Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 16130/90

by Sigurdur SIGURJONSSON

against Iceland

The European Commission of Human Rights sitting in private

on 10 July 1991, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

F. ERMACORA

G. SPERDUTI

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

Mrs. G. H. THUNE

Sir Basil HALL

MM. F. MARTINEZ RUIZ

C.L. ROZAKIS

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

B. MARXER

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 22 December 1989

by Sigurdur Sigurjonsson against Iceland and registered on 2 February

1990 under file No. 16130/90;

Having regard to the report provided for in Rule 47 of the

Rules of Procedure of the Commission;

Having regard to the observations submitted by the respondent

Government on 11 December 1990 and the applicant's observations in

reply submitted on 28 January 1991;

Having deliberated;

Decides as follows:

THE FACTS

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

summarised as follows.

The applicant is an Icelandic citizen, born in 1952. He is a

taxi driver and resides in Reykjavík, Iceland. Before the Commission

he is represented by his lawyer, Mr. Jón Steinar Gunnlaugsson.

In 1984 when the applicant applied to the Frami Automobile

Drivers' Association for a licence to operate a taxicab from a taxi-

station in Reykjavik the questions concerning taxi licences were

regulated on the basis of Act No. 36/1970 on Motor Vehicles for Public

Hire, and Regulation No. 320/1983 issued by the Minister of

Communications concerning inter alia the allocation of taxicab

operating licences in Reykjavík. Section 2 of the said Act authorised

the Minister of Communications, at the request of the relevant union

of operators of motor vehicles transporting persons (in the present

case Frami), to limit the number of taxicabs operating in the union

area, provided certain conditions were fulfilled. Section 2 also

stated that such limitations should be set out by the Minister in a

separate Regulation for each individual area. Section 10 of the Act

provided that the Minister of Communications should issue a Regulation

providing for the implementation of the Act in further detail

containing, inter alia, provisions on allocation of licences for

taxicab operation.

Section 6 of Regulation No. 320/1983, issued in accordance

with the above Act, provided that operating licences should be issued

by three persons, called "licence allotters". One of them was

appointed by the directors of Frami, one by employees who did not own

the vehicles they operated, and the chairman by the Minister.

Furthermore, Section 6 provided that the operating licences should be

numbered and limited to the licence holders personally. The licences

should be deposited with Frami. Section 7 of the Regulation obliged

the licence allotters to supervise that the laws and regulations

relating to motor vehicles for public hire were observed, and provided

that, in cases of a violation by a licence holder, his licence could be

suspended or, in cases of serious or repeated violations, permanently

revoked. A new Regulation (No. 293/1985) subsequently entered into

force. It did not amend the above provisions except for the fact that

the "licence allotters" were now called the Committee for Supervision

of Taxicab Operation (hereafter called the Committee).

The decisions of the Committee suspending or revoking a licence

could be appealed to the Minister of Communications.

As regards a licence holder's affiliation with Frami, Section 8

of the Regulation stated:

(translation)

"A driver may not be granted an operating licence unless he

undertakes the obligation of operating his own taxicab as

full-time occupation and applies for membership of the Frami

Automobile Drivers' Association."

Of the Frami statutes, relevant in the present case, Section 2

states as follows:

(translation)

"The purpose of the Association is:

a. To secure the professional interests of its members, and

to promote solidarity among professional taxicab drivers.

b. To determine, negotiate and present demands relating to

the working hours, wages and rates of its members.

d. To keep the number of taxicabs for the transport of

persons limited in the area of the association, cf. the

Act on Motor Vehicles for Public Hire and the Regulation

on limitation of the number of taxicabs in Reykjavík and

the allocation of operating licences.

e. To represent its members before the authorities."

(The section contained no subsection (c)).

As already indicated above the applicant applied, on 26

September 1984, for a licence to operate a taxicab. The application

was written on a form printed for the purpose and was, according to

its printed text, addressed to the Frami Automobile Drivers'

Association. It stated that the applicant had until that time operated

a taxicab accommodating up to eight passengers for more than 7 years

and contained the following declaration:

(translation)

"If an operating licence is granted to me I undertake the

obligation of operating my automobile as full-time

occupation. I also undertake the obligation of observing the

provisions of the said regulation in full detail, as

effective at any particular time, and I am aware that in

case I violate the regulation my professional licence may be

suspended or permanently revoked. I am also aware that when

becoming a member of the Frami Automobile Drivers'

Association I am obliged to pay to the association the

charges stipulated by its articles."

On the basis of the above Act and Regulation the applicant was

granted an operating licence by the then "licence allotters" (now the

Committee) on 24 October 1984. His attention was drawn to his duty to

become a member of Frami. The same day the applicant signed a

declaration where he, inter alia, undertook to observe the provisions

of the Regulation in full, and declared that he was aware that a

violation of the Regulation could lead to a suspension or permanent

revocation of his operating licence.

Having received his operating licence, the applicant paid his

membership fees to Frami. This continued until August 1985 when he

ceased paying his membership fees.

In reply to Frami's notification of 5 February 1986 concerning

the planned suspension of station services by reason of default on

membership fees the applicant informed the association's directors by

letter of 14 February 1986 that

(translation)

"You know my stand with regard to the Frami interest

association and that it is not my desire to be a member of

such an association as FRAMI is. And I refuse completely to

put up with such oppression any longer as to be forced to

pay membership dues to you and to remain within the

association. The reason why I accepted an 'operating

licence' without first securing my legal position with

regard to membership was that I felt at the moment that I

was not financially capable of initiating the necessary

measures; as you know such action would have meant that I

would not have obtained an 'operating licence' until

judgment had been rendered, and trying one's best to avoid

time-consuming litigation is only natural. The reason why I

paid membership dues to Frami to August 1985 is the same. ..."

On 30 June 1986 the Committee informed the applicant that it

had approved a request from Frami to revoke his licence as from July 1986.

The reasons for this were that he had not paid membership fees and that

he had "encouraged and/or tolerated, in his capacity as director of

Steindór's Taxi Station, that persons were transported for charge in

the delivery vans of Sendibílar Ltd.".

On 1 July 1986 the applicant complained to the Ministry of

Communications of the revocation of his licence. He expressed the

opinion that there could be no justification for compelling him to be a

member of Frami, and declared that he would refer the question of the

revocation of his licence to the courts.

The Ministry of Communications answered the applicant by

letter of 17 July 1986, stating inter alia:

(translation)

"The Ministry hereby informs you that, following an

examination of the matter and with reference to the reasons

given by the Supervision Committee and to Sections 7 and 12 of

Regulation No. 293/1985, the Committee's decision of 30 June,

last, revoking your licence permitting you the operation of

taxicabs for the transport of persons, is confirmed."

The Ministry of Communications sent a copy of its letter to the

Chief of Police of Reykjavík.

The applicant refused, however, to accept this. On 28 July 1986

he sent a letter to the Chief of Police of Reykjavík in which he

explained that he regarded the revocation of his operating licence as

unlawful, and stated his intention of bringing a lawsuit for a

declaratory judgment confirming this view following the courts' summer

recess. His main arguments were explained and the police was requested

not to interfere with his occupation as taxicab operator. The Chief of

Police took no account of this request. On 1 August 1986 the police

stopped the applicant while driving, and removed the plates from his

vehicle which identified it as a vehicle for public hire.

On 18 September 1986 the applicant instituted proceedings

against the Committee for Supervision of Taxicab Operation and the

Minister of Communications in the Civil Court of Reykjavík. The

applicant maintained that the revocation of his taxi licence should be

declared null and void.

The applicant's claim in court was based, inter alia, on the

argument that, with reference to Article 73 of the Constitution of the

Republic of Iceland, the view could not be sustained that a person could

be compelled to be a member of an association. If people were free to

form associations for any lawful purpose in accordance with their

desires, opinions or interests, they would have to be granted the right

to refuse membership of associations. If not, people could be forced

to work against their own desires, opinions or interests. Least of all

would it be possible to make a person's right to pursue an occupation

conditional on the membership of an association of which he did not

desire to be a member.

The applicant referred to his political opinions maintaining

that access to occupation should not be limited in the way done by the

association. Secondly, he was opposed to such restraints on account of

his own interests, considering that he would be better able to pursue

his occupation in a free market system.

The applicant furthermore maintained that if the above arguments

were rejected, a duty to be a member of an association would at least

have to be based on statute law enacted by Parliament. Provisions

contained in a Regulation issued by a Minister of the Government would

not suffice to legally establish such duty. Finally the applicant

argued that failure to pay membership fees to Frami could not justify a

revocation of his operating licence.

Judgment was pronounced in the Civil Court of Reykjavík on

17 July 1987, rejecting the applicant's claims. He appealed against

the judgment to the Supreme Court of Iceland where judgment was

pronounced by seven judges on 15 December 1988.

A majority of four judges reversed the judgment of the lower

instance finding that the matters referred to should be regulated by

law and not by a Regulation issued by the Minister of Communications.

In this respect the Supreme Court stated, inter alia:

(translation)

"Thus, a provision in a regulation to the effect that

membership of a trade union was a prerequisite for being

granted an operating licence, was unauthorised by law.

Accordingly, legal basis for an obligation imposed on the

appellant, against his will, to be a member of the Frami

Automobile Drivers' Association, was lacking. Therefore

depriving him of his operating licence, as done when he

ceased paying membership dues and withdrew from the

association, was unlawful."

The Court's majority rejected, however, the applicant's

argument that he could not, on account of Article 73 of the Icelandic

Constitution, be obliged to remain a member of Frami. The Court stated

in this respect as follows:

(translation)

"This provision (Article 73) of the Constitution is

unchanged in substance from Article 55 of the Constitution

relating to Matters Particular to Iceland, of 5 January

1874, which in turn was adopted from Article 92 of the

Fundamental Law of Denmark, of 5 June 1849. When

interpreting this provision its history must be kept in

view, and its purpose at the time when it entered into

effect, which was to secure the right of the subjects to

form associations without permits being obtained from the

authorities in advance. The provision was only intended to

protect the formation of associations as such, but not a

right of remaining outside associations.

The appellant has not demonstrated that Article 73 of the

Constitution conflicts with the provisions of the

international instruments to which he refers, which are

described in the judgment appealed from; neither would this,

by itself, affect the provisions of the Constitution as they

stand. The appellant's view that this constitutional

provision should now be construed as providing for a

person's right to refuse to become or remain a member of an

association cannot be sustained. Neither can the inference

be drawn from this constitutional provision that a

professional licence cannot lawfully be made conditional

upon the membership of an association."

Three judges dissented, confirming as a whole the judgment of

the lower court.

Following this judgment the Minister of Communications

presented a new Bill to Parliament concerning vehicles for public hire.

This was passed as Act No. 77/1989 and took effect on 1 July 1989.

This Act expressly enumerates as a condition for being granted an

operating licence that an applicant shall be a member of the relevant

trade union of conductors of motor vehicles transporting persons, or

shall have applied for membership. The Act furthermore authorises

temporary revocation of operating licences if the holder of such a

licence violates the provisions of laws or regulations relating to

vehicles for public hire, and permanent revocation in cases of serious

or repeated violations. A new Regulation, No. 308/1989, has been

issued on the basis of the new Act.

Following the entry into force of Act No. 77/1989 the applicant

sent the following letter of 4 July 1989 to Frami and the Minister of

Communications:

(translation)

"With reference to the new legislation relating to vehicles for

public hire which took effect on 1 July, last, and the

concomitant Regulation on taxicab operation, I consider

myself obliged to be a member of the Frami Automobile Drivers'

Association, and therefore I accept that membership fees be

collected monthly with my station charges at BSR.

I wish to state clearly that I am not a member of the Frami

Automobile Drivers' Association of my own free will, and the

fact remains unaltered that my interests are better served

outside the association than within it, since its statute

contains provisions which run counter to my political

opinions, and the association uses the membership fees to work

against my interests. I am anything but content with the

legislation referred to, in particular due to the fact that

the conclusion of the judgment of the Supreme Court pronounced

in my case against the Ministry of Communications on

15 December 1988 states that Article 73 of the Constitution

does not prevent the legislator from obliging motor vehicle

operators by legislation to remain members of the same

association. In my opinion the legislation in question is

incompatible with the Human Rights Convention of the Council

of Europe to which Iceland is a party.

As I do not consider it necessary in a democratic society to

impose the obligation on all taxi drivers that they be members

of the same interest group, I shall lodge a complaint relating

to the legislation in question to the Human Rights Commission

and the European Court of Human Rights."

The applicant has not challenged the new legislation in the

domestic courts.

COMPLAINTS

The applicant complains that due to the fact that the Icelandic

Government's decision to oblige by law all persons licenced as taxicab

operators in Reykjavík and vicinity to become members of the Frami

Automobile Drivers' Association, he has been compelled to become a

member of the said association against his will as he would otherwise

lose his licence to pursue his occupation. The applicant invokes

Article 11 of the Convention or, in the alternative, Articles 9, 10 and

13 of the Convention.

Relating to the construction of Article 11 of the Convention,

the applicant in particular points out the connection between the right

to form an association with others and the right to decline membership

of an association. A right to form associations for the promotion of,

for example, political opinions or personal interests would be of

little avail if people could be bound by duty to be members of other

associations whose purpose it is to further contrary opinions or

interests as they please. In the applicant's opinion the case centres

around the question whether he should be prevented from pursuing his

occupation for not being willing to work against his own views and

interests.

The applicant maintains that the Convention (and in fact, the

Constitution of Iceland as well) secures to him the right to form, with

persons of similar views, an association against the political

objective of limiting the number of taxicabs whereas he should not be

compelled to be a member of an association working for the opposite

objective.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 22 December 1989 and

registered on 2 February 1990.

On 2 July 1990 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

application.

After two extensions of the time-limit the Government

submitted their observations on 11 December 1990. The applicant's

observations in reply were submitted on 28 January 1991.

THE LAW

The applicant has complained that due to the fact that the

Icelandic Government's decision to oblige by law all persons licensed

as taxicab operators in Reykjavik and vicinity to become members of

the Frami Automobile Drivers' Association, he has been compelled to

become a member of the said association against his will as he would

otherwise lose his licence to pursue his occupation. The applicant

invokes Article 11 (Art. 11) of the Convention or, in the alternative,

Articles 9, 10 and 13 (Art. 9, 10, 13) of the Convention.

The Commission finds that the applicant's complaint must be

examined under Article 11 (Art. 11) of the Convention rather than the

alternative Articles to which he has referred. 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 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 State."

First, the Commission recalls, however, that it is not

required to decide whether or not the facts submitted by an applicant

disclose any appearance of a violation of the provisions referred to

if the requirement under Article 26 (Art. 26) of the Convention as to the

exhaustion of domestic remedies has not been complied with. In other

words, under Article 26 (Art. 26) of the Convention, the Commission may only

deal with a matter after all domestic remedies have been exhausted

according to the generally recognised rules of international law.

In the present case the respondent Government have argued that

the legislation to which the applicant objects is new and has not been

subject to review by the courts. Under Icelandic law the courts may

lawfully diverge from their own precedents and therefore the applicant

should have instituted proceedings in the ordinary courts of law

regardless of any prior judgments concerning the matter. As he did not

do so the Government maintain that he has not complied with the

requirement of Article 26 (Art. 26) of the Convention as to the exhaustion of

domestic remedies.

The applicant maintains that the Supreme Court in its judgment

of 15 December 1988 clearly stated that Article 73 of the Icelandic

Constitution did not prevent the legislator from obliging taxicab

operators by legislation to become or remain members of a private

association. In these circumstances it would be without any prospects

of success to institute proceedings in court when the legislator makes

use of this possibility.

The Commission shares the applicant's view. It recalls that if

it can be established that the remedies that may exist are ineffective

or inadequate, the domestic remedies rule does not apply (see for

example No. 8462/79, Dec. 8.7.80, D.R. 20 p. 184). By judgment of 15

December 1988 the Icelandic Supreme Court accepted that a professional

licence to operate a taxicab could be made conditional upon the

membership of an association, provided there was a legal basis for

this requirement. Since such a legal basis has now been created by Act

No. 77/1989 which took effect on 1 July 1989 the Commission finds that

challenging this legislation in the ordinary courts of law would offer

no prospects of success. Accordingly no effective remedy was available

within the meaning of Article 26 (Art. 26) of the Convention for which

reason the Commission does not reject the application for

non-observance of the domestic remedies rule. It is thus called upon

to deal with the substance of the case.

In this respect the Commission has taken cognizance of both

parties' submissions. After a preliminary examination of the case the

Commission has reached the conclusion that it raises serious issues as

to the interpretation and application of Article 11 (Art. 11) of the

Convention and that these issues can only be determined after a full

examination of their merits. It follows that the application cannot

be regarded as manifestly ill-founded within the meaning of Article 27

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

it inadmissible has been established.

For these reasons, the Commission unanimouly

DECLARES THE APPLICATION ADMISSIBLE

without prejudging the merits of the case.

Secretary to the Commission President of the Commission

(H. C. KRUGER) (C. A. NØRGAARD)

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SIGURJÓNSSON v. ICELAND

SIGURJÓNSSON v. ICELAND