|
FOURTH
SECTION
CASE
OF AHTINEN v. FINLAND
(Application
no. 48907/99)
JUDGMENT
STRASBOURG
23
September 2008
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial revision.
In
the case of Ahtinen v. Finland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas
Bratza,
President,
Giovanni Bonello,
David Thór Björgvinsson,
Ján Šikuta,
Päivi Hirvelä,
Ledi Bianku,
Nebojša Vučinić,
judges,
and Fatoş Aracı, Deputy
Section
Registrar,
Having
deliberated in private on 2 September 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
1. The
case originated in an application (no. 48907/99)
against the Republic of Finland lodged with the Court under Article 34
of the Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by a Finnish national, Mr Seppo Ahtinen
(“the applicant”), on 29 April 1999.
2. The
applicant was represented by Mr K. Nevala, a lawyer practising in
Rovaniemi. The Finnish Government (“the Government”) were
represented by their Agent, Mr Arto Kosonen of the Ministry for Foreign
Affairs.
3. The
applicant complained, under Article 6 of the Convention, that he had
been denied a fair hearing as he had not been properly heard on the real
reasons for his transfer, and as the Cathedral Chapter had been partial
because the vicar of the parish had participated in the decision-making.
4. By
a decision of 31 May 2005, the Court declared the application partly
admissible. It joined to the merits the question of the applicability of
Article 6 of the Convention.
5. The
applicant and the Government each filed further written observations (Rule
59 § 1). The Chamber having decided, after consulting the parties, that
no hearing on the merits was required (Rule 59 § 3 in
fine), the parties replied in writing to each other’s
observations.
THE
FACTS
I. THE
CIRCUMSTANCES OF THE CASE
6. The
applicant was born in 1949 and lives in Rovaniemi.
7. He
was employed by the Evangelical Lutheran Church as a parish priest in
the parish of Rovaniemi from 1 January 1988 until 31 October 1998.
On 12 May 1998 the Cathedral Chapter (tuomiokapituli,
domkapitlet) issued him with a warning, which was upheld by the
Supreme Administrative Court on an unspecified date.
8. On
15 September 1998 the Cathedral Chapter decided to transfer the
applicant to the parish of Keminmaa, which is situated more than 100 kilometres
from his home in Rovaniemi. He did not consent to the transfer. In its
decision, the Cathedral Chapter reasoned as follows (translation from
Finnish):
“The
post of parish priest in the parish of Keminmaa is open ... and
therefore it is for the Cathedral Chapter to find a suitable person for
the post. It has come to the Cathedral Chapter’s knowledge that the
parish priest of the parish of Rovaniemi, Seppo Ahtinen, has stated that
he considers himself unable to discharge all his duties. Therefore, the
Cathedral Chapter has decided to discontinue Seppo Ahtinen’s
assignment to his current post and give him a new assignment as parish
priest in the parish of Keminmaa.
The
Cathedral Chapter has heard the Keminmaa Church Council (kirkkoneuvosto,
kyrkorådet) and Seppo Ahtinen. The Church Council has given a
positive statement, whereas Seppo Ahtinen has announced that he will not
accept a transfer and that he considers that there are no legal grounds
for a transfer.
However,
considering the need to find a parish priest for the parish of Keminmaa
and the difficulties that Seppo Ahtinen has had in discharging all his
functions in his current post, there is a justified reason as required
by law for transferring him from the parish of Rovaniemi to the parish
of Keminmaa.
Therefore,
the Cathedral Chapter appoints Seppo Ahtinen to the post of parish
priest in the parish of Keminmaa from 1 November 1998 until further
notice and terminates his assigment as parish priest in the parish of
Rovaniemi on 31 October 1998.
...”
9. The
decision indicated that the Cathedral Chapter had applied Chapter 6,
section 8a(6), of the Church Act (kirkkolaki,
kyrkolagen; Act no. 1054/1993), which provides that there
has to be a justified reason for making a decision such as the above. It
also indicated that, as provided by Chapter 24, section 9(1), as in
force at the relevant time, no appeal lay against that decision.
10. According
to the applicant, the transfer had been orchestrated by the Vicar of the
parish of Rovaniemi, who had not been satisfied with the applicant’s
contribution to his parish work.
11. The
applicant had been consulted in advance in writing about the proposed
transfer. On 28 August 1998 the applicant’s counsel had informed the
Cathedral Chapter as follows (translation from Finnish):
“As
the representative of the parish priest Seppo Ahtinen I would like to
inform you that he does not intend to change his place of employment. He
declares that he enjoys his present post in the service of the parish of
Rovaniemi. There are no legal grounds for transferring him without his
consent.”
12. On
30 September 1998 the applicant lodged an extraordinary appeal (kantelu,
klagan) with the Supreme Administrative Court (korkein
hallinto-oikeus, högsta förvaltningsdomstolen), alleging
procedural errors in the decision. He claimed that the Cathedral Chapter
had not been impartial as the Vicar of the parish of Rovaniemi, who was
also the chairperson of the Church Council of Rovaniemi, had been
present when the decision had been taken. However, he did not allege
that the vicar had participated in the decision-making. He also argued
that he had not been heard prior to the decision and that his opinion
had not been taken into account. In particular, no weight had been given
to the fact that his entire family lived in Rovaniemi.
13. The
Supreme Administrative Court invited the Cathedral Chapter to make
observations and communicated them to the applicant. According to the
Cathedral Chapter, it was an old tradition that a parish priest could be
transferred to another parish with or without his consent if the
transfer was considered to be in the interests of the Church. According
to this tradition, which was comparable to a similar tradition in the
armed forces, there was no appeal against a transfer decision. If an
appeal were to be allowed, it would cause an unreasonable delay in the
organisation of parish work. The Cathedral Chapter also reiterated that
it was known to all parties in question that the applicant had not been
able to discharge all his functions in the parish of Rovaniemi and that
he had also faced disciplinary proceedings, resulting in a written
warning. As the applicant had not denied this, the Cathedral Chapter
found it undisputed that he was incapable of fulfilling his duties in
the parish of Rovaniemi. The aim of the transfer was to avoid future
disciplinary proceedings. Thus, it was also in the interests of the
applicant that he be transferred. Moreover, there was a shortage of
parish priests in the parish of Keminmaa. The Cathedral Chapter disputed
the applicant’s contention that he had a right to be heard on the
reasons discussed when his transfer was being considered. It also
contested that the presence of the Vicar of the parish of Rovaniemi had
raised any disqualification issue. The vicar had not taken part in the
decision-making.
14. In
his observations in reply, the applicant maintained that the Cathedral
Chapter had not given him an opportunity to be heard about the grounds
on which it had subsequently based its decision and according to which
there was a shortage of priests in the parish of Keminmaa and the
applicant allegedly had difficulties in performing his duties in the
parish of Rovaniemi. He pointed out that he could be removed only on
grounds provided for by law and that the decision certainly concerned
his rights. As to his partiality allegation, he submitted that before
the meeting there had been no report on the matter, which meant that the
decision had thus been based solely on the discussion in which the Vicar
of the parish of Rovaniemi had taken part.
15. On
9 March 1999 the Supreme Administrative Court upheld the
Cathedral Chapter’s decision without examining the merits of the case.
It reasoned as follows (translation from Finnish):
“Section
59, subsection 1, paragraph 1, of the Administrative Judicial Procedure
Act (hallintolainkäyttölaki,
förvaltningsprocesslagen; Act no. 586/1996) provides that a
final decision may be set aside following a procedural complaint if a
person concerned has not been provided with an opportunity to be heard
and the decision violates his or her right. Paragraph 2 provides that a
decision may be set aside, if there has been another procedural error
which may have likewise affected the decision.
Ahtinen
has requested that the Cathedral Chapter’s decision be set aside on
the grounds that he was not properly heard. However, Ahtinen had, as
noted in the decision, been heard prior to the decision. Having regard
to the fact that the case concerns appointment to a position under
Chapter 6, section 33 (1), of the Church Rules of Procedure (kirkkojärjestys,
kyrkoordningen; Act no. 1055/1993) Ahtinen has been adequately
heard.
Ahtinen
has also requested that the decision be set aside on the grounds that
the Vicar of the parish of Rovaniemi was disqualified from taking part
in the examination of the matter before the Cathedral Chapter. As
neither the vicar nor the parish of Rovaniemi is a party to the
proceedings in issue and as neither can be expected to derive particular
benefit or suffer particular loss from the decision, there has not been
any procedural error in respect of disqualification in the matter as
provided by section 10, subsection 1, paragraph 5, of the Administrative
Procedure Act (hallintomenettelylaki,
lagen om förvaltningsförfarande; Act no. 598/1982), as in force
at the relevant time. On these grounds and having regard to Chapter 19,
section 6, of the Church Act, the Supreme Administrative Court rejects
the application.
...”
16. It
appears that the applicant has been an assistant vicar of the parish of
Rovaniemi since 1 April 2002.
II. RELEVANT
DOMESTIC LAW AND PRACTICE
The
position of the Evangelical Lutheran Church
17. Article
11 of the Constitution of 2000 (Suomen
perustuslaki, Finlands grundlag; Act no. 731/1999) provides:
“Everyone
has the freedom of religion and conscience. Freedom of religion and
conscience entails the right to profess and practice a religion, the
right to express one’s convictions and the right to be a member of or
decline to be a member of a religious community. No one is under the
obligation, against his or her conscience, to participate in the
practice of a religion.”
Article
76 of the Constitution provides:
“Provisions
on the organisation and administration of the Evangelical Lutheran
Church are laid down in the Church Act. The legislative procedure for
enactment of the Church Act and the right to submit legislative
proposals relating to the Church Act are governed by the specific
provisions in that Code.”
Section
2(1) of the Church Act provides:
“The
Church has the exclusive right to make legislative proposals for the
enactment of the Church Act in all matters which concern solely its own
affairs. It has the same right to propose amendments and repeal of the
Church Act. The proposal of the Church is submitted by the Synod. The
task to examine and confirm the proposal of the Synod is vested in the
President of the Republic and Parliament. The Synod also has the right
to submit proposals for the enactment of other legislation which
concerns the Church.”
Although
the Church Act is an Act of Parliament, no changes other than technical
changes can be made to a legislative proposal once it has been submitted.
It is for Parliament to either accept or reject the proposal of the
Synod (kirkolliskokous,
kyrkomötet).
The
Constitution lays down several guarantees against misuse of public
powers, in particular in Chapter 2 on fundamental rights and Chapter 1,
section 2(3), pursuant to which the law must be strictly observed in all
public activity. At the material time, the relevant Articles were
Articles 83, 5-16a and 92(1) of the Constitution of 1919, as amended by
Act no. 969/1995.
The
Government Bill (HE 23/1993) for the enactment of the Church Act noted
that the State is religiously uncommitted. One of the purposes for the
enactment of the Church Act was to relieve Parliament from the duty to
examine provisions concerning the religious doctrine and spiritual
activities of the Church and to strengthen the Church’s autonomous
power of decision in its own sphere of authority.
It
follows from these provisions that the administration of the Church is
autonomous.
The
applicant’s duties as a civil servant of the Church
18. The
duties of a parish priest are outlined in the Church Rules of Procedure
(kirkkojärjestys,
kyrkoordningen; Act no. 1055/1993) adopted by the Synod. Chapter
5, section 1(1), provides that a priest’s specific duty is to hold
public services, give holy sacraments, hold other church ceremonies,
provide for the care of souls and take confession.
19. Under
the Church Act and the Church Rules of Procedure, parish priests have no
independent decision-making powers.
Assignment
of a parish priest and termination of the assignment
20. Chapter
6, section 33(1), of the Church Rules of Procedure provides that the
Cathedral Chapter may appoint a qualified member of the diocese (hiippakunta,
stiftet) to perform the functions of a parish priest. Prior to an
appointment, the Cathedral Chapter provides the Church Council or the
Parish Council with an opportunity to submit its opinion, unless the
matter is urgent.
21. Chapter
6, section 8a(6), of the Church Act provides that a parish may not
terminate through dismissal the employment of an office holder appointed
or a person assigned to the office of a priest. The Cathedral Chapter
may suspend or withdraw an assignment given to a person to perform the
functions of a parish priest where there is a justified reason to do so.
Section 8b(1), paragraph 4, provides that a prior assignment is
considered automatically terminated without notice where the priest in
question is appointed, assigned or permanently transferred to another
position within the Church or a parish.
22. Chapter
6, section 10 of the Church Rules of Procedure provides that a parish
priest belongs to the diocese in which he has been consecrated as a
priest. According to the Government, this means that parish priests are
considered to serve the entire diocese and the Church, without being
bound to a particular parish or position. Further, a priest who is
assigned to a parish by the Cathedral Chapter is under an obligation to
accept any new assignment. It is also an established principle that,
having consecrated someone as a priest, the Cathedral Chapter is under
an obligation to ensure that the priest also has a valid assignment in
the future.
23. Chapter
19, section 5, of the Church Act, as in force at the relevant time,
provided that the Cathedral Chapter examined, in the capacity of a
judicial authority, appeals in respect of which it had decision-making
competence under the law and complaints made by means of extraordinary
appeal. In the capacity of an authority of first instance the Cathedral
Chapter examined administrative disputes concerning an obligation or a
right based on that Act or the Church Act and any such disputes between
the Church or a parish and their office holders concerning employment
which could not otherwise be resolved by law.
24. Chapter
19, section 6, as in force at the relevant time, provided that subject
to other provisions of the Act the Cathedral Chapter, in its
consideration of administrative cases, applied the provisions of the
Administrative Procedure Act and, in the administration of justice, the
provisions of the Administrative Judicial Procedure Act.
Appeal
and extraordinary appeal
25. Chapter
24, section 3, of the Church Act, as in force at the relevant time,
provided that anyone whose interests had been violated by a decision of
the Cathedral Chapter had a right of appeal. Section 8, as in force at
the relevant time, provided that the Administrative Judicial Procedure
Act applied to appeal and decision-making subject to other provisions of
the Church Act. The Administrative Judicial Procedure Act is based on
the principle of a general right of appeal and it refers, in section 8,
to the Church Act stating that the latter contains provisions governing
appeals against a decision of the Evangelical Lutheran Church.
26. Chapter
24, section 9(1), of the Church Act, as in force at the relevant time,
provided that without prejudice to other restrictions on the right of
appeal, no appeal lay against decisions by the Cathedral Chapter on the
appointment of office holders, assignment to a given position or related
withdrawal of a prior assignment, decisions on the engagement of an
office holder on probation, temporarily or as substitute, and decisions
on the termination of employment of probationary, temporary or
substitute office holders.
27. Section
59(1) of the Administrative Judicial Procedure Act provides that a final
decision may be set aside following a procedural complaint if a person
concerned has not been provided with an opportunity to be heard and the
decision violates his or her right or if another procedural error has
occurred which may have likewise affected the decision.
28. Section
10(1) of the Administrative Procedure Act (repealed) provided that a
public official was disqualified if he or she was a member of the board
of directors, the supervisory board or a comparable body or was the
managing director or held a comparable position in a corporation,
foundation, institution of a public-law character or public enterprise
which was a concerned party or which could be expected to derive
particular benefit or suffer particular loss as a result of a decision
in the matter. Section 11 provided that a disqualified person could
neither consider the matter nor be present at the proceedings, except
where the disqualification could not affect the outcome because of the
nature of the matter, or where the proceedings could not be deferred.
29. Section
15 provided that a concerned party had to be given an opportunity to
comment on the claims made by others and on any evidence that could
affect the decision. However, a matter could be decided without hearing
a concerned party if the claim was dismissed without prejudice or
immediately rejected, if the claim that was approved did not affect
another concerned party, if it was obviously superfluous for some other
reason, if the matter concerned entry into a service relationship or
voluntary training or the granting of a benefit based on an assessment
of the qualities of an applicant, if a hearing could jeopardise the
achievement of the purpose of the decision, or if a decision in the
matter could not be postponed.
30. According
to the Government, the prohibition on appealing against a decision
concerning assignment to a given position or withdrawal of an assignment
was based on the need to ensure that the duties of parish priests were
discharged as appropriate, in accordance with the respective needs of
different parishes. The Government noted, however, that this purpose was
not indicated in the Government Bill (HE 23/1993 vp) for the enactment
of the Church Act.
31. The
Church Act was amended with effect from 1 January 2004 as regards the
restrictions on the right of appeal concerning posts in the National
Ecclesiastical Board (kirkkohallitus,
kyrkostyrelsen) and the Cathedral Chapter. In 2003, the
Constitutional Law Committee gave the following consideration in its
opinion (translation from Finnish).
“...
In the opinion of the Committee, the autonomy of the administration of
the Evangelical Lutheran Church, based on Article 11 of the
Constitution, must be taken into account in the assessment of the
aforementioned proposed provision. ...
Under
existing provisions of law, the Synod and the Bishops’ Conference do
not decide on issues that would, in view of the foregoing, affect the
rights or obligations of individuals. Therefore, the proposed
prohibitions on an appeal (paragraph 1) have no relevance for the
application of Article 21 of the Constitution [according to which
everyone has the right to have a decision pertaining to his or her
rights or obligations reviewed by a court of law or other independent
organ for the administration of justice]. The proposed prohibitions may
in this respect be considered to clarify the existing provisions of law.
The bishop and the Cathedral Chapter make their decisions on the
assignment of a priest on the basis of religious criteria, and decisions
made by the bishop alone mainly fall, according to the explanatory
report of the Government Bill, within the scope of religious guidance by
the bishop. The prohibitions on appealing against such decisions (paragraph
2) do not constitute a problem with regard to Article 21 of the
Constitution. The prohibitions on appealing referred to in subsection 1,
paragraph 4, relate to such issues concerning the religious workers of
the Church and falling within the scope of the autonomy of a religious
community as do not directly affect anyone’s subjective rights. Nor do
the prohibitions on the right to request review and the right of appeal
in any other respect cause problems with regard to the Constitution.”
THE
LAW
I. ALLEGED
VIOLATION OF ARTICLE 6 OF THE CONVENTION
32. The
applicant complained, under Article 6 of the Convention, that he had not
been properly heard on the real reasons for his transfer and that the
Cathedral Chapter had been partial. Article 6, in its relevant part,
reads as follows:
“1. In
the determination of his civil rights and obligations ..., everyone is
entitled to a fair ... hearing ... by an independent and impartial
tribunal established by law.”
A. The
parties’ arguments
33. In
his written observations the applicant did not put forward any further
arguments in reply to those of the Government.
34. The
Government contested the applicability of Article 6. Notwithstanding the
fact that the applicant was a civil servant without any independent
decision-making competence, the present case did not concern the
termination of service but the transfer of a civil servant to another
place of duty. Assignment and the related withdrawal of a prior
assignment were largely based on the Cathedral Chapter’s discretionary
powers in an administrative procedure. As a parish priest the applicant
was considered to serve the entire diocese and the Church, without being
bound to a certain parish or position, and he was under an obligation to
accept a new assignment which terminated the prior one. Thus, he had a
special bond of trust and loyalty to the Church. Accordingly, the
applicant did not have a “civil right”.
35. Should
the Court come to another conclusion, the Government argued that the
right of access to court was not an absolute one. Indeed, the
applicant’s right of access to court had been limited as no ordinary
appeal lay against such decisions of the Cathedral Chapter. The
provisions of the Church Act were based on the principle of a general
right of appeal, as anyone whose interests were violated by a decision
of the Cathedral Chapter had a right of appeal. The prohibition on
appealing against a decision concerning, inter
alia, assignment to a given position or the related withdrawal of
a prior assignment was based on the need to ensure that the duties of
parish priests were discharged as appropriate in accordance with the
respective needs of different parishes, which was a legitimate aim. The
limitation of the right to appeal was not disproportionate to this aim.
The limitation concerned withdrawal of a prior assignment only when the
withdrawal was connected with a new assignment and had to be seen
against the nature of the work of the Church as a whole. The margin of
appreciation allowed to States in limiting an individual’s access to
court had not been exceeded.
36. In
the alternative, the Government submitted that the applicant had lodged
an extraordinary appeal with the Supreme Administrative Court, alleging
that he had not been heard in the proceedings before the Cathedral
Chapter, which had allegedly also been partial. However, in its decision
of 9 March 1999, the Supreme Administrative Court found that the
applicant had been provided with an adequate opportunity to be heard
before the decision was made, considering that the case concerned
assignment to a position within the meaning of Chapter 6, section 33, of
the Church Rules of Procedure. As to the partiality allegation, the
minutes from the Cathedral Chapter’s meeting showed that, although the
vicar had been present during the session, he had not participated in
the decision-making. As neither the vicar nor the parish of Rovaniemi
were parties to the proceedings, they could not therefore have expected
to derive any benefit or suffer any loss from the decision. The
Government concluded that the extraordinary appeal must be considered a
remedy since the Supreme Administrative Court had ruled on the
complaints subsequently lodged with the Court. They relied on
Alatulkkila
and Others v. Finland (no. 33538/96, § 52, 28 July
2005).
B. The
Court’s assessment
37. The
Court will examine whether Article 6 applies to the proceedings in
issue. It recalls that Article 6 § 1 secures to everyone the right to
have any claim relating to his civil rights and obligations brought
before a court or tribunal. In this way the Article embodies the
“right to a court”, of which the right of access, that is the right
to institute proceedings before courts in civil matters, constitutes one
aspect only (see Golder
v. the United Kingdom judgment of 21 February 1975, Series A
no.18, p. 18, § 36).
38. This
right to a court “extends only to ‘contestations’ (disputes) over
(civil) ‘rights and obligations’ which can be said, at least on
arguable grounds, to be recognised under domestic law; Article 6 § 1
does not in itself guarantee any particular content for (civil)
‘rights and obligations’ in the substantive law of the Contracting
States” (see, inter
alia, James
and Others v. the United Kingdom judgment of 21 February 1986,
Series A no. 98, pp. 46-47, § 81, and Powell
and Rayner v. the United Kingdom judgment of 21 February
1990, Series A no. 172, p.16, § 36). Article 6 § 1 will however apply
to disputes of a “genuine and serious nature” concerning the actual
existence of a right as well as to the scope or manner in which it is
exercised (see Benthem
v. the Netherlands judgment of 23 October 1985, Series A no. 97,
p. 15, § 32). In assessing therefore whether there is a civil
“right”, the starting-point must be the provisions of the relevant
domestic law and their interpretation by the domestic courts (see Masson
and Van Zon v. the Netherlands, judgment of 28 September 1995,
Series A no. 327-A, p. 19, § 49;
Roche v. the United Kingdom [GC], no. 32555/96, § 120,
ECHR 2005-...). In carrying out this assessment, it is necessary to look
beyond the appearances and the language used and to concentrate on the
realities of the situation (see Van
Droogenbroeck v. Belgium, judgment of 24 June 1982, Series A
no. 50, pp. 20-21, § 38; Roche
v. the United Kingdom, cited above, § 121).
39. In
the present case, from 1988 the applicant had worked as a parish priest
in the parish of Rovaniemi until his assignment was withdrawn and he was
transferred to serve in another parish in 1998. The transfer was based
on the unilateral decision of the Cathedral Chapter against which no
ordinary appeal lay. The applicant lodged an extraordinary appeal with
the Supreme Administrative Court with a view to having the decision set
aside. Chapter 6, section 8a(6), of the Church Act makes the lawfulness
of the measure in issue subject to only one condition: there has to be
“a justified reason” for making such a decision (see paragraph 9
above). The transfer of parish priests is therefore a matter within the
discretion of the Cathedral Chapter, a factor which argues against the
existence of a “right” (compare and contrast De
Moor v. Belgium, judgment of 23 June 1994, Series A no. 292-A,
§ 43).
40. For
the Court, this latter conclusion is confirmed by the following domestic
law considerations. Firstly, the transfer of a parish priest’s
assignment may take place without his or her consent. Secondly, no
appeal lay against a decision like the one in issue and it is clear that
the legislator had not intended to provide for any judicial
determination of the merits of grievances filed by clergymen wishing to
contest the change of their place of service. It is to be noted in this
latter connection that in the domestic proceedings, the Cathedral
Chapter declared that it was an old tradition that a parish priest could
be transferred to another parish with or without his consent, if the
transfer was considered to be in the interests of the Church. The
Court’s conclusion regarding the non-existence of a substantive right
is not affected by the limited review possibility offered by means of an
extraordinary appeal. The Court also notes that the legislator has in
2003, albeit in connection with an amendment concerning posts in the
National Ecclesiastical Board and the Cathedral Chapter, taken the
opportunity to reaffirm that the Constitution does not require the
availability of an appeal (see paragraph 31 above).
41. As
for the position of the Evangelical Lutheran Church under Finnish law,
the Court notes that it has the right to administer its own
affairs (see paragraph 17 above). It is independent in matters such as
the appointment of its priests and the latter’s service. The relevant
legislation leaves it to the Church as employer to determine the period
and place of pastoral activity. The Court notes that when accepting
ecclesiastical employment, parish priests are aware of the possibility
that they may later be transferred to another post. Hence, the applicant,
by agreeing to serve as a parish priest within the Church, undertook to
abide by the rules of his church incorporated in the Church Act and the
Church Rules of Procedure.
42. The
Court has already found that Article 6 § 1 was not applicable to
proceedings in which priests of the Czechoslovak Hussits Church had
challenged the termination, by the authorities of their church, of their
clerical service (see Duda
and Dudová v. the Czech Republic (dec.), no. 40224/98, 30
January 2001). In that case, the Court concurred with the domestic
courts’ findings that the judicial determination of issues such as the
continuation of a priest’s service within a church would be contrary
to the principles of autonomy and independence of churches guaranteed
by, inter
alia, the Charter of Fundamental Rights and Freedoms. In the
present case, the subject matter is of a less serious nature than in the
afore-mentioned case.
43. Summing
up, no basis has therefore emerged in the domestic law or the Court’s
case-law for holding that the applicant had a “right” within the
meaning of Article 6. The Court cannot but conclude that Article 6 does
not apply to the present case. There has therefore been no violation of
that provision.
FOR
THESE REASONS, THE COURT UNANIMOUSLY
Holds
that there has been no violation of Article 6 § 1 of the
Convention.
Done
in English, and notified in writing on 23 September 2008, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş
Aracı Nicolas Bratza
Deputy Registrar President
|