Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 19576/92

by Teuvo KOMULAINEN

against Finland

The European Commission of Human Rights sitting in private on

10 October 1994, the following members being present:

MM. C.A. NØRGAARD, President

S. TRECHSEL

A. WEITZEL

F. ERMACORA

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

Mrs. G.H. THUNE

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

G.B. REFFI

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

N. BRATZA

I. BÉKÉS

J. MUCHA

E. KONSTANTINOV

D. SVÁBY

G. RESS

Mr. H.C. KRÜGER, Secretary to the Commission

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 16 January 1992

by Teuvo KOMULAINEN against Finland and registered on 3 March 1992

under file No. 19576/92;

Having regard to :

- reports provided for in Rule 47 of the Rules of Procedure of the

Commission;

- the observations submitted by the respondent Government on

21 December 1993 and the observations in reply submitted by the

applicant on 11 February 1994;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Finnish citizen born in 1942 and resident at

Padasjoki, where he is the municipal director.

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

summarised as follows.

Particular circumstances of the case

On 8 February 1989 the applicant was elected member of the Health

Care Board (terveyslautakunta, hälsovårdsnämnden) of the Municipal

Health Care Federation (kansanterveystyön kuntainliitto,

kommunalförbundet för folkhälsoarbetet) of Asikkala and Padasjoki by

the Federative Council (liittovaltuusto, förbundsfullmäktige).

Following an appeal by a member of the municipality of Padasjoki

challenging the legality of the election of the members of the Health

Care Board in general the County Administrative Court (lääninoikeus,

länsrätten) of Häme on 19 November 1990 found that the applicant's

election was unlawful. The Court noted that out of the twelve members

of the Health Care Board four represented the National Coalition Party

r.p. (kansallinen kokoomus r.p., nationella samlingspartiet r.p.;

hereinafter "the National Coalition Party"). However, only three of

those board members were members of that party, whilst the fourth one

(the applicant) was independent. The applicant's election had therefore

violated section 122, subsection 4 of the 1976 Act on Municipalities

(kunnallislaki 953/76, kommunallag 953/76; hereinafter "the 1976 Act").

In its appeal to the Supreme Administrative Court (korkein

hallinto-oikeus, högsta förvaltningsdomstolen) the Board of the

Municipal Federation (liittohallitus, förbundsstyrelse) objected to the

applicant's obligation to be a member of the National Coalition Party

in order to be eligible for the position of trust at issue.

Before the Supreme Administrative Court the National Coalition

Party stated that already at the time of his election it had accepted

that the applicant would occupy one of the four positions of the Health

Care Board to which the party was entitled despite the fact that he was

not a member of that or any other party or political group represented

on the Board. This position of the party had remained unchanged.

On 16 August 1991 the Supreme Administrative Court upheld the

County Administrative Court's decision by 3 votes against 2. The

majority considered that, in order to comply with section 122,

subsection 4 of the 1976 Act, the Federative Council should have

elected four persons "representing" the National Coalition Party. The

applicant, however, had been elected, although he had been independent

both from the parties and the other groups represented on the Board.

His election as the "representative" of the National Coalition Party

without his being a member of that party therefore violated section

122, subsection 4.

The minority of the Supreme Administrative Court considered that

the applicant's election had been in accordance with section 122,

subsection 4. As the National Coalition Party had agreed and continued

to agree to his representing that party as an independent board member,

his membership of the Board could not be dependent on whether or not

he was a member of that party.

The proceedings before the administrative courts were conducted

exclusively in writing.

In the light of the Supreme Administrative Court's judgment the

Federative Council on 9 October 1991 proceeded to a new election of

members, the applicant not being re-elected.

Relevant domestic law

1. The protection of the negative freedom of association

Under the 1919 Constitution Act (Suomen Hallitusmuoto 94/19,

Regeringsform för Finland 94/19; hereinafter "the Constitution Act")

Finnish citizens are entitled to form associations without first

obtaining a permission to this end, provided the aims of the

associations do not violate the laws and are not contrary to public

decency (section 10, subsection 1). Finnish citizens are equal before

the law (section 5).

The Standing Parliament Committee for Constitutional Matters

(eduskunnan perustuslakivaliokunta, riksdagens grundlagsutskott) has

considered that section 10 of the Constitution Act also covers the

right not to join an association (Committee Opinion 6/88).

2. The duty to accept a municipal position of trust

No one shall decline to occupy a municipal position of trust,

unless he or she is sixty years of age or more, if he or she has

occupied the same position of trust or another position in the same

body during the preceding four years or if he or she has occupied a

municipal position of trust during eight years or more. A refusal may

also be based on another weighty reason and shall, with one exception

not relevant here, be examined by the body which elected the person

(section 18 of the 1976 Act).

3. The requirement of fair representation in municipal federative

bodies of the groups represented in the relevant municipal

councils

The composition of the bodies of elected representatives of a

federation of municipalities shall correspond to the relative support

enjoyed by the groups represented in the relevant municipal councils

(kunnanvaltuustot, kommunfullmäktige) on the basis of the results of

municipal elections (section 122, subsection 4 of the 1976 Act, as in

force up to 1 January 1993).

In accordance with an amendment to the 1976 Act which entered

into force on 1 January 1993 the municipal federations have been

replaced by municipal consortia (kuntayhtymät, samkommuner). Each

consortium shall draw up a charter. This is not submitted for approval

by any State authority. The charter shall specify how the groups

represented in the relevant municipal councils shall be represented in

the bodies of the consortium (section 106, subsection 3, para. 4, as

amended by Act no. 979/92). If the charter is not amended to include

a provision on representation, the repealed section 122, subsection 4

shall continue to be applicable to the appropriate extent (the

transitional provision in Act no. 979/92).

COMPLAINTS

1. The applicant complains that the requirement that he should be

a member of the National Coalition Party in order to be eligible for

the position of trust at issue which had been allotted to that party

violates his negative freedom of association and further discriminates

against him because he is politically independent. He further submits

that the requirement that he should belong to a party which has,

nevertheless, accepted him as its representative, prevents him from

fulfilling his citizen's duty to accept a municipal position of trust.

He invokes Article 11 of the Convention both alone and in conjunction

with Article 14.

2. The applicant further complains that he was never heard in the

administrative court proceedings.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 16 January 1992 and registered

on 3 March 1992.

On 11 October 1993 the Commission decided to bring the

application to the notice of the respondent Government and to invite

them to submit written observations on the admissibility and merits of

the complaint under Articles 11 and 14 of the Convention.

The observations were submitted by the respondent Government on

21 December 1993. Observations in reply were submitted by the applicant

on 11 February 1994.

THE LAW

1. The applicant complains that the requirement that he should be

a member of the National Coalition Party in order to be eligible for

the position of trust at issue which had been allotted to that party

violates his negative freedom of association and further discriminates

against him because he is politically independent. He invokes Article

11 (Art. 11) of the Convention both alone and in conjunction with

Article 14 (Art. 11+14).

Article 11 (Art. 11) of the Convention reads 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."

Article 14 (Art. 14) of the Convention reads as follows:

"The enjoyment of the rights and freedoms set forth in this

Convention shall be secured without discrimination on any

ground such as sex, race, colour, language, religion,

political or other opinion, national or social origin,

association with a national minority, property, birth or

other status."

The Government submit that Article 11 (Art. 11) alone has not

been violated, since there has been no interference with the

applicant's negative freedom of association. In any case, his freedom

has not been struck at its very substance by the requirement of party

membership. Not being legally eligible for the position of trust at

issue according to the Supreme Administrative Court's interpretation

of the 1976 Act in his case, the applicant can no longer be considered

to have any duty to accept that position. Moreover, although he could

not be elected to the position of trust allotted to the National

Coalition Party, he would, as a politician independent from the

parties, in principle have been eligible for a position of trust

allotted to another group than a party.

Should the Commission find an interference with the applicant's

negative freedom of association, the Government submit that his lack

of eligibility for the position of trust allotted to the National

Coalition Party was prescribed by law, as interpreted by the Supreme

Administrative Court. They admit, however, that obviously not all

consequences of the Supreme Administrative Court's judgment in the

applicant's case were foreseeable when section 122, subsection 4 of the

1976 Act was enacted. The Government further consider that the

interference was necessary in a democratic society for the protection

of the rights and freedoms of others. The aim of section 122,

subsection 4 of the 1976 Act was to secure that the different political

groups represented in the relevant municipal councils were fairly

represented in the municipal federations. It further safeguarded party

members from a situation where their party would be represented by a

non-member. In the present case, however, the Government admit that the

members of the National Coalition Party were involved in accepting the

applicant as representative of their party. Nevertheless, the

Government argue that the State's margin of appreciation has not been

exceeded by the requirement that a political party shall be represented

in the bodies of a municipal federation by one of its members. The

Government conclude that the afore-mentioned aims constitute such a

pressing social need as required for justifying an interference with

the applicant's freedom under Article 11 (Art. 11).

As regards the complaint under Article 14 in conjunction with

Article 11 (Art. 14+11), the Government submit that the applicant has

not been discriminated against as a result of his lack of eligibility

for the position of trust allotted to the National Coalition Party. Not

being a member of that party, his situation was similar to that of

members of other parties, who were not eligible for a position of trust

allotted to the National Coalition Party either. Furthermore, the

difference in the treatment of the applicant in comparison with that

facing members of the National Coalition Party had the legitimate aim

of reserving, for that party, a number of positions of trust

corresponding to its share of the votes in the municipal elections.

Securing this aim required that the applicant be a member of the

National Coalition Party. Neither were the means employed to this end

disproportionate to that aim. The Government therefore conclude that

there existed an objective and reasonable justification for the

applicant's lack of eligibility for the position allotted to that

party.

The applicant considers it to be evident from the wording of

section 122, subsection 4 of the 1976 Act that the intention of

Parliament was not to require party membership, but to aim at a fair

representation in the bodies of the municipal federations of the groups

represented in the relevant municipal councils. This aim is possible

to achieve without basing the eligibility for a position of trust

exclusively on party membership. This is particularly true in the

applicant's case, since the party at issue had accepted him as its

representative without requiring him to become its member.

The applicant further emphasises that his negative freedom of

association is protected by the Constitution Act and must therefore be

considered to have priority over section 122, subsection 4 of the 1976

Act and the privileges afforded to the political parties by the Supreme

Administrative Court's interpretation of that provision in his case.

In Finland no more than about 500.000 out of a total of about 3.800.000

persons entitled to vote are members of a political party. A majority

of the last-mentioned group vote in the municipal elections. There is,

accordingly, no pressing need for reserving positions of trust

exclusively to party members. On the contrary, the membership

requirement unjustifiably favours the parties at the expense of the

large majority of voters who are not members of any party, but

nevertheless constitute almost 90 per cent of the voting population.

This privileged position of the parties is unreasonable and

disproportionate.

The applicant finally refers to the European Charter of Local

Self-Government (European Treaty Series no. 122) which entered into

force with regard to Finland on 1 October 1991. According to its

Article 7 (Art. 7), the conditions of office of local elected

representatives shall provide for free exercise of their functions.

The Commission has carried out a preliminary examination of the

complaint under Articles 11 and 14 (Art. 11, 14) of the Convention. It

considers that it raises questions of fact and law of such a complex

nature that their determination requires an examination of the merits.

This complaint cannot therefore be declared inadmissible as being

manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention. No other reason for declaring the

complaint inadmissible has been established.

2. The applicant further complains that he was never heard in the

administrative court proceedings.

The Commission has examined this complaint in the light of

Article 6 para. 1 (Art. 6-1) of the Convention which, in its relevant

parts, reads as follows:

"In the determination of his civil rights and obligations

..., everyone is entitled to a fair and public hearing ...

by an independent and impartial tribunal established by

law. ..."

The Commission recalls, however, that litigation concerning the

validity of legislative or communal elections involves the

determination of political rights which do not fall within the notion

of civil rights and obligations as referred to in Article 6 para. 1

(Art. 6-1) (No. 18997/91, Dec. 28.2.94, D.R. 76-A p. 65 with further

reference). In the Commission's view similar considerations apply in

regard to the proceedings concerning the applicant's eligibility for

his position of trust on a body belonging to a federation of

municipalities.

It follows that this complaint is incompatible ratione materiae

with the provisions of the Convention within the meaning of Article 27

para. 2 (Art. 27-2).

For these reasons the Commission, by a majority,

DECLARES ADMISSIBLE, without prejudging the merits, the

applicant's complaint that he was required to be a member

of the National Coalition Party in order to be eligible for

a position of trust allotted to that party and that this

requirement discriminated against him because he is

politically independent; and

DECLARES INADMISSIBLE the remainder of the application.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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KOMULAINEN v. FINLAND

KOMULAINEN v. FINLAND

LEXI