AS TO THE ADMISSIBILITY OF
by Seija Kyllikki HUUHTANEN
The European Court of Human Rights (Fourth Section), sitting on 13 October 2009 as a Chamber composed of:
David Thór Björgvinsson,
Nebojša Vučinić, judges,
and Lawrence Early, Section Registrar,
Having regard to the above application lodged on 15 December 2005,
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 applicant, Ms Seija Kyllikki Huuhtanen, is a Finnish national who was born in 1944 and lives in Helsinki. She was represented before the Court by Mr Markku Fredman, a lawyer practising in Helsinki. The Finnish Government (“the Government”) were represented by their Agent, Mr Arto Kosonen of the Ministry for Foreign Affairs.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant had been employed by the Unemployment Appeal Board (työttömyysturvalautakunta, arbetslöshetsnämnden) since 1996. On 4 April 2002 she resigned from her post due to stress caused by a bad working atmosphere.
The applicant applied for unemployment benefit from her unemployment fund from 5 April 2002 onwards. On 21 August 2002 the fund refused the benefit for the period from 5 April to 3 July 2002. It found that the applicant had not presented any valid reason for her resignation. The fund’s finding was based on the binding statement of the labour commission (työvoimatoimikunta, arbetskraftskommissionen) which had reached this conclusion by four votes to two.
On an unspecified date the applicant requested rectification of the unemployment fund’s decision. This was rejected, again on the basis of the statement of the labour commission concluded by four votes to two.
Before appealing against the fund’s decision to the Unemployment Appeal Board, which was her previous employer and the alleged cause of her resignation, the applicant contacted the Ministry of Justice to ask how her right to impartial proceedings was going to be secured in her case. After receiving a positive reply from the Ministry, she appealed to the Appeal Board, claiming that she had had a valid reason to resign. She claimed that she did not like the working methods at the board, that she had been bullied and that she had developed health problems. She had applied for new jobs all the time while working for the board but without success. She felt that her only option was to resign since otherwise she would have become ill.
The applicant’s case was first prepared in the Unemployment Appeal Board by a referendary, Mr M.E., and was then transferred to another referendary.
On 30 April 2003 the Unemployment Appeal Board rejected the applicant’s appeal. It found that a person who resigns without a valid reason is not entitled to unemployment benefit for three months. The applicant had not had a medically valid reason to resign nor had she presented clear evidence about the alleged bullying. The internal conflicts at the work place should have been solved in some other way than by resigning. The applicant had thus not presented a valid reason for her resignation.
On 9 July 2003 the applicant appealed to the Insurance Court (vakuutusoikeus, försäkringsdomstolen), reiterating the grounds of appeal already submitted in the proceedings before the Unemployment Appeal Board. Moreover, she claimed that all referendaries on the board, and especially Mr M.E., were biased against her and should have been prevented from examining her case.
The Insurance Court asked the Unemployment Appeal Board for some clarifications, which the applicant commented on.
In 2004 and 2005 the applicant called the Insurance Court several times and asked about the state of the proceedings in order to accelerate them. On 2 March 2005 the applicant wrote to the Minister of Justice and complained about the way her case had been treated. On 12 June 2005 the applicant contacted the Secretary-General (kansliapäällikkö, kanslichefen) of the court and asked that the court speed up the proceedings.
On 16 June 2005 the Insurance Court first found that the referendary attached to the Unemployment Appeal Board, Mr M.E., had not participated in the deliberations and had not drafted the decision. In any case, according to the legislation in force, the partiality claims had to be made as soon as the parties learnt about the fact causing the partiality. She had not given a valid reason for failing to do so. As to the merits, the court rejected the applicant’s appeal by referring to the reasoning given in the Unemployment Appeal Board’s decision.
B. Relevant domestic law
According to section 9, subsection 1, of the Unemployment Security Act (työttömyysturvalaki, lagen om utkomstskydd för arbetslösa, Act no. 602/1984, as in force at the relevant time), those who have resigned from their employment without a valid cause shall not be entitled to a daily unemployment allowance for a period of three months. According to section 3, subsection 3, of the same Act, a labour commission shall issue an opinion, binding on the unemployment fund, concerning the preconditions provided in section 9.
The Unemployment Security Act was revised in 2002 (Act no. 1290/2002). The provisions applicable to the present case have remained unchanged in the revised Act.
Chapter 12, section 3, of the revised Unemployment Security Act provides that the Unemployment Appeal Board is the first-level appeal authority in matters pertaining to unemployment security. The Government shall appoint the Unemployment Appeal Board’s chairman, vice chairmen and other members and their deputies for five years at a time. The chairman, vice chairmen and lawyer members and their deputies shall hold a degree entitling them to hold the post of judge. When taking up their mandates the chairman, vice chairmen and members shall take a judge’s oath or give a judge’s affirmation as provided in the Code of Judicial Procedure (oikeudenkäymiskaari, rättegångsbalken). The Unemployment Appeal Board rules on matters concerning the administration of justice in a division, with at least four and at most six members, which is chaired by the chairman or vice chairman of the Board. The decisions are taken by presentation which means that a referendary presents a memorandum and a draft decision to the members of the court.
Chapter 12, section 3, of the revised Unemployment Security Act further provides that, unless otherwise prescribed elsewhere, the provisions of the Administrative Judicial Procedure Act (hallintolainkäyttölaki, förvaltningsprocesslagen; Act no. 586/1996) shall apply to the handling of cases by the Board. As far as partiality is concerned, the Administrative Judicial Procedure Act refers to Chapter 13 of the Code of Judicial Procedure.
Chapter 13, section 1, of the Code of Judicial Procedure provides that a judge shall not hear a case if he or she is disqualified on any of the grounds mentioned in the Chapter. This applies also to the other members of the court, the referendaries, record keepers and others who make decisions in court or may be present when the case is decided. The impartiality of a court is an absolute procedural requirement and the court must examine the partiality issues ex officio.
According to Chapter 13, section 6, of the Code of Judicial Procedure, a judge shall be disqualified, inter alia, if, on the basis of a service relationship or otherwise, the judge has such a relationship to a party to the matter that, especially in view of the nature of the matter at hand, there is justifiable reason to doubt the impartiality of the judge in the matter. The travaux préparatoires (HE 78/2000) clarify that a partiality issue arises, for example, when the judge is the employer of the party.
Chapter 13, section 8, of the Code of Judicial Procedure provides that a partiality claim must be made as soon as the parties learn about the fact causing the partiality. This provision allows the parties to make a partiality claim if the partial court or judge has not for some reason acknowledged the partiality ex officio.
A. Lack of independence and impartiality
The applicant complained under Article 6 § 1 of the Convention that she had not had a fair hearing by an independent and impartial tribunal as her case had been examined in the first instance by her former colleagues at the Unemployment Appeal Board, which itself had been a party to the proceedings. Moreover, the appeal proceedings in the Insurance Court had been biased as both instances were linked by hierarchy and by personnel.
Article 6 § 1 of the Convention reads for the relevant parts as follows:
“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law.”
The applicant pointed out that she had already, during the proceedings in the unemployment fund and labour commission, claimed that none of the employees of the Unemployment Appeal Board should be regarded as impartial to decide her case. She had made this clear also when contacting the Ministry of Justice. The persons examining her case in the Board had not been persons employed after the applicant had resigned but they had been her co-workers who had been fully aware of her situation. In any event, these persons had been under an obligation to withdraw from the case if they found themselves biased (see Ekeberg and Others v. Norway, nos. 11106/04, 11108/04, 11116/04, 11311/04 and 13276/04, § 44, 31 July 2007). It could thus not be said that the applicant had received a fair trial before an independent and impartial tribunal as the members of the Board had been, if not subjectively then at least objectively, biased to decide her case.
The applicant maintained that the appeal proceedings before the Insurance Court had not been able to remedy the situation either. Many of the referendaries of the Insurance Court were former referendaries of the Board and vice versa. When considering the faults in the proceedings before the Board and the fact that the Insurance Court had confirmed the Board’s decision on the merits, the proceedings before the court had not been able to remedy the shortcomings before the Board.
The Government maintained that the applicant had not specified in her appeal that the Unemployment Appeal Board or some of its employees would have been disqualified from examining her appeal. As the Board had had no doubts about its impartiality, it had decided her appeal as any other appeal. As the Board was the only appellate body of first instance, the applicant’s appeal could not be reassigned to another organ. The fact that the applicant had worked for the Board could not alone disqualify the entire personnel of the Board. As concerned the Insurance Court, the Government pointed out that the applicant had not substantiated in which manner the court’s status as an independent and impartial special court had been jeopardised when it had processed the applicant’s case.
The Court notes first that it is common ground that the Unemployment Appeal Board is a “tribunal” within the meaning of Article 6 § 1 of the Convention. The Court considers that it is essentially the requirement of “impartiality” that is in issue in the present case (see Langborger v. Sweden, 22 June 1989, § 32, Series A no. 155). The existence of impartiality for the purposes of Article 6 § 1 of the Convention must be determined according to a subjective test, that is on the basis of the personal conviction of a particular judge in a given case, and also according to an objective test, that is by ascertaining whether the judge offered guarantees sufficient to exclude any legitimate doubt in this respect (see Wettstein v. Switzerland, no. 33958/96, § 42, ECHR 2000-XII). It should be reiterated that the principles established in the Court’s case-law apply to jurors as they do to professional judges and lay judges (see Holm v. Sweden, 25 November 1993, § 30, Series A no. 279 A; and Pullar v. the United Kingdom, 10 June 1996, § 29, Reports of Judgments and Decisions 1996 III).
As to the subjective test, the personal impartiality of a judge must be presumed until there is proof to the contrary. In the present case, the applicant has adduced no evidence to suggest that the members of the Unemployment Appeal Board were personally biased (see Pullar v. the United Kingdom, cited above, § 43).
Under the objective test, it must be determined whether, quite apart from the judge’s personal conduct, there are ascertainable facts which may raise doubts as to his or her impartiality. In this respect even appearances may be of a certain importance. What is at stake is the confidence which the courts in a democratic society must inspire in the public. Accordingly, any judge in respect of whom there is a legitimate reason to fear a lack of impartiality must withdraw. This implies that in deciding whether in a given case there is a legitimate reason to fear that a particular judge lacks impartiality, the standpoint of the party concerned is important but not decisive. What is decisive is whether this fear can be held to be objectively justified (see Pullar v. the United Kingdom, cited above, § 44).
In the present case the applicant had resigned from her post in the Unemployment Appeal Board due to stress caused by the allegedly bad working atmosphere. The applicant claimed that the bad working atmosphere was caused by her co-workers without specifying any particular persons. It was exactly the question of whether the cause of her resignation was a valid reason to resign which had to be decided by her previous employer when it examined her case in the first instance.
The principle of impartiality is an important element in support of the confidence which the courts must inspire in a democratic society (see Sramek v. Austria, 22 October 1984, § 42, Series A no. 84). Moreover, the Court observes in this connection that Article 6 § 1 of the Convention imposes on the Contracting States the duty to organise their legal systems in such a way that their courts can meet each of the requirements of that provision, including the independence and impartiality of the tribunals.
The Court finds that the kind of double role that the Unemployment Appeal Board played may raise objectively justified doubts about its impartiality. Even though it is not necessary for the present purposes to identify the reasons for the allegedly bad working atmosphere, it is possible that in a relatively small work place, of around 30 persons in total, all legal personnel might have been aware of the applicant’s situation to a certain extent. However, it is worth noting that the applicant did not raise the partiality issue before the Unemployment Appeal Board.
The Court notes, however, that it is not necessary to examine whether the proceedings before the Unemployment Appeal Board were impartial or not as long as any possible lack of impartiality can be said to have been remedied by the Insurance Court proceedings.
As to the subjective test, the Court notes that the applicant has adduced no evidence to suggest that the members of the Insurance Court were personally biased.
As to the objective test, the applicant claimed at a general level that many of the referendaries of the Insurance Court were former referendaries of the Board and vice versa. However, the Court notes that it does not necessarily follow that a member of the Insurance Court who has previously worked for the Unemployment Appeal Board would be prejudiced vis-à-vis any applicant appealing from the Board to the Insurance Court simply because that member had previously worked for the Board. In each individual case it must be decided whether the person in question is familiar with an applicant’s situation to such a degree as to indicate a lack of impartiality on the part of the tribunal. No such personal links exist in the present case.
In these circumstances, the Court is of the opinion that the applicant’s fear of lack of independence and impartiality of the Insurance Court, due to its hierarchical and personnel links to the Unemployment Appeal Board, cannot be regarded as being objectively justified. Consequently, the Insurance Court had been independent and impartial and the proceedings before it had in any event been able to remedy the alleged lack of impartiality of the Unemployment Appeal Board (see Le Compte, Van Leuven and De Meyere v. Belgium, 23 June 1981, § 51, Series A no. 43; and more recently Frankowicz v. Poland, no. 53025/99, § 60, 16 December 2008).
Accordingly, this part of the application is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.
B. Non-communication of a document
The applicant also complained under Article 6 § 1 of the Convention that she had not had a fair hearing as the memorandum drafted by the referendary of the Unemployment Appeal Board had been transferred from the Board to the Insurance Court without her being given an opportunity to comment on it, even though it had been the opposing party’s opinion.
The Government maintained that the case file sent by the Unemployment Appeal Board to the Insurance Court had not contained any non-public documents of which the applicant had not been informed. The applicant had been given various opportunities to comment on all the statements made by the opposing party, which she had also used. It could not be substantiated in the light of the material available that the applicant had not been given an opportunity to comment on the material on the basis of which the Insurance Court had processed her appeal.
The Court points out that the fairness of proceedings must be assessed with regard to the proceedings as a whole (see Dallos v. Hungary, no. 29082/95, § 47, ECHR 2001-II). One of the elements of the broader concept of a fair trial is the principle of equality of arms, which requires each party to be given a reasonable opportunity to present his or her case under conditions that do not place him or her at a substantial disadvantage vis-à-vis his opponent (see, among many other authorities, Nideröst-Huber v. Switzerland, 18 February 1997, § 23, Reports of Judgments and Decisions 1997 I). That right means, in principle, the opportunity for the parties to a trial to have knowledge of and comment on all evidence adduced or observations filed, with a view to influencing the court’s decision (see Lobo Machado v. Portugal, 20 February 1996, § 31, Reports of Judgments and Decisions 1996 I). This position is not altered when the observations are neutral on the issue to be decided by the court (see Göç v. Turkey [GC], no. 36590/97, § 55, ECHR 2002-V) or, in the opinion of the court concerned, they do not present any fact or argument which has not already appeared in the impugned decision. Only the parties to a dispute may properly decide whether this is the case; it is for them to say whether or not a document calls for their comments (see Nideröst-Huber, cited above, § 29).
The Court notes that, in the instant case, the only issue is whether or not the memorandum drafted by the referendary during the Unemployment Appeal Board proceedings was among those documents which had been transferred from the Unemployment Appeal Board to the Insurance Court. The parties disagree on this. The Court considers that, in the light of the material available, it cannot be substantiated that the Insurance Court had access to the memorandum when examining the case. Therefore, this part of the application is unsubstantiated and must be rejected as being manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Lawrence Early Nicolas Bratza