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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 by counsel.
The Facts as Submittedb 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.
The Complaint:
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.
State Party's 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. [FN1]
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[FN1] 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.
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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 is admissible.
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 the
Convention.
7. The Committee on the Elimination of Racial Discrimination therefore
decides:
(a) That the communication is inadmissible;
(b) That this decision shall be communicated to the State party and the
petitioner.
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