AS TO THE ADMISSIBILITY OF
Application No. 32721/96
by M.A.
against Sweden
The European Commission of Human Rights (Second Chamber) sitting
in private on 14 January 1998, the following members being present:
MM J.-C. GEUS, President
M.A. NOWICKI
G. JÖRUNDSSON
A. GÖZÜBÜYÜK
J.-C. SOYER
H. DANELIUS
Mrs G.H. THUNE
MM I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
P. LORENZEN
E. BIELIUNAS
E.A. ALKEMA
A. ARABADJIEV
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 23 April 1996 by
M.A. against Sweden and registered on 22 August 1996 under file
No. 32721/96;
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 1968. He resides in
Stockholm.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
a. The particular circumstances of the case
As a student at Stockholm University, the applicant is, in
accordance with a legal obligation, a member of the student union at
the university, Stockholms Universitets Studentkår.
In late 1995 and in 1996, dissatisfied with the way in which a
university examination in Spanish had been conducted, the applicant
contacted representatives of the student union. From the reception he
got and the representatives' alleged failure to take proper action in
regard to the examination the applicant concluded that the student
union did not defend the interests of the students.
Unable to leave the student union the applicant, in letters to
the Parliamentary Ombudsman (Justitieombudsmannen), the Government and
the Standing Parliamentary Committee on the Constitution
(Konstitutionsutskottet), requested that the compulsory membership be
abolished. He claimed that it violated his freedom of association and
maintained that there were no practical or other reasons for being a
member of a student association. He further expressed his intention
to pursue the matter before international institutions. For various
reasons, however, the above bodies decided to take no action in regard
to the applicant's request. The Government's decision was taken on
15 August 1996.
b. Relevant domestic law
Under Chapter 4, Section 4 of the Law on the Institutions of
Higher Education (Högskolelagen, 1992:1434), the Government may enact
regulations obliging students at universities and other public
institutions of higher education to be members of certain student
bodies.
Such regulations are found in the Decree on Student Unions,
Student Clubs and Student Faculty Associations (Förordning om
studerandekårer, nationer och studentföreningar för fakultet, 1983:18).
The board of the university decides which student body is to function
as the student union at the university (Section 2 of the Decree). A
student shall be a member of that union (Section 4), which may impose
a subscription on its members (Section 10). If a student fails to join
the union or pay the subscription, the university board may exclude him
or her from teaching and examination (Section 20).
The purpose of a student union is to promote its members' studies
and other activities connected with the studies (Section 12 of the
Decree). It appoints student representatives to various university
bodies (Section 16). The union shall be democratically organised and
the students shall be allowed to vote in the elections of members of
its supreme executive body and to stand as candidates in such elections
(Section 13). The union shall adopt statutes which shall comprise
articles, inter alia, on the purpose and organisation of the union, on
the right to join and leave the union, on subscriptions and on the
right of the university board to quash decisions which are clearly
contrary to the purpose of the union (Section 14).
The statutes are approved by the university board when it
designates the student union and when the statutes are amended by the
union. If the university board finds that such amendments cannot be
approved, it may also decide that the student body in question shall
no longer function as the student union at the university (Section 15
of the Decree). The university board also examines questions relating
to an individual student's membership of a student union (Section 9).
Furthermore, it may decide that subscriptions to the union are payable
before a certain date.
The board of the university may quash a decision by a student
union which is clearly contrary to the purpose of the union as
designated by Section 12 of the Decree. However, the university board
may review such a decision only if so requested by either one tenth of
the union's members or at least 100 members (Section 21). Decisions
taken by the university board under the Decree may be appealed against
to the University Appeals Board (Överklagandenämnden för högskolan)
(Section 22).
COMPLAINTS
The applicant claims that his obligation to be a member of
Stockholms Universitets Studentkår violates his rights under Articles
11, 17 and 18 of the Convention, in particular his right to negative
freedom of association.
THE LAW
1. The applicant complains firstly that his obligation to be a
member of the student union violates his right to negative freedom of
association under Article 11 (Art. 11) of the Convention, which
provides 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."
The Commission recalls that the protection under Article 11
(Art. 11), including the right to negative freedom of association (cf.
Eur. Court HR, Sigurdur A. Sigurjónsson v. Iceland judgment of 30 June
1993, Series A no. 264, pp. 15-16, para. 35), is offered only in
respect of trade unions and other private-law associations. Public-law
institutions fall outside the ambit of Article 11 (Art. 11) (cf. Eur.
Court HR, Le Compte, Van Leuven and De Meyere v. Belgium judgment of
23 June 1981, Series A no. 43, pp. 26-27, paras. 64-65).
As to the circumstances of the present case, the Commission
considers that the object of the Swedish student unions is to secure
student participation in the administration of the universities (cf.
No. 6094/73, Dec. 6.7.77, D.R. 9, p. 5). The organisation and
activities of the unions are governed by law and the universities,
which are public institutions, exercise a certain control over the
unions, e.g. by approving their statutes and by determining certain
membership questions. Moreover, decisions of the unions may be subject
to a review, albeit limited, by university bodies.
Having regard to the above, the student unions cannot be
considered as associations within the meaning of Article 11 (Art. 11)
of the Convention. Noting, furthermore, that the unions are
democratically organised and that the students are free to disagree
with political or other opinions adopted by union bodies and to form
or join other student associations, the Commission considers that the
applicant's obligation to be a member of Stockholms Universitets
Studentkår does not interfere with his rights under Article 11
(Art. 11).
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 further complains that his obligation to be a
member of the student union violates his rights under Articles 17 and
18 (Art. 17, 18) of the Convention.
However, having regard to its considerations in respect of the
complaint under Article 11 (Art. 11) of the Convention, the Commission
finds that an examination of the complaints under Articles 17 and 18
(Art. 17, 18) does not disclose any appearance of a violation of the
rights and freedoms of these Articles.
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.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
M.-T. SCHOEPFER J.-C. GEUS
Secretary President
to the Second Chamber of the Second Chamber
Full & Egal Universal Law Academy