FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 34120/96 by Jaakko LAUNIKARI against Finland

The European Court of Human Rights ( Fourth Section ), sitting on 4 May 2000 as a Chamber composed of

Mr G. Ress, President , Mr A. Pastor Ridruejo, Mr L. Caflisch, Mr J. Makarczyk, Mr I. Cabral Barreto, Mrs N. Vajić, Mr M. Pellonpää, judges ,

and Mr V. Berger , Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 3 December 1996 and registered on 11 December 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 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 is a Finnish national, born in 1940 and living in Tuusula . He is represented before the Court by Mr Heikki Salo , a lawyer practising in Helsinki.

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

A. Particular circumstances of the case

The applicant is a minister of the Evangelical Lutheran Church of Finland ( Suomen evankelis-luterilainen kirkko , evangelisk-lutherska kyrkan i Finland) . He held office as head of division in the Centre for Foreign Affairs of the Church ( kirkon ulkomaanasiain keskus , kyrkans utrikescentral ) , when the National Church Board ( kirkkohallitus , kyrkostyrelsen ) began disciplinary proceedings and on 19 February 1987 dismissed him from his office for acting in breach of his official duties. The applicant appealed to the Supreme Administrative Court ( korkein hallinto-oikeus , högsta förvaltningsdomstolen ) , which on 21 September 1987 rejected the appeal.

The applicant was impeached before the Helsinki City Court ( raastuvanoikeus , rådstuvurätt ) for an offence in office concerning the same events that were the grounds for his dismissal. The City Court and the Helsinki Court of Appeal ( hovioikeus , hovrätt ) rejected the charges on 15 December 1988 and 2 October 1990 respectively. None of the parties sought leave to appeal to the Supreme Court ( korkein oikeus , högsta domstolen )

On 17 October 1991, the applicant requested the Supreme Administrative Court to annul its decision of 21 September 1987 and to quash his dismissal from office. On 29 January 1993, the Supreme Administrative Court annulled its aforementioned decision, annulled the decision of the National Church Board of 19 February 1987 and returned the matter to the National Church Board.

On 1 April 1993 the National Church Board began to reconsider the disciplinary case and, on 11 June 1993, after having received a written statement from the applicant, decided as follows:

(translation from Finnish)

“1. the National Church Board decides that the disciplinary proceedings against [the applicant] will no longer be pursued and, thus, these proceedings expire;

2. the National Church Board finds that the termination of [the applicant’s] service, which became final on 21 September 1987, can no longer be considered as a disciplinary punishment;

3. the National Church Board finds that the office of head of division in the Centre for Foreign Affairs of the Church has been filled and, therefore, [the applicant] can no longer be reinstated in his former office;

4. the National Church Board finds that there is no possibility to offer [the applicant] another equivalent office;

5. the National Church Board finds that when it took its decision on 19 February 1987, there were weighty grounds as regards [the applicant’s] performance of duties for giving him a notice according to Section 14, Subsection 2, Points 3 and 4, of the Official Regulations Concerning the Officials in Special Duties of the Church ( kirkon erityistehtävissä olevien viranhaltijain virkasääntö , tjänstestadga för anställda i specialuppgifter inom kyrkan 6.5.1981) ;

6. the National Church Board decides to pay [the applicant] compensation equivalent to the salary and other benefits of period of notice at the date of the termination of his service, i.e. 19 February 1987, with sixteen per cent annual interest;

7. the National Church Board finds that there is no need to hold an oral hearing, which [the applicant] had requested, nor to receive further observations from [the applicant].”

On 16 July 1993, the applicant appealed against the points 2-7 to the Supreme Administrative Court claiming, inter alia , that the continuation of his service as well as his right to be reinstated in his former office or an office equivalent to it be confirmed and that the National Church Board be ordered to indemnify him for his loss of earnings.

In its decision of 1 March 1995 the Supreme Administrative Court firstly stated that the National Church Board was not competent to give the applicant notice and, thus, the applicant’s service had not been terminated on the basis of a notice. The Supreme Administrative Court also stated that it lacked competence to decide at first instance questions concerning the applicant’s status and his right to an indemnity. The court said that the Cathedral Chapter ( tuomiokapituli , domkapitlet ) would be the competent body in this respect.

On 6 March 1995 the applicant asked the National Church Board for reinstatement in his former office.

On 11 April 1995, the applicant filed an application to the Cathedral Chapter of the Helsinki Diocese ( hiippakunta , stift ) claiming that the National Church Board be ordered to pay him the unpaid salary of a head of division from 1 May 1987 onwards with sixteen per cent annual interest from the 15 th of each month for the monthly salary and from the 31 st of July of each year for the yearly holiday bonus, making a total of almost 1,400,000 Finnish marks (FIM) excluding interest. He asked for the decision to be made urgently.

On 30 May 1995, the Board sent a letter to the applicant indicating that the Board’s answer to the applicant’s request for reinstatement in his former office was included in its response to the Cathedral Chapter on the applicant’s above-mentioned application.

On 1 August 1995, the Cathedral Chapter ordered the National Church Board to pay the applicant the difference between the salary of a head of division and the salary the applicant had earned as a parish minister between 1 May 1987 and 30 April 1995, making a total of FIM 301,552.17, and from 1 May 1995 onwards FIM 2,520 per month until the applicant recommenced his official duties as head of division or his service was terminated. The interest was to be paid from the required dates the interest rate being six per cent until the end of April 1995 and thereafter four per cent over the reference interest confirmed by the Bank of Finland. The Cathedral Chapter also stated that the applicant’s service as head of division must be considered to continue.

On 30 August 1995, the National Church Board appealed to the Supreme Administrative Court against the decision of the Cathedral Chapter. On 1 September 1995, the applicant appealed against the same decision, as far as the indemnity for loss of earnings and other compensation were concerned. The Supreme Administrative Court gave its decision on 12 June 1996. It upheld the Cathedral Chapter’s decision except for the part concerning the obligation to pay interest. It ordered six per cent annual interest from 11 April 1995, i.e. the date of the institution of the proceedings, on the amounts due before that date, and from the due date on the amounts which fall due thereafter.

On 18 January 1996, the applicant appealed to the Supreme Administrative Court against a decision made by the National Church Board on 7 December 1995 by which the applicant was given notice of the termination of his service as head of division with a four months’ period of notice. The applicant asked for the decision to be taken urgently. On 12 June 1996 the Supreme Administrative Court gave its decision also in that set of proceedings. The Supreme Administrative Court upheld the National Church Board’s decision. Its reasoning reads as follows:

(translation from Finnish)

“According to Section 14, Subsection 3, Point 4, of the Official Regulations Concerning the Officials in Special Duties of the Church, a civil servant may be given notice for … particularly weighty grounds concerning his or her performance of official duties. Such grounds may be based on the civil servant’s performance or on other circumstances in relation to performance of official duties. The office of head of division in the Centre for Foreign Affairs of the Church … has been filled while [the applicant] was dismissed. Considering that the National Church Board still at the end of 1995 was under the impression that [the applicant’s] service as head of division had terminated and considering that the National Church Board cannot be obliged to establish a new office equivalent to [the applicant’s] former office, the Supreme Administrative Court, in these circumstances, finds no reason to change the conclusion reached by the National Church Board.”

B. Relevant domestic law

The Church Act ( kirkkolaki , kyrkolag 635/64, as from 1 January 1994 replaced by Act no. 1054/93) regulates the activities of the Evangelical Lutheran Church of Finland. Regulations concerning the civil servants of the Church are also given in collective agreements on terms of civil service ( virkaehtosopimus , tjänstekollektivavtal ) and in official regulations confirmed by the Church ( virkasääntö , tjänstestadga ) .

According to Section 491 of the 1964 Church Act and Chapter 22, Section 2, of the 1993 Church Act, the National Church Board is the general administrative body of the Church. Under Section 494 of the 1964 Church Act and Chapter 24, Section 6 (2), of the 1993 Church Act, a decision of the National Church Board can be appealed against to the Supreme Administrative Court.

COMPLAINTS

1. The applicant complains that the length of the series of proceedings in his case exceeded a reasonable time. He argues that the National Church Board failed to take measures in order to correct the consequences of its erroneous decision to dismiss him and also repeatedly refused to comply with the Supreme Administrative Court’s decisions, which led to this lengthy series of proceedings.

The applicant also complains that the Supreme Administrative Court did not have legal grounds for its decision of 12 June 1996 to uphold the National Church Board’s decision to give him notice, but it only accepted an unlawful de facto situation.

Further, the applicant complains that he was not afforded adequate compensation for his legal expenses.

The applicant invokes Article 6 of the Convention in this respect.

2. The applicant also complains under Article 1 of Protocol No. 1 to the Convention that he was denied his right to the full salary of a head of division and to lawful interest on the unpaid amounts.

3. The applicant further complains that the numerous proceedings and their outcome show that he did not have an effective remedy as required by Article 13 of the Convention.

4. The applicant finally complains under Article 14 of the Convention that he was discriminated on the ground of his opinions in the enjoyment of his rights guaranteed in Articles 6 and 13 of the Convention and in Article 1 of Protocol No. 1 to the Convention.

THE LAW

1. The applicant complains of the length of the various proceedings in his case. He also claims that the final domestic decision was not based on law and that he was not afforded adequate compensation for his legal expenses. He invokes Article 6 of the Convention, which in its relevant parts reads as follows:

“1. In the determination of his civil rights and obligations …, everyone is entitled to a fair … hearing within a reasonable time by [a] tribunal …”

(a) Does Article 6 § 1 of the Convention apply to the relevant proceedings ?

The Court notes that the applicant is a civil servant of the Evangelical Lutheran Church of Finland. This, however, does not as such exclude the applicability of Article 6 of the Convention. The Court recalls, in the light of its recent case-law (see the Pellegrin v. France judgment of 8 December 1999, Application no. 28541/95, to be published), that only those disputes relating to public service are excluded from the scope of Article 6 § 1 of the Convention which are raised by persons 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 (see § 66 of the above-mentioned Pellegrin judgment). In their observations the Government conclude that the applicant did not have any independent decision-making competence based on the Church Act and agree that Article 6 § 1 is applicable in the present case.

The Court finds, in agreement with the parties, that Article 6 § 1 of the Convention applies to the proceedings at issue in the present application.

(b) Reasonableness of the length of the proceedings

According to the applicant, the proceedings concerning disputes relating to his duties and responsibilities as an employee, were excessive in length. The applicant submits that the Convention obligations of the authorities began in May 1990, when the Convention entered into force in respect of Finland. From the moment of the final acquittal of the applicant, in October 1990, the Church authorities were under an obligation to correct themselves the consequences of their erroneous action. The proceedings ended only on 12 June 1996 and had, therefore, lasted over six years since the Convention had entered into force in respect of Finland. According to the applicant, all the proceedings concerned the same issue and cannot be divided into several separate sets of proceedings in the way the Government propose.

The applicant is of the opinion that the substance of the matter was neither complicated nor difficult in so far as the applicant’s right to return to serve in his office and to enjoy the benefits arising from the service is concerned. The responsibility for the long duration rests on the authorities, not on the applicant. The National Church Board’s incorrect decision and appeal instructions thereto, which both are indicated at the Supreme Administrative Court’s decision of 1 March 1995, caused an unnecessary delay of one year and eight months. That delay is attributable to the conduct of the authorities alone. The National Church Board further delayed the proceedings by appealing from the Cathedral Chapter’s decision of 1 August 1995, even though it knew that the appeal was based on the false premise that his service would have been terminated already in 1987. The authorities are under a special duty of due diligence to safeguard a lawful situation. The authorities’ failure to obey this duty led the Supreme Administrative Court to confirm an illegal de facto situation. After all, the National Church Board was still in 1995 maintaining its resistance to follow the final court decisions.

The Government, firstly, point out that the first set of the proceedings ending with the Supreme Administrative Court’s decision of 21 September 1987 and partly also the proceedings ending with the Court of Appeal’s decision of 2 October 1990 relate to the period prior to May 1990, i.e. before the date of the ratification of the Convention by Finland. They emphasise that the part of the application relating to those proceedings should be rejected as being incompatible ratione temporis with the provisions of the Convention.

The Government consider that the proceedings should be divided into six separate sets of proceedings, of which the first two are mentioned above. They argue that the overall period to be taken into consideration began on 17 October 1991, when the applicant requested the Supreme Administrative Court to quash its decision of 21 September 1987, and ended on 12 June 1996 when the Supreme Administrative Court issued its last two decisions. Accordingly, the proceedings lasted four years and seven and half months.

The Government are of the opinion that proceedings included complex questions and point out that the written material was extensive. They also consider that the applicant made one unnecessary appeal to the Supreme Administrative Court when the matter should have been initiated by an application to the Cathedral Chapter as the first instance. The Government accept that the applicant’s conduct has not otherwise contributed to any particular delay in the proceedings.

According to the Government the proceedings, which comprised seven authorities during a period of less than five years, cannot be regarded as excessive in length.

The Court considers, in the light of the criteria established in its case-law on the question of “reasonable time” (the complexity of the case, the applicant’s conduct and that of the competent authorities) and having regard to all the information in its possession, that an examination of the merits of the part of the complaint which concerns the alleged length of the proceedings is required.

(c) The alleged unlawfulness of the final domestic decision and the allegedly insufficient compensation to the applicant in respect of pecuniary damage and legal expenses

As regards the alleged unfairness of the proceedings, the Court recalls that its only task is to ensure the observance of the obligations undertaken by the Parties to the Convention. In particular, it is not competent to deal with an application alleging that errors of law or fact have been committed by domestic courts, except where it considers that such errors might have involved a possible violation of any of the rights and freedoms set out in the Convention. The Court refers, on this point, to its established case-law (see the Schenk v. Switzerland judgment of 12 July 1988, Series A no. 140, § 45). While a national decision without any legal justification may violate Article 6 (see the De Moor v. Belgium judgment of 23 June 1994, Series A no. 292-A, § 55), the Court cannot find that the decision of the Supreme Administrative Court of 12 June 1996, particularly criticised by the applicant, discloses such arbitrariness or lack of justification as to raise an issue under that Article.

Assessing the proceedings as a whole, the Court finds no indication that the applicant was denied a fair trial within the meaning of Article 6 § 1 of the Convention as regards any of the allegations made in this part of the complaint.

It follows that this part of the complaint must be rejected as being manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

2. The applicant also complains that his right to peaceful enjoyment of his possessions was violated as he was denied right to the full salary of a head of division and to the lawful interest on the unpaid amounts. He invokes Article 1 of the Protocol No. 1 to the Convention, which, in so far as relevant, provides that “every natural … person is entitled to the peaceful enjoyment of his possessions”.

The applicant argues that his other income should not be deducted from the salary he is entitled to receive as a head of division. It was the employer’s duty to pay him a certain salary and there were no reasons which could have justified the non-payment, as he had not been legally dismissed from his office. The applicant also emphasises that the employer’s responsibility to pay interest is prescribed by the law. As the delay was caused by the authorities’ wrongful actions, no justification has been established to allow the authorities not to pay full interest. Therefore, the applicant’s right to fully receive the above-mentioned salary and the interest thereon is protected by Article 1 of Protocol No. 1 to the Convention. The applicant emphasises that his complaint under this provision is a central element of his application.

The Court notes that Article 1 of Protocol No. 1 to the Convention applies only to a person’s existing possessions (see the Marckx v. Belgium judgment, decision of 13 June 1979, Series A no. 31, § 50) but that a claim or a debt can constitute a possession (see, among others, the European Commission of Human Rights, Application no. 15488/89, Dec. 27.2.95, D.R. 80-B, pp. 14-23). The Court accepts that the applicant’s claim to the salary and related benefits in question enjoys the protection of Article 1 of Protocol No. 1 to the Convention.

The Court, however, notes that the applicant’s claim was satisfied in that the national Church Board was ordered to pay the applicant FIM 301,552.17 for his loss for the period between 1 May 1987 and 30 April 1995, and FIM 2,520 per month as from the beginning of May 1995 onwards, together with interest. While the applicant contends that the amounts ordered to be paid did not reflect the full value of his claim, the Court notes that these amounts were confirmed by the Supreme Administrative Court, i.e. the highest national judicial instance. As it is in the first place for the national authorities, notably the courts, to apply and interpret national law ( cf , e.g., Tamminen and Tammelin v. Finland, decision of 28 September 1999 as to the admissibility of application no. 33003/96, Fourth Section, unpublished), the Court must assume that the compensation awarded to the applicant corresponds to the amount of his entitlement under national law. There is nothing indicating that the decisions of the national authorities, which enjoy a certain margin of appreciation in the present respect, were arbitrary or led to a result incompatible with the applicant’s right to the peaceful enjoyment of his possessions.

It follows that this complaint is manifestly ill-founded with the meaning of Article 35 § 3 of the Convention.

3. The applicant further complains that he did not have an effective remedy as required under Article 13 of the Convention, which reads as follows:

“Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

The Court notes that the applicant was able to challenge the decisions of the National Church Board and the Cathedral Chapter before the Supreme Administrative Court, which had full jurisdiction to examine the lawfulness of these decisions. While the effectiveness of a remedy for the purposes of Article 13 does not depend on the certainty of a favourable outcome (see the Vereinigung Demokratischer Soldaten Österreichs and Gubi v. Austria judgment of 19 December 1994, Series A no. 302, § 55), the Court notes that some of the decisions of the Supreme Administrative Court were in fact at least partially favourable to the applicant. Even assuming that the applicant had an arguable claim concerning the alleged unfairness of the proceedings or his property rights, the Court, therefore, concludes that he had available remedies satisfying the requirements of that Article.

It follows that this complaint is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

4. The applicant finally complains that he was discriminated against in the enjoyment of his rights guaranteed in Articles 6 and 13 of the Convention and Article 1 of Protocol No. 1 to the Convention. He invokes Article 14 of the Convention, which reads as follows:

“The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

The Court finds that the examination of the application does not disclose any appearance of discrimination contrary to Article 14. Accordingly, this part of the complaint is also manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

For these reasons, the Court, unanimously,

DECLARES ADMISSIBLE , without prejudging the merits, the applicant ’s complaint [Note1] relating to the excessive length of the proceedings in question;

DECLARES INADMISSIBLE the remainder of the application.

Vincent Berger Georg Ress Registrar President

[Note1] Summarise the complaints without necessarily citing the invoked Convention Articles.