EUROPEAN COMMISSION OF HUMAN RIGHTS

                       Application No. 19576/92

                           Teuvo Komulainen

                                against

                                Finland

                       REPORT OF THE COMMISSION

                       (adopted on 16 May 1995)

                           TABLE OF CONTENTS

                                                                 Page

I.    INTRODUCTION

      (paras. 1 - 15) . . . . . . . . . . . . . . . . . . . . . . . 1

      A.   The application

           (paras. 2 - 4) . . . . . . . . . . . . . . . . . . . . . 1

      B.   The proceedings

           (paras. 5 - 10). . . . . . . . . . . . . . . . . . . . . 1

      C.   The present Report

           (paras. 11 - 15) . . . . . . . . . . . . . . . . . . . . 2

II.   ESTABLISHMENT OF THE FACTS

      (paras. 16 - 33). . . . . . . . . . . . . . . . . . . . . . . 3

      A.   The particular circumstances of the case

           (paras. 16 - 24) . . . . . . . . . . . . . . . . . . . . 3

      B.   Relevant domestic law and legal instruments of the

           Council of Europe

           (paras. 25 - 33) . . . . . . . . . . . . . . . . . . . . 4

           1.    The protection of the negative freedom of

                 association

                 (paras. 25 - 26) . . . . . . . . . . . . . . . . . 4

           2.    The duty to accept a municipal position of trust

                 (paras. 27 - 29) . . . . . . . . . . . . . . . . . 4

           3.    The requirement of a fair representation in

                 municipal federative bodies of the groups

                 represented in the relevant municipal councils

                 (paras. 30 - 31) . . . . . . . . . . . . . . . . . 5

           4.    The European Charter of Local Self-Government

                 (paras. 32 - 33) . . . . . . . . . . . . . . . . . 5

III.  OPINION OF THE COMMISSION

      (paras. 34 - 60). . . . . . . . . . . . . . . . . . . . . . . 7

      A.   Complaint declared admissible

           (para. 34) . . . . . . . . . . . . . . . . . . . . . . . 7

      B.   Points at issue

           (para. 35) . . . . . . . . . . . . . . . . . . . . . . . 7

      C.   As regards Article 11 of the Convention

           (paras. 36 - 51) . . . . . . . . . . . . . . . . . . . . 7

           CONCLUSION

           (para. 52) . . . . . . . . . . . . . . . . . . . . . . .10

                           TABLE OF CONTENTS

                                                                 Page

      D.   As regards Article 14 of the Convention

           in conjunction with Article 11

           (paras. 53 - 57) . . . . . . . . . . . . . . . . . . . .10

           CONCLUSION

           (para. 58) . . . . . . . . . . . . . . . . . . . . . . .11

      E.   Recapitulation

           (paras. 59 - 60) . . . . . . . . . . . . . . . . . . . .11

CONCURRING OPINION OF Mr. H. DANELIUS . . . . . . . . . . . . . . .12

CONCURRING OPINION OF Mr. H.G. SCHERMERS

JOINED BY Mr. G. RESS . . . . . . . . . . . . . . . . . . . . . . .14

PARTIALLY DISSENTING OPINION OF Mr. C.L. ROZAKIS. . . . . . . . . .15

APPENDIX:  DECISION OF THE COMMISSION AS TO THE ADMISSIBILITY

           OF THE APPLICATION . . . . . . . . . . . . . . . . . . .17

I.    INTRODUCTION

1.    The following is an outline of the case as submitted to the

European Commission of Human Rights, and of the procedure before the

Commission.

A.    The application

2.    The applicant is a Finnish citizen, born in 1942 and resident at

Padasjoki. He is a former municipal director.

3.    The application is directed against Finland. The respondent

Government were represented by their Agent, initially Mr. Tom Grönberg,

then Director-General for Legal Affairs, Ministry for Foreign Affairs,

Helsinki, and subsequently Mr. Holger Rotkirch, present Director-

General.

4.    The case concerns the requirement that the applicant should have

been a member of a certain political party in order to be eligible for

a position of trust to which that party was entitled. This requirement

allegedly violated his right to freedom of association and

discriminated against him because he is politically independent. The

applicant principally invokes Articles 11 and 14 of the Convention.

B.    The proceedings

5.    The application was introduced on 16 January 1992 and registered

on 3 March 1992.

6.    On 11 October 1993 the Commission decided, pursuant to Rule 48

para. 2 (b) of its Rules of Procedure, to give notice of the

application to the respondent Government and to invite the parties to

submit written observations on the admissibility and merits of the

complaint under Articles 11 and 14 of the Convention.

7.    The Government's observations were submitted on 21 December 1993.

The applicant replied on 11 February 1994.

8.    On 10 October 1994 the Commission declared the applicant's

complaint under Articles 11 and 14 of the Convention admissible. It

declared the remainder of the application inadmissible.

9.    The text of the Commission's decision on admissibility was sent

to the parties on 20 October 1993 and they were invited to submit such

further information or observations on the merits as they wished. The

Government submitted observations on 8 December 1994, to which the

applicant replied on 9 January 1995.

10.   After declaring the case admissible, the Commission, acting in

accordance with Article 28 para. 1 (b) of the Convention, also placed

itself at the disposal of the parties with a view to securing a

friendly settlement. In the light of the parties' reaction, the

Commission now finds that there is no basis on which such a settlement

can be effected.

C.    The present Report

11.   The present Report has been drawn up by the Commission in

pursuance of Article 31 of the Convention and after deliberations and

votes, the following members being present:

           MM.   C.A. NØRGAARD, President

                 H. DANELIUS

                 C.L. ROZAKIS

                 E. BUSUTTIL

                 G. JÖRUNDSSON

                 S. TRECHSEL

                 A.S. GÖZÜBÜYÜK

                 A. WEITZEL

                 J.-C. SOYER

                 H.G. SCHERMERS

           Mrs.  G.H. THUNE

           Mr.   F. MARTINEZ

           Mrs.  J. LIDDY

           MM.   L. LOUCAIDES

                 J.-C. GEUS

                 M.P. PELLONPÄÄ

                 B. MARXER

                 G.B. REFFI

                 M.A. NOWICKI

                 I. CABRAL BARRETO

                 N. BRATZA

                 I. BÉKÉS

                 J. MUCHA

                 E. KONSTANTINOV

                 D. SVÁBY

                 G. RESS

                 A. PERENIC

                 C. BÎRSAN

12.   The text of this Report was adopted on 16 May 1995 by the

Commission and is now transmitted to the Committee of Ministers of the

Council of Europe, in accordance with Article 31 para. 2 of the

Convention.

13.   The purpose of the Report, pursuant to Article 31 of the

Convention, is:

      (i)  to establish the facts, and

      (ii) to state an opinion as to whether the facts found disclose

           a breach by the State concerned of its obligations under

           the Convention.

14.   The Commission's decision on the admissibility of the application

is attached to the Report.

15.   The full text of the parties' submissions, together with the

documents lodged as exhibits, are held in the archives of the

Commission.

II.   ESTABLISHMENT OF THE FACTS

A.    The particular circumstances of the case

16.   On 8 February 1989 the Federative Council (liittovaltuusto,

förbundsfullmäktige) of the Municipal Health Care Federation (kansan-

terveystyön kuntainliitto, kommunalförbundet för folkhälsoarbetet) of

Asikkala and Padasjoki elected the applicant, who was the Municipal

Director of Padasjoki, member of the Health Care Board (terveys-

lautakunta, hälsovårdsnämnden) of the Federation.

17.   A member of the municipality of Padasjoki appealed against, inter

alia, the applicant's election, alleging that the composition of the

Health Care Board was unlawful, since the so-called joint lists of

candidates (yhteislista, gemensam lista) which had been presented in

the respective municipal elections at Asikkala and Padasjoki in 1988

should have been entitled to more than one representative on the Board.

The appellant argued, inter alia, that the total votes collected by the

three joint lists should have formed the basis for allotting seats on

the Board, in which case the lists should have been entitled to several

representatives. The appellant finally objected to the applicant's

election as an independent member of the Health Care Board, since no

actually independent candidate had stood for election in the municipal

elections at Padasjoki in 1988.

18.   On 19 November 1990 the County Administrative Court (läänin-

oikeus, länsrätten) of Häme found, inter alia, that the applicant's

election was unlawful. It considered that the joint lists of candidates

were to be considered as separate groups. The votes collected by the

respective lists in the municipal elections should therefore not have

been added together when the seats on the Health Care Board were

allotted for the purpose of ensuring a fair representation of the

groups represented in the respective municipal councils (kunnan-

valtuustot, kommunfullmäktige) pursuant to section 122, subsection 4

of the 1976 Act on Municipalities (kunnallislaki 953/76, kommunallag

953/76; hereinafter "the 1976 Act").

19.   Having regard to the total votes collected by the parties and

other groups represented in the respective municipal councils, the

County Administrative Court furthermore found that the Health Care

Board should have been composed of, inter alia, four members

representing the National Coalition Party r.p. (Kansallinen kokoomus

r.p., Nationella samlingspartiet r.p.; hereinafter called "the National

Coalition Party"). It noted, however, that only three of the board

members "represented" that party. In addition to representatives of

other parties and a representative of one of the joint lists, one

member (the applicant) was independent of all the groups represented

in the relevant municipal councils. The Board had therefore not been

composed in conformity with section 122, subsection 4 of the 1976 Act.

20.   In its appeal to the Supreme Administrative Court (korkein

hallinto-oikeus, högsta förvaltningsdomstolen) the Board of the

Municipal Federation (liittohallitus, förbundsstyrelse) objected to the

applicant's obligation to be a member of the National Coalition Party

in order to be eligible for a seat on the Health Care Board.

21.   In the proceedings before the Supreme Administrative Court the

National Coalition Party acknowledged that the applicant was not a

member of that party or any other party or group represented in the

Municipal Council of Padasjoki. The party had, nevertheless, already

at the time of his election accepted him as one of its representatives

on the Health Care Board. The party had subsequently maintained its

consent to this arrangement.

22.   On 16 August 1991 the Supreme Administrative Court upheld the

County Administrative Court's decision by three votes against two. The

majority considered, inter alia, that in order to comply with section

122, subsection 4 of the 1976 Act the Federative Council should have

elected four persons "representing" the National Coalition Party on the

Health Care Board. In addition to the three members of that party who

had been elected to the Board the applicant had been elected as being

independent both of the parties and of the other groups. Under section

122, subsection 4, however, a non-member of a party could not be

elected to the Board as a representative of that party. The applicant's

election therefore violated section 122, subsection 4.

23.   The minority of the Supreme Administrative Court considered that

the applicant's election had complied with section 122, subsection 4

of the 1976 Act, since the right of someone to represent a group was

not dependent on his or her membership thereof, even if that group was

a party. The minority noted that the National Coalition Party had

continuously consented to being represented by the applicant in his

capacity as an independent member of the Health Care Board.

24.   In the light of the Supreme Administrative Court's decision the

Federative Council on 9 October 1991 proceeded to a new election of

members of the Health Care Board. The applicant was not re-elected.

B.    Relevant domestic law and legal instruments of the Council of

      Europe

      1.   The protection of the negative freedom of association

25.   Under the 1919 Constitution Act (Suomen Hallitusmuoto 94/19,

Regeringsform för Finland 94/19; hereinafter "the Constitution Act")

Finnish citizens are entitled to form associations without first

obtaining a permission to this end, provided the aims of the

associations do not violate the laws and are not contrary to public

decency (section 10, subsection 1). Finnish citizens are equal before

the law (section 5).

26.   The Standing Parliament Committee for Constitutional Matters

(eduskunnan perustuslakivaliokunta, riksdagens grundlagsutskott) has

considered that section 10 of the Constitution Act also covers the

right not to join an association (Committee Opinion 6/88).

      2.   The duty to accept a municipal position of trust

27.   No one shall decline a municipal position of trust, unless he or

she is sixty years of age or more, if he or she has occupied the same

position of trust or another position in the same body during the

preceding four years or if he or she has occupied a municipal position

of trust during eight years or more. A refusal may also be based on

another weighty reason and shall, with one exception not relevant here,

be examined by the body which elected the person (section 18 of the

1976 Act).

28.   A position of trust shall be occupied by the person elected to

it pending the outcome of possible appeal proceedings and, if the

election is quashed, until a new election has taken place (section 19,

as amended by Act no. 388/81).

29.   The county administrative boards (lääninhallitukset, läns-

styrelserna) shall ensure that the administration of municipalities,

municipal federations and subsequent consortia is in compliance with

the law (section 145, as in force at the relevant time and as

subsequently amended by Act no. 979/92). A county administrative board

may, for instance, impose an administrative fine on a holder of a

position of trust so as to have him fulfil his duties (section 7 of the

1987 Act on County Administrative Boards (lääninhallituslaki 1233/87,

länsstyrelselag 1233/87)). A failure duly to serve in a position of

trust may also be punishable as an offence in the performance of duties

under chapter 40 of the 1889 Penal Code (rikoslaki 39/1889, strafflag

39/1889; extensively amended).

      3.   The requirement of a fair representation in municipal

           federative bodies of the groups represented in the relevant

           municipal councils

30.   Section 122, subsection 4 of the 1976 Act, as in force up to

1 January 1993, reads as follows:

      (Finnish)

      "Liittohallituksen ja sen alaisten toimielinten kokoonpano

      on sovitettava sellaiseksi, että se vastaa jäsenkuntien

      valtuustoissa edustettuina olevien eri ryhmien

      kunnallisvaaleissa saamaa ääniosuutta kuntainliiton

      alueella."

      (English)

      "The composition of the Board of a Municipal Federation as

      well as of its subordinated bodies shall be determined so

      as to correspond to the votes received within the area of

      the Federation by the different groups represented in the

      municipal councils of the members of the Federation."

31.   In accordance with an amendment to the 1976 Act which entered

into force on 1 January 1993 the municipal federations have been

replaced by municipal consortia (kuntayhtymät, samkommuner). Each

consortium shall draw up a charter which is not subjected to approval

by any State authority. The charter shall specify how the groups

represented in the relevant municipal councils shall be represented in

the bodies of the consortium (section 106, subsection 3, paras. 4 and

subsection 5, both as added by Act no. 979/92). If the charter is not

amended to include a provision on representation, the above-mentioned

section 122, subsection 4 shall continue to be applicable to an

appropriate extent (see the transitional provision in Act no. 979/92).

      4.   The European Charter of Local Self-Government

32.   The European Charter of Local Self-Government (European Treaty

Series no. 122) entered into force with regard to Finland on

1 October 1991. Article 7 para. 3 thereof reads as follows:

      "Any functions and activities which are deemed incompatible

      with the holding of local elective offices shall be

      determined by statute or fundamental legal principles."

33.   According to the travaux préparatoires, the above paragraph

provides:

      "... that disqualification from the holding of local

      elective office should only be based on objective legal

      criteria and not on ad hoc decisions. Normally this means

      that cases of incompatibility will be laid down by statute.

      However, cases have been noted of firmly entrenched, non-

      written legal principles which seem to provide adequate

      guarantees. ..." (p. 15 of the report, as published by the

      Council of Europe in 1986).

III.  OPINION OF THE COMMISSION

A.    Complaint declared admissible

34.   The Commission has declared admissible the applicant's complaint

that he was required to be a member of the National Coalition Party in

order to be eligible for a position of trust allotted to that party and

that this requirement discriminated against him because he is

politically independent.

B.    Points at issue

35.   The issues to be determined are whether there has been a

violation of Article 11 (Art. 11) of the Convention and/or a violation

of Article 14 in conjunction with Article 11 (Art. 14+11).

C.    As regards Article 11 (Art. 11) of the Convention

36.   Article 11 (Art. 11) of the Convention reads as follows:

      "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."

37.   The applicant complains that the annulment of his election to the

Health Care Board violated his negative freedom of association. He

recalls that as from his election on 8 February 1989 up to the decision

of the Supreme Administrative Court of 16 August 1991 he was obliged

to occupy his position of trust on pain of possibly facing criminal

charges and punishment. He emphasises that the issue in his case is not

whether he could have become eligible for a position of trust to which

a group other than a party might have been entitled under section 122,

subsection 4 of the 1976 Act. The questions are whether eligibility for

a position of trust to which a party or other group is entitled under

that provision presupposes membership in that party or group or whether

it should suffice that the party or group consents to its being

represented even by a non-member.

38.   The applicant accepts that section 122, subsection 4 of the 1976

Act seeks to ensure, in accordance with the outcome of the respective

municipal elections, a fair representation in the bodies of the

Municipal Federations of the parties and other groups which have

obtained representation in the respective municipal councils. This

provision does not, however, prescribe party membership as a condition

of eligibility for a position of trust of a federative body. At any

rate, the voters' opinions can be fairly represented without imposing

an inflexible requirement of party membership. This is particularly

true in the applicant's case, since the party at issue had

unequivocally accepted him as its representative without requiring him

to become a member thereof.

39.   The applicant therefore submits that, contrary to the ratio of

section 122, subsection 4 of the 1976 Act, its interpretation in his

case affords party members a privileged position. This should be

contrasted with the applicant's negative freedom of association which

is protected not only by Article 11 (Art. 11) of the Convention but

also by the Constitution Act and therefore must have priority over the

1976 Act.

40.   The applicant maintains that there is no pressing need for

reserving positions of trust to which a certain party is entitled under

section 122, subsection 4 of the 1976 Act exclusively to members

thereof. Only a small percentage of those entitled to vote in Finnish

elections, more precisely about 500.000 out of a total of some

3.800.000 persons, belong to a party. The membership requirement

therefore unjustifiably favours the parties at the expense of the large

majority of voters who are not party members.

41.   The applicant finally considers that the interpretation of

section 122, subsection 4 of the 1976 Act in his case implies that lay

judges of District Courts (käräjäoikeudet, tingsrätter) are also

required to be members of a party, since they are considered to hold

a municipal position of trust to which they are elected by a

proportional vote. He also refers to Article 7 of the European Charter

of Local Self-Government (see paras. 32-33 above).

42.   The Government submit that the annulment of the applicant's

election to the Health Care Board did not interfere with his negative

freedom of association. They concede that pending the outcome of the

appeal proceedings he was obliged to occupy his seat on the Board. His

negative freedom of association was, nevertheless, not struck at its

very substance by the requirement of party membership as finally

imposed on him by virtue of the Supreme Administrative Court's

decision. Although as a non-member he could not legally be elected to

a position of trust to which the National Coalition Party was entitled,

he would, according to the Government, in principle have been eligible

for a position of trust allotted to a group other than a party.

43.   Should the Commission find an interference with the applicant's

negative freedom of association, the Government submit that it was

justified under Article 11 para. 2 (Art. 11-2). The requirement of

party membership was prescribed by the 1976 Act, as interpreted by the

Supreme Administrative Court in his case. The Government admit,

however, that obviously not all consequences of that decision of the

Supreme Administrative Court were foreseeable when section 122,

subsection 4 of the 1976 Act was enacted.

44.   In the Government's view the annulment of the applicant's

election, moreover, served the legitimate aim of protecting the rights

and freedoms of others. Section 122, subsection 4 of the 1976 Act seeks

to secure that the political parties and other groups represented in

the relevant municipal councils are also fairly represented in the

municipal federations. It further safeguards party members from a

situation where their party would be represented by a non-member. The

Government admit, however, that in the applicant's case the members of

the National Coalition Party were involved in accepting him as a party

representative.

45.    The Government furthermore consider that the annulment of the

applicant's election was necessary in a democratic society in pursuance

of the above-mentioned aim. They emphasise that, in principle, section

122, subsection 4 of the 1976 Act also entitles a group of politically

independent candidates to a certain number of positions of trust to be

determined in view of the outcome of the municipal elections. Such a

group is thus placed on an equal footing with a party. In the present

case, however, no such group had presented candidates in the relevant

municipal elections. The Government therefore adhere to the County

Administrative Court's finding that the applicant was to be considered

independent of all the groups represented in the municipal councils.

46.   The Government conclude that, even as interpreted in the

applicant's case, section 122, subsection 4 of the 1976 Act does not

create privileges for the parties. Finally, having regard to the

pressing social need for requiring that a political party should be

represented in the bodies of a municipal federation solely by its

members, the respondent State's margin of appreciation has not been

exceeded in the applicant's case.

47.   The Commission recalls that Article 11 (Art. 11) must be

considered to protect also the negative freedom of association, i.e.

the right not to join and not to be a member of an association,

although the scope of this protection remains to be defined. A form of

compulsion striking at the very substance of a right guaranteed by

Article 11 (Art. 11) may in itself amount to an interference with that

right (cf. Eur. Court H.R., Sigurdur A. Sigurjónsson v. Iceland

judgment of 30 June 1993, Series A no. 264, pp. 15-17, paras. 35-37).

48.   The Commission is not called upon to express a general opinion

on the Finnish system for ensuring that the composition of the

municipal federative bodies and subsequent consortia correspond fairly

to the opinions expressed in the municipal elections. Nor is it for the

Commission to pronounce itself on the question whether the annulment

of the applicant's election to the Health Care Board was in violation

of the European Charter for Local Self-Government. The Commission must

limit its examination to whether on the particular facts of the case

there was an interference with the applicant's negative freedom of

association as guaranteed by Article 11 para. 1 (Art. 11-1) of the

Convention. In the affirmative, it remains to be determined whether

this interference was justified under Article 11 para. 2 (Art. 11-2).

49.   The Commission observes that the applicant was at no stage forced

to join the National Coalition Party as a result of his election to the

Health Care Board. It is true that the applicant had a duty under

domestic law to accept and occupy his seat on the Board while the

appeal proceedings concerning his election were pending. Throughout

this period, however, and even after the Supreme Administrative Court's

annulment of his election he had a genuine choice between, on the one

hand, joining the party which he was already officially representing

on the Health Care Board and, on the other hand, giving up his seat on

that body. It would appear that no sanction would have been imposed on

him if he had chosen the second alternative.

50.   The Commission furthermore observes that the applicant was

already at the time of his election to the Health Care Board employed

by the municipality of Padasjoki as its Director. The board membership

does not therefore appear to have been of any particular significance

to him, either financially or otherwise (cf., e.g., the above-mentioned

Sigurdur A. Sigurjónsson judgment, pp. 15-17, paras. 35-36). By no

means could it be placed on an equal footing with that of, for

instance, a full-time politician. Moreover, the fact that the applicant

had agreed to represent the National Coalition Party on the Health Care

Board indicates that there were no insurmountable ideological

differences between himself and that party which would, for reasons of

conscience, have made it impossible for him to join the party in order

to retain his seat on the Board.

51.   Taking the above circumstances as a whole, the Commission

considers that the annulment of the applicant's election to the Health

Care Board did not strike at the very substance of his right to

negative freedom of association and therefore did not interfere with

that right. Accordingly, Article 11 (Art. 11) has not been violated.

CONCLUSION

52.   The Commission concludes, by 27 votes to 1, that in the present

case there has been no violation of Article 11 (Art. 11) of the

Convention.

D.    As regards Article 14 (Art. 14) of the Convention in conjunction

      with Article 11 (Art. 11)

53.   Article 14 (Art. 14) reads as follows:

      "The enjoyment of the rights and freedoms set forth in this

      Convention shall be secured without discrimination on any

      ground such as sex, race, colour, language, religion,

      political or other opinion, national or social origin,

      association with a national minority, property, birth or

      other status."

54.   The applicant complains that the quashing of his election to the

Health Care Board furthermore discriminated against him in the

enjoyment of his negative freedom of association because he is

politically independent.

55.   The Government submit that the applicant has not been

discriminated against as a result of his lack of eligibility for the

position of trust to which the National Coalition Party was entitled.

Not being a member of that party, his situation was similar to that of

members of other parties, who were equally ineligible for a position

of trust allotted to the National Coalition Party. Furthermore, the

difference in the treatment of the applicant in comparison with that

facing members of the National Coalition Party had the legitimate aim

of reserving, for that party, a number of positions of trust

corresponding to its share of the votes in the municipal elections.

Achieving this aim required that the applicant be a member of the

National Coalition Party. Neither were the means employed to this end

disproportionate to the aim pursued. The Government therefore conclude

that there existed an objective and reasonable justification for the

applicant's lack of eligibility for a position on the Health Care Board

as a representative of the National Coalition Party.

56.   The Commission recalls that Article 14 (Art. 14) complements the

other substantive provisions of the Convention and the Protocols. It

has no independent existence since it has effect solely in relation to

"the enjoyment of the rights and freedoms" safeguarded by those

provisions. Although the application of Article 14 (Art. 14) does not

presuppose a breach of those provisions - and to this extent it is

autonomous -, there can be no room for its application unless the facts

at issue fall within the ambit of one of more of the latter (e.g., Eur.

Court H.R., Karlheinz Schmidt v. Germany judgment of 18 July 1994,

para. 22, to be published in Series A no. 291-B).

57.   The Commission has found above (para. 51) that the annulment of

the applicant's election to the Health Care Board did not strike at the

very substance of his right to negative freedom of association. While

it accepts that the applicant's complaint may nevertheless fall within

the ambit of Article 11 (Art. 11), it does not find any discrimination

against the applicant in regard to his enjoyment of the rights under

that provision. It considers, in particular, that any discrimination

to which the applicant may have been subjected concerned his right to

be a member of the Health Care Board, i.e. a right not guaranteed by

the Convention. Accordingly, there has been no violation of Article 14

(Art. 14) of the Convention read in conjunction with Article 11

(Art. 11).

CONCLUSION

58.   The Commission concludes, unanimously, that in the present case

there has been no violation of Article 14 (Art. 14) of the Convention

in conjunction with Article 11 (Art. 11).

E.    Recapitulation

59.   The Commission concludes, by 27 votes to 1, that in the present

case there has been no violation of Article 11 (Art. 11) of the

Convention (para. 52).

60.   The Commission concludes, unanimously, that in the present case

there has been no violation of Article 14 (Art. 14) of the Convention

in conjunction with Article 11 (Art. 11)(para. 58).

Secretary to the Commission          President of the Commission

       (H.C. KRÜGER)                       (C.A. NØRGAARD)

                                                       (Or. English)

                 CONCURRING OPINION OF MR. H. DANELIUS

      The so-called negative freedom of association, i.e. the right not

to join and not to be a member of an association, has been at issue

before the European Court of Human Rights in the Young, James and

Webster case (Eur. Court H.R., Young, James and Webster judgment of

13 August 1981, Series A no. 44) and in the Sigurdur A. Sigurjónsson

case (Eur. Court H.R., Sigurdur A. Sigurjónsson judgment of

30 June 1993, Series A no. 264). It appears from this case-law, and in

particular from the latter judgment, that the negative freedom of

association is in principle protected by Article 11 of the Convention.

The two judgments also show that there may in certain circumstances be

a breach of Article 11 when a person is dismissed from employment or

denied the right to exercise his trade or profession on the ground that

he is not a member of a certain association. In these two cases there

were certain characteristic features: on the one hand, there was no

special connection between the membership of an association and the

nature of the employment and, on the other hand, the loss of the

employment entailed considerable hardship for the persons concerned.

      On the other hand, there may well be other cases where membership

of a certain association is a fully justified condition for employment

which could not be considered to raise an issue in regard to Article 11

of the Convention. For instance, a political party or another political

organisation may find it essential that all its employees, or its

employees in special functions, are members of that political party or

that organisation in order to be sure that the employees share the same

political ideology and can be expected to be loyal to the party or

organisation. There is a similar situation if a church, a religious

sect or a religious school adopts the policy of only employing persons

who have demonstrated their faith by becoming members of the relevant

church or a particular religious organisation. In such circumstances

there is a clear link between membership of an organisation and

employment. Consequently, there could be no question of a violation of

the freedom of association of persons who, without being members, would

wish to be employed by such a political or religious organisation.

      The same reasoning could be applied, a fortiori, to eligibility

to various political positions of trust, which are of a special

character and are also of lesser importance to the individual than

employment. In most cases it is normal that membership of political

bodies is reserved - entirely or mainly -for persons who hold certain

political views, and it would generally seem acceptable that membership

of a political party is chosen as a criterion for the right to fulfil

such functions. In fact, this criterion is often appropriate in order

to avoid ambiguity and make the system clear and stable.

      It is true that in the present case the National Coalition Party

accepted the applicant as its representative on the Health Care Board

despite the fact that he was not a member of that party. However, even

in these circumstances it cannot, for the purposes of Article 11 of the

Convention, be considered unreasonable or irrelevant for the Finnish

courts to have applied membership of a party as a criterion for

membership of the Health Care Board. As a supplementary consideration,

it should also be noted that the refusal to accept the applicant as a

member of the Health Care Board did not involve any hardship for him

which could be compared with the serious consequences which arose for

the applicants in the Young, James and Webster and Sigurdur A.

Sigurjónsson cases.

      I am therefore of the opinion that in this case there has been

no interference with the applicant's right under Article 11 of the

Convention.

      As I have already found, on the basis of the reasoning above,

that membership of a political party was in this case an acceptable

criterion, I consider that the discrimination aspect referred to by the

applicant does not raise a separate issue which has to examined on the

basis of Article 14 of the Convention.

                                                       (Or. English)

               CONCURRING OPINION OF Mr. H.G. SCHERMERS

                         JOINED BY Mr. G. RESS

      I agree with those members who find no violation of Article 11,

nor of Article 14 in the present case, but my reasoning differs from

that expressed in the text of the Report. In my opinion the freedom of

association is not at stake.

      A health care board of a municipal federation or consortium is

established for the joint administration of costly municipal services.

In order to keep a balance with other costly services it seems

desirable to create some uniformity of policy between the municipality

and the health care board of the federation or consortium to which the

municipal belongs. The coordination of policy is achieved by section

122, subsection 4 of the 1976 Act which provides that the composition

of the board shall correspond to the representation in the councils of

the participating municipalities. In fact, a health care board is not

composed of individual experts but rather of representatives of the

same political parties which decide on budgetary items in the municipal

councils.

      I do not see any objection to a system in which this kind of

board is composed of delegates of political parties. One may expect

some minimum of party discipline from party members. One may therefore

also expect that the representatives of the political parties will

strive for the same policy decisions (in particular with respect to the

spending of available funds) in a federative health care board as in

other municipal organs.

      As a federative health care board is composed of the political

parties of the municipalities and the applicant does not properly

represent a political party, he has no right to sit on such a board.

I do not see that this affects his freedom of association. For any

function in a political party (such as president, secretary, or

representative in the municipal council or in a board) one must be a

party member. If the applicant does not want to join the party, he is

not qualified for a function representing that party. I cannot see that

this infringes in any way Article 11.

      Article 14 prohibits discrimination in the enjoyment of the

rights and freedoms set forth in the Convention. As no such right or

freedom is at stake, Article 14 is not applicable.

                                                        (Or. English)

           PARTIALLY DISSENTING OPINION OF Mr. C.L. ROZAKIS

      I regret that I am unable to join the majority of the Commission

in its finding of a non-violation of Article 11 in this case. The

reasons which have led me to the conclusion that Article 11 has been

violated are basically two:

1.    When considering whether the applicant's membership of the Health

Care Board required that he be a member of the National Coalition

Party, the administrative courts in Finland based themselves on section

122, subsection 4 of the 1976 Act. This Act by no means directly

imposes a requirement of party or group membership on someone wishing

to become a member of an organ of a municipal federation (or a

subsequent municipal consortium). Equally, no statute of lower rank nor

any previous domestic case-law supporting this interpretation of the

1976 Act has been referred to by the parties. Under such circumstances,

and taking into account the wording of section 122 of the 1976 Act as

well as the decision of a major political party to consent to its being

represented by the applicant (presumably a decision taken on the basis

of some experience among the party members of the practice followed in

such cases), one may already conclude that the judgments of the

administrative courts restricted the applicant's negative freedom of

association without any clear, unambiguous and predictable rules of law

or past case-law justifying such a restriction.

2.    The annulment by the administrative courts of his election to the

Health Care Board had direct repercussions on the personal and

professional situation of the applicant, who had been occupying his

seat on the Board while the proceedings concerning his election had

been pending. The annulment meant, of course, that the applicant lost

his seat.

      The majority of the Commission do not deny that the annulment of

the applicant's election had adverse repercussions on him. Instead they

enter into an assessment of the exact significance of those

repercussions, in an effort to show that the negative effects on the

applicant were insignificant and that, anyway, the fact that he had

agreed to represent the National Coalition Party on the Health Board

"indicates that there were no insurmountable ideological differences

between himself and that party which would, for reasons of conscience,

have made it impossible for him to join the party in order to retain

his seat on the Board" (paragraph 50 of the Report).

      These arguments are not convincing to me. The argument that the

applicant was already at the time of his election to the Health Care

Board employed as the Director of the municipality of Padasjoki and

that, therefore, his board membership "does not ... appear to have been

of any particular significance to him", does not deal with the issue

that a person lost a post of some political significance and was

deprived of the honour to represent a political party just because he

did not want to join that party. Instead of entering into the merits

of the problem, the argument advanced by the majority tries to

circumvent it and find peripheral issues to counterbalance the

applicant's loss of a post which was rather prestigious to him.

      Furthermore, the argument that the applicant had, in any event,

the choice of becoming a member of the National Coalition Party in

order to retain his seat on the Health Care Board is clearly a petitio

principii. It is exactly the fact that he did not wish to become a

member of the party and still retain his seat which lies at the heart

of his complaint that his negative freedom of association was not

respected. This freedom which he ought to have enjoyed was disregarded

by the Finnish authorities.