AS TO THE ADMISSIBILITY OF
Application No. 20772/92
by Pekka HELLE
against Finland
The European Commission of Human Rights sitting in private on
7 March 1996, the following members being present:
MM. S. TRECHSEL, President
C.L. ROZAKIS
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
J.-C. SOYER
H.G. SCHERMERS
F. MARTINEZ
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
B. MARXER
I. CABRAL BARRETO
I. BÉKÉS
D. SVÁBY
G. RESS
A. PERENIC
C. BÎRSAN
P. LORENZEN
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 28 September 1992
by Pekka Helle against Finland and registered on 6 October 1992 under
file No. 20772/92;
Having regard to the reports provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having regard to the observations submitted by the respondent
Government on 16 February 1995, the observations in reply submitted by
the applicant on 12 April 1995, the Government's additional
observations of 25 June 1995 and the applicant's additional
observations of 10 October 1995;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a retired verger, born in 1931 and resident at
Mäntsälä. Before the Commission he is represented by Mr. Heikki Salo,
a lawyer practising in Helsinki.
The facts of the case, as submitted by the parties, may be
summarised as follows.
Particular circumstances of the case
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 in the absence of a decision in writing. It had been the
applicant's understanding that the post was of a full-time nature. 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 of a part-time nature, this affecting his
salary and pension rights (hereinafter "the 1977 decision").
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 Diocese (hiippakunta,
stiftet) of Helsinki.
By decision of 13 September 1989 the National Ecclesiastical
Board (kirkkohallitus, kyrkostyrelsen) granted the applicant early
retirement pension as from 1 October 1989.
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 and also increased his pension benefits.
He was also awarded a compensatory lump sum.
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.
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 further considered itself to
lack competence to examine what it regarded as the applicant's claims
for damages and therefore dismissed this part of his appeal without
examining its merits.
On the applicant's further appeal of 28 June 1990 the Supreme
Administrative Court (korkein hallinto-oikeus, högsta förvaltnings-
domstolen) on 8 March 1991 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 and referred the case back for
new examination. The Cathedral Chapter was instructed to "again"
provide the applicant with an opportunity to "be heard".
In an opinion requested by the Supreme Administrative Court the
Cathedral Chapter had, on 5 September 1990, submitted that the
applicant's appeal should be rejected. The applicant had commented on
the opinion on 16 October 1990. There is no mention, however, of the
opinion and the applicant's comments in the Supreme Administrative
Court's decision.
In his 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 of a full-time character,
he requested an oral hearing, where witnesses could be heard regarding
the decisions concerning the character of his post and his working-
hours.
On 29 August 1991 the Cathedral Chapter rejected the applicant's
appeal and upheld the decision of the Parish Council of
10 October 1989. The Cathedral Chapter found, inter alia, that it had
not been established whether or not the applicant's post had been of
a full-time or part-time nature as from 1966. His request for an oral
hearing was not mentioned in the decision.
In his further appeal to the Supreme Administrative Court the
applicant requested the Court to quash the Cathedral Chapter's decision
and possibly 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.
On 31 March 1992 the Supreme Administrative Court upheld the
Cathedral Chapter's decision of 29 August 1991 without holding an oral
hearing.
In a further opinion requested by the Supreme Administrative
Court the Cathedral Chapter had, on 11 December 1991, maintained that
the applicant's appeal should be rejected. The applicant had commented
on the opinion on 16 January 1992. There is no mention, however, of the
opinion and the applicant's comments in the Supreme Administrative
Court's decision.
Relevant domestic law
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 is appealable by anyone who considers that a private right of
his or hers has been violated (section 323, subsection 1, as amended
by Act no. 614/79).
The Cathedral Chapter is the administrative and judicial body of
the Diocese (section 432). It is chaired by the Bishop and further
consists of three church assessors and one legal assessor, the
last-mentioned assessor being elected by the Chapter itself (sections
433 and 435). The rules governing bias of a member of the Cathedral
Chapter are 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 shall swear a
judicial oath before taking up their office (section 437).
The Cathedral Chapter shall, as the court of the first instance,
deal with disputes pertaining to, for instance, wage claims by parish
officials (section 443 of the Church Act).
According to section 455, the Cathedral Chapter shall, if it
considers it necessary to hear witnesses, see to it that these are
heard before an ordinary court of first instance. This possibility
afforded by the 1964 Act is also referred to in the Government Bill
concerning the 1993 Church Act (no. 1054/93; Bill no. 23/93, p. 29).
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).
According to the 1918 Act on the Supreme Administrative Court,
this court may hold oral hearings and carry out inspections
(section 15, as amended by Act no. 12/79). In practice oral hearings
are rare and in matters of the present kind the proceedings are, as a
rule, in writing.
COMPLAINTS
1. The applicant complains that he was denied a fair trial in
several respects.
Firstly, the decisions of the Cathedral Chapter and the Supreme
Administrative Court were insufficiently reasoned. These judicial
bodies failed to examine whether or not the 1977 decision was in breach
of domestic law. They further disregarded evidence presented by the
applicant according to which, starting from 1966, his post as a verger
had been of a full-time nature. Instead they based their decisions on
an unreasoned presumption that it had been of a part-time nature.
Secondly, the applicant was denied an oral hearing before the
Cathedral Chapter after the Supreme Administrative Court had referred
part of his appeal back for new examination.
Thirdly, in examining the applicant's appeal of 28 June 1990 the
Supreme Administrative Court requested an opinion from the Cathedral
Chapter. Since it thereby invited the Cathedral Chapter to appear as
a party to the appeal proceedings, it could no longer be considered as
an independent and impartial tribunal.
Fourthly, having submitted its opinion on the applicant's appeal
of 28 June 1990, the Cathedral Chapter became a party to the appeal
proceedings before the Supreme Administrative Court. In the subsequent
proceedings before the Cathedral Chapter itself this body could no
longer be considered as an independent and impartial tribunal either,
account also being taken of its composition.
The applicant invokes Article 6 para. 1 of the Convention.
2. The applicant furthermore complains that the refusal fully to
award him the requested pecuniary benefits to which he is allegedly
entitled, on the presumption that his post was of a full-time nature
as from 1966, violates his property rights. He invokes Article 1 of
Protocol No. 1.
3. In his submissions of 12 April 1995 the applicant also complains
that the denial of a fair hearing discriminated against him, contrary
to Article 14 of the Convention read in conjunction with Article 6
para. 1.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 28 September 1992 and
registered on 6 October 1992.
On 30 November 1994 the Commission (First Chamber) decided to
communicate the complaint under Article 6 para. 1 of the Convention to
the respondent Government, pursuant to Rule 48 para. 2 (b) of the Rules
of Procedure.
The Government's written 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.
On 27 February 1996 the plenary Commission ordered the transfer
of the application to itself pursuant to Article 20 para. 4 of the
Convention.
THE LAW
1. The applicant complains under Article 6 para. 1 (Art. 6-1) of the
Convention that he was denied a fair trial in several respects. This
provision reads, in so far as it is relevant:
"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. ..."
The Government submit that Article 6 para. 1 (Art. 6-1) has not
been violated on any of the points raised by the applicant. They recall
that the Commission is not competent to review the national
authorities' assessment of the evidence adduced in his case, unless
this assessment were to be manifestly arbitrary.
The Government furthermore submit that the Cathedral Chapter was
an "independent and impartial tribunal" within the meaning of Article
6 para. 1 (Art. 6-1). It is a permanent body established by law, its
jurisdiction is compulsory and its decisions are binding and
enforceable. Although it also carries out administrative tasks, it was,
when performing its judicial functions in the applicant's case,
independent of both parties and objectively impartial.
The Government consider that the applicant unequivocally waived
his possibility to obtain an oral hearing before a "tribunal" within
the meaning of Article 6 para. 1 (Art. 6-1). They maintain that under
the law in force at the material time the Cathedral Chapter could not
have held an oral hearing in public in the applicant's case. The
applicant did not expressly request the Supreme Administrative Court
to hold an oral hearing nor otherwise bring to its attention that a
failure to hold an oral hearing at that stage would result in a total
lack of an oral hearing. Considering 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 a hearing in
express terms, if he attached importance thereto.
The Government furthermore consider that the dispute at issue did
not raise any questions of public interest which would have rendered
an oral hearing necessary. It was better dealt with in writing, since
the material before the courts was sufficient and the applicant had
made use of his possibility of lodging written comments. An oral
hearing would also have contributed to the length and costs of the
proceedings. Should the Commission find that the Supreme Administrative
Court ought to have held an oral hearing, the Government refer to its
reservation concerning Article 6 para. 1 (Art. 6-1).
The Government finally recall that the Supreme Administrative
Court obtained the Cathedral Chapter's opinion on the applicant's
appeal only after the Cathedral Chapter had reached its final decision
in the matter. In any case the opinion was neutrally worded. The
Cathedral Chapter merely reiterated the main reasons for its decision,
noted that the applicant had not presented any essentially new
arguments in his appeal to the Supreme Administrative Court and
concluded that his appeal was unfounded. Nothing in the opinion made
the Cathedral Chapter join ranks with the Parish Council as the
applicant's opposite party in the proceedings before the Supreme
Administrative Court.
The applicant maintains that the Cathedral Chapter was not
prevented by domestic law from holding an oral hearing. The Parish
Council had, without hearing him, unilaterally and retrospectively
considered his full-time post to be of a part-time nature. By wishing
to hear various witnesses he sought to prove that his post had been
created as a full-time post. A weighty public interest thus warranted
the holding of an oral hearing before at least one "tribunal". Even
assuming that domestic law would have prevented the Cathedral Chapter
from holding an oral hearing, the Supreme Administrative Court could,
of its own motion, have ordered an oral hearing to be held. In his last
appeal to the Supreme Administrative Court he requested, in substance,
that an oral hearing be held, should that court find it necessary to
obtain further evidence. At any rate he did not unequivocally waive his
right to request an oral hearing. He recalls, moreover, that in its
reservation to Article 6 (Art. 6) the respondent State has declared
that it cannot guarantee a right to an oral hearing before the Supreme
Administrative Court in cases of the present kind. Already for this
reason he cannot be required to have requested, in express terms, an
oral hearing before that court.
The applicant further submits that he was placed at a substantial
disadvantage vis-à-vis the Parish Council, in particular as regards the
presentation of evidence. Despite the weighty evidence adduced by him
the Cathedral Chapter and the Supreme Administrative Court based their
decisions on an unreasoned presumption that his post had from the
outset been of a part-time character. Moreover, after having rejected
his claims in August 1991 the Cathedral Chapter submitted a negative
opinion on his further appeal to the Supreme Administrative Court. The
wording of the opinion clearly showed that the Cathedral Chapter was
acting as the applicant's opposite party together with the Parish
Council. Since the Cathedral Chapter's opinion formed the basis for the
Supreme Administrative Court's decision, the applicant was, in any
event, denied a fair hearing before an "independent" and objectively
"impartial" tribunal.
The applicant finally submits that neither the Cathedral Chapter
nor the Supreme Administrative Court 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 they explain why the evidence
presented by him was ignored.
The Commission has carried out a preliminary examination of the
various aspects of the complaint under Article 6 para. 1 (Art. 6-1) of
the Convention. It considers that the complaint as a whole raises
questions of fact and law, including questions concerning the Finnish
reservation to Article 6 (Art. 6), of such a complex nature that their
determination requires an examination of the merits. This complaint
cannot therefore be declared inadmissible as being manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention. No other reason for declaring the complaint inadmissible
has been established.
2. The applicant furthermore complains that the refusal fully to
award him the requested pecuniary benefits to which he is allegedly
entitled, on the presumption that his post was of a full-time nature
as from 1966, violates his property rights. He invokes Article 1 of
Protocol No. 1 (P1-1) which reads as follows:
"Every natural or legal person is entitled to the peaceful
enjoyment of his possessions. No one shall be deprived of
his possessions except in the public interest and subject
to the conditions provided for by law and by the general
principles of international law.
The preceding provisions shall not, however, in any way
impair the right of a State to enforce such laws as it
deems necessary to control the use of property in
accordance with the general interest or to secure the
payment of taxes or other contributions or penalties."
The Commission recalls that neither the Convention nor any of its
Protocols protects a right to obtain possessions. Article 1 of Protocol
No. 1 (P1-1) is limited to enshrining the right of everyone to the
peaceful enjoyment of "his" possessions and thus applies only to
existing possessions (see Eur. Court H.R., Marckx judgment of
13 June 1979, Series A no. 31, p. 23, para. 50 and Eur. Court. H.R.,
Van der Mussele judgment of 29 September 1983, Series A no. 70, p. 23,
para. 48). The requested pecuniary benefits to which the applicant
considers himself entitled cannot therefore be considered "possessions"
within the meaning of the above-mentioned provision. Accordingly, the
Commission finds no appearance of any violation of Article 1 of
Protocol No. 1 (P1-1).
It follows that this complaint must be rejected as being
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
3. In his submissions of 12 April 1995 the applicant also complains
that the denial of a fair hearing discriminated against him, contrary
to Article 14 of the Convention read in conjunction with Article 6
para. 1 (Art. 14+6-1).
The question arises whether the applicant has thereby expanded
his application on a point which cannot be considered as a particular
aspect of any of his initial complaints (cf. No. 10857/84,
Dec. 15.7.86, D.R. 48, pp. 106 et seq., at p. 152). If so, the six
months' period under Article 26 (Art. 26) of the Convention would not
have been respected, since this additional complaint was lodged more
than six months after the final decision within the meaning of that
provision, i.e. the Supreme Administrative Court's decision of
31 March 1992.
Even assuming that the applicant's present complaint can be
considered as a particular aspect of his initial application, the
Commission finds this complaint unsubstantiated. Accordingly, there is
no appearance of any violation of Article 14 of the Convention read in
conjunction with Article 6 para. 1 (Art. 14+6-1).
It follows that this complaint must in any event be rejected as
being manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
For these reasons, the Commission, unanimously,
DECLARES ADMISSIBLE, without prejudging the merits, the
applicant's complaint that he was denied a fair hearing before
an independent and impartial tribunal; and
DECLARES INADMISSIBLE the remainder of the application.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (S. TRECHSEL)
Full & Egal Universal Law Academy