CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 10 octobre 1994

.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. 19576/92                       by Teuvo KOMULAINEN                       against Finland         The European Commission of Human Rights sitting in private on 10 October 1994, the following members being present:              MM.    C.A. NØRGAARD, President                  S. TRECHSEL                  A. WEITZEL                  F. ERMACORA                  E. BUSUTTIL                  G. JÖRUNDSSON                  A.S. GÖZÜBÜYÜK                  J.-C. SOYER                  H.G. SCHERMERS                  H. DANELIUS            Mrs.   G.H. THUNE            MM.    F. MARTINEZ                  C.L. ROZAKIS            Mrs.   J. LIDDY            MM.    L. LOUCAIDES                  J.-C. GEUS                  M.P. PELLONPÄÄ                  G.B. REFFI                  M.A. NOWICKI                  I. CABRAL BARRETO                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  J. MUCHA                  E. KONSTANTINOV                  D. SVÁBY                  G. RESS              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 16 January 1992 by Teuvo KOMULAINEN against Finland and registered on 3 March 1992 under file No. 19576/92;         Having regard to :   -      reports provided for in Rule 47 of the Rules of Procedure of the       Commission;   -      the observations submitted by the respondent Government on       21 December 1993 and the observations in reply submitted by the       applicant on 11 February 1994;         Having deliberated;         Decides as follows:   THE FACTS         The applicant is a Finnish citizen born in 1942 and resident at Padasjoki, where he is the municipal director.         The facts of the case, as submitted by the parties, may be summarised as follows.   Particular circumstances of the case         On 8 February 1989 the applicant was elected member of the Health Care Board (terveyslautakunta, hälsovårdsnämnden) of the Municipal Health Care Federation (kansanterveystyön kuntainliitto, kommunalförbundet för folkhälsoarbetet) of Asikkala and Padasjoki by the Federative Council (liittovaltuusto, förbundsfullmäktige).         Following an appeal by a member of the municipality of Padasjoki challenging the legality of the election of the members of the Health Care Board in general the County Administrative Court (lääninoikeus, länsrätten) of Häme on 19 November 1990 found that the applicant's election was unlawful. The Court noted that out of the twelve members of the Health Care Board four represented the National Coalition Party r.p. (kansallinen kokoomus r.p., nationella samlingspartiet r.p.; hereinafter "the National Coalition Party"). However, only three of those board members were members of that party, whilst the fourth one (the applicant) was independent. The applicant's election had therefore violated section 122, subsection 4 of the 1976 Act on Municipalities (kunnallislaki 953/76, kommunallag 953/76; hereinafter "the 1976 Act").         In its appeal to the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen) the Board of the Municipal Federation (liittohallitus, förbundsstyrelse) objected to the applicant's obligation to be a member of the National Coalition Party in order to be eligible for the position of trust at issue.         Before the Supreme Administrative Court the National Coalition Party stated that already at the time of his election it had accepted that the applicant would occupy one of the four positions of the Health Care Board to which the party was entitled despite the fact that he was not a member of that or any other party or political group represented on the Board. This position of the party had remained unchanged.         On 16 August 1991 the Supreme Administrative Court upheld the County Administrative Court's decision by 3 votes against 2. The majority considered that, in order to comply with section 122, subsection 4 of the 1976 Act, the Federative Council should have elected four persons "representing" the National Coalition Party. The applicant, however, had been elected, although he had been independent both from the parties and the other groups represented on the Board. His election as the "representative" of the National Coalition Party without his being a member of that party therefore violated section 122, subsection 4.         The minority of the Supreme Administrative Court considered that the applicant's election had been in accordance with section 122, subsection 4. As the National Coalition Party had agreed and continued to agree to his representing that party as an independent board member, his membership of the Board could not be dependent on whether or not he was a member of that party.         The proceedings before the administrative courts were conducted exclusively in writing.         In the light of the Supreme Administrative Court's judgment the Federative Council on 9 October 1991 proceeded to a new election of members, the applicant not being re-elected.   Relevant domestic law   1.     The protection of the negative freedom of association         Under the 1919 Constitution Act (Suomen Hallitusmuoto 94/19, Regeringsform för Finland 94/19; hereinafter "the Constitution Act") Finnish citizens are entitled to form associations without first obtaining a permission to this end, provided the aims of the associations do not violate the laws and are not contrary to public decency (section 10, subsection 1). Finnish citizens are equal before the law (section 5).         The Standing Parliament Committee for Constitutional Matters (eduskunnan perustuslakivaliokunta, riksdagens grundlagsutskott) has considered that section 10 of the Constitution Act also covers the right not to join an association (Committee Opinion 6/88).   2.     The duty to accept a municipal position of trust         No one shall decline to occupy a municipal position of trust, unless he or she is sixty years of age or more, if he or she has occupied the same position of trust or another position in the same body during the preceding four years or if he or she has occupied a municipal position of trust during eight years or more. A refusal may also be based on another weighty reason and shall, with one exception not relevant here, be examined by the body which elected the person (section 18 of the 1976 Act).   3.     The requirement of fair representation in municipal federative       bodies of the groups represented in the relevant municipal       councils         The composition of the bodies of elected representatives of a federation of municipalities shall correspond to the relative support enjoyed by the groups represented in the relevant municipal councils (kunnanvaltuustot, kommunfullmäktige) on the basis of the results of municipal elections (section 122, subsection 4 of the 1976 Act, as in force up to 1 January 1993).         In accordance with an amendment to the 1976 Act which entered into force on 1 January 1993 the municipal federations have been replaced by municipal consortia (kuntayhtymät, samkommuner). Each consortium shall draw up a charter. This is not submitted for approval by any State authority. The charter shall specify how the groups represented in the relevant municipal councils shall be represented in the bodies of the consortium (section 106, subsection 3, para. 4, as amended by Act no. 979/92). If the charter is not amended to include a provision on representation, the repealed section 122, subsection 4 shall continue to be applicable to the appropriate extent (the transitional provision in Act no. 979/92).   COMPLAINTS   1.     The applicant complains that the requirement that he should be a member of the National Coalition Party in order to be eligible for the position of trust at issue which had been allotted to that party violates his negative freedom of association and further discriminates against him because he is politically independent. He further submits that the requirement that he should belong to a party which has, nevertheless, accepted him as its representative, prevents him from fulfilling his citizen's duty to accept a municipal position of trust. He invokes Article 11 of the Convention both alone and in conjunction with Article 14.   2.     The applicant further complains that he was never heard in the administrative court proceedings.   PROCEEDINGS BEFORE THE COMMISSION         The application was introduced on 16 January 1992 and registered on 3 March 1992.         On 11 October 1993 the Commission decided to bring the application to the notice of the respondent Government and to invite them to submit written observations on the admissibility and merits of the complaint under Articles 11 and 14 of the Convention.         The observations were submitted by the respondent Government on 21 December 1993. Observations in reply were submitted by the applicant on 11 February 1994.   THE LAW   1.     The applicant complains that the requirement that he should be a member of the National Coalition Party in order to be eligible for the position of trust at issue which had been allotted to that party violates his negative freedom of association and further discriminates against him because he is politically independent. He invokes Article 11 (Art. 11) of the Convention both alone and in conjunction with Article 14 (Art. 11+14).         Article 11 (Art. 11) of the Convention reads as follows:         "1.   Everyone has the right to freedom of peaceful assembly       and to freedom of association with others, including the       right to form and to join trade unions for the protection       of his interests.         2.    No restrictions shall be placed on the exercise of       these rights other than such as are prescribed by law and       are necessary in a democratic society in the interests of       national security or public safety, for the prevention of       disorder or crime, for the protection of health or morals       or for the protection of the rights and freedoms of others.       This Article shall not prevent the imposition of lawful       restrictions on the exercise of these rights by members of       the armed forces, of the police or of the administration of       the State."       Article 14 (Art. 14) of the Convention reads as follows:         "The enjoyment of the rights and freedoms set forth in this       Convention shall be secured without discrimination on any       ground such as sex, race, colour, language, religion,       political or other opinion, national or social origin,       association with a national minority, property, birth or       other status."         The Government submit that Article 11 (Art. 11) alone has not been violated, since there has been no interference with the applicant's negative freedom of association. In any case, his freedom has not been struck at its very substance by the requirement of party membership. Not being legally eligible for the position of trust at issue according to the Supreme Administrative Court's interpretation of the 1976 Act in his case, the applicant can no longer be considered to have any duty to accept that position. Moreover, although he could not be elected to the position of trust allotted to the National Coalition Party, he would, as a politician independent from the parties, in principle have been eligible for a position of trust allotted to another group than a party.         Should the Commission find an interference with the applicant's negative freedom of association, the Government submit that his lack of eligibility for the position of trust allotted to the National Coalition Party was prescribed by law, as interpreted by the Supreme Administrative Court. They admit, however, that obviously not all consequences of the Supreme Administrative Court's judgment in the applicant's case were foreseeable when section 122, subsection 4 of the 1976 Act was enacted. The Government further consider that the interference was necessary in a democratic society for the protection of the rights and freedoms of others. The aim of section 122, subsection 4 of the 1976 Act was to secure that the different political groups represented in the relevant municipal councils were fairly represented in the municipal federations. It further safeguarded party members from a situation where their party would be represented by a non-member. In the present case, however, the Government admit that the members of the National Coalition Party were involved in accepting the applicant as representative of their party. Nevertheless, the Government argue that the State's margin of appreciation has not been exceeded by the requirement that a political party shall be represented in the bodies of a municipal federation by one of its members. The Government conclude that the afore-mentioned aims constitute such a pressing social need as required for justifying an interference with the applicant's freedom under Article 11 (Art. 11).         As regards the complaint under Article 14 in conjunction with Article 11 (Art. 14+11), the Government submit that the applicant has not been discriminated against as a result of his lack of eligibility for the position of trust allotted to the National Coalition Party. Not being a member of that party, his situation was similar to that of members of other parties, who were not eligible for a position of trust allotted to the National Coalition Party either. Furthermore, the difference in the treatment of the applicant in comparison with that facing members of the National Coalition Party had the legitimate aim of reserving, for that party, a number of positions of trust corresponding to its share of the votes in the municipal elections. Securing this aim required that the applicant be a member of the National Coalition Party. Neither were the means employed to this end disproportionate to that aim. The Government therefore conclude that there existed an objective and reasonable justification for the applicant's lack of eligibility for the position allotted to that party.         The applicant considers it to be evident from the wording of section 122, subsection 4 of the 1976 Act that the intention of Parliament was not to require party membership, but to aim at a fair representation in the bodies of the municipal federations of the groups represented in the relevant municipal councils. This aim is possible to achieve without basing the eligibility for a position of trust exclusively on party membership. This is particularly true in the applicant's case, since the party at issue had accepted him as its representative without requiring him to become its member.         The applicant further emphasises that his negative freedom of association is protected by the Constitution Act and must therefore be considered to have priority over section 122, subsection 4 of the 1976 Act and the privileges afforded to the political parties by the Supreme Administrative Court's interpretation of that provision in his case. In Finland no more than about 500.000 out of a total of about 3.800.000 persons entitled to vote are members of a political party. A majority of the last-mentioned group vote in the municipal elections. There is, accordingly, no pressing need for reserving positions of trust exclusively to party members. On the contrary, the membership requirement unjustifiably favours the parties at the expense of the large majority of voters who are not members of any party, but nevertheless constitute almost 90 per cent of the voting population. This privileged position of the parties is unreasonable and disproportionate.         The applicant finally refers to the European Charter of Local Self-Government (European Treaty Series no. 122) which entered into force with regard to Finland on 1 October 1991. According to its Article 7 (Art. 7), the conditions of office of local elected representatives shall provide for free exercise of their functions.         The Commission has carried out a preliminary examination of the complaint under Articles 11 and 14 (Art. 11, 14) of the Convention. It considers that it raises questions of fact and law of such a complex nature that their determination requires an examination of the merits. This complaint cannot therefore be declared inadmissible as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. No other reason for declaring the complaint inadmissible has been established.   2.     The applicant further complains that he was never heard in the administrative court proceedings.         The Commission has examined this complaint in the light of Article 6 para. 1 (Art. 6-1) of the Convention which, in its relevant parts, reads as follows:         "In the determination of his civil rights and obligations       ..., everyone is entitled to a fair and public hearing ...       by an independent and impartial tribunal established by       law. ..."         The Commission recalls, however, that litigation concerning the validity of legislative or communal elections involves the determination of political rights which do not fall within the notion of civil rights and obligations as referred to in Article 6 para. 1 (Art. 6-1) (No. 18997/91, Dec. 28.2.94, D.R. 76-A p. 65 with further reference). In the Commission's view similar considerations apply in regard to the proceedings concerning the applicant's eligibility for his position of trust on a body belonging to a federation of municipalities.         It follows that this complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 27 para. 2 (Art. 27-2).         For these reasons the Commission, by a majority,         DECLARES ADMISSIBLE, without prejudging the merits, the       applicant's complaint that he was required to be a member       of the National Coalition Party in order to be eligible for       a position of trust allotted to that party and that this       requirement discriminated against him because he is       politically independent; and         DECLARES INADMISSIBLE the remainder of the application.   Secretary to the Commission                  President of the Commission          (H.C. KRÜGER)                                (C.A. NØRGAARD)