AS TO THE ADMISSIBILITY OF
Application No. 12719/87
by STEEN BILLE FREDERIKSEN and Others
against Denmark
The European Commission of Human Rights sitting in private
on 3 May 1988, the following members being present:
MM. J.A. FROWEIN, Acting President
C.A. NØRGAARD
S. TRECHSEL
F. ERMACORA
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 8 January 1987
by Steen Bille Frederiksen and Others against Denmark and registered
on 12 February 1987 under file No. 12719/87;
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 applicants, may be
summarised as follows.
The applicants:
Mr. Steen Bille Frederiksen, born in 1949, residing at Frederikssund;
Mr. Benny Stunal, born in 1951, residing at Kokkedal;
Mr. Nils Skovby, born in 1945, residing in Copenhagen;
Mrs. Winnie Kathrine Andersen, born in 1946, residing at Karise;
Mrs. Inga Bente Kirkegaard Jensen, born in 1943, residing at Frederikssund;
Mr. Per Brandt, born in 1952, residing at Veksø;
Mr. Ejgil Larsen, born in 1935, residing at Frederikssund;
are all Danish citizens. Before the Commission they are represented
by their lawyer, Mr. Henrik Christrup, of the law firm Gorrisen & Partners,
Copenhagen, Denmark.
I. Particular facts of the case
Until 23 May 1984 the applicants were employed as bus drivers,
under usual labour contract conditions, by the Traffic Company of the
Metropolitan Area (Hovedstadsområdets Trafikselskab (HT)) which is
under the authority of the Metropolitan Council (Hovedstadsrådet), a
public authority. The HT services four districts in and around
Copenhagen and has approximately 4,800 employees of whom approximately
3,700 are chauffeurs. The chauffeurs of District 1 are organised
under the Traffic Employers Trade Union (Trafikfunktionaerernes
Fagforening (TF)) which is a sub-division of the Danish Municipal
Workers Union (Dansk Kommunalarbejder Forbund (DKA)) while the drivers
of the remaining districts are organised in the The Danish Trade Union
for Unskilled Workers (Specialarbejderforbundet i Danmark (SID)).
On 30 October 1983 one of the applicants, Mr. Per Brandt
was transferred from District 1 to District 2. He was accordingly
requested to leave the TF in order to become a member of the SID. He
realised, however, that he was not obliged to do so and thus refused,
his main reason for this being that the SID contributed economically
to the Social Democratic Party, the political views of which he did
not share.
This situation led to certain controversies among the
chauffeurs of the district in question and in March 1984 a number of
spontaneous strikes took place in this district as well as in other
districts aimed at making Mr. Brandt change his mind and join the SID.
On 16 April 1984, however, other chauffeurs decided to
withdraw from the SID. This triggered off new strikes, the legality
of which was brought before the Labour Court (Arbejdsretten). At a
preparatory meeting held immediately the SID and the DKA admitted that
the strikes were illegal and promised to order their members back to
work. Nevertheless the HT decided on the same day to exempt Mr. Brandt
from duty until further notice. Subsequently all strikes were called
off and the chauffeurs resumed work.
The following week, however, more chauffeurs withdrew from the
SID and during the month of May 1984 the situation created thereby led
to a number of demonstrations and strikes aimed at forcing the
chauffeurs to join the SID again or at forcing the Metropolitan Council
to dismiss the bus drivers who had left the SID.
The demonstrations and strikes elevated the case to one of
national concern and on national television the Danish Prime Minister
declared that it would be a "crystal clear" violation of Danish
legislation if the Metropolitan Council would dismiss the chauffeurs.
Nevertheless, on 22 and 23 May 1984, the strikes and blockades reached
their peak, including inter alia hospitals, post offices, garbage
collections, newspapers and the national television networks.
Eventually on the night of the 23 May 1984 the Metropolitan Council
decided to give in and dismissed the applicants from their jobs as
chauffeurs at the HT. The dismissals received by the applicants read
as follows:
"In the light of the conflict which had arisen concerning
your person and which led to a number of strikes in the
bus service in the Metropolitan area since 3 April 1984
HT will have to dismiss you from your job as chauffeur in
the Traffic Company of the Metropolitan Area with the usual
notice until the end of September 1984, in order to secure a
normal bus service."
The applicants received their dismissals on 24 May 1984.
Within two days all strikes were called off.
By letter of 1 June 1984 from the Ministry of the Interior
(Indenrigsministeriet) the Minister informed the Metropolitan Council
inter alia as follows:
"It is therefore with great regrets that I note that the
Metropolitan Council, which is a public authority, has taken
a decision which is clearly in violation of the applicable
legislation, in particular as this legislation aims at
protecting the individual citizen.
Since the Metropolitan Council's decision of dismissal has
been communicated to the persons concerned a question of
annulments in accordance with the Act on Municipal
Administration (Den kommunale Styrelseslov) cannot be
taken into consideration. However, in the opinion of the
Government there is a considerable public interest in
obtaining an authoritative decision stating that the
Metropolitan Council's decision of dismissing the chauffeurs
was a clearly illegal decision which could not in the
present case be characterised as taken as an emergency
measure.
I have, therefore, requested the Solicitor General
(Kammeradvokaten)to institute proceedings against the
Metropolitan Council in order to establish through the
courts that the decision of dismissal is null and void
and that the eight chauffeurs therefore remain employed."
Proceedings against the Metropolitan Council were instituted by
the Solicitor General in the High Court (Landsretten). However, these
proceedings were adjourned due to the fact that the applicants also
instituted proceedings in the High Court against the Metropolitan
Council as well as against the SID. The applicants maintained that the
dismissals were in violation of the Danish Constitution and other
applicable domestic legislation, in particular Act No. 285 of 9 June
1982 concerning Protection against Dismissals because of Trade Union
Relations (Lov nr. 285 af 9 juni 1982 om beskyttelse mod afskedigelse
på grund af foreningsforhold). They also referred to Article 11 of the
European Convention on Human Rights.
The applicants argued that they did not want to be members of
the SID, for which reason they had either refused to become members or
resigned and hence joined the Free Trade Union of Denmark (Danmarks
Frie Fagforening). It was for this reason the Metropolitan Council
had dismissed them. The applicants claimed that the dismissals should
be regarded as null and void with the result that the applicants
should be considered still employed by the Metropolitan Council. In
the alternative the applicants claimed that they should receive
compensation.
The Ministry of the Interior applied for and was granted leave
to join the proceedings as a co-plaintiff (biintervenient) supporting
the applicants' principal plea.
The High Court pronounced judgment in the case on 17 May 1985.
In its judgment the High Court stated as follows:
"After an evaluation of the evidence submitted the Court
finds that the Metropolitan Council's decision to dismiss
the plaintiffs on 23 May 1984 was based on the Council's
legal obligation to secure the bus service in the
Metropolitan area. The plaintiffs cannot be considered as
having proved that the Metropolitan Council pursued or aimed
at pursuing an illegal purpose by dismissing them due to their
trade union relations even if these problems caused a
stand-still of the bus service in the area as well as
disturbances inter alia in other places of work during the
time up to the dismissals.
On the other hand the Court does not find it proven by the
Metropolitan Council that the situation at the time of the
dismissals was of such a character that it could give
grounds for a dismissal of the plaintiffs. The dismissals
must therefore be considered as being effected on an
insufficient basis and accordingly as being unjustified.
For these reasons and in the circumstances of the present
case the Court cannot find for the plaintiffs' principal plea
that they have maintained their positions in spite of the
dismissals, but it considers that the Metropolitan Council is
under an obligation to pay damages to the plaintiffs for economic
losses and inconveniences which the dismissals have caused."
The amounts were determined on an equitable basis according to
age, previous salaries and duration of employment with the HT and varied
from 75,000 Danish crowns to 175,000 Danish crowns. The SID on the other
hand was not found liable to pay damages to the applicants.
The applicants appealed against this judgment to the Supreme
Court (Højesteret) where they repeated their claims submitted to the
High Court. The Ministry of the Interior also joined the proceedings
as a co-plaintiff before the Supreme Court.
In its judgment of 24 October 1986 the Supreme Court stated as
follows:
"The Articles of the Constitution which the appellants have
invoked do not give any basis upon which it can be found
that the dismissals are null and void nor can such a claim
be based on other rules of a constitutional character.
The invoked provision contained in Article 11 of the
European Convention of Human Rights cannot be used directly
but the dismissals must be considered according to Act No.
285 of 9 June 1982 concerning Protection against Dismissals
because of Trade Union Relations which was adopted in order
to fulfil Denmark's obligations under Article 11 of the
Convention.
The dismissals are contrary to this Act's Section 2 para. 1
and contrary to the fundamental concept of equality in
public administrative law which has been used earlier cf.
Supreme Court judgment of 13 June 1978 (U1978.626).
According to Section 4 the employer must pay damages to an
employee who is dismissed contrary to the law but the Act
does not give the employee a right to be re-employed.
Accordingly the Act cannot constitute the basis for the
appellants' claim that the dismissals should be considered
null and void and that they are still employed as bus
drivers in the Traffic Company of the Metropolitan Area.
Neither can the dismissals be considered null and void on
any other basis.
Since it is without relevance for the question of compensation
or damages whether there was an emergency situation (nødret),
the Court has not found any reason to consider this question.
The amounts awarded to the appellants by the High Court are
found to be reasonable."
The Supreme Court upheld the judgment of the High Court
insofar as it concerned the SID.
II. Relevant domestic legislation
The Act No. 285 of 9 June 1982 concerning Protection against
Dismissals because of Trade Union Relations contains the following
provisions.
Section 1.
Para. 1: An employer may not dismiss an employee because he
is a member of an association or a specific association.
Section 2.
Para. 1: The employer may not dismiss an employee because he
is not a member of an association or a specific association.
Para. 2: Para. 1 is not applicable if the employee, when
employed, knew that the employer made membership of an association or
of a specific association a condition for employment in the business.
Para. 3: Para. 1 is furthermore not applicable when the
employee, who is a member of an association, subsequent to the
employment is informed that membership is a condition for continued
employment in the business.
Section 3.
Para. 1: Sections 1 and 2 of the Act do not apply to employees
who are employed by employers whose business specifically aims at
furthering a political, ideological, religious or cultural purpose
and the membership of the person concerned must be considered of
importance for the business.
Section 4.
Para. 1: If an employee is dismissed contrary to the provisions
of this Act the employer must pay damages.
Para. 2: Damages according to para. 1, which cannot exceed 78
weeks salary, are awarded having regard to the duration of the employee's
employment and the other circumstances of the case.
COMPLAINTS
The applicants invoke Articles 11, 13 and 14 of the
Convention. They maintain that they can be considered victims under
Article 25 of the Convention as they have neither been reinstated in
their previous jobs, nor obtained adequate compensation.
With regard to Article 11 the applicants have submitted that
this provision has been violated due to the fact that they were
dismissed from their jobs as bus drivers with the Traffic Company of
the Metropolitan Area merely because they did not wish to remain
members of the SID but instead joined the Free Trade Union of Denmark.
Under Article 13 the applicants complain that they had no
effective remedy before a national authority, firstly, because they
were denied reinstatement in their previous jobs and, secondly, because
the compensation awarded to them was too small and inadequate.
Finally, the applicants invoke Article 14 in conjunction
with Article 11 of the Convention. They maintain that they have not
enjoyed the rights and freedoms set out in Article 11 of the
Convention due to their political opinions.
THE LAW
1. The applicants have complained of the fact that they were
dismissed from their jobs as bus drivers with the Traffic Company of
the Metropolitan Area. They maintain that their dismissals were
effected merely due to their refusal to join a certain trade union and
they allege that this amounts to a violation of Article 11 (Art. 11)
of the Convention which reads:
"1. Everyone has the right to freedom of peaceful assembly and
to freedom of association with others, including the right to
form and join trade unions for the protection of his interests.
2. No restrictions shall be placed on the exercise of these
rights other than such as are prescribed by law and are necessary
in a democratic society in the interests of national security or
public safety, for the prevention of disorder or crime, for the
protection of health or morals or for the protection of the
rights and freedoms of others. This Article shall not prevent
the imposition of lawful restrictions on the exercise of these
rights by members of the armed forces, of the police or of the
administration of the State."
However, it is clear from Article 25 para. 1 (Art. 25-1) of
the Convention that the Commission can only receive an application
from a person, a non-governmental organisation or a group of
individuals if such person, non-governmental organisation or group of
individuals can claim to be a victim of a violation by one of the High
Contracting Parties of the rights set forth in the Convention.
In the present case the applicants maintain that they are
victims of a breach of Article 11 (Art. 11) of the Convention as they
were not reinstated in their previous jobs or in the alternative since
they did not get adequate compensation.
When considering the victim question the Commission recalls
that under Article 26 (Art. 26) of the Convention it may only deal
with an application when all domestic remedies have been exhausted
according to the generally recognised rules of international law.
Under this rule an applicant is obliged to make use of remedies likely
to be effective and adequate to remedy the matters of which he
complains. Where an applicant makes use of such remedies and thereby
obtains adequate redress at the domestic level for the alleged
violation of the Convention he cannot claim to be a victim of a
violation (cf. for example No. 9320/81, Dec. 15.3.84, D.R. 36 p. 24,
No. 10259/83, Dec. 10.12.84, D.R. 40 p. 170 and Eur. Court H.R.,
Eckle judgment of 15 July 1982, Series A No. 51, p. 30, para. 66).
In its examination of this preliminary issue of admissibility
the Commission has therefore considered whether the compensation
awarded to the applicants by the courts had the effect to remedy the
alleged violations.
The applicants argue that only reinstatement would be an
effective remedy. In this respect the Commission first observes that
under Article 1 (Art. 1) of the Convention the High Contracting Parties are
obliged to secure to everyone within their jurisdiction the rights and
freedoms defined in Section I. This includes the obligation, under
Article 13 (Art. 13), to provide individuals with an effective remedy
against a violation of their rights and freedoms as set forth in the
Convention. The possibility of obtaining compensation may in some
circumstances constitute an adequate remedy, in particular where it is
likely to be the only possible or practical means whereby redress can
be given to the individual for the wrong he has suffered. In such
circumstances the Commission is not called upon to address the problem
whether under specific conditions a remedy, leading to restitutio in
integrum may be required by the Convention.
Nevertheless, compensation may not be deemed to have
rectified a violation in a situation where the State had not taken
reasonable measures to comply with its obligations under the
Convention. The obligation to provide a remedy does not constitute a
substitute for, or an alternative to, compliance with other Convention
obligations. It is rather a means of redress within the domestic
system for violations which occur despite measures taken to ensure
compliance with the substantive provisions of the Convention. Thus if
conduct which contravened the Convention were to be authorised by
domestic law the State could not escape from its obligations merely by
paying compensation. The compensation machinery could only be seen as
an adequate remedy in a situation where the authorities had taken
reasonable steps to comply with their obligations under the Convention
by preventing as far as possible the occurrences or repetition of the
acts in question (mutatis mutandis No. 5577/72 - 5583/72, Dec.
15.12.75, D.R. 4 p. 4 (64)).
In the present case the Commission recalls that the
Metropolitan Council decided in the area of employment on the basis of
the applicable labour-law, i.e. Act No. 285 of 9 June 1982 concerning
Protection against Dismissals because of Trade Union Relations. This
Act was introduced by the respondent Government in the light of the
judgment of the European Court of Human Rights in the case of Young,
James and Webster (Eur. Court H.R., Young, James and Webster judgment
of 13 August 1981, Series A No. 44) in order to comply with Denmark's
obligations under Article 11 of the Convention. It prohibits
dismissal of employees due to membership of an association and is
applicable to persons employed in both private and public enterprises.
It does not give an employee the right to be re-employed but secures
to the employee compensation in case of dismissal in contravention of
the provisions of the Act. The Commission has not found any indication
of a general practice whereby public authorities would disregard the
legislation introduced in Denmark by dismissing employees and merely
pay compensation, a practice which in the Commission's opinion would
raise a serious issue under the Convention.
In these circumstances the Commission finds that Denmark has
taken reasonable steps to comply with its obligations under Article 11
(Art. 11) of the Convention by introducing this Act. It follows that the
applicants cannot claim to be victims of a violation of the Convention
merely because they were not re-employed as bus drivers in the Traffic
Company of the Metropolitan Area.
The applicants have next alleged that they may still claim to
be victims since the compensation actually received was inadequate.
The Commission would not exclude that, where compensation granted under
domestic law is inadequate, an issue may arise as to the question of
victim and it has therefore considered whether the applicants' right
to compensation was effective in practice.
In this respect the Commission recalls that the compensation
that could be awarded under Section 4 amounted to a maximum of 78
weeks salary and was to be determined having regard to the employee's
length of employment and the other circumstances of the case. In the
present case the competent courts took into consideration the
applicants' age, the salaries earned as well as the duration of their
employment and fixed the compensation on an equitable basis in the
light of these circumstances. The Commission furthermore recalls that
these compensations ranged from 75,000 Danish crowns to 175,000 Danish
crowns.
The Commission finds that the applicants each received
substantial sums in compensation and thereby obtained redress at the
domestic level for the alleged violation of Article 11 (Art. 11) of
the Convention. Therefore they can no longer claim to be victims of
this alleged violation and 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.
2. The applicants have also complained under Article 13 (Art. 13)
of the Convention that they had no effective remedy at their disposal.
However, it follows from the Commission's conclusion above that this
complaint is also manifestly ill-founded within the meaning of Article
27 para. 2 (Art. 27-2) of the Convention.
3. Finally, the applicants have complained under Article 14
(Art. 14) of the Convention that they did not enjoy the rights and
freedoms set out in the Convention due to their political opinions.
The Commission has considered the complaint as submitted by the
applicants. However, its examination has not disclosed any appearance
of a violation of Article 14 (Art. 14) of the Convention and it
follows that this complaint is likewise 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 Acting President of the Commission
(H. C. KRUGER) (J. A. FROWEIN)