AS TO THE ADMISSIBILITY OF
Application No. 28533/95
by Conny NORDLING
against Sweden
The European Commission of Human Rights (Second Chamber) sitting
in private on 28 February 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 22 May 1995 by
Conny NORDLING against Sweden and registered on 15 September 1995 under
file No. 28533/95;
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, a telecommunications engineer born in 1948 and
residing at Uppsala, is a Swedish citizen. Before the Commission he is
represented by Mr. Mats El Kott, a lawyer practising at Östersund.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
In 1980, the applicant was employed by the National
Telecommunications Administration (Televerket). In 1992, the
Administration commenced negotiations with the trade unions with a view
to reducing the work-force. On 18 June 1992, as a result of these
negotiations, the applicant was dismissed with ten months' notice. A
number of other employees were also dismissed.
A dispute concerning the dismissals arose between the
Administration and the applicant's trade union, the National Union of
State Employees (Statsanställdas Förbund). The union claimed that the
dismissal of 120 of its members, among them the applicant, violated the
rules on priority under Section 22 of the Act on Security of Employment
(Lagen om anställningsskydd, 1982:80) and a collective agreement
applicable to the public sector. The dispute was settled when the
Administration agreed to re-employ 35 persons. The applicant was not
among these persons.
Subsequently, the applicant brought proceedings against the
Administration. He claimed damages, maintaining, first, that he had
been dismissed without objective grounds and, second, that the
Administration had failed to comply with the obligation under Section
7 of the Act on Security of Employment (Lagen om anställningsskydd,
1982:80) to find alternative work for him. As the union, due to the
settlement with the Administration, did not support his action, the
case was first examined by the District Court (Tingsrätten) of
Stockholm. Cases brought by a trade union on behalf of its members are
exclusively determined by the Labour Court (Arbetsdomstolen).
The District Court, composed of three professional judges, held
an oral hearing during which it heard the parties and several
witnesses.
By judgment of 31 January 1994, the District Court rejected the
applicant's claim. It found that the applicant had been dismissed due
to lack of work and that there were, thus, objective grounds for his
dismissal. It further considered that the Administration had not
breached its obligation to find alternative work.
The applicant appealed to the Labour Court. In accordance with
Chapter 3, in particular Section 6, subsection 2, of the Act on
Litigation in Labour Disputes (Lagen om rättegången i arbetstvister,
1974:371), the Labour Court was composed of one legally trained and
qualified member and two lay assessors. The president was an associate
judge of appeal (hovrättsassessor). One assessor had been nominated by
an employers' organisation, the Swedish Association of Local
Authorities (Svenska Kommunförbundet). These two members had been
appointed by the Government for a term of office of three years. They
could not be removed from their posts during their term of office. The
other assessor had been appointed by the Court, in accordance with
Chapter 3, Section 4, subsection 3, to serve as a temporary substitute
for this particular case. He was a former head of division at the
Swedish Confederation of Trade Unions (Landsorganisationen), with which
the National Union of State Employees was associated. Under Chapter 11,
Section 2 of the Instrument of Government, all members of the Court
were prohibited from taking instructions concerning their judicial
duties from public authorities, including the Government and the
Parliament.
The Labour Court held an oral hearing. At the hearing, the
applicant complained that the participation of the two lay assessors
violated Article 6 of the Convention, as the Court could not be
considered independent and impartial. He claimed that the assessor
nominated by the Swedish Association of Local Authorities represented
the public employers and thus had interests corresponding to those of
the opposite party. Referring to the settlement reached between the
Administration and the trade union and the union's subsequent refusal
to support his action, the applicant further challenged the
impartiality of the assessor who had formerly been employed by the
Swedish Confederation of Trade Unions. As regards the question of the
independence of the Court, the applicant referred to the assessors'
time-limited appointments. He further referred to the judgment of the
European Court of Human Rights in the case of Langborger v. Sweden
(Eur. Court H.R., Langborger judgment of 22 June 1989, Series A no.
155).
The Administration repudiated the applicant's complaints under
Article 6. It noted that the Labour Court's composition was in
accordance with the provisions of the Act on Litigation in Labour
Disputes. It further claimed that the case at hand was different from
the Langborger case, as the latter case concerned the composition of
the Housing and Tenancy Court (Bostadsdomstolen) and as the members of
the Labour Court had been appointed by organisations which were not
parties to the dispute in question.
By decision of 11 November 1994, the Labour Court rejected the
applicant's complaints regarding the composition of the Court.
By a final judgment of 30 November 1994, the Labour Court upheld
the District Court's judgment.
COMPLAINT
The applicant claims that the Labour Court, when it examined his
case, was not an independent and impartial tribunal as required by
Article 6 para. 1 of the Convention.
THE LAW
The applicant claims that he was not heard by an independent and
impartial tribunal as required by Article 6 para. 1 (Art. 6-1) of the
Convention which, in so far as relevant, reads as follows:
"In the determination of his civil rights and obligations
or of any criminal charge against him, everyone is entitled
to a fair and public hearing ... by an independent and
impartial tribunal established by law. ..."
The applicant refers to the participation in the Labour Court of
lay assessors representing employers' and employees' interests and the
time-limited appointments of the Court's members. He invokes the
judgment of the European Court of Human Rights in the Langborger case.
In order to establish whether a specific body can be considered
independent, regard must be had, inter alia, to the manner of
appointment of its members and their term of office, to the existence
of guarantees against outside pressures and to the question whether the
body presents an appearance of independence. As to the question of
impartiality, 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. 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."
The Commission recalls that the president of the Labour Court and
one of the lay assessors, like the members of the Housing and Tenancy
Court in the Langborger case, had been appointed by the Government for
a term of office of three years. They could not be removed from their
posts during this period. Furthermore, all members of the Court were,
under the Instrument of Government, protected from outside pressures.
In these circumstances, the Commission finds no reason to doubt the
independence of the Labour Court (cf. Langborger v. Sweden, Comm.
Report 8.10.87, paras. 125-132, Eur. Court H.R., Series A no. 155, pp.
30-31).
As regards the question of impartiality, the applicant contests
the participation of the lay assessors. He does not, however, call into
question their personal impartiality. In the absence of any evidence
to the contrary, the Commission finds no reason to doubt the personal
impartiality of the lay assessors.
With respect to the objective impartiality of the lay assessors,
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 had a common interest contrary to those of the applicant or
if their interests, although not common, were such that they were
nevertheless 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 question whether the applicant's
employer, in dismissing the applicant, had breached the provisions of
the Act on Security of Employment. The nature of this dispute was such
that the lay assessors and the organisation which had nominated one of
them could not objectively have had any other interest than to see to
it that these provisions were correctly interpreted and applied. This
interest could not be contrary to that of the applicant.
The Commission further notes that the applicant was a State
employee while the lay assessor representing employers' interests had
been nominated by the Swedish Association of Local Authorities.
Moreover, at the time of the Labour Court's examination of the case,
the lay assessor representing employees' interests no longer held a
position within the Swedish Confederation of Trade Unions.
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 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, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary Acting President
to the Second Chamber of the Second Chamber
(M.-T. SCHOEPFER) (G.H. THUNE)
Full & Egal Universal Law Academy