JORD- OG BETONARBEJDERNES FAGFORENING, HANSEN, WASS, NIELSEN AND PEDERSEN v. DENMARK



                      AS TO THE ADMISSIBILITY OF

                      Application No. 22507/93

                      by Jord- og Betonarbejdernes Fagforening,

                       Henning HANSEN, Pia WASS,

                       Kresten NIELSEN and Svend PEDERSEN

                      against Denmark

      The European Commission of Human Rights (Second Chamber) sitting

in private on 5 April 1995, the following members being present:

           MM.   H. DANELIUS, President

                 C.A. NØRGAARD

           Mrs.  G.H. THUNE

           MM.   G. JÖRUNDSSON

                 S. TRECHSEL

                 J.-C. SOYER

                 H.G. SCHERMERS

                 F. MARTINEZ

                 L. LOUCAIDES

                 J.-C. GEUS

                 M.A. NOWICKI

                 I. CABRAL BARRETO

                 J. MUCHA

                 D. SVÁBY

           Mr.   K. ROGGE, Secretary to the Chamber

      Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

      Having regard to the application introduced on 13 August 1993 by

Jord- og Betonarbejdernes Fagforening, Henning HANSEN, Pia WASS,

Kresten NIELSEN and Svend PEDERSEN against Denmark and registered on

23 August 1993 under file No. 22507/93;

      Having regard to the report provided for in Rule 47 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 first applicant is the Danish Construction Workers' Trade

Union (Jord- og Betonarbejdernes Fagforening) with its headquarters in

Copenhagen. Hereinafter it is called the DCWTU. The other applicants,

Henning Hansen, Pia Wass, Kresten Nielsen and Svend Pedersen, in the

following called A, B, C and D, are Danish citizens born in 1959, 1961,

1942 and 1926 respectively. They are construction workers and members

of the DCWTU. Before the Commission all applicants are represented by

Mr. Christian Harlang, a lawyer practising in Copenhagen.

      It appears that in the spring of 1985 the labour market parties

failed to reach agreement on the renewal of the collective agreements

in force. Eventually the Danish Parliament intervened to the extent

that it passed an Act on 30 March 1985 which renewed and prolonged the

existing collective agreements (lov om fornyelse og forlængelse af

kollektive overenskomster og aftaler m.v.). On the following day,

31 March 1985, the Act was signed by the Queen and it was published in

the Legal Gazette (Lovtidende) on 1 April 1985 as Act no. 123 of

31 March 1985. According to section 16 of the Act it entered into force

on 1 April 1985.

      The purpose of this Act was to prolong the already existing

labour market collective agreements for a period of two years with the

effect that inter alia strikes and lock-outs which continued or

commenced after the Act had entered into force were illegal as a

consequence of the non-observance of the existing collective

agreements.

      Due to the above intervention by Parliament a number of strikes

commenced all over the country, and other strikes, which had commenced

prior to 1 April 1985, continued. The applicant A was on strike from

1 to 3 April and again on 10 April 1985, i.e. a total of 32 working

hours. B and C were on strike from 1 to 3 April 1985, i.e. a total of

24 working hours each, and D was on strike on 10 April 1985, i.e. a

total of 8 working hours. Due to the strikes, and following certain

friendly settlement negotiations between the labour market parties,

proceedings were instituted in the Labour Court (Arbejdsretten) against

three representatives of the employee organisations, including the

DCWTU representing its members, for breach of the collective

agreements. The plaintiffs, represented by the Danish Association of

Employees, requested that a penalty (bod) be imposed on those employees

who had participated in strikes as from 1 April 1985.

      Following a number of court sessions and after an evaluation of

the evidence submitted the Labour Court found it established, in its

judgment of 25 October 1985, that illegal strikes had taken place after

1 April 1985 and that members of the DCWTU, including the applicants

A to D, had participated therein. As regards the time from which to

calculate the penalty the Court stated as follows:

      (translation)

      "As regards the question as from what moment the penalty

      should be imposed, the decisive element is the moment the

      Act on the prolongation of the collective agreements

      entered into force. According to the Act on the publication

      of the Legal Gazette ... an Act enters into force on the

      day after the [relevant] issue of the Legal Gazette ... is

      published, unless the Act itself stipulates otherwise.

           Normally it is assumed that the Act enters into

           force at 0.00 hours. The Act on the prolongation

           of the collective agreements expressly states

           that it enters into force on 1 April 1985. There

           is no basis for the assumption that it was not

           Parliament's intention to let the Act enter into

           force on that day at 0.00 hours. The Act has

           been announced in due form and it makes no

           difference that the Legal Gazette was not

           published until later in the morning. The

           obligation to refrain from striking

           (fredspligten) accordingly took effect as from

           0.00 hours on 1 April 1985 and it violated the

           collective agreements not to comply with the

           provisions of the Act on that day. Accordingly,

           the penalty is also imposed in respect of this

           day. As it was well known through the media that

           the Act entered into force on that day there is

           furthermore no reason to annul the penalty."

      Following this judgment the applicants A to D were obliged to pay

a penalty amounting to 20 DKK per hour of strike. Accordingly they were

ordered to pay 640 DKK (A), 480 DKK (B and C each) and 160 DKK (D). The

three defendant employee organisations in the case, including the

DCWTU, were ordered to pay a total sum of 2,000 DKK in costs.

COMPLAINTS

      The applicants complain that due to the fact that they have been

ordered to pay a penalty for offences against the Act on the

prolongation of the existing collective agreements they have been found

guilty of a criminal offence within the meaning of Article 7 para. 1

of the Convention. Furthermore, they maintain that in so far as the Act

was applied prior to its publication in the Legal Gazette around

10 o'clock on 1 April 1985 they have been held guilty of an act which

did not constitute a criminal offence under national or international

law at the time when it was committed.

PROCEEDINGS BEFORE THE COMMISSION

      The application was introduced on 24 April 1991 and the

application forms were returned on 9 September 1991 in accordance with

Rule 44 paras. 2 and 3 of the Commission's Rules of Procedure.

      On 11 September 1991 the applicants were requested, pursuant to

Rule 44 para. 3 of the Rules of Procedure, to submit further

information in order to complete the application. They were informed

that the application would be registered upon receipt of this

information.

      The applicants submitted the information requested on

13 August 1993.

THE LAW

      The applicants complain that they have been held guilty of a

criminal offence on account of an act which did not constitute a

criminal offence under national law at the time when it was committed.

They refer to Article 7 para. 1 (Art. 7-1) of the Convention.

However, under Article 26 (Art. 26) of the Convention, the Commission

has first considered the question of the date of introduction of the

present application. In this respect the Commission recalls that the

applicants' first communication to the Commission was dated

24 April 1991. After some correspondence they were requested, on

11 September 1991, to provide additional information in order to

complete the application. However, the applicants' following letter

containing this information was not submitted until 13 August 1993.

      In accordance with its established practice, the Commission

considers the date of introduction of an application to be the date of

the first letter indicating an intention to lodge an application and

giving some indication of the nature of the complaint. However, where

a substantial interval follows before an applicant submits further

information as to his proposed application, the Commission examines the

particular circumstances of the case in order to decide what date shall

be regarded as the date of introduction and from which to calculate the

running of the six month period set out in Article 26 (Art. 26) of the

Convention (see No. 4429/70, Dec. 1.2.71, Collection 37 p. 109).

      The Commission finds that one of the purposes of the six months

rule is to ensure that cases raising issues under the Convention are

dealt with within a reasonable time. Furthermore it ought also to

protect the authorities and other persons concerned from being under

any uncertainty for a prolonged period of time. Finally, it should

provide the possibility of ascertaining the facts of the case, which

otherwise could become difficult to establish, in order to ensure a

fair examination of the question at issue.

      There is a parallel between the aim pursued in Article 26

(Art. 26) and Article 6 para. 1 (Art. 6-1) of the Convention in that

both Articles should secure a determination of a case within a

reasonable time. The express obligation mentioned in Article 26

(Art. 26) of the Convention, however, only relates to the lodging of

an application but the Commission has in this respect so far been

generous in accepting that the date of introduction was the submission

of the first letter concerning the complaint without imposing any

further restrictions.

      However, it would be contrary to the spirit and the aim of the

six months rule set out in Article 26 (Art. 26) of the Convention if,

by any initial communication, an applicant could set into motion the

proceedings under Article 25 (Art. 25) of the Convention and then

remain inactive for an unexplained and unlimited length of time. The

Commission has constantly rejected applications where an applicant

submitted an application more than six months after the date of the

final decision when there were no special circumstances suspending the

running of this period. The Commission finds that it would be

inconsistent with the aim and purpose of the six months rule to deviate

from this rule in a situation where an application has been introduced

under Article 25 (Art. 25) of the Convention within six months from the

final decision but thereafter has not been pursued. Delays in pursuing

the case are only acceptable in so far as they are based on reasons

connected with the case. Such reasons may consist of the exhaustion of

remedies which an applicant has reason to believe was necessary (see

Nos. 9024/80 and 9317/81, Dec. 9.7.82, D.R. 28 p. 138 (158)). In such

circumstances, however, the Commission finds that it follows from the

purpose and aim of Article 26 (Art. 26) of the Convention that the

application must be pursued by the applicant within a period of six

months after the date of the final decision obtained (cf. No. 10626/83,

Dec. 7.5.85, D.R. 42 p. 205).

      In the present case the Commission recalls that approximately two

years passed until the applicants, on 13 August 1993, resumed the

correspondence with the Commission and completed the application as

requested. They have not submitted any reasons for this delay which

could have suspended the running of the six months period referred to

in Article 26 (Art. 26) of the Convention. Actually, they have not

submitted any reasons at all.

      Therefore, notwithstanding the applicants' initial submission of

24 April 1991, the Commission considers in the present case

13 August 1993 to be the date of introduction of the application and

it follows that, having thus been introduced out of time, it must be

rejected under Article 27 para. 3 (Art. 27-3) of the Convention.

      For these reasons, the Commission, unanimously,

      DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Second Chamber       President of the Second Chamber

        (K. ROGGE)                           (H. DANELIUS)

 

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