AS TO THE ADMISSIBILITY OF
Application No. 27411/95
by L.G.
against Sweden
The European Commission of Human Rights (Second Chamber) sitting
in private on 15 May 1996, the following members being present:
Mrs. G.H. THUNE, Acting President
MM. H. DANELIUS
G. JÖRUNDSSON
J.-C. SOYER
H.G. SCHERMERS
F. MARTINEZ
L. LOUCAIDES
J.-C. GEUS
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
P. LORENZEN
Ms. M.-T. SCHOEPFER, 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 3 March 1994 by
L.G. against Sweden and registered on 26 May 1995 under file
No. 27411/95;
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 applicant is a Swedish citizen, born in 1953. He resides at
Eringsboda.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
On 20 July 1989 the applicant instituted proceedings against a
company before the District Court (Tingsrätten) of Ronneby. The
applicant claimed that he had been employed by the company for a period
of four weeks from 10 April 1989. An employment agreement had allegedly
been concluded on 4 or 5 April between a representative of the company
and E.P., an official of the local Employment Office (Arbets-
förmedlingen), acting as the applicant's representative. However, on
10 April, some hours after the applicant had appeared at the place of
work, the company's representative had told him to leave. The applicant
maintained that he had been dismissed without objective grounds and
that the company had breached certain provisions of the Act on Security
of Employment (Lagen om anställningsskydd, 1982:80). He therefore
claimed that the company was liable to pay damages.
The District Court held a preparatory hearing in the case on
25 February 1991. It was decided that the main hearing should be held
in September 1991. However, despite repeated inquiries by the applicant
in 1991 and 1992, there was no hearing during these years.
In June 1992 the District Court asked the applicant if the case
could be decided without a hearing. The applicant answered in the
negative.
The applicant was later summoned to a hearing scheduled for
23 March 1993. The hearing was, however, postponed as the Court's
president had fallen ill.
Eventually, the main hearing took place on 7 May 1993. At the
request of the company, two of its employees, including the above-
mentioned representative, and a second official of the Employment
Office, gave testimony before the Court. At the beginning of the
hearing, the parties were, however, informed by the Court that E.P.,
who had been called as a witness by both parties, was unable to appear
as he was, at the time, on vacation in Austria. Instead, he gave
evidence by telephone. At the end of the hearing, the applicant
objected to this procedure. He requested that the hearing should
continue at a later date and that E.P. should be summoned to appear in
person. The Court, however, rejected this request.
By judgment of 26 May 1993, the District Court found against the
applicant. The Court considered that he had failed to show that an
employment agreement had been concluded between him and the company.
The applicant appealed to the Labour Court (Arbetsdomstolen). He
requested, inter alia, that the case be referred back to the District
Court for a re-hearing during which E.P. should give evidence in
person. He further adduced, as new evidence, a tape recording of his
conversations with E.P. on 4 April 1989 and the company's
representative on 5 April 1989 as well as notes from the file of the
Employment Office.
On 28 January 1994 the Labour Court decided that the District
Court's hearing of E.P.'s testimony by telephone did not constitute a
procedural error and that the case should thus not be referred back to
the District Court.
By decision of 8 June 1994, the Labour Court further refused to
admit the new evidence submitted by the applicant, as he had not shown
a valid excuse for not having brought the evidence before the District
Court.
The Labour Court summoned the parties and E.P. to a hearing on
6 December 1994. This hearing was, however, cancelled as E.P. was
unable to appear.
On 28 February 1995 the Labour Court held its hearing in the
case. E.P. gave evidence in person. The testimonies of the other
witnesses who had given evidence in the District Court were played back
during the hearing.
By a final judgment of 22 March 1995, the Labour Court upheld the
District Court's judgment.
The Labour Court was composed in accordance with Chapter 3,
Section 6, subsection 2 of the Act on Litigation in Labour Disputes
(Lagen om rättegången i arbetstvister, 1974:371), i.e. with one
professional judge and two lay assessors. One assessor had been
nominated by an employers' organisation and one by an employees'
organisation.
COMPLAINTS
Invoking Article 6 of the Convention, the applicant makes the
following complaints:
- The Labour Court's judgment was not in line with relevant
domestic case-law.
- The Labour Court refused to examine the tape recordings the
applicant had adduced as evidence. Furthermore, E.P. was allowed to
give evidence by telephone in the District Court, although the
applicant had requested that he should appear in person. Allegedly,
E.P.'s testimony in the Labour Court did not remedy the deficient
taking of evidence in the District Court, since the Labour Court, as
composed, was not an impartial tribunal.
- Both the District Court and the Labour Court failed to examine
whether the two Employment Office officials giving evidence in the case
had interests which could affect the credibility of their testimony.
- The dispute in question was not determined within a reasonable
time. Allegedly, the period to be taken into account began on
20 July 1989 and ended on 22 March 1995. The proceedings thus lasted
five years and eight months.
THE LAW
1. The applicant complains that the Labour Court's judgment was not
in line with relevant domestic case-law. The applicant invokes
Article 6 (Art. 6) of the Convention which, in so far as relevant,
reads as follows:
"1. In the determination of his civil rights and
obligations ..., everyone is entitled to a fair ... hearing
within a reasonable time by an independent and impartial
tribunal ..."
The Commission, however, recalls that, in accordance with
Article 19 (Art. 19) of the Convention, its only task is to ensure the
observance of the obligations undertaken by the Parties to the
Convention. In particular, it is not competent to deal with a complaint
concerning errors of law and fact allegedly committed by domestic
courts, except where it considers that such errors might have involved
a possible violation of any of the rights and freedoms set out in the
Convention or its Protocols. The Commission refers, on this point, to
the established case-law of the Commission and the European Court of
Human Rights (cf., e.g., No. 21283/93, Dec. 5.4.94, D.R. 77-A pp. 81,
88, and Eur. Court H.R., Klaas v. Germany judgment of 22 September
1993, Series A no. 269, p. 17, para. 29).
The Commission finds that an examination of the applicant's
submissions in respect of the present complaint do not disclose any
appearance of a violation of the Article invoked.
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 applicant claims that the Labour Court should have examined
the tape recordings adduced as evidence by him, as they would refute
and supplement the testimony given by E.P. He contends that the
recordings could not be brought before the District Court, as E.P. did
not appear in person at the District Court hearing. The applicant
further complains of the fact that E.P. was allowed to give evidence
by telephone in the District Court despite the applicant's request that
he should appear in person. The applicant was not informed in advance
of this procedure. Moreover, as E.P. did not have relevant documents
at hand when he gave testimony in the District Court, the applicant was
allegedly unable to put questions in the way he had prepared. The
applicant further asserts that E.P.'s appearance in person in the
Labour Court did not remedy the deficient taking of evidence in the
District Court, since the Labour Court, as composed, was not an
impartial tribunal. Also in respect of these complaints, the applicant
invokes Article 6 (Art. 6) of the Convention.
The Commission first points out that the Convention does not
explicitly secure to persons suing for damages the right to have
witnesses examined. The right is secured, under Article 6 para. 3 (d)
(Art. 6-3-d), only to persons charged with criminal offences.
Furthermore, the taking of evidence is governed by the rules of
domestic law. The admissibility and assessment of evidence are in
principle matters for the national courts. The Commission's task under
the Convention is to ascertain whether the proceedings, as a whole,
were fair (cf. Eur. Court H.R., Bricmont judgment of 7 July 1989,
Series A no. 158, p. 31, para. 89, and Saïdi v. France judgment of 20
September 1993, Series A no. 261-C, p. 56, para. 43).
In the present case, the Commission recalls that the Labour Court
held a hearing in the case, during which E.P. was present and gave
evidence. There is no indication that the applicant was unable to
examine this witness in full during the Labour Court hearing.
Furthermore, with respect to the new evidence introduced by the
applicant in the Labour Court, the Commission recalls that it was not
admitted as the applicant had failed to show a valid excuse for not
having brought the evidence before the District Court. The Commission,
considering that only exceptional circumstances would prompt it to
conclude that a decision not to admit evidence was incompatible with
Article 6 (Art. 6) of the Convention, finds that no such circumstances
existed in the present case. In particular, the Commission considers
that the Labour Court gave justifiable reasons for its decision and
that there is no appearance of arbitrariness on the part of the Court.
Thus, the Commission cannot find that the court proceedings,
taken as a whole, were unfair.
The applicant claims, however, that the Labour Court was not an
impartial tribunal. He refers to the participation of lay assessors
representing employers' and employees' interests and points out that
he is not a member of a trade union. He invokes the judgment of the
European Court of Human Rights in the Langborger case (Eur. Court H.R.,
Langborger judgment of 22 June 1989, Series A no. 155).
The Commission notes that the applicant has not called into
question the independence of the Labour Court. In order to establish
whether it could be considered impartial, two tests must be made: a
subjective test under which it is sought to establish the personal
conviction of a given judge in a given case, and an objective test,
aimed at ascertaining whether the judge offered guarantees sufficient
to exclude any legitimate doubt in this respect (cf. the
above-mentioned Langborger judgment, p. 16, para. 32, and Eur. Court
H.R., Holm judgment of 25 November 1993, Series A no. 279-A, p. 14,
para. 30).
In the Langborger case, the Commission and the Court were seized
with an issue of a similar nature regarding the Swedish Housing and
Tenancy Court (Bostadsdomstolen) where the lay assessors had been
nominated by the dominating unions on the housing and rent market and
where the dispute before the Housing and Tenancy Court concerned the
question whether a negotiation clause in the applicant's lease should
be retained. The European Court of Human Rights stated, inter alia, as
follows (Langborger judgment, p. 16, paras. 34-35):
"34. Because of their specialised experience, the lay
assessors, who sit on the Housing and Tenancy Court with
professional judges, appear in principle to be extremely
well qualified to participate in the adjudication of
disputes between the landlords and tenants and the specific
questions which may arise in such disputes. This does not,
however, exclude the possibility that their independence
and impartiality may be open to doubt in a particular case.
35. In the present case there is no reason to doubt the
personal impartiality of the lay assessors in the absence
of any proof.
As regards their objective impartiality and the question
whether they presented an appearance of independence,
however, the Court notes that they had been nominated by,
and had close links with, two associations which both had
an interest in the continued existence of the negotiation
clause. As the applicant sought the deletion from the lease
of this clause, he could legitimately fear that the lay
assessors had a common interest contrary to his own and
therefore that the balance of interests, inherent in the
Housing and Tenancy Court's composition in other cases, was
liable to be upset when the court came to decide his own
claim.
The fact that the Housing and Tenancy Court also included
two professional judges, whose independence and
impartiality are not in question, makes no difference in
this respect."
In the present case, the applicant does not challenge the
personal impartiality of the lay assessors. In the absence of any
evidence to the contrary, the Commission finds no reason to doubt their
personal impartiality.
With respect to their objective impartiality, the Commission
considers that, in accordance with the principles developed in the
Langborger case, the decisive issue is whether the balance of interests
in the composition of the Labour Court was upset and, if so, whether
any such lack of balance could make the Court not satisfy the
requirements of impartiality in the determination of the particular
dispute before the Court. This could be so either if the lay assessors
could appear to have a common interest contrary to those of the
applicant or if their interests, although not common, were such that
they could nevertheless be considered to be opposed to those of the
applicant (cf. No. 12733/87, Stallarholmens Plåtslageri o Ventilation
Handelsbolag and Others v. Sweden, Dec. 7.9.90, D.R. 66 p. 111).
In this respect, the Commission recalls that, in the Langborger
case, the applicant had sought the deletion from his lease of a clause
which had previously been agreed upon between organisations having
close links with the organisations which had nominated the lay
assessors sitting in that applicant's case. The dispute in that case
had accordingly a clear link with the interests of the organisations.
Consequently, both sides represented by the lay assessors could be said
to have a common interest opposed to the applicant's claim.
In the present case, the dispute before the Labour Court was of
a different nature. It concerned the questions whether an employment
contract had been concluded between the applicant and the company in
question and, if so, whether the company had breached certain
provisions of the Act on Security of Employment. The nature of this
dispute was such that the lay assessors and the organisations which had
nominated them could not objectively have had any other interest than
to see to it that these questions were correctly determined. This
interest could not be contrary to that of the applicant.
In the light of the foregoing, the Commission considers that the
applicant could not legitimately fear that the lay assessors had
interests contrary to his own or that the balance of interests was
upset to such an extent that they did not satisfy the requirements of
impartiality.
It follows that this part of the application is also manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
3. Further under Article 6 (Art. 6) of the Convention, the applicant
contends that both the District Court and the Labour Court failed to
examine whether the two Employment Office officials giving evidence in
the case had interests which could affect the credibility of their
testimony. The applicant argues that a finding by the courts in his
favour would have shown that the officials' handling of the matter had
been deficient.
Recalling that the assessment of evidence is in principle a
matter for the national courts, the Commission finds that an
examination of this complaint as it has been submitted does not
disclose any appearance of a violation of the Article invoked.
It follows that this part of the application is also manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
4. The applicant finally contends that the dispute in question was
not determined within a reasonable time as required by Article 6
(Art. 6) of the Convention. The period to be taken into account began
on 20 July 1989 and ended on 22 March 1995. The proceedings thus lasted
five years and eight months.
The Commission finds that it cannot, on the basis of the file,
determine the admissibility of this complaint and that it is therefore
necessary, in accordance with Rule 48 para. 2 (b) of the Rules of
Procedure, to give notice of this complaint to the respondent
Government and to invite the Government to submit written observations
on the admissibility and merits thereof.
For these reasons, the Commission, unanimously,
DECIDES TO ADJOURN the examination of the applicant's complaint
that his case was not determined within a reasonable time;
DECLARES INADMISSIBLE the remainder of the application.
Secretary Acting President
to the Second Chamber of the Second Chamber
(M.-T. SCHOEPFER) (G.H. THUNE)
Full & Egal Universal Law Academy