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THE FACTS
The applicant, Mr Juan Sanchez Navajas, is a Spanish national who was born in 1958 and lives in Rute (Province of Córdoba).
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant is an employee of the Coria del Río Town Council and a trade-union representative elected by the council employees.
In 1993, in his capacity as a trade-union representative, the applicant asked the mayor to grant him fifteen hours’ paid leave for trade-union activities for the month of September 1993. That request was turned down by the mayor. The applicant sought judicial review of that decision by the Andalusia High Court of Justice which, in a judgment of 20 July 1994 granted his application, quashed the impugned decision and made a declaration that he was entitled to the requested paid leave. Following an exchange of correspondence between the applicant and the mayor, the latter granted the applicant the requested leave on 20 November 1994 but required him to account for his time. By a memorandum dated 5 November 1994 the applicant stated that he had spent the time he had been allocated studying new legislation on trade-union elections and its consequences on collective bargaining. On 9 November 1994 the mayor decided to deduct two days’ pay from the applicant’s wages for the time he had spent studying the legislation on trade-union elections, on the ground that it had been spent in his own interest rather than in that of the staff he represented. The mayor considered that the applicant should have used his own time if his aim was personal development. If, on the other hand, he wished to improve his vocational skills, he should have attended one of the courses available.
The applicant sought judicial review of that decision, considering that it ran counter to the right to trade-union freedom guaranteed by Article 28 of the Constitution. In a judgment of 6 November 1996 the Andalusia High Court of Justice dismissed his application, holding that studying provisions of trade-union law was a private activity that could not be carried out at the taxpayer’s expense. It said, inter alia:
“All this occurred in the context of appalling relations between the council and its employee, who had devoted his time over the years to making scores of applications for judicial review on the most tenuous of grounds or on the slightest pretext, thereby demonstrating the lack of any common ground between the parties. That situation left the applicant dissatisfied and ill at ease with his work and his output was no more than the bare minimum. In the tense, antagonistic climate that prevailed between colleagues who were duty bound to cooperate and serve the general interest, the sole solution is to apply the law to the letter... In that regard, it is clear that Mr Sanchez Navajas has no absolute right to paid leave from work to allow him to train and learn about recent legal issues... That is a private activity that should not be conducted at the taxpayer’s expense.”
The applicant lodged an appeal against that judgment, in which he relied on Articles 24 (right to a fair trial) and 28 (right to trade-union freedom) of the Constitution. By a decision of 15 November 1999, the Constitutional Court dismissed the appeal as being unfounded, holding that the Andalusia High Court of Justice had applied the legislation without undermining the essence of the fundamental right to trade-union freedom.
B. Relevant domestic law
Article 11 of Law no. 9/1987 of 12 June 1987 on Representative Bodies, the Determination of Working Conditions and Staff Participation in Public Authorities provides that staff representatives shall be granted a number of hours’ paid leave for trade-union activities. According to the applicant, the Act did not specify the trade-union activities for which paid leave was available.
COMPLAINTS
The applicant complained under Article 6 § 1 of the Convention that the Spanish courts had not determined his case fairly and impartially. In that connection, he observed inter alia that the judge rapporteur of the Andalusia High Court of Justice had also sat in other proceedings he had brought.
The applicant further complained that the mayor’s decision to deduct from his salary the fifteen hours’ paid leave that had been granted to him for trade-union activities violated his right to trade-union freedom, as guaranteed by Article 11 of the Convention.
The applicant also relied on Articles 9, 10 and 14 of the Convention.
THE LAW
1. The applicant complained that his case had not been determined fairly and impartially by the Andalusia High Court of Justice. He relied on Article 6 § 1 of the Convention, the relevant part of which reads as follows:
“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by an ... impartial tribunal established by law.”
The Court points out, however, that under Article 19 of the Convention its sole task is to ensure the observance of the engagements undertaken in the Convention by the Contracting Parties. In particular, it is not its function to deal with errors of fact or of law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention. It observes, further, that the issues of the admissibility of evidence and of the weight to be attached thereto is primarily a matter for national law (K. v. Sweden, no. 13800/88, Commission decision of 1 July 1988, Decisions and Reports (DR) 71, p. 106).
In that connection, the Court notes that the applicant’s case was examined by the High Court of Justice, before which he was able to set out the allegations and arguments he considered appropriate. It noted that the decision challenged by the applicant was delivered after adversarial proceedings on the basis of evidence which the parties to the dispute had had an opportunity to test. The Court finds that the judgment of the Andalusia High Court of Justice was based on reasons which appear reasonable and untainted by arbitrariness. As regards the alleged lack of impartiality on the part of a judge of the High Court of Justice, the case file reveals that the applicant did not seek to challenge him on the grounds of bias.
It follows that this part of the application must be dismissed as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.
2. The applicant further complained that the mayor’s decision to deduct from his salary the fifteen hours’ paid leave that had been granted to him for trade-union activities violated his right to trade-union freedom, as guaranteed by Article 11 of the Convention, which provides:
“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 Court notes that while Article 11 § 1 presents trade-union freedom as one form or a special aspect of freedom of association, the Article does not secure any particular treatment of trade union members by the State, such as the right to enjoy certain benefits, for example, in matters of remuneration. Such benefits are not indispensable to the effective enjoyment of trade-union freedom and do not constitute an element necessarily inherent in a right guaranteed by the Convention (see, mutatis mutandis, Schmidt and Dahlström v. Sweden, 6 December 1976, Series A no. 21, § 34). The Court nevertheless considers that it may infer from Article 11 of the Convention, read in the light of Article 28 of the European Social Charter (Revised), that workers’ representatives should as a rule, and within certain limits, enjoy appropriate facilities to enable them to perform their trade-union functions rapidly and effectively. In the present case, the Spanish courts considered that the time spent by the applicant in studying the new legislation on trade-union elections could not be considered as forming part of purely trade-union activities for which he could be paid in his capacity as a staff representative. For that reason, a corresponding amount was deducted from his pay. The Court notes that the applicant has not shown why it was imperative for him to study the new legislation in order to be able to perform his duties as a trade-union representative of the council employees effectively. It therefore considers that the decision challenged by the applicant cannot be regarded as constituting an interference in the exercise of his right to trade-union freedom; the contested measure did not attain such a degree of gravity as to affect the right guaranteed by Article 11 § 1 of the Convention substantially.
It follows that this part of the application must be dismissed as being manifestly ill-founded, pursuant to Article 35 § 3 of the Convention.
3. To the extent that the applicant relies on Articles 9, 10 and 14 of the Convention, the Court, having regard to all the evidence in its possession and in so far as it has jurisdiction to examine the allegations made, finds no appearance of a violation of the rights and liberties guaranteed by the Convention or its Protocols.
It follows that this part of the application must be dismissed pursuant to Article 35 § 4 of the Convention
For these reasons, the Court unanimously,
Declares the application inadmissible.
Vincent BergerGeorg Ress
RegistrarPresident
Full & Egal Universal Law Academy