CASE OF AHTINEN v. FINLAND
No violation of Art. 6-1
David Thór Björgvinsson;Giovanni Bonello;Ján Šikuta;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä
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. 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. 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. 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. 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.”