated the
Fund's opinion to him.
It is true that before deciding on the applicant's appeal the
Insurance Court obtained observations thereon from the Unemployment
Fund. Although these observations were not communicated to the
applicant either, they were in essence similar to those which the Fund
had previously submitted to the Board for Unemployment Benefits. Thus
the Fund's position had already become known to the applicant and had
been challenged by him. Noting also that he did not in his appeal to
the Insurance Court refer to the Board's failure to communicate the
Fund's observations as an issue affecting the fairness of the
proceedings, the Commission considers that the non-communication by the
Insurance Court of the Fund's further observations does not suffice to
render the proceedings before that court unfair. In effect the
Insurance Court simply upheld the decision of the Board for
Unemployment Benefits by referring to the reasoning of that body.
In these specific circumstances and considering the proceedings
as a whole, the Commission cannot find any indication that they were
unfair. Accordingly, there is no appearance of a violation of Article
6 para. 1 (Art. 6-1) in this respect.
It follows that this complaint must be rejected as being
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
2. Under Article 6 para. 1 (Art. 6-1) as well as Article 13
(Art. 13) of the Convention the applicant also complains that he was
denied a fair hearing in the proceedings relating to his entitlement
to a basic unemployment allowance. Allegedly, the refusal to grant him
such an allowance while the appeal proceedings concerning the refusal
to grant him an earnings-related allowance under the 1991 amendment to
the 1984 Act were pending sought to prevent him from enjoying the
benefits which he would have been entitled to, had his appeal been
successful. In this respect the applicant also invokes Article 13
(Art. 13) of the Convention which reads as follows:
"Everyone whose rights and freedoms as set forth in this
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."
The Government submit that in the special circumstances of the
case Article 6 para. 1 (Art. 6-1) has not been violated on this point
either. Although the opinions of the Employment Commission and the
Social Insurance Commission were not communicated to the applicant, the
opinion of the first-mentioned body was to the relevant extent
reproduced in the decision of the Board for Unemployment Benefits and
the opinion of the last-mentioned body only referred to the opinion of
the first-mentioned. As none of these submissions contained anything
new to the applicant, the Insurance Court, following its practice, did
not obtain his views on them.
The Government furthermore submit that the applicant could also
have consulted the case-file of the respective authorities. As a lawyer
he therefore had ample opportunity to challenge the lower authorities'
views at the latest in his appeal to the Insurance Court.
The applicant again contests the Government's views.
The Commission has first considered the complaint under the
above-cited Article 6 para. 1 (Art. 6-1). Recalling the general
criteria for the applicability of that provision, it observes that the
present disagreement between the applicant and the authorities
concerned the question whether he was entitled to a basis unemployment
allowance under section 26 of the 1984 Act, as amended in 1990. The
Commission finds that this dispute equally concerned the existence of
a "right" of the applicant which could be said, at least on arguable
grounds, to be recognised under domestic law. The outcome of the
proceedings was, moreover, directly decisive, for the purposes of
Article 6 para. 1 (Art. 6-1), for that right. Consequently, there was
a genuine and serious dispute over a "right".
Recalling the above-cited case-law of the Convention organs on
the notion of "civil" rights, the Commission observes that also the
present right had certain public law-features in that it related to an
allowance-scheme established by law, administered by public authorities
and in this case apparently funded entirely by the State. However,
other considerations argue in favour of the applicability of Article
6 (Art. 6). The allowance now at issue was likewise individual and
pecuniary in nature and was aimed at compensating for loss of means of
subsistence resulting from unemployment. Accordingly, the Commission
concludes that the entitlement now in issue was also a "civil" right
and that Article 6 para. 1 (Art. 6-1) therefore applies.
Recalling the general principles governing the Convention organs'
assessment of the fairness of proceedings, the Commission has next
examined the compliance with Article 6 para. 1 (Art. 6-1) in the
present context. It observes that the applicant was denied a basic
unemployment allowance, since the pending appeal proceedings concerning
his entitlement to an earnings-related allowance was not found to be
a valid reason for his refusal to accept the employment offered to him.
The Commission finds no indication that this denial of the allowance
and the reasoning adduced therefor were not legally justified.
Furthermore, as regards the fairness of the proceedings in
themselves, it is undisputed that the Board for Unemployment Benefits
obtained opinions both from the Employment Commission and from the
Social Insurance Commission without communicating them to the applicant
before deciding on his appeal. The Commission observes, however, that
the Employment Commission's opinion was in essence reproduced in the
decision of the Board for Unemployment Benefits and that, according to
the same decision, the Social Insurance Commission had, in its opinion,
referred to the opinion submitted by the Employment Commission. In his
appeal to the Insurance Court the applicant indeed challenged the
opinions of the Employment Commission and the Social Insurance
Commission. He did not, however, complain about the fact that the Board
for Unemployment Benefits had not communicated those opinions to him.
It is true that before deciding on the applicant's appeal the
Insurance Court obtained observations thereon from the Social Insurance
Commission. Although these observations were not communicated to the
applicant either, they were in essence similar to those which the
Social Insurance Commission had previously submitted to the Board for
Unemployment Benefits. Thus the Social Insurance Commission's position
had already become known to the applicant and had been challenged by
him. Noting also that he did not in his appeal to the Insurance Court
refer to the Board's failure to communicate the opinions of the
Employment Commission and the Social Insurance Commission as an issue
affecting the fairness of the proceedings, the Commission considers
that the non-communication by the Insurance Court of the Social
Insurance Commission's further observations does not suffice to render
the proceedings before that court unfair. In effect the Insurance Court
simply upheld the decision of the Board for Unemployment Benefits by
referring to the reasoning of that body.
In these specific circumstances and considering the proceedings
as a whole, the Commission cannot find any indication that they were
unfair. Accordingly, there is no appearance of a violation of Article
6 para. 1 (Art. 6-1) in this respect either.
Having regard to its above conclusion, the Commission finds it
unnecessary to consider the complaint also under Article 13 (Art. 13),
given that the requirements of Article 13 (Art. 13) are less strict
than, and are here absorbed by, those of Article 6 para. 1 (Art. 6-1)
(e.g., Eur. Court HR, Håkansson and Sturesson v. Sweden judgment of
21 February 1990, Series A no. 171, p. 21, para. 69).
It follows that this complaint must also be rejected as being
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
For these reasons, the Commission, by a majority,
DECLARES THE APPLICATION INADMISSIBLE.
H.C. KRÜGER S. TRECHSEL
Secretary President
to the Commission of the Commission
Full & Egal Universal Law Academy