CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 28 février 1996

.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. 24587/94                       by Kent WALLBERG                       against Sweden         The European Commission of Human Rights (Second Chamber) sitting in private on 28 February 1996, the following members being present:              Mrs.   G.H. THUNE, Acting President            MM.    H. DANELIUS                  G. JÖRUNDSSON                  J.-C. SOYER                  H.G. SCHERMERS                  F. MARTINEZ                  L. LOUCAIDES                  J.-C. GEUS                  M.A. NOWICKI                  I. CABRAL BARRETO                  J. MUCHA                  D. SVÁBY                  P. LORENZEN              Ms.    M.-T. SCHOEPFER, 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 6 June 1994 by Kent WALLBERG against Sweden and registered on 12 July 1994 under file No. 24587/94;         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 applicant, an engineer born in 1952 and residing at Karlsborg, is a Swedish citizen. Before the Commission he is represented by Mr. Stig Centerwall, a lawyer practising at Gothenburg.         The facts of the case, as submitted by the applicant, may be summarised as follows.         In June 1990, the applicant was employed by a shipping company, Nordic Oriental Shipmanagement AB. From 27 May 1991 he worked on its vessel M/S Front Falcon. After some incidents on board, the applicant wanted to leave the ship. Having discussed the matter with the captain, the applicant sent a letter to the company in which he stated his request. The letter, drafted by the captain, was dated 10 and 11 July 1991. On 11 July, the applicant left the ship with the captain's approval.         On 25 September 1991 the company requested that the applicant hand in his resignation on account of what had happened on board M/S Front Falcon. The applicant, who wished to keep his employment and thus refused to resign, contacted the representative of his trade union, the Engineer Officers' Union (Maskinbefälsförbundet).         After negotiations, the company and the representative concluded, on 10 October 1991, that the applicant had himself resigned by virtue of his letter to the company. They further agreed that the applicant would receive four months' salary from 25 September.         On 18 October 1991 the company sent to the applicant a notice of dismissal dated 25 September.         In early December 1991, the applicant asked the representative again to take up the question of his employment with the company, as he could not accept the agreement made between the company and the representative. He was then told that the union could not offer him any further assistance.         In February 1992, the applicant brought proceedings against the company in the District Court (Tingsrätten) of Sjuhäradsbygden. He claimed damages, maintaining that he had been dismissed without objective grounds. The Court, composed of three professional judges, held an oral hearing during which it heard the parties and several witnesses, including, at the company's request, the union representative. The representative maintained, inter alia, that the wording of the applicant's letter to the company indicated that the applicant had himself resigned.         The District Court noted that it was an undisputed fact that there were no objective grounds for the applicant's dismissal. It then stated that the question to be decided in the case was whether the applicant nevertheless was prevented from asserting his rights under the Act on Security of Employment (Lagen om anställningsskydd, 1982:80).         The District Court first found that the applicant's letter dated 10 and 11 July 1991 could not, in the circumstances, be considered as his resignation. His employment had thus come to an end by way of the company's notice of dismissal. The Court then noted that an employee was not prevented from reaching a settlement with his employer in which he waived his rights under the Act on Security of Employment. The Court, however, found that the applicant was not bound by the agreement made between the company and the union representative, as the applicant had not authorised the representative to reach such an agreement or subsequently approved it.         By judgment of 11 December 1992, the District Court thus ruled in favour of the applicant and awarded him damages in the amount of 342,503 SEK.         The company appealed to the Labour Court (Arbetsdomstolen). In accordance with Chapter 3 of the Act on Litigation in Labour Disputes (Lagen om rättegången i arbetstvister, 1974:371), the Court was composed of two legally trained and qualified members and five lay assessors. They had all been appointed by the Government for a term of office of three years. The president and the vice-president were professional judges. Two of the assessors had been nominated by employers' organisations, one by the Swedish Employers' Confederation (Svenska Arbetsgivareföreningen) and one by the Swedish Association of Local Authorities (Svenska Kommunförbundet). Two other assessors had been nominated by employees' organisations, one by the Swedish Confederation of Trade Unions (Landsorganisationen) and one by the Central Organisation of Swedish Academics (Svenska Akademikers Centralorganisation). The Engineer Officers' Union was not affiliated to either of these organisations. The fifth assessor, a deputy assistant under-secretary (kansliråd) at the Ministry of Labour, had been appointed due to her special knowledge of the labour market but did not represent employers' or employees' interests.         Also the Labour Court held an oral hearing and heard the parties and several witnesses, including the union representative. In addition to his testimony before the District Court, the representative stated that, on 10 October 1991, he had explained to the applicant the details of the agreement reached with the company. Allegedly, the applicant had on this occasion accepted the agreement and was thus bound by it.         The Labour Court addressed the same issues as the District Court. It considered, like the District Court, that the applicant had not resigned from his employment. The Labour Court, however, found that the applicant was bound by the agreement made between the company and the union representative, as the applicant, when informed on 10 October 1991 of the details, must be deemed to have authorised the representative to conclude the agreement. In reaching this conclusion, the Court considered that the representative had made a very credible impression and that there were much stronger reasons to believe his account of the events than the applicant's.         By a final judgment of 22 December 1993, the Labour Court accordingly reversed the District Court's judgment and rejected the applicant's claim for damages.   COMPLAINT         The applicant claims that the Labour Court, when it examined his case, was not an independent and impartial tribunal as required by Article 6 para. 1 of the Convention.   THE LAW         The applicant claims that he was not heard by an independent and impartial tribunal as required by Article 6 para. 1 (Art. 6-1) of the Convention which, in so far as relevant, reads as follows:         "In the determination of his civil rights and obligations       or of any criminal charge against him, everyone is entitled       to a fair and public hearing ... by an independent and       impartial tribunal established by law. ..."         Noting that both his employer and his trade union through its representative considered the applicant to be bound by the agreement reached on 10 October 1991, the applicant maintains that the four lay assessors nominated by the employers' and the employees' organisations had a common interest contrary to his own. In this respect, he further refers to the union's refusal, in December 1991, to assist him, the union representative's appearance before the courts as a witness for the employer and the employers' financial interest in the case.         In order to establish 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 pressures 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, and Holm judgment of 25 November 1993, Series A no. 279-A, p. 14, para. 30).         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 (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 the 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 applicant does not contest the independence and impartiality of the professional judges or the lay assessor who did not represent employers' or employees' interests. Furthermore, he does not call into question the personal impartiality of the other lay assessors. In the absence of any evidence to the contrary, the Commission finds no reason to doubt the personal impartiality of these lay assessors.         As regards the objective impartiality of the lay assessors nominated by the employers' and the employees' organisations, 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 not satisfy the requirements of impartiality 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 (cf. No. 12733/87, Stallarholmens Plåtslageri o Ventilation Handelsbolag and Others v. Sweden, Dec. 7.9.90, D.R. 66, p. 111).         In this respect, the Commission recalls that, in the Langborger case, the applicant had sought the deletion from his lease of a clause which had previously been agreed upon between organisations having 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 concerned the questions whether the applicant had resigned from his employment by virtue of his letter dated 10 and 11 July 1991 or whether he had authorised the union representative to conclude the agreement of 10 October 1991 with the employer. The dispute thus concerned questions of evidence. The nature of this dispute was such that none of the organisations which had nominated the lay assessors could objectively have had any other interest than to see to it that these questions were correctly determined. This interest could not be contrary to that of the applicant.         The Commission further notes that the Engineer Officers' Union, of which the applicant and the union representative were members, was not affiliated to either of the organisations which had nominated the lay assessors.         In conclusion, the Commission considers that the applicant could not legitimately fear that the lay assessors had interests contrary to his own or that the balance of interests was upset to such an extent that they did not satisfy the requirements of impartiality.         It follows that the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.         For these reasons, the Commission, unanimously,         DECLARES THE APPLICATION INADMISSIBLE.               Secretary                        Acting President       to the Second Chamber               of the Second Chamber           (M.-T. SCHOEPFER)                      (G.H. THUNE)