Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 12962/87

by Baruch YOM-TOV

against Sweden

The European Commission of Human Rights sitting in private

on 7 September 1990, the following members being present:

MM. C. A. NØRGAARD, President

S. TRECHSEL

F. ERMACORA

G. SPERDUTI

E. BUSUTTIL

G. JÖRUNDSSON

A. S. GÖZÜBÜYÜK

A. WEITZEL

J. C. SOYER

H. DANELIUS

Sir Basil HALL

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

A.V. ALMEIDA RIBEIRO

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 4 July 1986

by Baruch YOM-TOV against Sweden and registered on 22 May 1987 under

file No. 12962/87.

Having regard to the written observations submitted by the

Government on 19 December 1989 and the applicants' observations of

20 February 1990.

Having deliberated;

Decides as follows:

THE FACTS

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

summarised as follows.

Particular circumstances of the case

The applicant is a Swedish citizen born in 1936 and resident

at Lund. He is a researcher in science. Before the Commission he is

represented by Mr. Göran Ravnsborg, a lecturer in law at the

University of Lund.

In 1984 the applicant bought a jeans-shop at Lund. He employed

Mrs B.G. as sales woman. After a dispute between the applicant and

Mrs. B.G., the Commercial Employees' Union (Handelsanställdas förbund)

instituted proceedings against the applicant before the Labour Court

(arbetsdomstolen) on the ground that the applicant had dismissed one of

their members in breach of the Employment Protection Act (anställnings-

skyddslagen). The Union claimed that the applicant should pay general

damage and pecuniary damage to the member concerned and general

damage to the Union. The applicant is not affiliated to any employers

organisation.

By judgment of 15 January 1986 the Labour Court found that the

applicant had dismissed a member of the Union in breach of the

Employment Protection Act. It ordered the applicant to pay 10,000 SEK

as general damages and 38,322 SEK as pecuniary damages to the member

concerned and 2,000 SEK as general damages to the Union.

The Court was composed of two professional judges and five lay

assessors. The professional judges were Hans Stark, President of the

Labour Court, and Erik Lempert, Associate Judge of the Court of

Appeal. The lay assessors who had been appointed by the Government

were:

1. Palle Lundin, Director at the County Labour Board

(länsarbetsdirektör vid länsarbetsnämnden) of Uppsala. He had not been

nominated by any major organisation but had been appointed because of

his special knowledge of the labour market.

2. Torkel Unge, Director at the Swedish Employers' Confederation

(Svenska arbetsgivareföreningen, SAF). He had been nominated by SAF.

3. Olle Bergström, First Secretary at the Federation of County

Councils (Landstingsförbundet). He had been nominated by the

Federation of County Councils.

4. Åke Wänman, Second President of the Swedish Building Workers' Union

(Svenska byggnadsarbetareförbundet), a union affiliated to the Swedish

Trade Union Confederation (Landsorganisationen, LO). He had been

nominated by LO.

5. Lennart Lundgren, First Ombudsman of the Swedish Bank

Employees' Union (Svenska Bankmannaförbundet), a union affiliated to

the Central Organisation of Salaried Employees (Tjänstemännens

Centralorganisation, TCO). He had been nominated by TCO.

The Commercial Employees' Union, which had brought the

proceedings before the Labour Court, is affiliated to LO.

Relevant domestic law

The provisions which regulate proceedings in the Labour Court

and the composition of the Labour Court are laid down in the 1974

Litigation in Labour Disputes Act ("the 1974 Act"; lagen om rättegången

i arbetstvister).

Labour Court procedures are based on the procedural rules

which apply in the ordinary courts to actions amenable to out of court

settlements. The relevant provisions are to be found in the Code of

Judicial Procedure (rättegångsbalken). In view of the type of cases

involved and the special conditions under which the Labour Court

operates, certain regulations which deviate from the provisions of the

Code of Judicial Procedure are included in the 1974 Act. Thus, the

procedural rules under the Code of Judicial Procedure apply, unless the

1974 Act provides otherwise.

The Labour Court is composed of professional judges and of

members representing the employers and the employees with individual

and equal voting rights for each participating member. When more than

one member of the Court is to examine a case, an equal number of

employer representatives and employee representatives participate.

Organisations considered to best represent conditions in the

Swedish labour market have the right to propose employer and employee

members of the Court. The decisive factor in this context is not

merely the size of the organisation, that is the number of its

members, but also its influence on legal developments on the labour

market through the negotiation of collective agreements or in other

ways.

Employer and employee members of the Court participate in the

examination of cases, not as representatives of the parties appearing

before the Court, but to provide the Labour Court with expert knowledge

of the legal opinions and views which are formed on the labour market

at large.

Members of the Labour Court are appointed by the Government

for a period of three years. They have equal status in every respect.

Also the members representing special interest groups on the labour

market thus swear the judicial oath, in accordance with the Code of

Judicial Procedure Chapter 4 Section 11, in the same way as

professional judges and lay assessors in the ordinary courts. Under

this oath, they are obliged to render judgment in accordance with

existing law, to be independent and impartial and to resist influence

by external pressures of any kind.

According to Chapter 11 Section 5 of the Instrument of

Government (regeringsformen), permanently appointed judges cannot, in

principle, be dismissed. This rule does not apply to judges in the

Labour Court, but they cannot be dismissed during the period for which

they are appointed.

The general regulations in Chapter 4 Section 13 of the Code of

Judicial Procedure regarding disqualification or challenge due to

conflict of interests are applicable also in the Labour Court. These

rules state, for example, that anyone (personally or as a

representative of a company, union etc.) who is a party in the dispute,

or otherwise concerned in the dispute, or who can expect significant

advantage or damage from the outcome of the dispute, must not

participate in the examination of a case. The same applies to anyone

who is opposed to or on unfriendly terms with a party in the dispute,

to anyone who has been connected with the dispute in another capacity

and to anyone who has represented one of the parties. In addition,

there is a general provision regarding conflict of interests, where

special circumstances exist which may impair confidence in the

member's impartiality.

As applied to the Labour Court, the disqualification or

challenge rules mean that a member of the board of an employer or

employee association may not participate in a case where the

association is one of the parties involved or has intervened in the

case. The rules regarding persons who can expect significant

advantage or damage from the outcome of the case or the regulation

regarding other special circumstances which may impair confidence in

the impartiality of the member, have, in view of the Court's

structure, only had a very restrictive application. For example, in

practice, members representing the head organisations or

associations/unions of either the employers or the employees

participate in cases concerning the interpretation of central

agreements which are the results of negotiations where the members

themselves have formed part of the central negotiating delegations on

either side.

COMPLAINTS

1. The applicant alleges that the Labour Court did not satisfy

the condition of "independent and impartial tribunal" in Article 6

para. 1 of the Convention having regard to its composition. He points

out that, while he was not affiliated to any union, his opposing party,

Mrs. B.G., was represented by her trade union through the Legal

Protection limited company of the Swedish Trade Union Confederation

(LO-förbundens Rättsskydd AB), that Confederation having allegedly two

representatives as members of the Court.

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

the Convention and Article 1 of Protocol No. 1 to the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 4 July 1986 and registered

on 22 May 1987.

On 4 September 1989 the Commission decided to communicate the

application to the respondent Government and invite them to submit

written observations on the admissibility and merits of the

application limited to the complaints under Article 6 of the Convention.

The Government's observations were received by letter dated

19 December 1989 and the applicant's observations were dated

20 February 1990.

THE LAW

1. The applicant alleges a violation of Article 6 (Art. 6) of the

Convention on the ground that the Labour Court was not an independent

and impartial tribunal. He also alleges violations of Articles 11

(Art. 11) and 14 (Art. 14) of the Convention and Article 1 of

Protocol No. 1 (P1-1) to the Convention.

2. Article 6 para. 1 (Art. 6-1) first sentence of the Convention,

insofar as relevant, reads:

" In the determination of his civil rights and

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

hearing within a reasonable time by an independent and

impartial tribunal established by law."

The Government do not object to the admissibility of the

application under Article 26 (Art. 26) of the Convention. They

submit, however, that the application is manifestly ill-founded

within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

As to the question whether the Labour Court was an

"independent and impartial tribunal", the Commission recalls the

following case-law.

When examining 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 pressure 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).

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 (above-mentioned 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 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."

In the present case, the Commission finds no reason to question

the independence and impartiality of the professional judges. With

regard to the lay assessors, there is no reason to doubt their

personal impartiality in the absence of proof to the contrary.

As regards the objective impartiality, the Government submit

that the present case can be distinguished from the Langborger case.

They submit that there is no reason for the applicant to fear that the

lay assessors had a common interest opposed to his own interests. The

dispute essentially concerned the question whether the plaintiff

union's member had been dismissed from her employment in the

applicant's business in breach of the Employment Protection Act or

whether she had herself chosen to discontinue her employment. When

examining this issue the Labour Court had to determine a question

which primarily was one of evaluating evidence. The issues did not

directly involve the lay assessors. Neither did the four organisations

SAF, TCO, LO and the Federation of County Councils have any specific

interest in the outcome of the case. There was no important

interpretation to be made of the legal provisions in question which

was of any importance to the organisations represented by the lay

assessors. For these reasons, the Government submit that the balance

of interests, inherent in the Labour Court's composition, was not

upset when the Court came to decide the claim against the first

applicant's company.

As to the applicant's argument that his opposing party was

affiliated to LO which had representatives on the Court, whereas he

did not have such representatives, the Government state that the lay

assessors are not to be seen as representatives of the parties in the

case but as independent judges in their own capacity. A system where

each party in every case would have its own representative on the

Court would have an effect, which would be contrary to the one that is

aimed at, i.e. the establishment of an impartial tribunal with an

inherent balance of different interests.

The applicant submits in reply that the Court was not

independent and impartial. With reference to two allegedly

incompatible judgments by the Swedish Supreme Court (högsta domstolen)

(reported in NJA 1982 p. 564 and p. 853), the applicant considers that

Åke Wänman and, on analogous grounds, Lennart Lundgren were

disqualified from participating in his case. For the same reasons, he

strongly questions the qualifications of Torkel Unge and Olle

Bergström. Being an unaffiliated employer the applicant notes a

common interest of all the lay assessors, namely the interest of

achieving complete organisation on the Swedish labour market.

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 lack

the requirements of impartiality and independence 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.

In this respect the Commission recalls that in the Langborger

case the applicant had sought the deletion of a clause from his

lease, a clause which had previously been agreed upon between

organisations which had 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 was whether the applicant had dismissed an

employee in breach of the provisions of the Employment Protection Act

and on that ground was liable to pay damages. The nature of this

dispute is such that none of the organisations, the Federation of

County Councils, TCO, LO or SAF, could objectively have any other

interest than to see to it that the provisions in the Act were

respected and correctly interpreted. This interest cannot be contrary

to that of the applicant.

The Commission notes the applicant's argument that he could

fear that the lay assessors would be unfavourable to him on the ground

that they had a common interest of achieving a completely organised

labour market, whereas he was not an affiliated employer.

To accept the applicant's arguments would, in the Commission's

opinion, be tantamount to considering that, in cases where a lay

assessor has been nominated by any organisation on the labour market,

the Labour 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. Although this issue was not

addressed in the Langborger judgment, 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.

In sum, the Commission considers that, contrary to the

situation in the Langborger case, there cannot be said to have existed

any common interest between the lay assessors as alleged in the

present case. The Commission cannot find that the applicant could

legitimately fear that the lay assessors had interests contrary to his

interests or that the balance of interests was upset to such an extent

that they did not satisfy the conditions of independence and

impartiality.

Consequently, the Commission finds no indication of a

violation of Article 6 para. 1 (Art. 6-1) 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.

3. The applicant has also alleged violations of Articles 11

(Art. 11) and 14 (Art. 14) of the Convention as well as Article 1 of

Protocol No. 1 (P1-1) to the Convention.

However, the Commission finds no indication of a violation of

these provisions. It follows that in this respect 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

DECLARES THE APPLICATION INADMISSIBLE

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

Menu

YOM-TOV v. SWEDEN

YOM-TOV v. SWEDEN

LEXI