CERD/C/53/D/9/1997

UNITED

NATIONS

CERD

International Convention on

the Elimination

of all Forms of

Racial Discrimination

Distr.

RESTRICTED*

CERD/C/53/D/9/1997

3 September 1998

Original: ENGLISH

COMMITTEE ON THE ELIMINATION

OF RACIAL DISCRIMINATION

Fifty-third session

3-21 August 1998

DECISIONS

Communication No. 9/1997

Submitted by:

D.S.

Alleged victims:

The author

State party concerned:

Sweden

Date of communication:

15 February 1997 (initial submission)

Date of present decision:

17 August 1998

Decision on admissibility

[ANNEX]

* Made public by decision of the Committee on the Elimination of

Racial Discrimination.

GE.98-17848 (E)

CERD/C/53/D/9/1997

page 2

DECISION OF THE COMMITTEE ON THE ELIMINATION OF RACIAL

DISCRIMINATION UNDER ARTICLE 14 OF THE INTERNATIONAL

CONVENTION ON THE ELIMINATION OF ALL FORMS OF RACIAL

DISCRIMINATION

FIFTY-THIRD SESSION

concerning

Communication No. 9/1997

Submitted by:

D.S.

Alleged victim:

The author

State party concerned:

Sweden

Date of communication:

15 February 1997

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 17 August 1998,

Adopts the following:

Decision on admissibility

1.

The author of the communication (initial submission dated

15 February 1997) 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, 3, 5 (e) (i) and 6 of the

International Convention on the Elimination of Racial Discrimination.

The facts as submitted by the author

2.1

In April 1995, the National Board of Health and Welfare advertised a

vacancy for a post of researcher/project coordinator with the National Board

of Health and Welfare (Socialstyrelsen). In the vacancy announcement, the

Board looked for applicants who would be able to collect and process material

from investigative studies, and follow up, in the field of public health and

medical care, the structure, content and quality of medical care in hospitals.

The vacancy announcement stipulated that applicants for general research jobs

should have good knowledge of and experience in the subject area and good

knowledge of techniques and measures used to measure, describe, evaluate and

judge the efficacy and results of an activity. Another requirement was that

applicants should have a basic academic degree, if possible supplemented by

further courses in the field of research and evaluation and with experience in

the subject area. Other requirements included the ability to cooperate with

others, power of initiative and ease of oral and written expression.

Proficiency in another language was considered an additional asset.

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2.2

One hundred and forty-seven individuals applied for the vacancy,

including the author and S.L. On 10 November 1995, the National Board of

Health and Welfare decided to appoint S.L. as researcher and project

coordinator to the Board; she assumed her duties with effect from

1 October 1995. The author appealed to the Government against this decision,

considering that her qualifications were superior to those of S.L., and that

she had been refused the post because of her foreign origin.

2.3

On 14 March 1996, the Government annulled the National Board's decision

to appoint S.L. to the post and referred the matter back to the Board for

reconsideration. The Government’s decision was based on the fact that at the

time of S.L.’s appointment, the latter had not yet earned an academic degree

(although she was studying for one at that time). Therefore, S.L. did not

formally satisfy the requirements for the position as specified by the

National Board in the Vacancy Announcement. The National Board’s decision in

the case was found to be formally incorrect.

2.4

Shortly afterwards, the National Board of Health and Welfare

re-advertised the post of researcher to the Board. The vacancy announcement

now stipulated that the Board was looking for a person to work on the

MARS-project (Medical Access and Result System), to assist in the collection

and the processing of material from investigations and studies and in the

evaluation of the public health and medical care structure. The work would

involve contacts with medical experts, to draw up catalogues and prepare

material for multimedia presentations. As to the qualifications, the

announcement now required “a basic academic degree or equivalent, as well as

experience in the subject area”. Other requirements included the ability to

cooperate and work in a team, power of initiative, and ease of oral and

written expression. Good knowledge of English was required.

2.5

A total of 83 individuals applied for the re-advertised post, inter alia

the author and S.L. The National Board of Health and Welfare invited four of

them for an interview, including the author and S.L. Their qualifications

were assessed thoroughly. On 20 May 1996, the Board decided once again to

appoint S.L. as a researcher to the Board. On 6 June 1996, the author filed

another appeal with the Government against this decision, claiming that she

was better qualified than S.L. and referring to the fact that she had more

relevant academic education and greater work experience.

2.6

The National Board of Health and Welfare prepared a detailed opinion to

the Government on the issue. In its opinion, it justified the change of

criteria in the re-advertisement of the vacancy and emphasized that the

selection process had been careful. The Board observed that on the basis of

this process, it was concluded that S.L. was deemed to have the best

qualifications for the post, including personal suitability; the Board added

that S.L. had by then earned an academic degree in behavioural science. The

author was considered the least qualified of the four applicants who had been

shortlisted.

2.7

On 12 September 1996, the Government rejected the author’s appeal,

without giving reasons. The author appealed against this decision as well;

in January 1997, this appeal was also dismissed, on the ground that the

Government had, by its decision of September 1996, finalized the examination

of the matter and therefore concluded proceedings.

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The complaint

3.1

The author complains that she has been discriminated against in her

search for employment on the basis of her national origin and her status as an

immigrant. In that context she claims that:

-

major parts of vacancy announcements of the type she applied for

are tailor-made for an individual who is already chosen in

advance, usually a Swedish citizen born in the country;

-

qualification requirements are higher for immigrants than they are

for Swedes;

-

employers generally discriminate against immigrants in their

employment policy, in that they will choose Swedes who in

principle are over-qualified for a certain job, whereas they will

reject immigrants who are over-qualified for the same post.

During the interviews for the re-advertised post, the author

claims, she was told that she was over-qualified;

-

during the interviews for the vacant post with the National Board

of Health and Public Welfare, the interviewers allegedly displayed

an openly negative attitude vis-à-vis the author. In fact, the

author dismisses the entire interview as “false play”.

3.2

The author claims that the only possibility to solve her situation and

that of immigrants in Sweden who seek employment in general would be to take

measures of affirmative action, such as establishing quotas for immigrants for

high-level posts, so that immigrants with higher education may obtain a

possibility to work.

3.3

The author rejects as another sign of discrimination vis-à-vis her as an

immigrant that the National Board considered her the least qualified and

suitable of the four applicants shortlisted for the re-advertised post. She

reiterates that her academic qualifications were far superior to those of S.L.

(Master’s degree as compared to bachelor degree).

The State party’s observations

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 other 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.

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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, 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 Board

of Health and Welfare in matters of employment can also be filed with the

Government, under Section 14 of the 1996 Ordinance relating to the National

Board of Health and Welfare. There are no further remedies available against

the Government’s decision.

4.4

Labour disputes may also be tried under the Act against Ethnic

Discrimination of 1994, 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 make special efforts to

prevent job applicants from being subjected to ethnic discrimination

(Section 4). If so directed by the Ombudsman, an employer is required to

attend meetings and supply information pertaining to the employers’ relations

with job applicants and employees. Should the employer fail to comply with

the Ombudsman’s directives, the latter may levy a fine (Sections 6 and 7).

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 (Section 8). This provision applies if the employer chooses

someone other than the individual subjected to discrimination. Discriminatory

behaviour in the recruitment process is not per se covered by the prohibition,

but if, as a result, this behaviour has led to the employment of another

person, the employer will be held accountable for his actions. For any

treatment to constitute unlawful discrimination, it must have been motivated

by differences which are not based on objective criteria. Employment

considerations made by the employer must appear to be acceptable and rational

to an outsider if it is to be shown that objective reasons motivated the

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employer’s decision. Any employer who violates the prohibition of

discrimination is liable to pay damages. Job applicants who are victims of

discrimination may be awarded damages, to be paid by the employer.

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 or 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 author has failed to exhaust available

domestic remedies, as required by article 14, paragraph 7 (a), of the

Convention. It contends that contrary to the views apparently held by the

author, it is possible to file actions before a court in cases of ethnic

discrimination and damages based on ethnic discrimination in working life.

Such an action would have been based on article 24 of the Act on Ethnic

Discrimination.

4.9

The State party notes that the author does not appear to have had any

contact with the office of the Ombudsman against Discrimination, although the

Ombudsman would be entitled to lodge a case about discrimination and damages

on her behalf. Thus, Swedish law provides for effective judicial remedies in

the author’s situation. It would have been possible for the author to file an

action based on non-observance of the Act on Ethnic Discrimination before the

courts, and there is nothing to indicate that her complaint would not have

been examined properly and thoroughly, in accordance with applicable

procedures. For the Government, therefore, the case is inadmissible for

failure to exhaust available domestic remedies.

4.10

Regarding the question of legal aid that might be available to persons

wishing to file a case with a court the State party indicates that under

the 1972 and 1997 Legal Aid Acts it is possible to give legal aid to any

natural person in a legal matter if he or she is deemed to be in need of such

assistance and his or her annual income does not exceed a specific limit. In

legal aid matters the claimant shall contribute to the cost in proportion to

his or her ability. Legal aid may, however, not be given if it is not deemed

reasonable having regard to the importance and nature of the matter and the

value of the subject being disputed as well as all other circumstances in the

case. Such a situation could occur if a petition does not contain reasons for

the claim as prescribed by law or if the claim otherwise is deemed to be

manifestly unfounded.

Author’s comments

5.1

With respect to the requirement of exhaustion of domestic remedies, the

author notes that she was not informed about any remedies other than appeals

directed to the Government. Thus, the decision of 12 September 1996 informing

her of the Government’s dismissal of her appeal did not mention the

possibility of an appeal to the Labour Court, either with the assistance of a

union or that of the office of the Ombudsman. Nor did the Government inform

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her of this possibility after she appealed the decision of 12 September 1996.

The author emphatically asserts that she considered Government organs “the

last authorities” in her case with respect to appellate remedies. She states

that after reading an article in the newspaper on the possibility of appealing

to the Labour Court she contacted her Union. The latter, however, would not

take up her case.

5.2

According to the author, an appeal for assistance to the Office of the

Ombudsman against Ethnic Discrimination would have been futile. She asserts

that the Ombudsman himself has never filed any case on behalf of an individual

with the Labour Court, and that he himself has voiced serious doubts about the

applicability and effectiveness of the Act against Ethnic Discrimination

of 1994. She further states that she had applied for assistance from the

Ombudsman on several other occasions but without success.

5.3

As to an appeal to a District Court, the author notes that this would

not have been an effective remedy either. She states that in 1993 she applied

for a job she did not obtain. She brought the case before a District Court

claiming discrimination and requested legal aid. The District Court decided

that it had no competence to examine decisions on appointments in the labour

market and dismissed the case as well as the legal aid request in

December 1994. By then the Act against Ethnic Discrimination which, according

to the State party, provides job applicants with the possibility of filing

cases before district courts, was already in force. The court’s decision also

indicated that the case had no prospects of success.

5.4

Moreover, the author asserts that an appeal would have incurred

financial outlays which she, as an unemployed person, could not afford. In

her view, if resort to a tribunal is not free of charge, she has no judicial

remedy. Even so, for her, the issue is not how many judicial instances she

may appeal to, but whether the existing law against ethnic discrimination may

offer her a remedy; in her opinion, it does not.

Admissibility considerations

6.1

Before considering any claims contained in a communication, the

Committee on the Elimination 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 State party contends that the author’s claims are inadmissible for

failure to exhaust domestic remedies, since she could have (a) sought the

intercession of the Ombudsman against Ethnic Discrimination in her case;

and/or (b) challenged the decision not to appoint her to the vacant post in a

District Court with a possibility of appeal to the Labour Court. The author

has replied that she was never informed about the possibility of the latter

avenue and that appeals to the Ombudsman and the courts would in any event

have failed, since the applicable legislation is deficient.

6.3

The Committee notes that the author was aware of the possibility of a

complaint to the Ombudsman against Ethnic Discrimination; she did not avail

herself of this possibility, considering it to be futile, and because of

alleged previous negative experiences with his office. She learned about the

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possibility of filing an action with the Labour Court and started preparations

to this effect but desisted, apparently because her trade union did not

support her in this endeavour as it did not find merits in her claim. She

further considers that there was no real possibility of obtaining redress in a

District Court because of a negative experience regarding a previous case that

she had filed with a District Court.

6.4

The Committee concludes that, notwithstanding the reservations that the

author 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 a District

Court. Mere doubts about the effectiveness of such remedies, or the belief

that the resort to them may incur costs, do not absolve a complainant from

pursuing them.

6.5

In the light of the above the Committee considers that the author 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 author of the communication.

[Done in English, French, Russian and Spanish, the English text being the

original version.]

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