AS TO THE ADMISSIBILITY OF Application No. 12090/86 by Monica Lilja against Sweden The European Commission of Human Rights sitting in private on 4 July 1989, the following members being present: MM. C.A. NØRGAARD, President J.A. FROWEIN S. TRECHSEL F. ERMACORA E. BUSUTTIL A. WEITZEL H.G. SCHERMERS H. DANELIUS G. BATLINER H. VANDENBERGHE Sir Basil HALL MM. F. MARTINEZ C.L. ROZAKIS Mrs. J. LIDDY Mr. L. LOUCAIDES 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 14 October 1985 by Monica Lilja against Sweden and registered on 7 April 1986 under file No. 12090/86; Having regard to the report provided for in Rule 40 of the Rules of Procedure of the Commission; Having regard to the observations submitted by the respondent Government on 19 May 1988 and the observations submitted by the applicant on 6 July 1988 as well as the submissions of the parties at the hearing held on 4 July 1989; Having deliberated; Decides as follows: THE FACTS The facts of the case, as submitted by the parties, may be summarised as follows. The applicant is a Swedish citizen, born in 1949. She is a nurse and resides at Säffle, Sweden. She is represented by Mr. Göran Ravnsborg, University of Lund, Sweden. A. The particular facts of the case The applicant has been a member of the Swedish Municipal Workers Union (svenska kommunalarbetareförbundet) since March 1983. Through this membership the applicant falls under the umbrella of the Swedish Trade Union Confederation (Landsorganisationen). On 23 November 1984 the representative body of the applicant's local union branch No. 55 decided to terminate the arrangement under which members of the branch wishing to join the Social Democratic Party (SAP) should register themselves as members of the party, and to return to the old form of collective affiliation to the SAP. The decision by the representative body was followed up by an agreement on collective party membership between the branch No. 55 and the SAP. On 28 November 1984 the local trade union branch informed the applicant of the decision taken and that she would be considered as collectively admitted to the SAP as from 1 January 1985 onwards. The applicant was informed however that if she did not want to be a party member she could exclude membership by notice in writing to the local trade union branch. Since the applicant was of the opinion that neither the trade union branch nor the SAP was in any respect legally qualified to act on her behalf on matters concerning membership of a political party, she did not submit any written reservation to the union. In consequence of this the applicant submits that she was treated as being a member of the SAP from 1 January 1985 and her trade union branch started paying an alleged party membership fee in her name and on her behalf. The SAP accepted the payment as a membership fee paid on the applicant's account and registered her as a party member. The applicant who is voluntarily and according to her own option an active member of another political party found the situation created by her local trade union branch and the SAP embarrassing and a violation of her right to freedom of thought and conscience as well as a violation of her right to negative freedom of association. She found that the only acceptable remedy against these violations of her human rights was to obtain from the Government an official and authoritative statement against the activities of the trade union and the SAP. On 18 July 1985 she accordingly requested the Government, with reference to Articles 9 and 11 in conjunction with Articles 1, 13 and 17 of the Convention, to declare the decision of the local trade union branch concerning the collective affiliation to the SAP to be null and void. She also requested the Government to declare that she was not a member of the SAP. Furthermore, she requested the Government to forbid the SAP to consider her as a party member and finally she requested compensation representing the amounts that had allegedly been paid to the party as membership fees. By decision of 19 September 1985 the Government refused to examine the complaints referring to Chapter 11 Section 3 of the Instrument of Government (regeringsformen) in which it is stated that a legal dispute between individuals is to be settled by a court. Furthermore the Government stated that no legal rules existed which provided that such disputes should be examined by the Government. The applicant did not, however, bring any complaints before the Swedish courts. In November 1985 the applicant's case became the subject of a debate in the Swedish Parliament. One of its members had put a question to the Minister of Justice in which she asked what legal grounds the applicant could invoke if she wanted to bring the question of her affiliation to the SAP before a Swedish court. The Minister answered, referring to a fundamental principle in the Swedish Constitution, that political bodies should not interfere with the application of the law by the courts in individual cases and added that he, as a member of the Government, should not express himself upon the question of how a legal dispute beween private persons or associations should be decided. Nor should he explain in what way a private person should present his case before a court. Such a statement, the Minister said, would clearly be in contravention of the Constitution. For that reason the member who had put the question did not receive an answer on the substance of the matter. In September 1987 the SAP decided to amend its charter. Pursuant to this amendment membership of the SAP can be obtained only by personal application. This amendment will apply as of the 31 December 1990 at the latest. B. Relevant domestic law and practice According to Swedish law a trade union as well as a political party is an association (förening) under private law. The law makes a distinction between incorporated or profit-making associations (ekonomiska föreningar) on the one hand and unincorporated or non-profit-making associations (ideella föreningar) on the other. An association is regarded as an incorporated association if the aim of the association is to support its members' financial interests through financial activities or otherwise. All other associations are regarded as unincorporated associations. A political party is regarded as an unincorporated association. Examples of other unincorporated associations are sport clubs, private religious associations and trade unions. Incorporated associations are governed by a special Act. There is no corresponding law with regard to unincorporated associations. Thus, there is no law regulating how such an association should be constituted, under what conditions membership is obtained or members can be excluded, nor regarding the decision-making procedure etc. Such associations must nevertheless observe the provisions laid down in the laws which apply generally, e.g. the Swedish Accounting Act of 1976 (bokföringslagen). Conclusions may also be drawn by analogy from an interpretation of the provisions in the Act regarding incorporated associations. An important norm for the activities of an unincorporated association is the charter of the association in question. In Swedish case-law the existence of a charter regulating i.a. the constitution and the activities of an association is required, if the association in question shall be recognised as a legal person with a legal capacity (rättskapacitet) of its own. By legal capacity is understood the ability to acquire and maintain legal rights and obligations. The charter may be regarded as an agreement into which those persons who are members of the association have entered. A charter may be amended. In general there are rules on amendments in the charter. In order to become a member of an association a person normally has to apply for membership. The association in question then takes a decision on the application. Membership can also be obtained at the time of the constitution of the association. A person's membership of an association ceases to exist if the person in question is expelled or if he or she chooses to cancel the membership. The conditions for membership of an association have inter alia been considered by the Supreme Court (Högsta domstolen) in a case (NJA 1958 p. 438) where the Court examined whether two persons, both members of a certain unincorporated association, had become members of another association simply by an amendment of the charter of the association of which they were members. The Supreme Court stated i.a. that for somebody to be a member of an association, whether profit-making or non-profit-making, it should be required that the person in question has expressed his wish to become a member but that such a wish could be expressed by tacit agreement (konkludent handlande). Having said this, the Court stated in regard to the concrete case that the wording of the charter of the association in question before the amendment was introduced did not permit the conclusion that a person who had joined the association had accepted in advance to become a member of the other association. For that reason the two complaining members were not regarded as members of the association to which their own association wanted to have them affiliated. Another case (NJA 1987 p. 394) concerned the question whether the decision-making body of a trade union was authorised to conclude an insurance on behalf of all its members without their consent. The Supreme Court concluded from general legal principles that any member of an unincorporated association is entitled to have examined whether a decision taken by the supreme decision-making body of the association violates the charter of the association in which case it should be declared null and void. The question of collective affiliation has been considered on several occasions by the Swedish Parliament and several motions have been submitted for the purpose of having such affiliation prohibited by law. One such motion (1983/84:335) was considered by the Swedish Law Council (Lagrådet) which made the following statement in its opinion of 26 February 1985: (translation) "As regards the question whether the proposed law may be considered to satisfy the purpose behind the proposal, the Law Council will first briefly examine how membership of a political party may come into being as a result of a decision on collective affiliation. From the case NJA 1958 p. 438 it appears that in order for a person to become a member of an unincorporated association - such as political associations - a declaration of intention by that person is required. Such an intention could, however, be expressed by a so-called tacit agreement. Already on this basis one could consider that valid membership may be established through collective affiliation. It even appears possible that the trade union charter may contain a provision according to which a member of the union also becomes a member of a particular political party or that the union has the right to decide in such matters, although the validity of such a provision, having regard to the above-mentioned case, appears to be somewhat unclear (cf. Nial in Svensk Juristtidning 1960 p. 502). The importance it may have that collective affiliation in this particular field has taken place for a very long period of time should also be taken into consideration." In an article published in 1985 in "Essays in honour of Justice Henrik Hessler" and entitled "Kollektivanslutning till hemförsäkring och till politiskt parti" ("Collective affiliation to home insurance and to a political party") Professor Anna Christensen, while referring to the 1958 Supreme Court judgment and to the Law Council's statement, has advocated the view that membership of a political party requires the consent of each member and that, therefore, neither a trade union's decision of collective affiliation nor the individual member's failure to object to his or her affiliation is sufficient to create membership of the SAP. Freedom of association is one of the fundamental freedoms under the Swedish Constitution. This applies to the positive as well as the negative part of this freedom. By Chapter 2, Section 1 para. 5 of the Instrument of Government every citizen is guaranteed freedom of association in relation to the "community" (the Government and public authorities). This freedom is explained as the freedom to unite with others for public or private purposes (positive freedom of association). According to Chapter 2, Section 2 protection is provided for every citizen against any compulsion to belong to a political association, a religious community or any other association for political, religious or cultural opinions (negative freedom of association). These provisions read as follows: "Section 1. Every citizen shall in relation to the community be guaranteed ... 5. the freedom of association; the freedom to unite with others for public or private purposes, ... Section 2. Every citizen shall in relation to the community be protected againt any compulsion to make known his opinion in any political, religious, cultural or other such matter. In relation to the community he shall furthermore be protected against any compulsion to participate in any meeting for the purpose of the formation of opinions or in any demonstration or other expression of opinions or to belong to a political association, a religious community or any other association for such opinions as referred to in the first sentence." The positive freedom of association may be restricted, but only by law. Restrictions are allowed only with regard to such associations the activities of which are of a military or similar nature or which involve the persecution of a national group, of a particular race, of a particular skin colour, or of a particular ethnic origin. This is laid down in Chapter 2, Sections 12 and 14 of the Instrument of Government. The same Instrument also prescribes other conditions for restrictions on the freedom of association. However, no restrictions are allowed with regard to the negative freedom of association. This freedom applies equally to Swedish and non-Swedish citizens. The positive freedom of association applies in a corresponding way, provided no restrictions are laid down in any other law. The freedom of association gives protection in relation to the "community", i.e. the Government and the public authorities. It does not apply in relation to individuals or to private legal bodies or other private associations. The Contracts Act of 1915 (avtalslagen) contains a special provision, Section 36, according to which a court may rule that a provision in a contract or agreement, which is deemed unfair or unreasonable, shall be disregarded or be applied in a reasonable way. This provision, which has been applied to the charter of an association, reads as follows: (translation) "A condition in a contract may be modified or set aside if the condition is unreasonable having regard to the contents of the contract, the circumstances when it was concluded, the circumstances which have occurred subsequently or any other circumstances." According to Chapter 13, Section 2 of the Swedish Code of Judicial Procedure (rättegångsbalken) a court may give a declaratory judgment as to whether or not a certain legal relationship exists between two parties. This provision reads as follows: (translation) "An action to establish whether a specific legal relationship exists or does not exist is admissible if there is an uncertainty as to the legal relationship and this uncertainty is to the detriment of the plaintiff. If the determination of a case is dependent on whether a specific legal relationship, which is in dispute between the parties, exists or does not exist, an action for the establishment thereof is also admissible." COMPLAINTS The applicant complains that the decision taken by her local trade union branch on collective affiliation to the SAP, the agreement between these two bodies concerning this matter as well as the possibility offered to exclude herself from membership of the SAP, constitute a violation of Articles 9, 10, 11, 14 and 17 of the Convention. She also complains that there is in Sweden no remedy which she could use since the Swedish courts and administrative authorities ignore the provisions of the Convention which excludes an appeal to the Swedish courts as an effective domestic remedy. This also implies that the applicant's rights secured to her by Articles 6 and 13 of the Convention have been violated. PROCEEDINGS BEFORE THE COMMISSION The application was introduced on 14 October 1985 and registered on 7 April 1986. On 2 March 1988 the Commission decided to bring the application to the notice of the respondent Government and to invite them to submit, by 6 May 1988, written observations on the admissibility and merits of the application. After an extension of the time-limit the Government submitted their observations on the admissibility of the application on 19 May 1988 and abstained from expressing themselves on the merits at this stage. The applicant submitted her observations on the admissibility of the application on 6 July 1988 and, like the Government, abstained from expressing herself further on the merits at this stage. On 8 December 1988 the Commission decided to invite the parties to appear before it at a hearing on the admissibility and merits of the application. Legal aid under the Addendum to the Commission's Rules of Procedure was granted to the applicant on 20 January 1988. At the hearing, which was held on 4 July 1988, the parties were represented as follows: The Government Mr. Hans Corell Ministry of Foreign Affairs Mrs. Annika Lundius Ministry of Justice Mr. Carl Henrik Ehrenkrona Ministry of Foreign Affairs The applicant Mr. Göran Ravnsborg Counsel for the applicant THE LAW 1. The applicant has complained that the decision taken by her local trade union branch on collective affiliation of the branch's members to the SAP and the agreement between these two bodies concerning this matter constitute, separately as well as together, a violation of Articles 9 and 11 (Art. 9, 11) of the Convention, each Article in conjunction with Article 17 (Art. 9+17, 11+17) of the Convention. Furthermore the applicant complains that the possibility offered by her trade union branch to exclude herself from membership of the SAP is unacceptable since this inevitably implies a political statement involving a violation of her right to negative freedom of expression as set out in Article 10 (Art. 10) of the Convention. In regard to the above complaints the applicant submits that there is in Sweden no remedy which she could use. Chapter 2 of the Swedish Instrument of Government protects the citizen only to a certain extent against violations of his or her right to freedom of thought and conscience, etc., since the protection concerns only violations by the State or the Government and not by private subjects such as trade unions or political parties. The Swedish courts and administrative authorities ignore the provisions of the Convention and due to this fact and the adoption of the so-called transformation principle, which excludes an appeal to the Swedish courts as an effective domestic remedy, the only Swedish authority, to which the applicant could turn, was the Government which must respect the guarantees and provisions of the Convention. This, however, they have not done. The applicant also maintains that the efforts made in Sweden to harmonise the domestic law with the relevant guarantees of the Convention have not been successful. This is why the applicant could not find any domestic legal support for her claims presented to the Swedish Government. For that reason any such claims to the Swedish courts would be in vain. All domestic remedies have accordingly been exhausted in accordance with Article 26 (Art. 26) of the Convention. This also implies that the applicant's rights secured to her by Articles 6 and 13 (Art. 6, 13) of the Convention have been violated. Finally the applicant complains of a violation of Article 14 in conjunction with Articles 9, 10, 11 and 17 (Art. 14+9+10+11+17) of the Convention since only trade union members of the Swedish Trade Union Confederation risk collective affiliation to a particular political party against their will. The Commission recalls that the Convention in general does not prescribe any particular manner by which the Contracting States should ensure within their internal law the effective implementation of the provisions of the Convention (cf. Eur. Court H.R., Swedish Engine Drivers' Union judgment of 6 February 1976, Series A No. 20, p. 18 para. 50). Furthermore the Court has stated that "by substituting the words 'shall secure' for the words 'undertake to secure' in the text of Article 1 (Art. 1), the drafters of the Convention also intended to make it clear that the rights and freedoms set out in Section I would be directly secured to anyone within the jurisdiction of the Contracting States. That intention finds a particularly faithful reflection in those instances where the Convention has been incorporated into domestic law" (Eur. Court H.R., Ireland v. the United Kingdom judgment of 18 January 1978, Series A No. 25, p. 91 para. 239). It follows that Sweden is not obliged to transform the text of the Convention into Swedish law. However, the fact that Sweden has not incorporated the Convention into Swedish law does not mean that remedies available under that law may not be effective remedies for alleged violations of the Convention. The Commission recalls in this respect that according to Article 26 (Art. 26) of the Convention, it may only deal with a matter after all domestic remedies have been exhausted according to the generally recognised rules of international law. Accordingly the Commission will first examine whether, in relation to the complaints submitted to the Commission, the applicant has exhausted the remedies available to her under domestic law. It is not in dispute between the parties that the applicant could in principle have brought her complaints before the domestic courts of law. However, the applicant maintains, as indicated above, that such proceedings would be without any prospects of success. She maintains that although the whole system of collective affiliation may be considered "fragile", any person who would want to attack this system could not find any arguable claims based on a legal right which could be said to be violated by the system. Therefore the remedies available would not be effective. In this context the Commission recalls that it has consistently held that the rule of exhaustion of domestic remedies requires the use of those remedies only which are effective, that is to say capable of providing redress for the complaints submitted (cf. for example Nos. 8805/79 and 8806/79, Dec. 7.5.81, D.R. 24 p. 144 with further references). Furthermore it is incumbent on the respondent Government to satisfy the Commission that the remedy was available and effective at the relevant time (cf. Eur. Court H.R., Hauschildt judgment of 24 May 1989, Series A no. 154 para. 41). The Government have submitted that the Swedish Code of Judicial Procedure as well as Swedish case-law show that Swedish courts have the competence to determine the validity of decisions taken by associations in proceedings regarding a declaratory judgment. This follows from Chapter 13, Section 2 of the Code of Judicial Procedure according to which a party can bring an action against another party for the purpose of having the court's judgment as to the question whether there exists a certain legal relationship between the parties concerned. Furthermore, the Government submit, this provision was applied in the 1958 case (NJA 1958 p. 438) where the Supreme Court stated that in order to constitute a valid affiliation to an association it is required that the person concerned has expressed his wish to be affiliated. Accordingly where there is a question of affiliating a person to a political party there would be good reason to believe that a Swedish court would have special regard to this precedent and would pay special attention to the principles expressed by the Supreme Court. The Government have added that another remedy also exists, that is an action before a Swedish court against the applicant's trade union where she could invoke that the collective affiliation would constitute a violation of the trade union charter as exemplified by the 1987 case (NJA 1987 p. 394). The Commission notes that the Government have not been able to indicate any Swedish case-law which directly deals with the question of collective affiliation to political parties. However, in the case NJA 1958 p. 438, the Swedish Supreme Court had to determine whether the collective affiliation of the members of one association to another association was permissible, and in its judgment the Supreme Court expressed the general principle that a declaration of intention, whether express or implicit, is a necessary requirement for a person becoming a member of an association. From the Law Council's statement of 26 February 1985 it appears that this principle should be considered to apply also to affiliation to political parties. As stated above, this view also has at least some support in Swedish legal doctrine. In these circumstances, the Commission considers that an action before the Swedish courts in which the applicant might have asked for a declaration that she was not a member of the SAP could have been based on reasonable legal arguments under Swedish law and can therefore not be considered to have been without any prospects of success. The examination of the case does not disclose any special circumstances which could absolve the applicant from exhausting this remedy. It follows that her application, insofar as it concerns Articles 9, 10, 11, 14 and 17 (Art. 9, 10, 11, 14, 17) of the Convention, must be rejected under Article 27 para. 3 (Art. 27-3) of the Convention for non-compliance with the requirement of exhaustion of domestic remedies. 2. As already indicated above, the applicant has also complained of a violation of Articles 6 and 13 (Art. 6, 13) of the Convention in that she would not have in Sweden an effective remedy at her disposal under which her substantive complaints could be examined. However, it follows from the Commission's above conclusion that this part of 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 DECLARES THE APPLICATION INADMISSIBLE. Secretary to the Commission President of the Commission (H. C. KRUGER) (C. A. NØRGAARD)