by Pirjo-Riitta OINAALA
The European Court of Human Rights (Fourth Section), sitting on 7 April 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 7 June 2007,
Having deliberated, decides as follows:
The applicant, Ms Pirjo-Riitta Oinaala, is a Finnish national who was born in 1948 and lives in Helsinki. The Finnish Government (“the Government”) were represented by their Agent, Mr Arto Kosonen from the Ministry for Foreign Affairs.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
In 1997 the applicant requested an earnings-related unemployment benefit from the Unemployment Fund (hereafter “the Fund”) of the Finnish Federation of Lawyers (Suomen lakimiesliitto, Finlands juristförbund). On 16 June 1997 her request was granted for the period from 4 April 1997 onwards. She continued to receive the benefit until 27 March 1998 (256 days), amounting to 12,351 euros (EUR) in total.
On 3 June 1998 the local employment office presented a labour policy statement concerning the applicant, claiming that in fact she had not been unemployed from 1 February 1997 onwards, as she had carried out salaried activities for the Finnish Association for Nature Conservation (Suomen luonnonsuojeluliitto, Finlands naturskyddsförbund).
On 17 August 1998 the Fund reviewed its earlier decision and refused the applicant unemployment benefit from 1 February 1997 onwards and requested her to return the amount already received.
On 9 February 1999 the Unemployment Benefit Appellate Board (työttömyysturvalautakunta, arbetslöshetsnämnden – hereafter “the Board”) annulled the Fund’s decision due to defects in the Fund’s procedures. The Fund should not have examined the matter anew without first having the Insurance Court annul the decision of 16 June 1997. Furthermore, the applicant had only requested benefit from 1 April, not 1 February.
On 28 September 1999 the Fund requested the Insurance Court to annul the decision of 16 June 1997. The court did so on 25 May 2000 and remitted the case to the Fund.
On 2 February 2001 the Fund requested the applicant to refund half of the benefit received, some EUR 6,175.
Following the applicant’s reply that the Fund had not taken any valid decision denying her the benefit in question, the Fund took such a decision on 27 June 2001. At the same time, the Fund also repeated its request for a refund of half of the benefit received and annulled its earlier refund request of 2 February 2001.
On 6 October 2003 the Board annulled the refund request of 2 February 2001 (the Fund’s own annulment being erroneous). On the same day the Board annulled all three decisions of 27 June 2001 due to the Fund’s incorrect procedures and remitted the case to the Fund for the second time.
By decisions of 13 January 2005 the Fund refused benefit from 4 April 1997 and requested repayment of half of the benefit paid.
On 17 June 2005 the Board dismissed the applicant’s appeal.
On 26 October 2006 the Insurance Court decided that the applicant was entitled to unemployment benefit for the entire period in question and ordered that there be no repayment of the amounts received by her.
B. Unemployment benefit for 1 June 1998 – 17 August 1999
On an unknown date the Fund rejected the applicant’s request for benefit for the period from 1 June 1998 to 17 August 1999.
On 17 June 2006 the Board dismissed the applicant’s appeal.
On 26 October 2006 the Insurance Court remitted the case to the Fund, stating that the applicant was entitled to benefit for the days when she had in fact been unemployed.
This matter is still pending before the Fund due to the pending refund process concerning the subsequent period (see below).
C. Unemployment benefit for 18 August – 26 November 1999
The applicant also requested unemployment benefit for the period starting on 18 August 1999. On 1 September 1999 the local employment office presented a labour policy statement concerning the applicant, according to which she had not been unemployed from 18 August 1999 onwards since she had failed to explain sufficiently how her situation had changed since 1997 and since she had received a salary from time to time.
On 20 December 1999 the Fund refused the request.
On 29 August 2003 the Board ordered the Fund to pay the applicant benefit for the days that she had in fact been unemployed.
On 13 January 2005 the Fund made three decisions, granting the applicant benefit from 18 August 1999 onwards, from 30 August 1999 onwards and from 1 November 1999 onwards. At the same time, the Fund informed the applicant that she had reached the 500-day payment limit for earnings-related unemployment benefits on 26 November 1999. No further benefit was to be paid until the applicant once more fulfilled the requirements.
The applicant appealed without success. Her appeal was dismissed by the Board on 17 June 2005 and by the Insurance Court on 26 October 2006.
On 19 January 2007 the Fund informed the applicant that, due to the Insurance Court’s decision of 26 October 2006, she had a right to benefit from 1 June 1998 onwards. Before that date the applicant had already received benefit for a total of 447 days, which left 53 days before the 500 day limit was reached. The applicant had already received benefit for 53 days starting on 18 August 1999. Since the applicant had thus reached the mentioned limit, in order to be able to pay her for the period starting on 1 June 1998, the decisions of 13 January 2005 had to be rectified, the benefit for those 53 days had to be refunded and new decisions needed to be taken with effect from 1 June 1998. The applicant refused to sign the attached forms that would have allowed the Fund to annul the decisions and take the new decisions without proceedings before the Board.
On 28 February 2007 the Fund requested the Board to annul the decisions of 13 January 2005.
On 12 September 2007 the Board annulled the four decisions and remitted the case to the Fund for new decisions.
On 13 November 2008 the Insurance Court stated that the Fund was to give new decisions with regard to the periods 18 through 20 August 1999, 30 August until 10 October 1999 and 1 to 26 November 1999. In effect, the Fund needed to refuse the benefit for the said dates since the 500-day time limit was exhausted before 18 August 1999, when the benefit was granted from 1 June 1998 onwards (see above).
The matter is still pending before the Fund.
D. The Deputy Parliamentary Ombudsman
On 17 June 2004 the applicant wrote to the Parliamentary Ombudsman complaining about the errors in the proceedings and the fact that the Fund had requested her several times to allow rectification of their errors, which she had refused to do.
In a decision of 21 March 2006 the Deputy Parliamentary Ombudsman stated that some parts of the proceedings in the applicant’s case had exceeded the average length. However, the case had been complex and there had been justified reasons to combine certain proceedings, which had resulted in certain delays. The Deputy Ombudsman admonished the Fund for their actions which had been partly against the law and partly against the requirement of a timely procedure. He stated that there was a clear need for further training of the Fund’s staff on the legislation, the procedural regulations and the importance of a timely procedure.
The applicant complained under Article 6 of the Convention about the length of the proceedings.
The applicant complained that the proceedings against her were excessively lengthy. She relied on Article 6 which reads insofar as relevant:
“In the determination of his civil rights and obligations ... everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”
1. The parties’ submissions
By a letter dated 5 February 2009 the Government informed the Court of their unilateral declaration, signed on the same date, with a view to resolving the issue raised by the application.
The declaration provided as follows:
“1. Whereas the efforts with a view to securing a friendly settlement of the case have been unsuccessful, the Government wishes to express – by way of a unilateral declaration – its acknowledgement that in the special circumstances of the present case the length of the proceedings have until this date failed to fulfil the requirement of “reasonable” referred to in Article 6 § 1 of the Convention.
2. Consequently, the Government is prepared to pay the applicant in compensation EUR 4,500 (four thousand five hundred euros). The sum includes EUR 4,000 for non-pecuniary damage and EUR 500 for costs and expenses (inclusive of VAT). In the Government’s view, this amount would constitute adequate redress and sufficient compensation for the impugned length of the said proceedings, and thus an acceptable sum as to quantum in the present case.
3. The total sum will be payable within three months from the date of notification of the decision pursuant to Article 37 § 1 (c) of the Convention. In the event of the failure to pay this sum within the said three-month period, the Government undertake to pay simple interest on it, from expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.
4. In the light of above, the Government would suggest that the circumstances of the present case allow your Court to reach the conclusion that there exists ‘any other reason’, as referred to in Article 37 § 1 (c) of the Convention, justifying your Court to discontinue the examination of this part of the application, and that, moreover, there are no reasons of a general character, as defined in Article 37 § 1 in fine, which would require the further examination of the case by virtue of that provision. Accordingly, the Government invites your Court to strike this part of the application out of its list of cases.”
In a letter of 28 February 2009 the applicant expressed the view that as the case was still pending at national level there was no reason to strike the case out of the list of cases and requested that the examination of the case be continued. As to the compensation offered by the Government, the applicant considered it inadequate.
2. The Court’s assessment
The Court reiterates that both parties filed submissions with the Registry in the context of friendly settlement negotiations (Article 38 § 1 (b) of the Convention and Rule 62 of the Rules of Court). No settlement was reached.
Article 37 of the Convention provides that the Court may, at any stage of the proceedings, decide to strike an application out of its list of cases where the circumstances lead to one of the conclusions specified under (a), (b) or (c) of paragraph 1 of that Article. Article 37 § 1 (c) enables the Court in particular to strike a case out of its list if:
“for any other reason established by the Court, it is no longer justified to continue the examination of the application”.
Article 37 § 1 in fine includes the following proviso:
“However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires.”
The Court points out that, under certain circumstances, it may be appropriate to strike out an application, or part thereof, under Article 37 § 1 (c) of the Convention on the basis of a unilateral declaration filed by the respondent Government even if the applicant wishes the examination of the case to be continued. In deciding whether or not it should strike the length of proceedings complaint out of its list, the Court will examine carefully the terms of the declaration made by the Government in the light of the principles emerging from its case-law, in particular its judgments in cases such as Tahsin Acar v. Turkey [GC] (no. 26307/95, §§ 75-77, ECHR 2003-VI); Meriakri v. Moldova ((striking out), no. 53487/99, 1 March 2005); Swedish Transport Workers Union v. Sweden ((striking out), no. 53507/99, 18 July 2006); Van Houten v. the Netherlands ((striking out), no. 25149/03, ECHR 2005 IX), Kalanyos and Others v. Romania ((no. 57884/00, § 25, 26 April 2007)), and K.K. v. Finland ((striking out), no. 7779/04, 27 November 2007).
The Court observes that the various proceedings lasted some eight years and that some are still pending. The case has been dealt with by three levels of jurisdiction. The Court notes that the Government’s declaration contains a clear acknowledgment that the “reasonable time” requirement has not been respected within the meaning of Article 6 § 1 of the Convention. The Court is satisfied that the total amount offered to the applicant by the Government in compensation for non-pecuniary damage and costs and expenses, that is 4,500 euros, constitutes adequate redress for the excessive length of the proceedings having regard to all the circumstances of the case and to its awards in comparable length of proceedings cases.
Furthermore, in accordance with Article 37 § 1 in fine, the Court finds no special circumstances regarding respect for human rights as defined in the Convention and its Protocols which require the continued examination of the case. In view of the above, it is appropriate to strike the case out of the list.
For these reasons, the Court unanimously
Takes note of the terms of the respondent Government’s declaration in respect of the length of proceedings complaint under Article 6 § 1 of the Convention and of the modalities for ensuring compliance with the undertakings referred to therein;
Decides to strike the application out of its list of cases in accordance with Article 37 § 1 (c) of the Convention.
Lawrence Early Nicolas Bratza