FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 36401/97 
by Pertti KAJANEN and Pekka TUOMAALA 
against Finland

The European Court of Human Rights (Fourth Section), sitting on 19 October 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 21 April 1997 and registered on 9 June 1997,

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 applicants are Finnish nationals, born in 1945 and 1946 respectively and living in Turku and Kaarina.

A. The circumstances of the caseNote

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

The applicants are Justices at the Court of Appeal of Turku. Between the applicants and the representative of their employer a disagreement arose about the amount of their salary. According to the applicants, they were entitled to receive salary corresponding to a higher salary grade than that actually applied. The Chief Secretary of the Court of Appeal (hovioikeuden kansliapäällikkö, hovrättens kanslichef) made a decision that the applicants were not entitled to the higher salary grade. The applicants asked for a notice of appeal, but did not receive one.

The applicants nonetheless appealed to the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen), which on 14 November 1996 stated that as the question concerned the interpretation of a collective bargaining contract on civil servants’ salaries, the court was not competent to try the case.

The applicants then took legal action against the State in the Labour Court (työtuomioistuin, arbetsdomstolen). On 3 March 1997, the court found that, according to the Act on the Labour Court (laki työtuomioistuimesta, lag om arbetsdomstolen), a civil servant bound by a collective bargaining contract on civil servants’ salaries was allowed to take legal action before the Labour Court. However, since the applicants were not members of a trade union and therefore not bound by the contract, they could not take legal action before the Labour Court.

B. Relevant domestic law and practice

According to Section 10a, Subsection 2, of the Constitution Act (Suomen Hallitusmuoto, Regeringsform för Finland), as in force at the relevant time, everyone has the freedom of association. Freedom of association entails the right to form an association without a permit, to be a member or not to be a member of an association and to participate in the activities of an association. The freedom to form trade unions and to organise in order to look after other interests is likewise guaranteed.

According to Section 5, Subsections 1 and 2, everyone is equal before the law. No one shall, without an acceptable reason, be treated differently from other persons on the ground of sex, age, origin, language, religion, conviction, opinion, health, disability or other reason that concerns his or her person.

Section 16 guarantees to everyone the right to have his or her case dealt with appropriately and without undue delay by a legally competent court of law or other authority, as well as 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.

In its decision no. 4398 rendered on 31 December 1999 the Supreme Administrative Court held that the above mentioned Section 16, inter alia, guarantees also to a judge not belonging to a trade union the right to have a dispute concerning his salary decided by a court. As the appellants in the case in question could not have their case decided by the Labour Court, the Supreme Administrative Court examined their claim but rejected it on the merits.

As from 1 March 2000 the Constitution Act is replaced by the Constitution of Finland (Suomen perustuslaki, Finlands grundlag), which contains provisions identical to those mentioned above.

COMPLAINT

The applicants complain under Article 11 of the Convention that their right not to belong to an association, in this case to a trade union, was violated. They could not take legal action concerning their salary disagreement before the domestic courts. They argue they were discriminated because they were not members of a trade union. The applicants also argue that they were not entitled to a fair and public hearing by an independent and impartial tribunal established by law.

THE LAW

1. The Court has considered under Article 6 of the Convention the applicants’ allegation about the lack of access to court. In its relevant part Article 6 § 1 reads as follows:

“In determination of his civil rights and obligations..., everyone is entitled to a fair  and public hearing... by an independent and impartial tribunal established by law...”

The Court recalls that employment disputes raised by employees in the public sector, participating directly in the exercise of powers conferred by public law and the performance of duties designed to safeguard the general interests of the State, fall outside the scope of applicability of Article 6 of the Convention (see Pellegrin v. France judgment of 8 December 1999, §§ 64-67).

Accordingly, Article 6 § 1 is not applicable in the present case concerning a dispute of the applicant judges’ salary. It follows that this part of the application is incompatible ratione materiae.

2. The applicants complain that they could not take effective legal actions concerning their salary disagreement because they were not members of a trade union. They argue that their right not to belong to an association was violated and that they were subjected to discrimination. They invoke Article 11 of the Convention.

Article 11 reads as follows:

“1.  Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.

2.  No restriction shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.”

The Court recalls that Article 11 protects also the negative freedom of association, i.e. the right not to join and not to be a member of an association. Compulsion to join an association may strike at the very substance of the right guaranteed by Article 11 and in itself amount to an interference with the right (see the Sigurdur A. Sigurjónsson v. Iceland judgment of 30 June 1993, Series A no. 264, §§ 35-37, and the Chassagnou and others v. France judgment of 29 April 1999, § 103).

The Court observes that the applicants were at no stage forced to join a trade union.  While their non-membership in such a union prevented them, for a certain period, from having their salary dispute examined by a tribunal, the Court notes that the Supreme Administrative Court’s decision of 31 December 1999 has changed the situation in this respect. Especially in view of this, the hardship caused to the applicants due to their non-membership in a union cannot be compared with the serious consequences which arose in the Sigurdur A. Sigurjónsson case referred to earlier (see the above-mentioned judgment §§ 9-17 and 36). Even assuming that the applicants can still claim to be victims within the meaning of Article 34 of the Convention, the Court considers that there is no appearance of a violation of Article 11. This conclusion makes it unnecessary to decide what, if any, relevance the provision contained in the second sentence of Article 11 § 2 might in other circumstances have had in the case.

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

For these reasons, the Court, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

Vincent Berger Georg Ress 
 Registrar President

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.


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