CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 7 septembre 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 }                          AS TO THE ADMISSIBILITY OF                           Application No. 12962/87                       by Baruch YOM-TOV                       against Sweden               The European Commission of Human Rights sitting in private on 7 September 1990, the following members being present:                MM.   C. A. NØRGAARD, President                   S. TRECHSEL                   F. ERMACORA                   G. SPERDUTI                   E. BUSUTTIL                   G. JÖRUNDSSON                   A. S. GÖZÜBÜYÜK                   A. WEITZEL                   J. C. SOYER                   H. DANELIUS              Sir   Basil HALL              Mrs.   J. LIDDY              MM.   L. LOUCAIDES                   J.-C. GEUS                   A.V. ALMEIDA RIBEIRO                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 4 July 1986 by Baruch YOM-TOV against Sweden and registered on 22 May 1987 under file No. 12962/87.           Having regard to the written observations submitted by the Government on 19 December 1989 and the applicants' observations of 20 February 1990.           Having deliberated;           Decides as follows:   THE FACTS           The facts of the case, as submitted by the parties, may be summarised as follows.   Particular circumstances of the case           The applicant is a Swedish citizen born in 1936 and resident at Lund.   He is a researcher in science.   Before the Commission he is represented by Mr.   Göran Ravnsborg, a lecturer in law at the University of Lund.           In 1984 the applicant bought a jeans-shop at Lund.   He employed Mrs B.G. as sales woman.   After a dispute between the applicant and Mrs.   B.G., the Commercial Employees' Union (Handelsanställdas förbund) instituted proceedings against the applicant before the Labour Court (arbetsdomstolen) on the ground that the applicant had dismissed one of their members in breach of the Employment Protection Act (anställnings- skyddslagen).   The Union claimed that the applicant should pay general damage and pecuniary damage to the member concerned and general damage to the Union.   The applicant is not affiliated to any employers organisation.           By judgment of 15 January 1986 the Labour Court found that the applicant had dismissed a member of the Union in breach of the Employment Protection Act.   It ordered the applicant to pay 10,000 SEK as general damages and 38,322 SEK as pecuniary damages to the member concerned and 2,000 SEK as general damages to the Union.           The Court was composed of two professional judges and five lay assessors.   The professional judges were Hans Stark, President of the Labour Court, and Erik Lempert, Associate Judge of the Court of Appeal.   The lay assessors who had been appointed by the Government were:   1.       Palle Lundin, Director at the County Labour Board (länsarbetsdirektör vid länsarbetsnämnden) of Uppsala.   He had not been nominated by any major organisation but had been appointed because of his special knowledge of the labour market.   2.       Torkel Unge, Director at the Swedish Employers' Confederation (Svenska arbetsgivareföreningen, SAF).   He had been nominated by SAF.   3.        Olle Bergström, First Secretary at the Federation of County Councils (Landstingsförbundet).   He had been nominated by the Federation of County Councils.   4.       Åke Wänman, Second President of the Swedish Building Workers' Union (Svenska byggnadsarbetareförbundet), a union affiliated to the Swedish Trade Union Confederation (Landsorganisationen, LO).   He had been nominated by LO.   5.       Lennart Lundgren, First Ombudsman of the Swedish Bank Employees' Union (Svenska Bankmannaförbundet), a union affiliated to the Central Organisation of Salaried Employees (Tjänstemännens Centralorganisation, TCO).   He had been nominated by TCO.           The Commercial Employees' Union, which had brought the proceedings before the Labour Court, is affiliated to LO. Relevant domestic law           The provisions which regulate proceedings in the Labour Court and the composition of the Labour Court are laid down in the 1974 Litigation in Labour Disputes Act ("the 1974 Act"; lagen om rättegången i arbetstvister).           Labour Court procedures are based on the procedural rules which apply in the ordinary courts to actions amenable to out of court settlements.   The relevant provisions are to be found in the Code of Judicial Procedure (rättegångsbalken).   In view of the type of cases involved and the special conditions under which the Labour Court operates, certain regulations which deviate from the provisions of the Code of Judicial Procedure are included in the 1974 Act.   Thus, the procedural rules under the Code of Judicial Procedure apply, unless the 1974 Act provides otherwise.           The Labour Court is composed of professional judges and of members representing the employers and the employees with individual and equal voting rights for each participating member.   When more than one member of the Court is to examine a case, an equal number of employer representatives and employee representatives participate.           Organisations considered to best represent conditions in the Swedish labour market have the right to propose employer and employee members of the Court.   The decisive factor in this context is not merely the size of the organisation, that is the number of its members, but also its influence on legal developments on the labour market through the negotiation of collective agreements or in other ways.           Employer and employee members of the Court participate in the examination of cases, not as representatives of the parties appearing before the Court, but to provide the Labour Court with expert knowledge of the legal opinions and views which are formed on the labour market at large.           Members of the Labour Court are appointed by the Government for a period of three years.   They have equal status in every respect. Also the members representing special interest groups on the labour market thus swear the judicial oath, in accordance with the Code of Judicial Procedure Chapter 4 Section 11, in the same way as professional judges and lay assessors in the ordinary courts.   Under this oath, they are obliged to render judgment in accordance with existing law, to be independent and impartial and to resist influence by external pressures of any kind.           According to Chapter 11 Section 5 of the Instrument of Government (regeringsformen), permanently appointed judges cannot, in principle, be dismissed.   This rule does not apply to judges in the Labour Court, but they cannot be dismissed during the period for which they are appointed.           The general regulations in Chapter 4 Section 13 of the Code of Judicial Procedure regarding disqualification or challenge due to conflict of interests are applicable also in the Labour Court.   These rules state, for example, that anyone (personally or as a representative of a company, union etc.) who is a party in the dispute, or otherwise concerned in the dispute, or who can expect significant advantage or damage from the outcome of the dispute, must not participate in the examination of a case.   The same applies to anyone who is opposed to or on unfriendly terms with a party in the dispute, to anyone who has been connected with the dispute in another capacity and to anyone who has represented one of the parties.   In addition, there is a general provision regarding conflict of interests, where special circumstances exist which may impair confidence in the member's impartiality.           As applied to the Labour Court, the disqualification or challenge rules mean that a member of the board of an employer or employee association may not participate in a case where the association is one of the parties involved or has intervened in the case.   The rules regarding persons who can expect significant advantage or damage from the outcome of the case or the regulation regarding other special circumstances which may impair confidence in the impartiality of the member, have, in view of the Court's structure, only had a very restrictive application.   For example, in practice, members representing the head organisations or associations/unions of either the employers or the employees participate in cases concerning the interpretation of central agreements which are the results of negotiations where the members themselves have formed part of the central negotiating delegations on either side.   COMPLAINTS   1.       The applicant alleges that the Labour Court did not satisfy the condition of "independent and impartial tribunal" in Article 6 para. 1 of the Convention having regard to its composition.   He points out that, while he was not affiliated to any union, his opposing party, Mrs.   B.G., was represented by her trade union through the Legal Protection limited company of the Swedish Trade Union Confederation (LO-förbundens Rättsskydd AB), that Confederation having allegedly two representatives as members of the Court.   2.       The applicant also alleges violations of Articles 11 and 14 of the Convention and Article 1 of Protocol No. 1 to the Convention.   PROCEEDINGS BEFORE THE COMMISSION           The application was introduced on 4 July 1986 and registered on 22 May 1987.           On 4 September 1989 the Commission decided to communicate the application to the respondent Government and invite them to submit written observations on the admissibility and merits of the application limited to the complaints under Article 6 of the Convention.           The Government's observations were received by letter dated 19 December 1989 and the applicant's observations were dated 20 February 1990.   THE LAW   1.       The applicant alleges a violation of Article 6 (Art. 6) of the Convention on the ground that the Labour Court was not an independent and impartial tribunal.   He also alleges violations of Articles 11 (Art. 11) and 14 (Art. 14) of the Convention and Article 1 of Protocol No. 1 (P1-1) to the Convention.   2.       Article 6 para. 1 (Art. 6-1) first sentence of the Convention, insofar as relevant, reads:          " In the determination of his civil rights and obligations..., everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law."           The Government do not object to the admissibility of the application under Article 26 (Art. 26) of the Convention.   They submit, however, that the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.           As to the question whether the Labour Court was an "independent and impartial tribunal", the Commission recalls the following case-law.           When examining whether a specific body can be considered "independent", regard must be had, inter alia, to the manner of appointment of its members and their term of office, to the existence of guarantees against outside pressure and to the question whether the body presents an appearance of independence.   As to the question of impartiality, two tests must be made: a subjective test under which it is sought to establish the personal conviction of a given judge in a given case, and an objective test, aimed at ascertaining whether the judge offered guarantees sufficient to exclude any legitimate doubt in this respect (cf. Eur. Court H.R., Langborger judgment of 22 June 1989, Series A no. 155, p. 16, para. 32).           In the Langborger case (loc. cit.), the Commission and the Court were seized with an issue of a similar nature regarding the Swedish Housing and Tenancy Court (bostadsdomstolen) where the lay assessors had been nominated by the dominating unions on the housing and rent market and where the dispute before the Housing and Tenancy Court concerned the question whether a negotiation clause in the applicant's lease should be retained.   The European Court of Human Rights stated, inter alia, as follows (above-mentioned Langborger judgment, p. 16, paras. 34-35):   "34.     Because of their specialised experience, the lay assessors, who sit on the Housing and Tenancy Court with professional judges, appear in principle to be extremely well qualified to participate in the adjudication of disputes between landlords and tenants and the specific questions which may arise in such disputes.   This does not, however, exclude the possibility that their independence and impartiality may be open to doubt in a particular case.   35.      In the present case there is no reason to doubt the personal impartiality of the lay assessors in the absence of any proof.   As regards their objective impartiality and the question whether they presented an appearance of independence, however, the Court notes that they had been nominated by, and had close links with, two associations which both had an interest in the continued existence of the negotiation clause.   As the applicant sought the deletion from the lease of this clause, he could legitimately fear that the lay assessors had a common interest contrary to his own and therefore that the balance of interests, inherent in the Housing and Tenancy Court's composition in other cases, was liable to be upset when the court came to decide his own claim.   The fact that the Housing and Tenancy Court also included two professional judges, whose independence and impartiality are not in question, makes no difference in this respect."           In the present case, the Commission finds no reason to question the independence and impartiality of the professional judges.   With regard to the lay assessors, there is no reason to doubt their personal impartiality in the absence of proof to the contrary.           As regards the objective impartiality, the Government submit that the present case can be distinguished from the Langborger case. They submit that there is no reason for the applicant to fear that the lay assessors had a common interest opposed to his own interests.   The dispute essentially concerned the question whether the plaintiff union's member had been dismissed from her employment in the applicant's business in breach of the Employment Protection Act or whether she had herself chosen to discontinue her employment.   When examining this issue the Labour Court had to determine a question which primarily was one of evaluating evidence.   The issues did not directly involve the lay assessors.   Neither did the four organisations SAF, TCO, LO and the Federation of County Councils have any specific interest in the outcome of the case.   There was no important interpretation to be made of the legal provisions in question which was of any importance to the organisations represented by the lay assessors.   For these reasons, the Government submit that the balance of interests, inherent in the Labour Court's composition, was not upset when the Court came to decide the claim against the first applicant's company.           As to the applicant's argument that his opposing party was affiliated to LO which had representatives on the Court, whereas he did not have such representatives, the Government state that the lay assessors are not to be seen as representatives of the parties in the case but as independent judges in their own capacity.   A system where each party in every case would have its own representative on the Court would have an effect, which would be contrary to the one that is aimed at, i.e. the establishment of an impartial tribunal with an inherent balance of different interests.           The applicant submits in reply that the Court was not independent and impartial.   With reference to two allegedly incompatible judgments by the Swedish Supreme Court (högsta domstolen) (reported in NJA 1982 p. 564 and p. 853), the applicant considers that Åke Wänman and, on analogous grounds, Lennart Lundgren were disqualified from participating in his case.   For the same reasons, he strongly questions the qualifications of Torkel Unge and Olle Bergström.   Being an unaffiliated employer the applicant notes a common interest of all the lay assessors, namely the interest of achieving complete organisation on the Swedish labour market.           The Commission considers that, in accordance with the principles developed in the Langborger case, the decisive issue is whether the balance of interests in the composition of the Labour Court was upset and, if so, whether any such lack of balance could make the Court lack the requirements of impartiality and independence in the determination of the particular dispute before the Court.   This could be so either if the lay assessors had a common interest contrary to those of the applicant or if their interests, although not common, were such that they were nevertheless opposed to those of the applicant.           In this respect the Commission recalls that in the Langborger case the applicant had sought the deletion of a clause from his lease, a clause which had previously been agreed upon between organisations which had close links with the organisations which had nominated the lay assessors sitting in that applicant's case.   The dispute in that case had accordingly a clear link with the interests of the organisations.   Consequently, both sides represented by the lay assessors could be said to have a common interest opposed to the applicant's claim.           In the present case, the dispute before the Labour Court was of a different nature.   It was whether the applicant had dismissed an employee in breach of the provisions of the Employment Protection Act and on that ground was liable to pay damages.   The nature of this dispute is such that none of the organisations, the Federation of County Councils, TCO, LO or SAF, could objectively have any other interest than to see to it that the provisions in the Act were respected and correctly interpreted.   This interest cannot be contrary to that of the applicant.           The Commission notes the applicant's argument that he could fear that the lay assessors would be unfavourable to him on the ground that they had a common interest of achieving a completely organised labour market, whereas he was not an affiliated employer.           To accept the applicant's arguments would, in the Commission's opinion, be tantamount to considering that, in cases where a lay assessor has been nominated by any organisation on the labour market, the Labour Court would fail to meet the condition "independent and impartial tribunal" in all disputes where one of the parties is not affiliated to any of those organisations.   Although this issue was not addressed in the Langborger judgment, the Commission considers that it would be contrary to the considerations underlying the statement by the European Court in para. 34 (see quotation above) of the Langborger judgment to accept such a proposition.           In sum, the Commission considers that, contrary to the situation in the Langborger case, there cannot be said to have existed any common interest between the lay assessors as alleged in the present case.   The Commission cannot find that the applicant could legitimately fear that the lay assessors had interests contrary to his interests or that the balance of interests was upset to such an extent that they did not satisfy the conditions of independence and impartiality.           Consequently, the Commission finds no indication of a violation of Article 6 para. 1 (Art. 6-1) of the Convention.           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 has also alleged violations of Articles 11 (Art. 11) and 14 (Art. 14) of the Convention as well as Article 1 of Protocol No. 1 (P1-1) to the Convention.           However, the Commission finds no indication of a violation of these provisions.   It follows that in this respect the application is also 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)