AS TO THE ADMISSIBILITY OF
Application No. 12962/87
by Baruch YOM-TOV
against Sweden
The European Commission of Human Rights sitting in private
on 7 September 1990, the following members being present:
MM. C. A. NØRGAARD, President
S. TRECHSEL
F. ERMACORA
G. SPERDUTI
E. BUSUTTIL
G. JÖRUNDSSON
A. S. GÖZÜBÜYÜK
A. WEITZEL
J. C. SOYER
H. DANELIUS
Sir Basil HALL
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
A.V. ALMEIDA RIBEIRO
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 4 July 1986
by Baruch YOM-TOV against Sweden and registered on 22 May 1987 under
file No. 12962/87.
Having regard to the written observations submitted by the
Government on 19 December 1989 and the applicants' observations of
20 February 1990.
Having deliberated;
Decides as follows:
THE FACTS
The facts of the case, as submitted by the parties, may be
summarised as follows.
Particular circumstances of the case
The applicant is a Swedish citizen born in 1936 and resident
at Lund. He is a researcher in science. Before the Commission he is
represented by Mr. Göran Ravnsborg, a lecturer in law at the
University of Lund.
In 1984 the applicant bought a jeans-shop at Lund. He employed
Mrs B.G. as sales woman. After a dispute between the applicant and
Mrs. B.G., the Commercial Employees' Union (Handelsanställdas förbund)
instituted proceedings against the applicant before the Labour Court
(arbetsdomstolen) on the ground that the applicant had dismissed one of
their members in breach of the Employment Protection Act (anställnings-
skyddslagen). The Union claimed that the applicant should pay general
damage and pecuniary damage to the member concerned and general
damage to the Union. The applicant is not affiliated to any employers
organisation.
By judgment of 15 January 1986 the Labour Court found that the
applicant had dismissed a member of the Union in breach of the
Employment Protection Act. It ordered the applicant to pay 10,000 SEK
as general damages and 38,322 SEK as pecuniary damages to the member
concerned and 2,000 SEK as general damages to the Union.
The Court was composed of two professional judges and five lay
assessors. The professional judges were Hans Stark, President of the
Labour Court, and Erik Lempert, Associate Judge of the Court of
Appeal. The lay assessors who had been appointed by the Government
were:
1. Palle Lundin, Director at the County Labour Board
(länsarbetsdirektör vid länsarbetsnämnden) of Uppsala. He had not been
nominated by any major organisation but had been appointed because of
his special knowledge of the labour market.
2. Torkel Unge, Director at the Swedish Employers' Confederation
(Svenska arbetsgivareföreningen, SAF). He had been nominated by SAF.
3. Olle Bergström, First Secretary at the Federation of County
Councils (Landstingsförbundet). He had been nominated by the
Federation of County Councils.
4. Åke Wänman, Second President of the Swedish Building Workers' Union
(Svenska byggnadsarbetareförbundet), a union affiliated to the Swedish
Trade Union Confederation (Landsorganisationen, LO). He had been
nominated by LO.
5. Lennart Lundgren, First Ombudsman of the Swedish Bank
Employees' Union (Svenska Bankmannaförbundet), a union affiliated to
the Central Organisation of Salaried Employees (Tjänstemännens
Centralorganisation, TCO). He had been nominated by TCO.
The Commercial Employees' Union, which had brought the
proceedings before the Labour Court, is affiliated to LO.
Relevant domestic law
The provisions which regulate proceedings in the Labour Court
and the composition of the Labour Court are laid down in the 1974
Litigation in Labour Disputes Act ("the 1974 Act"; lagen om rättegången
i arbetstvister).
Labour Court procedures are based on the procedural rules
which apply in the ordinary courts to actions amenable to out of court
settlements. The relevant provisions are to be found in the Code of
Judicial Procedure (rättegångsbalken). In view of the type of cases
involved and the special conditions under which the Labour Court
operates, certain regulations which deviate from the provisions of the
Code of Judicial Procedure are included in the 1974 Act. Thus, the
procedural rules under the Code of Judicial Procedure apply, unless the
1974 Act provides otherwise.
The Labour Court is composed of professional judges and of
members representing the employers and the employees with individual
and equal voting rights for each participating member. When more than
one member of the Court is to examine a case, an equal number of
employer representatives and employee representatives participate.
Organisations considered to best represent conditions in the
Swedish labour market have the right to propose employer and employee
members of the Court. The decisive factor in this context is not
merely the size of the organisation, that is the number of its
members, but also its influence on legal developments on the labour
market through the negotiation of collective agreements or in other
ways.
Employer and employee members of the Court participate in the
examination of cases, not as representatives of the parties appearing
before the Court, but to provide the Labour Court with expert knowledge
of the legal opinions and views which are formed on the labour market
at large.
Members of the Labour Court are appointed by the Government
for a period of three years. They have equal status in every respect.
Also the members representing special interest groups on the labour
market thus swear the judicial oath, in accordance with the Code of
Judicial Procedure Chapter 4 Section 11, in the same way as
professional judges and lay assessors in the ordinary courts. Under
this oath, they are obliged to render judgment in accordance with
existing law, to be independent and impartial and to resist influence
by external pressures of any kind.
According to Chapter 11 Section 5 of the Instrument of
Government (regeringsformen), permanently appointed judges cannot, in
principle, be dismissed. This rule does not apply to judges in the
Labour Court, but they cannot be dismissed during the period for which
they are appointed.
The general regulations in Chapter 4 Section 13 of the Code of
Judicial Procedure regarding disqualification or challenge due to
conflict of interests are applicable also in the Labour Court. These
rules state, for example, that anyone (personally or as a
representative of a company, union etc.) who is a party in the dispute,
or otherwise concerned in the dispute, or who can expect significant
advantage or damage from the outcome of the dispute, must not
participate in the examination of a case. The same applies to anyone
who is opposed to or on unfriendly terms with a party in the dispute,
to anyone who has been connected with the dispute in another capacity
and to anyone who has represented one of the parties. In addition,
there is a general provision regarding conflict of interests, where
special circumstances exist which may impair confidence in the
member's impartiality.
As applied to the Labour Court, the disqualification or
challenge rules mean that a member of the board of an employer or
employee association may not participate in a case where the
association is one of the parties involved or has intervened in the
case. The rules regarding persons who can expect significant
advantage or damage from the outcome of the case or the regulation
regarding other special circumstances which may impair confidence in
the impartiality of the member, have, in view of the Court's
structure, only had a very restrictive application. For example, in
practice, members representing the head organisations or
associations/unions of either the employers or the employees
participate in cases concerning the interpretation of central
agreements which are the results of negotiations where the members
themselves have formed part of the central negotiating delegations on
either side.
COMPLAINTS
1. The applicant alleges that the Labour Court did not satisfy
the condition of "independent and impartial tribunal" in Article 6
para. 1 of the Convention having regard to its composition. He points
out that, while he was not affiliated to any union, his opposing party,
Mrs. B.G., was represented by her trade union through the Legal
Protection limited company of the Swedish Trade Union Confederation
(LO-förbundens Rättsskydd AB), that Confederation having allegedly two
representatives as members of the Court.
2. The applicant also alleges violations of Articles 11 and 14 of
the Convention and Article 1 of Protocol No. 1 to the Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 4 July 1986 and registered
on 22 May 1987.
On 4 September 1989 the Commission decided to communicate the
application to the respondent Government and invite them to submit
written observations on the admissibility and merits of the
application limited to the complaints under Article 6 of the Convention.
The Government's observations were received by letter dated
19 December 1989 and the applicant's observations were dated
20 February 1990.
THE LAW
1. The applicant alleges a violation of Article 6 (Art. 6) of the
Convention on the ground that the Labour Court was not an independent
and impartial tribunal. He also alleges violations of Articles 11
(Art. 11) and 14 (Art. 14) of the Convention and Article 1 of
Protocol No. 1 (P1-1) to the Convention.
2. Article 6 para. 1 (Art. 6-1) first sentence of the Convention,
insofar as relevant, reads:
" In the determination of his civil rights and
obligations..., everyone is entitled to a fair and public
hearing within a reasonable time by an independent and
impartial tribunal established by law."
The Government do not object to the admissibility of the
application under Article 26 (Art. 26) of the Convention. They
submit, however, that the application is manifestly ill-founded
within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
As to the question whether the Labour Court was an
"independent and impartial tribunal", the Commission recalls the
following case-law.
When examining 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 pressure 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).
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 (above-mentioned 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 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 Commission finds no reason to question
the independence and impartiality of the professional judges. With
regard to the lay assessors, there is no reason to doubt their
personal impartiality in the absence of proof to the contrary.
As regards the objective impartiality, the Government submit
that the present case can be distinguished from the Langborger case.
They submit that there is no reason for the applicant to fear that the
lay assessors had a common interest opposed to his own interests. The
dispute essentially concerned the question whether the plaintiff
union's member had been dismissed from her employment in the
applicant's business in breach of the Employment Protection Act or
whether she had herself chosen to discontinue her employment. When
examining this issue the Labour Court had to determine a question
which primarily was one of evaluating evidence. The issues did not
directly involve the lay assessors. Neither did the four organisations
SAF, TCO, LO and the Federation of County Councils have any specific
interest in the outcome of the case. There was no important
interpretation to be made of the legal provisions in question which
was of any importance to the organisations represented by the lay
assessors. For these reasons, the Government submit that the balance
of interests, inherent in the Labour Court's composition, was not
upset when the Court came to decide the claim against the first
applicant's company.
As to the applicant's argument that his opposing party was
affiliated to LO which had representatives on the Court, whereas he
did not have such representatives, the Government state that the lay
assessors are not to be seen as representatives of the parties in the
case but as independent judges in their own capacity. A system where
each party in every case would have its own representative on the
Court would have an effect, which would be contrary to the one that is
aimed at, i.e. the establishment of an impartial tribunal with an
inherent balance of different interests.
The applicant submits in reply that the Court was not
independent and impartial. With reference to two allegedly
incompatible judgments by the Swedish Supreme Court (högsta domstolen)
(reported in NJA 1982 p. 564 and p. 853), the applicant considers that
Åke Wänman and, on analogous grounds, Lennart Lundgren were
disqualified from participating in his case. For the same reasons, he
strongly questions the qualifications of Torkel Unge and Olle
Bergström. Being an unaffiliated employer the applicant notes a
common interest of all the lay assessors, namely the interest of
achieving complete organisation on the Swedish labour market.
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 lack
the requirements of impartiality and independence 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.
In this respect the Commission recalls that in the Langborger
case the applicant had sought the deletion of a clause from his
lease, a clause which had previously been agreed upon between
organisations which had 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 was whether the applicant had dismissed an
employee in breach of the provisions of the Employment Protection Act
and on that ground was liable to pay damages. The nature of this
dispute is such that none of the organisations, the Federation of
County Councils, TCO, LO or SAF, could objectively have any other
interest than to see to it that the provisions in the Act were
respected and correctly interpreted. This interest cannot be contrary
to that of the applicant.
The Commission notes the applicant's argument that he could
fear that the lay assessors would be unfavourable to him on the ground
that they had a common interest of achieving a completely organised
labour market, whereas he was not an affiliated employer.
To accept the applicant's arguments would, in the Commission's
opinion, be tantamount to considering that, in cases where a lay
assessor has been nominated by any organisation on the labour market,
the Labour 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. Although this issue was not
addressed in the Langborger judgment, 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.
In sum, the Commission considers that, contrary to the
situation in the Langborger case, there cannot be said to have existed
any common interest between the lay assessors as alleged in the
present case. The Commission cannot find that the applicant could
legitimately fear that the lay assessors had interests contrary to his
interests or that the balance of interests was upset to such an extent
that they did not satisfy the conditions of independence and
impartiality.
Consequently, the Commission finds no indication of a
violation of Article 6 para. 1 (Art. 6-1) of the Convention.
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.
3. The applicant has also alleged violations of Articles 11
(Art. 11) and 14 (Art. 14) of the Convention as well as Article 1 of
Protocol No. 1 (P1-1) to the Convention.
However, the Commission finds no indication of a violation of
these provisions. It follows that in this respect 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
DECLARES THE APPLICATION INADMISSIBLE
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
Full & Egal Universal Law Academy