Communication No. 14/1998
by: D. S.
Alleged victim: The petitioner
State party concerned: Sweden
Date of communication: 24 December 1998
The Committee on the Elimination of Racial Discrimination, established
under article 8 of the International Convention on the Elimination of
All Forms of Racial Discrimination,
Meeting on 10 August 2001
Adopts the following:
Decision on Admissibility
1. The petitioner
(initial submission dated 24 December 1998) is D. S., a Swedish citizen
of Czechoslovak origin, born in 1947, currently residing in Solna, Sweden.
She claims to be a victim of violations by Sweden of articles 2, paragraph
2, 5 (e) (i) and 6 of the International Convention on the Elimination
of All Forms of Racial Discrimination. The petitioner is not represented
as submitted by the petitioner:
2.1 In May 1998,
the National Council for Cultural Affairs (Statens kulturråd) advertised
a vacancy for a post as a statistician within its organisation. In the
vacancy announcement, the Council looked for applicants who, in co-operation
with the different divisions of the Council, would work on the production
of statistics, investigate studies and method support and take part in
developing statistical work. The National Council for Cultural Affairs
required that applicants should preferably have a university degree in
statistics supplemented by e.g. sociology or economics and experience
of statistical research. Other requirements included ease of oral and
written expression and knowledge of cultural life and policy in Sweden.
The advertisement finally stated that it was desirable that applicants
were service minded, good pedagogues and able to work both independently
and in a team.
2.2 A total of
89 individuals applied for the vacancy, including the petitioner and L.J..
On 30 June 1998, the National Council for Cultural Affairs decided to
appoint L.J. as an official (statistician) to the Council. The petitioner
appealed the decision to the Government and claimed damages due to discrimination.
2.3 On 1 October
1998, the Government rejected the petitioner's appeal. The Government
did not give reasons for the decision. The petitioner appealed against
this decision as well. In December 1998, this appeal was dismissed, on
the ground that the Government's decision of 1 October could not be appealed
and that there was no other reason to re-examine the petitioner's appeal.
2.4 The petitioner
also filed a complaint with the Ombudsman against Ethnic Discrimination
who refused to take any action in her case, as he claimed that it had
no merits. In addition, the petitioner's trade union refused to represent
her for the same reason. The Ombudsman informed the petitioner of the
possibility of making an application to the District Court if she did
not agree with the opinion of the trade union and the Ombudsman. The petitioner
claims that she has exhausted domestic remedies, as it would have been
futile to seek redress in the District Court in light of the Ombudsman's
refusal to take up her case because of lack of merit.
3.1 The petitioner
claims that she has been discriminated against by Sweden on the basis
of her national origin and her status as an immigrant, in the refusal
by the National Council for Cultural Affairs to offer her a job. In this
context, she objects to the decision of the National Council for Cultural
Affairs to offer the job in question to L.J., who she claims is less qualified
than she for the post.
3.2 The petitioner
complains generally about the small number of immigrants employed in Sweden
and claims that this is due to discrimination against non-Swedes. She
claims that the government has not adopted any measures to improve the
situation for immigrants in the workforce in Sweden and states that it
should take measures of affirmative action, such as establishing quotas
for immigrants for high-level posts, so that immigrants with higher education
may obtain the possibility to work.
observations on admissibility and the petitioner's comments thereon:
4.1 In its submission
under rule 92 of the Committee's rules of procedure the State party challenges
the admissibility of the communication.
4.2 The State party notes that the relevant sources of legal protection
against ethnic discrimination in Sweden are the Instrument of Government,
the Act of Public Employment and the Act against Ethnic Discrimination.
The Instrument of Government lays down the basic principle that public
power shall be exercised with respect for the equal worth of all (chapter
one, section 2). Courts, public authorities and others performing functions
within the public administration shall observe, in their work, the equality
of all before the law and maintain objectivity and impartiality. When
deciding on appointments within the State administration, only objective
factors such as experience and competence shall be taken into account.
4.3 The Act of Public Employment reiterates the principles laid down in
the Instrument of Government to the extent that when making appointments
to administrative positions, the guiding factors shall be experience and
competence. As a general rule, competence is valued higher than experience.
Authorities must also consider objective factors that correspond to objectives
of the overall labour market, equal opportunities and social and employment
policies. Decisions concerning the filling of vacant posts are excluded
from the normal requirement that administrative authorities must provide
reasons for their decisions. The rationale for this exception is concern
for the unsuccessful applicant(s), sparing him/her/them the negative evaluation
such reasons might imply. Under section 35 of the Government Agencies
and Institutions Ordinance, appeals against the authorities' decisions
may be filed with the Government. An appeal against a decision by the
National Council for Cultural Affairs can also be filed with the Government,
under section 5 of the 1988 Ordinance relating to the National Council
for Cultural Affairs.
4.4 Labour disputes may also be tried under the Act against Ethnic Discrimination,
which aims at prohibiting discrimination in working life. Under the Act,
ethnic discrimination takes place when a person or group of persons is/are
treated unfairly in relation to others, or are in any way subjected to
unjust or insulting treatment on the grounds of race, colour, national
or ethnic origin or religious belief.
4.5 Pursuant to the terms of the Act, the Government has appointed an
Ombudsman against Ethnic Discrimination whose mandate is to ensure that
ethnic discrimination does not occur in the labour market or other areas
of society. The Ombudsman should assist anyone subjected to ethnic discrimination
and help safeguard the applicant's rights. He must also make sure that
job applicants are not subjected to ethnic discrimination.
4.6 This legislation, which applies to the overall labour market, has
two major thrusts. The first is the prohibition of discrimination in relation
to applicants for vacancies, which is relevant to the present case. The
other prohibition of discrimination covers the treatment of employees.
The provision which covers the treatment of job applicants provides that
any employer must treat all applicants for a post equally and that, when
appointing an applicant, he may not subject other applicants to unfair
treatment on account of their race, colour, national or ethnic origin
or religious belief (sect. 8) i.e. only objective factors shall be considered.
Any employer who violates the prohibition of discrimination is liable
to pay damages to the discriminated job applicant.
4.7 Under section 16 of the Act against Ethnic Discrimination, cases of
discrimination in employment will be examined pursuant to the Act on Litigation
in Labour Disputes. Disputes shall be handled before the Labour Court,
as a court of first and last instance, if they are brought by an employer's
organization, an employees' organization, or by the Ombudsman. If the
dispute is brought by an individual employer or a job applicant it shall
be heard and adjudicated by a District Court. Appeals may be lodged with
the Labour Court, which is the final instance.
4.8 The State
party submits that the petitioner has failed to exhaust available domestic
remedies, as required by article 14, paragraph 7(a), of the Convention.
The State party argues that, although the petitioner lodged a complaint
with the Ombudsman against Ethnic Discrimination she did not challenge
the decision not to appoint her to the vacant post in a District Court
(with a possibility of appeal to the Labour Court). The State party contends
that the petitioner was aware of the possibility of challenging this decision
in a District Court but considered it futile on the ground that the law
against ethnic discrimination in the labour market is not applicable in
practice in cases when an immigrant did not get a job, despite he/she
was better qualified, and at the same time has no direct evidence about
the discrimination. In this regard, the State party claims that there
is nothing to indicate that this case would not have been properly examined
by the District Court and that mere doubts about the effectiveness of
such a remedy does not absolve a petitioner from pursuing it.
5.1 In response
to the State party's comments, the petitioner reiterates that she has
exhausted all available and effective domestic remedies. She argues that
she did not issue proceedings in the District Court because of the Trade
Union's and Ombudsman's decision not to do so on her behalf claiming that
there were no merits in the case. In addition, the petitioner states that
under the Act against Racial Discrimination of 1994 the Ombudsman has
only initiated three cases in court and lost all three. For this reason
the petitioner claims that an application to court in this instance would
be ineffective. She also states that this act itself has since been amended
as it was considered ineffective. The petitioner also states that, although
she would receive legal aid for some of the costs of an application to
the District Court, she would be unable to pay the balance due to her
financial situation. (1)
5.2 The petitioner
also compares her education and experience to the person that got the
job in question attempting to demonstrate that she was the better person
for the job and that the reason she failed to secure the post was because
of her Czechoslovak origin. This discrimination, she claims, is also reflected
in the fact that her prospective employer did not take into account the
experience she had acquired in her homeland.
6.1 Before considering
any claim contained in a communication, the Committee on the Elimination
of all Forms of Racial Discrimination must decide, pursuant to article
14, paragraph 7(a), of the Convention, whether or not the current communication
6.2 The Committee notes the State party's contention that the petitioner's
claims are inadmissible for failure to exhaust domestic remedies because
she did not challenge the decision in the District Court not to appoint
her to the vacant post. The petitioner replied that she did not take such
an action as her trade union refused to represent her and both her trade
union and the Ombudsman found that there were no merits in her claim.
The petitioner also stated subsequently that, although she would receive
legal aid to pay some of the costs involved in such an action, she could
not afford to pay the balance. In any event, she claims that such an appeal
would have failed, as the applicable legislation is deficient.
6.3 The Committee concludes that, notwithstanding the reservations that
the petitioner might have regarding the effectiveness of the current legislation
to prevent racial discrimination in the labour market, it was incumbent
upon her to pursue the remedies available, including a complaint before
the District Court. The Committee recalls that doubts about the effectiveness
of such remedies do not absolve a petitioner from pursuing them. With
respect to the petitioner's claim that she could not issue proceedings
in the District Court due to lack of funds, the Committee notes that the
petitioner would have received legal aid to assist her in making her application,
and therefore cannot conclude that the expenses involved would have been
a grave impediment that would excuse the petitioner from the obligation
to exhaust domestic remedies.
6.4 In light of the above, the Committee considers that the petitioner
has failed to meet the requirements of article 14, paragraph 7 (a), of
7. The Committee on the Elimination of Racial Discrimination therefore
(a) That the communication is inadmissible;
1. In this context, the petitioner claims that such an application would
cost at least 100.000 krona and that if she were to lose the case she
would have to pay the other party's barrister the same amount. She claims
that she receives 100.000 krona of unemployment assistance a year net
out of which she pays 34.600 krona for accommodation and has 65.400
krona remaining to live on. She claims that she would receive 60.000
in legal aid and does not have the balance.