AS TO THE ADMISSIBILITY OF
Application No. 25761/94
by Toivo KULPAKKO
against Finland
The European Commission of Human Rights (First Chamber) sitting
in private on 15 May 1996, the following members being present:
Mr. C.L. ROZAKIS, President
Mrs. J. LIDDY
MM. E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
M.P. PELLONPÄÄ
B. MARXER
B. CONFORTI
N. BRATZA
I. BÉKÉS
E. KONSTANTINOV
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
Mrs. M.F. BUQUICCHIO, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 5 October 1994 by
Toivo KULPAKKO against Finland and registered on 23 November 1994 under
file No. 25761/94;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
A. The particular circumstances of the case
The applicant is a Finnish citizen, born in 1944. He is a
minister residing in Kittilä, Finland. Before the Commission he is
represented by Mr. Kauko Nevala, a lawyer practising in Rovaniemi.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
The applicant holds the office of minister in the Evangelic-
Lutheran parish of Kittilä. In May 1994 the Disciplinary Agent
(kurinpitoasiamies) of the Cathedral Chapter of the Diocese
(hiippakunnan tuomiokapituli) of Oulu requested the Cathedral Chapter
to impose a disciplinary sanction on the applicant, namely to suspend
him from office (virantoimituksesta erottaminen) for six months, by
virtue of chapter 23 section 8 of the Church Act (kirkkolaki).
On 10 June 1994 the Cathedral Chapter found that the applicant
had acted in breach of his official duties and that he had behaved in
a way unbecoming to his office. The Cathedral Chapter decided to
suspend him from his office for six months as from 12 June 1994.
The applicant, represented by Mr. Nevala, appealed against the
Cathedral Chapter's decision to the Supreme Administrative Court
(korkein hallinto-oikeus). He requested, inter alia, that he be granted
legal aid (maksuton oikeudenkäynti) pursuant to the Act on Cost-free
Proceedings (laki maksuttomasta oikeudenkäynnistä) and that the
enforcement of the suspension from office be suspended.
On 31 August 1994 the Supreme Administrative Court ordered the
enforcement of the applicant's suspension from office to be suspended.
It rejected the applicant's request for legal aid since it found that
it was not possible to grant legal aid under the Act on Cost-free
Proceedings in disciplinary proceedings. The appeal, as regards its
merits, is apparently still pending in the Supreme Administrative
Court.
B. Relevant domestic law
Under chapter 23 section 1 of the Church Act, disciplinary
proceedings against a person in office may not be started if there is
a criminal case pending which is based on the same facts as the
disciplinary proceedings. If, during the disciplinary proceedings, a
charge is brought against the person in office for the same cause as
led to the disciplinary proceedings, the disciplinary proceedings shall
not be proceeded with while the criminal case is pending. By virtue of
chapter 23 section 8, disciplinary punishments are: reprimand
(varoitus), suspension from office for a fixed term and removal from
office (viraltapano).
Appeals to the Supreme Administrative Court shall be made in
written form. Legal representation is not compulsory (see the Supreme
Administrative Court Act and the Act on Appealing in Administrative
Matters) (laki korkeimmasta hallinto-oikeudesta, laki muutoksenhausta
hallintoasioissa).
Under section 7 of the Act on Cost-free Proceedings, a person who
has been granted legal aid under the relevant Act is exempted, inter
alia, from court costs and counsel's fees.
Under section 6 of the Act on Costs of Decisions of the Courts
and Certain Judicial Authorities (laki tuomioistuinten ja eräiden
oikeushallintoviranomaisten suoritteista perittävistä maksuista),
judgments of the Supreme Administrative Court concerning employment in
public sector are given free of charge.
Under the Act on Legal Aid (laki yleisestä oikeusaputoiminnasta),
municipal legal aid offices grant legal aid to residents of the
relevant municipality. Legal aid under this system is given totally or
partly free of charge depending on the applicant's income. A decision
on granting legal aid is made by the Legal Aid Counsel (yleinen
oikeusavustaja) and, on appeal, by the Municipal Legal Aid Board
(yleinen oikeusapulautakunta). The Board's decision may be appealed
against to the County Administrative Court (lääninoikeus).
COMPLAINTS
The applicant maintains that, in the relevant proceedings, it was
important for him to be represented by counsel since the opposing party
was represented by a legally trained Disciplinary Agent and since
considerable financial interests were at stake. He maintains that,
under Finnish law, he fulfils the financial requirements for free legal
assistance.
The applicant maintains that Article 6 para. 1 of the Convention
covers the relevant proceedings. He submits that disciplinary
proceedings are comparable to criminal proceedings and that the concept
of a fair trial requires that he be granted legal aid for paying
counsel's fees. He complains that his right to free legal assistance,
guaranteed by Article 6 para. 3 (c) of the Convention, has been
violated.
THE LAW
The applicant complains, under Article 6 para. 3 (c)
(Art. 6-3-c), that he was refused free legal assistance.
Article 6 (Art. 6) of the Convention reads, as far as relevant,
as follows:
"1. In the determination of his civil rights and
obligations or of any criminal charge against him, everyone
is entitled to a fair ... hearing ...
3. Everyone charged with a criminal offence has the
following minimum rights:
...
c. to defend himself in person or through legal
assistance of his own choosing or, if he has not sufficient
means to pay for legal assistance, to be given it free when
the interests of justice so require;
..."
1. The Commission recalls that Article 6 para. 3 (c) (Art. 6-3-c)
deals only with criminal proceedings. The Commission finds that it must
therefore ascertain whether there was any criminal charge against the
applicant. In this respect the Commission recalls the established case-
law of the Convention organs (cf., Eur. Court H.R., Engel judgment of
8 June 1976, Series A no. 22, pp. 33-36, paras. 78-85 and No. 21283/93,
Dec. 5.4.1994, D.R. 77 p. 81) and finds that it must examine whether
the provision defining the offence charged belongs, according to the
legal system of the respondent State, to criminal law, disciplinary law
or both concurrently as well as the nature of the offence and the
degree of severity of the penalty that the person concerned risks
incurring.
The Commission notes, firstly, that the disciplinary charge
against the applicant was based on rules applicable to the employment
of public servants employed by the Evangelic-Lutheran Church and not
on the general criminal law. Furthermore, the disciplinary charge
related specifically to a breach of the rules committed in the course
of employment.
As regards the nature of the offence, the Commission notes that
the applicant was found to have acted in breach of his official duties
and to have behaved in a way unbecoming to his office. Finally, as
regards the degree of severity of the potential penalty, the Commission
recalls that the severest possible penalty was removal from office and
that there was no possibility of deprivation of liberty.
The Commission concludes that the applicant was not the subject
of any criminal charge against him.
It follows that this part of the application is incompatible
ratione materiae with the Convention within the meaning of Article 27
para. 2 (Art. 27-2) of the Convention.
2. The Commission recalls, however, that Article 6 para. 1
(Art. 6-1) may sometimes compel the State to provide for the assistance
of a lawyer when such assistance proves indispensable for an effective
access to court either because legal representation is rendered
compulsory or by reason of the complexity of the procedure or of the
case (cf., Eur. Court H.R., Airey judgment of 9 October 1979, Series
A no. 32, pp. 15-16, para. 26).
The Commission considers that the question whether any "civil
right" of the applicant was determined in the relevant disciplinary
proceedings (cf., No. 9208/80, Dec. 10.7.81, D.R. 26 p. 262 and No.
9501/81, Dec. 7.12.81, D.R. 27 p. 249) can be left open since it finds
that the application is in any event inadmissible for the following
reasons.
The Commission notes, firstly, that in the Supreme Administrative
Court legal representation was not compulsory. Secondly, the applicant
had the opportunity to request legal assistance under the Act on Legal
Aid from the Municipal Legal Aid Office if he found that he was in the
need of legal assistance because of the complexity of his case. He has
not, however, availed himself of this opportunity. Thirdly, the
Commission notes that the applicant did indeed appeal to the Supreme
Administrative Court, where his appeal is apparently pending. The
refusal to grant the applicant legal aid under the Act on Cost-free
Proceedings means mainly that the fees for the applicant's counsel will
not be paid from public funds.
The Commission concludes that the Supreme Administrative Court's
refusal to grant the applicant free legal aid did not deprive him of
effective access to court and does not disclose any appearance of a
violation of Article 6 (Art. 6) of the Convention.
It follows that the application is in any event manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the First Chamber President of the First Chamber
(M.F. BUQUICCHIO) (C.L. ROZAKIS)
Full & Egal Universal Law Academy