Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 24587/94

by Kent WALLBERG

against Sweden

The European Commission of Human Rights (Second Chamber) sitting

in private on 28 February 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 6 June 1994 by

Kent WALLBERG against Sweden and registered on 12 July 1994 under file

No. 24587/94;

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, an engineer born in 1952 and residing at

Karlsborg, is a Swedish citizen. Before the Commission he is

represented by Mr. Stig Centerwall, a lawyer practising at Gothenburg.

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

summarised as follows.

In June 1990, the applicant was employed by a shipping company,

Nordic Oriental Shipmanagement AB. From 27 May 1991 he worked on its

vessel M/S Front Falcon. After some incidents on board, the applicant

wanted to leave the ship. Having discussed the matter with the captain,

the applicant sent a letter to the company in which he stated his

request. The letter, drafted by the captain, was dated 10 and

11 July 1991. On 11 July, the applicant left the ship with the

captain's approval.

On 25 September 1991 the company requested that the applicant

hand in his resignation on account of what had happened on board

M/S Front Falcon. The applicant, who wished to keep his employment and

thus refused to resign, contacted the representative of his trade

union, the Engineer Officers' Union (Maskinbefälsförbundet).

After negotiations, the company and the representative concluded,

on 10 October 1991, that the applicant had himself resigned by virtue

of his letter to the company. They further agreed that the applicant

would receive four months' salary from 25 September.

On 18 October 1991 the company sent to the applicant a notice of

dismissal dated 25 September.

In early December 1991, the applicant asked the representative

again to take up the question of his employment with the company, as

he could not accept the agreement made between the company and the

representative. He was then told that the union could not offer him any

further assistance.

In February 1992, the applicant brought proceedings against the

company in the District Court (Tingsrätten) of Sjuhäradsbygden. He

claimed damages, maintaining that he had been dismissed without

objective grounds. The Court, composed of three professional judges,

held an oral hearing during which it heard the parties and several

witnesses, including, at the company's request, the union

representative. The representative maintained, inter alia, that the

wording of the applicant's letter to the company indicated that the

applicant had himself resigned.

The District Court noted that it was an undisputed fact that

there were no objective grounds for the applicant's dismissal. It then

stated that the question to be decided in the case was whether the

applicant nevertheless was prevented from asserting his rights under

the Act on Security of Employment (Lagen om anställningsskydd,

1982:80).

The District Court first found that the applicant's letter dated

10 and 11 July 1991 could not, in the circumstances, be considered as

his resignation. His employment had thus come to an end by way of the

company's notice of dismissal. The Court then noted that an employee

was not prevented from reaching a settlement with his employer in which

he waived his rights under the Act on Security of Employment. The

Court, however, found that the applicant was not bound by the agreement

made between the company and the union representative, as the applicant

had not authorised the representative to reach such an agreement or

subsequently approved it.

By judgment of 11 December 1992, the District Court thus ruled

in favour of the applicant and awarded him damages in the amount of

342,503 SEK.

The company appealed to the Labour Court (Arbetsdomstolen). In

accordance with Chapter 3 of the Act on Litigation in Labour Disputes

(Lagen om rättegången i arbetstvister, 1974:371), the Court was

composed of two legally trained and qualified members and five lay

assessors. They had all been appointed by the Government for a term of

office of three years. The president and the vice-president were

professional judges. Two of the assessors had been nominated by

employers' organisations, one by the Swedish Employers' Confederation

(Svenska Arbetsgivareföreningen) and one by the Swedish Association of

Local Authorities (Svenska Kommunförbundet). Two other assessors had

been nominated by employees' organisations, one by the Swedish

Confederation of Trade Unions (Landsorganisationen) and one by the

Central Organisation of Swedish Academics (Svenska Akademikers

Centralorganisation). The Engineer Officers' Union was not affiliated

to either of these organisations. The fifth assessor, a deputy

assistant under-secretary (kansliråd) at the Ministry of Labour, had

been appointed due to her special knowledge of the labour market but

did not represent employers' or employees' interests.

Also the Labour Court held an oral hearing and heard the parties

and several witnesses, including the union representative. In addition

to his testimony before the District Court, the representative stated

that, on 10 October 1991, he had explained to the applicant the details

of the agreement reached with the company. Allegedly, the applicant had

on this occasion accepted the agreement and was thus bound by it.

The Labour Court addressed the same issues as the District Court.

It considered, like the District Court, that the applicant had not

resigned from his employment. The Labour Court, however, found that the

applicant was bound by the agreement made between the company and the

union representative, as the applicant, when informed on

10 October 1991 of the details, must be deemed to have authorised the

representative to conclude the agreement. In reaching this conclusion,

the Court considered that the representative had made a very credible

impression and that there were much stronger reasons to believe his

account of the events than the applicant's.

By a final judgment of 22 December 1993, the Labour Court

accordingly reversed the District Court's judgment and rejected the

applicant's claim for damages.

COMPLAINT

The applicant claims that the Labour Court, when it examined his

case, was not an independent and impartial tribunal as required by

Article 6 para. 1 of the Convention.

THE LAW

The applicant claims that he was not heard by an independent and

impartial tribunal as required by Article 6 para. 1 (Art. 6-1) of the

Convention which, in so far as relevant, reads as follows:

"In the determination of his civil rights and obligations

or of any criminal charge against him, everyone is entitled

to a fair and public hearing ... by an independent and

impartial tribunal established by law. ..."

Noting that both his employer and his trade union through its

representative considered the applicant to be bound by the agreement

reached on 10 October 1991, the applicant maintains that the four lay

assessors nominated by the employers' and the employees' organisations

had a common interest contrary to his own. In this respect, he further

refers to the union's refusal, in December 1991, to assist him, the

union representative's appearance before the courts as a witness for

the employer and the employers' financial interest in the case.

In order to establish 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 pressures 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, and Holm judgment of

25 November 1993, Series A no. 279-A, p. 14, para. 30).

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 (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 contest the

independence and impartiality of the professional judges or the lay

assessor who did not represent employers' or employees' interests.

Furthermore, he does not call into question the personal impartiality

of the other lay assessors. In the absence of any evidence to the

contrary, the Commission finds no reason to doubt the personal

impartiality of these lay assessors.

As regards the objective impartiality of the lay assessors

nominated by the employers' and the employees' organisations, 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

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 (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 the applicant

had resigned from his employment by virtue of his letter dated 10 and

11 July 1991 or whether he had authorised the union representative to

conclude the agreement of 10 October 1991 with the employer. The

dispute thus concerned questions of evidence. The nature of this

dispute was such that none of the organisations which had nominated the

lay assessors could 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.

The Commission further notes that the Engineer Officers' Union,

of which the applicant and the union representative were members, was

not affiliated to either of the organisations which had nominated the

lay assessors.

In conclusion, 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 the application is 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.

Secretary Acting President

to the Second Chamber of the Second Chamber

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

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WALLBERG v. SWEDEN

WALLBERG v. SWEDEN

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