EKHOLM v. FINLAND
Inadmissible
Nicolas Bratza
The applicant, Mr Stefan Ekholm, is a Finnish national who was born in 1951 and lives in Espoo. 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.