CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 7 septembre 1995

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                          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)