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. 27411/95                       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 3 March 1994 by Lennart Gustafsson against Sweden and registered on 26 May 1995 under file No. 27411/95;         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 29 August 1996 and the observations in reply submitted by the applicant on 28 November 1996;         Having deliberated;         Decides as follows:   THE FACTS         The applicant is a Swedish citizen, born in 1953. He resides in Eringsboda.         The facts of the case, as submitted by the parties, may be summarised as follows.         On 26 July 1989 the applicant instituted proceedings against a company before the District Court (tingsrätten) of Ronneby.   The applicant claimed that he had been employed by the company for a period of four weeks from 10 April 1989.   An employment agreement had allegedly been concluded on 4 or 5 April between a representative of the company and E.P., an official of the local Employment Office (Arbetsförmedlingen), acting as the applicant's representative. However, on 10 April, some hours after the applicant had appeared at the place of work, the company's representative had told him to leave. The applicant maintained that he had been dismissed without objective grounds and that the company had breached certain provisions of the Act on Security of Employment (Lag om anställningsskydd, 1982:80).   He therefore claimed that the company was liable to pay damages.         On 25 October 1989, after having been granted a two month extension by the court, the defendant company submitted its written observations to the court.   On 6 December the applicant replied.   He also requested the court to give the Swedish Metal Workers' Union (Svenska metallindustriarbetareförbundet) an opportunity to submit observations in the case.         On 27 June 1990 the court requested observations from the Swedish Metal Workers' Union and the Swedish Engineering Employers' Association (Sveriges Verkstadsförening).   Under Chapter 49, Section 6 of the Code of Judicial Procedure (Rättegångsbalken) (corresponding to the present Section 7), the applicant could have appealed against this measure to the Labour Court (Arbetsdomstolen), claiming that the court's decision to ask for observations caused unnecessary delay.   He did not do so, however.   The organisations replied on 15 August and 28 September, respectively.         The District Court held a preparatory hearing in the case on 25 February 1991.   At the hearing the applicant was ordered to specify the legal grounds for his action and to submit a statement of evidence before 20 March 1991.         On 23 April 1991, after the court had granted an extension of the time-limit, the applicant's legal aid counsel replied to the order. On the same day the counsel, invoking fundamental disagreements between him and the applicant, requested the court to dismiss him.   By decision of 7 February 1992, the court granted the counsel's request.         On 20 June 1991 the applicant submitted his own statement in reply to the District Court's order concerning legal grounds and evidence.   The court forwarded this statement to the defendant company on 11 February 1992.   The company's reply of 31 March was sent by the court to the applicant on 2 June.   On 25 June 1992 the applicant submitted further observations.         At the District Court's preparatory hearing it was decided that the main hearing should be held in September 1991.   However, despite repeated inquiries by the applicant in 1991 and 1992, there was no hearing during these years.   In June 1992 the court asked the applicant if the case could be decided without a hearing.   The applicant answered in the negative.         On 16 October 1992 and, upon the court's request for supplementary information, on 20 January 1993 the defendant company submitted statements of evidence.         The parties were later summoned to the main hearing scheduled for 23 March 1993.   The hearing was, however, postponed as the chairman of the court had fallen ill.         Eventually, the main hearing took place on 7 May 1993.   At the request of the company, two of its employees, including the above- mentioned representative, and a second official of the Employment Office, gave evidence.   At the beginning of the hearing, the parties were, however, informed by the court that E.P., who had been called as a witness by both parties, was unable to appear as he was, at the time, on vacation in Austria.   Instead, he gave evidence by telephone.   At the end of the hearing, the applicant objected to this procedure.   He requested that the hearing should continue at a later date and that E.P. should be summoned to appear in person.   The court, however, rejected this request.         By judgment of 26 May 1993, the District Court found against the applicant.   It considered that he had failed to show that an employment agreement had been concluded between him and the company.         On 15 June 1993, the applicant appealed to the Labour Court.   He requested, inter alia, that the case be referred back to the District Court for a re-hearing during which E.P. should give evidence in person.   He further adduced, as new evidence, a tape recording of his conversations with E.P. on 4 April 1989 and the company's representative on 5 April 1989 as well as notes from the file of the Employment Office.         On 28 January 1994 the Labour Court decided that the District Court's hearing of E.P.'s testimony by telephone did not constitute a procedural error and that the case should thus not be referred back to the District Court.         On 7 February 1994 the Labour Court requested the applicant to submit a statement of evidence, which he did on 4 March.   Upon the court's request, further statements were submitted on 13 April and 28 April 1994.   With regard to the statement of 13 April, the applicant requested and was granted a four-week extension of the time-limit set by the court.   The defendant company replied to the applicant's statements on 20 May.   The applicant submitted further observations on 20 May and 2 June.         By decision of 8 June 1994, the Labour Court refused to admit the new evidence invoked by the applicant, as he had not shown a valid excuse for not having brought the evidence before the District Court.         On 16 September 1994 the Labour Court summoned the parties and E.P. to a hearing scheduled for 6 December 1994.   This hearing was, however, cancelled as E.P. was unable to appear.       On 28 February 1995 the Labour Court held its hearing in the case.   E.P. gave evidence in person.   The testimonies of the other witnesses who had given evidence in the District Court were played back during the hearing.         By a final judgment of 22 March 1995, the Labour Court upheld the District Court's judgment.     COMPLAINTS         Invoking Article 6 of the Convention, the applicant complains that the dispute between him and the company was not 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 invite the respondent Government to submit written observations on the admissibility and merits of the complaint concerning the length of the proceedings.   The remainder of the application was declared inadmissible.         The Government's observations were submitted on 29 August 1996 after an extension of the time-limit fixed for that purpose.   The applicant replied on 28 November 1996, also after an extension of the time-limit.   THE LAW         The applicant complains that the dispute between him and the company was not determined within a reasonable time.   He invokes Article 6 (Art. 6) of the Convention which, in so far as relevant, reads as follows:         "1.   In the determination of his civil rights and       obligations ..., everyone is entitled to a ... hearing       within a reasonable time ..."         In agreement with the parties, the Commission finds that Article 6 para. 1 (Art. 6-1) applies to the dispute in the present case.         The respondent Government contend, however, that the application is inadmissible as the applicant has failed to exhaust domestic remedies.   They argue that the applicant did not appeal against the District Court's decision of 27 June 1990 to request observations from two labour market organisations.   Noting that it is an open question whether such an appeal would have been successful, the Government nevertheless claim that the mere fact of filing an appeal would have prompted the District Court to pay particular attention to the general length of the proceedings in the case.       The Commission notes that the appeal referred to by the Government would have concerned only one measure taken by the courts and would have been lodged at a relatively early stage of the proceedings.   Further, the replies from the organisations in question were received within three months and the delay that may have occurred as a result of the request to the organisations was therefore very limited.   Moreover, in so far as one organisation was concerned, the measure had been requested by the applicant.   The Commission therefore finds that the remedy invoked by the Government did not relate to the applicant's present complaint of unreasonable delay and did not therefore have to be exhausted under Article 26 (Art. 26) of the Convention.         In agreement with the parties, the Commission considers that the period to be taken into account began on 26 July 1989 and ended on 22 March 1995.   The proceedings thus lasted five years and eight months.         As to reasonableness of the length of the proceedings, the Government maintain that the case itself was of an uncomplicated nature but that it was made more complicated due to the applicant's conduct. They contend that his conduct was the main reason for the delays in the case and that the complaint, therefore, is manifestly ill-founded.         The Government submit that the applicant, once in 1991 and once in 1994, requested and was granted extensions of time-limits for a total of two months and argue that neither these delays nor the delay caused by the failure of E.P., the witness invoked by the applicant, to appear at the Labour Court hearing can be attributed to the State. Moreover, the applicant's litigation was on the whole characterised by an inability to separate claims, legal grounds, evidence and pleading arguments.   Some of the evidence invoked by him was not essential and, on several occasions, the courts had to order him to clarify what evidence he invoked.   Furthermore, there were differences of opinion between the applicant and his counsel.   They submitted different written statements to the District Court.   The counsel also asked to be dismissed, which involved extra work for the court.   In the Government's opinion, the applicant is to blame for these delays which were caused by his manner of litigation.   Moreover, the applicant insisted that a main hearing be held in the District Court whereas the defendant company agreed to the case being determined without such a hearing.         The Government further maintain that the defendant company, on its part, caused a total delay of five months when it submitted its first observations in the case in 1989 and when the District Court had to ask for supplementary information at the end of 1992.   Furthermore, the District Court made justified efforts to make the parties agree on a friendly settlement.   These attempts caused a delay which should not be considered attributable to the State.         Finally, the Government contend that the matter at stake was not genuinely of importance for the applicant.   It was, for instance, not a matter of losing steady employment.   Allegedly, in the very unlikely event that the final judgment would have been in the applicant's favour, he stood to win less than 60,000 Swedish crowns (SEK), not including interest and legal costs.         The applicant submits that the case was uncomplicated and contests that his conduct delayed the case.   He argues that from the beginning of the proceedings he stated very clearly his claims, legal grounds and evidence.   In this connection, he states that the District Court did not ask for any clarification until at its preparatory hearing, which was held one year and seven months after the proceedings had been instituted by him.   Allegedly, the courts understood his statements and their subsequent requests for supplementary information were just made in an attempt to mislead him and prolong the case.         Further, the Labour Court began its preparation of the case on 7 February 1994 when it requested a statement of evidence from the applicant, almost eight months after he had filed his appeal. Moreover, E.P.'s failure to appear at the Labour Court hearing cannot be attributed to the applicant, as E.P. was going to give evidence in his duty as a public official at the Employment Office.   The applicant also contends, inter alia, that the District Court granted the defendant company too lengthy extensions of time-limits for its submissions and that the request for observations from the labour market organisations was unnecessary.   In total, the applicant claims that the delay of the case directly attributable to the state was three and a half years.   He also claims that the case was genuinely important to him, as, if he had won, he would have been awarded approximately 155,000 SEK in damages, interest and costs.         The Commission considers, in the light of the criteria established by the case-law of the Convention organs on the question of "reasonable time", and having regard to all the information in its possession, that an examination of the merits of the complaint is required.         For these reasons, the Commission, by a majority,         DECLARES THE APPLICATION ADMISSIBLE, without prejudging the       merits of the case.          M.-T. SCHOEPFER                            G.H. THUNE          Secretary                                President    to the Second Chamber                    of the Second Chamber