CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 15 mai 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. 27411/95                       by L.G.                       against Sweden         The European Commission of Human Rights (Second Chamber) sitting in private on 15 May 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 3 March 1994 by L.G. against Sweden and registered on 26 May 1995 under file No. 27411/95;         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 is a Swedish citizen, born in 1953. He resides at Eringsboda.         The facts of the case, as submitted by the applicant, may be summarised as follows.         On 20 July 1989 the applicant instituted proceedings against a company before the District Court (Tingsrätten) of Ronneby. The applicant claimed that he had been employed by the company for a period of four weeks from 10 April 1989. An employment agreement had allegedly been concluded on 4 or 5 April between a representative of the company and E.P., an official of the local Employment Office (Arbets- förmedlingen), acting as the applicant's representative. However, on 10 April, some hours after the applicant had appeared at the place of work, the company's representative had told him to leave. The applicant maintained that he had been dismissed without objective grounds and that the company had breached certain provisions of the Act on Security of Employment (Lagen om anställningsskydd, 1982:80). He therefore claimed that the company was liable to pay damages.         The District Court held a preparatory hearing in the case on 25 February 1991. It was decided that the main hearing should be held in September 1991. However, despite repeated inquiries by the applicant in 1991 and 1992, there was no hearing during these years.         In June 1992 the District Court asked the applicant if the case could be decided without a hearing. The applicant answered in the negative.         The applicant was later summoned to a hearing scheduled for 23 March 1993. The hearing was, however, postponed as the Court's president had fallen ill.         Eventually, the main hearing took place on 7 May 1993. At the request of the company, two of its employees, including the above- mentioned representative, and a second official of the Employment Office, gave testimony before the Court. At the beginning of the hearing, the parties were, however, informed by the Court that E.P., who had been called as a witness by both parties, was unable to appear as he was, at the time, on vacation in Austria. Instead, he gave evidence by telephone. At the end of the hearing, the applicant objected to this procedure. He requested that the hearing should continue at a later date and that E.P. should be summoned to appear in person. The Court, however, rejected this request.         By judgment of 26 May 1993, the District Court found against the applicant. The Court considered that he had failed to show that an employment agreement had been concluded between him and the company.         The applicant appealed to the Labour Court (Arbetsdomstolen). He requested, inter alia, that the case be referred back to the District Court for a re-hearing during which E.P. should give evidence in person. He further adduced, as new evidence, a tape recording of his conversations with E.P. on 4 April 1989 and the company's representative on 5 April 1989 as well as notes from the file of the Employment Office.         On 28 January 1994 the Labour Court decided that the District Court's hearing of E.P.'s testimony by telephone did not constitute a procedural error and that the case should thus not be referred back to the District Court.         By decision of 8 June 1994, the Labour Court further refused to admit the new evidence submitted by the applicant, as he had not shown a valid excuse for not having brought the evidence before the District Court.         The Labour Court summoned the parties and E.P. to a hearing on 6 December 1994. This hearing was, however, cancelled as E.P. was unable to appear.         On 28 February 1995 the Labour Court held its hearing in the case. E.P. gave evidence in person. The testimonies of the other witnesses who had given evidence in the District Court were played back during the hearing.         By a final judgment of 22 March 1995, the Labour Court upheld the District Court's judgment.         The Labour Court was composed in accordance with Chapter 3, Section 6, subsection 2 of the Act on Litigation in Labour Disputes (Lagen om rättegången i arbetstvister, 1974:371), i.e. with one professional judge and two lay assessors. One assessor had been nominated by an employers' organisation and one by an employees' organisation.   COMPLAINTS         Invoking Article 6 of the Convention, the applicant makes the following complaints:   -      The Labour Court's judgment was not in line with relevant domestic case-law.   -      The Labour Court refused to examine the tape recordings the applicant had adduced as evidence. Furthermore, E.P. was allowed to give evidence by telephone in the District Court, although the applicant had requested that he should appear in person. Allegedly, E.P.'s testimony in the Labour Court did not remedy the deficient taking of evidence in the District Court, since the Labour Court, as composed, was not an impartial tribunal.   -      Both the District Court and the Labour Court failed to examine whether the two Employment Office officials giving evidence in the case had interests which could affect the credibility of their testimony.   -      The dispute in question was not determined within a reasonable time. Allegedly, the period to be taken into account began on 20 July 1989 and ended on 22 March 1995. The proceedings thus lasted five years and eight months.   THE LAW   1.     The applicant complains that the Labour Court's judgment was not in line with relevant domestic case-law. The applicant invokes Article 6 (Art. 6) of the Convention which, in so far as relevant, reads as follows:         "1. In the determination of his civil rights and       obligations ..., everyone is entitled to a fair ... hearing       within a reasonable time by an independent and impartial       tribunal ..."         The Commission, however, recalls that, in accordance with Article 19 (Art. 19) of the Convention, its only task is to ensure the observance of the obligations undertaken by the Parties to the Convention. In particular, it is not competent to deal with a complaint concerning errors of law and fact allegedly committed by domestic courts, except where it considers that such errors might have involved a possible violation of any of the rights and freedoms set out in the Convention or its Protocols. The Commission refers, on this point, to the established case-law of the Commission and the European Court of Human Rights (cf., e.g., No. 21283/93, Dec. 5.4.94, D.R. 77-A pp. 81, 88, and Eur. Court H.R., Klaas v. Germany judgment of 22 September 1993, Series A no. 269, p. 17, para. 29).         The Commission finds that an examination of the applicant's submissions in respect of the present complaint do not disclose any appearance of a violation of the Article invoked.         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 claims that the Labour Court should have examined the tape recordings adduced as evidence by him, as they would refute and supplement the testimony given by E.P. He contends that the recordings could not be brought before the District Court, as E.P. did not appear in person at the District Court hearing. The applicant further complains of the fact that E.P. was allowed to give evidence by telephone in the District Court despite the applicant's request that he should appear in person. The applicant was not informed in advance of this procedure. Moreover, as E.P. did not have relevant documents at hand when he gave testimony in the District Court, the applicant was allegedly unable to put questions in the way he had prepared. The applicant further asserts that E.P.'s appearance in person in the Labour Court did not remedy the deficient taking of evidence in the District Court, since the Labour Court, as composed, was not an impartial tribunal. Also in respect of these complaints, the applicant invokes Article 6 (Art. 6) of the Convention.         The Commission first points out that the Convention does not explicitly secure to persons suing for damages the right to have witnesses examined. The right is secured, under Article 6 para. 3 (d) (Art. 6-3-d), only to persons charged with criminal offences. Furthermore, the taking of evidence is governed by the rules of domestic law. The admissibility and assessment of evidence are in principle matters for the national courts. The Commission's task under the Convention is to ascertain whether the proceedings, as a whole, were fair (cf. Eur. Court H.R., Bricmont judgment of 7 July 1989, Series A no. 158, p. 31, para. 89, and Saïdi v. France judgment of 20 September 1993, Series A no. 261-C, p. 56, para. 43).         In the present case, the Commission recalls that the Labour Court held a hearing in the case, during which E.P. was present and gave evidence. There is no indication that the applicant was unable to examine this witness in full during the Labour Court hearing. Furthermore, with respect to the new evidence introduced by the applicant in the Labour Court, the Commission recalls that it was not admitted as the applicant had failed to show a valid excuse for not having brought the evidence before the District Court. The Commission, considering that only exceptional circumstances would prompt it to conclude that a decision not to admit evidence was incompatible with Article 6 (Art. 6) of the Convention, finds that no such circumstances existed in the present case. In particular, the Commission considers that the Labour Court gave justifiable reasons for its decision and that there is no appearance of arbitrariness on the part of the Court.         Thus, the Commission cannot find that the court proceedings, taken as a whole, were unfair.         The applicant claims, however, that the Labour Court was not an impartial tribunal. He refers to the participation of lay assessors representing employers' and employees' interests and points out that he is not a member of a trade union. He invokes the judgment of the European Court of Human Rights in the Langborger case (Eur. Court H.R., Langborger judgment of 22 June 1989, Series A no. 155).         The Commission notes that the applicant has not called into question the independence of the Labour Court. In order to establish whether it could be considered impartial, 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. the above-mentioned Langborger judgment, p. 16, para. 32, and Eur. Court H.R., Holm judgment of 25 November 1993, Series A no. 279-A, p. 14, para. 30).         In the Langborger case, 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 challenge the personal impartiality of the lay assessors. In the absence of any evidence to the contrary, the Commission finds no reason to doubt their personal impartiality.         With respect to their objective impartiality, 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 could appear to have a common interest contrary to those of the applicant or if their interests, although not common, were such that they could nevertheless be considered to be 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 an employment contract had been concluded between the applicant and the company in question and, if so, whether the company had breached certain provisions of the Act on Security of Employment. The nature of this dispute was such that the lay assessors and the organisations which had nominated them could not 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.         In the light of the foregoing, 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 also manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   3.     Further under Article 6 (Art. 6) of the Convention, the applicant contends that both the District Court and the Labour Court failed to examine whether the two Employment Office officials giving evidence in the case had interests which could affect the credibility of their testimony. The applicant argues that a finding by the courts in his favour would have shown that the officials' handling of the matter had been deficient.         Recalling that the assessment of evidence is in principle a matter for the national courts, the Commission finds that an examination of this complaint as it has been submitted does not disclose any appearance of a violation of the Article invoked.         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.   4.     The applicant finally contends that the dispute in question was not determined within a reasonable time as required by Article 6 (Art. 6) of the Convention. The period to be taken into account began on 20 July 1989 and ended on 22 March 1995. The proceedings thus lasted five years and eight months.         The Commission finds that it cannot, on the basis of the file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 48 para. 2 (b) of the Rules of Procedure, to give notice of this complaint to the respondent Government and to invite the Government to submit written observations on the admissibility and merits thereof.         For these reasons, the Commission, unanimously,         DECIDES TO ADJOURN the examination of the applicant's complaint       that his case was not determined within a reasonable time;         DECLARES INADMISSIBLE the remainder of the application.               Secretary                        Acting President       to the Second Chamber               of the Second Chamber           (M.-T. SCHOEPFER)                      (G.H. THUNE)