FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 63235/00 
by Vilho ESKELINEN and Others 
against Finland

The European Court of Human Rights (Fourth Section), sitting on 29 November 2005 as a Chamber composed of:

Sir Nicolas Bratza, President
 Mr G. Bonello
 Mr M. Pellonpää
 Mr K. Traja
 Mr L. Garlicki
 Mr J. Borrego Borrego, 
 Ms L. Mijović, judges
and Mr M. O’Boyle, Section Registrar,

Having regard to the above application lodged on 19 October 2000, 
Having deliberated, decides as follows:

THE FACTS

The applicants, Senior Constable Vilho Eskelinen, Senior Constable Arto Huttunen, Sergeant Markku Komulainen, Office Assistant Lea Ihatsu, Mr Toivo Pallonen (a police officer who retired on 1 January 1993) and the heirs of Mr Hannu Matti Lappalainen (a police officer who died on 22 August 1995) - Mrs Päivi Lappalainen, Mr Janne Lappalainen and Mr Jyrki Lappalainen - are Finnish nationals who were born in 1955, 1953, 1954, 1956, 1937, 1957, 1983 and 1981 respectively and live in Sonkakoski and Sonkajärvi. They were represented before the Court by Mr Paavo M. Petäjä, a lawyer practising in Haapajärvi. The respondent Government were represented by their Agent, Mr Arto Kosonen of the Ministry for Foreign Affairs.

A.  The circumstances of the case

The facts of the case, as submitted by the parties and as they appear from the documents, may be summarised as follows.

The applicants, including the late Mr Hannu Matti Lappalainen, worked in the Sonkajärvi Police District. Under a collective agreement concluded in 1986, they were entitled to a remote-area allowance, which was added to their salaries as a bonus for working in a remote part of the country. The amounts of the allowance were calculated on the basis of a given area’s remoteness. By a collective agreement concluded on 15 March 1988, the remote- area allowance was replaced by a cold-area allowance or an island-area allowance. The remoteness criteria were also altered. This would have resulted in a reduction of the salary payable to civil servants whose duty station was Sonkajärvi. In order to prevent such a reduction, the collective agreement granted them individual wage supplements, which formed part of their salaries.

On 1 November 1990 the Sonkajärvi Police District was incorporated into the Iisalmi Police District by a decision of the Ministry of the Interior (sisäasiainministeriö, inrikesministeriet). Following the incorporation, the applicants’ duty station changed. They also lost their individual wage supplements and the length of their commute allegedly increased by some 50 kilometres as they began commuting from Sonkajärvi to Iisalmi. The length of Senior Constable Eskelinen’s commute increased by 24 kilometres. According to the applicants, the amount of the cold- area allowance was the same in Sonkajärvi and Iisalmi.

According to the applicants, following their request of 17 October 1990 to that effect, the Kuopio Provincial Police Command (läänin poliisijohto, länspolisledningen) promised that their loss would be compensated.

On 25 March 1991 the Police Department of the Ministry of the Interior, at the request of the Provincial Police Command, submitted a request for authorisation for the payment of monthly individual wage supplements, amounting to 500-700 Finnish marks (FIM) (84-118 euros; EUR) per person, to those police officers whose duty station had been changed from Sonkajärvi to Iisalmi. The request referred to an allegedly analogous case (the Mäntyharju case) in which the Ministry of Finance (valtiovarainministeriö, finansministeriet) had granted a request for individual wage supplements on 29 December 1989. On 3 July 1991 the Ministry of Finance replied that it could not grant such authorisation. It gave no reasons for its refusal.

On 1 October 1992 competence to decide on wage supplements in respect of local police forces was transferred to the County Administrative Boards (lääninhallitus, länsstyrelsen).

On 19 March 1993 the applicants lodged an application requesting that they be compensated for their loss. They referred to the above decision in the Mäntyharju case. They also relied on the principle of equality as laid down in Article 5 of the Constitution then in force (Suomen hallitusmuoto, Regeringsform för Finland; 94/1919).

Four years later, on 19 March 1997, the request was rejected by the Kuopio County Administrative Board. Finding that the Provincial Police Command had lacked competence to make any binding promise as regards the wage supplements in 1990, the Board based its decision on the Ministry of Finance’s decision of 3 July 1991 and the prevailing practice not to compensate loss arising from the incorporation of police districts.

Meanwhile, in December 1996 one of the applicants lodged a complaint with the Deputy Chancellor of Justice (apulaisoikeuskansleri, biträdande justitiekanslern) who, in his decision of 24 January 1997, drew attention to the fact that the applicants had still not received any answer to their application.

On 25 April 1997 the applicants appealed against the County Administrative Board’s decision and requested an oral hearing which, they asserted, would make it possible to establish the existence of the promise made by the Provincial Police Command as well as other measures taken in the case. The Kuopio County Administrative Court (lääninoikeus, länsrätten) received replies to the appeal from the Provincial Police Command and the Provincial State Attorney (lääninasiamies, länsombudet), and these were communicated to the applicants for comment.

In its decision of 8 June 1998 the County Administrative Court noted that in 1990 the Provincial Police Command had lacked competence to give any binding promises pertaining to compensation. Competence to decide the matter had at that time lain with the Ministry of Finance, which had issued its decision on 3 July 1991. The court therefore interpreted the applicants’ appeal as a request for rectification, which it refused. The court considered it unnecessary to hold a hearing in connection with the alleged promise pertaining to compensation. As to equality, the court found that no compensation had been awarded in other cases following the Ministry of Finance’s decision of 3 July 1991.

On 7 July 1998 the applicants appealed further, requesting an oral hearing and emphasising that similar allowances had been granted to personnel of other police districts in corresponding situations. They relied, for example, on a decision of 10 January 1997 by the Pohjois-Karjala County Administrative Board, granting a police officer an individual wage supplement from 1 December 1996 following incorporation of the Valtimo Police District into the Nurmes Police District.

On 27 April 2000 the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen), having received observations from the Provincial Police Command and the Provincial State Attorney and communicated them to the applicants for comment, upheld the lower court’s decision but amended the reasoning. It found that the applicants had no statutory right to the individual wage supplements in question and that the lower court had not overstepped its margin of appreciation. It also found it unnecessary to hold a hearing, given that the alleged promises made by the Provincial Police Command had no bearing on the case.

B.  Relevant domestic law and practice

Legislation

Under Finnish law and practice, administrative judicial proceedings are mainly written. The Administrative Judicial Procedure Act (hallintolainkäyttölaki, förvaltningsprocesslagen; 586/1996) provides that an oral hearing is to be conducted when necessary for the purposes of establishing the facts of the case. The parties, the authority concerned, witnesses and experts may be heard and other evidence received at the hearing (section 37).

An administrative court is to hold an oral hearing if a private party so requests. The same applies to the Supreme Administrative Court where it is considering an appeal against a decision by an administrative authority. A hearing requested by a party need not be held if the claim is dismissed without consideration of its merits, or immediately rejected, or if an oral hearing is manifestly unnecessary in view of the nature of the matter or for any other reason (section 38).

According to the Government, the implementing instructions on the application of the collective agreement with regard to the payment of a cold- area allowance to civil servants provides that, where a civil servant entitled to an individual wage supplement is ordered, temporarily or as a substitute, to perform the duties of another civil servant, or where his or her place of duty is transferred to a municipality in which the previous remote- area allowance was not paid, the said civil servant will not be paid the individual wage supplement during the period he or she is performing those other duties because, in order to receive the supplement, it is necessary that the civil servant perform his or her duties in the municipality giving rise to entitlement to the supplement.

According to the applicants, these instructions lacked relevance to the present case as they concerned only temporary transfers, whereas the transfer of the applicants’ place of duty had been of a permanent nature.

Practice

In its request of 25 March 1991 the Police Department of the Ministry of the Interior referred to an allegedly analogous case in which the Ministry of Finance had on 29 December 1989 granted a request for individual wage supplements following the incorporation of the Pertunmaa Police District into that of the Mäntyharju Police District (the Mäntyharju case).

On 7 December 1994 the Supreme Administrative Court upheld the Uusimaa County Administrative Board’s decision of 7 April 1993 by which an application for compensation for commuting costs had been rejected. The application had been lodged by a police officer whose duty station had changed following the incorporation of police districts (the Askola case).

By a decision of 10 January 1997 the Pohjois-Karjala County Administrative Board granted a police officer an individual wage supplement following the incorporation of the Valtimo Police District into the Nurmes Police District (the Nurmes case).

COMPLAINTS

1.  The applicants complained under Article 6 § 1 of the Convention about the excessive length of the proceedings concerning the terms of their employment as civil servants.

2.  They complained, also under Article 6 § 1, about the lack of an oral hearing before any of the domestic instances.

3.  Further, they complained under Article 1 of Protocol No. 1 to the Convention that they had been illegally deprived of their possessions in that they had lost their entitlement to the remote-area allowance when the Sonkajärvi Police District was incorporated into the Iisalmi Police District. They had not been compensated for their loss. In their observations in reply to those of the Government, the applicants clarified that they had lost their entitlement to the individual wage supplements.

4. They also complained under Article 14 that they had been discriminated against in that they had been treated differently from the personnel of other police districts in similar situations.

5. Lastly, they complained under Article 13 that they did not have an effective remedy against the decision in issue.

THE LAW

A.  Article 6 § 1 of the Convention

The applicants claimed to be victims of a breach of Article 6 § 1 of the Convention, the relevant part of which provides:

“In the determination of his civil rights and obligations ... , everyone is entitled to a fair and public hearing within a reasonable time ... .”

The Government contested the personal applicability of Article 6 on the ground that the applicants’ duties, except for those of the office assistant, entailed direct participation in the exercise of powers conferred by public law and duties designed to safeguard the general interests of the State; they referred to the case of Pellegrin v. France ([GC], no. 28541/95, § 66, ECHR 1999-VIII). The application related to the remuneration of the holders of such powers. Accordingly, it was excluded from the scope of application of Article 6 as regards the police officer applicants. The Government also contested the applicability on the ground that there was no statutory right to the wage supplements in question. Accordingly, the complaints were in any event and in respect of all applicants incompatible ratione materiae with the provisions of the Convention.

Were the Court to hold otherwise, the Government submitted that the application was manifestly ill-founded for the following reasons.

The Government took the view that the proceedings had begun on 25 April 1997 when the applicants had lodged their application with the County Administrative Court and had ended on 27 April 2000 with the Supreme Administrative Court’s decision. The applicants’ case had not been complex, but the courts had been obliged to await the outcome of the Askola case with a view to treating police officers from different districts in an equal manner. The fact that it had taken the County Administrative Board four years to examine the applicants’ request could not be taken into account, as that procedure had not amounted to court proceedings and was thus not relevant in calculating the length of proceedings. The Government submitted that the case had not involved basic subsistence and that the matter at stake had thus not been particularly urgent.

As to the lack of a hearing, the Government argued that the courts had found a hearing to be unnecessary, given that the Provincial Police Command’s alleged promise had no legal relevance to the case. There were no questions of fact or law that could not have been adequately resolved on the basis of the case file and the parties’ written submissions.

The applicants contested the Government’s contention that Article 6 did not apply to some of them in their capacity as police officers. They emphasised that their service and their salaries were not related to the exercise of powers conferred by public law. What was at stake was their right to their salaries. That right was of a private-law character.

The applicants considered that the proceedings had begun on 17 October 1990 when they had lodged their initial application. They had come to an end on 27 April 2000. They rejected the Government’s contention that it had been imperative to await the outcome of the Askola case, arguing that that case had not been comparable to theirs. The police officers in Askola had never been entitled to remote-area or cold-area allowances or to individual wage supplements. In any event, the resolution of the Askola case had become final on 7 December 1994.

Lastly, the applicants maintained that a hearing should have been held with a view to taking oral testimony from them in person about the particular facts of the case.

The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, including the question of the applicability of Article 6, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

B.  Article 1 of Protocol No. 1 to the Convention in conjunction with Article 14 of the Convention

The applicants alleged a breach of Article 1 of Protocol No. 1 to the Convention, which reads:

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

They also alleged a breach of Article 14 of the Convention, which reads:

“The enjoyment of the rights and freedoms set forth in [the] 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 Government submitted that, as there was no “right” within the meaning of Article 6, there was equally no possession within the meaning of Article 1 of Protocol No. 1. Consequently, neither Article 1 of Protocol No. 1 nor Article 14 had any application to the case.

Were the Court to hold otherwise, the Government submitted the following.

As to the allegation that the applicants had been treated differently from other personnel, the Government explained that, pursuant to a collective agreement, civil servants working in Sonkajärvi had been entitled to a remote-area allowance. By a subsequent collective agreement, the remote-area allowance had been replaced by a cold-area allowance and certain municipalities, including Sonkajärvi, had been removed from the group for which this allowance was to be paid. The latter collective agreement had been in force until 29 February 1992. Under that collective agreement and the above-mentioned implementing instructions on the collective agreement, civil servants whose place of duty was transferred to Iisalmi on account of the incorporation of the Sonkajärvi Police District into that of Iisalmi had not been entitled to a cold-area allowance after the transfer. Thus, the applicants’ case was not comparable to the Nurmes case, in which the civil servant in question had kept his individual wage supplement because he would otherwise have lost the cold-area allowance following the change in his place of duty. In the applicants’ case, there was no right to such an allowance in the first place.

As to the administrative practice, the Government submitted that the police officers in the cases of Nurmes, Valtimo, Ilomantsi and Tuupovaara had been entitled to individual wage supplements both in their former places of duty and in the new ones, although the amounts had differed. Therefore these cases also differed from that of the applicants. In fact, where police districts had been incorporated after 3 July 1991, the practice had been not to award compensation in cases comparable to that of the applicants.

In any event, the Government submitted that the applicants, with one exception, had incurred some relatively small commuting costs following the incorporation of the Sonkajärvi Police District. These costs were tax-deductible. In addition, some of the applicants had been entitled to use the police force’s vehicles for commuting until May 1991. Lastly, the applicants had not submitted any detailed evidence in support of their claims.

The applicants asserted that they had initially been entitled to a remote-area allowance. Under the collective agreement of 15 March 1988 the remote-area allowance had been replaced by a cold-area allowance and, as a result of that change, the amount of money to which civil servants working in Sonkajärvi had been entitled had been reduced. In order to compensate for this fall in income, civil servants working in Sonkajärvi had been granted individual wage supplements. The supplements had thus formed part of the applicants’ salaries. This had been in accordance with the State Administration’s practice to the effect that acquired advantages should not be lost. This change had taken place prior to the incorporation, which had resulted in a loss of part of their salaries.

The applicants further submitted that the Nurmes case had been identical to theirs. In that case a police officer had been compensated for the reduction in his salary following incorporation into the Nurmes Police District. The decision in that case had been issued by the Pohjois-Karjala County Administrative Board and as a result, the salary of the police officer in question had been maintained at its previous level. The applicants’ salaries had not.

Lastly, the applicants argued that the Askola case had not been comparable to theirs, because police officers in Askola had never received a remote- area allowance, a cold-area allowance or individual wage supplements in the first place. The applicants also referred to the Mäntyharju case, in which the civil servants’ commuting costs had been compensated in the form of individual wage supplements following a change in duty station. The applicants had received no such compensation.

The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

C.  Article 13 of the Convention

The applicants claimed to be victims of a breach of Article 13 of the Convention, which reads:

“Everyone whose rights and freedoms as set forth in [the] 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 Government considered the complaint unfounded as the applicants had appealed against the County Administrative Board’s decision at two court levels.

The applicants maintained that the lengthy proceedings had made their appeals ineffective.

The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

For these reasons, the Court unanimously

Declares the application admissible, without prejudging the merits of the case.

Michael O’Boyle Nicolas Bratza 
 Registrar President

VILHO ESKELINEN AND OTHERS v. FINLAND DECISION


VILHO ESKELINEN AND OTHERS v. FINLAND DECISION