CEDH · CASELAW;REPORTS;ENG — 16 mai 1990

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }  Application No. 11518/85 Gandharv Raj CHAUHAN against the UNITED KINGDOM   REPORT OF THE COMMISSION   (adopted on 16 May 1990)                           TABLE OF CONTENTS                                                                    Page   INTRODUCTION..............................................     1   PART I:   STATEMENT OF FACTS ..........................         3   PART II:   SOLUTION REACHED   ..............................     5     INTRODUCTION   1.       This Report relates to Application No. 11518/85 introduced against the United Kingdom by Mr.   Gandharv Raj Chauhan on 4 August 1984 under Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms.   The application was registered on 3 May 1985.   2.       The applicant was represented in the proceedings before the Commission by Messrs.   Simmons, Muirhead and Burton, Solicitors, London, and Mr.   Geoffrey Robertson, Q.C., of counsel.   3.       The Government of the United Kingdom were represented by their Agent, Mr.   M. C. Wood, Foreign and Commonwealth Office, London.   4.       On 12 July 1988 the European Commission of Human Rights declared the application admissible as regards the applicant's complaints under Articles 9, 11 and 14 of the Convention.*   5.       The Commission then proceeded to carry out its task under Article 28 para. 1 of the Convention which provides as follows:   "In the event of the Commission accepting a petition referred to it:   (a)      it shall, with a view to ascertaining the facts, undertake together with the representatives of the parties an examination of the petition and, if need be, an investigation, for the effective conduct of which the States concerned shall furnish all necessary facilities, after an exchange of views with the Commission;   (b)      it shall at the same time place itself at the disposal of the parties concerned with a view to securing a friendly settlement of the matter on the basis of respect for Human Rights as defined in this Convention."   6.        The Commission found that the parties had reached a friendly settlement of the case and on 16 May 1990 adopted this Report, which, in accordance with Article 28 para. 2 of the Convention, is confined to a brief statement of the facts and of the solution reached.   __________ *   This decision is public and can be obtained from the    Commission's Secretary.   The decision will be published in    the Commission's official publication entitled Decisions    and Reports.   __________   7.       The following members of the Commission were present when the Report was adopted:                  MM. C. A. NØRGAARD, President                   J. A. FROWEIN                   S. TRECHSEL                   E. BUSUTTIL                   G. JÖRUNDSSON                   A. S. GÖZÜBÜYÜK                   A. WEITZEL                   J. C. SOYER                   H. G. SCHERMERS                   H. DANELIUS              Mrs.   G. H. THUNE              Sir   Basil HALL              Mr.   F. MARTINEZ              Mr.   C. L. ROZAKIS              Mrs.J. LIDDY              Mr.   L. LOUCAIDES   PART I   STATEMENT OF FACTS   8.       The applicant is a citizen of the United Kingdom born in 1938 and is an electrician by profession.   He resides in London.   9.       The applicant had been employed as an electrician by the Ford Motor Company since 1978.   The company had, at that time, a union membership agreement which required an employee to be a member of a union.    The applicant had previously been a member of the Transport and General Workers' Union (TGWU) since 1976 but his membership had lapsed.   He then joined the Electrical, Electronics, Telecommunication and Plumbing Union (EETPU) as required by the union membership agreement at the beginning of his employment with the Ford Motor Company.   In April 1980 he allowed his membership of the EETPU to lapse by failing to keep up his subscriptions.   From that date he has not been a member of any trade union.   However, he continued to work for the Ford Motor Company and it was not until three years later, early in June 1983, that the fact of his lapsed union membership came to light.   10.       The applicant claimed that he was a devout orthodox Hindu belonging to the Radhaswami sect.   He explained that this sect divided its religious activities into four stages and that he had progressed to the third stage.   He considered that the religious teaching at this stage of his religion did not permit him to be a member of a trade union.   The applicant offered to pay to charity a sum equivalent to his union dues.   11.       The applicant was subsequently invited by the Employee Relations Manager to appeal to an independent panel, as provided for under the union membership agreement, in order to explain the reasons for his refusal.   He subsequently refused to have recourse to this appeal procedure since he considered that the panel could not be regarded as independent so long as any member of a trade union was represented upon it.   12.       The applicant was subsequently dismissed from his employment on 21 October 1983.   13.       The applicant then filed an application before the Industrial Tribunal.   He complained that his dismissal was unfair since he had genuine objections on grounds of conscience justifying his refusal to join a trade union in accordance with Section 58 (4) of the Employment Protection (Consolidation) Act 1978 (as amended).   14.       On 23 January 1984 the Industrial Tribunal rejected the applicant's case, finding that he had not proved a genuine and conscientious objection.   Accordingly, his dismissal was fair under the 1978 Act (as amended).   The Tribunal was satisfied that the Employee Relations Manager had explored the applicant's stated religious objections to trade union membership and that he was entitled to conclude that the applicant did not have a genuine conscientious objection.   15.       The applicant appealed against this decision to the Employment Appeal Tribunal.   This appeal was rejected on 17 December 1984. He was advised by his lawyers that an appeal to the Court of Appeal against this decision offered no prospects of success and would involve him in substantial expense.   16.       Before the Commission the applicant alleged that his dismissal from employment because of his refusal to rejoin a trade union constituted a breach of Article 11 para. 1 of the Convention which contained, in his submission, a general right to choose not to be a member of a trade union.   He further complained of a breach of Article 11 read in conjunction with Article 9 of the Convention, since the requirement to join a trade union was incompatible with his religious beliefs.   Finally he complained that he was a victim of discrimination in the enjoyment of his rights under Articles 9 and 11 contrary to Article 14 of the Convention in that he was required to join a trade union irrespective of his religious beliefs and that he was required to bear a heavier burden of proof before the Industrial Tribunal than members of other more traditional faiths.   PART II   SOLUTION REACHED   17.       Following its decision on the admissibility of the application, the Commission placed itself at the disposal of the parties with a view to securing a friendly settlement in accordance with Article 28 para. 1 (b) of the Convention and invited the parties to submit any proposals they wished to make.   18.       Following an exchange of letters, the Secretary, accompanied by a member of the Secretariat had separate discussions with the parties in London on 23 February 1990 concerning the possibility of reaching a friendly settlement.   In the light of these discussions, the parties agreed on the terms of the friendly settlement as set out below.   19.       By letter of 27 April 1990, the Agent of the Government stated as follows:   "I have the honour to refer to the friendly settlement negotiations which took place in London on 23 February 1990 and to inform you that, in the light of these discussions, the Government propose a friendly settlement on the following basis:   1.   The Government will make an ex gratia payment to the applicant of £40,000, payment to be made within 21 days of the adoption of the Commission's Report.   2.   The Government will also pay the applicant's legal costs which have been actually incurred, necessarily incurred and are reasonable as to quantum."   20.       In a letter dated 27 April 1990, the applicant's solicitors indicated as follows:   "We refer to the State Party's letter dated 27 April 1990 and have pleasure in notifying you that Mr Chauhan accepts the terms of settlement."   21.       The Commission, at its session on 16 May 1990, noted that the parties had reached an agreement regarding the terms of a settlement. The Commission further found, having regard to Article 28 para. 1 (b) of the Convention and to the statements made by the parties, that a friendly settlement had been secured on the basis of respect for human rights as defined in the Convention.           For these reasons, the Commission adopted this Report.     Secretary to the Commission                President of the Commission             (H. C. KRÜGER)                              (C. A. NØRGAARD)