Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 27411/95

by L.G.

against Sweden

The European Commission of Human Rights (Second Chamber) sitting

in private on 15 May 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 3 March 1994 by

L.G. against Sweden and registered on 26 May 1995 under file

No. 27411/95;

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 Swedish citizen, born in 1953. He resides at

Eringsboda.

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

summarised as follows.

On 20 July 1989 the applicant instituted proceedings against a

company before the District Court (Tingsrätten) of Ronneby. The

applicant claimed that he had been employed by the company for a period

of four weeks from 10 April 1989. An employment agreement had allegedly

been concluded on 4 or 5 April between a representative of the company

and E.P., an official of the local Employment Office (Arbets-

förmedlingen), acting as the applicant's representative. However, on

10 April, some hours after the applicant had appeared at the place of

work, the company's representative had told him to leave. The applicant

maintained that he had been dismissed without objective grounds and

that the company had breached certain provisions of the Act on Security

of Employment (Lagen om anställningsskydd, 1982:80). He therefore

claimed that the company was liable to pay damages.

The District Court held a preparatory hearing in the case on

25 February 1991. It was decided that the main hearing should be held

in September 1991. However, despite repeated inquiries by the applicant

in 1991 and 1992, there was no hearing during these years.

In June 1992 the District Court asked the applicant if the case

could be decided without a hearing. The applicant answered in the

negative.

The applicant was later summoned to a hearing scheduled for

23 March 1993. The hearing was, however, postponed as the Court's

president had fallen ill.

Eventually, the main hearing took place on 7 May 1993. At the

request of the company, two of its employees, including the above-

mentioned representative, and a second official of the Employment

Office, gave testimony before the Court. At the beginning of the

hearing, the parties were, however, informed by the Court that E.P.,

who had been called as a witness by both parties, was unable to appear

as he was, at the time, on vacation in Austria. Instead, he gave

evidence by telephone. At the end of the hearing, the applicant

objected to this procedure. He requested that the hearing should

continue at a later date and that E.P. should be summoned to appear in

person. The Court, however, rejected this request.

By judgment of 26 May 1993, the District Court found against the

applicant. The Court considered that he had failed to show that an

employment agreement had been concluded between him and the company.

The applicant appealed to the Labour Court (Arbetsdomstolen). He

requested, inter alia, that the case be referred back to the District

Court for a re-hearing during which E.P. should give evidence in

person. He further adduced, as new evidence, a tape recording of his

conversations with E.P. on 4 April 1989 and the company's

representative on 5 April 1989 as well as notes from the file of the

Employment Office.

On 28 January 1994 the Labour Court decided that the District

Court's hearing of E.P.'s testimony by telephone did not constitute a

procedural error and that the case should thus not be referred back to

the District Court.

By decision of 8 June 1994, the Labour Court further refused to

admit the new evidence submitted by the applicant, as he had not shown

a valid excuse for not having brought the evidence before the District

Court.

The Labour Court summoned the parties and E.P. to a hearing on

6 December 1994. This hearing was, however, cancelled as E.P. was

unable to appear.

On 28 February 1995 the Labour Court held its hearing in the

case. E.P. gave evidence in person. The testimonies of the other

witnesses who had given evidence in the District Court were played back

during the hearing.

By a final judgment of 22 March 1995, the Labour Court upheld the

District Court's judgment.

The Labour Court was composed in accordance with Chapter 3,

Section 6, subsection 2 of the Act on Litigation in Labour Disputes

(Lagen om rättegången i arbetstvister, 1974:371), i.e. with one

professional judge and two lay assessors. One assessor had been

nominated by an employers' organisation and one by an employees'

organisation.

COMPLAINTS

Invoking Article 6 of the Convention, the applicant makes the

following complaints:

- The Labour Court's judgment was not in line with relevant

domestic case-law.

- The Labour Court refused to examine the tape recordings the

applicant had adduced as evidence. Furthermore, E.P. was allowed to

give evidence by telephone in the District Court, although the

applicant had requested that he should appear in person. Allegedly,

E.P.'s testimony in the Labour Court did not remedy the deficient

taking of evidence in the District Court, since the Labour Court, as

composed, was not an impartial tribunal.

- Both the District Court and the Labour Court failed to examine

whether the two Employment Office officials giving evidence in the case

had interests which could affect the credibility of their testimony.

- The dispute in question was not determined within a reasonable

time. Allegedly, the period to be taken into account began on

20 July 1989 and ended on 22 March 1995. The proceedings thus lasted

five years and eight months.

THE LAW

1. The applicant complains that the Labour Court's judgment was not

in line with relevant domestic case-law. The applicant invokes

Article 6 (Art. 6) of the Convention which, in so far as relevant,

reads as follows:

"1. In the determination of his civil rights and

obligations ..., everyone is entitled to a fair ... hearing

within a reasonable time by an independent and impartial

tribunal ..."

The Commission, however, recalls that, in accordance with

Article 19 (Art. 19) of the Convention, its only task is to ensure the

observance of the obligations undertaken by the Parties to the

Convention. In particular, it is not competent to deal with a complaint

concerning errors of law and fact allegedly committed by domestic

courts, except where it considers that such errors might have involved

a possible violation of any of the rights and freedoms set out in the

Convention or its Protocols. The Commission refers, on this point, to

the established case-law of the Commission and the European Court of

Human Rights (cf., e.g., No. 21283/93, Dec. 5.4.94, D.R. 77-A pp. 81,

88, and Eur. Court H.R., Klaas v. Germany judgment of 22 September

1993, Series A no. 269, p. 17, para. 29).

The Commission finds that an examination of the applicant's

submissions in respect of the present complaint do not disclose any

appearance of a violation of the Article invoked.

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 claims that the Labour Court should have examined

the tape recordings adduced as evidence by him, as they would refute

and supplement the testimony given by E.P. He contends that the

recordings could not be brought before the District Court, as E.P. did

not appear in person at the District Court hearing. The applicant

further complains of the fact that E.P. was allowed to give evidence

by telephone in the District Court despite the applicant's request that

he should appear in person. The applicant was not informed in advance

of this procedure. Moreover, as E.P. did not have relevant documents

at hand when he gave testimony in the District Court, the applicant was

allegedly unable to put questions in the way he had prepared. The

applicant further asserts that E.P.'s appearance in person in the

Labour Court did not remedy the deficient taking of evidence in the

District Court, since the Labour Court, as composed, was not an

impartial tribunal. Also in respect of these complaints, the applicant

invokes Article 6 (Art. 6) of the Convention.

The Commission first points out that the Convention does not

explicitly secure to persons suing for damages the right to have

witnesses examined. The right is secured, under Article 6 para. 3 (d)

(Art. 6-3-d), only to persons charged with criminal offences.

Furthermore, the taking of evidence is governed by the rules of

domestic law. The admissibility and assessment of evidence are in

principle matters for the national courts. The Commission's task under

the Convention is to ascertain whether the proceedings, as a whole,

were fair (cf. Eur. Court H.R., Bricmont judgment of 7 July 1989,

Series A no. 158, p. 31, para. 89, and Saïdi v. France judgment of 20

September 1993, Series A no. 261-C, p. 56, para. 43).

In the present case, the Commission recalls that the Labour Court

held a hearing in the case, during which E.P. was present and gave

evidence. There is no indication that the applicant was unable to

examine this witness in full during the Labour Court hearing.

Furthermore, with respect to the new evidence introduced by the

applicant in the Labour Court, the Commission recalls that it was not

admitted as the applicant had failed to show a valid excuse for not

having brought the evidence before the District Court. The Commission,

considering that only exceptional circumstances would prompt it to

conclude that a decision not to admit evidence was incompatible with

Article 6 (Art. 6) of the Convention, finds that no such circumstances

existed in the present case. In particular, the Commission considers

that the Labour Court gave justifiable reasons for its decision and

that there is no appearance of arbitrariness on the part of the Court.

Thus, the Commission cannot find that the court proceedings,

taken as a whole, were unfair.

The applicant claims, however, that the Labour Court was not an

impartial tribunal. He refers to the participation of lay assessors

representing employers' and employees' interests and points out that

he is not a member of a trade union. He invokes the judgment of the

European Court of Human Rights in the Langborger case (Eur. Court H.R.,

Langborger judgment of 22 June 1989, Series A no. 155).

The Commission notes that the applicant has not called into

question the independence of the Labour Court. In order to establish

whether it could be considered impartial, 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. the

above-mentioned Langborger judgment, p. 16, para. 32, and Eur. Court

H.R., Holm judgment of 25 November 1993, Series A no. 279-A, p. 14,

para. 30).

In the Langborger case, 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 challenge the

personal impartiality of the lay assessors. In the absence of any

evidence to the contrary, the Commission finds no reason to doubt their

personal impartiality.

With respect to their objective impartiality, 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

could appear to have a common interest contrary to those of the

applicant or if their interests, although not common, were such that

they could nevertheless be considered to be 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 an employment

contract had been concluded between the applicant and the company in

question and, if so, whether the company had breached certain

provisions of the Act on Security of Employment. The nature of this

dispute was such that the lay assessors and the organisations which had

nominated them could not 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.

In the light of the foregoing, 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 this part of the application is also manifestly

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

Convention.

3. Further under Article 6 (Art. 6) of the Convention, the applicant

contends that both the District Court and the Labour Court failed to

examine whether the two Employment Office officials giving evidence in

the case had interests which could affect the credibility of their

testimony. The applicant argues that a finding by the courts in his

favour would have shown that the officials' handling of the matter had

been deficient.

Recalling that the assessment of evidence is in principle a

matter for the national courts, the Commission finds that an

examination of this complaint as it has been submitted does not

disclose any appearance of a violation of the Article invoked.

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.

4. The applicant finally contends that the dispute in question was

not determined within a reasonable time as required by Article 6

(Art. 6) of the Convention. The period to be taken into account began

on 20 July 1989 and ended on 22 March 1995. The proceedings thus lasted

five years and eight months.

The Commission finds that it cannot, on the basis of the file,

determine the admissibility of this complaint and that it is therefore

necessary, in accordance with Rule 48 para. 2 (b) of the Rules of

Procedure, to give notice of this complaint to the respondent

Government and to invite the Government to submit written observations

on the admissibility and merits thereof.

For these reasons, the Commission, unanimously,

DECIDES TO ADJOURN the examination of the applicant's complaint

that his case was not determined within a reasonable time;

DECLARES INADMISSIBLE the remainder of the application.

Secretary Acting President

to the Second Chamber of the Second Chamber

(M.-T. SCHOEPFER) (G.H. THUNE)

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L.G. v. SWEDEN

L.G. v. SWEDEN

LEXI