CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 5 avril 1995

.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. 22507/93                       by Jord- og Betonarbejdernes Fagforening,                        Henning HANSEN, Pia WASS,                        Kresten NIELSEN and Svend PEDERSEN                       against Denmark           The European Commission of Human Rights (Second Chamber) sitting in private on 5 April 1995, the following members being present:              MM.    H. DANELIUS, President                  C.A. NØRGAARD            Mrs.   G.H. THUNE            MM.    G. JÖRUNDSSON                  S. TRECHSEL                  J.-C. SOYER                  H.G. SCHERMERS                  F. MARTINEZ                  L. LOUCAIDES                  J.-C. GEUS                  M.A. NOWICKI                  I. CABRAL BARRETO                  J. MUCHA                  D. SVÁBY              Mr.    K. ROGGE, Secretary to the Chamber         Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;         Having regard to the application introduced on 13 August 1993 by Jord- og Betonarbejdernes Fagforening, Henning HANSEN, Pia WASS, Kresten NIELSEN and Svend PEDERSEN against Denmark and registered on 23 August 1993 under file No. 22507/93;         Having regard to the report provided for in Rule 47 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 first applicant is the Danish Construction Workers' Trade Union (Jord- og Betonarbejdernes Fagforening) with its headquarters in Copenhagen. Hereinafter it is called the DCWTU. The other applicants, Henning Hansen, Pia Wass, Kresten Nielsen and Svend Pedersen, in the following called A, B, C and D, are Danish citizens born in 1959, 1961, 1942 and 1926 respectively. They are construction workers and members of the DCWTU. Before the Commission all applicants are represented by Mr. Christian Harlang, a lawyer practising in Copenhagen.         It appears that in the spring of 1985 the labour market parties failed to reach agreement on the renewal of the collective agreements in force. Eventually the Danish Parliament intervened to the extent that it passed an Act on 30 March 1985 which renewed and prolonged the existing collective agreements (lov om fornyelse og forlængelse af kollektive overenskomster og aftaler m.v.). On the following day, 31 March 1985, the Act was signed by the Queen and it was published in the Legal Gazette (Lovtidende) on 1 April 1985 as Act no. 123 of 31 March 1985. According to section 16 of the Act it entered into force on 1 April 1985.         The purpose of this Act was to prolong the already existing labour market collective agreements for a period of two years with the effect that inter alia strikes and lock-outs which continued or commenced after the Act had entered into force were illegal as a consequence of the non-observance of the existing collective agreements.         Due to the above intervention by Parliament a number of strikes commenced all over the country, and other strikes, which had commenced prior to 1 April 1985, continued. The applicant A was on strike from 1 to 3 April and again on 10 April 1985, i.e. a total of 32 working hours. B and C were on strike from 1 to 3 April 1985, i.e. a total of 24 working hours each, and D was on strike on 10 April 1985, i.e. a total of 8 working hours. Due to the strikes, and following certain friendly settlement negotiations between the labour market parties, proceedings were instituted in the Labour Court (Arbejdsretten) against three representatives of the employee organisations, including the DCWTU representing its members, for breach of the collective agreements. The plaintiffs, represented by the Danish Association of Employees, requested that a penalty (bod) be imposed on those employees who had participated in strikes as from 1 April 1985.         Following a number of court sessions and after an evaluation of the evidence submitted the Labour Court found it established, in its judgment of 25 October 1985, that illegal strikes had taken place after 1 April 1985 and that members of the DCWTU, including the applicants A to D, had participated therein. As regards the time from which to calculate the penalty the Court stated as follows:         (translation)         "As regards the question as from what moment the penalty       should be imposed, the decisive element is the moment the       Act on the prolongation of the collective agreements       entered into force. According to the Act on the publication       of the Legal Gazette ... an Act enters into force on the       day after the [relevant] issue of the Legal Gazette ... is       published, unless the Act itself stipulates otherwise.            Normally it is assumed that the Act enters into            force at 0.00 hours. The Act on the prolongation            of the collective agreements expressly states            that it enters into force on 1 April 1985. There            is no basis for the assumption that it was not            Parliament's intention to let the Act enter into            force on that day at 0.00 hours. The Act has            been announced in due form and it makes no            difference that the Legal Gazette was not            published until later in the morning. The            obligation to refrain from striking            (fredspligten) accordingly took effect as from            0.00 hours on 1 April 1985 and it violated the            collective agreements not to comply with the            provisions of the Act on that day. Accordingly,            the penalty is also imposed in respect of this            day. As it was well known through the media that            the Act entered into force on that day there is            furthermore no reason to annul the penalty."         Following this judgment the applicants A to D were obliged to pay a penalty amounting to 20 DKK per hour of strike. Accordingly they were ordered to pay 640 DKK (A), 480 DKK (B and C each) and 160 DKK (D). The three defendant employee organisations in the case, including the DCWTU, were ordered to pay a total sum of 2,000 DKK in costs.   COMPLAINTS         The applicants complain that due to the fact that they have been ordered to pay a penalty for offences against the Act on the prolongation of the existing collective agreements they have been found guilty of a criminal offence within the meaning of Article 7 para. 1 of the Convention. Furthermore, they maintain that in so far as the Act was applied prior to its publication in the Legal Gazette around 10 o'clock on 1 April 1985 they have been held guilty of an act which did not constitute a criminal offence under national or international law at the time when it was committed.   PROCEEDINGS BEFORE THE COMMISSION         The application was introduced on 24 April 1991 and the application forms were returned on 9 September 1991 in accordance with Rule 44 paras. 2 and 3 of the Commission's Rules of Procedure.         On 11 September 1991 the applicants were requested, pursuant to Rule 44 para. 3 of the Rules of Procedure, to submit further information in order to complete the application. They were informed that the application would be registered upon receipt of this information.         The applicants submitted the information requested on 13 August 1993.   THE LAW         The applicants complain that they have been held guilty of a criminal offence on account of an act which did not constitute a criminal offence under national law at the time when it was committed. They refer to Article 7 para. 1 (Art. 7-1) of the Convention. However, under Article 26 (Art. 26) of the Convention, the Commission has first considered the question of the date of introduction of the present application. In this respect the Commission recalls that the applicants' first communication to the Commission was dated 24 April 1991. After some correspondence they were requested, on 11 September 1991, to provide additional information in order to complete the application. However, the applicants' following letter containing this information was not submitted until 13 August 1993.         In accordance with its established practice, the Commission considers the date of introduction of an application to be the date of the first letter indicating an intention to lodge an application and giving some indication of the nature of the complaint. However, where a substantial interval follows before an applicant submits further information as to his proposed application, the Commission examines the particular circumstances of the case in order to decide what date shall be regarded as the date of introduction and from which to calculate the running of the six month period set out in Article 26 (Art. 26) of the Convention (see No. 4429/70, Dec. 1.2.71, Collection 37 p. 109).         The Commission finds that one of the purposes of the six months rule is to ensure that cases raising issues under the Convention are dealt with within a reasonable time. Furthermore it ought also to protect the authorities and other persons concerned from being under any uncertainty for a prolonged period of time. Finally, it should provide the possibility of ascertaining the facts of the case, which otherwise could become difficult to establish, in order to ensure a fair examination of the question at issue.         There is a parallel between the aim pursued in Article 26 (Art. 26) and Article 6 para. 1 (Art. 6-1) of the Convention in that both Articles should secure a determination of a case within a reasonable time. The express obligation mentioned in Article 26 (Art. 26) of the Convention, however, only relates to the lodging of an application but the Commission has in this respect so far been generous in accepting that the date of introduction was the submission of the first letter concerning the complaint without imposing any further restrictions.         However, it would be contrary to the spirit and the aim of the six months rule set out in Article 26 (Art. 26) of the Convention if, by any initial communication, an applicant could set into motion the proceedings under Article 25 (Art. 25) of the Convention and then remain inactive for an unexplained and unlimited length of time. The Commission has constantly rejected applications where an applicant submitted an application more than six months after the date of the final decision when there were no special circumstances suspending the running of this period. The Commission finds that it would be inconsistent with the aim and purpose of the six months rule to deviate from this rule in a situation where an application has been introduced under Article 25 (Art. 25) of the Convention within six months from the final decision but thereafter has not been pursued. Delays in pursuing the case are only acceptable in so far as they are based on reasons connected with the case. Such reasons may consist of the exhaustion of remedies which an applicant has reason to believe was necessary (see Nos. 9024/80 and 9317/81, Dec. 9.7.82, D.R. 28 p. 138 (158)). In such circumstances, however, the Commission finds that it follows from the purpose and aim of Article 26 (Art. 26) of the Convention that the application must be pursued by the applicant within a period of six months after the date of the final decision obtained (cf. No. 10626/83, Dec. 7.5.85, D.R. 42 p. 205).         In the present case the Commission recalls that approximately two years passed until the applicants, on 13 August 1993, resumed the correspondence with the Commission and completed the application as requested. They have not submitted any reasons for this delay which could have suspended the running of the six months period referred to in Article 26 (Art. 26) of the Convention. Actually, they have not submitted any reasons at all.         Therefore, notwithstanding the applicants' initial submission of 24 April 1991, the Commission considers in the present case 13 August 1993 to be the date of introduction of the application and it follows that, having thus been introduced out of time, it must be rejected under Article 27 para. 3 (Art. 27-3) of the Convention.         For these reasons, the Commission, unanimously,         DECLARES THE APPLICATION INADMISSIBLE.   Secretary to the Second Chamber        President of the Second Chamber           (K. ROGGE)                            (H. DANELIUS)