Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 32721/96

by M.A.

against Sweden

The European Commission of Human Rights (Second Chamber) sitting

in private on 14 January 1998, the following members being present:

MM J.-C. GEUS, President

M.A. NOWICKI

G. JÖRUNDSSON

A. GÖZÜBÜYÜK

J.-C. SOYER

H. DANELIUS

Mrs G.H. THUNE

MM I. CABRAL BARRETO

J. MUCHA

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 23 April 1996 by

M.A. against Sweden and registered on 22 August 1996 under file

No. 32721/96;

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 Swedish citizen born in 1968. He resides in

Stockholm.

The facts of the case, as submitted by the applicant, may be

summarised as follows.

a. The particular circumstances of the case

As a student at Stockholm University, the applicant is, in

accordance with a legal obligation, a member of the student union at

the university, Stockholms Universitets Studentkår.

In late 1995 and in 1996, dissatisfied with the way in which a

university examination in Spanish had been conducted, the applicant

contacted representatives of the student union. From the reception he

got and the representatives' alleged failure to take proper action in

regard to the examination the applicant concluded that the student

union did not defend the interests of the students.

Unable to leave the student union the applicant, in letters to

the Parliamentary Ombudsman (Justitieombudsmannen), the Government and

the Standing Parliamentary Committee on the Constitution

(Konstitutionsutskottet), requested that the compulsory membership be

abolished. He claimed that it violated his freedom of association and

maintained that there were no practical or other reasons for being a

member of a student association. He further expressed his intention

to pursue the matter before international institutions. For various

reasons, however, the above bodies decided to take no action in regard

to the applicant's request. The Government's decision was taken on

15 August 1996.

b. Relevant domestic law

Under Chapter 4, Section 4 of the Law on the Institutions of

Higher Education (Högskolelagen, 1992:1434), the Government may enact

regulations obliging students at universities and other public

institutions of higher education to be members of certain student

bodies.

Such regulations are found in the Decree on Student Unions,

Student Clubs and Student Faculty Associations (Förordning om

studerandekårer, nationer och studentföreningar för fakultet, 1983:18).

The board of the university decides which student body is to function

as the student union at the university (Section 2 of the Decree). A

student shall be a member of that union (Section 4), which may impose

a subscription on its members (Section 10). If a student fails to join

the union or pay the subscription, the university board may exclude him

or her from teaching and examination (Section 20).

The purpose of a student union is to promote its members' studies

and other activities connected with the studies (Section 12 of the

Decree). It appoints student representatives to various university

bodies (Section 16). The union shall be democratically organised and

the students shall be allowed to vote in the elections of members of

its supreme executive body and to stand as candidates in such elections

(Section 13). The union shall adopt statutes which shall comprise

articles, inter alia, on the purpose and organisation of the union, on

the right to join and leave the union, on subscriptions and on the

right of the university board to quash decisions which are clearly

contrary to the purpose of the union (Section 14).

The statutes are approved by the university board when it

designates the student union and when the statutes are amended by the

union. If the university board finds that such amendments cannot be

approved, it may also decide that the student body in question shall

no longer function as the student union at the university (Section 15

of the Decree). The university board also examines questions relating

to an individual student's membership of a student union (Section 9).

Furthermore, it may decide that subscriptions to the union are payable

before a certain date.

The board of the university may quash a decision by a student

union which is clearly contrary to the purpose of the union as

designated by Section 12 of the Decree. However, the university board

may review such a decision only if so requested by either one tenth of

the union's members or at least 100 members (Section 21). Decisions

taken by the university board under the Decree may be appealed against

to the University Appeals Board (Överklagandenämnden för högskolan)

(Section 22).

COMPLAINTS

The applicant claims that his obligation to be a member of

Stockholms Universitets Studentkår violates his rights under Articles

11, 17 and 18 of the Convention, in particular his right to negative

freedom of association.

THE LAW

1. The applicant complains firstly that his obligation to be a

member of the student union violates his right to negative freedom of

association under Article 11 (Art. 11) of the Convention, which

provides 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."

The Commission recalls that the protection under Article 11

(Art. 11), including the right to negative freedom of association (cf.

Eur. Court HR, Sigurdur A. Sigurjónsson v. Iceland judgment of 30 June

1993, Series A no. 264, pp. 15-16, para. 35), is offered only in

respect of trade unions and other private-law associations. Public-law

institutions fall outside the ambit of Article 11 (Art. 11) (cf. Eur.

Court HR, Le Compte, Van Leuven and De Meyere v. Belgium judgment of

23 June 1981, Series A no. 43, pp. 26-27, paras. 64-65).

As to the circumstances of the present case, the Commission

considers that the object of the Swedish student unions is to secure

student participation in the administration of the universities (cf.

No. 6094/73, Dec. 6.7.77, D.R. 9, p. 5). The organisation and

activities of the unions are governed by law and the universities,

which are public institutions, exercise a certain control over the

unions, e.g. by approving their statutes and by determining certain

membership questions. Moreover, decisions of the unions may be subject

to a review, albeit limited, by university bodies.

Having regard to the above, the student unions cannot be

considered as associations within the meaning of Article 11 (Art. 11)

of the Convention. Noting, furthermore, that the unions are

democratically organised and that the students are free to disagree

with political or other opinions adopted by union bodies and to form

or join other student associations, the Commission considers that the

applicant's obligation to be a member of Stockholms Universitets

Studentkår does not interfere with his rights under Article 11

(Art. 11).

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 further complains that his obligation to be a

member of the student union violates his rights under Articles 17 and

18 (Art. 17, 18) of the Convention.

However, having regard to its considerations in respect of the

complaint under Article 11 (Art. 11) of the Convention, the Commission

finds that an examination of the complaints under Articles 17 and 18

(Art. 17, 18) does not disclose any appearance of a violation of the

rights and freedoms of these Articles.

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.

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

Secretary President

to the Second Chamber of the Second Chamber

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M.A. v. SWEDEN

M.A. v. SWEDEN

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