Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 28533/95

by Conny NORDLING

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 22 May 1995 by

Conny NORDLING against Sweden and registered on 15 September 1995 under

file No. 28533/95;

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, a telecommunications engineer born in 1948 and

residing at Uppsala, is a Swedish citizen. Before the Commission he is

represented by Mr. Mats El Kott, a lawyer practising at Östersund.

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

summarised as follows.

In 1980, the applicant was employed by the National

Telecommunications Administration (Televerket). In 1992, the

Administration commenced negotiations with the trade unions with a view

to reducing the work-force. On 18 June 1992, as a result of these

negotiations, the applicant was dismissed with ten months' notice. A

number of other employees were also dismissed.

A dispute concerning the dismissals arose between the

Administration and the applicant's trade union, the National Union of

State Employees (Statsanställdas Förbund). The union claimed that the

dismissal of 120 of its members, among them the applicant, violated the

rules on priority under Section 22 of the Act on Security of Employment

(Lagen om anställningsskydd, 1982:80) and a collective agreement

applicable to the public sector. The dispute was settled when the

Administration agreed to re-employ 35 persons. The applicant was not

among these persons.

Subsequently, the applicant brought proceedings against the

Administration. He claimed damages, maintaining, first, that he had

been dismissed without objective grounds and, second, that the

Administration had failed to comply with the obligation under Section

7 of the Act on Security of Employment (Lagen om anställningsskydd,

1982:80) to find alternative work for him. As the union, due to the

settlement with the Administration, did not support his action, the

case was first examined by the District Court (Tingsrätten) of

Stockholm. Cases brought by a trade union on behalf of its members are

exclusively determined by the Labour Court (Arbetsdomstolen).

The District Court, composed of three professional judges, held

an oral hearing during which it heard the parties and several

witnesses.

By judgment of 31 January 1994, the District Court rejected the

applicant's claim. It found that the applicant had been dismissed due

to lack of work and that there were, thus, objective grounds for his

dismissal. It further considered that the Administration had not

breached its obligation to find alternative work.

The applicant appealed to the Labour Court. In accordance with

Chapter 3, in particular Section 6, subsection 2, of the Act on

Litigation in Labour Disputes (Lagen om rättegången i arbetstvister,

1974:371), the Labour Court was composed of one legally trained and

qualified member and two lay assessors. The president was an associate

judge of appeal (hovrättsassessor). One assessor had been nominated by

an employers' organisation, the Swedish Association of Local

Authorities (Svenska Kommunförbundet). These two members had 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. The

other assessor had been appointed by the Court, in accordance with

Chapter 3, Section 4, subsection 3, to serve as a temporary substitute

for this particular case. He was a former head of division at the

Swedish Confederation of Trade Unions (Landsorganisationen), with which

the National Union of State Employees was associated. Under Chapter 11,

Section 2 of the Instrument of Government, all members of the Court

were prohibited from taking instructions concerning their judicial

duties from public authorities, including the Government and the

Parliament.

The Labour Court held an oral hearing. At the hearing, the

applicant complained that the participation of the two lay assessors

violated Article 6 of the Convention, as the Court could not be

considered independent and impartial. He claimed that the assessor

nominated by the Swedish Association of Local Authorities represented

the public employers and thus had interests corresponding to those of

the opposite party. Referring to the settlement reached between the

Administration and the trade union and the union's subsequent refusal

to support his action, the applicant further challenged the

impartiality of the assessor who had formerly been employed by the

Swedish Confederation of Trade Unions. As regards the question of the

independence of the Court, the applicant referred to the assessors'

time-limited appointments. He further referred to the judgment of the

European Court of Human Rights in the case of Langborger v. Sweden

(Eur. Court H.R., Langborger judgment of 22 June 1989, Series A no.

155).

The Administration repudiated the applicant's complaints under

Article 6. It noted that the Labour Court's composition was in

accordance with the provisions of the Act on Litigation in Labour

Disputes. It further claimed that the case at hand was different from

the Langborger case, as the latter case concerned the composition of

the Housing and Tenancy Court (Bostadsdomstolen) and as the members of

the Labour Court had been appointed by organisations which were not

parties to the dispute in question.

By decision of 11 November 1994, the Labour Court rejected the

applicant's complaints regarding the composition of the Court.

By a final judgment of 30 November 1994, the Labour Court upheld

the District Court's judgment.

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. ..."

The applicant refers to the participation in the Labour Court of

lay assessors representing employers' and employees' interests and the

time-limited appointments of the Court's members. He invokes the

judgment of the European Court of Human Rights in the Langborger 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. 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."

The Commission recalls that the president of the Labour Court and

one of the lay assessors, 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. Furthermore, all members of the Court 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. 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 the lay assessors.

With respect to the objective impartiality of the lay assessors,

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. The nature of this dispute was such

that the lay assessors and the organisation which had nominated one of

them could not 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 further notes that the applicant was a State

employee while the lay assessor representing employers' interests had

been nominated by the Swedish Association of Local Authorities.

Moreover, at the time of the Labour Court's examination of the case,

the lay assessor representing employees' interests no longer held a

position within the Swedish Confederation of Trade Unions.

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 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)

Menu

NORDLING v. SWEDEN

NORDLING v. SWEDEN

LEXI