EUROPEAN COMMISSION OF HUMAN RIGHTS
Application No. 20772/92
Pekka Helle
against
Finland
REPORT OF THE COMMISSION
(adopted on 15 October 1996)
TABLE OF CONTENTS
Page
I. INTRODUCTION
(paras. 1-16) . . . . . . . . . . . . . . . . . . . . . . . . 1
A. The application
(paras. 2-4) . . . . . . . . . . . . . . . . . . . . . . 1
B. The proceedings
(paras. 5-11). . . . . . . . . . . . . . . . . . . . . . 1
C. The present Report
(paras. 12-16) . . . . . . . . . . . . . . . . . . . . . 2
II. ESTABLISHMENT OF THE FACTS
(paras. 17-37). . . . . . . . . . . . . . . . . . . . . . . . 3
A. The particular circumstances of the case
(paras. 17-29) . . . . . . . . . . . . . . . . . . . . . 3
B. Relevant domestic law
(paras. 30-37) . . . . . . . . . . . . . . . . . . . . . 5
III. OPINION OF THE COMMISSION
(paras. 38-72). . . . . . . . . . . . . . . . . . . . . . . . 6
A. Complaint declared admissible
(para. 38) . . . . . . . . . . . . . . . . . . . . . . . 6
B. Points at issue
(para. 39) . . . . . . . . . . . . . . . . . . . . . . . 6
C. As regards Article 6 para. 1 of the Convention
(paras. 40-70) . . . . . . . . . . . . . . . . . . . . . 6
(i) The absence of an oral hearing before an
independent and impartial tribunal
(paras. 42-59) . . . . . . . . . . . . . . . . . . 6
CONCLUSION
(para. 60) . . . . . . . . . . . . . . . . . . . . . . .10
(ii) The fairness of the proceedings
(paras. 61-69) . . . . . . . . . . . . . . . . . .10
CONCLUSION
(para. 70) . . . . . . . . . . . . . . . . . . . . . . .11
D. Recapitulation
(paras. 71-72) . . . . . . . . . . . . . . . . . . . . .11
TABLE OF CONTENTS
Page
PARTIALLY DISSENTING OPINION OF MRS J. LIDDY,
JOINED BY MM. E. BUSUTTIL, L. LOUCAIDES, N. BRATZA
AND M. VILA AMIGÓ . . . . . . . . . . . . . . . . . . . . . . . . .13
SEPARATE OPINION OF MR. M. PELLONPÄÄ. . . . . . . . . . . . . . . .15
APPENDIX : DECISION OF THE COMMISSION AS TO THE
ADMISSIBILITY OF THE APPLICATION . . . . . . . . .16
I. INTRODUCTION
1. The following is an outline of the case as submitted to the
European Commission of Human Rights, and of the procedure before the
Commission.
A. The application
2. The applicant is a Finnish citizen, born in 1931 and resident at
Mäntsälä. He was represented before the Commission by Mr. Heikki Salo,
a lawyer practising in Helsinki.
3. The application is directed against Finland. The respondent
Government were represented by their Agent Mr. Holger Rotkirch,
Director-General for Legal Affairs, Ministry for Foreign Affairs, and
by Mr. Arto Kosonen, Co-Agent, of the same Ministry.
4. The case concerns proceedings before an ecclesiastical body and
the Supreme Administrative Court for the determination of a pecuniary
dispute between the applicant and his former employer, a parish. The
applicant invokes Article 6 para. 1 of the Convention.
B. The proceedings
5. The application was introduced on 28 September 1992 and
registered on 6 October 1992.
6. On 30 November 1994 the Commission (First Chamber) decided,
pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to give
notice of the application to the respondent Government and to invite
the parties to submit written observations on the admissibility and
merits of the applicant's complaint under Article 6 para. 1 of the
Convention.
7. The Government's observations were submitted on 16 February 1995.
The applicant replied on 12 April 1995. Additional observations were
submitted by the Government on 25 June 1995 and by the applicant on
10 October 1995. On 28 February 1995 the Commission granted the
applicant legal aid for the representation of his case.
8. On 27 February 1996 the case was transferred from the First
Chamber to the Plenary Commission, by decision of the latter.
9. On 7 March 1996 the Commission declared admissible the
applicant's complaint under Article 6 para. 1 of the Convention. It
declared inadmissible the remainder of the application.
10. The text of the Commission's decision on admissibility was sent
to the parties on 13 March 1996 and they were invited to submit further
observations. The applicant submitted observations on 22 April 1996 and
the Government on 25 April 1996.
11. After declaring the case admissible, the Commission, acting in
accordance with Article 28 para. 1 (b) of the Convention, also placed
itself at the disposal of the parties with a view to securing a
friendly settlement. In the light of the parties' reaction, the
Commission now finds that there is no basis on which such a settlement
can be effected.
C. The present Report
12. The present Report has been drawn up by the Commission in
pursuance of Article 31 of the Convention and after deliberations and
votes, the following members being present:
Mr. S. TRECHSEL, President
Mrs. G.H. THUNE
Mrs. J. LIDDY
MM. E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
F. MARTINEZ
L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
B. MARXER
G.B. REFFI
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
N. BRATZA
I. BÉKÉS
J. MUCHA
D. SVÁBY
G. RESS
A. PERENIC
C. BÎRSAN
P. LORENZEN
K. HERNDL
E. BIELIUNAS
M. VILA AMIGÓ
13. The text of this Report was adopted on 15 October 1996 by the
Commission and is now transmitted to the Committee of Ministers of the
Council of Europe, in accordance with Article 31 para. 2 of the
Convention.
14. The purpose of the Report, pursuant to Article 31 of the
Convention, is:
(i) to establish the facts, and
(ii) to state an opinion as to whether the facts found disclose
a breach by the State concerned of its obligations under
the Convention.
15. The Commission's decision on the admissibility of the application
is annexed hereto.
16. The full text of the parties' submissions, together with the
documents lodged as exhibits, are held in the archives of the
Commission.
II. ESTABLISHMENT OF THE FACTS
A. The particular circumstances of the case
17. Up to 1 October 1989 the applicant held a post as a verger in the
Evangelical-Lutheran parish of Mäntsälä. This post had been created in
1966 apparently without any written specification of its character. It
had been the applicant's understanding that the post was full-time.
When investigating his pension rights in December 1988, he discovered
that the Parish Board (kirkkoneuvosto, kyrkorådet) had, on 16 November
1977, considered the post to be part-time (hereinafter "the 1977
decision"). The 1977 decision had also affected his right to certain
other salary-related entitlements.
18. On 9 January 1989 the applicant lodged an appeal with the Parish
Council (kirkkovaltuusto, kyrkofullmäktige) against the 1977 decision.
On 25 January 1989 he lodged a further appeal with the Cathedral
Chapter (tuomiokapituli, domkapitlet) of the Helsinki Diocese
(hiippakunta, stift).
19. By decision of 13 September 1989 the National Ecclesiastical
Board (kirkkohallitus, kyrkostyrelsen) granted the applicant early
retirement pension as from 1 October 1989.
20. In its decision of 10 October 1989 the Parish Council considered
itself not legally obliged to grant the applicant any pecuniary
benefits in addition to those which he had already received on the
basis of the 1977 decision. It nevertheless decided to pay him the
difference between the salary for his part-time post and the salary for
a full-time post as from 1987. It also increased his pension benefits
and awarded him a compensatory lump sum.
21. On 15 November 1989 the applicant lodged a supplementary appeal
with the Cathedral Chapter, arguing that the pecuniary benefits granted
to him by the Parish Council were insufficient and, inter alia,
claiming compensation.
22. Having joined the two appeals, the Cathedral Chapter, on
1 June 1990, considered that the applicant had locus standi as
appellant, having regard to his allegation that a private right of his
had been violated, and to the sufficiently close link between the
dispute and his private interests. Moreover, since he had not been
lawfully notified of the 1977 decision, his appeal was not time-barred.
The Cathedral Chapter rejected the appeal in so far as it concerned
certain effects of the 1977 decision. It found that the 1977 decision
had not changed the applicant's post from full-time to part-time. It
considered itself not competent to examine his claims for damages and
dismissed this part of his appeal without examining its merits.
23. On 28 June 1990 the applicant lodged a further appeal with the
Supreme Administrative Court (korkein hallinto-oikeus, högsta
förvaltningsdomstolen). In an opinion requested by the Court the
Cathedral Chapter, on 5 September 1990, submitted that the appeal
should be rejected. The applicant commented on the opinion on
16 October 1990.
24. On 8 March 1991 the Supreme Administrative Court, without having
held an oral hearing, upheld the Cathedral Chapter's decision in so far
as the applicant's appeal had been rejected. In so far as his appeal
to the Cathedral Chapter had been dismissed for lack of competence, the
Supreme Administrative Court considered that the Cathedral Chapter
would have been competent to examine the dispute regarding his claims
for compensation. The court therefore referred the case back for new
examination. There is no mention of the Cathedral Chapter's opinion and
the applicant's comments thereon in the court's decision.
25. In his fresh submissions to the Cathedral Chapter dated
31 May 1991 the applicant maintained his claims. Should the Cathedral
Chapter not find it established that his post had always been
full-time, he requested an oral hearing, where witnesses could be heard
regarding the character of his post and his working-hours related
thereto. In support of his request he enclosed, inter alia, a written
statement by six former members of the Parish Council who had
participated in creating his post in 1966. According to these members,
the Parish Council had been aware that the applicant's anticipated
working hours clearly sufficed for a full-time post. It had therefore
rejected a proposal to establish a part-time post. The applicant,
moreover, referred to a written statement in which his trade union
considered that the parish had never contested the fact that he had
worked at least 40 hours a week. He had nevertheless been paid a salary
based on only 35 weekly working hours. Although he had (in 1966) been
granted permission to have a secondary occupation (to manage a funeral
home), this had not entitled the parish to amend his employment
contract unilaterally.
26. In its decision of 29 August 1991 the Cathedral Chapter took note
of the various written statements submitted in support of the
applicant's claim. On the basis of the evidence adduced and as it had
not been possible to submit any other item of evidence concerning the
applicant's working hours, the Cathedral Chapter rejected his claim and
essentially upheld the decision of the Parish Council of
10 October 1989. The applicant's request for an oral hearing was not
mentioned in the decision.
27. In his appeal to the Supreme Administrative Court the applicant
requested the Court to quash the Cathedral Chapter's decision and to
refer part of the matter back to the Cathedral Chapter or the Parish
Council, should further investigations concerning part of his alleged
financial entitlements be considered necessary.
28. In a further opinion requested by the Supreme Administrative
Court the Cathedral Chapter, on 11 December 1991, maintained that the
applicant's appeal should be rejected. The applicant commented on the
opinion on 16 January 1992.
29. On 31 March 1992 the Supreme Administrative Court upheld the
Cathedral Chapter's decision of 29 August 1991 without having held an
oral hearing. It referred to section 538b of the Church Act as well as
to the Regulations on Posts and Salaries of the parish as adopted by
the Cathedral Chapter in 1988. There is no mention of the Cathedral
Chapter's opinion and the applicant's comments thereon in the court's
decision.
B. Relevant domestic law
30. According to the 1964 Church Act (kirkkolaki 635/64, kyrkolag
635/64), as in force at the material time, a decision of a Church
Council was appealable by anyone who considered that a private right
of his or hers had been violated (section 323, subsection 1).
31. The Cathedral Chapter is the administrative and judicial body of
the Diocese (section 432). At the relevant time it was chaired by the
Bishop and further consisted of three church assessors and one legal
assessor. The Dean of the Cathedral Congregation
(tuomiokirkko-seurakunnan tuomiorovasti, domkyrkoförsamlingens
domprost) was one of the church assessors and also Vice-Chairman of the
Cathedral Chapter. The two other church assessors were elected by the
priests and curates of the diocese among its permanent priests. These
assessors sat for a period of three years. As long as they were priests
in the same parish or parish confederation they could not sit on the
Cathedral Chapter for more than two periods. The legal assessor was a
lawyer appointed by the Cathedral Chapter (sections 433-435).
32. The rules governing bias of a member of the Cathedral Chapter
were the same as those laid down in the Code on Judicial Procedure
(Oikeudenkäymiskaari, Rättegångs Balk) which are generally applicable
to professional and lay judges (section 436, subsection 3, and
chapter 13, section 1). The members of the Chapter had to swear a
judicial oath before taking up their office (section 437).
33. As "the court of the first instance" the Cathedral Chapter was
to deal with disputes pertaining to, for instance, wage claims by
parish officials (section 443 of the Church Act).
34. If it considered it necessary to hear witnesses, the Cathedral
Chapter had to see to it that these were heard before an ordinary court
of first instance (section 455).
35. According to section 538b of the 1964 Church Act, the necessary
provisions concerning, inter alia, the employment conditions of a post
of the church were, to the extent they did not appear in already
existing regulations and collective agreements, to be issued in the
form of a regulation by the Church Assembly (kirkolliskokous,
kyrko-mötet). Regulations were also to be issued in respect of the
tasks of a postholder.
36. On 1 January 1994 the 1993 Church Act entered into force, thus
replacing the 1964 Act. The new Act expressly provides for a
possibility to hold an oral hearing before the Cathedral Chapter itself
(chapter 19, sections 6 and 7).
37. According to the 1918 Act on the Supreme Administrative Court
(no. 74/18), the court may hold oral hearings and carry out inspections
(section 15, subsection 1). The 1996 Act on Judicial Procedure in
Administrative Matters (hallintolainkäyttölaki, förvaltningsprocesslag
588/96) is to enter into force on 1 December 1996. It stipulates, inter
alia, that the Supreme Administrative Court shall, if so requested by
a private party, hold an oral hearing when dealing with an appeal
against the decision of an administrative body. In certain
circumstances an oral hearing may nevertheless be refused (section 38,
subsection 1).
III. OPINION OF THE COMMISSION
A. Complaint declared admissible
38. The Commission has declared admissible the applicant's complaint
that he was denied a fair and oral hearing before an independent and
impartial tribunal.
B. Points at issue
39. The issues to be determined are:
- whether there has been a violation of Article 6 para. 1
(Art. 6-1) of the Convention on account of the absence of an oral
hearing before an independent and impartial tribunal; and
- whether there has been a violation of Article 6 para. 1
(Art. 6-1) of the Convention on account of the alleged unfairness of
the proceedings.
C. As regards Article 6 para. 1 (Art. 6-1) of the Convention
40. Article 6 para. 1 (Art. 6-1) of the Convention reads, in so far
as it is relevant, as follows:
"In the determination of his civil rights ..., everyone is
entitled to a fair and public hearing ... by an independent
and impartial tribunal established by law. ..."
41. It is undisputed between the parties that Article 6 para. 1
(Art. 6-1) applies in the present case. The Commission sees no reason
to take a different view and, accordingly, finds that this provision
is applicable.
(i) The absence of an oral hearing before an independent and
impartial tribunal
42. The applicant complains that he was denied an oral hearing before
the Cathedral Chapter after the Supreme Administrative Court had
referred part of his appeal back for new examination. In support of his
claims he had obtained written statements from persons who had
participated in creating his post in 1966. By wishing to hear those
persons as witnesses under oath he sought to prove that it had been
established as a full-time post. Article 6 para. 1 (Art. 6-1) of the
Convention placed the appeal bodies under a duty to conduct a proper
examination of the submissions, arguments and evidence adduced by the
parties, without prejudice to their assessment of whether they were
relevant to their decisions.
43. The applicant therefore argues that a weighty public interest
warranted the holding of an oral hearing before at least one "tribunal"
within the meaning of Article 6 para. 1 (Art. 6-1). The Cathedral
Chapter was allegedly not prevented by domestic law from holding an
oral hearing. Even supposing that it was so prevented, the Supreme
Administrative Court could, of its own motion, have decided to hold
such a hearing. In his appeal to that body the applicant indeed
requested, in substance, that such a hearing be held, should the court
find it necessary to obtain further evidence. Thus he did not
unequivocally waive his right to request an oral hearing before the
Supreme Administrative Court. He also considers that due to its
composition and subordination to the Evangelical-Lutheran Church the
Cathedral Chapter was not an "independent and impartial tribunal"
within the meaning of Article 6 para. 1 (Art. 6-1).
44. Finally, the applicant refers to Finland's reservation to
Article 6 para. 1 (Art. 6-1) in which she has declared that she cannot
guarantee a right to an oral hearing before the Supreme Administrative
Court. For this reason alone he cannot be required to have requested,
in express terms, an oral hearing before that court. In any case, he
considers that the Finnish reservation "does not apply in the instant
case".
45. The Government consider that Article 6 para. 1 (Art. 6-1) has not
been violated as a result of the absence of an oral hearing. Although
the Cathedral Chapter also carries out administrative tasks, it was,
when performing its judicial functions in the applicant's case, an
"independent and impartial tribunal" within the meaning of Article 6
para. 1 (Art. 6-1). However, at the material time it was not itself
empowered to hold oral hearings.
46. The Government furthermore consider that the applicant
unequivocally waived his right to request an oral hearing before the
Supreme Administrative Court which, equally, had full appellate
jurisdiction. Although Finland's reservation to Article 6 para. 1
(Art. 6-1) excludes any "right" to an oral hearing before that court,
it did not deprive the applicant of the possibility of obtaining one.
Given that the Supreme Administrative Court does not, as a rule, hold
oral hearings in matters of the present kind, the applicant could have
been expected to request such a hearing in express terms, if he
attached importance thereto. His request to have the case referred back
to the Cathedral Chapter, should the Supreme Administrative Court need
further evidence, cannot be construed as a request for an oral hearing
before that court.
47. The Government finally consider that the dispute at issue did not
raise any questions of public interest which would have rendered an
oral hearing before the Supreme Administrative Court necessary. The
applicant's appeal was better dealt with in writing, since the material
before the courts was sufficient and he had made use of the possibility
of lodging written comments, including the statements of those persons
whom he wished to have heard as witnesses. In the particular
circumstances of the case oral argument during a public hearing would
not have provided any further guarantee of the fundamental principles
underlying Article 6 (Art. 6). On the contrary, an oral hearing would
have contributed to the length and costs of the proceedings.
48. The Commission recalls that the holding of court hearings in
public constitutes a fundamental principle enshrined in Article 6
para. 1 (Art. 6-1) of the Convention. This public character protects
litigants against the administration of justice in secret with no
public scrutiny; it is also one of the means whereby confidence in the
courts can be maintained. By rendering the administration of justice
transparent, publicity contributes to the achievement of the aim of
Article 6 para. 1 (Art. 6-1), namely a fair trial, the guarantee of
which is one of the fundamental principles of any democratic society,
within the meaning of the Convention (see, e.g., Eur. Court HR, Diennet
v. France judgment of 26 September 1995, para. 33, to be published in
Series A no. 325).
49. Nevertheless, Article 6 (Art. 6) does not oblige the Contracting
States to submit disputes over civil rights to a procedure which at
each stage meets the requirements of Article 6 (Art. 6), provided it
eventually may be determined by a body which does (cf., e.g., Eur.
Court HR., Le Compte, Van Leuven and De Meyere v. Belgium judgment of
23 June 1984, Series A no. 43, pp. 22-23, para. 51). It is sufficient
that, in the determination of "civil rights and obligations", decisions
taken by administrative authorities which do not themselves satisfy the
requirements of that provision be subject to subsequent control by an
independent judicial body with sufficient jurisdiction and which itself
provides the safeguards required by Article 6 para. 1 (Art. 6-1) (see,
e.g., Eur. Court HR, Fischer v. Austria judgment of 26 April 1995,
Series A no. 312, p. 17, para. 28; British-American Tobacco Company Ltd
v. the Netherlands judgment of 20 November 1995, Series A no. 331,
pp. 25-26, para. 78).
50. Moreover, neither the letter nor the spirit of Article 6 (Art. 6)
prevents a person from waiving of his own free will, either expressly
or tacitly, the entitlement to have his case heard in public. Any such
waiver must, however, be made in an unequivocal manner and must not run
counter to any important public interest (see, e.g., Eur. Court HR,
Schuler-Zgraggen v. Switzerland judgment of 24 June 1993, Series A
no. 263, pp. 19-20, para. 58; Håkansson and Sturesson v. Sweden
judgment of 21 February 1990, Series A no. 171, p. 20, para. 67).
51. In proceedings before a court of first and only instance the
right to a "public hearing" in the sense of Article 6 para. 1
(Art. 6-1) may entail an entitlement to an oral hearing (see, e.g.,
Eur. Court HR, Fredin v. Sweden judgment (no. 2) of 23 February 1994,
Series A no. 283-A, p. 10, para. 21). If several judicial bodies may
examine the matter, a hearing before one of them may suffice (cf.,
e.g., Jan-Åke Andersson judgment of 29 October 1991, Series A
no. 212-B, pp. 45-46, paras. 27 et seq.).
52. It is in dispute whether, when performing its judicial functions
in the applicant's case, the Cathedral Chapter met the requirements of
an "independent and impartial tribunal" within the meaning of Article 6
para. 1 (Art. 6-1). It is also disputed whether the applicant
unequivocally waived his right to request an oral hearing before the
Supreme Administrative Court. For the reasons below, the Commission
need not resolve these questions.
53. It is undisputed that in his appeal to the Cathedral Chapter the
applicant requested a hearing of witnesses. This was tacitly refused.
The Commission notes, however, that the Cathedral Chapter was not the
only appeal body to rule on his case (cf., a contrario, the
above-mentioned Håkansson and Sturesson judgment, p. 20, para. 64). The
applicant lodged a further appeal with the Supreme Administrative Court
which, and this has not been disputed, was an "independent and
impartial tribunal" within the meaning of Article 6 para. 1 (Art. 6-1).
This court furthermore had full appellate jurisdiction.
54. The Commission is of the view that in the present case Article 6
para. 1 (Art. 6-1) did not oblige the respondent State to submit the
dispute at issue to a procedure before the Cathedral Chapter which also
met the requirements of that provision. An oral hearing before the
Supreme Administrative Court would therefore have sufficed to satisfy
those requirements.
55. The question now arises whether the absence of an oral hearing
before the Supreme Administrative Court was covered by Finland's
reservation to Article 6 para. 1 (Art. 6-1). This reservation reads,
in so far as relevant, as follows:
"In accordance with Article 64 (Art. 64) of the Convention,
the Government of Finland makes the following reservation
in respect of the right to a public hearing guaranteed by
Article 6, paragraph 1 (Art. 6-1) of the Convention.
For the time being, Finland cannot guarantee a right to an
oral hearing in so far as the current Finnish laws do not
provide such a right. This applies to:
...
2. proceedings before ... the Supreme Administrative
Court in accordance with ... section 15 of the Supreme
Administrative Court Act; ...
The provisions of the Finnish laws referred to above are
attached to this reservation as a separate annex."
56. The relevant part of section 15 of the Supreme Administrative
Court Act reads, according to the annex to the above reservation, as
follows:
"In investigating a case, the Supreme Administrative Court
may ... hold oral hearings ... . In an oral hearing the
parties, witnesses and experts may be heard, and other
evidence may be received.
The Supreme Administrative Court may decide that oral
hearings ... be conducted by one or more members of the
Court together with the referendary."
57. Article 64 (Art. 64) of the Convention reads as follows:
"1. Any State may, when signing this Convention or when
depositing its instrument of ratification, make a
reservation in respect of any particular provision of the
Convention to the extent that any law then in force in its
territory is not in conformity with the provision.
Reservations of a general character shall not be permitted
under this Article.
2. Any reservation made under this Article shall contain
a brief statement of the law concerned."
58. It is undisputed between the parties that Finland's reservation
is valid in the light of Article 64 para. 1 (Art. 64-1). The Commission
sees no reason to differ. Nor can it find any indication that the
reservation does not comply with Article 64 para. 2 (Art. 64-2).
59. As the reservation is therefore compatible with Article 64
(Art. 64) and the absence of an oral hearing before the Supreme
Administrative Court is covered by that reservation, the Commission
finds that there has been no violation of Article 6 para. 1 (Art. 6-1).
CONCLUSION
60. The Commission concludes, unanimously, that in the present case
there has been no violation of Article 6 para. 1 (Art. 6-1) of the
Convention with regard to the absence of an oral hearing before an
independent and impartial tribunal.
(ii) The fairness of the proceedings
61. The applicant also complains that he was placed at a substantial
disadvantage vis-à-vis the Parish Council in both rounds of the appeal
proceedings. In examining his first appeal the Supreme Administrative
Court requested an opinion from the Cathedral Chapter, thereby inviting
the Cathedral Chapter to appear as a party to the appeal proceedings.
The wording of the opinion allegedly showed that the Cathedral Chapter
was acting as the applicant's opposite party together with the Parish
Council. The Cathedral Chapter could no longer be considered
"independent and impartial" in the second round of proceedings once it
had submitted an opinion to the Supreme Administrative Court.
62. Finally, the applicant complains that the decisions of the
Cathedral Chapter and the Supreme Administrative Court were
insufficiently reasoned. Despite the weighty evidence adduced by him
both appeal bodies based their decisions on an unreasoned presumption
that his post had always been part-time. Allegedly, neither of the two
bodies pronounced itself on the gist of the dispute between him and the
Parish Council, i.e. whether his employment conditions could legally
be amended in the manner resorted to in his case. Nor did any of the
two bodies explain why the evidence presented by him was ignored.
63. The Government submit that Article 6 para. 1 (Art. 6-1) has not
been violated. The Cathedral Chapter's opinion was neutrally worded,
merely reiterating the main reasons for its decision, noting that the
applicant had not presented any essentially new arguments in his
further appeal and concluding that it was unfounded. Thus the Cathedral
Chapter did not join ranks with the Parish Council as the applicant's
opposite party in the proceedings before the Supreme Administrative
Court.
64. The Government finally recall that the Commission is not
competent to review the national authorities' assessment of the
evidence adduced in the applicant' case, unless this assessment were
to be manifestly arbitrary. That situation is not at hand in the
present case.
65. The Commission recalls that it is not its task to substitute its
own assessment of the facts for that of the national courts. Instead
it must ascertain whether the overall proceedings, including the way
in which evidence was dealt with, were fair within the meaning of
Article 6 para. 1 (Art. 6-1) (see, e.g., Eur. Court HR, Dombo Beheer
v. the Netherlands judgment of 27 October 1993, Series A no. 274,
pp. 18-19, para. 31 and the references therein). The requirement of
"equality of arms" inherent in the concept of a "fair hearing" implies
that each party must be afforded a right to participate properly in the
proceedings as well as a reasonable opportunity to present his case
under conditions which do not place him at a substantial disadvantage
vis-à-vis his opponent (see, e.g., ibid., p. 19, paras. 32-33;
Eur. Court HR, Feldbrugge v. the Netherlands judgment of 29 May 1986,
Series A no. 99, pp. 17-18, para. 44). In short, the procedure must
allow proper participation of each party (cf., e.g., Eur. Court HR,
Kerojärvi v. Finland judgment of 19 July 1995, Series A no. 322, p. 16,
para. 42 and the further references therein; Nideröst-Huber v. Austria,
Comm. Report 23.10.95, para. 39).
66. Article 6 para. 1 (Art. 6-1) furthermore places the "tribunal"
under a duty to conduct a proper examination of the submissions,
arguments and evidence adduced by the parties, without prejudice to its
assessment of whether they are relevant to its decision. It also
obliges the courts to give reasons for their judgments, but cannot be
understood as requiring a detailed answer to every argument. Nor are
the Convention organs called upon to examine whether arguments are
adequately met (see, e.g., Eur. Court HR, Van de Hurk v. the
Netherlands judgment of 19 April 1994, Series A no. 288, pp. 19-20,
paras. 59-61). The question whether a court has failed to fulfil the
obligation to state reasons can only be determined in the light of the
circumstances of the case (see, e.g., Eur. Court HR, Ruiz Torija v.
Spain judgment of 9 December 1994, Series A no. 303-A, p. 12,
para. 29).
67. The Commission notes that the applicant was able to comment on
the Cathedral Chapter's opinion to the Supreme Administrative Court.
In such circumstances the Supreme Administrative Court's request for
an opinion and the submission by the Cathedral Chapter of that very
opinion do not render the proceedings unfair.
68. It is true that, in upholding the respective decisions of the
Parish Council and the Cathedral Chapter, the Cathedral Chapter and the
Supreme Administrative Court in essence ruled against the applicant,
having found insufficient evidence in support of his contention that
his post had been full-time. As a result it was not necessary for these
appeal bodies to examine whether his employment conditions could
legally be "amended". The reasons relied upon were in substance those
advanced by the Parish Council in its decision of 10 October 1989. The
fact that these reasons were not reproduced in extenso in the appeal
bodies' decisions does not suffice for a finding of unfairness.
69. Considering the proceedings as a whole, there has, accordingly,
been no violation of Article 6 para. 1 (Art. 6-1) of the Convention on
this point either.
CONCLUSION
70. The Commission concludes, by 25 votes to 5, that in the present
case there has been no violation of Article 6 para. 1 (Art. 6-1) of the
Convention with regard to the fairness of the proceedings.
D. Recapitulation
71. The Commission concludes, unanimously, that in the present case
there has been no violation of Article 6 para. 1 (Art. 6-1) of the
Convention with regard to the absence of an oral hearing before an
independent and impartial tribunal (para. 60).
72. The Commission concludes, by 25 votes to 5, that in the present
case there has been no violation of Article 6 para. 1 (Art. 6-1) of the
Convention with regard to the fairness of the proceedings (para. 70).
H.C. KRÜGER S. TRECHSEL
Secretary President
to the Commission of the Commission
(Or. English)
PARTIALLY DISSENTING OPINION OF MRS. J. LIDDY,
JOINED BY MM. E. BUSUTTIL, L. LOUCAIDES, N. BRATZA AND M. VILA AMIGÓ
I regret that I cannot agree that there has been no violation of
the right to a fair hearing in this case.
The applicant considered that he was employed on a full-time
basis by the parish authorities. On 10 October 1989 the parish
authorities disputed this, while nonetheless awarding him some extra
pension and compensatory sums, apparently on an ex gratia basis. The
dispute went before the Cathedral Chapter and the applicant produced
in his support a written statement signed by six members of the Parish
Council as to the full-time nature of the post that was created in
1966. There is no indication that in proceedings of this kind such a
statement would have been inadmissible evidence. The Cathedral Chapter
in Finnish law appears to have the standing of an administrative
tribunal, without necessarily being a tribunal for the purpose of the
Convention. It rejected the applicant's claim and also his request for
an oral hearing of his witnesses without stating why the evidence
submitted by the applicant was insufficient and without stating what
other, countervailing, evidence there was and without stating why the
witnesses could not be called.
The applicant then appealed to the Supreme Administrative Court,
but in these proceedings his de facto opponent was, apparently, the
Cathedral Chapter itself, as the decision-making body, and not the
other party to the original dispute, the parish authorities. The
Supreme Administrative Court did not take any evidence, whether by way
of public hearing or otherwise, and did not refer the matter back to
the Cathedral Chapter for further investigation, as requested by the
applicant. Having obtained the comments of the Cathedral Chapter and
the applicant, it saw no reason to change the latter's decision. It is
undisputed that the Supreme Administrative Court is a tribunal within
the meaning of Article 6.
Article 6 para. 1 places a tribunal under a duty to conduct a
proper examination of the submissions and evidence adduced by the
parties and to give reasons for its judgment. The question of whether
a court has failed to fulfil the obligation to state reasons can only
be determined in the light of the circumstances of the case (Eur.
Court. HR, Ruiz Torija v. Spain, Series A Vol. 303-A).
In the present case the applicant has received no reason
whatsoever as to why the evidence he produced, and which was not
apparently countered by other evidence in proceedings before the
Supreme Administrative Court was not accepted as showing the full-time
nature of the post. Moreover, he appears to have been at a disadvantage
vis-à-vis his real opponent, the parish authorities, in that those
authorities were, apparently, replaced by the more prestigious
Cathedral Chapter as his opponent before the Supreme Administrative
Court, which merely adopted the Chapter's decision without reasoning.
He has never received a determination of the question of the nature of
the original agreement between the parties concerning his employment
and whether that agreement had been observed. This cannot have been a
difficult question to respond to by reference to the facts established
by the tribunal and the national law principles applicable. It may be
that the outcome in financial terms would have been no more favourable
than the payments made in 1989, but there was a real and serious
dispute which called for a reasoned answer.
Even assuming that the Cathedral Chapter was an independent and
impartial tribunal within the meaning of the Convention, and that it
would suffice for the Supreme Administrative Court to adopt the
Cathedral Chapter's reasons, I see no support in the facts for the
statement by the majority at paragraph 68 of the Report that "the
Supreme Administrative Court in essence ... found insufficient evidence
in support of [the applicant's] contention that his post had been full-
time". There is no statement by either the Cathedral Chapter or the
Supreme Administrative Court to the effect that the applicant had put
forward insufficient evidence or that his evidence was outweighed by
contrary evidence. Accordingly, it is not necessary in the present case
to express an opinion as to whether the Cathedral Chapter was in fact
an independent and impartial tribunal within the meaning of Article 6
or as to whether, if it was, the principle of equality of arms was
infringed by the role it played before the Supreme Administrative
Court. It suffices to note that the duty to give reasons for an
eventual judgment against a litigant cannot be met by the inference
that the court has "in essence" not been satisfied by his or her
evidence.
In the circumstances I consider that the applicant's right to a
fair hearing has been violated.
(Or. English)
SEPARATE OPINION OF MR. M. PELLONPÄÄ
I share the conclusions of the Commission but would like to add
the following.
This case concerns disputes between the applicant, a retired
public servant of a parish of the Evangelical-Lutheran State Church of
Finland, and his former employer. As the European Court of Human Rights
has stated, "disputes relating to the recruitment, employment and
retirement of public servants are as a general rule outside the scope
of Article 6 para. 1" of the Convention (Francesco Lombardo v. Italy
judgment of 26 November 1992, Series A no. 249-B, p. 26, para. 17).
I subscribe to this interpretation and have held a critical attitude
towards certain decisions in which a majority of the Commission has,
in my view, extended the scope of Article 6 para. 1 beyond the limits
indicated, for example, by the above-mentioned Lombardo judgment (see
my dissenting opinions in F.N. v. France; Comm. Report of
17 October 1995, and Huber v. France; Comm. Report of 15 October 1996).
As the present case discloses features of a dispute relating to
public service, I consider it appropriate to explain why I nevertheless
accept the conclusion of the Commission also insofar as concerns the
applicability of Article 6, although I found this provision not to be
applicable in the French cases. A major distinguishing feature in the
present case is the fact that a dispute of a clearly - and
predominantly - pecuniary nature was among the issues before the
Cathedral Chapter and the Supreme Administrative Court (see para. 20
et. seq. of the Report). This alone is sufficient to bring the case
within the scope of Article 6 para. 1 (cf. Editions Périscope v. France
judgment of 26 March 1992, Series A no. 234-B, p. 66, para. 40). I also
note that the question of the applicability of Article 6 was not in
dispute between the parties (see para. 41 of the Report).
Full & Egal Universal Law Academy