Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 12090/86

by Monica Lilja

against Sweden

The European Commission of Human Rights sitting in private

on 4 July 1989, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

F. ERMACORA

E. BUSUTTIL

A. WEITZEL

H.G. SCHERMERS

H. DANELIUS

G. BATLINER

H. VANDENBERGHE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

Mr. L. LOUCAIDES

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

14 October 1985 by Monica Lilja against Sweden and registered on

7 April 1986 under file No. 12090/86;

Having regard to the report provided for in Rule 40 of the

Rules of Procedure of the Commission;

Having regard to the observations submitted by the respondent

Government on 19 May 1988 and the observations submitted by the

applicant on 6 July 1988 as well as the submissions of the parties at

the hearing held on 4 July 1989;

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 a Swedish citizen, born in 1949. She is a

nurse and resides at Säffle, Sweden. She is represented by Mr. Göran

Ravnsborg, University of Lund, Sweden.

A. The particular facts of the case

The applicant has been a member of the Swedish Municipal

Workers Union (svenska kommunalarbetareförbundet) since March 1983.

Through this membership the applicant falls under the umbrella of the

Swedish Trade Union Confederation (Landsorganisationen). On

23 November 1984 the representative body of the applicant's local

union branch No. 55 decided to terminate the arrangement under which

members of the branch wishing to join the Social Democratic Party

(SAP) should register themselves as members of the party, and to

return to the old form of collective affiliation to the SAP.

The decision by the representative body was followed up by an

agreement on collective party membership between the branch No. 55 and

the SAP. On 28 November 1984 the local trade union branch informed

the applicant of the decision taken and that she would be considered

as collectively admitted to the SAP as from 1 January 1985 onwards.

The applicant was informed however that if she did not want to be a

party member she could exclude membership by notice in writing to the

local trade union branch.

Since the applicant was of the opinion that neither the trade

union branch nor the SAP was in any respect legally qualified to act

on her behalf on matters concerning membership of a political party,

she did not submit any written reservation to the union. In

consequence of this the applicant submits that she was treated as

being a member of the SAP from 1 January 1985 and her trade union

branch started paying an alleged party membership fee in her name and

on her behalf. The SAP accepted the payment as a membership fee paid

on the applicant's account and registered her as a party member.

The applicant who is voluntarily and according to her own

option an active member of another political party found the situation

created by her local trade union branch and the SAP embarrassing and a

violation of her right to freedom of thought and conscience as well as

a violation of her right to negative freedom of association. She

found that the only acceptable remedy against these violations of her

human rights was to obtain from the Government an official and

authoritative statement against the activities of the trade union and

the SAP. On 18 July 1985 she accordingly requested the Government,

with reference to Articles 9 and 11 in conjunction with Articles 1, 13

and 17 of the Convention, to declare the decision of the local trade

union branch concerning the collective affiliation to the SAP to be

null and void. She also requested the Government to declare that she

was not a member of the SAP. Furthermore, she requested the

Government to forbid the SAP to consider her as a party member and

finally she requested compensation representing the amounts that had

allegedly been paid to the party as membership fees.

By decision of 19 September 1985 the Government refused to

examine the complaints referring to Chapter 11 Section 3 of the

Instrument of Government (regeringsformen) in which it is stated that

a legal dispute between individuals is to be settled by a court.

Furthermore the Government stated that no legal rules existed which

provided that such disputes should be examined by the Government. The

applicant did not, however, bring any complaints before the Swedish

courts.

In November 1985 the applicant's case became the subject of a

debate in the Swedish Parliament. One of its members had put a

question to the Minister of Justice in which she asked what legal

grounds the applicant could invoke if she wanted to bring the question

of her affiliation to the SAP before a Swedish court. The Minister

answered, referring to a fundamental principle in the Swedish

Constitution, that political bodies should not interfere with the

application of the law by the courts in individual cases and added

that he, as a member of the Government, should not express himself

upon the question of how a legal dispute beween private persons or

associations should be decided. Nor should he explain in what way a

private person should present his case before a court. Such a

statement, the Minister said, would clearly be in contravention of the

Constitution. For that reason the member who had put the question did

not receive an answer on the substance of the matter.

In September 1987 the SAP decided to amend its charter.

Pursuant to this amendment membership of the SAP can be obtained only

by personal application. This amendment will apply as of the

31 December 1990 at the latest.

B. Relevant domestic law and practice

According to Swedish law a trade union as well as a political

party is an association (förening) under private law. The law makes a

distinction between incorporated or profit-making associations

(ekonomiska föreningar) on the one hand and unincorporated or

non-profit-making associations (ideella föreningar) on the other. An

association is regarded as an incorporated association if the aim of

the association is to support its members' financial interests through

financial activities or otherwise. All other associations are

regarded as unincorporated associations. A political party is

regarded as an unincorporated association. Examples of other

unincorporated associations are sport clubs, private religious

associations and trade unions.

Incorporated associations are governed by a special Act.

There is no corresponding law with regard to unincorporated

associations. Thus, there is no law regulating how such an

association should be constituted, under what conditions membership is

obtained or members can be excluded, nor regarding the decision-making

procedure etc. Such associations must nevertheless observe the

provisions laid down in the laws which apply generally, e.g. the

Swedish Accounting Act of 1976 (bokföringslagen). Conclusions may

also be drawn by analogy from an interpretation of the provisions in

the Act regarding incorporated associations.

An important norm for the activities of an unincorporated

association is the charter of the association in question. In Swedish

case-law the existence of a charter regulating i.a. the constitution

and the activities of an association is required, if the association

in question shall be recognised as a legal person with a legal

capacity (rättskapacitet) of its own. By legal capacity is understood

the ability to acquire and maintain legal rights and obligations. The

charter may be regarded as an agreement into which those persons who

are members of the association have entered. A charter may be

amended. In general there are rules on amendments in the charter. In

order to become a member of an association a person normally has to

apply for membership. The association in question then takes a

decision on the application. Membership can also be obtained at the

time of the constitution of the association. A person's membership of

an association ceases to exist if the person in question is expelled

or if he or she chooses to cancel the membership.

The conditions for membership of an association have inter

alia been considered by the Supreme Court (Högsta domstolen) in a case

(NJA 1958 p. 438) where the Court examined whether two persons, both

members of a certain unincorporated association, had become members of

another association simply by an amendment of the charter of the

association of which they were members.

The Supreme Court stated i.a. that for somebody to be a member

of an association, whether profit-making or non-profit-making, it

should be required that the person in question has expressed his wish

to become a member but that such a wish could be expressed by tacit

agreement (konkludent handlande). Having said this, the Court stated

in regard to the concrete case that the wording of the charter of the

association in question before the amendment was introduced did not

permit the conclusion that a person who had joined the association had

accepted in advance to become a member of the other association. For

that reason the two complaining members were not regarded as members

of the association to which their own association wanted to have them

affiliated.

Another case (NJA 1987 p. 394) concerned the question whether

the decision-making body of a trade union was authorised to conclude an

insurance on behalf of all its members without their consent. The

Supreme Court concluded from general legal principles that any member

of an unincorporated association is entitled to have examined whether

a decision taken by the supreme decision-making body of the

association violates the charter of the association in which case it

should be declared null and void.

The question of collective affiliation has been considered on

several occasions by the Swedish Parliament and several motions have

been submitted for the purpose of having such affiliation prohibited

by law. One such motion (1983/84:335) was considered by the Swedish

Law Council (Lagrådet) which made the following statement in its

opinion of 26 February 1985:

(translation)

"As regards the question whether the proposed law may be

considered to satisfy the purpose behind the proposal, the Law

Council will first briefly examine how membership of a

political party may come into being as a result of a decision

on collective affiliation. From the case NJA 1958 p. 438 it

appears that in order for a person to become a member of an

unincorporated association - such as political associations -

a declaration of intention by that person is required. Such an

intention could, however, be expressed by a so-called tacit

agreement. Already on this basis one could consider that valid

membership may be established through collective affiliation.

It even appears possible that the trade union charter may

contain a provision according to which a member of the union

also becomes a member of a particular political party or that

the union has the right to decide in such matters, although

the validity of such a provision, having regard to the

above-mentioned case, appears to be somewhat unclear (cf. Nial

in Svensk Juristtidning 1960 p. 502). The importance it may

have that collective affiliation in this particular field has

taken place for a very long period of time should also be

taken into consideration."

In an article published in 1985 in "Essays in honour of

Justice Henrik Hessler" and entitled "Kollektivanslutning till

hemförsäkring och till politiskt parti" ("Collective affiliation to

home insurance and to a political party") Professor Anna Christensen,

while referring to the 1958 Supreme Court judgment and to the Law

Council's statement, has advocated the view that membership of a

political party requires the consent of each member and that,

therefore, neither a trade union's decision of collective affiliation

nor the individual member's failure to object to his or her

affiliation is sufficient to create membership of the SAP.

Freedom of association is one of the fundamental freedoms

under the Swedish Constitution. This applies to the positive as well

as the negative part of this freedom.

By Chapter 2, Section 1 para. 5 of the Instrument of

Government every citizen is guaranteed freedom of association in

relation to the "community" (the Government and public authorities).

This freedom is explained as the freedom to unite with others for

public or private purposes (positive freedom of association).

According to Chapter 2, Section 2 protection is provided for every

citizen against any compulsion to belong to a political association, a

religious community or any other association for political, religious

or cultural opinions (negative freedom of association).

These provisions read as follows:

"Section 1. Every citizen shall in relation to the community

be guaranteed ...

5. the freedom of association; the freedom to unite with

others for public or private purposes,

...

Section 2. Every citizen shall in relation to the community

be protected againt any compulsion to make known his

opinion in any political, religious, cultural or other such

matter. In relation to the community he shall furthermore

be protected against any compulsion to participate in any

meeting for the purpose of the formation of opinions or in

any demonstration or other expression of opinions or to

belong to a political association, a religious community or

any other association for such opinions as referred to in

the first sentence."

The positive freedom of association may be restricted, but

only by law. Restrictions are allowed only with regard to such

associations the activities of which are of a military or similar

nature or which involve the persecution of a national group, of a

particular race, of a particular skin colour, or of a particular ethnic

origin. This is laid down in Chapter 2, Sections 12 and 14 of the

Instrument of Government.

The same Instrument also prescribes other conditions for

restrictions on the freedom of association. However, no restrictions

are allowed with regard to the negative freedom of association. This

freedom applies equally to Swedish and non-Swedish citizens. The

positive freedom of association applies in a corresponding way,

provided no restrictions are laid down in any other law.

The freedom of association gives protection in relation to the

"community", i.e. the Government and the public authorities. It does

not apply in relation to individuals or to private legal bodies or

other private associations.

The Contracts Act of 1915 (avtalslagen) contains a special

provision, Section 36, according to which a court may rule that a

provision in a contract or agreement, which is deemed unfair or

unreasonable, shall be disregarded or be applied in a reasonable way.

This provision, which has been applied to the charter of an

association, reads as follows:

(translation)

"A condition in a contract may be modified or set aside if the

condition is unreasonable having regard to the contents of the

contract, the circumstances when it was concluded, the

circumstances which have occurred subsequently or any other

circumstances."

According to Chapter 13, Section 2 of the Swedish Code of

Judicial Procedure (rättegångsbalken) a court may give a declaratory

judgment as to whether or not a certain legal relationship exists

between two parties. This provision reads as follows:

(translation)

"An action to establish whether a specific legal relationship

exists or does not exist is admissible if there is an

uncertainty as to the legal relationship and this uncertainty

is to the detriment of the plaintiff.

If the determination of a case is dependent on whether a

specific legal relationship, which is in dispute between the

parties, exists or does not exist, an action for the

establishment thereof is also admissible."

COMPLAINTS

The applicant complains that the decision taken by her local

trade union branch on collective affiliation to the SAP, the agreement

between these two bodies concerning this matter as well as the

possibility offered to exclude herself from membership of the SAP,

constitute a violation of Articles 9, 10, 11, 14 and 17 of the

Convention.

She also complains that there is in Sweden no remedy which

she could use since the Swedish courts and administrative authorities

ignore the provisions of the Convention which excludes an appeal to

the Swedish courts as an effective domestic remedy. This also implies

that the applicant's rights secured to her by Articles 6 and 13 of the

Convention have been violated.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 14 October 1985 and

registered on 7 April 1986.

On 2 March 1988 the Commission decided to bring the

application to the notice of the respondent Government and to invite

them to submit, by 6 May 1988, written observations on the

admissibility and merits of the application.

After an extension of the time-limit the Government submitted

their observations on the admissibility of the application on 19 May

1988 and abstained from expressing themselves on the merits at this

stage.

The applicant submitted her observations on the admissibility

of the application on 6 July 1988 and, like the Government, abstained

from expressing herself further on the merits at this stage.

On 8 December 1988 the Commission decided to invite the

parties to appear before it at a hearing on the admissibility and

merits of the application.

Legal aid under the Addendum to the Commission's Rules of

Procedure was granted to the applicant on 20 January 1988.

At the hearing, which was held on 4 July 1988, the parties

were represented as follows:

The Government

Mr. Hans Corell Ministry of Foreign Affairs

Mrs. Annika Lundius Ministry of Justice

Mr. Carl Henrik Ehrenkrona Ministry of Foreign Affairs

The applicant

Mr. Göran Ravnsborg Counsel for the applicant

THE LAW

1. The applicant has complained that the decision taken by her

local trade union branch on collective affiliation of the branch's

members to the SAP and the agreement between these two bodies

concerning this matter constitute, separately as well as together, a

violation of Articles 9 and 11 (Art. 9, 11) of the Convention, each

Article in conjunction with Article 17 (Art. 9+17, 11+17) of the

Convention.

Furthermore the applicant complains that the possibility

offered by her trade union branch to exclude herself from membership

of the SAP is unacceptable since this inevitably implies a political

statement involving a violation of her right to negative freedom of

expression as set out in Article 10 (Art. 10) of the Convention.

In regard to the above complaints the applicant submits that

there is in Sweden no remedy which she could use. Chapter 2 of

the Swedish Instrument of Government protects the citizen only to a

certain extent against violations of his or her right to freedom of

thought and conscience, etc., since the protection concerns only

violations by the State or the Government and not by private subjects

such as trade unions or political parties. The Swedish courts and

administrative authorities ignore the provisions of the Convention and

due to this fact and the adoption of the so-called transformation

principle, which excludes an appeal to the Swedish courts as an

effective domestic remedy, the only Swedish authority, to which

the applicant could turn, was the Government which must respect the

guarantees and provisions of the Convention. This, however, they have

not done.

The applicant also maintains that the efforts made in Sweden

to harmonise the domestic law with the relevant guarantees of the

Convention have not been successful. This is why the applicant could

not find any domestic legal support for her claims presented to the

Swedish Government. For that reason any such claims to the Swedish

courts would be in vain. All domestic remedies have accordingly been

exhausted in accordance with Article 26 (Art. 26) of the Convention.

This also implies that the applicant's rights secured to her by

Articles 6 and 13 (Art. 6, 13) of the Convention have been violated.

Finally the applicant complains of a violation of Article 14 in

conjunction with Articles 9, 10, 11 and 17 (Art. 14+9+10+11+17) of the

Convention since only trade union members of the Swedish Trade Union

Confederation risk collective affiliation to a particular political party

against their will.

The Commission recalls that the Convention in general does not

prescribe any particular manner by which the Contracting States should

ensure within their internal law the effective implementation of the

provisions of the Convention (cf. Eur. Court H.R., Swedish Engine

Drivers' Union judgment of 6 February 1976, Series A No. 20, p. 18

para. 50). Furthermore the Court has stated that "by substituting

the words 'shall secure' for the words 'undertake to secure' in the

text of Article 1 (Art. 1), the drafters of the Convention also

intended to make it clear that the rights and freedoms set out in

Section I would be directly secured to anyone within the

jurisdiction of the Contracting States. That intention finds a

particularly faithful reflection in those instances where the

Convention has been incorporated into domestic law" (Eur. Court

H.R., Ireland v. the United Kingdom judgment of 18 January 1978,

Series A No. 25, p. 91 para. 239).

It follows that Sweden is not obliged to transform the text of

the Convention into Swedish law. However, the fact that Sweden has not

incorporated the Convention into Swedish law does not mean that

remedies available under that law may not be effective remedies for

alleged violations of the Convention.

The Commission recalls in this respect that according to

Article 26 (Art. 26) of the Convention, it may only deal with a matter

after all domestic remedies have been exhausted according to the

generally recognised rules of international law. Accordingly the

Commission will first examine whether, in relation to the complaints

submitted to the Commission, the applicant has exhausted the

remedies available to her under domestic law.

It is not in dispute between the parties that the applicant

could in principle have brought her complaints before the domestic

courts of law. However, the applicant maintains, as indicated above,

that such proceedings would be without any prospects of success. She

maintains that although the whole system of collective affiliation may

be considered "fragile", any person who would want to attack this system

could not find any arguable claims based on a legal right which could

be said to be violated by the system. Therefore the remedies available

would not be effective. In this context the Commission recalls that it

has consistently held that the rule of exhaustion of domestic remedies

requires the use of those remedies only which are effective, that is to

say capable of providing redress for the complaints submitted (cf. for

example Nos. 8805/79 and 8806/79, Dec. 7.5.81, D.R. 24 p. 144 with

further references). Furthermore it is incumbent on the respondent

Government to satisfy the Commission that the remedy was available and

effective at the relevant time (cf. Eur. Court H.R., Hauschildt

judgment of 24 May 1989, Series A no. 154 para. 41).

The Government have submitted that the Swedish Code of

Judicial Procedure as well as Swedish case-law show that Swedish

courts have the competence to determine the validity of decisions taken

by associations in proceedings regarding a declaratory judgment.

This follows from Chapter 13, Section 2 of the Code of Judicial

Procedure according to which a party can bring an action against

another party for the purpose of having the court's judgment as to the

question whether there exists a certain legal relationship between the

parties concerned. Furthermore, the Government submit, this provision

was applied in the 1958 case (NJA 1958 p. 438) where the Supreme Court

stated that in order to constitute a valid affiliation to an

association it is required that the person concerned has expressed his

wish to be affiliated. Accordingly where there is a question of

affiliating a person to a political party there would be good reason

to believe that a Swedish court would have special regard to this

precedent and would pay special attention to the principles expressed

by the Supreme Court.

The Government have added that another remedy also exists,

that is an action before a Swedish court against the applicant's trade

union where she could invoke that the collective affiliation would

constitute a violation of the trade union charter as exemplified by

the 1987 case (NJA 1987 p. 394).

The Commission notes that the Government have not been able to

indicate any Swedish case-law which directly deals with the question

of collective affiliation to political parties. However, in the case

NJA 1958 p. 438, the Swedish Supreme Court had to determine whether

the collective affiliation of the members of one association to

another association was permissible, and in its judgment the Supreme

Court expressed the general principle that a declaration of intention,

whether express or implicit, is a necessary requirement for a person

becoming a member of an association. From the Law Council's statement

of 26 February 1985 it appears that this principle should be

considered to apply also to affiliation to political parties. As

stated above, this view also has at least some support in Swedish

legal doctrine. In these circumstances, the Commission considers that

an action before the Swedish courts in which the applicant might have

asked for a declaration that she was not a member of the SAP could

have been based on reasonable legal arguments under Swedish law and

can therefore not be considered to have been without any prospects of

success.

The examination of the case does not disclose any special

circumstances which could absolve the applicant from exhausting this

remedy. It follows that her application, insofar as it concerns

Articles 9, 10, 11, 14 and 17 (Art. 9, 10, 11, 14, 17) of the

Convention, must be rejected under Article 27 para. 3 (Art. 27-3) of

the Convention for non-compliance with the requirement of exhaustion

of domestic remedies.

2. As already indicated above, the applicant has also complained

of a violation of Articles 6 and 13 (Art. 6, 13) of the Convention in

that she would not have in Sweden an effective remedy at her disposal

under which her substantive complaints could be examined.

However, it follows from the Commission's above conclusion

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

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission President of the Commission

(H. C. KRUGER) (C. A. NØRGAARD)

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LILJA v. SWEDEN

LILJA v. SWEDEN