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Andersen v Denmark (decision), 3 May 1988 [ECtHR]

Case no 12860/87

The applicant has complained of the fact that he was dismissed from his job as a bus driver with the Traffic Company of the Metropolitan Area. He maintains that his dismissal was effected merely due to his refusal to join a certain trade union and he alleges that this amounts to a violation of Article 11 of the Convention. (...)
However, it is clear from Article 25 para. 1 of the Convention that the Commission can only receive an application from a person, a non-governmental organisation or a group of individuals if such person, non-governmental organisation or group of individuals can claim to be a victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention.
In the present case the applicant maintains that he is a victim of a breach of Article 11 of the Convention as he was not reinstated in his previous job or in the alternative since he did not get adequate compensation.
When considering the victim question the Commission recalls that under Article 26 of the Convention it may only deal with an application when all domestic remedies have been exhausted according to the generally recognised rules of international law. Under this rule an applicant is obliged to make use of remedies likely to be effective and adequate to remedy the matters of which he complains. Where an applicant makes use of such remedies and thereby obtains adequate redress at the domestic level for the alleged violation of the Convention he cannot claim to be a victim of a violation (cf. for example No. 9320/81, Dec. 15.3.84, D.R. 36, p. 24, No. 10259/83, Dec. 10.12.84, D.R. 40, p. 170 and Eur. Court H.R., Eckle judgment of 15 July 1982, Series A no. 51, p. 30, para. 66).
In its examination of this preliminary issue of admissibility the Commission has therefore considered whether the compensation awarded to the applicant by the courts had the effect to remedy the alleged violations.
The applicant argues that only reinstatement would be an effective remedy. In this respect the Commission first observes that under Article 1 of the Convention the High Contracting Parties are obliged to secure to everyone within their jurisdiction the rights and freedoms defined in Section I. This includes the obligation, under Article 13, to provide individuals with an effective remedy against a violation of their rights and freedoms as set forth in the Convention. The possibility of obtaining compensation may in some circumstances constitute an adequate remedy, in particular where it is likely to be the only possible or practical means whereby redress can be given to the individual for the wrong he has suffered. In such circumstances the Commission is not called upon to address the problem whether under specific conditions a remedy, leading to restitutio in integrum may be required by the Convention.

Nevertheless, compensation may not be deemed to have rectified a violation in a situation where the State had not taken reasonable measures to comply with its obligations under the Convention. The obligation to provide a remedy does not constitute a substitute for, or an alternative to, compliance with other convention obligations. It is rather a means of redress within the domestic system for violations which occur despite measures taken to ensure compliance with the substantive provisions of the convention. Thus if conduct which contravened the Convention were to be authorised by domestic law the State could not escape from its obligations merely by paying compensation. The compensation machinery could only be seen as an adequate remedy in a situation where the authorities had taken reasonable steps to comply with their obligations under the Convention by preventing as far as possible the occurrences or repetition of the acts in question (mutatis mutandis No. 5577/72 - 5583/72, Dec. 15.12.75, D.R. 4, p. 4 (64)).

In the present case the Commission recalls that the Metropolitan Council decided in the area of employment on the basis of the applicable labour-law, i.e. Act No. 285 of 9 June 1982 concerning Protection against Dismissals because of Trade Union Relations. This Act was introduced by the respondent Government in the light of the judgment of the European Court of Human Rights in the case of Young, James and Webster (Eur. Court H.R., Young, James and Webster judgment of 13 august 1981, Series A no. 44) in order to comply with Denmark’s obligations under Article 11 of the convention. It prohibits dismissal of employees due to membership of an association and is applicable to persons employed in both private and public enterprises. It does not give an employee the right to be re-employed but secures to the employee compensation in case of dismissal in contravention of the provisions of the Act. The Commission has not found any indication of a general practice whereby public authorities would disregard the legislation introduced in Denmark by dismissing employees and merely pay compensation, a practice which in the Commission’s opinion would raise a serious issue under the Convention.

In these circumstances the Commission finds that Denmark has taken reasonable steps to comply with its obligations under Article 11 of the Convention by introducing this Act. It follows that the applicant cannot claim to be a victim of a violation of the Convention merely because he was not re-employed as a bus driver in the Traffic Company of the Metropolitan Area.

The applicant has next alleged that he may still claim to be a victim since the compensation actually received was inadequate. The Commission would not exclude that, where compensation granted under domestic law is inadequate, an issue may arise as to the question of victim and it has therefore considered whether the applicant’s right to compensation was effective in practice.

In this respect the Commission recalls that the compensation that could be awarded under Section 4 amounted to a maximum of 78 weeks salary and was to be determined having regard to the employee’s length of employment and the other circumstances of the case. In the present case the competent courts took into consideration the applicant’s age, the salary earned as well as the duration of his employment and fixed the compensation on an equitable basis in the light of these circumstances. The Commission furthermore recalls that the applicant received 100,000 Danish crowns in compensation.

The Commission finds that the applicant received a substantial sum in compensation and thereby obtained redress at the domestic level for the alleged violation of Article 11 of the Convention. Therefore he can no longer claim to be a victim of this alleged violation and it follows that this part of the application is manifestly ill-founded within the meaning of Article 27 para. 2 of the Convention.

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