AS TO THE ADMISSIBILITY OF

                      Application No. 24601/94

                      by Bruce N. SMEETON-WILKINSON

                      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

Bruce N. SMEETON-WILKINSON against Sweden and registered on

12 July 1994 under file No. 24601/94;

      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, a forwarder born in 1938 and residing at Märsta,

is a British citizen. Before the Commission he is represented by

Mr. Svante af Winklerfelt, a lawyer practising in Stockholm.

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

summarised as follows.

      In 1980, the applicant was employed by a forwarding company, AB

Olson & Wright. Due to decreasing profits, the company, a member of the

Commercial Employers' Association (Handelns Arbetsgivareorganisation),

commenced negotiations with the local branch of the trade union, the

Union of Commercial Salaried Employees (Handelstjänstemannaförbundet),

with a view to reducing the work-force. In September 1991, it was

agreed that three posts at the office where the applicant worked should

be abolished. The company then decided which three employees to

dismiss. On 30 September 1991 the applicant, who was not a member of

the trade union, was dismissed with six months' notice. He was

simultaneously informed that the reason for his dismissal was lack of

work and that he had no preferential right to re-employment.

      Subsequently, the applicant brought proceedings against the

company in the District Court (Tingsrätten) of Stockholm. He sought to

have his dismissal declared invalid and claimed damages. He maintained,

first, that the company had breached Section 7 of the Act on Security

of Employment (Lagen om anställningsskydd, 1982:80) as he had been

dismissed without objective grounds and the company had not endeavoured

to find alternative work for him and, second, that the company had not

observed the rules on priority under Section 22 of that Act when

deciding which persons to dismiss.

      The District 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 chairman of the

local trade union, who had negotiated the dismissals with the company.

      The District Court found that the applicant had been dismissed

due to lack of work and not, as argued by him, for personal reasons.

It further rejected the applicant's assertion that the company had

breached its obligation to find alternative work. The dismissal was,

therefore, not invalidated. The Court, however, considered that the

company had failed to respect the priority rules under the above-

mentioned Section 22. It thus accepted the applicant's second-hand

claim and, by judgment of 30 November 1992, awarded him damages.

      The applicant and the company appealed to the Labour Court

(Arbetsdomstolen). The applicant requested the Court to declare his

dismissal invalid.

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

Disputes (Lagen om rättegången i arbetstvister, 1974:371), the Labour

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. They could not be removed from their

posts during their term of office and were, pursuant to Chapter 11,

Section 2 of the Instrument of Government (Regeringsformen), prohibited

from taking instructions concerning their judicial duties from public

authorities, including the Government and the Parliament.

      The president of the Labour Court was a head of division at a

court of appeal (hovrättslagman) and the vice-president was an

assistant under-secretary (departementsråd) at the Ministry of Justice.

Two of the assessors had been nominated by employers' organisations,

one by the Swedish Employers' Confederation (Svenska Arbetsgivare-

föreningen) 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

Salaried Employees (Tjänstemännens Centralorganisation). The fifth

assessor, a head of department at the Centre for Labour Market Studies

(Arbetslivscentrum), a Government research institute, had been

appointed due to her special knowledge of the labour market but did not

represent employers' or employees' interests.

      On 2 November 1993 the Labour Court held an oral hearing, during

which it heard the parties and several witnesses, including the trade

union chairman. At the hearing, the applicant, referring to Article 6

of the Convention, claimed that the Court should be composed

exclusively of legally trained and qualified judges. He further

challenged the impartiality of the lay assessors who had been nominated

by the labour market organisations.

      During the hearing, the Labour Court rejected the applicant's

complaints concerning its composition. The Court stated that his

request that only professional judges should be allowed to participate

could not legally be granted. It further rejected the applicant's claim

that the lay assessors were not impartial.

      By a final judgment of 12 January 1994, the Labour Court,

agreeing with the District Court, rejected the applicant's request to

have his dismissal invalidated but awarded him damages due to the

company's failure to comply with the rules on priority under the above-

mentioned Section 22.

COMPLAINTS

1.    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.

2.    The applicant also alleges violations of Articles 11 and 14 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. ..."

      With regard to the question of independence, the applicant refers

to the fact that the members of the Labour Court are appointed by the

Government for a limited term of office and are, thus, removable. He

further contends that the members not nominated by organisations

representing employers' and employees' interests are appointed from the

public sector, including ministries and parliamentary committees, and,

therefore, in reality represent the Government or the Parliament. As

concerns the impartiality issue, the applicant refers to the

participation of four lay assessors nominated by the labour market

organisations. In this respect, he recalls that the company was a

member of an employers' organisation while he did not belong to a trade

union. He also points out that the local trade union chairman appeared

before the courts as a witness for the company.

      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."

      The Commission recalls that the members of the Labour Court, like

the members of the Housing and Tenancy Court in the Langborger case,

had been appointed by the Government for a term of office of three

years. They could not be removed from their posts during this period

and were, under the Instrument of Government, protected from outside

pressures. In these circumstances, the Commission finds no reason to

doubt the independence of the Labour Court (cf. Langborger v. Sweden,

Comm. Report 8.10.87, paras. 125-132, Eur. Court H.R., Series A no.

155, pp. 30-31).

      As regards the question of impartiality, the applicant contests

the participation of the lay assessors nominated by the employers' and

the employees' organisations. He does not, however, call into question

their personal impartiality. In the absence of any evidence to the

contrary, the Commission finds no reason to doubt the personal

impartiality of these lay assessors.

      With respect to 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 question whether the applicant's

employer, in dismissing the applicant, had breached the provisions of

the Act on Security of Employment and on that ground was liable to pay

damages. 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 provisions

were correctly interpreted and applied. This interest could not be

contrary to that of the applicant.

      The Commission notes the applicant's argument that he was not a

member of a trade union while his employer was a member of an

employers' organisation. To accept that this gives rise to doubts as

to the Labour Court's impartiality would, in the Commission's opinion,

be tantamount to considering that, in cases where lay assessors have

been nominated by any organisation on the labour market, the Court

would fail to meet the condition "independent and impartial tribunal"

in all disputes where one of the parties is not affiliated to any of

those organisations. The Commission considers that it would be contrary

to the considerations underlying the statement by the European Court

in para. 34 (see quotation above) of the Langborger judgment to accept

such a proposition (cf. No. 12962/87, Yom-Tov v. Sweden, Dec. 7.9.90,

unpublished).

      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 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 also alleges violations of Articles 11 and 14

(Art. 11, 14) of the Convention. Referring to the composition of the

Labour Court and the fact that the trade union chairman testified in

favour of the company, the applicant contends that he might have been

treated by the Court in a different manner from that in which a person

belonging to a trade union would be treated. Thus, his position as a

non-union member, including his right to negative freedom of

association, has not been respected.

      The applicant's allegations under Articles 11 and 14

(Art. 11, 14) are largely based on the same grounds as those examined

above under Article 6 para. 1 (Art. 6-1) of the Convention. The

Commission finds no indication of a violation  of these provisions.

      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.

            Secretary                       Acting President

      to the Second Chamber              of the Second Chamber

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