AS TO THE ADMISSIBILITY OF
Application No. 24587/94
by Kent WALLBERG
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
Kent WALLBERG against Sweden and registered on 12 July 1994 under file
No. 24587/94;
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, an engineer born in 1952 and residing at
Karlsborg, is a Swedish citizen. Before the Commission he is
represented by Mr. Stig Centerwall, a lawyer practising at Gothenburg.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
In June 1990, the applicant was employed by a shipping company,
Nordic Oriental Shipmanagement AB. From 27 May 1991 he worked on its
vessel M/S Front Falcon. After some incidents on board, the applicant
wanted to leave the ship. Having discussed the matter with the captain,
the applicant sent a letter to the company in which he stated his
request. The letter, drafted by the captain, was dated 10 and
11 July 1991. On 11 July, the applicant left the ship with the
captain's approval.
On 25 September 1991 the company requested that the applicant
hand in his resignation on account of what had happened on board
M/S Front Falcon. The applicant, who wished to keep his employment and
thus refused to resign, contacted the representative of his trade
union, the Engineer Officers' Union (Maskinbefälsförbundet).
After negotiations, the company and the representative concluded,
on 10 October 1991, that the applicant had himself resigned by virtue
of his letter to the company. They further agreed that the applicant
would receive four months' salary from 25 September.
On 18 October 1991 the company sent to the applicant a notice of
dismissal dated 25 September.
In early December 1991, the applicant asked the representative
again to take up the question of his employment with the company, as
he could not accept the agreement made between the company and the
representative. He was then told that the union could not offer him any
further assistance.
In February 1992, the applicant brought proceedings against the
company in the District Court (Tingsrätten) of Sjuhäradsbygden. He
claimed damages, maintaining that he had been dismissed without
objective grounds. The 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 union
representative. The representative maintained, inter alia, that the
wording of the applicant's letter to the company indicated that the
applicant had himself resigned.
The District Court noted that it was an undisputed fact that
there were no objective grounds for the applicant's dismissal. It then
stated that the question to be decided in the case was whether the
applicant nevertheless was prevented from asserting his rights under
the Act on Security of Employment (Lagen om anställningsskydd,
1982:80).
The District Court first found that the applicant's letter dated
10 and 11 July 1991 could not, in the circumstances, be considered as
his resignation. His employment had thus come to an end by way of the
company's notice of dismissal. The Court then noted that an employee
was not prevented from reaching a settlement with his employer in which
he waived his rights under the Act on Security of Employment. The
Court, however, found that the applicant was not bound by the agreement
made between the company and the union representative, as the applicant
had not authorised the representative to reach such an agreement or
subsequently approved it.
By judgment of 11 December 1992, the District Court thus ruled
in favour of the applicant and awarded him damages in the amount of
342,503 SEK.
The company appealed to the Labour Court (Arbetsdomstolen). In
accordance with Chapter 3 of the Act on Litigation in Labour Disputes
(Lagen om rättegången i arbetstvister, 1974:371), the 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. The president and the vice-president were
professional judges. Two of the assessors had been nominated by
employers' organisations, one by the Swedish Employers' Confederation
(Svenska Arbetsgivareföreningen) 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 Swedish Academics (Svenska Akademikers
Centralorganisation). The Engineer Officers' Union was not affiliated
to either of these organisations. The fifth assessor, a deputy
assistant under-secretary (kansliråd) at the Ministry of Labour, had
been appointed due to her special knowledge of the labour market but
did not represent employers' or employees' interests.
Also the Labour Court held an oral hearing and heard the parties
and several witnesses, including the union representative. In addition
to his testimony before the District Court, the representative stated
that, on 10 October 1991, he had explained to the applicant the details
of the agreement reached with the company. Allegedly, the applicant had
on this occasion accepted the agreement and was thus bound by it.
The Labour Court addressed the same issues as the District Court.
It considered, like the District Court, that the applicant had not
resigned from his employment. The Labour Court, however, found that the
applicant was bound by the agreement made between the company and the
union representative, as the applicant, when informed on
10 October 1991 of the details, must be deemed to have authorised the
representative to conclude the agreement. In reaching this conclusion,
the Court considered that the representative had made a very credible
impression and that there were much stronger reasons to believe his
account of the events than the applicant's.
By a final judgment of 22 December 1993, the Labour Court
accordingly reversed the District Court's judgment and rejected the
applicant's claim for damages.
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. ..."
Noting that both his employer and his trade union through its
representative considered the applicant to be bound by the agreement
reached on 10 October 1991, the applicant maintains that the four lay
assessors nominated by the employers' and the employees' organisations
had a common interest contrary to his own. In this respect, he further
refers to the union's refusal, in December 1991, to assist him, the
union representative's appearance before the courts as a witness for
the employer and the employers' financial interest in the 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., 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."
In the present case, the applicant does not contest the
independence and impartiality of the professional judges or the lay
assessor who did not represent employers' or employees' interests.
Furthermore, he does not call into question the personal impartiality
of the other lay assessors. In the absence of any evidence to the
contrary, the Commission finds no reason to doubt the personal
impartiality of these lay assessors.
As regards 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 questions whether the applicant
had resigned from his employment by virtue of his letter dated 10 and
11 July 1991 or whether he had authorised the union representative to
conclude the agreement of 10 October 1991 with the employer. The
dispute thus concerned questions of evidence. 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 questions were correctly determined. This interest
could not be contrary to that of the applicant.
The Commission further notes that the Engineer Officers' Union,
of which the applicant and the union representative were members, was
not affiliated to either of the organisations which had nominated the
lay assessors.
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 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