Application No. 12375/86
by Maria GERDÅS, Tarja LINDELL and Kerstin LINDER
against Sweden
The European Commission of Human rights sitting in private on
7 October 1987, the following members being present:
MM. C.A. NØRGAARD, President
S. TRECHSEL
F. ERMACORA
M.A. TRIANTAFYLLIDES
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. J. RAYMOND, Deputy 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 22 September
1984 by Maria GERDÅS, Tarja LINDELL and Kerstin LINDER against Sweden
and registered on 3 September 1986 under file No. 12375/86;
Having regard to
- the first report provided for in Rule 40 of the Rules of
Procedure of the Commission,
- the Commission's decision of 4 December 1986 to communicate
the application to the Government for written observations
on the admissibility and merits,
- the Government's observations of 7 April 1987,
- the applicants' letters of 14 and 15 June 1987,
- the second report provided for in Rule 40 of the Rules
of Procedure;
Having deliberated;
Decides as follows:
THE FACTS
The facts of the case, as submitted by the applicants, may be
summarised as follows.
The applicants are three qualified nurses:
1. Mrs. Maria Gerdås, a Swedish citizen born in 1957
and resident at Burseryd.
2. Mrs. Tarja Lindell, a Finnish citizen born in 1955
and resident at Borås.
3. Mrs. Kerstin Linder, a Swedish citizen born in 1952
and resident at Kalmar.
The applicants have been qualified nurses since 1976 (the
third applicant) and 1978 (the first and second applicants). The
first and third applicants attended an additional training course in
obstetrics and gynaecology at the Higher Health School of Gothenburg
from 16 October 1982 to 14 October 1983. The second applicant
attended the same course at the Southern Health School of Älvsborg
from 16 August 1982 to 30 September 1983. The training is intended to
result in a special certificate in midwifery. Such a certificate is
issued by the National Board of Health and Social Welfare
(socialstyrelsen) on the basis of proof of completed education from
the competent school. Such a certificate is allegedly a condition
for exercising the profession of a midwife.
The central syllabus for training in this subject does not
require that the participants must learn how to insert a coil
into the uterus of a woman as a contraceptive measure. Nor is there
any such requirement in the local schools' syllabuses. Nevertheless,
the schools have interpreted the syllabus to mean that in order to
pass the examination the nurse must have inserted coils into several
patients in clinical care.
Being Christians, the applicants do not wish to participate in
measures of an abortive nature. In their opinion it is not
permissible to interrupt a life which has started after fertilization.
The coil is directed against a fertilized egg and is designed to
prevent the egg from implanting itself in the uterus. In the
applicants' view this method is thus a form of early abortion.
The applicants point out that during 1982 two participants in
the midwifery course in Gothenburg, who for ethical reasons refused to
insert coils, were granted permission from the National Board for
Universities and High Schools (universitets - och högskoleämbetet) to
follow an alternative training procedure by inserting a coil into
three volunteers on the condition that it would be removed
immediately. In this way, the two participants were able to pass
their examination and receive the necessary certificate.
The applicants submitted applications to be permitted to
follow such an alternative training procedure, but these were rejected
by the respective schools on 28 April 1983, as regards the first and
third applicants, and on 14 April 1983, as regards the second
applicant.
The applicants appealed to the National Board for Universities
and High Schools, which in a decision of 12 October 1983 rejected the
appeal.
The applicants lodged a further appeal with the Government,
which on 29 March 1984 rejected the appeal.
COMPLAINTS
1. The applicants submitted that their refusal to insert
contraceptive coils as part of their midwifery training is based on
their Christian beliefs. The applicants regarded the Government's
refusal to grant them midwives' certificates as an endeavour to induce
them to violate their religious convictions and to depart from their
religious beliefs in order to be able to perform their profession.
They alleged a violation of their freedom of religion protected by
Article 9 of the Convention.
2. The applicants also submitted that they were discriminated
against as a result of the fact that two other participants in such a
course were permitted to follow an alternative training procedure.
Since the applicants were refused this alternative procedure there has
been an unjustified discrimination based on their religious beliefs in
violation of Article 14 of the Convention.
3. The applicants finally submitted that the right to earn a
living in the profession for which they have been trained is a "civil
right" within the meaning of Article 6 of the Convention. By refusing
the applicants a certificate which would have entitled them to work as
midwives, the authorities compelled them to continue to work as nurses
earning a lower salary than midwives. Since the Government have
refused a civil right in their decision, the applicants have been
entitled to an impartial and public hearing of the matter. However,
such a procedural right does not exist in Swedish law, and there has
accordingly been a breach of Article 6 of the Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 22 September 1984 and
registered on 3 September 1986.
On 4 December 1986 the Commission decided to bring the
application to the notice of the Government and to invite them to
submit written observations on its admissibility and merits.
The Government's observations were dated 7 April 1987. In
their observations the Government concluded that the application should
be declared inadmissible for failure to exhaust domestic remedies or,
as regards Article 6 of the Convention, for being incompatible ratione
materiae with the provisions of the Convention, or as being
manifestly ill-founded in its entirety.
By letter of 14 and 15 June 1987 the applicants informed the
Commission that they wished to withdraw their application, the
background being that they had in May 1987 been given certificates as
midwives with the remark that they had not inserted contraceptive
coils. The decision to grant the applicants the certificates was the
result inter alia of a report of the Standing Parliamentary Committee
on Social Affairs of 5 November 1986 (SoU 1986/87:5) and a decision of
the Government of 12 February 1987.
REASONS FOR THE DECISION
The Commission notes that the applicants have withdrawn their
application after having been granted certificates as midwives. The
Commission finds in these circumstances that there are no reasons of a
general character affecting the observance of the Convention which
require further examination of the application.
For these reasons, the Commission
DECIDES TO STRIKE THE APPLICATION OFF ITS LIST OF CASES.
Deputy Secretary to the Commission President of the Commission
(J. RAYMOND) (C.A. NØRGAARD)