Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 12719/87

by STEEN BILLE FREDERIKSEN and Others

against Denmark

The European Commission of Human Rights sitting in private

on 3 May 1988, the following members being present:

MM. J.A. FROWEIN, Acting President

C.A. NØRGAARD

S. TRECHSEL

F. ERMACORA

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 8 January 1987

by Steen Bille Frederiksen and Others against Denmark and registered

on 12 February 1987 under file No. 12719/87;

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 applicants, may be

summarised as follows.

The applicants:

Mr. Steen Bille Frederiksen, born in 1949, residing at Frederikssund;

Mr. Benny Stunal, born in 1951, residing at Kokkedal;

Mr. Nils Skovby, born in 1945, residing in Copenhagen;

Mrs. Winnie Kathrine Andersen, born in 1946, residing at Karise;

Mrs. Inga Bente Kirkegaard Jensen, born in 1943, residing at Frederikssund;

Mr. Per Brandt, born in 1952, residing at Veksø;

Mr. Ejgil Larsen, born in 1935, residing at Frederikssund;

are all Danish citizens. Before the Commission they are represented

by their lawyer, Mr. Henrik Christrup, of the law firm Gorrisen & Partners,

Copenhagen, Denmark.

I. Particular facts of the case

Until 23 May 1984 the applicants were employed as bus drivers,

under usual labour contract conditions, by the Traffic Company of the

Metropolitan Area (Hovedstadsområdets Trafikselskab (HT)) which is

under the authority of the Metropolitan Council (Hovedstadsrådet), a

public authority. The HT services four districts in and around

Copenhagen and has approximately 4,800 employees of whom approximately

3,700 are chauffeurs. The chauffeurs of District 1 are organised

under the Traffic Employers Trade Union (Trafikfunktionaerernes

Fagforening (TF)) which is a sub-division of the Danish Municipal

Workers Union (Dansk Kommunalarbejder Forbund (DKA)) while the drivers

of the remaining districts are organised in the The Danish Trade Union

for Unskilled Workers (Specialarbejderforbundet i Danmark (SID)).

On 30 October 1983 one of the applicants, Mr. Per Brandt

was transferred from District 1 to District 2. He was accordingly

requested to leave the TF in order to become a member of the SID. He

realised, however, that he was not obliged to do so and thus refused,

his main reason for this being that the SID contributed economically

to the Social Democratic Party, the political views of which he did

not share.

This situation led to certain controversies among the

chauffeurs of the district in question and in March 1984 a number of

spontaneous strikes took place in this district as well as in other

districts aimed at making Mr. Brandt change his mind and join the SID.

On 16 April 1984, however, other chauffeurs decided to

withdraw from the SID. This triggered off new strikes, the legality

of which was brought before the Labour Court (Arbejdsretten). At a

preparatory meeting held immediately the SID and the DKA admitted that

the strikes were illegal and promised to order their members back to

work. Nevertheless the HT decided on the same day to exempt Mr. Brandt

from duty until further notice. Subsequently all strikes were called

off and the chauffeurs resumed work.

The following week, however, more chauffeurs withdrew from the

SID and during the month of May 1984 the situation created thereby led

to a number of demonstrations and strikes aimed at forcing the

chauffeurs to join the SID again or at forcing the Metropolitan Council

to dismiss the bus drivers who had left the SID.

The demonstrations and strikes elevated the case to one of

national concern and on national television the Danish Prime Minister

declared that it would be a "crystal clear" violation of Danish

legislation if the Metropolitan Council would dismiss the chauffeurs.

Nevertheless, on 22 and 23 May 1984, the strikes and blockades reached

their peak, including inter alia hospitals, post offices, garbage

collections, newspapers and the national television networks.

Eventually on the night of the 23 May 1984 the Metropolitan Council

decided to give in and dismissed the applicants from their jobs as

chauffeurs at the HT. The dismissals received by the applicants read

as follows:

"In the light of the conflict which had arisen concerning

your person and which led to a number of strikes in the

bus service in the Metropolitan area since 3 April 1984

HT will have to dismiss you from your job as chauffeur in

the Traffic Company of the Metropolitan Area with the usual

notice until the end of September 1984, in order to secure a

normal bus service."

The applicants received their dismissals on 24 May 1984.

Within two days all strikes were called off.

By letter of 1 June 1984 from the Ministry of the Interior

(Indenrigsministeriet) the Minister informed the Metropolitan Council

inter alia as follows:

"It is therefore with great regrets that I note that the

Metropolitan Council, which is a public authority, has taken

a decision which is clearly in violation of the applicable

legislation, in particular as this legislation aims at

protecting the individual citizen.

Since the Metropolitan Council's decision of dismissal has

been communicated to the persons concerned a question of

annulments in accordance with the Act on Municipal

Administration (Den kommunale Styrelseslov) cannot be

taken into consideration. However, in the opinion of the

Government there is a considerable public interest in

obtaining an authoritative decision stating that the

Metropolitan Council's decision of dismissing the chauffeurs

was a clearly illegal decision which could not in the

present case be characterised as taken as an emergency

measure.

I have, therefore, requested the Solicitor General

(Kammeradvokaten)to institute proceedings against the

Metropolitan Council in order to establish through the

courts that the decision of dismissal is null and void

and that the eight chauffeurs therefore remain employed."

Proceedings against the Metropolitan Council were instituted by

the Solicitor General in the High Court (Landsretten). However, these

proceedings were adjourned due to the fact that the applicants also

instituted proceedings in the High Court against the Metropolitan

Council as well as against the SID. The applicants maintained that the

dismissals were in violation of the Danish Constitution and other

applicable domestic legislation, in particular Act No. 285 of 9 June

1982 concerning Protection against Dismissals because of Trade Union

Relations (Lov nr. 285 af 9 juni 1982 om beskyttelse mod afskedigelse

på grund af foreningsforhold). They also referred to Article 11 of the

European Convention on Human Rights.

The applicants argued that they did not want to be members of

the SID, for which reason they had either refused to become members or

resigned and hence joined the Free Trade Union of Denmark (Danmarks

Frie Fagforening). It was for this reason the Metropolitan Council

had dismissed them. The applicants claimed that the dismissals should

be regarded as null and void with the result that the applicants

should be considered still employed by the Metropolitan Council. In

the alternative the applicants claimed that they should receive

compensation.

The Ministry of the Interior applied for and was granted leave

to join the proceedings as a co-plaintiff (biintervenient) supporting

the applicants' principal plea.

The High Court pronounced judgment in the case on 17 May 1985.

In its judgment the High Court stated as follows:

"After an evaluation of the evidence submitted the Court

finds that the Metropolitan Council's decision to dismiss

the plaintiffs on 23 May 1984 was based on the Council's

legal obligation to secure the bus service in the

Metropolitan area. The plaintiffs cannot be considered as

having proved that the Metropolitan Council pursued or aimed

at pursuing an illegal purpose by dismissing them due to their

trade union relations even if these problems caused a

stand-still of the bus service in the area as well as

disturbances inter alia in other places of work during the

time up to the dismissals.

On the other hand the Court does not find it proven by the

Metropolitan Council that the situation at the time of the

dismissals was of such a character that it could give

grounds for a dismissal of the plaintiffs. The dismissals

must therefore be considered as being effected on an

insufficient basis and accordingly as being unjustified.

For these reasons and in the circumstances of the present

case the Court cannot find for the plaintiffs' principal plea

that they have maintained their positions in spite of the

dismissals, but it considers that the Metropolitan Council is

under an obligation to pay damages to the plaintiffs for economic

losses and inconveniences which the dismissals have caused."

The amounts were determined on an equitable basis according to

age, previous salaries and duration of employment with the HT and varied

from 75,000 Danish crowns to 175,000 Danish crowns. The SID on the other

hand was not found liable to pay damages to the applicants.

The applicants appealed against this judgment to the Supreme

Court (Højesteret) where they repeated their claims submitted to the

High Court. The Ministry of the Interior also joined the proceedings

as a co-plaintiff before the Supreme Court.

In its judgment of 24 October 1986 the Supreme Court stated as

follows:

"The Articles of the Constitution which the appellants have

invoked do not give any basis upon which it can be found

that the dismissals are null and void nor can such a claim

be based on other rules of a constitutional character.

The invoked provision contained in Article 11 of the

European Convention of Human Rights cannot be used directly

but the dismissals must be considered according to Act No.

285 of 9 June 1982 concerning Protection against Dismissals

because of Trade Union Relations which was adopted in order

to fulfil Denmark's obligations under Article 11 of the

Convention.

The dismissals are contrary to this Act's Section 2 para. 1

and contrary to the fundamental concept of equality in

public administrative law which has been used earlier cf.

Supreme Court judgment of 13 June 1978 (U1978.626).

According to Section 4 the employer must pay damages to an

employee who is dismissed contrary to the law but the Act

does not give the employee a right to be re-employed.

Accordingly the Act cannot constitute the basis for the

appellants' claim that the dismissals should be considered

null and void and that they are still employed as bus

drivers in the Traffic Company of the Metropolitan Area.

Neither can the dismissals be considered null and void on

any other basis.

Since it is without relevance for the question of compensation

or damages whether there was an emergency situation (nødret),

the Court has not found any reason to consider this question.

The amounts awarded to the appellants by the High Court are

found to be reasonable."

The Supreme Court upheld the judgment of the High Court

insofar as it concerned the SID.

II. Relevant domestic legislation

The Act No. 285 of 9 June 1982 concerning Protection against

Dismissals because of Trade Union Relations contains the following

provisions.

Section 1.

Para. 1: An employer may not dismiss an employee because he

is a member of an association or a specific association.

Section 2.

Para. 1: The employer may not dismiss an employee because he

is not a member of an association or a specific association.

Para. 2: Para. 1 is not applicable if the employee, when

employed, knew that the employer made membership of an association or

of a specific association a condition for employment in the business.

Para. 3: Para. 1 is furthermore not applicable when the

employee, who is a member of an association, subsequent to the

employment is informed that membership is a condition for continued

employment in the business.

Section 3.

Para. 1: Sections 1 and 2 of the Act do not apply to employees

who are employed by employers whose business specifically aims at

furthering a political, ideological, religious or cultural purpose

and the membership of the person concerned must be considered of

importance for the business.

Section 4.

Para. 1: If an employee is dismissed contrary to the provisions

of this Act the employer must pay damages.

Para. 2: Damages according to para. 1, which cannot exceed 78

weeks salary, are awarded having regard to the duration of the employee's

employment and the other circumstances of the case.

COMPLAINTS

The applicants invoke Articles 11, 13 and 14 of the

Convention. They maintain that they can be considered victims under

Article 25 of the Convention as they have neither been reinstated in

their previous jobs, nor obtained adequate compensation.

With regard to Article 11 the applicants have submitted that

this provision has been violated due to the fact that they were

dismissed from their jobs as bus drivers with the Traffic Company of

the Metropolitan Area merely because they did not wish to remain

members of the SID but instead joined the Free Trade Union of Denmark.

Under Article 13 the applicants complain that they had no

effective remedy before a national authority, firstly, because they

were denied reinstatement in their previous jobs and, secondly, because

the compensation awarded to them was too small and inadequate.

Finally, the applicants invoke Article 14 in conjunction

with Article 11 of the Convention. They maintain that they have not

enjoyed the rights and freedoms set out in Article 11 of the

Convention due to their political opinions.

THE LAW

1. The applicants have complained of the fact that they were

dismissed from their jobs as bus drivers with the Traffic Company of

the Metropolitan Area. They maintain that their dismissals were

effected merely due to their refusal to join a certain trade union and

they allege that this amounts to a violation of Article 11 (Art. 11)

of the Convention which reads:

"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 the State."

However, it is clear from Article 25 para. 1 (Art. 25-1) of

the Convention that the Commission can only receive an application

from a person, a non-governmental organisation or a group of

individuals if such person, non-governmental organisation or group of

individuals can claim to be a victim of a violation by one of the High

Contracting Parties of the rights set forth in the Convention.

In the present case the applicants maintain that they are

victims of a breach of Article 11 (Art. 11) of the Convention as they

were not reinstated in their previous jobs or in the alternative since

they did not get adequate compensation.

When considering the victim question the Commission recalls

that under Article 26 (Art. 26) of the Convention it may only deal

with an application when all domestic remedies have been exhausted

according to the generally recognised rules of international law.

Under this rule an applicant is obliged to make use of remedies likely

to be effective and adequate to remedy the matters of which he

complains. Where an applicant makes use of such remedies and thereby

obtains adequate redress at the domestic level for the alleged

violation of the Convention he cannot claim to be a victim of a

violation (cf. for example No. 9320/81, Dec. 15.3.84, D.R. 36 p. 24,

No. 10259/83, Dec. 10.12.84, D.R. 40 p. 170 and Eur. Court H.R.,

Eckle judgment of 15 July 1982, Series A No. 51, p. 30, para. 66).

In its examination of this preliminary issue of admissibility

the Commission has therefore considered whether the compensation

awarded to the applicants by the courts had the effect to remedy the

alleged violations.

The applicants argue that only reinstatement would be an

effective remedy. In this respect the Commission first observes that

under Article 1 (Art. 1) of the Convention the High Contracting Parties are

obliged to secure to everyone within their jurisdiction the rights and

freedoms defined in Section I. This includes the obligation, under

Article 13 (Art. 13), to provide individuals with an effective remedy

against a violation of their rights and freedoms as set forth in the

Convention. The possibility of obtaining compensation may in some

circumstances constitute an adequate remedy, in particular where it is

likely to be the only possible or practical means whereby redress can

be given to the individual for the wrong he has suffered. In such

circumstances the Commission is not called upon to address the problem

whether under specific conditions a remedy, leading to restitutio in

integrum may be required by the Convention.

Nevertheless, compensation may not be deemed to have

rectified a violation in a situation where the State had not taken

reasonable measures to comply with its obligations under the

Convention. The obligation to provide a remedy does not constitute a

substitute for, or an alternative to, compliance with other Convention

obligations. It is rather a means of redress within the domestic

system for violations which occur despite measures taken to ensure

compliance with the substantive provisions of the Convention. Thus if

conduct which contravened the Convention were to be authorised by

domestic law the State could not escape from its obligations merely by

paying compensation. The compensation machinery could only be seen as

an adequate remedy in a situation where the authorities had taken

reasonable steps to comply with their obligations under the Convention

by preventing as far as possible the occurrences or repetition of the

acts in question (mutatis mutandis No. 5577/72 - 5583/72, Dec.

15.12.75, D.R. 4 p. 4 (64)).

In the present case the Commission recalls that the

Metropolitan Council decided in the area of employment on the basis of

the applicable labour-law, i.e. Act No. 285 of 9 June 1982 concerning

Protection against Dismissals because of Trade Union Relations. This

Act was introduced by the respondent Government in the light of the

judgment of the European Court of Human Rights in the case of Young,

James and Webster (Eur. Court H.R., Young, James and Webster judgment

of 13 August 1981, Series A No. 44) in order to comply with Denmark's

obligations under Article 11 of the Convention. It prohibits

dismissal of employees due to membership of an association and is

applicable to persons employed in both private and public enterprises.

It does not give an employee the right to be re-employed but secures

to the employee compensation in case of dismissal in contravention of

the provisions of the Act. The Commission has not found any indication

of a general practice whereby public authorities would disregard the

legislation introduced in Denmark by dismissing employees and merely

pay compensation, a practice which in the Commission's opinion would

raise a serious issue under the Convention.

In these circumstances the Commission finds that Denmark has

taken reasonable steps to comply with its obligations under Article 11

(Art. 11) of the Convention by introducing this Act. It follows that the

applicants cannot claim to be victims of a violation of the Convention

merely because they were not re-employed as bus drivers in the Traffic

Company of the Metropolitan Area.

The applicants have next alleged that they may still claim to

be victims since the compensation actually received was inadequate.

The Commission would not exclude that, where compensation granted under

domestic law is inadequate, an issue may arise as to the question of

victim and it has therefore considered whether the applicants' right

to compensation was effective in practice.

In this respect the Commission recalls that the compensation

that could be awarded under Section 4 amounted to a maximum of 78

weeks salary and was to be determined having regard to the employee's

length of employment and the other circumstances of the case. In the

present case the competent courts took into consideration the

applicants' age, the salaries earned as well as the duration of their

employment and fixed the compensation on an equitable basis in the

light of these circumstances. The Commission furthermore recalls that

these compensations ranged from 75,000 Danish crowns to 175,000 Danish

crowns.

The Commission finds that the applicants each received

substantial sums in compensation and thereby obtained redress at the

domestic level for the alleged violation of Article 11 (Art. 11) of

the Convention. Therefore they can no longer claim to be victims of

this alleged violation and 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.

2. The applicants have also complained under Article 13 (Art. 13)

of the Convention that they had no effective remedy at their disposal.

However, it follows from the Commission's conclusion above that this

complaint is also manifestly ill-founded within the meaning of Article

27 para. 2 (Art. 27-2) of the Convention.

3. Finally, the applicants have complained under Article 14

(Art. 14) of the Convention that they did not enjoy the rights and

freedoms set out in the Convention due to their political opinions.

The Commission has considered the complaint as submitted by the

applicants. However, its examination has not disclosed any appearance

of a violation of Article 14 (Art. 14) of the Convention and it

follows that this complaint is likewise 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 Acting President of the Commission

(H. C. KRUGER) (J. A. FROWEIN)

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FREDERIKSEN v. DANEMARK

FREDERIKSEN v. DANEMARK