Lexploria

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; HÃ¥kansson 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-Ã…ke 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 HÃ¥kansson 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).

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HELLE v. Finland

HELLE v. Finland