EUROPEAN COMMISSION OF HUMAN RIGHTS
Application No. 19576/92
Teuvo Komulainen
against
Finland
REPORT OF THE COMMISSION
(adopted on 16 May 1995)
TABLE OF CONTENTS
Page
I. INTRODUCTION
(paras. 1 - 15) . . . . . . . . . . . . . . . . . . . . . . . 1
A. The application
(paras. 2 - 4) . . . . . . . . . . . . . . . . . . . . . 1
B. The proceedings
(paras. 5 - 10). . . . . . . . . . . . . . . . . . . . . 1
C. The present Report
(paras. 11 - 15) . . . . . . . . . . . . . . . . . . . . 2
II. ESTABLISHMENT OF THE FACTS
(paras. 16 - 33). . . . . . . . . . . . . . . . . . . . . . . 3
A. The particular circumstances of the case
(paras. 16 - 24) . . . . . . . . . . . . . . . . . . . . 3
B. Relevant domestic law and legal instruments of the
Council of Europe
(paras. 25 - 33) . . . . . . . . . . . . . . . . . . . . 4
1. The protection of the negative freedom of
association
(paras. 25 - 26) . . . . . . . . . . . . . . . . . 4
2. The duty to accept a municipal position of trust
(paras. 27 - 29) . . . . . . . . . . . . . . . . . 4
3. The requirement of a fair representation in
municipal federative bodies of the groups
represented in the relevant municipal councils
(paras. 30 - 31) . . . . . . . . . . . . . . . . . 5
4. The European Charter of Local Self-Government
(paras. 32 - 33) . . . . . . . . . . . . . . . . . 5
III. OPINION OF THE COMMISSION
(paras. 34 - 60). . . . . . . . . . . . . . . . . . . . . . . 7
A. Complaint declared admissible
(para. 34) . . . . . . . . . . . . . . . . . . . . . . . 7
B. Points at issue
(para. 35) . . . . . . . . . . . . . . . . . . . . . . . 7
C. As regards Article 11 of the Convention
(paras. 36 - 51) . . . . . . . . . . . . . . . . . . . . 7
CONCLUSION
(para. 52) . . . . . . . . . . . . . . . . . . . . . . .10
TABLE OF CONTENTS
Page
D. As regards Article 14 of the Convention
in conjunction with Article 11
(paras. 53 - 57) . . . . . . . . . . . . . . . . . . . .10
CONCLUSION
(para. 58) . . . . . . . . . . . . . . . . . . . . . . .11
E. Recapitulation
(paras. 59 - 60) . . . . . . . . . . . . . . . . . . . .11
CONCURRING OPINION OF Mr. H. DANELIUS . . . . . . . . . . . . . . .12
CONCURRING OPINION OF Mr. H.G. SCHERMERS
JOINED BY Mr. G. RESS . . . . . . . . . . . . . . . . . . . . . . .14
PARTIALLY DISSENTING OPINION OF Mr. C.L. ROZAKIS. . . . . . . . . .15
APPENDIX: DECISION OF THE COMMISSION AS TO THE ADMISSIBILITY
OF THE APPLICATION . . . . . . . . . . . . . . . . . . .17
I. INTRODUCTION
1. The following is an outline of the case as submitted to the
European Commission of Human Rights, and of the procedure before the
Commission.
A. The application
2. The applicant is a Finnish citizen, born in 1942 and resident at
Padasjoki. He is a former municipal director.
3. The application is directed against Finland. The respondent
Government were represented by their Agent, initially Mr. Tom Grönberg,
then Director-General for Legal Affairs, Ministry for Foreign Affairs,
Helsinki, and subsequently Mr. Holger Rotkirch, present Director-
General.
4. The case concerns the requirement that the applicant should have
been a member of a certain political party in order to be eligible for
a position of trust to which that party was entitled. This requirement
allegedly violated his right to freedom of association and
discriminated against him because he is politically independent. The
applicant principally invokes Articles 11 and 14 of the Convention.
B. The proceedings
5. The application was introduced on 16 January 1992 and registered
on 3 March 1992.
6. On 11 October 1993 the Commission decided, pursuant to Rule 48
para. 2 (b) of its Rules of Procedure, to give notice of the
application to the respondent Government and to invite the parties to
submit written observations on the admissibility and merits of the
complaint under Articles 11 and 14 of the Convention.
7. The Government's observations were submitted on 21 December 1993.
The applicant replied on 11 February 1994.
8. On 10 October 1994 the Commission declared the applicant's
complaint under Articles 11 and 14 of the Convention admissible. It
declared the remainder of the application inadmissible.
9. The text of the Commission's decision on admissibility was sent
to the parties on 20 October 1993 and they were invited to submit such
further information or observations on the merits as they wished. The
Government submitted observations on 8 December 1994, to which the
applicant replied on 9 January 1995.
10. After declaring the case admissible, the Commission, acting in
accordance with Article 28 para. 1 (b) of the Convention, also placed
itself at the disposal of the parties with a view to securing a
friendly settlement. In the light of the parties' reaction, the
Commission now finds that there is no basis on which such a settlement
can be effected.
C. The present Report
11. The present Report has been drawn up by the Commission in
pursuance of Article 31 of the Convention and after deliberations and
votes, the following members being present:
MM. C.A. NØRGAARD, President
H. DANELIUS
C.L. ROZAKIS
E. BUSUTTIL
G. JÖRUNDSSON
S. TRECHSEL
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
Mrs. G.H. THUNE
Mr. F. MARTINEZ
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
B. MARXER
G.B. REFFI
M.A. NOWICKI
I. CABRAL BARRETO
N. BRATZA
I. BÉKÉS
J. MUCHA
E. KONSTANTINOV
D. SVÁBY
G. RESS
A. PERENIC
C. BÎRSAN
12. The text of this Report was adopted on 16 May 1995 by the
Commission and is now transmitted to the Committee of Ministers of the
Council of Europe, in accordance with Article 31 para. 2 of the
Convention.
13. The purpose of the Report, pursuant to Article 31 of the
Convention, is:
(i) to establish the facts, and
(ii) to state an opinion as to whether the facts found disclose
a breach by the State concerned of its obligations under
the Convention.
14. The Commission's decision on the admissibility of the application
is attached to the Report.
15. The full text of the parties' submissions, together with the
documents lodged as exhibits, are held in the archives of the
Commission.
II. ESTABLISHMENT OF THE FACTS
A. The particular circumstances of the case
16. On 8 February 1989 the Federative Council (liittovaltuusto,
förbundsfullmäktige) of the Municipal Health Care Federation (kansan-
terveystyön kuntainliitto, kommunalförbundet för folkhälsoarbetet) of
Asikkala and Padasjoki elected the applicant, who was the Municipal
Director of Padasjoki, member of the Health Care Board (terveys-
lautakunta, hälsovårdsnämnden) of the Federation.
17. A member of the municipality of Padasjoki appealed against, inter
alia, the applicant's election, alleging that the composition of the
Health Care Board was unlawful, since the so-called joint lists of
candidates (yhteislista, gemensam lista) which had been presented in
the respective municipal elections at Asikkala and Padasjoki in 1988
should have been entitled to more than one representative on the Board.
The appellant argued, inter alia, that the total votes collected by the
three joint lists should have formed the basis for allotting seats on
the Board, in which case the lists should have been entitled to several
representatives. The appellant finally objected to the applicant's
election as an independent member of the Health Care Board, since no
actually independent candidate had stood for election in the municipal
elections at Padasjoki in 1988.
18. On 19 November 1990 the County Administrative Court (läänin-
oikeus, länsrätten) of Häme found, inter alia, that the applicant's
election was unlawful. It considered that the joint lists of candidates
were to be considered as separate groups. The votes collected by the
respective lists in the municipal elections should therefore not have
been added together when the seats on the Health Care Board were
allotted for the purpose of ensuring a fair representation of the
groups represented in the respective municipal councils (kunnan-
valtuustot, kommunfullmäktige) pursuant to section 122, subsection 4
of the 1976 Act on Municipalities (kunnallislaki 953/76, kommunallag
953/76; hereinafter "the 1976 Act").
19. Having regard to the total votes collected by the parties and
other groups represented in the respective municipal councils, the
County Administrative Court furthermore found that the Health Care
Board should have been composed of, inter alia, four members
representing the National Coalition Party r.p. (Kansallinen kokoomus
r.p., Nationella samlingspartiet r.p.; hereinafter called "the National
Coalition Party"). It noted, however, that only three of the board
members "represented" that party. In addition to representatives of
other parties and a representative of one of the joint lists, one
member (the applicant) was independent of all the groups represented
in the relevant municipal councils. The Board had therefore not been
composed in conformity with section 122, subsection 4 of the 1976 Act.
20. In its appeal to the Supreme Administrative Court (korkein
hallinto-oikeus, högsta förvaltningsdomstolen) the Board of the
Municipal Federation (liittohallitus, förbundsstyrelse) objected to the
applicant's obligation to be a member of the National Coalition Party
in order to be eligible for a seat on the Health Care Board.
21. In the proceedings before the Supreme Administrative Court the
National Coalition Party acknowledged that the applicant was not a
member of that party or any other party or group represented in the
Municipal Council of Padasjoki. The party had, nevertheless, already
at the time of his election accepted him as one of its representatives
on the Health Care Board. The party had subsequently maintained its
consent to this arrangement.
22. On 16 August 1991 the Supreme Administrative Court upheld the
County Administrative Court's decision by three votes against two. The
majority considered, inter alia, that in order to comply with section
122, subsection 4 of the 1976 Act the Federative Council should have
elected four persons "representing" the National Coalition Party on the
Health Care Board. In addition to the three members of that party who
had been elected to the Board the applicant had been elected as being
independent both of the parties and of the other groups. Under section
122, subsection 4, however, a non-member of a party could not be
elected to the Board as a representative of that party. The applicant's
election therefore violated section 122, subsection 4.
23. The minority of the Supreme Administrative Court considered that
the applicant's election had complied with section 122, subsection 4
of the 1976 Act, since the right of someone to represent a group was
not dependent on his or her membership thereof, even if that group was
a party. The minority noted that the National Coalition Party had
continuously consented to being represented by the applicant in his
capacity as an independent member of the Health Care Board.
24. In the light of the Supreme Administrative Court's decision the
Federative Council on 9 October 1991 proceeded to a new election of
members of the Health Care Board. The applicant was not re-elected.
B. Relevant domestic law and legal instruments of the Council of
Europe
1. The protection of the negative freedom of association
25. Under the 1919 Constitution Act (Suomen Hallitusmuoto 94/19,
Regeringsform för Finland 94/19; hereinafter "the Constitution Act")
Finnish citizens are entitled to form associations without first
obtaining a permission to this end, provided the aims of the
associations do not violate the laws and are not contrary to public
decency (section 10, subsection 1). Finnish citizens are equal before
the law (section 5).
26. The Standing Parliament Committee for Constitutional Matters
(eduskunnan perustuslakivaliokunta, riksdagens grundlagsutskott) has
considered that section 10 of the Constitution Act also covers the
right not to join an association (Committee Opinion 6/88).
2. The duty to accept a municipal position of trust
27. No one shall decline a municipal position of trust, unless he or
she is sixty years of age or more, if he or she has occupied the same
position of trust or another position in the same body during the
preceding four years or if he or she has occupied a municipal position
of trust during eight years or more. A refusal may also be based on
another weighty reason and shall, with one exception not relevant here,
be examined by the body which elected the person (section 18 of the
1976 Act).
28. A position of trust shall be occupied by the person elected to
it pending the outcome of possible appeal proceedings and, if the
election is quashed, until a new election has taken place (section 19,
as amended by Act no. 388/81).
29. The county administrative boards (lääninhallitukset, läns-
styrelserna) shall ensure that the administration of municipalities,
municipal federations and subsequent consortia is in compliance with
the law (section 145, as in force at the relevant time and as
subsequently amended by Act no. 979/92). A county administrative board
may, for instance, impose an administrative fine on a holder of a
position of trust so as to have him fulfil his duties (section 7 of the
1987 Act on County Administrative Boards (lääninhallituslaki 1233/87,
länsstyrelselag 1233/87)). A failure duly to serve in a position of
trust may also be punishable as an offence in the performance of duties
under chapter 40 of the 1889 Penal Code (rikoslaki 39/1889, strafflag
39/1889; extensively amended).
3. The requirement of a fair representation in municipal
federative bodies of the groups represented in the relevant
municipal councils
30. Section 122, subsection 4 of the 1976 Act, as in force up to
1 January 1993, reads as follows:
(Finnish)
"Liittohallituksen ja sen alaisten toimielinten kokoonpano
on sovitettava sellaiseksi, että se vastaa jäsenkuntien
valtuustoissa edustettuina olevien eri ryhmien
kunnallisvaaleissa saamaa ääniosuutta kuntainliiton
alueella."
(English)
"The composition of the Board of a Municipal Federation as
well as of its subordinated bodies shall be determined so
as to correspond to the votes received within the area of
the Federation by the different groups represented in the
municipal councils of the members of the Federation."
31. In accordance with an amendment to the 1976 Act which entered
into force on 1 January 1993 the municipal federations have been
replaced by municipal consortia (kuntayhtymät, samkommuner). Each
consortium shall draw up a charter which is not subjected to approval
by any State authority. The charter shall specify how the groups
represented in the relevant municipal councils shall be represented in
the bodies of the consortium (section 106, subsection 3, paras. 4 and
subsection 5, both as added by Act no. 979/92). If the charter is not
amended to include a provision on representation, the above-mentioned
section 122, subsection 4 shall continue to be applicable to an
appropriate extent (see the transitional provision in Act no. 979/92).
4. The European Charter of Local Self-Government
32. The European Charter of Local Self-Government (European Treaty
Series no. 122) entered into force with regard to Finland on
1 October 1991. Article 7 para. 3 thereof reads as follows:
"Any functions and activities which are deemed incompatible
with the holding of local elective offices shall be
determined by statute or fundamental legal principles."
33. According to the travaux préparatoires, the above paragraph
provides:
"... that disqualification from the holding of local
elective office should only be based on objective legal
criteria and not on ad hoc decisions. Normally this means
that cases of incompatibility will be laid down by statute.
However, cases have been noted of firmly entrenched, non-
written legal principles which seem to provide adequate
guarantees. ..." (p. 15 of the report, as published by the
Council of Europe in 1986).
III. OPINION OF THE COMMISSION
A. Complaint declared admissible
34. The Commission has declared admissible the applicant's complaint
that he was required to be a member of the National Coalition Party in
order to be eligible for a position of trust allotted to that party and
that this requirement discriminated against him because he is
politically independent.
B. Points at issue
35. The issues to be determined are whether there has been a
violation of Article 11 (Art. 11) of the Convention and/or a violation
of Article 14 in conjunction with Article 11 (Art. 14+11).
C. As regards Article 11 (Art. 11) of the Convention
36. Article 11 (Art. 11) of the Convention reads as follows:
"1. Everyone has the right to freedom of peaceful assembly
and to freedom of association with others, including the
right to form and to 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."
37. The applicant complains that the annulment of his election to the
Health Care Board violated his negative freedom of association. He
recalls that as from his election on 8 February 1989 up to the decision
of the Supreme Administrative Court of 16 August 1991 he was obliged
to occupy his position of trust on pain of possibly facing criminal
charges and punishment. He emphasises that the issue in his case is not
whether he could have become eligible for a position of trust to which
a group other than a party might have been entitled under section 122,
subsection 4 of the 1976 Act. The questions are whether eligibility for
a position of trust to which a party or other group is entitled under
that provision presupposes membership in that party or group or whether
it should suffice that the party or group consents to its being
represented even by a non-member.
38. The applicant accepts that section 122, subsection 4 of the 1976
Act seeks to ensure, in accordance with the outcome of the respective
municipal elections, a fair representation in the bodies of the
Municipal Federations of the parties and other groups which have
obtained representation in the respective municipal councils. This
provision does not, however, prescribe party membership as a condition
of eligibility for a position of trust of a federative body. At any
rate, the voters' opinions can be fairly represented without imposing
an inflexible requirement of party membership. This is particularly
true in the applicant's case, since the party at issue had
unequivocally accepted him as its representative without requiring him
to become a member thereof.
39. The applicant therefore submits that, contrary to the ratio of
section 122, subsection 4 of the 1976 Act, its interpretation in his
case affords party members a privileged position. This should be
contrasted with the applicant's negative freedom of association which
is protected not only by Article 11 (Art. 11) of the Convention but
also by the Constitution Act and therefore must have priority over the
1976 Act.
40. The applicant maintains that there is no pressing need for
reserving positions of trust to which a certain party is entitled under
section 122, subsection 4 of the 1976 Act exclusively to members
thereof. Only a small percentage of those entitled to vote in Finnish
elections, more precisely about 500.000 out of a total of some
3.800.000 persons, belong to a party. The membership requirement
therefore unjustifiably favours the parties at the expense of the large
majority of voters who are not party members.
41. The applicant finally considers that the interpretation of
section 122, subsection 4 of the 1976 Act in his case implies that lay
judges of District Courts (käräjäoikeudet, tingsrätter) are also
required to be members of a party, since they are considered to hold
a municipal position of trust to which they are elected by a
proportional vote. He also refers to Article 7 of the European Charter
of Local Self-Government (see paras. 32-33 above).
42. The Government submit that the annulment of the applicant's
election to the Health Care Board did not interfere with his negative
freedom of association. They concede that pending the outcome of the
appeal proceedings he was obliged to occupy his seat on the Board. His
negative freedom of association was, nevertheless, not struck at its
very substance by the requirement of party membership as finally
imposed on him by virtue of the Supreme Administrative Court's
decision. Although as a non-member he could not legally be elected to
a position of trust to which the National Coalition Party was entitled,
he would, according to the Government, in principle have been eligible
for a position of trust allotted to a group other than a party.
43. Should the Commission find an interference with the applicant's
negative freedom of association, the Government submit that it was
justified under Article 11 para. 2 (Art. 11-2). The requirement of
party membership was prescribed by the 1976 Act, as interpreted by the
Supreme Administrative Court in his case. The Government admit,
however, that obviously not all consequences of that decision of the
Supreme Administrative Court were foreseeable when section 122,
subsection 4 of the 1976 Act was enacted.
44. In the Government's view the annulment of the applicant's
election, moreover, served the legitimate aim of protecting the rights
and freedoms of others. Section 122, subsection 4 of the 1976 Act seeks
to secure that the political parties and other groups represented in
the relevant municipal councils are also fairly represented in the
municipal federations. It further safeguards party members from a
situation where their party would be represented by a non-member. The
Government admit, however, that in the applicant's case the members of
the National Coalition Party were involved in accepting him as a party
representative.
45. The Government furthermore consider that the annulment of the
applicant's election was necessary in a democratic society in pursuance
of the above-mentioned aim. They emphasise that, in principle, section
122, subsection 4 of the 1976 Act also entitles a group of politically
independent candidates to a certain number of positions of trust to be
determined in view of the outcome of the municipal elections. Such a
group is thus placed on an equal footing with a party. In the present
case, however, no such group had presented candidates in the relevant
municipal elections. The Government therefore adhere to the County
Administrative Court's finding that the applicant was to be considered
independent of all the groups represented in the municipal councils.
46. The Government conclude that, even as interpreted in the
applicant's case, section 122, subsection 4 of the 1976 Act does not
create privileges for the parties. Finally, having regard to the
pressing social need for requiring that a political party should be
represented in the bodies of a municipal federation solely by its
members, the respondent State's margin of appreciation has not been
exceeded in the applicant's case.
47. The Commission recalls that Article 11 (Art. 11) must be
considered to protect also the negative freedom of association, i.e.
the right not to join and not to be a member of an association,
although the scope of this protection remains to be defined. A form of
compulsion striking at the very substance of a right guaranteed by
Article 11 (Art. 11) may in itself amount to an interference with that
right (cf. Eur. Court H.R., Sigurdur A. Sigurjónsson v. Iceland
judgment of 30 June 1993, Series A no. 264, pp. 15-17, paras. 35-37).
48. The Commission is not called upon to express a general opinion
on the Finnish system for ensuring that the composition of the
municipal federative bodies and subsequent consortia correspond fairly
to the opinions expressed in the municipal elections. Nor is it for the
Commission to pronounce itself on the question whether the annulment
of the applicant's election to the Health Care Board was in violation
of the European Charter for Local Self-Government. The Commission must
limit its examination to whether on the particular facts of the case
there was an interference with the applicant's negative freedom of
association as guaranteed by Article 11 para. 1 (Art. 11-1) of the
Convention. In the affirmative, it remains to be determined whether
this interference was justified under Article 11 para. 2 (Art. 11-2).
49. The Commission observes that the applicant was at no stage forced
to join the National Coalition Party as a result of his election to the
Health Care Board. It is true that the applicant had a duty under
domestic law to accept and occupy his seat on the Board while the
appeal proceedings concerning his election were pending. Throughout
this period, however, and even after the Supreme Administrative Court's
annulment of his election he had a genuine choice between, on the one
hand, joining the party which he was already officially representing
on the Health Care Board and, on the other hand, giving up his seat on
that body. It would appear that no sanction would have been imposed on
him if he had chosen the second alternative.
50. The Commission furthermore observes that the applicant was
already at the time of his election to the Health Care Board employed
by the municipality of Padasjoki as its Director. The board membership
does not therefore appear to have been of any particular significance
to him, either financially or otherwise (cf., e.g., the above-mentioned
Sigurdur A. Sigurjónsson judgment, pp. 15-17, paras. 35-36). By no
means could it be placed on an equal footing with that of, for
instance, a full-time politician. Moreover, the fact that the applicant
had agreed to represent the National Coalition Party on the Health Care
Board indicates that there were no insurmountable ideological
differences between himself and that party which would, for reasons of
conscience, have made it impossible for him to join the party in order
to retain his seat on the Board.
51. Taking the above circumstances as a whole, the Commission
considers that the annulment of the applicant's election to the Health
Care Board did not strike at the very substance of his right to
negative freedom of association and therefore did not interfere with
that right. Accordingly, Article 11 (Art. 11) has not been violated.
CONCLUSION
52. The Commission concludes, by 27 votes to 1, that in the present
case there has been no violation of Article 11 (Art. 11) of the
Convention.
D. As regards Article 14 (Art. 14) of the Convention in conjunction
with Article 11 (Art. 11)
53. Article 14 (Art. 14) reads as follows:
"The enjoyment of the rights and freedoms set forth in this
Convention shall be secured without discrimination on any
ground such as sex, race, colour, language, religion,
political or other opinion, national or social origin,
association with a national minority, property, birth or
other status."
54. The applicant complains that the quashing of his election to the
Health Care Board furthermore discriminated against him in the
enjoyment of his negative freedom of association because he is
politically independent.
55. The Government submit that the applicant has not been
discriminated against as a result of his lack of eligibility for the
position of trust to which the National Coalition Party was entitled.
Not being a member of that party, his situation was similar to that of
members of other parties, who were equally ineligible for a position
of trust allotted to the National Coalition Party. Furthermore, the
difference in the treatment of the applicant in comparison with that
facing members of the National Coalition Party had the legitimate aim
of reserving, for that party, a number of positions of trust
corresponding to its share of the votes in the municipal elections.
Achieving this aim required that the applicant be a member of the
National Coalition Party. Neither were the means employed to this end
disproportionate to the aim pursued. The Government therefore conclude
that there existed an objective and reasonable justification for the
applicant's lack of eligibility for a position on the Health Care Board
as a representative of the National Coalition Party.
56. The Commission recalls that Article 14 (Art. 14) complements the
other substantive provisions of the Convention and the Protocols. It
has no independent existence since it has effect solely in relation to
"the enjoyment of the rights and freedoms" safeguarded by those
provisions. Although the application of Article 14 (Art. 14) does not
presuppose a breach of those provisions - and to this extent it is
autonomous -, there can be no room for its application unless the facts
at issue fall within the ambit of one of more of the latter (e.g., Eur.
Court H.R., Karlheinz Schmidt v. Germany judgment of 18 July 1994,
para. 22, to be published in Series A no. 291-B).
57. The Commission has found above (para. 51) that the annulment of
the applicant's election to the Health Care Board did not strike at the
very substance of his right to negative freedom of association. While
it accepts that the applicant's complaint may nevertheless fall within
the ambit of Article 11 (Art. 11), it does not find any discrimination
against the applicant in regard to his enjoyment of the rights under
that provision. It considers, in particular, that any discrimination
to which the applicant may have been subjected concerned his right to
be a member of the Health Care Board, i.e. a right not guaranteed by
the Convention. Accordingly, there has been no violation of Article 14
(Art. 14) of the Convention read in conjunction with Article 11
(Art. 11).
CONCLUSION
58. The Commission concludes, unanimously, that in the present case
there has been no violation of Article 14 (Art. 14) of the Convention
in conjunction with Article 11 (Art. 11).
E. Recapitulation
59. The Commission concludes, by 27 votes to 1, that in the present
case there has been no violation of Article 11 (Art. 11) of the
Convention (para. 52).
60. The Commission concludes, unanimously, that in the present case
there has been no violation of Article 14 (Art. 14) of the Convention
in conjunction with Article 11 (Art. 11)(para. 58).
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
(Or. English)
CONCURRING OPINION OF MR. H. DANELIUS
The so-called negative freedom of association, i.e. the right not
to join and not to be a member of an association, has been at issue
before the European Court of Human Rights in the Young, James and
Webster case (Eur. Court H.R., Young, James and Webster judgment of
13 August 1981, Series A no. 44) and in the Sigurdur A. Sigurjónsson
case (Eur. Court H.R., Sigurdur A. Sigurjónsson judgment of
30 June 1993, Series A no. 264). It appears from this case-law, and in
particular from the latter judgment, that the negative freedom of
association is in principle protected by Article 11 of the Convention.
The two judgments also show that there may in certain circumstances be
a breach of Article 11 when a person is dismissed from employment or
denied the right to exercise his trade or profession on the ground that
he is not a member of a certain association. In these two cases there
were certain characteristic features: on the one hand, there was no
special connection between the membership of an association and the
nature of the employment and, on the other hand, the loss of the
employment entailed considerable hardship for the persons concerned.
On the other hand, there may well be other cases where membership
of a certain association is a fully justified condition for employment
which could not be considered to raise an issue in regard to Article 11
of the Convention. For instance, a political party or another political
organisation may find it essential that all its employees, or its
employees in special functions, are members of that political party or
that organisation in order to be sure that the employees share the same
political ideology and can be expected to be loyal to the party or
organisation. There is a similar situation if a church, a religious
sect or a religious school adopts the policy of only employing persons
who have demonstrated their faith by becoming members of the relevant
church or a particular religious organisation. In such circumstances
there is a clear link between membership of an organisation and
employment. Consequently, there could be no question of a violation of
the freedom of association of persons who, without being members, would
wish to be employed by such a political or religious organisation.
The same reasoning could be applied, a fortiori, to eligibility
to various political positions of trust, which are of a special
character and are also of lesser importance to the individual than
employment. In most cases it is normal that membership of political
bodies is reserved - entirely or mainly -for persons who hold certain
political views, and it would generally seem acceptable that membership
of a political party is chosen as a criterion for the right to fulfil
such functions. In fact, this criterion is often appropriate in order
to avoid ambiguity and make the system clear and stable.
It is true that in the present case the National Coalition Party
accepted the applicant as its representative on the Health Care Board
despite the fact that he was not a member of that party. However, even
in these circumstances it cannot, for the purposes of Article 11 of the
Convention, be considered unreasonable or irrelevant for the Finnish
courts to have applied membership of a party as a criterion for
membership of the Health Care Board. As a supplementary consideration,
it should also be noted that the refusal to accept the applicant as a
member of the Health Care Board did not involve any hardship for him
which could be compared with the serious consequences which arose for
the applicants in the Young, James and Webster and Sigurdur A.
Sigurjónsson cases.
I am therefore of the opinion that in this case there has been
no interference with the applicant's right under Article 11 of the
Convention.
As I have already found, on the basis of the reasoning above,
that membership of a political party was in this case an acceptable
criterion, I consider that the discrimination aspect referred to by the
applicant does not raise a separate issue which has to examined on the
basis of Article 14 of the Convention.
(Or. English)
CONCURRING OPINION OF Mr. H.G. SCHERMERS
JOINED BY Mr. G. RESS
I agree with those members who find no violation of Article 11,
nor of Article 14 in the present case, but my reasoning differs from
that expressed in the text of the Report. In my opinion the freedom of
association is not at stake.
A health care board of a municipal federation or consortium is
established for the joint administration of costly municipal services.
In order to keep a balance with other costly services it seems
desirable to create some uniformity of policy between the municipality
and the health care board of the federation or consortium to which the
municipal belongs. The coordination of policy is achieved by section
122, subsection 4 of the 1976 Act which provides that the composition
of the board shall correspond to the representation in the councils of
the participating municipalities. In fact, a health care board is not
composed of individual experts but rather of representatives of the
same political parties which decide on budgetary items in the municipal
councils.
I do not see any objection to a system in which this kind of
board is composed of delegates of political parties. One may expect
some minimum of party discipline from party members. One may therefore
also expect that the representatives of the political parties will
strive for the same policy decisions (in particular with respect to the
spending of available funds) in a federative health care board as in
other municipal organs.
As a federative health care board is composed of the political
parties of the municipalities and the applicant does not properly
represent a political party, he has no right to sit on such a board.
I do not see that this affects his freedom of association. For any
function in a political party (such as president, secretary, or
representative in the municipal council or in a board) one must be a
party member. If the applicant does not want to join the party, he is
not qualified for a function representing that party. I cannot see that
this infringes in any way Article 11.
Article 14 prohibits discrimination in the enjoyment of the
rights and freedoms set forth in the Convention. As no such right or
freedom is at stake, Article 14 is not applicable.
(Or. English)
PARTIALLY DISSENTING OPINION OF Mr. C.L. ROZAKIS
I regret that I am unable to join the majority of the Commission
in its finding of a non-violation of Article 11 in this case. The
reasons which have led me to the conclusion that Article 11 has been
violated are basically two:
1. When considering whether the applicant's membership of the Health
Care Board required that he be a member of the National Coalition
Party, the administrative courts in Finland based themselves on section
122, subsection 4 of the 1976 Act. This Act by no means directly
imposes a requirement of party or group membership on someone wishing
to become a member of an organ of a municipal federation (or a
subsequent municipal consortium). Equally, no statute of lower rank nor
any previous domestic case-law supporting this interpretation of the
1976 Act has been referred to by the parties. Under such circumstances,
and taking into account the wording of section 122 of the 1976 Act as
well as the decision of a major political party to consent to its being
represented by the applicant (presumably a decision taken on the basis
of some experience among the party members of the practice followed in
such cases), one may already conclude that the judgments of the
administrative courts restricted the applicant's negative freedom of
association without any clear, unambiguous and predictable rules of law
or past case-law justifying such a restriction.
2. The annulment by the administrative courts of his election to the
Health Care Board had direct repercussions on the personal and
professional situation of the applicant, who had been occupying his
seat on the Board while the proceedings concerning his election had
been pending. The annulment meant, of course, that the applicant lost
his seat.
The majority of the Commission do not deny that the annulment of
the applicant's election had adverse repercussions on him. Instead they
enter into an assessment of the exact significance of those
repercussions, in an effort to show that the negative effects on the
applicant were insignificant and that, anyway, the fact that he had
agreed to represent the National Coalition Party on the Health Board
"indicates that there were no insurmountable ideological differences
between himself and that party which would, for reasons of conscience,
have made it impossible for him to join the party in order to retain
his seat on the Board" (paragraph 50 of the Report).
These arguments are not convincing to me. The argument that the
applicant was already at the time of his election to the Health Care
Board employed as the Director of the municipality of Padasjoki and
that, therefore, his board membership "does not ... appear to have been
of any particular significance to him", does not deal with the issue
that a person lost a post of some political significance and was
deprived of the honour to represent a political party just because he
did not want to join that party. Instead of entering into the merits
of the problem, the argument advanced by the majority tries to
circumvent it and find peripheral issues to counterbalance the
applicant's loss of a post which was rather prestigious to him.
Furthermore, the argument that the applicant had, in any event,
the choice of becoming a member of the National Coalition Party in
order to retain his seat on the Health Care Board is clearly a petitio
principii. It is exactly the fact that he did not wish to become a
member of the party and still retain his seat which lies at the heart
of his complaint that his negative freedom of association was not
respected. This freedom which he ought to have enjoyed was disregarded
by the Finnish authorities.
Full & Egal Universal Law Academy