FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 31766/96 by Heikki VAINIOKANGAS against Finland

The European Court of Human Rights (Fourth Section) , sitting on 7 September 2000 as a Chamber composed of

Mr G. Ress, President , Mr I. Cabral Barreto, Mr V. Butkevych, Mrs N. Vajić, Mr J. Hedigan, Mr M. Pellonpää, Mrs S. Botoucharova, judges ,

and Mr V. Berger, Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights  on 6 November 1995 and registered on 6 June 1996,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having deliberated, decides as follows:

THE FACTS

The applicant is a Finnish national, born in 1936 and living in Joutsa . He is represented before the Court by Mr Mikko Hunnakko , a lawyer practising in Helsinki.

A. The circumstances of the case [Note1]

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

On 30 December 1993 the Kannonkoski Municipal Assembly ( kunnanvaltuusto , kommunfullmäktige ), by 13 votes to 4, dismissed the applicant from his post as Mayor by application of section 56, subsection 4, of the 1976 Municipalities Act ( kunnallislaki , kommunallag 953/1976, as amended by Act no. 979/1992). The decision referred to a long-lasting lack of confidence in the applicant without detailing the reasons therefor.

The applicant appealed, arguing, inter alia , that he had not been heard in accordance with section 15 of the Act on Administrative Procedure ( hallintomenettelylaki , lag om förvaltningsförfarande 598/1982). Further, the decision to dismiss him had not been grounded on adequate reasons based on facts, which was in breach of sections 23 and 24 of the said Act.

On 2 June 1994 the County Administrative Court ( lääninoikeus , länsrätten ) of Central Finland dismissed the applicant’s request for an oral hearing as well as his appeal. The court found that he had been afforded an opportunity to comment on a motion by five assembly members to proceed to his dismissal and had been able to make oral comments before the Municipal Assembly. The reason relied on for dismissing him was a lawful one, as the law did not require that the loss of confidence in the applicant be specifically explained. It had not been shown that the dismissal had been grounded on reasons unrelated to the performance of his duties. Nor had the procedure or the dismissal itself been unlawful in any other respect.

On 23 May 1995 the Supreme Administrative Court ( korkein hallinto-oikeus , högsta förvaltningsdomstolen ) dismissed the applicant’s request for an oral hearing as well as his appeal, stating that there was no reason to amend the decision of the lower court.

B. Relevant domestic law

Mayors are appointed by the municipal assembly, direct the municipal administration and are answerable to the municipal board ( kunnanhallitus , kommunstyrelsen ). According to section 56, subsection 4, of the Municipalities Act, as in force at the relevant  time, the dismissal of, and disciplinary sanctions against, a mayor were governed by the municipal instruction to its civil servants ( virkasääntö , tjänstestadga ). Regardless of that instruction, a mayor could also be dismissed by two thirds of the members present at a meeting of the municipal assembly.

In response to a petition by the applicant and others the Parliamentary Ombudsman ( eduskunnan oikeusasiamies , riksdagens justitieombudsman ) studied a number of decisions of county administrative courts whereby former mayors’ appeals had been rejected. The decisions had generally referred to the preparatory works of the 1992 amendment to the Municipalities Act, according to which a dismissal required no special reasons other than the lack of confidence shown by the vote of the majority of the assembly members. Nor could the dismissals be considered unlawful from the point of view of general principles of administrative law. The Ombudsman noted however that the municipal instructions prescribed rather strict conditions for dismissing an official. The 1994 Act on Civil Servants of the State ( valtion virkamieslaki , statstjänstemannalag 750/1994) and the legislation on labour contracts further required weighty reasons for a dismissal. Against this background sufficient justification had not been shown for allowing the dismissal of a mayor merely because a majority in the municipal assembly had lost confidence in him or her. In his opinion of 31 August 1995 the Ombudsman accordingly suggested that the Act on Municipalities be amended so as to require that the dismissal of a mayor be based on adequate reasons relating to his or her skills or conduct.

Under the 1995 Municipalities Act ( kuntalaki , kommunallag 365/1995) which entered into force on 1 July 1995 a mayor may be dismissed by a decision supported by at least two thirds of the members of the municipal assembly. The mayor shall be informed beforehand of the reasons why the assembly have lost confidence in him or her and shall be given an opportunity to respond (sections 22 and 25).

COMPLAINTS

1. The applicant complains under Article 6 § 1 of the Convention that he was effectively denied a fair and public court hearing. No reasons were given for his dismissal which had not been preceded by any disciplinary or other action criticising his performance of his duties. Although as a result the onus was de facto on the applicant to prove that his dismissal had been arbitrary and unlawful, he was not allowed to present argument and hear witnesses at an oral hearing. The legislation applied in his case had effectively weakened the position of  mayors to such an extent that they no longer had a right in principle to remain in office or any other protection against arbitrary dismissal. Hence they could no longer be considered civil servants for the purposes of Article 6 and this provision is applicable. Moreover, the applicant’s municipal post could not be equated with that of a civil servant of the State. Even if the applicant could be considered a civil servant for the purposes of Article 6, this provision should apply indiscriminately to this category as well as to any other group of professionals. The applicant further challenges the Finnish reservation to Article 6 in respect of the right to an oral hearing.

2. The applicant further complains that his dismissal violated his right to freedom of opinion. His dismissal was allegedly orchestrated by leading municipal politicians who disagreed with him on the necessity of receiving refugees and Finland’s membership of the European Union. The applicant invokes no specific Convention provision.

THE LAW

1. The applicant complains that he was denied a fair and public hearing in violation of Article 6 § 1 of the Convention. This provision reads, as far as relevant, as follows:

"In the determination of his civil rights ..., everyone is entitled to a fair and public hearing ... by [a] tribunal established by law. ..."

The Court must determine whether the above provision is applicable to the present case, i.e. whether the applicant’s right to remain in office, as asserted by him in the administrative court proceedings, was a “civil right” for the purposes of this provision. Regard must be had to the fact that the proceedings concerned the dismissal of an official working for a public authority (see Frydlender v. France [GC], no. 30979/96, ECHR 2000, and Pellegrin v. France [GC], no. 28541/95, ECHR 1999-VIII). Having adopted a functional criterion based on the nature of the official’s duties and responsibilities, the Court has decided that the only disputes excluded from the scope of Article 6 § 1 of the Convention are those raised by public servants whose duties typify the specific activities of the public service in so far as the latter is acting as the depositary of public authority responsible for protecting the general interests of the State or other public authorities. The Court must therefore seek to ascertain in each case whether the applicant’s post entailed – in the light of the nature of the duties and responsibilities appertaining to it – direct or indirect participation in the exercise of powers conferred by public law and duties designed to safeguard the general interests of the State or of other public authorities. In accordance with the object and purpose of the Convention the Court’s interpretation of the exceptions to the safeguards afforded by Article 6 § 1 must be a restrictive one (see, in particular, §§ 32 et seq. of the Frydlender judgment and §§ 64 et seq. of the Pellegrin judgment).

The Court notes that the applicant’s post as mayor involved directing the  administration of the municipality as its highest official. His post entailed direct participation in the exercise of powers and duties conferred or imposed on the municipality by public law with the aim of safeguarding the general interests of the municipality. Moreover, he was ultimately answerable to the elected representatives of the municipality, i.e. to a political body. In these circumstances and even on the basis of the aforementioned restrictive interpretation of the exceptions to the applicability of Article 6 the Court does not find it established that the proceedings in the applicant’s case fell within the scope of that provision. Accordingly, Article 6 is inapplicable.

It follows that this complaint is incompatible ratione materiae with the provisions of the Convention and must be rejected pursuant to Article 35 § 3 of the Convention.

2. The applicant further complains that his dismissal violated his right to freedom of opinion.

Under Article 35 § 1 of the Convention the Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law, and within a period of six months from the date on which the final decision was taken. The exhaustion of domestic remedies must not be merely technical in nature but enter into the substance of the grievance.

In the present case the applicant did not appeal against his dismissal by arguing that it violated his right to freedom of opinion (as guaranteed by Article 9 of the Convention) or his  right to freedom of expression (as guaranteed by Article 10). Accordingly, he has not in this respect exhausted the domestic remedies available to him.

It follows that this complaint must be rejected pursuant to Article 35 § 4 of the Convention.

For these reasons, the Court, unanimously,

DECLARES THE APPLICATION INADMISSIBLE .

Vincent Berger Georg Ress Registrar President

[Note1] Include information obtained from the Government on the Judge Rapporteur’s request (Rule 49 § 2 (a)) or Chamber’s request (Rule 54 § 3 (a)), with indication of this fact, where appropriate.