AS TO THE ADMISSIBILITY OF
Application No. 12446/86
by Katarina ALSTERLUND
against Sweden
The European Commission of Human Rights sitting in private
on 5 May 1988, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
G. SPERDUTI
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
G. BATLINER
H. VANDENBERGHE
Mrs. G.H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
Mr. H.C. KRÜGER Secretary to the Commission
Having regard to Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 1 September
1986 by Katarina Alsterlund against Sweden and registered on
29 September 1986 under file No. 12446/86;
Having regard to the report provided for in Rule 40 of the
Rules of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The facts of the case, as submitted by the applicant, may be
summarised as follows.
The applicant is a Swedish citizen, born in 1930. She is a
judge and resides at Gothenburg, Sweden.
Since 1975 the applicant has been a judge at the District
Court of Gothenburg (Göteborgs tingsrätt). After taking up her work
with the Court the applicant noticed certain practices which in her
opinion were contrary to Swedish law and also to the European
Convention on Human Rights. It was not unusual, for instance, that in
divorce cases a guardian ad litem (god man) was appointed for the
defendant and that a hearing was held without the defendant having
been summoned to appear. The Court also applied Swedish law in a
manner which was prejudicial to the rights of arrested or detained
persons under Article 5 para. 3 of the Convention. As the applicant
insisted on her rights and duties as a judge, she was disliked by the
Court's administration as well as by public prosecutors, lawyers and
the trade unions to which judges and other staff at the Court belong.
In 1981 the applicant addressed herself repeatedly to the Chancellor
of Justice (justitiekanslern) requesting him to intervene in her
favour, which gave rise to a certain publicity in the press.
In the beginning of 1982, the situation was discussed in the
Administrative Board of the District Court (tingsrättens kollegium).
On 10 February 1982, the Administrative Board decided to transfer the
applicant as from 1 March 1982 from the chamber for criminal cases in
which she was then working to another chamber for real estate cases.
In the meantime, on 11 January 1982, the Administrative Board
had also decided to request the Chancellor of Justice to consider
possible disciplinary measures against the applicant. At the
applicant's request, the Chancellor of Justice referred the question
to the National Disciplinary Board (statens ansvarsnämnd) which
decided on 10 May 1983 that there was no reason to take any
disciplinary measures against the applicant.
The decision to transfer the applicant to another chamber was
not subject to any appeal.
However, basing herself on the 1974 Act on Proceedings in
Labour Disputes (lagen om rättegången i arbetstvister), the applicant
sued the Swedish State as her employer before the District Court of
Stockholm (Stockholms tingsrätt) on 16 February 1982 requesting the
Court to find that the decision of transfer was null and void and that
the State was obliged to pay damages to her due to the illegal
transfer. The applicant furthermore requested the Court, as an
interim measure, to defer the execution of the transfer decision while
the case was pending. On 26 February 1982, however, the District
Court of Stockholm refused to take any interim measures, a decision
which was subsequently upheld by the Labour Court (arbetsdomstolen)
on 15 March 1982.
When the applicant had worked for four years at the chamber
for real estate cases, the Administrative Board of the Gothenburg
District Court decided, in January 1986, to transfer the applicant
to another chamber which dealt with criminal cases. The applicant
objected to this transfer since the circumstances surrounding the
previous transfer, in her opinion, had not yet been clarified.
Accordingly she again requested the District Court of Stockholm to
order, as an interim measure, the postponement of her transfer.
However, the applicant's request was refused by the Court on
3 February 1986 and the decision was upheld by the Labour Court on
6 March 1986.
On 27 March 1986 the applicant informed the District Court of
Stockholm that she withdrew her suit against the State since she no
longer had any confidence in the Court. Furthermore she requested
the Court to award her costs. On 14 May 1986 the District Court of
Stockholm struck the case off its list of cases. It found, however,
that there was no reason to deviate from the normal rule that the
party which revokes his or her claim should pay the other party's costs.
Accordingly the applicant was ordered to pay 15,000 Swedish crowns in
costs to the State.
The applicant appealed to the Labour Court about the decision
on costs. However, the Labour Court upheld the decision on 19 June
1986.
COMPLAINTS
The applicant's different complaints relate to the disputes
between her and the Administrative Board of the Gothenburg District
Court.
1. The applicant first alleges violations of Article 6 para. 1 of
the Convention in that she did not have a hearing before an
independent and impartial tribunal. In her opinion neither the
District Court of Stockholm nor the Labour Court could be considered
as independent or impartial when they decided on 3 February and
6 March 1986 respectively not to postpone the execution of the
transfer decision of the Administrative Board of the Gothenburg
District Court while her suit against the employer, the Swedish State,
was pending. Nor could these courts be considered as being independent
or impartial in dealing with her case and in deciding on 14 May and
19 June 1986 respectively to award costs to the Swedish State. The
District Court of Stockholm took into account the interests of its own
administration in upholding an administrative structure similar to
that of the Gothenburg District Court, and in the Labour Court there
were three judges, one of whom represented employers' interests and
one coming from a trade union which had already been involved in the
decision to transfer the applicant. Moreover, the applicant had
sought, in her struggle for increased legal security in the courts, to
combat the influence of the administration and the trade unions, but
in the Labour Court she was confronted with a court where the majority
represented employers' and trade unions' interests.
2. The applicant alleges a further violation of Article 6 para. 1
of the Convention in that she did not have access to a tribunal
established by law. She points out in this respect that the Act on
Proceedings in Labour Disputes did not designate a specific court but
that it depended on her trade union whether her case would be brought
before the Labour Court or the District Court. She considers that the
fact that the trade union can choose the court is contrary to Article
6 para. 1.
3. The applicant further complains that her rights under Article
6 para. 1 of the Convention have been violated on the ground that the
Administrative Board of the District Court of Gothenburg, when
deciding on her transfer in 1982, did not only violate her "civil
rights" but also in reality sentenced her for an "offence" in
violation of Article 6 para. 1.
4. Since the applicant's transfer was in fact a sentence for a
criminal offence, she further alleges that she did not enjoy the
guarantees granted to persons charged with criminal offences under
Article 6 paras. 2 and 3 of the Convention.
5. The applicant considers that her right to freedom of
expression under Article 10 of the Convention has been violated in
that the decision to transfer her to another chamber as well as the
request which was made to the Chancellor of Justice were the result of
her criticism of the District Court of Gothenburg and its President.
6. With regard to Article 11 of the Convention, the applicant
alleges that her right to freedom of association has been violated,
because it is a consequence of the Swedish legislation that a judge
who is not supported by his trade union cannot in reality bring
proceedings against the State as his employer. In the applicant's
case, this has made her dependent on her trade union, which could
affect her independence as a judge and which also violates her right
to freedom of association.
7. The applicant further alleges a violation of Article 13 of the
Convention. She submits in this regard that the Labour Court is not
an independent and impartial tribunal in disputes where the employee
is not supported by his trade union. As the Labour Court was the
highest court available to the applicant, it follows that she did not
have an effective remedy either in respect of the decision of
10 February 1982 to transfer her to another chamber or in respect of
the two decisions of the Stockholm District Court of 3 February and
14 May 1986.
8. The applicant finally alleges a violation of Article 14 of the
Convention in that Swedish law has made access to an effective,
impartial and economically justifiable examination by a court in
matters regarding a judge's exercise of his or her duties dependent on
whether the judge is a member of a trade union and enjoys its support.
THE LAW
1. The applicant first alleges that the District Court of
Stockholm and the Labour Court could not be regarded as independent
and impartial tribunals in the meaning of Article 6 para. 1 (Art. 6-1)
of the Convention when they decided first on the applicant's request
for an interim order suspending the execution of the decision to
transfer her to another court chamber, and then, after she had
withdrawn her claim against the State, on procedural costs.
Article 6 para. 1 (Art. 6-1), first sentence provides:
"In the determination of his civil rights and obligations or
of any criminal charge against him, everyone is entitled to
a fair and public hearing within a reasonable time by an
independent and impartial tribunal established by law."
The Commission first notes that in the proceedings which the
applicant brought before the District Court of Stockholm she attacked
the decision to transfer her to another court chamber. Although she
brought the proceedings as a labour dispute against her employer, and
although the relations between employer and employee normally fall
under the concept of "civil rights and obligations" in Article 6 (Art. 6)
of the Convention (cf. No. 6504/74, Dec. 7.12.77, D.R. 12 p. 5),
it is doubtful whether the particular issue which the applicant raised
in the court proceedings falls within the scope of that Article.
However, the Commission does not find it necessary to decide
this question, since the applicant withdrew her claim, and the Courts
were in fact only called upon to decide two issues, namely, first -
before she withdrew her claim - whether an interim order should be
issued, and secondly - after the withdrawal - whether the applicant
should be ordered to pay the defendant's procedural costs.
As regards the interim measures requested by the applicant,
the Commission recalls its case-law according to which a decision on
such measures does not constitute a determination of "civil rights
and obligations" (No. 5263/71, Dec. 14.12.72, Collection 42 p. 97;
No. 7990/77, Dec. 11.5.81, D.R. 24 p. 57 and No. 8988/80,
Dec. 10.3.81, D.R. 24 p. 198).
As regards the procedural costs, the Commission notes that
this is a subsidiary matter which arises in many different kinds of
proceedings. Questions of procedural costs may also arise in
proceedings regarding subject-matters which clearly fall outside the
scope of Article 6 para. 1 (Art. 6-1) of the Convention, and it would
then not be reasonable to require a special procedure, satisfying the
requirements of that provision, for the determination of these costs.
The Commission therefore considers that the decision on the subsidiary
issue of procedural costs does not involve a determination of civil
rights and obligations and it therefore falls outside the scope of
Article 6 para. 1 (Art. 6-1).
It follows that the District Court of Stockholm, in its
decisions of 3 February and 14 May 1986, and the Labour Court, in
its decisions of 6 March and 19 June 1986, did not determine the
applicant's civil rights and obligations and that her complaint is
therefore, in this regard, incompatible ratione materiae with the
provisions of the Convention within the meaning of Article 27 para. 2
(Art. 27-2).
2. The applicant further complains under Article 6 para. 1
(Art. 6-1) of the Convention that she did not have access to a tribunal
established by law, and she bases this complaint on the argument that
it depended on the position taken by her trade union whether her case
would be brought before the Labour Court or the District Court of
Stockholm.
The Commission recalls that it has expressed certain doubts as
to the applicability of Article 6 para. 1 (Art. 6-1) to the issue of
the applicant's transfer. In any event, the Commission finds it
sufficient to point out in this regard that the applicant was able to
bring proceedings before the District Court of Stockholm which is a
tribunal established by law and which, under the 1974 Act on
Proceedings in Labour Disputes, was competent to deal with a labour
dispute brought before it by the applicant against the Swedish State.
It follows that this part of the application is manifestly ill-founded
within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
3. The applicant alleges a further violation of Article 6 para. 1
(Art. 6-1) of the Convention in that the Administrative Board of the
District Court of Gothenburg, when deciding on the applicant's
transfer in 1982, did not only violate her "civil rights" but also in
reality sentenced her for an "offence" in violation of Article 6 para. 1
(Art. 6-1).
It is clear in the present case that the matter to be
determined by the Administrative Board of the Gothenburg District
Court did not as such concern a disciplinary measure, this matter
having been referred to the Chancellor of Justice and subsequently to
the National Disciplinary Board, but merely whether the applicant
should work in one or the other chamber of the Court. The Commission
notes that the applicant considered such transfer as being of a
punitive character. Having regard, however, to the case-law of the
Commission and the European Court of Human Rights (cf. e.g. Eur. Court
H.R., Engel and Others judgment of 8 June 1976, Series A No. 22) the
Commission finds that such transfer decisions contain no elements
which could make the applicant the object of a criminal charge within
the meaning of Article 6 para. 1 (Art. 6-1) of the Convention.
It follows that this part of the application is incompatible
ratione materiae with the provisions of the Convention within the
meaning of Article 27 para. 2 (Art. 27-2).
4. The applicant further complains she did not, in regard to her
transfer to another court chamber, enjoy the guarantees granted to
persons charged with criminal offences under Article 6 paras. 2 and 3
(Art. 6-2, 6-3) of the Convention.
The Commission has already found (see under 3 above) that the
applicant was not charged with any criminal offence when it was
decided to transfer her to another chamber. Consequently, Article 6
paras. 2 and 3 (Art. 6-2, 6-3) were not applicable to her case, and
this complaint must also be rejected as being incompatible ratione
materiae with the Convention within the meaning of Article 27 para. 2
(Art. 27-2).
5. The applicant alleges a violation of Article 13 (Art. 13) of the
Convention in that she did not have an effective remedy in respect of
the decision of 10 February 1982 to transfer her to another chamber
and in respect of the two decisions of the Stockholm District Court of
3 February and 14 May 1986. In this regard she alleges that the
Labour Court, which was the highest court available to her, was not an
independent and impartial tribunal.
The Commission notes that the applicant could, and did, raise
this matter in labour dispute proceedings before the District Court of
Stockholm. The Commission finds no reason to question the
effectiveness of this remedy.
As regards the complaint that there was no effective remedy
against the two decisions of the District Court of Stockholm, the
Commission recalls its case-law, according to which Article 13 (Art.
13) does not require that there should be several degrees of court
jurisdiction (No. 5849/72, Dec. 16.12.74, D.R. 1 p. 46).
Consequently, the applicant did not have, under Article 13, a right to
a remedy against the decisions of the District Court of Stockholm.
It follows that this part of the application is manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
6. The applicant finally complains of violations of Articles 10,
11 and 14 (Art. 10, 11, 14) of the Convention and the Commission has
examined these complaints as submitted by her. However, the
Commission finds that the applicant has not substantiated her
complaints regarding these alleged violations. It follows that this
part of the application is manifestly ill-founded within the meaning
of Article 27 para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)