FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 33375/96 
by E.T. 
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 11 March 1996 and registered on 7 October 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 living in Oulunsalo. She is represented before the Court by Mr Mikko Hunnakko, a lawyer in Helsinki.

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

On 23 September 1993 the Kempele Municipal Assembly (kunnanvaltuusto, kommunfullmäktige) decided to abolish the applicant’s post (personnel secretary) as from 21 April 1994 due to a reorganisation of the organic chart of municipal staff. On 7 February 1994 the Municipal Board (kunnanhallitus, kommunstyrelsen) confirmed  her dismissal. As personnel secretary the applicant was responsible for supervising the calculation of salaries and related matters, interpreting and enforcing applicable collective agreements for municipal officials and employees hired on regular labour contracts, planning staff training and drafting the municipality’s work plan as far as relating to personnel administration. The reorganisation entailed delegating certain functions to various departments and officials. Other tasks were taken over by the secretary for agricultural matters and the planning secretary, whereas certain tasks were abolished altogether.

The applicant appealed against both decisions, arguing, inter alia, that the decision to terminate her post had not been supported by adequate reasons, had not been preceded by statutory negotiations with her trade union and had been in breach of the 1986 Gender Equality Act (laki naisten ja miesten välisestä tasa-arvosta, jämställdhet mellan kvinnor och män 609/1986) in that one of the underlying reasons for her dismissal had been her professional absence due to two periods of maternity and parental leave. She further contested the Municipal Board’s decision to confirm her dismissal and its calculation of the period of notice.

On 21 October 1994 the County Administrative Court (lääninoikeus, länsrätten) of Oulu dismissed the applicants’ appeals. It found, inter alia, that her post had not been of such a nature as to require statutory negotiations preceding the dismissal. As the post had not been required by law the Municipal Assembly had been competent to abolish it. The documentation on file did not disclose any indication that the applicant had been discriminated against as a woman. Neither had the period of notice been calculated incorrectly.

On 14 September 1995 the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen), by four votes to one, dismissed the applicant’s appeal. The applicant had forwarded to the court an opinion of the Gender Equality Ombudsman (tasa-arvovaltuutettu, jämställdhetsombudsmannen) dated 13 March 1995. The court had also received observations in reply from the Municipal Board which had not been forwarded to the applicant prior to the court’s decision.

COMPLAINT

The applicant complains that she was denied a fair and public hearing in violation of Article 6 § 1 of the Convention. She challenges the Finnish reservation to Article 6 in respect of the right to an oral hearing before county administrative courts and the Supreme Administrative Court. In her case the County Administrative Court of Oulu should have held an oral hearing, in particular since no adequate reasons had been given for her dismissal. Moreover, the Supreme Administrative Court failed to hear her in respect of the municipality’s observations on her appeal, even though the grounds upon which it relied had not been stated earlier and had apparently been presented in the municipality’s observations.

As for the applicability of Article 6 of the Convention, the applicant submits that her municipal post could not be equated with that of a civil servant of the State. Even if she could be considered a civil servant for the purposes of Article 6, this provision should apply to this category as well as to any other group of professionals.

THE LAW

The applicant complains that she was denied a fair and public hearing in violation of Article 6 § 1 of the Convention inter alia in that the Supreme Administrative Court failed to hear her in respect of the municipality’s observations on her appeal. 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 [a] tribunal established by law. ..."

The concept of fair trial inherent in Article 6 implies, inter alia, the right for the parties to a trial to have knowledge of and comment on all evidence adduced or observations filed (see, e.g., the Kerojärvi v. Finland judgment of 19 July 1995, Series A no. 322, and the Nideröst-Huber v. Switzerland judgment of 18 February 1997, Reports of Judgments and Decisions 1997-I). Before assessing in the present case whether the proceedings as a whole were fair within the meaning of Article 6 § 1 the Court must, however, determine whether the applicant’s right to remain in office was a “civil right” for the purposes of Article 6 § 1 of the Convention. Regard must be had to the fact that in the present case 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 personnel secretary involved supervisory and other responsibility at the level immediately below the decision-making of the mayor. Her post therefore appears to have entailed, at least to some extent, 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. In these circumstances and even on the basis of the aforementioned restrictive interpretation of the exceptions to the applicability of Article 6 § 1 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 the application is incompatible ratione materiae with the provisions of the Convention and must be rejected pursuant to Article 35 § 3 of the Convention.

 For these reasons, the Court, by a majority,

DECLARES THE APPLICATION INADMISSIBLE.

Vincent Berger Georg Ress 
 Registrar President

33375/96 - -


- - 33375/96