AS TO THE ADMISSIBILITY OF
Application No. 12090/86
by Monica Lilja
against Sweden
The European Commission of Human Rights sitting in private
on 4 July 1989, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
F. ERMACORA
E. BUSUTTIL
A. WEITZEL
H.G. SCHERMERS
H. DANELIUS
G. BATLINER
H. VANDENBERGHE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
Mr. L. LOUCAIDES
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
14 October 1985 by Monica Lilja against Sweden and registered on
7 April 1986 under file No. 12090/86;
Having regard to the report provided for in Rule 40 of the
Rules of Procedure of the Commission;
Having regard to the observations submitted by the respondent
Government on 19 May 1988 and the observations submitted by the
applicant on 6 July 1988 as well as the submissions of the parties at
the hearing held on 4 July 1989;
Having deliberated;
Decides as follows:
THE FACTS
The facts of the case, as submitted by the parties, may be
summarised as follows.
The applicant is a Swedish citizen, born in 1949. She is a
nurse and resides at Säffle, Sweden. She is represented by Mr. Göran
Ravnsborg, University of Lund, Sweden.
A. The particular facts of the case
The applicant has been a member of the Swedish Municipal
Workers Union (svenska kommunalarbetareförbundet) since March 1983.
Through this membership the applicant falls under the umbrella of the
Swedish Trade Union Confederation (Landsorganisationen). On
23 November 1984 the representative body of the applicant's local
union branch No. 55 decided to terminate the arrangement under which
members of the branch wishing to join the Social Democratic Party
(SAP) should register themselves as members of the party, and to
return to the old form of collective affiliation to the SAP.
The decision by the representative body was followed up by an
agreement on collective party membership between the branch No. 55 and
the SAP. On 28 November 1984 the local trade union branch informed
the applicant of the decision taken and that she would be considered
as collectively admitted to the SAP as from 1 January 1985 onwards.
The applicant was informed however that if she did not want to be a
party member she could exclude membership by notice in writing to the
local trade union branch.
Since the applicant was of the opinion that neither the trade
union branch nor the SAP was in any respect legally qualified to act
on her behalf on matters concerning membership of a political party,
she did not submit any written reservation to the union. In
consequence of this the applicant submits that she was treated as
being a member of the SAP from 1 January 1985 and her trade union
branch started paying an alleged party membership fee in her name and
on her behalf. The SAP accepted the payment as a membership fee paid
on the applicant's account and registered her as a party member.
The applicant who is voluntarily and according to her own
option an active member of another political party found the situation
created by her local trade union branch and the SAP embarrassing and a
violation of her right to freedom of thought and conscience as well as
a violation of her right to negative freedom of association. She
found that the only acceptable remedy against these violations of her
human rights was to obtain from the Government an official and
authoritative statement against the activities of the trade union and
the SAP. On 18 July 1985 she accordingly requested the Government,
with reference to Articles 9 and 11 in conjunction with Articles 1, 13
and 17 of the Convention, to declare the decision of the local trade
union branch concerning the collective affiliation to the SAP to be
null and void. She also requested the Government to declare that she
was not a member of the SAP. Furthermore, she requested the
Government to forbid the SAP to consider her as a party member and
finally she requested compensation representing the amounts that had
allegedly been paid to the party as membership fees.
By decision of 19 September 1985 the Government refused to
examine the complaints referring to Chapter 11 Section 3 of the
Instrument of Government (regeringsformen) in which it is stated that
a legal dispute between individuals is to be settled by a court.
Furthermore the Government stated that no legal rules existed which
provided that such disputes should be examined by the Government. The
applicant did not, however, bring any complaints before the Swedish
courts.
In November 1985 the applicant's case became the subject of a
debate in the Swedish Parliament. One of its members had put a
question to the Minister of Justice in which she asked what legal
grounds the applicant could invoke if she wanted to bring the question
of her affiliation to the SAP before a Swedish court. The Minister
answered, referring to a fundamental principle in the Swedish
Constitution, that political bodies should not interfere with the
application of the law by the courts in individual cases and added
that he, as a member of the Government, should not express himself
upon the question of how a legal dispute beween private persons or
associations should be decided. Nor should he explain in what way a
private person should present his case before a court. Such a
statement, the Minister said, would clearly be in contravention of the
Constitution. For that reason the member who had put the question did
not receive an answer on the substance of the matter.
In September 1987 the SAP decided to amend its charter.
Pursuant to this amendment membership of the SAP can be obtained only
by personal application. This amendment will apply as of the
31 December 1990 at the latest.
B. Relevant domestic law and practice
According to Swedish law a trade union as well as a political
party is an association (förening) under private law. The law makes a
distinction between incorporated or profit-making associations
(ekonomiska föreningar) on the one hand and unincorporated or
non-profit-making associations (ideella föreningar) on the other. An
association is regarded as an incorporated association if the aim of
the association is to support its members' financial interests through
financial activities or otherwise. All other associations are
regarded as unincorporated associations. A political party is
regarded as an unincorporated association. Examples of other
unincorporated associations are sport clubs, private religious
associations and trade unions.
Incorporated associations are governed by a special Act.
There is no corresponding law with regard to unincorporated
associations. Thus, there is no law regulating how such an
association should be constituted, under what conditions membership is
obtained or members can be excluded, nor regarding the decision-making
procedure etc. Such associations must nevertheless observe the
provisions laid down in the laws which apply generally, e.g. the
Swedish Accounting Act of 1976 (bokföringslagen). Conclusions may
also be drawn by analogy from an interpretation of the provisions in
the Act regarding incorporated associations.
An important norm for the activities of an unincorporated
association is the charter of the association in question. In Swedish
case-law the existence of a charter regulating i.a. the constitution
and the activities of an association is required, if the association
in question shall be recognised as a legal person with a legal
capacity (rättskapacitet) of its own. By legal capacity is understood
the ability to acquire and maintain legal rights and obligations. The
charter may be regarded as an agreement into which those persons who
are members of the association have entered. A charter may be
amended. In general there are rules on amendments in the charter. In
order to become a member of an association a person normally has to
apply for membership. The association in question then takes a
decision on the application. Membership can also be obtained at the
time of the constitution of the association. A person's membership of
an association ceases to exist if the person in question is expelled
or if he or she chooses to cancel the membership.
The conditions for membership of an association have inter
alia been considered by the Supreme Court (Högsta domstolen) in a case
(NJA 1958 p. 438) where the Court examined whether two persons, both
members of a certain unincorporated association, had become members of
another association simply by an amendment of the charter of the
association of which they were members.
The Supreme Court stated i.a. that for somebody to be a member
of an association, whether profit-making or non-profit-making, it
should be required that the person in question has expressed his wish
to become a member but that such a wish could be expressed by tacit
agreement (konkludent handlande). Having said this, the Court stated
in regard to the concrete case that the wording of the charter of the
association in question before the amendment was introduced did not
permit the conclusion that a person who had joined the association had
accepted in advance to become a member of the other association. For
that reason the two complaining members were not regarded as members
of the association to which their own association wanted to have them
affiliated.
Another case (NJA 1987 p. 394) concerned the question whether
the decision-making body of a trade union was authorised to conclude an
insurance on behalf of all its members without their consent. The
Supreme Court concluded from general legal principles that any member
of an unincorporated association is entitled to have examined whether
a decision taken by the supreme decision-making body of the
association violates the charter of the association in which case it
should be declared null and void.
The question of collective affiliation has been considered on
several occasions by the Swedish Parliament and several motions have
been submitted for the purpose of having such affiliation prohibited
by law. One such motion (1983/84:335) was considered by the Swedish
Law Council (Lagrådet) which made the following statement in its
opinion of 26 February 1985:
(translation)
"As regards the question whether the proposed law may be
considered to satisfy the purpose behind the proposal, the Law
Council will first briefly examine how membership of a
political party may come into being as a result of a decision
on collective affiliation. From the case NJA 1958 p. 438 it
appears that in order for a person to become a member of an
unincorporated association - such as political associations -
a declaration of intention by that person is required. Such an
intention could, however, be expressed by a so-called tacit
agreement. Already on this basis one could consider that valid
membership may be established through collective affiliation.
It even appears possible that the trade union charter may
contain a provision according to which a member of the union
also becomes a member of a particular political party or that
the union has the right to decide in such matters, although
the validity of such a provision, having regard to the
above-mentioned case, appears to be somewhat unclear (cf. Nial
in Svensk Juristtidning 1960 p. 502). The importance it may
have that collective affiliation in this particular field has
taken place for a very long period of time should also be
taken into consideration."
In an article published in 1985 in "Essays in honour of
Justice Henrik Hessler" and entitled "Kollektivanslutning till
hemförsäkring och till politiskt parti" ("Collective affiliation to
home insurance and to a political party") Professor Anna Christensen,
while referring to the 1958 Supreme Court judgment and to the Law
Council's statement, has advocated the view that membership of a
political party requires the consent of each member and that,
therefore, neither a trade union's decision of collective affiliation
nor the individual member's failure to object to his or her
affiliation is sufficient to create membership of the SAP.
Freedom of association is one of the fundamental freedoms
under the Swedish Constitution. This applies to the positive as well
as the negative part of this freedom.
By Chapter 2, Section 1 para. 5 of the Instrument of
Government every citizen is guaranteed freedom of association in
relation to the "community" (the Government and public authorities).
This freedom is explained as the freedom to unite with others for
public or private purposes (positive freedom of association).
According to Chapter 2, Section 2 protection is provided for every
citizen against any compulsion to belong to a political association, a
religious community or any other association for political, religious
or cultural opinions (negative freedom of association).
These provisions read as follows:
"Section 1. Every citizen shall in relation to the community
be guaranteed ...
5. the freedom of association; the freedom to unite with
others for public or private purposes,
...
Section 2. Every citizen shall in relation to the community
be protected againt any compulsion to make known his
opinion in any political, religious, cultural or other such
matter. In relation to the community he shall furthermore
be protected against any compulsion to participate in any
meeting for the purpose of the formation of opinions or in
any demonstration or other expression of opinions or to
belong to a political association, a religious community or
any other association for such opinions as referred to in
the first sentence."
The positive freedom of association may be restricted, but
only by law. Restrictions are allowed only with regard to such
associations the activities of which are of a military or similar
nature or which involve the persecution of a national group, of a
particular race, of a particular skin colour, or of a particular ethnic
origin. This is laid down in Chapter 2, Sections 12 and 14 of the
Instrument of Government.
The same Instrument also prescribes other conditions for
restrictions on the freedom of association. However, no restrictions
are allowed with regard to the negative freedom of association. This
freedom applies equally to Swedish and non-Swedish citizens. The
positive freedom of association applies in a corresponding way,
provided no restrictions are laid down in any other law.
The freedom of association gives protection in relation to the
"community", i.e. the Government and the public authorities. It does
not apply in relation to individuals or to private legal bodies or
other private associations.
The Contracts Act of 1915 (avtalslagen) contains a special
provision, Section 36, according to which a court may rule that a
provision in a contract or agreement, which is deemed unfair or
unreasonable, shall be disregarded or be applied in a reasonable way.
This provision, which has been applied to the charter of an
association, reads as follows:
(translation)
"A condition in a contract may be modified or set aside if the
condition is unreasonable having regard to the contents of the
contract, the circumstances when it was concluded, the
circumstances which have occurred subsequently or any other
circumstances."
According to Chapter 13, Section 2 of the Swedish Code of
Judicial Procedure (rättegångsbalken) a court may give a declaratory
judgment as to whether or not a certain legal relationship exists
between two parties. This provision reads as follows:
(translation)
"An action to establish whether a specific legal relationship
exists or does not exist is admissible if there is an
uncertainty as to the legal relationship and this uncertainty
is to the detriment of the plaintiff.
If the determination of a case is dependent on whether a
specific legal relationship, which is in dispute between the
parties, exists or does not exist, an action for the
establishment thereof is also admissible."
COMPLAINTS
The applicant complains that the decision taken by her local
trade union branch on collective affiliation to the SAP, the agreement
between these two bodies concerning this matter as well as the
possibility offered to exclude herself from membership of the SAP,
constitute a violation of Articles 9, 10, 11, 14 and 17 of the
Convention.
She also complains that there is in Sweden no remedy which
she could use since the Swedish courts and administrative authorities
ignore the provisions of the Convention which excludes an appeal to
the Swedish courts as an effective domestic remedy. This also implies
that the applicant's rights secured to her by Articles 6 and 13 of the
Convention have been violated.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 14 October 1985 and
registered on 7 April 1986.
On 2 March 1988 the Commission decided to bring the
application to the notice of the respondent Government and to invite
them to submit, by 6 May 1988, written observations on the
admissibility and merits of the application.
After an extension of the time-limit the Government submitted
their observations on the admissibility of the application on 19 May
1988 and abstained from expressing themselves on the merits at this
stage.
The applicant submitted her observations on the admissibility
of the application on 6 July 1988 and, like the Government, abstained
from expressing herself further on the merits at this stage.
On 8 December 1988 the Commission decided to invite the
parties to appear before it at a hearing on the admissibility and
merits of the application.
Legal aid under the Addendum to the Commission's Rules of
Procedure was granted to the applicant on 20 January 1988.
At the hearing, which was held on 4 July 1988, the parties
were represented as follows:
The Government
Mr. Hans Corell Ministry of Foreign Affairs
Mrs. Annika Lundius Ministry of Justice
Mr. Carl Henrik Ehrenkrona Ministry of Foreign Affairs
The applicant
Mr. Göran Ravnsborg Counsel for the applicant
THE LAW
1. The applicant has complained that the decision taken by her
local trade union branch on collective affiliation of the branch's
members to the SAP and the agreement between these two bodies
concerning this matter constitute, separately as well as together, a
violation of Articles 9 and 11 (Art. 9, 11) of the Convention, each
Article in conjunction with Article 17 (Art. 9+17, 11+17) of the
Convention.
Furthermore the applicant complains that the possibility
offered by her trade union branch to exclude herself from membership
of the SAP is unacceptable since this inevitably implies a political
statement involving a violation of her right to negative freedom of
expression as set out in Article 10 (Art. 10) of the Convention.
In regard to the above complaints the applicant submits that
there is in Sweden no remedy which she could use. Chapter 2 of
the Swedish Instrument of Government protects the citizen only to a
certain extent against violations of his or her right to freedom of
thought and conscience, etc., since the protection concerns only
violations by the State or the Government and not by private subjects
such as trade unions or political parties. The Swedish courts and
administrative authorities ignore the provisions of the Convention and
due to this fact and the adoption of the so-called transformation
principle, which excludes an appeal to the Swedish courts as an
effective domestic remedy, the only Swedish authority, to which
the applicant could turn, was the Government which must respect the
guarantees and provisions of the Convention. This, however, they have
not done.
The applicant also maintains that the efforts made in Sweden
to harmonise the domestic law with the relevant guarantees of the
Convention have not been successful. This is why the applicant could
not find any domestic legal support for her claims presented to the
Swedish Government. For that reason any such claims to the Swedish
courts would be in vain. All domestic remedies have accordingly been
exhausted in accordance with Article 26 (Art. 26) of the Convention.
This also implies that the applicant's rights secured to her by
Articles 6 and 13 (Art. 6, 13) of the Convention have been violated.
Finally the applicant complains of a violation of Article 14 in
conjunction with Articles 9, 10, 11 and 17 (Art. 14+9+10+11+17) of the
Convention since only trade union members of the Swedish Trade Union
Confederation risk collective affiliation to a particular political party
against their will.
The Commission recalls that the Convention in general does not
prescribe any particular manner by which the Contracting States should
ensure within their internal law the effective implementation of the
provisions of the Convention (cf. Eur. Court H.R., Swedish Engine
Drivers' Union judgment of 6 February 1976, Series A No. 20, p. 18
para. 50). Furthermore the Court has stated that "by substituting
the words 'shall secure' for the words 'undertake to secure' in the
text of Article 1 (Art. 1), the drafters of the Convention also
intended to make it clear that the rights and freedoms set out in
Section I would be directly secured to anyone within the
jurisdiction of the Contracting States. That intention finds a
particularly faithful reflection in those instances where the
Convention has been incorporated into domestic law" (Eur. Court
H.R., Ireland v. the United Kingdom judgment of 18 January 1978,
Series A No. 25, p. 91 para. 239).
It follows that Sweden is not obliged to transform the text of
the Convention into Swedish law. However, the fact that Sweden has not
incorporated the Convention into Swedish law does not mean that
remedies available under that law may not be effective remedies for
alleged violations of the Convention.
The Commission recalls in this respect that according to
Article 26 (Art. 26) of the Convention, it may only deal with a matter
after all domestic remedies have been exhausted according to the
generally recognised rules of international law. Accordingly the
Commission will first examine whether, in relation to the complaints
submitted to the Commission, the applicant has exhausted the
remedies available to her under domestic law.
It is not in dispute between the parties that the applicant
could in principle have brought her complaints before the domestic
courts of law. However, the applicant maintains, as indicated above,
that such proceedings would be without any prospects of success. She
maintains that although the whole system of collective affiliation may
be considered "fragile", any person who would want to attack this system
could not find any arguable claims based on a legal right which could
be said to be violated by the system. Therefore the remedies available
would not be effective. In this context the Commission recalls that it
has consistently held that the rule of exhaustion of domestic remedies
requires the use of those remedies only which are effective, that is to
say capable of providing redress for the complaints submitted (cf. for
example Nos. 8805/79 and 8806/79, Dec. 7.5.81, D.R. 24 p. 144 with
further references). Furthermore it is incumbent on the respondent
Government to satisfy the Commission that the remedy was available and
effective at the relevant time (cf. Eur. Court H.R., Hauschildt
judgment of 24 May 1989, Series A no. 154 para. 41).
The Government have submitted that the Swedish Code of
Judicial Procedure as well as Swedish case-law show that Swedish
courts have the competence to determine the validity of decisions taken
by associations in proceedings regarding a declaratory judgment.
This follows from Chapter 13, Section 2 of the Code of Judicial
Procedure according to which a party can bring an action against
another party for the purpose of having the court's judgment as to the
question whether there exists a certain legal relationship between the
parties concerned. Furthermore, the Government submit, this provision
was applied in the 1958 case (NJA 1958 p. 438) where the Supreme Court
stated that in order to constitute a valid affiliation to an
association it is required that the person concerned has expressed his
wish to be affiliated. Accordingly where there is a question of
affiliating a person to a political party there would be good reason
to believe that a Swedish court would have special regard to this
precedent and would pay special attention to the principles expressed
by the Supreme Court.
The Government have added that another remedy also exists,
that is an action before a Swedish court against the applicant's trade
union where she could invoke that the collective affiliation would
constitute a violation of the trade union charter as exemplified by
the 1987 case (NJA 1987 p. 394).
The Commission notes that the Government have not been able to
indicate any Swedish case-law which directly deals with the question
of collective affiliation to political parties. However, in the case
NJA 1958 p. 438, the Swedish Supreme Court had to determine whether
the collective affiliation of the members of one association to
another association was permissible, and in its judgment the Supreme
Court expressed the general principle that a declaration of intention,
whether express or implicit, is a necessary requirement for a person
becoming a member of an association. From the Law Council's statement
of 26 February 1985 it appears that this principle should be
considered to apply also to affiliation to political parties. As
stated above, this view also has at least some support in Swedish
legal doctrine. In these circumstances, the Commission considers that
an action before the Swedish courts in which the applicant might have
asked for a declaration that she was not a member of the SAP could
have been based on reasonable legal arguments under Swedish law and
can therefore not be considered to have been without any prospects of
success.
The examination of the case does not disclose any special
circumstances which could absolve the applicant from exhausting this
remedy. It follows that her application, insofar as it concerns
Articles 9, 10, 11, 14 and 17 (Art. 9, 10, 11, 14, 17) of the
Convention, must be rejected under Article 27 para. 3 (Art. 27-3) of
the Convention for non-compliance with the requirement of exhaustion
of domestic remedies.
2. As already indicated above, the applicant has also complained
of a violation of Articles 6 and 13 (Art. 6, 13) of the Convention in
that she would not have in Sweden an effective remedy at her disposal
under which her substantive complaints could be examined.
However, it follows from the Commission's above conclusion
that this part of the application is manifestly ill-founded within the
meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission President of the Commission
(H. C. KRUGER) (C. A. NØRGAARD)