CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 10 juillet 2007

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Casadevall ,   Mr   S. Pavlovschi ,   Mr   L. Garlicki ,   Ms   L. Mijović ,   Mr   J. Šikuta ,   Mrs   P. Hirvelä, judges , and Mr T.L. Early , Section Registrar , Having regard to the above application lodged on 11 February 2003, Having regard to the partial decision of 14 March 2006, Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant, Having deliberated, decides as follows:           THE FACTS The applicant, Mr Stefan Ekholm, is a Finnish national who was born in 1951 and lives in Espoo. The circumstances of the case The facts of the case, as submitted by the parties, may be summarised as follows. Since 15 May 1987 the applicant had been registered as an unemployed person. The Unemployment Fund of Commercial College Graduates ( Merkonomien työttömyyskassa, Merkonomernas arbetslöshetskassa, “the Fund”) granted him an unemployment allowance by three decisions issued in 1987, 1991 and 1993. On 12 October 1993, a representative of the Fund informed the police that it intended to report an offence by the applicant for allegedly having obtained unemployment allowances by fraud. On 18 November 1993, the Fund filed a criminal complaint. The applicant was interrogated by the police for the first time on 21 May 1995. On 18 January 1996, the Fund, using an extraordinary procedure, requested the Insurance Court ( vakuutusoikeus, försäkringsdomstolen ) to annul the Fund’s decisions in 1987, 1991 and 1993 to pay an unemployment allowance to the applicant. It referred to a statement of the Espoo Employment Office of 10 January 1996, according to which the applicant had been self-employed since May 1987. On 25 June 1998, having received the applicant’s observations, the Insurance Court annulled the Fund’s decisions and sent the case back to it for fresh consideration. One of the judges deciding on the case was M.T. The Insurance Court’s legal officer (referendaire) noted in his/her memorandum that “Furthermore, the Fund reported an offence by [the applicant], which led to a police investigation. Apparently no charges have been lodged yet.” On 21 and 22 September 1998, the Fund issued 13 decisions, by which it considered, inter alia , that it had paid the applicant unwarranted unemployment allowances and training allowances during various periods between years 1987 – 1994 and ordered him to repay them, in a total amount of 410,324 Finnish marks (FIM, about 69,011.90 euros (EUR)). On 30 October 1998, the applicant appealed to the Unemployment Appeal Board ( työttömyysturvalautakunta, arbetslöshetsnämnden ). Having obtained observations from the parties, the Unemployment Appeal Board upheld the Fund’s decisions on 30 June 2000 as far as they concerned unemployment allowances paid between the years 1987 – 1991. On 17 August 2000, the applicant appealed to the Insurance Court. He denied having had any business activity during the years he received unemployment allowances. He also requested an oral hearing. On 12   October 2001 the Insurance Court asked the applicant whether he wished to maintain his request for an oral hearing, and if so, to name his witnesses. It further informed the applicant that the provisions of the Act on Cost-free Trial ( laki maksuttomasta oikeudenkäynnistä, lag om fri rättegång ) would not apply to the proceedings. According to the applicant, he subsequently informed the court that he would not request an oral hearing as he could not afford the costs. On 4 September 2002, the applicant requested the court to speed up the proceedings. On 16 January 2003, the Insurance Court upheld the decision save for repayment of unemployment allowance which he had received before 1989 to which a common period of limitation of 10 years applied. Judge M.T. sat on the bench. The decision was final in that the applicant did not have a right to appeal against it under the domestic law. Subsequently, on 20 February 2003, the applicant, using an extraordinary procedure, requested the Supreme Court ( korkein oikeus, högsta domstolen ) to annul the Insurance Court’s decision for procedural error, alleging that M.T. was biased as he had decided on the case both in 1998 and in 2003. He further alleged that he had been denied a right to an oral hearing as he could not obtain legal aid. Having issued interim measures, the Supreme Court rejected most of the applicant’s requests on 15 April 2004. It however examined his application about the alleged bias of M.T., finding no grounds to believe that M.T. had been partial in deciding the applicant’s case twice. It reasoned, inter alia , that the legal nature of the two cases was different and found that M.T. did not have any preconceived ideas that would have cast doubt on his impartiality when the second decision was taken. COMPLAINTS The applicant complained under Article 6 §§ 1 and 2 of the Convention that the proceedings were flawed for a number of reasons. In particular: 1. the proceedings were excessively long; 2. the Insurance Court’s judge M.T. decided a part of his case in 1998 and another part in 2003 and was therefore biased on the second occasion; 3. he was refused free legal aid by the Insurance Court, which meant that he could not have an oral hearing to hear witnesses; 4. the Insurance Court’s legal officer’s (referendaire’s) memorandum concerning the annulment application included comments which violated the presumption of innocence and his right to enjoy a good reputation. THE LAW The applicant complained under Article 6 about the length and unfairness of the proceedings. Article 6 § 1, insofar as relevant, reads as follows: “1. In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing within a reasonable time by [a] ... tribunal...” Article 6 § 2 reads as follows: “2.     Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law. ” A. The alleged length of proceedings The period to be taken into account 1. The Government submitted that Article 6 § 1 did not apply as far as the proceedings concerned extraordinary appeals or corresponding procedures. They pointed out that the Insurance Court’s proceedings from 18 January 1996 to 25 June 1998 did not address the question of the applicant’s right to an unemployment allowance or the question of any recovery of allowances which had been paid. Consequently, in the Government’s view, the proceedings to be taken into account did not begin until 30 October 1998 when the applicant appealed to the Unemployment Appeal Board. They stated that the proceedings came to an end on 16   January 2003 when the Insurance Court issued its decision, arguing that the further proceedings before the Supreme Court in examining the reversal or annulment of the Insurance Court’s decision also fell outside the ambit of Article 6 § 1. The applicant disagreed. He considered that the relevant proceedings began on 12 October 1993, when the Fund informed the police of its intention to request the applicant to repay the unemployment allowance. In the applicant’s submission, the criminal investigation was the only reason for the Fund to file repayment claims against him. Further, in his view the Fund’s request to the Insurance Court in January 1996 was not an extraordinary appeal to which Article 6   §   1 would not apply. He argued that the action taken by the Fund was based on the pending criminal investigation and it was necessary for the Fund to first request annulment of its previous decisions in order to institute a repayment claim against him. In the applicant’s opinion the proceedings ended with the final decision of the Supreme Court of 15 April 2004. He argued that the Supreme Court suspended the enforcement of the Insurance Court’s decision before it had examined his annulment request. Consequently, he was left in a state of uncertainty as to when the proceedings came to an end. The Court observes at the outset that the pre-trial investigation was a different set of proceedings which cannot be considered together with the repayment proceedings when assessing the reasonableness of the length of the overall proceedings. Further, while it is true that the examination of an annulment or reopening request, being extraordinary remedies, does not fall within the ambit of Article 6 § 1 (see mutatis mutandis Toive Lehtinen   v. Finland , no. 43160/98, §   38, 22   May 2007), the Court notes that in the instant case, as pointed out by the applicant, the annulment proceedings were a prerequisite for the Fund to have examined anew the applicant’s entitlement to an unemployment allowance. The Court will accordingly take this period into account when assessing the reasonableness of the length of the proceedings. Thus, the period to be taken into consideration began on 18   January 1996. The date on which the proceedings ended is likewise a matter of dispute between the parties. It was common ground that on 16 January 2003 the Insurance Court issued its decision in the repayment proceedings. Consequently, up to that date the proceedings had lasted some seven years for four levels of jurisdiction. The applicant however considered that the additional time that elapsed in the annulment proceedings until 15   April   2004 should be taken into account in assessing the overall length. On that assumption, the overall length would be some eight years and one month for five levels of jurisdiction. However, for the reasons set out below the Court does not need to decide this question, as it appears that, in any event, the length of the proceedings did not exceed a reasonable time. Reasonableness of the length of the proceedings The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicants and the relevant authorities and what was at stake for the applicants in the dispute (see, among many other authorities, Frydlender   v. France [GC], no. 30979/96, § 43, ECHR 2000-VII). The exercise of the right to a hearing within a reasonable time is subject, in civil cases, to diligence being shown by the parties concerned (see Pretto and Others v. Italy , judgment of 8 December 1983, Series A no. 71, pp. 14-15, §   33). The Court has also held that certain cases belong to a category that by its nature calls for special expedition (such as custody of children (see Hokkanen v. Finland , judgment of 23 September 1994, Series A no. 299 ‑ A, § 72), civil status and capacity (see Mikulić v.   Croatia , no. 53176/99, § 44, ECHR 2002-I) or labour disputes (see Frydlender , cited above, § 45, Launikari v. Finland , no. 34120/96, §   36, 5 October 2000). The instant case concerned the applicant’s entitlement to an unemployment allowance and his obligation to repay it. It was not a complex dispute, although the Court takes note of the Government’s argument that the case documents were extensive and detailed. As to the conduct of the parties, the Court finds that none of the periods before the different instances may be regarded as excessive in length when viewed separately. Although both stages of the proceedings before the Insurance Court lasted over two years, the proceedings did not lie dormant as the parties were requested to submit their observations. As regards the matter at stake, the Court observes that the case concerned civil claims, in which the applicant was a defendant.   During the proceedings the amount   which the applicant had been   ordered to   repay was reduced by the Insurance Court. Furthermore, it cannot be overlooked that the applicant was not obliged to pay back the unemployment allowance   until the proceedings had come to an end, and that length of time taken to conclude the proceedings   was   accordingly in many respects   in the applicant’s interests.   It   is also to be noted that the   applicant’s case   did not   belong to a category that by its nature called for special expedition. Having regard to all the circumstances of the case, in particular the absence of any apparent periods of inactivity and the nature of the case, the Court finds that the total length of the proceedings did not exceed the “reasonable time” criteria. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article   35 §§   3 and   4 of the Convention. B. The remainder of the application 2. The applicant also complained that the Insurance Court judge M.T. lacked impartiality due to his previous participation in the annulment proceedings. The Government emphasised that the first decision of that court concerned the annulment of a final decision of the Fund, and it only took a stand on the question whether there existed conditions prescribed by law for reopening the proceedings. The latter decision concerned the merits of the case, i.e. the applicant’s entitlement to an unemployment allowance. Referring to the decision of the Supreme Court of 15 April 2004, the Government did not find the applicant’s suspicions to be objectively justified. The applicant maintained that the two stages of the same proceedings were based on the same facts. For him it was evident that M.T. must have had a predetermined view on the merits of the case to be decided in 2003. T he Court reiterates that the existence of impartiality for the purposes of Article 6 § 1 must be determined according to a subjective test, that is to say whether the judge held any personal prejudice or bias in a given case, and also according to an objective test, that is to say by ascertaining whether the tribunal itself and, among other aspects, its composition offered sufficient guarantees to exclude any legitimate doubt in respect of its impartiality (see, inter alia , Fey v. Austria , judgment of 24 February 1993, Series A no. 255, p. 12, §§ 28 et seq.). As to the subjective test, the personal impartiality of a judge must be presumed until there is proof to the contrary. Under the objective test, when determining whether there were ascertainable facts capable of raising doubts as to the impartiality of a judge, even appearances may be of a certain importance. The objective impartiality may be jeopardised if a judge takes part in several consecutive stages of the same set of proceedings (see, e.g ., the Piersack v. Belgium judgment of 1   October   1982, Series A no. 53, pp. 14-15, § 30). However, the mere fact that a judge has already taken pre-trial decisions cannot by itself be regarded as justifying concerns about his impartiality. What matters is the scope and nature of the measures taken by the judge before the trial. Likewise, the fact that the judge has detailed knowledge of the case file does not entail any prejudice on his part that would prevent his being regarded as impartial when the decision on the merits is taken. Nor does a preliminary analysis of the available information mean that the final analysis has been prejudged (see Morel v. France , no. 34130/96, § 45, ECHR 2000 ‑ VI). In the present case it is true that judge M.T. took part in the proceedings against the applicant concerning the question whether there existed conditions for annulling the Fund’s previous decisions and, later, in the decision whether the applicant was entitled to unemployment allowance and whether he was obliged to repay any allowance to which he was not entitled. The Court notes, however, that judge M.T.’s participation in the first-mentioned proceedings was limited to examining the grounds for annulment, whereas in the second set of proceedings he decided on the merits of the case. The legal questions before the courts in the two proceedings were thus distinctly different (see mutatis mutandis , Nikula v. Finland (dec.), no. 31611/96, 30   November 2000). There is no indication that in the annulment proceedings M.T. would have formed any views on the issues to be finally determined in the civil proceedings against the applicant. Against this background the Court does not find that the applicant’s concerns were objectively or subjectively justified. Accordingly, there is no appearance of a violation of Article 6 in this respect. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.   3. The applicant also complained that he was denied access to a fair hearing as he was not granted free legal aid before the Insurance Court. The Court notes that the applicant did have access to court, including the appellate court (the Insurance Court) but the proceedings are alleged to have been unfair as he had to waive his right to an oral hearing due to the impossibility of obtaining free legal assistance. However, the right to an oral hearing is not an absolute one. A hearing may not be necessary, for example when it raises no questions of fact or law which cannot be adequately resolved on the basis of the case file and the parties’ written observations (see, inter alia , Döry v. Sweden, no.   28394/95, § 37, 12 November 2002). The Court cannot find it established that the mere fact that the applicant was not able to apply for free legal aid for the Insurance Court proceedings to cover, inter alia , the cost of a possible oral hearing, hindered his right to a fair trial. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.   4. Finally, the applicant complained that the Insurance Court’s referendaire’s memorandum in the proceedings which ended on 25   June   1998 had violated his right to be presumed innocent and his right to enjoy a good reputation. The Court notes that the impugned statement merely set out the factual background to the case and cannot be construed as presumptive of the applicant’s guilt. The Court finds that this complaint is entirely unsubstantiated. It follows that also this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.   5. In the light of the above conclusions, Article 29 § 3 of the Convention should therefore be discontinued and the remainder of the application declared inadmissible.   For these reasons, the Court unanimously Declares inadmissible the remainder of the application.   T.L. Early   Nicolas Bratza   Registrar   President