CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 21 mai 1997

.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. 26258/95                       by Lennart GUSTAFSSON                       against Sweden           The European Commission of Human Rights (Second Chamber) sitting in private on 21 May 1997, the following members being present:              Mrs.   G.H. THUNE, President            MM.    J.-C. GEUS                  G. JÖRUNDSSON                  A. GÖZÜBÜYÜK                  H. DANELIUS                  F. MARTINEZ                  M.A. NOWICKI                  I. CABRAL BARRETO                  J. MUCHA                  D. SVÁBY                  P. LORENZEN                  E. BIELIUNAS                  E.A. ALKEMA                  A. ARABADJIEV              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 27 September 1994 by Lennart Gustafsson against Sweden and registered on 20 January 1995 under file No. 26258/95;         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 12 September 1996 and the observations in reply submitted by the applicant on 8 December 1996;         Having deliberated;         Decides as follows:   THE FACTS         The applicant is a Swedish citizen, born in 1953.   He resides at Eringsboda.   He is a member of the Industrial Employees' Recognised Unemployment Insurance Fund (Industritjänstemännens Erkända Arbetslöshetskassa; hereinafter "IEAK").         The applicant has previously submitted two applications (Nos. 16122/90 and 21370/93) concerning unemployment benefits (arbetslöshets- ersättning).   In the first application, the applicant submitted a number of complaints under Articles 3, 6, 8 and 14 of the Convention and Article 1 of Protocol No. 1 to the Convention related to his problems with IEAK.   On 3 July 1993 the Commission, sitting as a Committee of three members, declared the application inadmissible under Article 27 of the Convention as, in so far as the matters complained of had been substantiated and were within the Commission's competence, they were not found to disclose any appearance of a violation of the Convention or its Protocols.   In the second application, the applicant, invoking Article 6 of the Convention, complained of the proceedings in a dispute relating to repayment of unemployment benefits, in particular the lack of an oral hearing in the Supreme Social Insurance Court (Försäkringsöverdomstolen) and the length of the proceedings.   The application was declared admissible by the Commission (Second Chamber) on 7 September 1995.         Some of the decisions taken in the proceedings complained of in the applicant's second application are of relevance also to the present case.   The present case, however, concerns a dispute relating to the applicant's right to unemployment benefits for a later period of time.         The facts of the present case, as submitted by the parties, may be summarised as follows.   A.     The particular circumstances of the case         In the spring of 1987, IEAK decided that the applicant was entitled to unemployment benefits for a period of 300 days starting on 16 April 1987.         On 26 February 1988 IEAK informed the applicant that it had obtained information which indicated that he had received unwarranted unemployment benefits.   It appeared that the applicant had been studying at the University of Stockholm's law school since 1 September 1984.   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 already received. Pending the outcome of the investigation, IEAK further decided to withhold payment of the unemployment benefits as from 24 August 1987. As a consequence, benefits for 238 out of the above 300 days were not paid to the applicant.         Following the investigation, IEAK found, on 17 June 1988, that the applicant was not entitled to unemployment benefits while he was studying, as he was not in a position to accept an offer of employment. For this reason, IEAK considered that the applicant had received unwarranted benefits during the period 1 September 1984 - 23 August 1987 and requested him to repay a total of 98,287 Swedish crowns (SEK). The decision, which was headlined "Right to benefits - Repayment obligation", did not specifically refer to the question of the applicant's right to benefits for later periods, including the period beginning on 24 August 1987 for which IEAK had withheld payment. By letter of 27 December 1988, IEAK, however, informed the applicant that the decision covered also this question and that his request for payment of these benefits had accordingly been denied.         On 8 July 1988 the applicant requested IEAK to reconsider the matter in its entirety.   IEAK replied on 21 July, acknowledging that the applicant had requested a reconsideration of his entitlement to unemployment benefits.         By decision of 3 November 1988, IEAK maintained its position in the matter.   This decision referred only to the applicant's obligation to repay unwarranted benefits.   In the above-mentioned letter of 27 December 1988, IEAK, however, stated that this decision constituted a review of its decision of 17 June 1988 which, as mentioned above, concerned also the applicant's right to unemployment benefits for later periods.         On 22 November 1988 the applicant appealed to the Labour Market Board (Arbetsmarknadsstyrelsen; hereinafter "AMS").         By letter of 5 December 1988, IEAK acknowledged receipt of the applicant's appeal which, according to the wording of IEAK's letter, concerned the question of his right to unemployment benefits.   The applicant was informed that the appeal would be dealt with at IEAK's next meeting and would thereafter be forwarded to AMS for examination. On 19 December 1988, IEAK informed the applicant that his appeal had been forwarded to AMS and that IEAK, in its observations to AMS, had recommended that the appeal be rejected.         On 18 May 1989, in a decision dealing exclusively with the applicant's obligation to repay unwarranted benefits, AMS rejected the applicant's appeal.   The amount in question was, however, lowered to 57,722 SEK.         On 9 June 1989 the applicant appealed against this decision to the Supreme Social Insurance Court.   He noted, inter alia, that AMS had not determined whether he was entitled to benefits as from 24 August 1987.   He stated that he had appealed against IEAK's decisions in all respects and referred to the information given by IEAK that the decisions covered both this question and his repayment obligation.   He further claimed that both IEAK and AMS had stated that the two issues should be dealt with simultaneously.         On 26 September 1990 the court rejected the applicant's request for an oral hearing.   Instead, the applicant was given the opportunity to submit final observations in writing, which he did on 9 November 1990.         On 11 November 1991, at the court's request, AMS submitted observations in the case.   These observations were forwarded to the applicant on 12 December 1991 and he replied on 15 January 1992.         By judgment of 11 June 1992, the Supreme Social Insurance Court, agreeing with IEAK and AMS, found that the applicant was obliged to repay the unemployment benefits he had received during his studies in 1984, 1985 and 1987.   The court, however, found that he was not obliged to repay the benefits he had received during the summer holidays between 8 June and 23 August 1987.   He was later informed by IEAK that, as a consequence of the judgment, the total amount he was obliged to repay was 52,070 SEK.   Like the appealed AMS decision, the court's judgment did not deal with the question of the applicant's entitlement to unemployment benefits as from 24 August 1987.         By letters of 25 November 1993 and 22 February 1994, the applicant requested IEAK either to pay him benefits for certain periods of time or to refer the matter to AMS.   IEAK replied on 16 March 1994, stating that he had no claims on IEAK.   The applicant maintained his position in a further letter of 11 April 1994, to which IEAK did not reply.         Following the introduction of the present application, the applicant, in a letter to AMS of 28 November 1994, requested that AMS or IEAK make arrangements for the payment of the benefits in question or that AMS examine the matter.         On 2 December 1994 AMS acknowledged that it had received the applicant's letter on 30 November 1994.   AMS informed the applicant that it regarded the letter as an appeal against IEAK's decision.   It did not indicate which decision, however.   At the same time, AMS contacted IEAK and inquired whether there was a decision against which the applicant could appeal.   IEAK replied on 27 January 1995 that the applicant had previously been informed that he had no claims on IEAK and that his letter to AMS had to be regarded as a new claim for unemployment benefits which, accordingly, should first be dealt with by IEAK.   As a consequence, the matter was closed at AMS on 27 January 1995.         On 8 March 1995 IEAK requested the applicant to state whether he had worked or studied between September 1987 and July 1988.   On 30 March 1995 the applicant replied that he had pursued his studies most of the time until 25 May 1988 and had been unemployed for the remainder of the period.         On 3 May 1995 IEAK decided that the applicant was entitled to unemployment benefits for 45 days between the 35th week of 1987 and the 34th week of 1988, i.e. the period 24 August 1987 - 28 August 1988. These benefits were, however, set off against the amount the applicant was obliged to repay following the Supreme Social Insurance Court's judgment.   This amount was accordingly reduced from 52,070 to 41,465 SEK.   The decision further stated that 230.5 days remained of the above-mentioned period of 300 days.         Apparently, the applicant has not taken any further action in the matter after IEAK's decision of 3 May 1995.   B.     Relevant domestic law and practice         The Act on Unemployment Insurance (Lag om arbetslöshets- försäkring, 1973:370; 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.   A fund is entitled to State subsidies covering benefits paid out in accordance with the provisions of the 1973 Act.   According to Section 54 of the 1973 Act, a fund shall collect a fixed membership fee from each member.         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.   Unemployment benefits were according to practice denied 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.).         Under Section 96 a of the 1973 Act, a decision by an unemployment insurance fund shall be reconsidered by the fund at the request of the insured person whom the decision concerns.   According to Section 97 in its wording until 1 October 1995, an appeal could subsequently be lodged with AMS.   Under Section 98 in its former wording, a decision by AMS could be appealed against to the Supreme Social Insurance Court until 1 July 1993 and thereafter to the administrative courts, in the first instance a county administrative court (länsrätt).   As from 1 October 1995, AMS is not involved in the examination of an individual's entitlement to unemployment benefits.   Instead, an appeal against a decision by an unemployment insurance fund is lodged directly with a county administrative court.     COMPLAINTS         The applicant complains, under Article 6 of the Convention, that the dispute concerning his entitlement to unemployment benefits as from 24 August 1987 has not been determined within a reasonable time.     PROCEEDINGS BEFORE THE COMMISSION         The application was introduced on 27 September 1994 and registered on 20 January 1995.         On 15 May 1996 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 12 September 1996 after an extension of the time-limit fixed for that purpose.   The applicant replied on 8 December 1996, also after an extension of the time-limit.     THE LAW         The applicant complains that the dispute concerning his entitlement to unemployment benefits as from 24 August 1987 has not been determined within a reasonable time.   He invokes Article 6 (Art. 6) of the Convention which, in relevant parts, reads as follows:         "1. In the determination of his civil rights ..., everyone       is entitled to a ... hearing within a reasonable time ..."         The respondent Government submit that the application should not be dealt with as it is substantially the same as the matter examined by the Commission in application no. 21370/93.   Should the Commission not share this opinion, the Government maintain that the application is inadmissible.   They argue that the applicant, being a university student, was not entitled to the unemployment benefits in question under the relevant domestic legislation and thus could not, on arguable grounds, claim a right to such benefits.   Further referring to the public law features of the Swedish system of unemployment insurance, the Government contend that Article 6 (Art. 6) of the Convention does not apply and that the application is, accordingly, incompatible ratione materiae with the Convention.   In the alternative, the Government claim that IEAK's decision to withhold payment of unemployment benefits as from 24 August 1987 has been implicitly dealt with by AMS on 18 May 1989 and by the Supreme Social Insurance Court on 11 June 1992.   As the applicant did not introduce the present complaint until 27 September 1994, it was made out of time.         As to the merits of the case, the Government submit that the application is manifestly ill-founded.   Maintaining that the period to be considered started on 22 November 1988 when the applicant appealed to AMS and ended on 11 June 1992 when the Supreme Social Insurance Court gave judgment, they argue that the proceedings entailed a certain measure of complexity, that the delays that may have occurred were not attributable to the State and that the matter at stake in the proceedings was not of considerable importance to the applicant.         The applicant contests that the present application is substantially the same as application no. 21370/93 or that his civil rights were not involved.   He argues that, for certain periods of time after 23 August 1987, he has been entitled to unemployment benefits under the relevant domestic legislation.   For instance, he did not study at all during the autumn of 1988, the spring of 1989 and most of the autumn of 1989.   Instead, he was applying for a job.   In this connection, the applicant refers to IEAK's decision of 3 May 1995 to grant him benefits for certain days after 23 August 1987.   It was thus important for him to have a decision clearly stating to what extent he was entitled to benefits after that date.   However, neither AMS nor the Supreme Social Insurance Court examined, explicitly or implicitly, this question but only dealt with the repayment issue.   In fact, the court was prevented from doing that, as such an examination would have gone beyond the subject-matter of the appealed AMS decision.   The applicant also maintains that his complaint has not been made out of time as, in his opinion, the case has not yet been settled.         The applicant further contends that the proceedings in the case started on 24 August 1987 and are still going on.   The necessary information on his studies and job applications are easily accessible at the university and the employment agency and the delays in the case have thus been attributable to AMS and the Supreme Social Insurance Court.   Moreover, the case is not complex and the matter at stake is of great economic importance to the applicant.         The Commission first notes that the present application concerns the examination of the applicant's entitlement to unemployment benefits as from 24 August 1987, whereas application no. 21370/93 relates to a different time period.   Although some decisions are of importance to both applications, the events which have taken place subsequent to the judgment of the Supreme Social Insurance Court are relevant only to the present application.   Moreover, the applicant's entitlement to benefits depends on whether, at any given time, he fulfils the requirements under the relevant domestic legislation.   The Commission therefore considers that the present application is not substantially the same as the matter examined by the Commission in application no. 21370/93.         The Commission then recalls that when considering the applicability of Article 6 (Art. 6) of the Convention to the proceedings in question it has first to ascertain 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 (cf., e.g., Eur. Court HR, Zander v. Sweden judgment of 25 November 1993, Series A no. 279-B, p. 38, para. 22).         In the present case, the Commission recalls that the dispute between the applicant and IEAK concerned the question whether, as from 24 August 1987, he fulfilled the requirements under the 1973 Act and thus was entitled to unemployment benefits.   The main issue was whether, at any given time, he was available to the labour market and able to accept a job offer.   By decision of 3 May 1995, IEAK considered that for a period of 45 days in 1987-1988 the applicant was entitled to unemployment benefits and thus had fulfilled the requirements. Thus, the Commission finds it established that the applicant could, on arguable grounds, claim that he had a right to such benefits and that this was recognised under domestic law.         The Commission further considers that the dispute was genuine and serious and that the outcome of the dispute was directly decisive for the applicant's entitlement to unemployment benefits.   The proceedings thus involved the determination of a "right" for the purposes of Article 6 para. 1 (Art. 6-1) of the Convention.         As to the question whether the determination involved a "civil" right, the Commission recalls that the dispute arose between the applicant and an unemployment insurance fund of which he was a member and to which he contributed financially in order to be covered in case of unemployment.   Despite the public law features of the system of unemployment insurance, the applicant was affected in his relation with a private contractor.   Moreover, the dispute concerned his means of subsistence.   Therefore, and having regard to the case-law of the European Court of Human Rights in the cases of Feldbrugge v. the Netherlands (judgment of 29 May 1986, Series A no. 99), Deumeland v. Germany (judgment of 29 May 1986, Series A no. 100), Salesi v. Italy (judgment of 26 February 1993, Series A no. 257-E) and Schuler-Zgraggen v. Switzerland (judgment of 24 June 1993, Series A no. 263), the Commission finds that the applicant's right was a "civil right" within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention. Consequently, this provision applies in the present case.         As regards the period to be considered, the Commission recalls that IEAK took decisions on 17 June and 3 November 1988 which, according to its subsequent letter to the applicant, concerned, inter alia, the issue relevant to the present application, i.e. the applicant's entitlement to unemployment benefits as from 24 August 1987.   The applicant appealed to AMS on 22 November 1988, but in its decision of 18 May 1989 AMS did not address that issue.   This was pointed out by the applicant in his subsequent appeal to the Supreme Social Insurance Court.   The court gave judgment on 11 June 1992, approximately three years and seven months after the applicant's appeal to AMS.   Again, the judgment did not deal with the issue of the applicant's entitlement to benefits as from 24 August 1987.         The Commission considers that, at the latest when the Supreme Social Insurance Court gave judgment in the case, the applicant must have understood that his entitlement to benefits as from 24 August 1987 was not going to be separately examined by AMS or the court and that proceedings concerning this issue were no longer pending.   However, he did not introduce his complaint concerning the length of the proceedings in this respect until 27 September 1994, i.e. more than six months after the court's judgment.         The Commission therefore finds that, under Article 26 (Art. 26) of the Convention, it cannot examine the applicant's complaint in so far as it concerns the examination by the Supreme Social Insurance Court or earlier proceedings.   Furthermore, even assuming that IEAK's letter to the applicant of 16 March 1994 could be considered as a decision on the question of the applicant's entitlement to unemployment benefits as from 24 August 1987, it was also taken more than six months before the introduction of the present application and therefore cannot be examined.         The Commission recalls, however, that IEAK, on 3 May 1995, decided that the applicant was entitled to unemployment benefits for certain days between 24 August 1987 and 28 August 1988.   IEAK's examination originated in the applicant's letter to AMS of 28 November 1994 which was dealt with as a new claim for benefits.   In so far as the applicant's complaint covers these proceedings, the Commission finds that it has been submitted within the time-limit prescribed by Article 26 (Art. 26) of the Convention and accordingly may be examined. However, the relevant time period - about five months - does not exceed what could be considered as reasonable in the circumstances of the case.         Thus, to the extent the Commission may deal with the applicant's complaint, it does not reveal any violation of the requirement of a "hearing ... within a reasonable time" under Article 6 para. 1 (Art. 6-1) of the Convention.         It follows that the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.         For these reasons, the Commission, unanimously,         DECLARES THE APPLICATION INADMISSIBLE.            M.-T. SCHOEPFER                            G.H. THUNE          Secretary                                President    to the Second Chamber                    of the Second Chamber