Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 12446/86

by Katarina ALSTERLUND

against Sweden

The European Commission of Human Rights sitting in private

on 5 May 1988, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

G. SPERDUTI

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

G. BATLINER

H. VANDENBERGHE

Mrs. G.H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

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 1 September

1986 by Katarina Alsterlund against Sweden and registered on

29 September 1986 under file No. 12446/86;

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

Rules of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

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

summarised as follows.

The applicant is a Swedish citizen, born in 1930. She is a

judge and resides at Gothenburg, Sweden.

Since 1975 the applicant has been a judge at the District

Court of Gothenburg (Göteborgs tingsrätt). After taking up her work

with the Court the applicant noticed certain practices which in her

opinion were contrary to Swedish law and also to the European

Convention on Human Rights. It was not unusual, for instance, that in

divorce cases a guardian ad litem (god man) was appointed for the

defendant and that a hearing was held without the defendant having

been summoned to appear. The Court also applied Swedish law in a

manner which was prejudicial to the rights of arrested or detained

persons under Article 5 para. 3 of the Convention. As the applicant

insisted on her rights and duties as a judge, she was disliked by the

Court's administration as well as by public prosecutors, lawyers and

the trade unions to which judges and other staff at the Court belong.

In 1981 the applicant addressed herself repeatedly to the Chancellor

of Justice (justitiekanslern) requesting him to intervene in her

favour, which gave rise to a certain publicity in the press.

In the beginning of 1982, the situation was discussed in the

Administrative Board of the District Court (tingsrättens kollegium).

On 10 February 1982, the Administrative Board decided to transfer the

applicant as from 1 March 1982 from the chamber for criminal cases in

which she was then working to another chamber for real estate cases.

In the meantime, on 11 January 1982, the Administrative Board

had also decided to request the Chancellor of Justice to consider

possible disciplinary measures against the applicant. At the

applicant's request, the Chancellor of Justice referred the question

to the National Disciplinary Board (statens ansvarsnämnd) which

decided on 10 May 1983 that there was no reason to take any

disciplinary measures against the applicant.

The decision to transfer the applicant to another chamber was

not subject to any appeal.

However, basing herself on the 1974 Act on Proceedings in

Labour Disputes (lagen om rättegången i arbetstvister), the applicant

sued the Swedish State as her employer before the District Court of

Stockholm (Stockholms tingsrätt) on 16 February 1982 requesting the

Court to find that the decision of transfer was null and void and that

the State was obliged to pay damages to her due to the illegal

transfer. The applicant furthermore requested the Court, as an

interim measure, to defer the execution of the transfer decision while

the case was pending. On 26 February 1982, however, the District

Court of Stockholm refused to take any interim measures, a decision

which was subsequently upheld by the Labour Court (arbetsdomstolen)

on 15 March 1982.

When the applicant had worked for four years at the chamber

for real estate cases, the Administrative Board of the Gothenburg

District Court decided, in January 1986, to transfer the applicant

to another chamber which dealt with criminal cases. The applicant

objected to this transfer since the circumstances surrounding the

previous transfer, in her opinion, had not yet been clarified.

Accordingly she again requested the District Court of Stockholm to

order, as an interim measure, the postponement of her transfer.

However, the applicant's request was refused by the Court on

3 February 1986 and the decision was upheld by the Labour Court on

6 March 1986.

On 27 March 1986 the applicant informed the District Court of

Stockholm that she withdrew her suit against the State since she no

longer had any confidence in the Court. Furthermore she requested

the Court to award her costs. On 14 May 1986 the District Court of

Stockholm struck the case off its list of cases. It found, however,

that there was no reason to deviate from the normal rule that the

party which revokes his or her claim should pay the other party's costs.

Accordingly the applicant was ordered to pay 15,000 Swedish crowns in

costs to the State.

The applicant appealed to the Labour Court about the decision

on costs. However, the Labour Court upheld the decision on 19 June

1986.COMPLAINTS

The applicant's different complaints relate to the disputes

between her and the Administrative Board of the Gothenburg District

Court.

1. The applicant first alleges violations of Article 6 para. 1 of

the Convention in that she did not have a hearing before an

independent and impartial tribunal. In her opinion neither the

District Court of Stockholm nor the Labour Court could be considered

as independent or impartial when they decided on 3 February and

6 March 1986 respectively not to postpone the execution of the

transfer decision of the Administrative Board of the Gothenburg

District Court while her suit against the employer, the Swedish State,

was pending. Nor could these courts be considered as being independent

or impartial in dealing with her case and in deciding on 14 May and

19 June 1986 respectively to award costs to the Swedish State. The

District Court of Stockholm took into account the interests of its own

administration in upholding an administrative structure similar to

that of the Gothenburg District Court, and in the Labour Court there

were three judges, one of whom represented employers' interests and

one coming from a trade union which had already been involved in the

decision to transfer the applicant. Moreover, the applicant had

sought, in her struggle for increased legal security in the courts, to

combat the influence of the administration and the trade unions, but

in the Labour Court she was confronted with a court where the majority

represented employers' and trade unions' interests.

2. The applicant alleges a further violation of Article 6 para. 1

of the Convention in that she did not have access to a tribunal

established by law. She points out in this respect that the Act on

Proceedings in Labour Disputes did not designate a specific court but

that it depended on her trade union whether her case would be brought

before the Labour Court or the District Court. She considers that the

fact that the trade union can choose the court is contrary to Article

6 para. 1.

3. The applicant further complains that her rights under Article

6 para. 1 of the Convention have been violated on the ground that the

Administrative Board of the District Court of Gothenburg, when

deciding on her transfer in 1982, did not only violate her "civil

rights" but also in reality sentenced her for an "offence" in

violation of Article 6 para. 1.

4. Since the applicant's transfer was in fact a sentence for a

criminal offence, she further alleges that she did not enjoy the

guarantees granted to persons charged with criminal offences under

Article 6 paras. 2 and 3 of the Convention.

5. The applicant considers that her right to freedom of

expression under Article 10 of the Convention has been violated in

that the decision to transfer her to another chamber as well as the

request which was made to the Chancellor of Justice were the result of

her criticism of the District Court of Gothenburg and its President.

6. With regard to Article 11 of the Convention, the applicant

alleges that her right to freedom of association has been violated,

because it is a consequence of the Swedish legislation that a judge

who is not supported by his trade union cannot in reality bring

proceedings against the State as his employer. In the applicant's

case, this has made her dependent on her trade union, which could

affect her independence as a judge and which also violates her right

to freedom of association.

7. The applicant further alleges a violation of Article 13 of the

Convention. She submits in this regard that the Labour Court is not

an independent and impartial tribunal in disputes where the employee

is not supported by his trade union. As the Labour Court was the

highest court available to the applicant, it follows that she did not

have an effective remedy either in respect of the decision of

10 February 1982 to transfer her to another chamber or in respect of

the two decisions of the Stockholm District Court of 3 February and

14 May 1986.

8. The applicant finally alleges a violation of Article 14 of the

Convention in that Swedish law has made access to an effective,

impartial and economically justifiable examination by a court in

matters regarding a judge's exercise of his or her duties dependent on

whether the judge is a member of a trade union and enjoys its support.

THE LAW

1. The applicant first alleges that the District Court of

Stockholm and the Labour Court could not be regarded as independent

and impartial tribunals in the meaning of Article 6 para. 1 (Art. 6-1)

of the Convention when they decided first on the applicant's request

for an interim order suspending the execution of the decision to

transfer her to another court chamber, and then, after she had

withdrawn her claim against the State, on procedural costs.

Article 6 para. 1 (Art. 6-1), first sentence provides:

"In the determination of his civil rights and obligations or

of any criminal charge against him, everyone is entitled to

a fair and public hearing within a reasonable time by an

independent and impartial tribunal established by law."

The Commission first notes that in the proceedings which the

applicant brought before the District Court of Stockholm she attacked

the decision to transfer her to another court chamber. Although she

brought the proceedings as a labour dispute against her employer, and

although the relations between employer and employee normally fall

under the concept of "civil rights and obligations" in Article 6 (Art. 6)

of the Convention (cf. No. 6504/74, Dec. 7.12.77, D.R. 12 p. 5),

it is doubtful whether the particular issue which the applicant raised

in the court proceedings falls within the scope of that Article.

However, the Commission does not find it necessary to decide

this question, since the applicant withdrew her claim, and the Courts

were in fact only called upon to decide two issues, namely, first -

before she withdrew her claim - whether an interim order should be

issued, and secondly - after the withdrawal - whether the applicant

should be ordered to pay the defendant's procedural costs.

As regards the interim measures requested by the applicant,

the Commission recalls its case-law according to which a decision on

such measures does not constitute a determination of "civil rights

and obligations" (No. 5263/71, Dec. 14.12.72, Collection 42 p. 97;

No. 7990/77, Dec. 11.5.81, D.R. 24 p. 57 and No. 8988/80,

Dec. 10.3.81, D.R. 24 p. 198).

As regards the procedural costs, the Commission notes that

this is a subsidiary matter which arises in many different kinds of

proceedings. Questions of procedural costs may also arise in

proceedings regarding subject-matters which clearly fall outside the

scope of Article 6 para. 1 (Art. 6-1) of the Convention, and it would

then not be reasonable to require a special procedure, satisfying the

requirements of that provision, for the determination of these costs.

The Commission therefore considers that the decision on the subsidiary

issue of procedural costs does not involve a determination of civil

rights and obligations and it therefore falls outside the scope of

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

It follows that the District Court of Stockholm, in its

decisions of 3 February and 14 May 1986, and the Labour Court, in

its decisions of 6 March and 19 June 1986, did not determine the

applicant's civil rights and obligations and that her complaint is

therefore, in this regard, incompatible ratione materiae with the

provisions of the Convention within the meaning of Article 27 para. 2

(Art. 27-2).

2. The applicant further complains under Article 6 para. 1

(Art. 6-1) of the Convention that she did not have access to a tribunal

established by law, and she bases this complaint on the argument that

it depended on the position taken by her trade union whether her case

would be brought before the Labour Court or the District Court of

Stockholm.

The Commission recalls that it has expressed certain doubts as

to the applicability of Article 6 para. 1 (Art. 6-1) to the issue of

the applicant's transfer. In any event, the Commission finds it

sufficient to point out in this regard that the applicant was able to

bring proceedings before the District Court of Stockholm which is a

tribunal established by law and which, under the 1974 Act on

Proceedings in Labour Disputes, was competent to deal with a labour

dispute brought before it by the applicant against the Swedish State.

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 alleges a further violation of Article 6 para. 1

(Art. 6-1) of the Convention in that the Administrative Board of the

District Court of Gothenburg, when deciding on the applicant's

transfer in 1982, did not only violate her "civil rights" but also in

reality sentenced her for an "offence" in violation of Article 6 para. 1

(Art. 6-1).

It is clear in the present case that the matter to be

determined by the Administrative Board of the Gothenburg District

Court did not as such concern a disciplinary measure, this matter

having been referred to the Chancellor of Justice and subsequently to

the National Disciplinary Board, but merely whether the applicant

should work in one or the other chamber of the Court. The Commission

notes that the applicant considered such transfer as being of a

punitive character. Having regard, however, to the case-law of the

Commission and the European Court of Human Rights (cf. e.g. Eur. Court

H.R., Engel and Others judgment of 8 June 1976, Series A No. 22) the

Commission finds that such transfer decisions contain no elements

which could make the applicant the object of a criminal charge within

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

It follows that this part of the application is incompatible

ratione materiae with the provisions of the Convention within the

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

4. The applicant further complains she did not, in regard to her

transfer to another court chamber, enjoy the guarantees granted to

persons charged with criminal offences under Article 6 paras. 2 and 3

(Art. 6-2, 6-3) of the Convention.

The Commission has already found (see under 3 above) that the

applicant was not charged with any criminal offence when it was

decided to transfer her to another chamber. Consequently, Article 6

paras. 2 and 3 (Art. 6-2, 6-3) were not applicable to her case, and

this complaint must also be rejected as being incompatible ratione

materiae with the Convention within the meaning of Article 27 para. 2

(Art. 27-2).

5. The applicant alleges a violation of Article 13 (Art. 13) of the

Convention in that she did not have an effective remedy in respect of

the decision of 10 February 1982 to transfer her to another chamber

and in respect of the two decisions of the Stockholm District Court of

3 February and 14 May 1986. In this regard she alleges that the

Labour Court, which was the highest court available to her, was not an

independent and impartial tribunal.

The Commission notes that the applicant could, and did, raise

this matter in labour dispute proceedings before the District Court of

Stockholm. The Commission finds no reason to question the

effectiveness of this remedy.

As regards the complaint that there was no effective remedy

against the two decisions of the District Court of Stockholm, the

Commission recalls its case-law, according to which Article 13 (Art.

13) does not require that there should be several degrees of court

jurisdiction (No. 5849/72, Dec. 16.12.74, D.R. 1 p. 46).

Consequently, the applicant did not have, under Article 13, a right to

a remedy against the decisions of the District Court of Stockholm.

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.

6. The applicant finally complains of violations of Articles 10,

11 and 14 (Art. 10, 11, 14) of the Convention and the Commission has

examined these complaints as submitted by her. However, the

Commission finds that the applicant has not substantiated her

complaints regarding these alleged violations. 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

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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ALSTERLUND v. SWEDEN

ALSTERLUND v. SWEDEN