AS TO THE ADMISSIBILITY OF
Application No. 19576/92
by Teuvo KOMULAINEN
against Finland
The European Commission of Human Rights sitting in private on
10 October 1994, the following members being present:
MM. C.A. NØRGAARD, President
S. TRECHSEL
A. WEITZEL
F. ERMACORA
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
Mrs. G.H. THUNE
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
G.B. REFFI
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
N. BRATZA
I. BÉKÉS
J. MUCHA
E. KONSTANTINOV
D. SVÁBY
G. RESS
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 16 January 1992
by Teuvo KOMULAINEN against Finland and registered on 3 March 1992
under file No. 19576/92;
Having regard to :
- reports provided for in Rule 47 of the Rules of Procedure of the
Commission;
- the observations submitted by the respondent Government on
21 December 1993 and the observations in reply submitted by the
applicant on 11 February 1994;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a Finnish citizen born in 1942 and resident at
Padasjoki, where he is the municipal director.
The facts of the case, as submitted by the parties, may be
summarised as follows.
Particular circumstances of the case
On 8 February 1989 the applicant was elected member of the Health
Care Board (terveyslautakunta, hälsovårdsnämnden) of the Municipal
Health Care Federation (kansanterveystyön kuntainliitto,
kommunalförbundet för folkhälsoarbetet) of Asikkala and Padasjoki by
the Federative Council (liittovaltuusto, förbundsfullmäktige).
Following an appeal by a member of the municipality of Padasjoki
challenging the legality of the election of the members of the Health
Care Board in general the County Administrative Court (lääninoikeus,
länsrätten) of Häme on 19 November 1990 found that the applicant's
election was unlawful. The Court noted that out of the twelve members
of the Health Care Board four represented the National Coalition Party
r.p. (kansallinen kokoomus r.p., nationella samlingspartiet r.p.;
hereinafter "the National Coalition Party"). However, only three of
those board members were members of that party, whilst the fourth one
(the applicant) was independent. The applicant's election had therefore
violated section 122, subsection 4 of the 1976 Act on Municipalities
(kunnallislaki 953/76, kommunallag 953/76; hereinafter "the 1976 Act").
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 the position of trust at issue.
Before the Supreme Administrative Court the National Coalition
Party stated that already at the time of his election it had accepted
that the applicant would occupy one of the four positions of the Health
Care Board to which the party was entitled despite the fact that he was
not a member of that or any other party or political group represented
on the Board. This position of the party had remained unchanged.
On 16 August 1991 the Supreme Administrative Court upheld the
County Administrative Court's decision by 3 votes against 2. The
majority considered 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. The
applicant, however, had been elected, although he had been independent
both from the parties and the other groups represented on the Board.
His election as the "representative" of the National Coalition Party
without his being a member of that party therefore violated section
122, subsection 4.
The minority of the Supreme Administrative Court considered that
the applicant's election had been in accordance with section 122,
subsection 4. As the National Coalition Party had agreed and continued
to agree to his representing that party as an independent board member,
his membership of the Board could not be dependent on whether or not
he was a member of that party.
The proceedings before the administrative courts were conducted
exclusively in writing.
In the light of the Supreme Administrative Court's judgment the
Federative Council on 9 October 1991 proceeded to a new election of
members, the applicant not being re-elected.
Relevant domestic law
1. The protection of the negative freedom of association
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).
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
No one shall decline to occupy 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).
3. The requirement of fair representation in municipal federative
bodies of the groups represented in the relevant municipal
councils
The composition of the bodies of elected representatives of a
federation of municipalities shall correspond to the relative support
enjoyed by the groups represented in the relevant municipal councils
(kunnanvaltuustot, kommunfullmäktige) on the basis of the results of
municipal elections (section 122, subsection 4 of the 1976 Act, as in
force up to 1 January 1993).
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. This is not submitted for 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, para. 4, as
amended by Act no. 979/92). If the charter is not amended to include
a provision on representation, the repealed section 122, subsection 4
shall continue to be applicable to the appropriate extent (the
transitional provision in Act no. 979/92).
COMPLAINTS
1. The applicant complains that the requirement that he should be
a member of the National Coalition Party in order to be eligible for
the position of trust at issue which had been allotted to that party
violates his negative freedom of association and further discriminates
against him because he is politically independent. He further submits
that the requirement that he should belong to a party which has,
nevertheless, accepted him as its representative, prevents him from
fulfilling his citizen's duty to accept a municipal position of trust.
He invokes Article 11 of the Convention both alone and in conjunction
with Article 14.
2. The applicant further complains that he was never heard in the
administrative court proceedings.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 16 January 1992 and registered
on 3 March 1992.
On 11 October 1993 the Commission decided to bring the
application to the notice of the respondent Government and to invite
them to submit written observations on the admissibility and merits of
the complaint under Articles 11 and 14 of the Convention.
The observations were submitted by the respondent Government on
21 December 1993. Observations in reply were submitted by the applicant
on 11 February 1994.
THE LAW
1. The applicant complains that the requirement that he should be
a member of the National Coalition Party in order to be eligible for
the position of trust at issue which had been allotted to that party
violates his negative freedom of association and further discriminates
against him because he is politically independent. He invokes Article
11 (Art. 11) of the Convention both alone and in conjunction with
Article 14 (Art. 11+14).
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."
Article 14 (Art. 14) of the Convention 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."
The Government submit that Article 11 (Art. 11) alone has not
been violated, since there has been no interference with the
applicant's negative freedom of association. In any case, his freedom
has not been struck at its very substance by the requirement of party
membership. Not being legally eligible for the position of trust at
issue according to the Supreme Administrative Court's interpretation
of the 1976 Act in his case, the applicant can no longer be considered
to have any duty to accept that position. Moreover, although he could
not be elected to the position of trust allotted to the National
Coalition Party, he would, as a politician independent from the
parties, in principle have been eligible for a position of trust
allotted to another group than a party.
Should the Commission find an interference with the applicant's
negative freedom of association, the Government submit that his lack
of eligibility for the position of trust allotted to the National
Coalition Party was prescribed by law, as interpreted by the Supreme
Administrative Court. They admit, however, that obviously not all
consequences of the Supreme Administrative Court's judgment in the
applicant's case were foreseeable when section 122, subsection 4 of the
1976 Act was enacted. The Government further consider that the
interference was necessary in a democratic society for the protection
of the rights and freedoms of others. The aim of section 122,
subsection 4 of the 1976 Act was to secure that the different political
groups represented in the relevant municipal councils were fairly
represented in the municipal federations. It further safeguarded party
members from a situation where their party would be represented by a
non-member. In the present case, however, the Government admit that the
members of the National Coalition Party were involved in accepting the
applicant as representative of their party. Nevertheless, the
Government argue that the State's margin of appreciation has not been
exceeded by the requirement that a political party shall be represented
in the bodies of a municipal federation by one of its members. The
Government conclude that the afore-mentioned aims constitute such a
pressing social need as required for justifying an interference with
the applicant's freedom under Article 11 (Art. 11).
As regards the complaint under Article 14 in conjunction with
Article 11 (Art. 14+11), the Government submit that the applicant has
not been discriminated against as a result of his lack of eligibility
for the position of trust allotted to the National Coalition Party. Not
being a member of that party, his situation was similar to that of
members of other parties, who were not eligible for a position of trust
allotted to the National Coalition Party either. 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.
Securing this aim required that the applicant be a member of the
National Coalition Party. Neither were the means employed to this end
disproportionate to that aim. The Government therefore conclude that
there existed an objective and reasonable justification for the
applicant's lack of eligibility for the position allotted to that
party.
The applicant considers it to be evident from the wording of
section 122, subsection 4 of the 1976 Act that the intention of
Parliament was not to require party membership, but to aim at a fair
representation in the bodies of the municipal federations of the groups
represented in the relevant municipal councils. This aim is possible
to achieve without basing the eligibility for a position of trust
exclusively on party membership. This is particularly true in the
applicant's case, since the party at issue had accepted him as its
representative without requiring him to become its member.
The applicant further emphasises that his negative freedom of
association is protected by the Constitution Act and must therefore be
considered to have priority over section 122, subsection 4 of the 1976
Act and the privileges afforded to the political parties by the Supreme
Administrative Court's interpretation of that provision in his case.
In Finland no more than about 500.000 out of a total of about 3.800.000
persons entitled to vote are members of a political party. A majority
of the last-mentioned group vote in the municipal elections. There is,
accordingly, no pressing need for reserving positions of trust
exclusively to party members. On the contrary, the membership
requirement unjustifiably favours the parties at the expense of the
large majority of voters who are not members of any party, but
nevertheless constitute almost 90 per cent of the voting population.
This privileged position of the parties is unreasonable and
disproportionate.
The applicant finally refers to the European Charter of Local
Self-Government (European Treaty Series no. 122) which entered into
force with regard to Finland on 1 October 1991. According to its
Article 7 (Art. 7), the conditions of office of local elected
representatives shall provide for free exercise of their functions.
The Commission has carried out a preliminary examination of the
complaint under Articles 11 and 14 (Art. 11, 14) of the Convention. It
considers that it raises questions of fact and law of such a complex
nature that their determination requires an examination of the merits.
This complaint cannot therefore be declared inadmissible as being
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention. No other reason for declaring the
complaint inadmissible has been established.
2. The applicant further complains that he was never heard in the
administrative court proceedings.
The Commission has examined this complaint in the light of
Article 6 para. 1 (Art. 6-1) of the Convention which, in its relevant
parts, reads as follows:
"In the determination of his civil rights and obligations
..., everyone is entitled to a fair and public hearing ...
by an independent and impartial tribunal established by
law. ..."
The Commission recalls, however, that litigation concerning the
validity of legislative or communal elections involves the
determination of political rights which do not fall within the notion
of civil rights and obligations as referred to in Article 6 para. 1
(Art. 6-1) (No. 18997/91, Dec. 28.2.94, D.R. 76-A p. 65 with further
reference). In the Commission's view similar considerations apply in
regard to the proceedings concerning the applicant's eligibility for
his position of trust on a body belonging to a federation of
municipalities.
It follows that this complaint is incompatible ratione materiae
with the provisions of the Convention within the meaning of Article 27
para. 2 (Art. 27-2).
For these reasons the Commission, by a majority,
DECLARES ADMISSIBLE, without prejudging the merits, 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; and
DECLARES INADMISSIBLE the remainder of the application.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
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