Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 20165/92

by Reinhard HELMERS

against Sweden

The European Commission of Human Rights sitting in private on 2

December 1992, the following members being present:

MM. S. TRECHSEL, President of the Second Chamber

G. JÖRUNDSSON

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

Mrs. G. H. THUNE

MM. F. MARTINEZ

L. LOUCAIDES

J.-C. GEUS

Mr. K. ROGGE, Secretary to the Second 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 7 September 1991

by Reinhard HELMERS against Sweden and registered on 17 June 1992 under

file No. 20165/92;

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 German citizen, born in 1930. He is a

university lecturer and resides at Lund, Sweden.

The applicant has previously brought four applications before the

Commission. His first application No. 8673/79 was declared inadmissible

on 10 March 1982 as being partly incompatible ratione materiae with the

Convention and partly for non-exhaustion of domestic remedies. The

second application No. 10484/83 was declared inadmissible on

2 July 1984 also as being partly incompatible ratione materiae with the

Convention and partly for non-exhaustion of domestic remedies.

In a partial decision on admissibility of 14 March 1986 the

Commission declared the applicant's third application No. 11826/85

inadmissible in so far as it concerned complaints under Articles 9, 10,

13, 14, 17 and 25 of the Convention whereas it declared admissible, on

9 May 1989, the complaint that he did not get a "fair and public

hearing" within the meaning of Article 6 of the Convention as regards

certain proceedings before the Swedish Court of Appeal (hovrätten).

This issue was finally determined by the European Court of Human Rights

(Eur. Court H.R., Helmers judgment of 29 October 1991, Series A

no. 212 - A).

In his fourth application No. 15557/89 the applicant submitted

that the Swedish Government and the applicant's trade union in 1975

signed a so-called "income guarantee contract" (inkomsttrygghetsavtal).

According to this contract a person who for reasons of reorganisation

was required to fulfil other functions would nevertheless receive the

same salary as before the reorganisation.

As the applicant considered that this applied to him he submitted

a claim to the Government for an increase of salary as from a certain

date. The Government rejected this claim on 22 December 1988. The

applicant complained to the Chancellor of Justice (justitiekanslern)

who informed him that his claims concerned a labour dispute which

should be determined in accordance with the Act on Procedures in Labour

Disputes (lagen om rättegången i arbetstvister), i.e. in the District

Court (tingsrätten) or in the Labour Court (arbetsdomstolen).

Before the Commission the applicant inter alia invoked Article 10

of the Convention maintaining that "the official statement of political

opinions which he is suspected to hold as reason to degrade him from

his academic post was an obvious discrimination in the sense of the

Convention".

Furthermore the applicant invoked Article 6 para. 1 of the

Convention maintaining that the Government's refusal to accept his

pecuniary claim was an example of the continuing discrimination against

him. He contended that the determination of his claims concerned a

"civil right" within the meaning of Article 6 para. 1 of the Convention

whereas he had no "tribunal" to which he could turn.

In its decision on admissibility of 6 November 1989 the

Commission declared the complaint under Article 10 of the Convention

inadmissible as being manifestly ill-founded. The complaint under

Article 6 was also rejected as being manifestly ill-founded in th

Commission was satisfied that the applicant could have brought his

dispute before the courts in accordance with the proceedings in labour

disputes.

In his present application the applicant refers to the facts as

presented in his application No. 15557/89, submitting additional facts

which may be summarised as follows:

On 20 September 1989 he instituted proceedings against the

Government (Regeringen) in the Labour Court challenging their

interpretation and application of the "income guarantee contract" as

set out in their decision of 22 December 1988. By decision of

29 January 1990 the Labour Court referred the case to the District

Court being the right forum for this kind of dispute.

In the District Court a problem arose as to whether the case

should be directed against "the Government" or whether it should be

directed against "the State" being the employer (Statens

Arbetsgivarverk), hereafter called the SAV. Eventually this issue was

brought before the Labour Court which on 13 December 1990 decided as

follows:

(translation)

"It appears in this case that Reinhard Helmers presents his

employer with certain claims referring to the so-called

income guarantee contract of 1975 concerning the public

sector. His claims before the District Court must be

considered as being directed against the State in its

capacity as employer.

The State is represented by the SAV in disputes which

concern the relationship between the State as employer and

the employee working for the State where the dispute should

be determined in accordance with the Act on Procedures in

Labour Disputes (1974:371). This appears from Section 9 of

the Ordinance (1976:1021) concerning national collective

agreements. The present case must be determined in

accordance with the Act on Procedures in Labour Disputes.

Reinhard Helmers has no legal basis upon which he may

demand that the State be represented in the dispute by an

authority other than the SAV or that the writ be issued

against the Government. His appeal is accordingly

rejected."

The applicant nevertheless continued to insist in the District

Court that his claim be directed against "the Government" and not the

SAV for which reason the Court struck off the case (målet avskrives)

in so far as it concerned the SAV and dismissed it (avvisning) in so

far as it was directed against "the Government". This decision was

upheld by the Labour Court on 17 December 1991.

COMPLAINTS

The applicant complains, as in his previous application

No. 15557/89, that the determination of his claims concerns a "civil

right" within the meaning of Article 6 para. 1 of the Convention but

that he has no "tribunal" to which he could turn. He refers in this

respect to the fact that his case against the Government was dismissed

by the courts.

He also invokes Article 10 in conjunction with Article 14 of the

Convention complaining that the reasons for rejecting his claims under

the income guarantee contract were "inspired by the same administration

that had used the anonymous political libel in achieving the

applicant's degradation by the Government's decision of 7 June 1974."

THE LAW

1. Under Article 6 para 1 (Art. 6-1) of the Convention the applicant

complains that, in the determination of his civil rights, i.e. the

dispute regarding his entitlement to salary adjustments under the so-

called income guarantee contract, he has no access to a tribunal.

The Commission recalls that this is substantially the same

complaint as that submitted in the applicant's previous application

No. 15557/89. Accordingly it follows from Article 27 para. 1 (b)

(Art. 27-1-b) of the Convention that the Commission may only examine

it if it contains relevant new information. In this respect the

applicant refers to the fact that the District Court dismissed his case

against the Government.

The Commission finds, however, that Article 6 (Art. 6) of the

Convention does not give the applicant a right as such to institute

proceedings against "the Government". Nothing in Article 6 (Art. 6)

prevents a Government from delegating certain tasks, for example in

labours matters, to its authorities. Furthermore, the Commission notes

that the dispute involving the applicant's civil rights concerned his

entitlement to certain salary adjustments. Such a dispute could be

brought before the courts in accordance with the proceedings in labour

disputes as already held by the Commission in its previous decision of

6 November 1989 in application No. 15557/89. Accordingly, the

Commission finds that the present application contains no relevant new

information.

It follows that this part of the application must be rejected

pursuant to Article 27 para. 1 (b) (Art. 27-1-b) of the Convention.

2. The Commission has examined the remainder of the complaints as

submitted by the applicant. It finds, however, that they do not

disclose any appearance of a violation of the Convention. 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.

For these reasons, the Commission unanimously

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Second Chamber President of the Second Chamber

(K. ROGGE) (S. TRECHSEL)

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HELMERS v. SWEDEN

HELMERS v. SWEDEN

LEXI