AS TO THE ADMISSIBILITY OF
by Peter BLADH
The European Court of Human Rights (Third Section), sitting on 10 November 2009 as a Chamber composed of:
Boštjan M. Zupančič,
Ann Power, judges,
and Santiago Quesada, Section Registrar,
Having regard to the above application lodged on 14 November 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:
1. The applicant, Mr Peter Bladh, is a Swedish national who was born in 1956 and lives in Eskilstuna. He was represented before the Court by Mr J. Södergren, a lawyer practising in Stockholm. The Swedish Government (“the Government”) were represented by their Agent, Mr B. Sjöberg, of the Ministry for Foreign Affairs.
A. The circumstances of the case
2. The facts of the case, as submitted by the parties, may be summarised as follows.
3. Since the 1980s the applicant has been a member of the Graphic Workers Unemployment Fund (Grafikernas arbetslöshetskassa).
4. In the summer of the year 2000, for some unknown reason, the applicant either did not qualify for unemployment benefit or ceased to qualify for it. Accordingly, in order to discuss different employment programmes, the applicant had a meeting with his unemployment officer at the Public Employment Agency (Arbetsförmedlingen). The unemployment officer informed the applicant that by virtue of a “re-qualification” option set out in sections 12 and 19 of the Unemployment Insurance Act (Lagen om arbetslöshetsförsäkring, 1997:238; hereinafter “the 1997 Act”), the applicant could re-qualify for another three hundred days of unemployment benefit if he worked as a trainee for the municipality for seventy hours per month for “six calendar months”.
5. Accordingly, the applicant signed a contract and on 7 August 2000 began work as a trainee for the municipality at a plant for recycling electronic devices. The contract stipulated that the training programme was to end on 6 February 2001. During this period it appears that the applicant was paid by the Graphic Workers Unemployment Fund.
6. On 21 December 2000 Parliament passed a law (no. 2000:1460) which amended section 19 of the 1997 Act, thereby abolishing the re-qualification option through trainee work. The law entered into force on 5 February 2001, that is, the day before the applicant’s training programme was scheduled to end, and had the effect that in future only conventional employment could re-qualify for a further unemployment benefit period.
7. The applicant maintained that during the winter of 2000, when he became aware of the amendment to the 1997 Act, he tried several times in vain to contact his officer at the Public Employment Agency and the Graphic Workers Unemployment Fund, because if the amendment were applied strictly and formally, he would be disqualified from a further period of unemployment benefit. Thus he wanted the finishing date of his trainee work contract, namely 6 February 2001, to be brought forward, since in his view, in accordance with the provisions of the original section 19 of the 1997 Act, he would have fulfilled the requirement of working seventy hours per month for “six calendar months” by the end of January 2001.
8. After the applicant had concluded the training programme, he requested a further period of unemployment benefit. His request was refused by the Graphic Workers Unemployment Fund on 14 March 2001, and again on 2 July 2001, because he did not fulfil the criteria set out in section 12 of the 1997 Act.
9. The applicant appealed to the County Administrative Court (länsrätten) in Stockholm. On 21 August 2002 his request for an oral hearing in order to hear evidence from the officials at the Public Employment Agency and the Graphic Workers Unemployment Fund was refused.
10. By a judgment of 18 December 2002 the County Administrative Court found against the applicant. It reiterated that, under the transitional provisions of the amendment to the 1997 Act, only a training programme completed by 5 February 2001 could qualify for a further unemployment benefit period. The applicant had completed his trainee work on 6 February 2001, thus his situation was not covered by the transitional provisions.
11. On 11 May 2004, following a further appeal, the Administrative Court of Appeal (kammarrätten) in Stockholm granted the applicant leave to appeal against the first-instance judgment. The appellate court also requested an opinion from the Inspection for Unemployment Insurance (Inspektionen för arbetslöshetsförsäkring)
12. The applicant requested an oral hearing before the Administrative Court of Appeal. He stated that he wanted to hear the head of the Graphic Workers Unemployment Fund as regards the date on which the Fund had become aware of the amendment to the 1997 Act and its implications. He also wanted to ask him certain questions of a complex nature, for instance whether it would be considered a breach of official duty if an official of the Fund had advance knowledge of legislative amendments but refused to inform a member of the Fund thereof. By a decision of 11 November 2004, the court found an oral hearing unnecessary and refused the applicant’s request.
13. On 18 November 2004 the applicant made further submissions in writing, including a request for compensation for loss of income caused by the unpredictable decision of Parliament to amend the legislation.
14. By a judgment of 17 December 2004 the Administrative Court of Appeal upheld the judgment of the County Administrative Court, stating as follows:
“Firstly, [the applicant’s] request for compensation for loss of income must be considered as a claim for damages. As it is not for the Administrative Court of Appeal to examine such a claim, the applicant’s request in this respect is refused.
The question in the case is how section 19, subsection 1 of the Unemployment Insurance Act – [the requirement] that the individual must have participated in and, unless hindered by special reasons, completed vocational training mentioned therein – should be understood. Due to the ambiguity of the notion carried out previously used, the notion completed was chosen to clarify that, in addition to having participated in a training programme, it was a condition that such programme be finished. The purpose of the provision was to prevent that an insured person, when he had participated for a sufficiently long period of time, would be able to cut short the programme in order to obtain unemployment benefit instead (Government Bill 1988/89:100, annex 12, p. 94). In these circumstances, and since the transitional provision of the amendment which entered into force on 5 February 2001 unambiguously states that the conditions in section 19 of the Unemployment Insurance Act must have been fulfilled at the date of the entry into force, the Administrative Court of Appeal finds that the appeal must be rejected.”
15. A request by the applicant for leave to appeal to the Supreme Administrative Court (Regeringsrätten) was refused on 17 May 2006.
B. Relevant domestic law
16. Before the amendments introduced by law no. 2000:1460, section 12 of the Unemployment Insurance Act stipulated that, in order to become eligible for unemployment benefit, the insured had to “have had gainful employment for at least 6 months and carried out work for at least 70 hours per calendar month” over a period of twelve months immediately prior to the date of unemployment. Section 19 of the Act, entitled “re-qualification requirement”, stipulated that time during which the insured had participated in and completed – unless hindered by special reasons – vocational training was equal to “gainful employment” (as set out in section 12 of the Act).
17. The amendments introduced by law no. 2000:1460 abolished the re-qualification option set out in section 19, which had the effect that trainee work could no longer be considered equal to “gainful employment” unless completed by 5 February 2001.
18. Under the transitional provisions, employment programmes which previously re-qualified for a further unemployment benefit period would continue to qualify, if they had been completed by the time the amending law entered into force, and if a request for unemployment benefit had been submitted no later than 31 March 2001.
19. The applicant complained under Article 6 of the Convention that he had been refused an oral hearing before the County Administrative Court and the Administrative Court of Appeal.
20. He also claimed that the outcome of the proceedings was in breach of Article 1 of Protocol No. 1 to the Convention.
A. Exhaustion of domestic remedies
21. The respondent Government submitted that the applicant had failed to exhaust domestic remedies. It referred to a judgment of the Supreme Court of 9 June 2005, whereby the court had awarded compensation for pecuniary and non-pecuniary damage on account of the excessive length of criminal proceedings. It further referred to a decision of 4 May 2007 and judgments of 21 September and 28 November 2007 of the same court, in which it had examined compensation claims on the basis of Articles 2, 5 and 8 of the Convention and had, in the two former case, found the individual entitled to compensation for non-pecuniary damage due to violations of Articles 5 and 8 respectively. Thus, in the Government’s view, Swedish law provided a remedy in the form of compensation for both pecuniary and non-pecuniary damage in respect of any violation of the Convention, including the violations alleged in the present case. In their submission, that remedy had been available to the applicant at the time when he lodged the present application or was at least currently available.
22. The applicant disputed the Government’s submissions and claimed that the remedy suggested was not effective in regard to the applicant’s complaints.
23. The Court has set out the general principles pertaining to the exhaustion of domestic remedies in a number of judgments. In Akdivar and Others v. Turkey ([GC], 16 September 1996, Reports of Judgments and Decisions 1996-IV) it held as follows (further case references – in brackets – deleted):
“66. Under Article  normal recourse should be had by an applicant to remedies which are available and sufficient to afford redress in respect of the breaches alleged. The existence of the remedies in question must be sufficiently certain not only in theory but in practice, failing which they will lack the requisite accessibility and effectiveness (...).
Article  also requires that the complaints intended to be made subsequently at Strasbourg should have been made to the appropriate domestic body, at least in substance and in compliance with the formal requirements and time-limits laid down in domestic law and, further, that any procedural means that might prevent a breach of the Convention should have been used (...).
24. In the present case, the Court first notes that the applicant, in the administrative proceedings before the Swedish courts, argued, in substance, the issues now raised before the Court and thus, in that respect, did what was required of him in order to afford the national authorities the opportunity to remedy the violations alleged by him.
25. The Government claimed, however, that the applicant failed to avail himself of available remedies capable of affording him sufficient redress in the form of compensation for the alleged violations. In this respect, the Court notes that, of the domestic judgments referred to by the Government, only one was delivered before the introduction of the present application. That judgment – the Supreme Court’s judgment of 9 June 2005 – concerned damages for the excessive length of criminal proceedings. The circumstances of the present case are quite different: firstly, the applicant did not claim that the proceedings were too lengthy, but alleged that his rights under the Convention had been violated on account of the lack of an oral hearing and as his right to property had not been respected; secondly, the proceedings were not criminal in nature, but concerned a request for unemployment benefit which was determined by the administrative courts. In these circumstances, it has not been shown that, at the time of the applicant’s lodging the present application, there existed a remedy which was able to afford redress in respect of the violations alleged by the applicant.
26. The Government further claimed that the existence of such a remedy had, in any event, become certain through several decisions and judgments issued by the Supreme Court in 2007 and that, consequently, the applicant had had the opportunity to claim compensation before the Swedish courts after the introduction of the present application. Leaving open the question whether the applicant could have been obliged to institute domestic compensation proceedings after the date of introduction, the Court notes, again, that the underlying issues in the cases mentioned by the Government were different from the ones raised in the present case. While the Court welcomes the development in Swedish law concerning the possibility to claim compensation on the basis of alleged violations of the Convention, it must be kept in mind that this development is a rather recent one. Consequently, it cannot generally be required of an individual applicant to pursue a compensation claim in respect of Convention issues that have not been determined by the domestic courts or are not closely related to issues that have been so determined. The reason for this is that, in many of these cases, the existence of the remedy cannot yet be considered as sufficiently certain. This consideration is even more important in a situation where the decisions allegedly establishing the remedy were issued after the introduction of the application before the Court.
27. The Court finds that, in the instant case, it could not be required of the applicant to pursue the remedy invoked by the Government. The Government’s objection as to the exhaustion of domestic remedies must therefore be dismissed.
B. The merits of the complaints
1. The lack of an oral hearing
28. The applicant claimed that the lack of an oral hearing in the administrative courts constituted a violation of Article 6 of the Convention, the relevant parts of which provide the following:
“1. In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
29. The Government maintained that the present complaint was manifestly ill-founded. They submitted that, while the case before the administrative courts concerned the question whether the applicant fulfilled the criteria under section 12 of the 1997 Act, the applicant demanded oral hearings in order to hear the officials of the Public Employment Agency and the Graphic Workers Unemployment Fund, essentially with the purpose to examine whether these officials had committed breaches of official duty. The purpose of the requested hearings was thus not to bring additional evidence in the case, but was instead closely linked to his claim for damages on the basis of loss of income. Consequently, in the Government’s view, the courts were justified in refusing the requests for an oral hearing.
30. The applicant maintained that there were no exceptional circumstances in the case making it unncessary to hold an oral hearing. He submitted, inter alia, that his reason for requesting a hearing was to have the opportunity to question the officials in order to find out why they had ignored his request to have the training programme ended at least one day earlier than scheduled. He claimed that the statements of the officials ought to have been decisive for the question whether there were “special reasons” to depart from the requirement that the programme had to have been “completed”. A hearing would also have given him an opportunity to answer any possible questions regarding his future possibility to support himself.
31. The Court notes that it has not been disputed that the applicant’s claim for unemployment benefit, as such, concerned a “civil right” within the meaning of Article 6 § 1 of the Convention.
32. The Court reiterates that in proceedings before a court of first and only instance the right to a “public hearing” under Article 6 § 1 normally entails an entitlement to an “oral hearing”. However, the absence of a hearing before a second or third instance may be justified by the special features of the proceedings at issue, provided a hearing has been held at first instance. Accordingly, unless there are exceptional circumstances that justify dispensing with a hearing, the right to a public hearing under Article 6 § 1 implies a right to an oral hearing at least before one instance. The exceptional character of the circumstances that may justify dispensing with an oral hearing essentially comes down to the nature of the issues to be decided by the competent national court, not to the frequency of such situations. It does not mean that refusing to hold an oral hearing may be justified only in rare cases. For example, the Court has recognised that disputes concerning benefits under social-security schemes are generally rather technical and that such disputes may accordingly be better dealt with in writing than in oral argument. Moreover, the demands of efficiency and economy may require that hearings not be held systematically in this sphere of law (see, among other authorities, Salomonsson v. Sweden, no. 38978/97, §§ 34, 36 and 38, 12 November 2002, and Miller v. Sweden, no. 55853/00, §§ 29-30, 8 February 2005, both with further references).
33. In the present case, the Court notes that the applicant requested an oral hearing in order to hear officials of the Public Employment Agency and the Graphic Workers Unemployment Fund. He stated that he wished to ask questions as to when the Fund had become aware of the amendment to the 1997 Act and its implications and as to whether the failure of informing him of the amendments could be considered a breach of official duty.
34. The question in the case was, however, how section 19 of the 1997 Act should be understood. The matter to be decided by the courts was thus purely one of law. No questions of fact needed to be resolved. Furthermore, as regards the interpretation of section 19, the issue whether the applicant had had special reasons not to complete the training programme did not arise, as the applicant in fact had completed the programme in question. The reason why he did not qualify for further unemployment benefit was instead due to the fact that, following the amendments to the 1997 Act, only programmes which had been completed by 5 February 2001 fulfilled the requirements.
35. In the Court’s view, the applicant’s wish to hear the above-mentioned officials must be seen as an attempt to elucidate whether they had acted in an improper manner. However, it was not for the courts to decide, in the proceedings in question, whether the officials had breached their official duty. Rather, the officials’ conduct was of no relevance to the question of law with which the courts were seized.
36. The Court further notes that, following the appellate court’s decision not to hold an oral hearing, the applicant had an opportunity, of which he availed himself, to submit further written submissions, including comments on the opinion from the Inspection for Unemployment Insurance.
37. Having regard to the above, the Court considers that the question of law determined by the courts could adequately be resolved with the applicant’s written submissions and that, accordingly, there were exceptional circumstances which justified dispensing with a hearing in the case.
38. It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.
2. The right to property
39. The applicant complained that, in the circumstances of the case, the refusal to grant him a further period of unemployment benefit constituted a deprivation of property in breach of Article 1 of Protocol No. 1 to the Convention. This provision reads as follows:
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
40. The Government submitted that there had been no deprivation of property. They argued that it was the date of the application for unemployment benefit that was decisive in assessing whether the conditions were met. That assessment was based on the regulations as they were at the time of application. There was no pre-existing right to unemployment benefit. Nor was it possible to promise any such right in advance. Consequently, the applicant could not have made any advance claim to property in the form of unemployment benefit. A legitimate expectation to such property could only be adjudicated at the time of application. At that point in time the legislation had been clear, precise and well-defined. The abolition of the opportunity to re-qualify had been published in accordance with applicable regulations. Moreover, it was clear from the documents in the case that the applicant had been informed of the future, new provisions before the end of the year 2000.
41. The applicant maintained that his rights under Article 1 of Protocol No. 1 had been violated. In his view, the decisive moment must have been the date when he started the work training programme. At that time, he had had a right to re-qualify for a further period of unemployment benefit. The later decision to refuse his request for such benefit was not based on legislation that was clear, precise and reasonable when he entered the programme because, at that time, the law had not yet been enacted. Especially considering the fact that he had contributed to the system by paying fees to the unemployment agency, he had had a legitimate expectation – if not a right – to be given a chance to complete the training programme, and thereby re-qualify, before this opportunity was abolished. Instead, Parliament had amended the law and enacted transitional provisions which resulted in arbitrary effects with no practical or principal justification and which imposed an unreasonable burden on him, who was in a vulnerable position. In the applicant’s opinion, a transitional scheme applicable to all those who had already entered a training programme should have been adopted.
42. The Court first considers that the right to unemployment benefit, like the one at issue in the present case, is a pecuniary right to which, as such, the guarantees in Article 1 of Protocol No. 1 apply (see Stec and Others v. the United Kingdom [GC], nos. 65731/01 and 65900/01, §§ 47-54, ECHR 2005-X).
43. However, an applicant can allege a violation of Article 1 of Protocol No. 1 only in so far as the impugned decisions related to his “possessions” within the meaning of this provision. Possessions can be either “existing possessions” or assets, including claims, in respect of which the applicant can argue that he or she has at least a legitimate expectation of obtaining effective enjoyment of a property right. By way of contrast, the hope of recognition of a property right which it has been impossible to exercise effectively cannot be considered a possession within the meaning of Article 1 of Protocol No. 1 (see Kopecký v. Slovakia [GC], no. 44912/98, § 35, ECHR 2004-IX, with further references).
44. In the present case, the Court notes that, in the summer of 2000, the applicant was not eligible for unemployment benefit and thus had no proprietary interest falling within the ambit of Article 1 of Protocol No. 1. By virtue of the old section 19 of the 1997 Act, he could, however, “re-qualify” for such benefit by participating in and completing vocational training covering a period of six months. The question therefore arises whether the applicant, by enrolling in a training programme, could be said to have had a “legitimate expectation” of being granted unemployment benefit at a later date.
45. In this respect, the Court reiterates that one of the conditions that had to be met for such a grant was that the training programme had been “completed”. Thus, at no point in time during the programme did the applicant qualify for unemployment benefit; it was only upon completion of the programme that such a right could arise. On 21 December 2000, Parliament decided on amendments to the 1997 Act which, together with the transitional provisions, had the effect of abolishing this “re-qualification” opportunity altogether as from 5 February 2001, the day before the applicant completed his training programme. As is clear from the facts of the case, the applicant became aware of the amendments and their effect during the winter of 2000.
46. In the Court’s view, the applicant cannot be considered to have had a “legitimate expectation” of enjoying a property right, because during the period when he underwent vocational training he did not yet fulfil the conditions for being granted unemployment benefit and when the training had been completed – and the applicant applied for a further period of benefit – the possibility of “re-qualification” through vocational training no longer existed. In these circumstances, the applicant did not have a “possession” within the meaning of Article 1 of Protocol No. 1.
47. It follows that Article 1 of Protocol No. 1 is not applicable to the present complaint and that it must be rejected as being incompatible ratione materiae with the provisions of the Convention, in accordance with Article 35 §§ 3 and 4.
For these reasons, the Court unanimously
Declares the application inadmissible.
Santiago Quesada Josep Casadevall