AS TO THE ADMISSIBILITY OF
Application No. 24601/94
by Bruce N. SMEETON-WILKINSON
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 6 June 1994 by
Bruce N. SMEETON-WILKINSON against Sweden and registered on
12 July 1994 under file No. 24601/94;
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 forwarder born in 1938 and residing at Märsta,
is a British citizen. Before the Commission he is represented by
Mr. Svante af Winklerfelt, a lawyer practising in Stockholm.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
In 1980, the applicant was employed by a forwarding company, AB
Olson & Wright. Due to decreasing profits, the company, a member of the
Commercial Employers' Association (Handelns Arbetsgivareorganisation),
commenced negotiations with the local branch of the trade union, the
Union of Commercial Salaried Employees (Handelstjänstemannaförbundet),
with a view to reducing the work-force. In September 1991, it was
agreed that three posts at the office where the applicant worked should
be abolished. The company then decided which three employees to
dismiss. On 30 September 1991 the applicant, who was not a member of
the trade union, was dismissed with six months' notice. He was
simultaneously informed that the reason for his dismissal was lack of
work and that he had no preferential right to re-employment.
Subsequently, the applicant brought proceedings against the
company in the District Court (Tingsrätten) of Stockholm. He sought to
have his dismissal declared invalid and claimed damages. He maintained,
first, that the company had breached Section 7 of the Act on Security
of Employment (Lagen om anställningsskydd, 1982:80) as he had been
dismissed without objective grounds and the company had not endeavoured
to find alternative work for him and, second, that the company had not
observed the rules on priority under Section 22 of that Act when
deciding which persons to dismiss.
The District Court, composed of three professional judges, held
an oral hearing during which it heard the parties and several
witnesses, including, at the company's request, the chairman of the
local trade union, who had negotiated the dismissals with the company.
The District Court found that the applicant had been dismissed
due to lack of work and not, as argued by him, for personal reasons.
It further rejected the applicant's assertion that the company had
breached its obligation to find alternative work. The dismissal was,
therefore, not invalidated. The Court, however, considered that the
company had failed to respect the priority rules under the above-
mentioned Section 22. It thus accepted the applicant's second-hand
claim and, by judgment of 30 November 1992, awarded him damages.
The applicant and the company appealed to the Labour Court
(Arbetsdomstolen). The applicant requested the Court to declare his
dismissal invalid.
In accordance with Chapter 3 of the Act on Litigation in Labour
Disputes (Lagen om rättegången i arbetstvister, 1974:371), the Labour
Court was composed of two legally trained and qualified members and
five lay assessors. They had all 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 and were, pursuant to Chapter 11,
Section 2 of the Instrument of Government (Regeringsformen), prohibited
from taking instructions concerning their judicial duties from public
authorities, including the Government and the Parliament.
The president of the Labour Court was a head of division at a
court of appeal (hovrättslagman) and the vice-president was an
assistant under-secretary (departementsråd) at the Ministry of Justice.
Two of the assessors had been nominated by employers' organisations,
one by the Swedish Employers' Confederation (Svenska Arbetsgivare-
föreningen) and one by the Swedish Association of Local Authorities
(Svenska Kommunförbundet). Two other assessors had been nominated by
employees' organisations, one by the Swedish Confederation of Trade
Unions (Landsorganisationen) and one by the Central Organisation of
Salaried Employees (Tjänstemännens Centralorganisation). The fifth
assessor, a head of department at the Centre for Labour Market Studies
(Arbetslivscentrum), a Government research institute, had been
appointed due to her special knowledge of the labour market but did not
represent employers' or employees' interests.
On 2 November 1993 the Labour Court held an oral hearing, during
which it heard the parties and several witnesses, including the trade
union chairman. At the hearing, the applicant, referring to Article 6
of the Convention, claimed that the Court should be composed
exclusively of legally trained and qualified judges. He further
challenged the impartiality of the lay assessors who had been nominated
by the labour market organisations.
During the hearing, the Labour Court rejected the applicant's
complaints concerning its composition. The Court stated that his
request that only professional judges should be allowed to participate
could not legally be granted. It further rejected the applicant's claim
that the lay assessors were not impartial.
By a final judgment of 12 January 1994, the Labour Court,
agreeing with the District Court, rejected the applicant's request to
have his dismissal invalidated but awarded him damages due to the
company's failure to comply with the rules on priority under the above-
mentioned Section 22.
COMPLAINTS
1. 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.
2. The applicant also alleges violations of Articles 11 and 14 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. ..."
With regard to the question of independence, the applicant refers
to the fact that the members of the Labour Court are appointed by the
Government for a limited term of office and are, thus, removable. He
further contends that the members not nominated by organisations
representing employers' and employees' interests are appointed from the
public sector, including ministries and parliamentary committees, and,
therefore, in reality represent the Government or the Parliament. As
concerns the impartiality issue, the applicant refers to the
participation of four lay assessors nominated by the labour market
organisations. In this respect, he recalls that the company was a
member of an employers' organisation while he did not belong to a trade
union. He also points out that the local trade union chairman appeared
before the courts as a witness for the company.
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. Eur. Court H.R., Langborger judgment of 22 June 1989,
Series A no. 155, p. 16, para. 32, and Holm judgment of
25 November 1993, Series A no. 279-A, p. 14, para. 30).
In the Langborger case (loc. cit.), 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 members of the Labour Court, 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
and 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 nominated by the employers' and
the employees' organisations. 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 these lay assessors.
With respect to the objective impartiality of the lay assessors
nominated by the employers' and the employees' organisations, 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 and on that ground was liable to pay
damages. The nature of this dispute was such that none of the
organisations which had nominated the lay assessors could 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 notes the applicant's argument that he was not a
member of a trade union while his employer was a member of an
employers' organisation. To accept that this gives rise to doubts as
to the Labour Court's impartiality would, in the Commission's opinion,
be tantamount to considering that, in cases where lay assessors have
been nominated by any organisation on the labour market, the Court
would fail to meet the condition "independent and impartial tribunal"
in all disputes where one of the parties is not affiliated to any of
those organisations. The Commission considers that it would be contrary
to the considerations underlying the statement by the European Court
in para. 34 (see quotation above) of the Langborger judgment to accept
such a proposition (cf. No. 12962/87, Yom-Tov v. Sweden, Dec. 7.9.90,
unpublished).
In conclusion, 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 manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
2. The applicant also alleges violations of Articles 11 and 14
(Art. 11, 14) of the Convention. Referring to the composition of the
Labour Court and the fact that the trade union chairman testified in
favour of the company, the applicant contends that he might have been
treated by the Court in a different manner from that in which a person
belonging to a trade union would be treated. Thus, his position as a
non-union member, including his right to negative freedom of
association, has not been respected.
The applicant's allegations under Articles 11 and 14
(Art. 11, 14) are largely based on the same grounds as those examined
above under Article 6 para. 1 (Art. 6-1) of the Convention. The
Commission finds no indication of a violation of these provisions.
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.
Secretary Acting President
to the Second Chamber of the Second Chamber
(M.-T. SCHOEPFER) (G.H. THUNE)
Full & Egal Universal Law Academy