FOURTH SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 9125/07
by Eero PENTTINEN
against Finland
The European Court of Human Rights (Fourth Section), sitting on 5 January 2010 as a Chamber composed of:
Nicolas Bratza, President,
Giovanni Bonello,
David Thór Björgvinsson,
Ján Šikuta,
Päivi Hirvelä,
Ledi Bianku,
Mihai Poalelungi, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having regard to the above application lodged on 1 February 2007,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Eero Penttinen, is a Finnish national who was born in 1949 and lives in Haapajärvi. The Finnish Government (“the Government”) were represented by their Agent, Mr Arto Kosonen of the Ministry for Foreign Affairs.
The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
1. The municipality of Tuusula
The applicant, an engineer with a university degree, applied for the post of building inspector in the municipality of Tuusula. On 4 March 2003 a Mr J., a building engineer, was appointed.
On 15 March 2003 the applicant applied for rectification, which was rejected by the Municipal Environmental and Building Board (ympäristö- ja rakennuslautakunta, miljö- och byggnadsnämnden) on 6 May 2003.
On 2 June 2003 the applicant appealed. On 14 September 2004 the Helsinki Administrative Court (hallinto-oikeus, förvaltningsdomstolen) overturned the decision, finding that the appointment procedure had been flawed by the fact that the applicant had not been among those candidates invited to an interview.
On 19 October 2004 the municipality appealed. On 22 November 2004 the applicant replied to the appeal. The municipality filed a second set of representations.
On 1 December 2006 the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen) overturned the lower court’s decision. It held that the fact that, of the twenty persons who had applied for the post, only five had been interviewed did not disclose any partiality in the preparation of the case. Nor did it find that there were such differences between the applicant and Mr J. that the Municipal Environmental and Building Board could be considered to have gone beyond its margin of appreciation when appointing the latter to the post. It had not transpired that the decision not to appoint the applicant could have been based on his age, as alleged by the applicant.
2. The municipality of Virrat
The applicant applied for the post of building inspector in the municipality of Virrat. On 7 October 2003 a Mr H., a building engineer, was appointed.
On 23 October 2003 the applicant applied for rectification, which was rejected by the Municipal Environmental Board (ympäristölautakunta, miljönämnden) on 11 November 2003.
On 24 November 2003 the applicant appealed. On 28 February 2005 the Hämeenlinna Administrative Court rejected the appeal, finding that there were no such differences between the applicant and Mr H. that the Municipal Environmental Board could be considered to have gone beyond its margin of appreciation when appointing the latter to the post.
On 8 March 2005 the applicant appealed further. On 1 December 2006 the Supreme Administrative Court rejected the appeal, endorsing the lower court’s reasons.
3. The municipality of Sysmä
The applicant applied for the post of building inspector/master builder in the municipality of Sysmä. On 13 October 2003 a Mr H., an engineer with a university degree, was appointed by the Municipal Executive Board (kunnanhallitus, kommunalstyrelsen).
On 23 October 2003 the applicant applied for rectification, which was rejected by the Municipal Executive Board on 27 October 2003.
On 3 November 2003 the applicant appealed. On 18 March 2005 the Kouvola Administrative Court rejected the applicant’s appeal.
On 5 April 2005 the applicant appealed further. On 1 December 2006 the Supreme Administrative Court rejected the appeal, endorsing the lower court’s reasons.
4. The municipality of Sahalahti
The applicant applied for the post of building inspector in the municipality of Sahalahti. On 11 December 2003 a Mr P., an engineer, was appointed by the Municipal Council (kunnanvaltuusto, kommunalfullmäktige).
On 5 January 2004 the applicant appealed. On 28 February 2005 the Hämeenlinna Administrative Court overturned the decision insofar as a Ms S. and a Mr K. had been given priority over the applicant in the event that Mr P. did not accept the post.
On an unspecified date the applicant appealed further. On 1 December 2006 the Supreme Administrative Court rejected the appeal, endorsing the lower court’s reasons.
5. The municipality of Paimio
The applicant applied for the post of deputy to the building inspector in the municipality of Paimio. On 25 November 2003 a Ms U., a master builder, was appointed.
On 8 December 2003 the applicant applied for rectification, which was rejected by the Municipal Environmental Board on 5 February 2004.
On 17 February 2004 the applicant appealed. On 7 March 2005 the Turku Administrative Court rejected the appeal.
On 14 March 2005 the applicant appealed further. On 1 December 2006 the Supreme Administrative Court rejected the appeal, endorsing the lower court’s reasons.
6. The municipality of Mynämäki
The applicant applied for the post of building inspector in the municipality of Mynämäki. On 9 February 2004 a Ms H., a building engineer, was appointed by the Municipal Executive Board.
On an unspecified date the applicant applied for rectification, which was rejected by the Municipal Executive Board on 23 February 2004.
On an unspecified date the applicant appealed. On 7 March 2005 the Turku Administrative Court rejected the appeal.
On 14 March 2005 the applicant appealed further. On 1 December 2006 the Supreme Administrative Court rejected the appeal, endorsing the lower court’s reasons.
7. The municipality of Pertteli
The applicant applied for the post of building inspector in the municipality of Pertteli. On 26 January 2004 a Mr L., an engineer, was appointed by the Municipal Executive Board.
On an unspecified date the applicant applied for rectification, which was rejected by the municipal executive board on 23 February 2004.
On an unspecified date the applicant appealed. On 7 March 2005 the Turku Administrative Court rejected the appeal.
On 21 March 2005 the applicant appealed further. On 1 December 2006 the Supreme Administrative Court rejected the appeal, endorsing the lower court’s reasons.
8. The municipality of Kauhajoki
The applicant applied for the post of city engineer in the municipality of Kauhajoki. On 8 March 2004 a Mr V., a building engineer, was appointed by the Municipal Council.
On an unspecified date the applicant appealed. On 22 April 2005 the Vaasa Administrative Court rejected the appeal.
On 16 May 2004 the applicant appealed further. On 1 December 2006 the Supreme Administrative Court rejected the appeal, endorsing the lower court’s reasons.
9. The municipality of Keminmaa
The applicant applied for the post of technical director in the municipality of Keminmaa. On 29 January 2004 a Mr R., an engineer with a university degree, was appointed by the Municipal Council.
On an unspecified date the applicant appealed. On 29 November 2004 the Rovaniemi Administrative Court overturned the decision, finding that the appointment procedure had been flawed by the fact that the applicant had not been among those candidates invited to an interview.
On unspecified dates Mr R. and the municipality appealed. On 1 December 2006 the Supreme Administrative Court overturned the lower court’s decision. It held that the fact that, of the fourteen persons who had applied for the post, only four had been interviewed did not disclose any partiality in the preparation of the case. Nor did it find that there were such differences between the applicant and Mr R. that the municipal board could be considered to have gone beyond its margin of appreciation when appointing the latter to the post. It had not transpired that the decision not to appoint the applicant could have been based on his age, as alleged.
10. The municipality of Naantali
The applicant applied for the post of building inspector in the municipality of Naantali. On 10 May 2004 a Mr K., a building engineer, was appointed by the Municipal Executive Board.
On an unspecified date the applicant applied for rectification, which was rejected by the Municipal Executive Board on 21 June 2004.
On an unspecified date the applicant appealed. On 7 March 2005 the Turku Administrative Court rejected the appeal.
On 16 March 2005 the applicant appealed further. On 1 December 2006 the Supreme Administrative Court rejected the appeal, endorsing the lower court’s reasons.
11. The municipality of Mänttä
The applicant applied for the post of building inspector in the municipality of Mänttä. On 9 August 2004 a Mr K., a building engineer, was appointed by the Municipal Executive Board.
On an unspecified date the applicant applied for rectification, which was rejected by the Municipal Executive Board on 6 September 2004.
On an unspecified date the applicant appealed. On 30 November 2004 the Hämeenlinna Administrative Court rejected the appeal.
On 5 December 2004 the applicant appealed further. On 1 December 2006 the Supreme Administrative Court rejected the appeal, endorsing the lower court’s reasons.
12. The municipality of Nakkila
The applicant applied for the post of technical director in the municipality of Nakkila. On 27 September 2004 a Mr K., a building engineer, was appointed by the Municipal Council.
On an unspecified date the applicant appealed. On 5 April 2005 the Turku Administrative Court rejected the appeal.
On 11 April 2005 the applicant appealed further. On 1 December 2006 the Supreme Administrative Court rejected the appeal, endorsing the lower court’s reasons.
COMPLAINTS
1. The applicant complained under Article 6 of the Convention about the length of the proceedings. He also claimed that the Supreme Administrative Court should not have dealt with the various cases together.
2. He also complained under Article 14 that he had been discriminated against on grounds of age. He had been the most competent candidate for the posts.
3. Lastly, the applicant complained under Article 7 that “the Supreme Administrative Court had rejected his appeals due to the fact that he had been discriminated against on twelve occasions thereby treating him as a habitual offender”.
THE LAW
A. Length of administrative proceedings
The applicant complained that the length of the first, second, third and fifth sets of proceedings had been incompatible with the “reasonable time” requirement, laid down in Article 6 § 1 of the Convention, which reads for the relevant parts as follows:
“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”
I. Applicability of Article 6 to the present case
The Government pointed out that the proceedings complained of did not involve any “determination” of the applicant’s civil rights or obligations within the meaning of Article 6 § 1 of the Convention. The present case was not at all comparable to the case Vilho Eskelinen and Others v. Finland [GC] (no. 63235/00, ECHR 2007‑IV), which concerned persons already employed as civil servants and changes in their civil service relationships, namely a salary dispute. In the present case, the applicant had only been involved in a process of applying for a public post, and he could not have disputed anything vis-à-vis the post he was applying for that could have had significance under Article 6 § 1 of the Convention. Nor did the present case concern a right to continue to pursue a particular occupation or profession. When he applied for the relevant vacant post the applicant had already been employed as a civil servant but the present application did not relate to the last-mentioned post. Accordingly, in the Government’s view this part of the application was incompatible ratione materiae with the provisions of the Convention and it should therefore be rejected pursuant to Article 35 § 4 of the Convention.
The applicant made no submissions on the question of the applicability of Article 6.
In considering whether the civil head of Article 6 is applicable to the present case, the Court should first examine whether there was a dispute (contestation) over an arguable right under domestic law, and secondly whether or not the said right was a “civil” one.
As to the first condition, the Court reiterates that, in accordance with its established case-law, Article 6 § 1 of the Convention is applicable only if there is a genuine and serious “dispute” (see Sporrong and Lönnroth v. Sweden, 23 September 1982, § 81, Series A no. 52) over “civil rights and obligations”. The dispute may relate not only to the existence of a right but also to its scope and the manner of its exercise (see, inter alia, Zander v. Sweden, 25 November 1993, § 22, Series A no. 279‑B). The outcome of the proceedings must be directly decisive for the right in question, mere tenuous connections or remote consequences not being sufficient to bring Article 6 § 1 into play (see, inter alia, Masson and Van Zon v. the Netherlands, 28 September 1995, § 44, Series A no. 327‑A; and Fayed v. the United Kingdom, 21 September 1994, § 56, Series A no. 294‑B). Furthermore, “Article 6 § 1 extends to ‘contestations’ (disputes) over (civil) ‘rights’ which can be said, at least on arguable grounds, to be recognised under domestic law, irrespective of whether they are also protected under the Convention” (see, inter alia, Editions Périscope v. France, 26 March 1992, § 35, Series A no. 234‑B; and Zander v. Sweden, cited above).
The Court notes that it is not disputed that the applicant had a right, according to the domestic law, to apply for the vacant posts (see Lombardi Vallauri v. Italy, no. 39128/05, § 62, 20 October 2009; Fiume v. Italy, no. 20774/05, §§ 35-36, 30 June 2009; and Josephides v. Cyprus, no. 33761/02, §§ 52-55, 6 December 2007). It is also to be observed that the domestic law provided judicial remedies against the decisions not to appoint the applicant to certain posts. As a result, the applicant had the right to challenge before the domestic courts the fact that he had not been chosen for the posts. The domestic courts examined the merits of the applicant’s appeals and in so doing they determined disputes over his rights. Thus, the disputes to which the applicant was a party were over a “right” which was recognised under domestic law.
With regard to the second condition, the Court notes that in the Vilho Eskelinen case it held that it is for the Contracting States, in particular the competent national legislature, and not the Court, to identify expressly those areas of public service involving the exercise of the discretionary powers intrinsic to State sovereignty where the interests of the individual must give way. If a domestic system bars access to a court, the Court will verify that the dispute is indeed such as to justify the application of the exception to the guarantees of Article 6. If it does not, then there is no issue and Article 6 § 1 will apply irrespective of whether the applicant seeks reinstatement or some other form of pecuniary redress (see Vilho Eskelinen and Others v. Finland [GC], cited above, §§ 61-62; and Cvetković v. Serbia, no. 17271/04, § 38, 10 June 2008).
In the present case, the applicant clearly had access to a court to challenge the lawfulness of the decisions not to appoint him to certain posts. The Court therefore finds that Article 6 of the Convention is applicable to the present case.
II. Whether the length of the proceedings was excessive
The period to be taken into consideration began when the applicant applied for rectification of the decisions in question, that is, in respect of the first set of proceedings on 15 March 2003, the second and third sets of proceedings on 23 October 2003 and the fifth set of proceedings on 8 December 2003. All proceedings ended on 1 December 2006 when the Supreme Administrative Court delivered its decisions. The proceedings thus lasted three years and eight months (first set of proceedings), three years and one month (second and third sets of proceedings) and three years (fifth set of proceedings) for two levels of jurisdiction.
The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII).
The Government pointed out that the proceedings for rectification before the respective municipal organs had been processed quickly, lasting about three months at the most. The proceedings before the Administrative Courts had lasted from twelve up to sixteen months and the proceedings before the Supreme Administrative Court from twenty to twenty-five months. In the Government’s view the domestic authorities and courts had acted with due diligence and there had been no unjustified periods of inactivity attributable to them.
The applicant claimed that the proceedings before the Administrative Courts and the Supreme Administrative Court normally took less time than in his case.
The Court notes that the time taken to process the rectification applications before the municipal organs, up to three months, was very short. The proceedings before the Administrative Courts lasted somewhat longer, from twelve to sixteen months. The proceedings before the Supreme Administrative Court, lasting about two years at the longest, were somewhat lengthy. However, the four sets of proceedings, comprising two levels of jurisdiction, lasted in total only from three years up to three years and eight months.
The Court agrees with the Government that the domestic authorities and courts acted with due diligence and that no unjustified periods of inactivity were attributable to them. Any possible undue delay in the proceedings before the Supreme Administrative Court cannot affect the Court’s view that, seen as a whole, the litigation was terminated within an acceptable time-frame. The Court would stress in this connection that the proceedings taken by the applicant could not be characterised as an “employment dispute” requiring expedited treatment by the domestic courts including the Supreme Administrative Court (see, in this connection, Ruotolo v. Italy, 27 February 1992, § 17, Series A no. 230‑D).
The Court concludes that in the light of the criteria laid down in its case-law and having regard to all the circumstances of the case, the overall length of the four sets of proceedings was not excessive and satisfied the reasonable time requirement under Article 6 § 1 of the Convention. Accordingly, this part of the application is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.
B. Remainder of the application
The applicant also complained under Article 6 of the Convention about the length of eight other sets of proceedings and that the Supreme Administrative Court should not have dealt with the various cases together. He complained under Article 14 of the Convention that he had been the most competent candidate for the posts but had been discriminated against on grounds of age. Lastly, he complained under Article 7 of the Convention that “the Supreme Administrative Court had rejected his appeals due to the fact that he had been discriminated against on twelve occasions, thereby treating him as a habitual offender”.
Having regard to the case file, the Court finds that the matters complained of do not disclose any appearance of a violation of the applicant’s rights under the Convention. Accordingly, this part of the application is also manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Fatoş AracıNicolas Bratza
Deputy RegistrarPresident
Full & Egal Universal Law Academy