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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
- 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.
- 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.
- 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.
- 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.
- 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
- The applicant was born in 1949 and lives in Rovaniemi.
- 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.
- 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.
...”
- 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.
- 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.
- 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.”
- 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.
- 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.
- 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.
- 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.
...”
- 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
- 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
- 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.
- 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
- 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.
- 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.
- 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.
- 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.
- 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
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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
- 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
- In
his written observations the applicant did not put forward any
further arguments in reply to those of the Government.
- 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”.
- 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.
- 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
- 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).
- 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).
- 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).
- 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).
- 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.
- 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.
- 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
