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. 24601/94                       by Bruce N. SMEETON-WILKINSON                       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 Bruce N. SMEETON-WILKINSON against Sweden and registered on 12 July 1994 under file No. 24601/94;         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, a forwarder born in 1938 and residing at Märsta, is a British citizen. Before the Commission he is represented by Mr. Svante af Winklerfelt, a lawyer practising in Stockholm.         The facts of the case, as submitted by the applicant, may be summarised as follows.         In 1980, the applicant was employed by a forwarding company, AB Olson & Wright. Due to decreasing profits, the company, a member of the Commercial Employers' Association (Handelns Arbetsgivareorganisation), commenced negotiations with the local branch of the trade union, the Union of Commercial Salaried Employees (Handelstjänstemannaförbundet), with a view to reducing the work-force. In September 1991, it was agreed that three posts at the office where the applicant worked should be abolished. The company then decided which three employees to dismiss. On 30 September 1991 the applicant, who was not a member of the trade union, was dismissed with six months' notice. He was simultaneously informed that the reason for his dismissal was lack of work and that he had no preferential right to re-employment.         Subsequently, the applicant brought proceedings against the company in the District Court (Tingsrätten) of Stockholm. He sought to have his dismissal declared invalid and claimed damages. He maintained, first, that the company had breached Section 7 of the Act on Security of Employment (Lagen om anställningsskydd, 1982:80) as he had been dismissed without objective grounds and the company had not endeavoured to find alternative work for him and, second, that the company had not observed the rules on priority under Section 22 of that Act when deciding which persons to dismiss.         The District 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 chairman of the local trade union, who had negotiated the dismissals with the company.         The District Court found that the applicant had been dismissed due to lack of work and not, as argued by him, for personal reasons. It further rejected the applicant's assertion that the company had breached its obligation to find alternative work. The dismissal was, therefore, not invalidated. The Court, however, considered that the company had failed to respect the priority rules under the above- mentioned Section 22. It thus accepted the applicant's second-hand claim and, by judgment of 30 November 1992, awarded him damages.         The applicant and the company appealed to the Labour Court (Arbetsdomstolen). The applicant requested the Court to declare his dismissal invalid.         In accordance with Chapter 3 of the Act on Litigation in Labour Disputes (Lagen om rättegången i arbetstvister, 1974:371), the Labour 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. They could not be removed from their posts during their term of office and were, pursuant to Chapter 11, Section 2 of the Instrument of Government (Regeringsformen), prohibited from taking instructions concerning their judicial duties from public authorities, including the Government and the Parliament.         The president of the Labour Court was a head of division at a court of appeal (hovrättslagman) and the vice-president was an assistant under-secretary (departementsråd) at the Ministry of Justice. Two of the assessors had been nominated by employers' organisations, one by the Swedish Employers' Confederation (Svenska Arbetsgivare- föreningen) 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 Salaried Employees (Tjänstemännens Centralorganisation). The fifth assessor, a head of department at the Centre for Labour Market Studies (Arbetslivscentrum), a Government research institute, had been appointed due to her special knowledge of the labour market but did not represent employers' or employees' interests.         On 2 November 1993 the Labour Court held an oral hearing, during which it heard the parties and several witnesses, including the trade union chairman. At the hearing, the applicant, referring to Article 6 of the Convention, claimed that the Court should be composed exclusively of legally trained and qualified judges. He further challenged the impartiality of the lay assessors who had been nominated by the labour market organisations.         During the hearing, the Labour Court rejected the applicant's complaints concerning its composition. The Court stated that his request that only professional judges should be allowed to participate could not legally be granted. It further rejected the applicant's claim that the lay assessors were not impartial.         By a final judgment of 12 January 1994, the Labour Court, agreeing with the District Court, rejected the applicant's request to have his dismissal invalidated but awarded him damages due to the company's failure to comply with the rules on priority under the above- mentioned Section 22.   COMPLAINTS   1.     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.   2.     The applicant also alleges violations of Articles 11 and 14 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. ..."         With regard to the question of independence, the applicant refers to the fact that the members of the Labour Court are appointed by the Government for a limited term of office and are, thus, removable. He further contends that the members not nominated by organisations representing employers' and employees' interests are appointed from the public sector, including ministries and parliamentary committees, and, therefore, in reality represent the Government or the Parliament. As concerns the impartiality issue, the applicant refers to the participation of four lay assessors nominated by the labour market organisations. In this respect, he recalls that the company was a member of an employers' organisation while he did not belong to a trade union. He also points out that the local trade union chairman appeared before the courts as a witness for the company.         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."         The Commission recalls that the members of the Labour Court, like the members of the Housing and Tenancy Court in the Langborger case, had been appointed by the Government for a term of office of three years. They could not be removed from their posts during this period and were, under the Instrument of Government, protected from outside pressures. In these circumstances, the Commission finds no reason to doubt the independence of the Labour Court (cf. Langborger v. Sweden, Comm. Report 8.10.87, paras. 125-132, Eur. Court H.R., Series A no. 155, pp. 30-31).         As regards the question of impartiality, the applicant contests the participation of the lay assessors nominated by the employers' and the employees' organisations. He does not, however, call into question their personal impartiality. In the absence of any evidence to the contrary, the Commission finds no reason to doubt the personal impartiality of these lay assessors.         With respect to 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 question whether the applicant's employer, in dismissing the applicant, had breached the provisions of the Act on Security of Employment and on that ground was liable to pay damages. 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 provisions were correctly interpreted and applied. This interest could not be contrary to that of the applicant.         The Commission notes the applicant's argument that he was not a member of a trade union while his employer was a member of an employers' organisation. To accept that this gives rise to doubts as to the Labour Court's impartiality would, in the Commission's opinion, be tantamount to considering that, in cases where lay assessors have been nominated by any organisation on the labour market, the 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. 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 (cf. No. 12962/87, Yom-Tov v. Sweden, Dec. 7.9.90, unpublished).         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 this part of the application is manifestly ill- founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.     The applicant also alleges violations of Articles 11 and 14 (Art. 11, 14) of the Convention. Referring to the composition of the Labour Court and the fact that the trade union chairman testified in favour of the company, the applicant contends that he might have been treated by the Court in a different manner from that in which a person belonging to a trade union would be treated. Thus, his position as a non-union member, including his right to negative freedom of association, has not been respected.         The applicant's allegations under Articles 11 and 14 (Art. 11, 14) are largely based on the same grounds as those examined above under Article 6 para. 1 (Art. 6-1) of the Convention. The Commission finds no indication of a violation   of these provisions.         It follows that this part of 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, unanimously,         DECLARES THE APPLICATION INADMISSIBLE.               Secretary                        Acting President       to the Second Chamber               of the Second Chamber           (M.-T. SCHOEPFER)                      (G.H. THUNE)