FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 7164/02 by Kari PIETILÄ against Finland

The European Court of Human Rights (Fourth Section), sitting on 4 November 2003 as a Chamber composed of:

Sir Nicolas Bratza , President , Mr M. Pellonpää , Mr M. Fischbach , Mr J. Casadevall , Mr S. Pavlovschi , Mr J. Borrego Borrego , Mrs E. Fura-Sandström , judges , and Mr M. O’Boyle , Section Registrar ,

Having regard to the above application lodged on 28 January 2002,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Kari Pietilä , is a Finnish national, who was born in 1956 and lives in Lasikangas . He is represented before the Court by Mr O. Siponen , a lawyer practising in Oulu .

The facts of the case, as submitted by the applicant, may be summarised as follows.

The applicant used to be employed by the municipality of Raahe as a civil servant in charge of a division ( työkeskus , arbetscentralen ) subordinated to the Social Welfare Board ( perusturvalautakunta , bastrygghetsnämnden ) . The applicant was, among other things, in charge of purchasing within that division. His post was, however, abolished and he was given notice on 12 October 1999 due to economic reasons and a reorganisation of the organic chart of municipal staff. On 17 November 1999 the Social Welfare Board confirmed his dismissal.

The applicant appealed to the Administrative Court of Oulu ( hallinto-oikeus , förvaltningsdomstolen ) , arguing, among other things, that the decision to dismiss him was unlawful, since he should instead have been given the post as head of purchasing, which was vacant at that time and which he had applied for. The Administrative Court, finding that the applicant should have been given another post within the municipality, overturned the decision on 2 August 2000.

However, the decision by the Administrative Court was overturned, by three votes to two, by the Supreme Administrative Court ( korkein hallinto-oikeus , högsta förvaltningsdomstolen ) on 3 August 2001. It found that there were no vacant posts available to the applicant as the municipality in January 2000 had decided not to fill the post as head of purchasing. Thus, the dismissal of the applicant became final.

No oral hearing was held at any time of the proceedings, nor did the applicant request that such a hearing be held. He was represented by counsel at least before the Supreme Administrative Court.

COMPLAINTS [Note1]

1. The applicant complains under Article 6 § 1 of the Convention about the lack of an oral hearing before the Supreme Administrative Court. It should have held on oral hearing of its own motion in order to hear the applicant and find out the facts of the case.

2. He also complains under Article 6 § 1 of the Convention about the evaluation of the evidence before the Supreme Administrative Court and the outcome of the proceedings. Moreover, its decision was not duly reasoned.

THE LAW

The applicant complains that he was denied a fair and public hearing in violation of Article 6 § 1 of the Convention in that the Supreme Administrative Court failed to hold an oral hearing of its own motion. The applicant also complains about the evaluation of the evidence before the Supreme Administrative Court, the outcome of the proceedings and that its decision was not duly reasoned. Article 6 § 1 reads, as far as 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. ...”

The Court notes that the proceedings at issue concerned the dismissal of the applicant from his post as a municipal civil servant. The question could therefore arise as to whether, in light of the Court’s judgment Pellegrin v. France [GC], no. 28541/95, Reports of Judgments and Decisions 1999-VIII, Article 6 is applicable to the facts of the case. However, the Court does not need to decide on this question as the application in any event is inadmissible for the following reasons.

The Court notes at the outset that the applicant did not request an oral hearing before the domestic courts. Neither did the courts hold such a hearing of their own motion. The applicant was represented by counsel at least before the Supreme Administrative Court.

The public character of court hearings constitutes a fundamental principle enshrined in paragraph 1 of Article 6. Admittedly neither the letter nor the spirit of this provision prevents a person from waiving of his own free will, either expressly or tacitly, the entitlement to have his case heard in public. However, a waiver must be made in an unequivocal manner and must not run counter to any important public interest (see, for example, Håkansson and Sturesson v. Sweden , judgment of 21 February 1990, Series A no. 171-A, § 66).

It is true that the applicant only complains about the lack of an oral hearing before the Supreme Administrative Court. The Court, however, considers that the question of waiver can only be decided in light of the proceedings as a whole and the applicant’s procedural conduct before the two domestic courts involved.

In the present case no express waiver was made. The question is whether there was a tacit one. The Court recalls that in the interests of the proper administration of justice, it is normally more expedient that a hearing is held already at the first court instance rather than only before the higher appellate body (cf. Döry v. Sweden , no. 28394/95, § 40, 12 November 2002). Considering also that the Social Welfare Board had ruled against the applicant, he could have been expected to ask for an oral hearing before the Administrative Court, if he found it important that one be held in the proceedings at issue. However, he chose not to do so and must thereby be considered to have unequivocally waived his right to a public hearing at least before the Administrative Court.

The Court accepts that the situation was different before the Supreme Administrative Court in so far as the applicant had won the case before the Administrative Court and therefore did not have an obvious interest in requesting an oral hearing before the highest court. He would not, however, have been prevented from drawing the Supreme Administrative Court’s attention to a need to hold a hearing in case the last-mentioned court would be inclined to revise the decision of the Administrative Court. Having regard to his failure to do so and to his choice not to request an oral hearing at any stage of the proceedings, the Court concludes that the applicant must be deemed to have waived his right to an oral hearing in those proceedings. It does not appear that the proceedings involved any questions of public interest which would have made it incumbent on the Supreme Administrative Court to hold an oral hearing of its own motion.

As to the evaluation of the evidence before the Supreme Administrative Court and the outcome of the proceedings, the Court notes that it is for the national courts to assess the evidence before them and to apply national law. The Court’s task is not to examine whether the evidence was correctly assessed or whether the outcome of the proceedings was correct, but rather to ascertain whether the proceedings considered as a whole were fair. The Court finds that the Supreme Administrative Court did not exceed its margin of appreciation in assessing the evidence and examining the case before it. Finally, the Court finds that the Supreme Administrative Court’s decision was duly reasoned.

It follows that all complaints are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Michael O’Boyle Nicolas Bratza Registrar President

[Note1] Use the present tense for communication of a case (the applicant complains) and the past for a decision (the applicant complained).