Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 27522/95

by Reinhard HELMERS

against Sweden

The European Commission of Human Rights (Second Chamber) sitting

in private on 1 July 1998, the following members being present:

MM J.-C. GEUS, President

M.A. NOWICKI

G. JÖRUNDSSON

A. GÖZÜBÜYÜK

J.-C. SOYER

Mrs G.H. THUNE

MM F. MARTINEZ

I. CABRAL BARRETO

D. SVÁBY

P. LORENZEN

E. BIELIUNAS

E.A. ALKEMA

A. ARABADJIEV

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 15 September 1994

by Reinhard HELMERS against Sweden and registered on 6 June 1995 under

file No. 27522/95;

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 is a German citizen, born in 1930. He is a

university lecturer and resides at Lund, Sweden.

The applicant has previously brought five applications before the

Commission which may be described as relating to alleged discrimination

against the applicant in the course of his professional career and

alleged denial of access to court. His first application No. 8637/79

was declared inadmissible on 10 March 1982 as being partly incompatible

ratione materiae with the Convention and partly for non-exhaustion of

domestic remedies. The second application No. 10484/83 was declared

inadmissible on 2 July 1984 as being partly substantially the same as

the applicant's first application, partly incompatible ratione materiae

with the Convention and partly for non-exhaustion of domestic remedies.

In a partial decision on admissibility of 14 March 1986 the

Commission declared the applicant's third application No. 11826/85

inadmissible in so far as it concerned complaints under Articles 9, 10,

13, 14, 17 and 25 of the Convention whereas it declared admissible, on

9 May 1989, the complaint that he did not have a "fair and public

hearing" within the meaning of Article 6 of the Convention as regards

certain proceedings before the Swedish Court of Appeal (hovrätten).

This issue was finally determined by the European Court of Human Rights

(Eur. Court HR, Helmers judgment of 29 October 1991, Series A

no. 212-A).

In his fourth application No. 15557/89 the applicant submitted

that the Swedish Government and the applicant's trade union in 1975

signed a so-called "income guarantee contract" (inkomsttrygg-

hetsavtal). According to this contract a person who for reasons of

reorganisation was required to fulfil other functions would

nevertheless receive the same salary as before the reorganisation.

As the applicant considered that this applied to him he submitted

a claim to the Government for an increase of salary as from a certain

date. The Government rejected this claim on 22 December 1988. The

applicant complained to the Chancellor of Justice (justitiekanslern)

who informed him that his claims concerned a labour dispute which

should be determined in accordance with the Act on procedures in Labour

Disputes (lagen om rättegången i arbetstvister), i.e. in the District

Court (tingsrätten) or in the Labour Court (arbetsdomstolen).

Before the Commission the applicant invoked, inter alia,

Article 10 of the Convention maintaining that "the official statement

of political opinions which he is suspected to hold as reason to

degrade him from his academic post was an obvious discrimination in the

sense of the Convention".

Furthermore the applicant invoked Article 6 para. 1 of the

Convention maintaining that the Government's refusal to accept his

pecuniary claim was an example of the continuing discrimination against

him. He contended that the determination of his claims concerned a

"civil right" within the meaning of Article 6 para. 1 of the Convention

whereas he had no "tribunal" to which he could turn. In its decision

on admissibility of 6 November 1989 the Commission declared the

complaint under Article 10 of the Convention inadmissible as being

manifestly ill-founded. The complaint under Article 6 was also rejected

as being manifestly ill-founded in that the Commission was satisfied

that the applicant could have brought his dispute before the courts in

accordance with the proceedings in labour disputes.

In his fifth application (No. 20165/92) the applicant referred

to the facts as presented in his application No. 15557/89, submitting

additional facts which were summarised as follows:

"On 20 September 1989 he instituted proceedings against the

Government (Regeringen) in the Labour Court challenging

their interpretation and application of the 'income

guarantee contract' as set out in their decision of

22 December 1988. By decision of 29 January 1990 the Labour

Court referred the case to the District Court being the

right forum for this kind of dispute.

In the District Court a problem arose as to whether the

case should be directed against 'the Government' or whether

it should be directed against 'the State' being the

employer (Statens Arbetsgivarverk), hereafter called the

SAV. Eventually this issue was brought before the Labour

Court which on 13 December 1990 decided as follows:

(translation)

'It appears in this case that Reinhard Helmers

presents his employer with certain claims referring to

the so-called income guarantee contract of 1975

concerning the public sector. His claims before the

District Court must be considered as being directed

against the State in its capacity as employer.

The State is represented by the SAV in disputes which

concern the relationship between the State as employer

and the employee working for the State where the

dispute should be determined in accordance with the

Act on procedures in labour Disputes (1974:371). This

appears from Section 9 of the Ordinance (1976:1021)

concerning national collective agreements. The present

case must be determined in accordance with the Act on

Procedures in labour Disputes.

Reinhard Helmers has no legal basis upon which he may

demand that the State be represented in the dispute by

an authority other than the SAV or that the writ be

issued against the Government. His appeal is

accordingly rejected.'

The applicant nevertheless continued to insist in the

District Court that his claim be directed against 'the

Government' and not the SAV for which reason the Court

struck off the case (målet avskrives) in so far as it

concerned the SAV and dismissed it (avvisning) in so far as

it was directed against 'the Government'. This decision was

upheld by the Labour Court on 17 December 1991." The

applicant complained as in his previous application

No. 15557/89, that the determination of his claims

concerned a "civil right" within the meaning of Article 6

para. 1 of the Convention but that he had no "tribunal" to

which he could turn. He referred in this respect to the

fact that his case against the Government was dismissed by

the courts.

He also invoked Article 10 in conjunction with Article 14 of the

Convention complaining that the reasons for rejecting his claims under

the income guarantee contract were "inspired by the same administration

that had used the anonymous political libel in achieving the

applicant's degradation by the Government's decision of 7 June 1974."

On 2 December 1992 the Commission (Second Chamber) declared the

application inadmissible on the following grounds:

"1. Under Article 6 para. 1 of the Convention the

applicant complains that, in the determination of his civil

rights, i.e. the dispute regarding his entitlement to

salary adjustments under the so-called income guarantee

contract, he has no access to a tribunal.

The Commission recalls that this is substantially the same

complaint as that submitted in the applicant's previous

application no. 15557/89. Accordingly it follows from

Article 27 para. 1 (b) of the Convention that the

Commission may only examine it if it contains relevant new

information. In this respect the applicant refers to the

fact that the District Court dismissed his case against the

Government.

The Commission finds, however, that Article 6 of the

Convention does not give the applicant a right as such to

institute proceedings against 'the Government'. Nothing in

Article 6 prevents a Government from delegating certain

tasks, for example in labours matters, to its authorities.

Furthermore, the Commission notes that the dispute

involving the applicant's civil rights concerned his

entitlement to certain salary adjustments. Such a dispute

could be brought before the courts in accordance with the

proceedings in labour disputes as already held by the

Commission in its previous decision of 6 November 1989 in

application No. 15557/89. Accordingly, the Commission finds

that the present application contains no relevant new

information.

It follows that this part of the application must be

rejected pursuant to Article 27 para. 1 (b) of the

Convention.

2. The Commission has examined the remainder of the

complaints as submitted by the applicant. It finds,

however, that they do not disclose any appearance of a

violation of the Convention. It follows that this part of

the application is manifestly ill-founded within the

meaning of Article 27 para. 2 of the Convention." In

his present application the applicant has submitted

numerous letters in which he once more refers to all his

previous applications lodged with the Commission and

complains, inter alia, that "as part of a long-lasting

discrimination by the Swedish authorities, based on

libellously attributed opinions of the applicant, the

Government 22 December 1988 had denied him even his

contractual salary to which he was entitled since 1974". He

also maintains that his cases have been examined wrongly

due to fraudulent behaviour by a member of the Commission

and its Secretariat.

The applicant has submitted additional facts which may be

summarised as follows:

It appears that in 1993 the applicant submitted a request to the

Supreme Court (Högsta domstolen) to have the case concerning the income

guarantee contract reopened. On 12 September 1996 the Supreme Court

rejected the request finding that the applicant had not submitted

anything which could lead to the reopening of the case.

COMPLAINTS

1. With reference to Articles 1, 6 and 14 of the Convention the

applicant complains of continuing discrimination and denial of access

to court as described in his previous applications.

2. The applicant also complains that his request to have the

proceedings in the Labour Court concerning the income guarantee

contract reopened was not determined within a reasonable time.

THE LAW

1. With reference to Articles 1, 6 and 14 (Art. 1, 6, 14) of the

Convention the applicant complains of continuing discrimination and

denial of access to court as described in his previous applications.

The Commission notes that in the letters submitted by the

applicant in this respect he has made a series of allegations of

criminal and dishonest conduct in language which is both insulting and

abusive against a member of the Commission and its Secretariat. There

is no evidence whatever to support the allegations made and nothing to

warrant the language used, which in the Commission's view is wholly

without justification. In this connection the Commission recalls that

the persistent use of insulting or provocative language by an applicant

may be considered an abuse of the right of petition (No. 2724/66,

Dec. 10.2.67, Collection 22, p. 89; No. 2625/65, Dec. 30.9.68,

Collection 28, p. 26 and No. 27567/95, Dec. 9.4.97, unpublished).

Nevertheless, in the present case the Commission finds it

unnecessary to reject the application as abusive since it is in any

event inadmissible for the following reasons:

In so far the applicant refers to his previous applications and

the alleged discrimination and denial of access to court the Commission

finds that the material submitted by the applicant in support of his

present case does not contain any relevant new information. It follows

that this part of the application must be rejected pursuant to Article

27 para. 1 (b) (Art. 27-1-b) of the Convention.

2. The applicant complains also that his request to have a previous

Labour Court case reopened was not determined within a reasonable time.

He invokes in this respect Article 6 (Art. 6) of the Convention.

The Commission recalls, however, that Article 6 (Art. 6) is not

applicable to proceedings concerning an application to reopen civil

proceedings (cf. e.g. Nos 13601/88 and 13602/88, Dec. 6.7.89, D.R. 62,

p. 284).

It follows that this part of the application must be rejected as

incompatible ratione materiae with the provisions of the Convention,

within the meaning of Article 27 para. 2 (Art. 27-2).

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

M.-T. SCHOEPFER J.-C. GEUS

Secretary President

to the Second Chamber of the Second Chamber

Menu

HELMERS v. SWEDEN

HELMERS v. SWEDEN

LEXI