Lexploria

Application No. 12375/86

by Maria GERDÅS, Tarja LINDELL and Kerstin LINDER

against Sweden

The European Commission of Human rights sitting in private on

7 October 1987, the following members being present:

MM. C.A. NØRGAARD, President

S. TRECHSEL

F. ERMACORA

M.A. TRIANTAFYLLIDES

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. J. RAYMOND, Deputy 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 September

1984 by Maria GERDÃ…S, Tarja LINDELL and Kerstin LINDER against Sweden

and registered on 3 September 1986 under file No. 12375/86;

Having regard to

- the first report provided for in Rule 40 of the Rules of

Procedure of the Commission,

- the Commission's decision of 4 December 1986 to communicate

the application to the Government for written observations

on the admissibility and merits,

- the Government's observations of 7 April 1987,

- the applicants' letters of 14 and 15 June 1987,

- the second report provided for in Rule 40 of the Rules

of Procedure;

Having deliberated;

Decides as follows:

THE FACTS

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

summarised as follows.

The applicants are three qualified nurses:

1. Mrs. Maria Gerdås, a Swedish citizen born in 1957

and resident at Burseryd.

2. Mrs. Tarja Lindell, a Finnish citizen born in 1955

and resident at Borås.

3. Mrs. Kerstin Linder, a Swedish citizen born in 1952

and resident at Kalmar.

The applicants have been qualified nurses since 1976 (the

third applicant) and 1978 (the first and second applicants). The

first and third applicants attended an additional training course in

obstetrics and gynaecology at the Higher Health School of Gothenburg

from 16 October 1982 to 14 October 1983. The second applicant

attended the same course at the Southern Health School of Älvsborg

from 16 August 1982 to 30 September 1983. The training is intended to

result in a special certificate in midwifery. Such a certificate is

issued by the National Board of Health and Social Welfare

(socialstyrelsen) on the basis of proof of completed education from

the competent school. Such a certificate is allegedly a condition

for exercising the profession of a midwife.

The central syllabus for training in this subject does not

require that the participants must learn how to insert a coil

into the uterus of a woman as a contraceptive measure. Nor is there

any such requirement in the local schools' syllabuses. Nevertheless,

the schools have interpreted the syllabus to mean that in order to

pass the examination the nurse must have inserted coils into several

patients in clinical care.

Being Christians, the applicants do not wish to participate in

measures of an abortive nature. In their opinion it is not

permissible to interrupt a life which has started after fertilization.

The coil is directed against a fertilized egg and is designed to

prevent the egg from implanting itself in the uterus. In the

applicants' view this method is thus a form of early abortion.

The applicants point out that during 1982 two participants in

the midwifery course in Gothenburg, who for ethical reasons refused to

insert coils, were granted permission from the National Board for

Universities and High Schools (universitets - och högskoleämbetet) to

follow an alternative training procedure by inserting a coil into

three volunteers on the condition that it would be removed

immediately. In this way, the two participants were able to pass

their examination and receive the necessary certificate.

The applicants submitted applications to be permitted to

follow such an alternative training procedure, but these were rejected

by the respective schools on 28 April 1983, as regards the first and

third applicants, and on 14 April 1983, as regards the second

applicant.

The applicants appealed to the National Board for Universities

and High Schools, which in a decision of 12 October 1983 rejected the

appeal.

The applicants lodged a further appeal with the Government,

which on 29 March 1984 rejected the appeal.

COMPLAINTS

1. The applicants submitted that their refusal to insert

contraceptive coils as part of their midwifery training is based on

their Christian beliefs. The applicants regarded the Government's

refusal to grant them midwives' certificates as an endeavour to induce

them to violate their religious convictions and to depart from their

religious beliefs in order to be able to perform their profession.

They alleged a violation of their freedom of religion protected by

Article 9 of the Convention.

2. The applicants also submitted that they were discriminated

against as a result of the fact that two other participants in such a

course were permitted to follow an alternative training procedure.

Since the applicants were refused this alternative procedure there has

been an unjustified discrimination based on their religious beliefs in

violation of Article 14 of the Convention.

3. The applicants finally submitted that the right to earn a

living in the profession for which they have been trained is a "civil

right" within the meaning of Article 6 of the Convention. By refusing

the applicants a certificate which would have entitled them to work as

midwives, the authorities compelled them to continue to work as nurses

earning a lower salary than midwives. Since the Government have

refused a civil right in their decision, the applicants have been

entitled to an impartial and public hearing of the matter. However,

such a procedural right does not exist in Swedish law, and there has

accordingly been a breach of Article 6 of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 22 September 1984 and

registered on 3 September 1986.

On 4 December 1986 the Commission decided to bring the

application to the notice of the Government and to invite them to

submit written observations on its admissibility and merits.

The Government's observations were dated 7 April 1987. In

their observations the Government concluded that the application should

be declared inadmissible for failure to exhaust domestic remedies or,

as regards Article 6 of the Convention, for being incompatible ratione

materiae with the provisions of the Convention, or as being

manifestly ill-founded in its entirety.

By letter of 14 and 15 June 1987 the applicants informed the

Commission that they wished to withdraw their application, the

background being that they had in May 1987 been given certificates as

midwives with the remark that they had not inserted contraceptive

coils. The decision to grant the applicants the certificates was the

result inter alia of a report of the Standing Parliamentary Committee

on Social Affairs of 5 November 1986 (SoU 1986/87:5) and a decision of

the Government of 12 February 1987.

REASONS FOR THE DECISION

The Commission notes that the applicants have withdrawn their

application after having been granted certificates as midwives. The

Commission finds in these circumstances that there are no reasons of a

general character affecting the observance of the Convention which

require further examination of the application.

For these reasons, the Commission

DECIDES TO STRIKE THE APPLICATION OFF ITS LIST OF CASES.

Deputy Secretary to the Commission President of the Commission

(J. RAYMOND) (C.A. NØRGAARD)

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GERDAS, LINDELL AND LINDER v. SWEDEN

GERDAS, LINDELL AND LINDER v. SWEDEN

LEXI