CEDH · CASELAW;REPORTS;ENG — 15 octobre 1996

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                        EUROPEAN COMMISSION OF HUMAN RIGHTS                          Application No. 20772/92                                 Pekka Helle                                   against                                   Finland                          REPORT OF THE COMMISSION                        (adopted on 15 October 1996)                              TABLE OF CONTENTS                                                                    Page   I.     INTRODUCTION       (paras. 1-16) . . . . . . . . . . . . . . . . . . . . . . . . 1         A.    The application            (paras. 2-4) . . . . . . . . . . . . . . . . . . . . . . 1         B.    The proceedings            (paras. 5-11). . . . . . . . . . . . . . . . . . . . . . 1         C.    The present Report            (paras. 12-16) . . . . . . . . . . . . . . . . . . . . . 2   II.    ESTABLISHMENT OF THE FACTS       (paras. 17-37). . . . . . . . . . . . . . . . . . . . . . . . 3         A.    The particular circumstances of the case            (paras. 17-29) . . . . . . . . . . . . . . . . . . . . . 3         B.    Relevant domestic law            (paras. 30-37) . . . . . . . . . . . . . . . . . . . . . 5   III.   OPINION OF THE COMMISSION       (paras. 38-72). . . . . . . . . . . . . . . . . . . . . . . . 6         A.    Complaint declared admissible            (para. 38) . . . . . . . . . . . . . . . . . . . . . . . 6         B.    Points at issue            (para. 39) . . . . . . . . . . . . . . . . . . . . . . . 6         C.    As regards Article 6 para. 1 of the Convention            (paras. 40-70) . . . . . . . . . . . . . . . . . . . . . 6              (i)    The absence of an oral hearing before an                  independent and impartial tribunal                  (paras. 42-59) . . . . . . . . . . . . . . . . . . 6              CONCLUSION            (para. 60) . . . . . . . . . . . . . . . . . . . . . . .10              (ii)   The fairness of the proceedings                  (paras. 61-69) . . . . . . . . . . . . . . . . . .10              CONCLUSION            (para. 70) . . . . . . . . . . . . . . . . . . . . . . .11         D.    Recapitulation            (paras. 71-72) . . . . . . . . . . . . . . . . . . . . .11                              TABLE OF CONTENTS                                                                    Page   PARTIALLY DISSENTING OPINION OF MRS J. LIDDY, JOINED BY MM. E. BUSUTTIL, L. LOUCAIDES, N. BRATZA AND M. VILA AMIGÓ . . . . . . . . . . . . . . . . . . . . . . . . .13   SEPARATE OPINION OF MR. M. PELLONPÄÄ. . . . . . . . . . . . . . . .15   APPENDIX :        DECISION OF THE COMMISSION AS TO THE                  ADMISSIBILITY OF THE APPLICATION . . . . . . . . .16   I.     INTRODUCTION   1.     The following is an outline of the case as submitted to the European Commission of Human Rights, and of the procedure before the Commission.   A.     The application   2.     The applicant is a Finnish citizen, born in 1931 and resident at Mäntsälä. He was represented before the Commission by Mr. Heikki Salo, a lawyer practising in Helsinki.   3.     The application is directed against Finland. The respondent Government were represented by their Agent Mr. Holger Rotkirch, Director-General for Legal Affairs, Ministry for Foreign Affairs, and by Mr. Arto Kosonen, Co-Agent, of the same Ministry.   4.     The case concerns proceedings before an ecclesiastical body and the Supreme Administrative Court for the determination of a pecuniary dispute between the applicant and his former employer, a parish. The applicant invokes Article 6 para. 1 of the Convention.   B.     The proceedings   5.     The application was introduced on 28 September 1992 and registered on 6 October 1992.   6.     On 30 November 1994 the Commission (First Chamber) decided, pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to give notice of the application to the respondent Government and to invite the parties to submit written observations on the admissibility and merits of the applicant's complaint under Article 6 para. 1 of the Convention.   7.     The Government's observations were submitted on 16 February 1995. The applicant replied on 12 April 1995. Additional observations were submitted by the Government on 25 June 1995 and by the applicant on 10 October 1995. On 28 February 1995 the Commission granted the applicant legal aid for the representation of his case.   8.     On 27 February 1996 the case was transferred from the First Chamber to the Plenary Commission, by decision of the latter.   9.     On 7 March 1996 the Commission declared admissible the applicant's complaint under Article 6 para. 1 of the Convention. It declared inadmissible the remainder of the application.   10.    The text of the Commission's decision on admissibility was sent to the parties on 13 March 1996 and they were invited to submit further observations. The applicant submitted observations on 22 April 1996 and the Government on 25 April 1996.   11.    After declaring the case admissible, the Commission, acting in accordance with Article 28 para. 1 (b) of the Convention, also placed itself at the disposal of the parties with a view to securing a friendly settlement. In the light of the parties' reaction, the Commission now finds that there is no basis on which such a settlement can be effected.   C.     The present Report   12.    The present Report has been drawn up by the Commission in pursuance of Article 31 of the Convention and after deliberations and votes, the following members being present:              Mr.    S. TRECHSEL, President            Mrs.   G.H. THUNE            Mrs.   J. LIDDY            MM.    E. BUSUTTIL                  G. JÖRUNDSSON                  A.S. GÖZÜBÜYÜK                  A. WEITZEL                  J.-C. SOYER                  H.G. SCHERMERS                  H. DANELIUS                  F. MARTINEZ                  L. LOUCAIDES                  J.-C. GEUS                  M.P. PELLONPÄÄ                  B. MARXER                  G.B. REFFI                  M.A. NOWICKI                  I. CABRAL BARRETO                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  J. MUCHA                  D. SVÁBY                  G. RESS                  A. PERENIC                  C. BÎRSAN                  P. LORENZEN                  K. HERNDL                  E. BIELIUNAS                  M. VILA AMIGÓ   13.    The text of this Report was adopted on 15 October 1996 by the Commission and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.   14.    The purpose of the Report, pursuant to Article 31 of the Convention, is:         (i)   to establish the facts, and         (ii) to state an opinion as to whether the facts found disclose            a breach by the State concerned of its obligations under            the Convention.   15.    The Commission's decision on the admissibility of the application is annexed hereto.   16.    The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.   II.    ESTABLISHMENT OF THE FACTS   A.     The particular circumstances of the case   17.    Up to 1 October 1989 the applicant held a post as a verger in the Evangelical-Lutheran parish of Mäntsälä. This post had been created in 1966 apparently without any written specification of its character. It had been the applicant's understanding that the post was full-time. When investigating his pension rights in December 1988, he discovered that the Parish Board (kirkkoneuvosto, kyrkorådet) had, on 16 November 1977, considered the post to be part-time (hereinafter "the 1977 decision"). The 1977 decision had also affected his right to certain other salary-related entitlements.   18.    On 9 January 1989 the applicant lodged an appeal with the Parish Council (kirkkovaltuusto, kyrkofullmäktige) against the 1977 decision. On 25 January 1989 he lodged a further appeal with the Cathedral Chapter (tuomiokapituli, domkapitlet) of the Helsinki Diocese (hiippakunta, stift).   19.    By decision of 13 September 1989 the National Ecclesiastical Board (kirkkohallitus, kyrkostyrelsen) granted the applicant early retirement pension as from 1 October 1989.   20.    In its decision of 10 October 1989 the Parish Council considered itself not legally obliged to grant the applicant any pecuniary benefits in addition to those which he had already received on the basis of the 1977 decision. It nevertheless decided to pay him the difference between the salary for his part-time post and the salary for a full-time post as from 1987. It also increased his pension benefits and awarded him a compensatory lump sum.   21.    On 15 November 1989 the applicant lodged a supplementary appeal with the Cathedral Chapter, arguing that the pecuniary benefits granted to him by the Parish Council were insufficient and, inter alia, claiming compensation.   22.    Having joined the two appeals, the Cathedral Chapter, on 1 June 1990, considered that the applicant had locus standi as appellant, having regard to his allegation that a private right of his had been violated, and to the sufficiently close link between the dispute and his private interests. Moreover, since he had not been lawfully notified of the 1977 decision, his appeal was not time-barred. The Cathedral Chapter rejected the appeal in so far as it concerned certain effects of the 1977 decision. It found that the 1977 decision had not changed the applicant's post from full-time to part-time. It considered itself not competent to examine his claims for damages and dismissed this part of his appeal without examining its merits.   23.    On 28 June 1990 the applicant lodged a further appeal with the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen). In an opinion requested by the Court the Cathedral Chapter, on 5 September 1990, submitted that the appeal should be rejected. The applicant commented on the opinion on 16 October 1990.   24.    On 8 March 1991 the Supreme Administrative Court, without having held an oral hearing, upheld the Cathedral Chapter's decision in so far as the applicant's appeal had been rejected. In so far as his appeal to the Cathedral Chapter had been dismissed for lack of competence, the Supreme Administrative Court considered that the Cathedral Chapter would have been competent to examine the dispute regarding his claims for compensation. The court therefore referred the case back for new examination. There is no mention of the Cathedral Chapter's opinion and the applicant's comments thereon in the court's decision.   25.    In his fresh submissions to the Cathedral Chapter dated 31 May 1991 the applicant maintained his claims. Should the Cathedral Chapter not find it established that his post had always been full-time, he requested an oral hearing, where witnesses could be heard regarding the character of his post and his working-hours related thereto. In support of his request he enclosed, inter alia, a written statement by six former members of the Parish Council who had participated in creating his post in 1966. According to these members, the Parish Council had been aware that the applicant's anticipated working hours clearly sufficed for a full-time post. It had therefore rejected a proposal to establish a part-time post. The applicant, moreover, referred to a written statement in which his trade union considered that the parish had never contested the fact that he had worked at least 40 hours a week. He had nevertheless been paid a salary based on only 35 weekly working hours. Although he had (in 1966) been granted permission to have a secondary occupation (to manage a funeral home), this had not entitled the parish to amend his employment contract unilaterally.   26.    In its decision of 29 August 1991 the Cathedral Chapter took note of the various written statements submitted in support of the applicant's claim. On the basis of the evidence adduced and as it had not been possible to submit any other item of evidence concerning the applicant's working hours, the Cathedral Chapter rejected his claim and essentially upheld the decision of the Parish Council of 10 October 1989. The applicant's request for an oral hearing was not mentioned in the decision.   27.    In his appeal to the Supreme Administrative Court the applicant requested the Court to quash the Cathedral Chapter's decision and to refer part of the matter back to the Cathedral Chapter or the Parish Council, should further investigations concerning part of his alleged financial entitlements be considered necessary.   28.    In a further opinion requested by the Supreme Administrative Court the Cathedral Chapter, on 11 December 1991, maintained that the applicant's appeal should be rejected. The applicant commented on the opinion on 16 January 1992.   29.    On 31 March 1992 the Supreme Administrative Court upheld the Cathedral Chapter's decision of 29 August 1991 without having held an oral hearing. It referred to section 538b of the Church Act as well as to the Regulations on Posts and Salaries of the parish as adopted by the Cathedral Chapter in 1988. There is no mention of the Cathedral Chapter's opinion and the applicant's comments thereon in the court's decision.   B.     Relevant domestic law   30.    According to the 1964 Church Act (kirkkolaki 635/64, kyrkolag 635/64), as in force at the material time, a decision of a Church Council was appealable by anyone who considered that a private right of his or hers had been violated (section 323, subsection 1).   31.    The Cathedral Chapter is the administrative and judicial body of the Diocese (section 432). At the relevant time it was chaired by the Bishop and further consisted of three church assessors and one legal assessor. The Dean of the Cathedral Congregation (tuomiokirkko-seurakunnan tuomiorovasti, domkyrkoförsamlingens domprost) was one of the church assessors and also Vice-Chairman of the Cathedral Chapter. The two other church assessors were elected by the priests and curates of the diocese among its permanent priests. These assessors sat for a period of three years. As long as they were priests in the same parish or parish confederation they could not sit on the Cathedral Chapter for more than two periods. The legal assessor was a lawyer appointed by the Cathedral Chapter (sections 433-435).   32.    The rules governing bias of a member of the Cathedral Chapter were the same as those laid down in the Code on Judicial Procedure (Oikeudenkäymiskaari, Rättegångs Balk) which are generally applicable to professional and lay judges (section 436, subsection 3, and chapter 13, section 1). The members of the Chapter had to swear a judicial oath before taking up their office (section 437).   33.    As "the court of the first instance" the Cathedral Chapter was to deal with disputes pertaining to, for instance, wage claims by parish officials (section 443 of the Church Act).   34.    If it considered it necessary to hear witnesses, the Cathedral Chapter had to see to it that these were heard before an ordinary court of first instance (section 455).   35.    According to section 538b of the 1964 Church Act, the necessary provisions concerning, inter alia, the employment conditions of a post of the church were, to the extent they did not appear in already existing regulations and collective agreements, to be issued in the form of a regulation by the Church Assembly (kirkolliskokous, kyrko-mötet). Regulations were also to be issued in respect of the tasks of a postholder.   36.    On 1 January 1994 the 1993 Church Act entered into force, thus replacing the 1964 Act. The new Act expressly provides for a possibility to hold an oral hearing before the Cathedral Chapter itself (chapter 19, sections 6 and 7).   37.    According to the 1918 Act on the Supreme Administrative Court (no. 74/18), the court may hold oral hearings and carry out inspections (section 15, subsection 1). The 1996 Act on Judicial Procedure in Administrative Matters (hallintolainkäyttölaki, förvaltningsprocesslag 588/96) is to enter into force on 1 December 1996. It stipulates, inter alia, that the Supreme Administrative Court shall, if so requested by a private party, hold an oral hearing when dealing with an appeal against the decision of an administrative body. In certain circumstances an oral hearing may nevertheless be refused (section 38, subsection 1).   III.   OPINION OF THE COMMISSION   A.     Complaint declared admissible   38.    The Commission has declared admissible the applicant's complaint that he was denied a fair and oral hearing before an independent and impartial tribunal.   B.     Points at issue   39.    The issues to be determined are:         -   whether there has been a violation of Article 6 para. 1 (Art. 6-1) of the Convention on account of the absence of an oral hearing before an independent and impartial tribunal; and         - whether there has been a violation of Article 6 para. 1 (Art. 6-1) of the Convention on account of the alleged unfairness of the proceedings.   C.     As regards Article 6 para. 1 (Art. 6-1) of the Convention   40.    Article 6 para. 1 (Art. 6-1) of the Convention reads, in so far as it is relevant, as follows:         "In the determination of his civil rights ..., everyone is       entitled to a fair and public hearing ... by an independent       and impartial tribunal established by law. ..."   41.    It is undisputed between the parties that Article 6 para. 1 (Art. 6-1) applies in the present case. The Commission sees no reason to take a different view and, accordingly, finds that this provision is applicable.         (i)   The absence of an oral hearing before an independent and            impartial tribunal   42.    The applicant complains that he was denied an oral hearing before the Cathedral Chapter after the Supreme Administrative Court had referred part of his appeal back for new examination. In support of his claims he had obtained written statements from persons who had participated in creating his post in 1966. By wishing to hear those persons as witnesses under oath he sought to prove that it had been established as a full-time post. Article 6 para. 1 (Art. 6-1) of the Convention placed the appeal bodies under a duty to conduct a proper examination of the submissions, arguments and evidence adduced by the parties, without prejudice to their assessment of whether they were relevant to their decisions.   43.    The applicant therefore argues that a weighty public interest warranted the holding of an oral hearing before at least one "tribunal" within the meaning of Article 6 para. 1 (Art. 6-1). The Cathedral Chapter was allegedly not prevented by domestic law from holding an oral hearing. Even supposing that it was so prevented, the Supreme Administrative Court could, of its own motion, have decided to hold such a hearing. In his appeal to that body the applicant indeed requested, in substance, that such a hearing be held, should the court find it necessary to obtain further evidence. Thus he did not unequivocally waive his right to request an oral hearing before the Supreme Administrative Court. He also considers that due to its composition and subordination to the Evangelical-Lutheran Church the Cathedral Chapter was not an "independent and impartial tribunal" within the meaning of Article 6 para. 1 (Art. 6-1).   44.    Finally, the applicant refers to Finland's reservation to Article 6 para. 1 (Art. 6-1) in which she has declared that she cannot guarantee a right to an oral hearing before the Supreme Administrative Court. For this reason alone he cannot be required to have requested, in express terms, an oral hearing before that court. In any case, he considers that the Finnish reservation "does not apply in the instant case".   45.    The Government consider that Article 6 para. 1 (Art. 6-1) has not been violated as a result of the absence of an oral hearing. Although the Cathedral Chapter also carries out administrative tasks, it was, when performing its judicial functions in the applicant's case, an "independent and impartial tribunal" within the meaning of Article 6 para. 1 (Art. 6-1). However, at the material time it was not itself empowered to hold oral hearings.   46.    The Government furthermore consider that the applicant unequivocally waived his right to request an oral hearing before the Supreme Administrative Court which, equally, had full appellate jurisdiction. Although Finland's reservation to Article 6 para. 1 (Art. 6-1) excludes any "right" to an oral hearing before that court, it did not deprive the applicant of the possibility of obtaining one. Given that the Supreme Administrative Court does not, as a rule, hold oral hearings in matters of the present kind, the applicant could have been expected to request such a hearing in express terms, if he attached importance thereto. His request to have the case referred back to the Cathedral Chapter, should the Supreme Administrative Court need further evidence, cannot be construed as a request for an oral hearing before that court.   47.    The Government finally consider that the dispute at issue did not raise any questions of public interest which would have rendered an oral hearing before the Supreme Administrative Court necessary. The applicant's appeal was better dealt with in writing, since the material before the courts was sufficient and he had made use of the possibility of lodging written comments, including the statements of those persons whom he wished to have heard as witnesses. In the particular circumstances of the case oral argument during a public hearing would not have provided any further guarantee of the fundamental principles underlying Article 6 (Art. 6). On the contrary, an oral hearing would have contributed to the length and costs of the proceedings.   48.    The Commission recalls that the holding of court hearings in public constitutes a fundamental principle enshrined in Article 6 para. 1 (Art. 6-1) of the Convention. This public character protects litigants against the administration of justice in secret with no public scrutiny; it is also one of the means whereby confidence in the courts can be maintained. By rendering the administration of justice transparent, publicity contributes to the achievement of the aim of Article 6 para. 1 (Art. 6-1), namely a fair trial, the guarantee of which is one of the fundamental principles of any democratic society, within the meaning of the Convention (see, e.g., Eur. Court HR, Diennet v. France judgment of 26 September 1995, para. 33, to be published in Series A no. 325).   49.    Nevertheless, Article 6 (Art. 6) does not oblige the Contracting States to submit disputes over civil rights to a procedure which at each stage meets the requirements of Article 6 (Art. 6), provided it eventually may be determined by a body which does (cf., e.g., Eur. Court HR., Le Compte, Van Leuven and De Meyere v. Belgium judgment of 23 June 1984, Series A no. 43, pp. 22-23, para. 51). It is sufficient that, in the determination of "civil rights and obligations", decisions taken by administrative authorities which do not themselves satisfy the requirements of that provision be subject to subsequent control by an independent judicial body with sufficient jurisdiction and which itself provides the safeguards required by Article 6 para. 1 (Art. 6-1) (see, e.g., Eur. Court HR, Fischer v. Austria judgment of 26 April 1995, Series A no. 312, p. 17, para. 28; British-American Tobacco Company Ltd v. the Netherlands judgment of 20 November 1995, Series A no. 331, pp. 25-26, para. 78).   50.    Moreover, neither the letter nor the spirit of Article 6 (Art. 6) prevents a person from waiving of his own free will, either expressly or tacitly, the entitlement to have his case heard in public. Any such waiver must, however, be made in an unequivocal manner and must not run counter to any important public interest (see, e.g., Eur. Court HR, Schuler-Zgraggen v. Switzerland judgment of 24 June 1993, Series A no. 263, pp. 19-20, para. 58; Håkansson and Sturesson v. Sweden judgment of 21 February 1990, Series A no. 171, p. 20, para. 67).   51.    In proceedings before a court of first and only instance the right to a "public hearing" in the sense of Article 6 para. 1 (Art. 6-1) may entail an entitlement to an oral hearing (see, e.g., Eur. Court HR, Fredin v. Sweden judgment (no. 2) of 23 February 1994, Series A no. 283-A, p. 10, para. 21). If several judicial bodies may examine the matter, a hearing before one of them may suffice (cf., e.g., Jan-Åke Andersson judgment of 29 October 1991, Series A no. 212-B, pp. 45-46, paras. 27 et seq.).   52.    It is in dispute whether, when performing its judicial functions in the applicant's case, the Cathedral Chapter met the requirements of an "independent and impartial tribunal" within the meaning of Article 6 para. 1 (Art. 6-1). It is also disputed whether the applicant unequivocally waived his right to request an oral hearing before the Supreme Administrative Court. For the reasons below, the Commission need not resolve these questions.   53.    It is undisputed that in his appeal to the Cathedral Chapter the applicant requested a hearing of witnesses. This was tacitly refused. The Commission notes, however, that the Cathedral Chapter was not the only appeal body to rule on his case (cf., a contrario, the above-mentioned Håkansson and Sturesson judgment, p. 20, para. 64). The applicant lodged a further appeal with the Supreme Administrative Court which, and this has not been disputed, was an "independent and impartial tribunal" within the meaning of Article 6 para. 1 (Art. 6-1). This court furthermore had full appellate jurisdiction.   54.    The Commission is of the view that in the present case Article 6 para. 1 (Art. 6-1) did not oblige the respondent State to submit the dispute at issue to a procedure before the Cathedral Chapter which also met the requirements of that provision. An oral hearing before the Supreme Administrative Court would therefore have sufficed to satisfy those requirements.   55.    The question now arises whether the absence of an oral hearing before the Supreme Administrative Court was covered by Finland's reservation to Article 6 para. 1 (Art. 6-1). This reservation reads, in so far as relevant, as follows:         "In accordance with Article 64 (Art. 64) of the Convention,       the Government of Finland makes the following reservation       in respect of the right to a public hearing guaranteed by       Article 6, paragraph 1 (Art. 6-1) of the Convention.         For the time being, Finland cannot guarantee a right to an       oral hearing in so far as the current Finnish laws do not       provide such a right. This applies to:       ...       2.    proceedings before ... the Supreme Administrative       Court in accordance with ... section 15 of the Supreme       Administrative Court Act; ...         The provisions of the Finnish laws referred to above are       attached to this reservation as a separate annex."   56.    The relevant part of section 15 of the Supreme Administrative Court Act reads, according to the annex to the above reservation, as follows:         "In investigating a case, the Supreme Administrative Court       may ... hold oral hearings ... . In an oral hearing the       parties, witnesses and experts may be heard, and other       evidence may be received.         The Supreme Administrative Court may decide that oral       hearings ... be conducted by one or more members of the       Court together with the referendary."   57.    Article 64 (Art. 64) of the Convention reads as follows:         "1.   Any State may, when signing this Convention or when       depositing its instrument of ratification, make a       reservation in respect of any particular provision of the       Convention to the extent that any law then in force in its       territory is not in conformity with the provision.       Reservations of a general character shall not be permitted       under this Article.         2.    Any reservation made under this Article shall contain       a brief statement of the law concerned."   58.    It is undisputed between the parties that Finland's reservation is valid in the light of Article 64 para. 1 (Art. 64-1). The Commission sees no reason to differ. Nor can it find any indication that the reservation does not comply with Article 64 para. 2 (Art. 64-2).   59.    As the reservation is therefore compatible with Article 64 (Art. 64) and the absence of an oral hearing before the Supreme Administrative Court is covered by that reservation, the Commission finds that there has been no violation of Article 6 para. 1 (Art. 6-1).   CONCLUSION   60.    The Commission concludes, unanimously, that in the present case there has been no violation of Article 6 para. 1 (Art. 6-1) of the Convention with regard to the absence of an oral hearing before an independent and impartial tribunal.         (ii) The fairness of the proceedings   61.    The applicant also complains that he was placed at a substantial disadvantage vis-à-vis the Parish Council in both rounds of the appeal proceedings. In examining his first appeal the Supreme Administrative Court requested an opinion from the Cathedral Chapter, thereby inviting the Cathedral Chapter to appear as a party to the appeal proceedings. The wording of the opinion allegedly showed that the Cathedral Chapter was acting as the applicant's opposite party together with the Parish Council. The Cathedral Chapter could no longer be considered "independent and impartial" in the second round of proceedings once it had submitted an opinion to the Supreme Administrative Court.   62.    Finally, the applicant complains that the decisions of the Cathedral Chapter and the Supreme Administrative Court were insufficiently reasoned. Despite the weighty evidence adduced by him both appeal bodies based their decisions on an unreasoned presumption that his post had always been part-time. Allegedly, neither of the two bodies pronounced itself on the gist of the dispute between him and the Parish Council, i.e. whether his employment conditions could legally be amended in the manner resorted to in his case. Nor did any of the two bodies explain why the evidence presented by him was ignored.   63.    The Government submit that Article 6 para. 1 (Art. 6-1) has not been violated. The Cathedral Chapter's opinion was neutrally worded, merely reiterating the main reasons for its decision, noting that the applicant had not presented any essentially new arguments in his further appeal and concluding that it was unfounded. Thus the Cathedral Chapter did not join ranks with the Parish Council as the applicant's opposite party in the proceedings before the Supreme Administrative Court.   64.    The Government finally recall that the Commission is not competent to review the national authorities' assessment of the evidence adduced in the applicant' case, unless this assessment were to be manifestly arbitrary. That situation is not at hand in the present case.   65.    The Commission recalls that it is not its task to substitute its own assessment of the facts for that of the national courts. Instead it must ascertain whether the overall proceedings, including the way in which evidence was dealt with, were fair within the meaning of Article 6 para. 1 (Art. 6-1) (see, e.g., Eur. Court HR, Dombo Beheer v. the Netherlands judgment of 27 October 1993, Series A no. 274, pp. 18-19, para. 31 and the references therein). The requirement of "equality of arms" inherent in the concept of a "fair hearing" implies that each party must be afforded a right to participate properly in the proceedings as well as a reasonable opportunity to present his case under conditions which do not place him at a substantial disadvantage vis-à-vis his opponent (see, e.g., ibid., p. 19, paras. 32-33; Eur. Court HR, Feldbrugge v. the Netherlands judgment of 29 May 1986, Series A no. 99, pp. 17-18, para. 44). In short, the procedure must allow proper participation of each party (cf., e.g., Eur. Court HR, Kerojärvi v. Finland judgment of 19 July 1995, Series A no. 322, p. 16, para. 42 and the further references therein; Nideröst-Huber v. Austria, Comm. Report 23.10.95, para. 39).   66.    Article 6 para. 1 (Art. 6-1) furthermore places the "tribunal" under a duty to conduct a proper examination of the submissions, arguments and evidence adduced by the parties, without prejudice to its assessment of whether they are relevant to its decision. It also obliges the courts to give reasons for their judgments, but cannot be understood as requiring a detailed answer to every argument. Nor are the Convention organs called upon to examine whether arguments are adequately met (see, e.g., Eur. Court HR, Van de Hurk v. the Netherlands judgment of 19 April 1994, Series A no. 288, pp. 19-20, paras. 59-61). The question whether a court has failed to fulfil the obligation to state reasons can only be determined in the light of the circumstances of the case (see, e.g., Eur. Court HR, Ruiz Torija v. Spain judgment of 9 December 1994, Series A no. 303-A, p. 12, para. 29).   67.    The Commission notes that the applicant was able to comment on the Cathedral Chapter's opinion to the Supreme Administrative Court. In such circumstances the Supreme Administrative Court's request for an opinion and the submission by the Cathedral Chapter of that very opinion do not render the proceedings unfair.   68.    It is true that, in upholding the respective decisions of the Parish Council and the Cathedral Chapter, the Cathedral Chapter and the Supreme Administrative Court in essence ruled against the applicant, having found insufficient evidence in support of his contention that his post had been full-time. As a result it was not necessary for these appeal bodies to examine whether his employment conditions could legally be "amended". The reasons relied upon were in substance those advanced by the Parish Council in its decision of 10 October 1989. The fact that these reasons were not reproduced in extenso in the appeal bodies' decisions does not suffice for a finding of unfairness.   69.    Considering the proceedings as a whole, there has, accordingly, been no violation of Article 6 para. 1 (Art. 6-1) of the Convention on this point either.   CONCLUSION   70.    The Commission concludes, by 25 votes to 5, that in the present case there has been no violation of Article 6 para. 1 (Art. 6-1) of the Convention with regard to the fairness of the proceedings.   D.     Recapitulation   71.    The Commission concludes, unanimously, that in the present case there has been no violation of Article 6 para. 1 (Art. 6-1) of the Convention with regard to the absence of an oral hearing before an independent and impartial tribunal (para. 60).   72.    The Commission concludes, by 25 votes to 5, that in the present case there has been no violation of Article 6 para. 1 (Art. 6-1) of the Convention with regard to the fairness of the proceedings (para. 70).           H.C. KRÜGER                          S. TRECHSEL          Secretary                            President      to the Commission                     of the Commission                                                           (Or. English)               PARTIALLY DISSENTING OPINION OF MRS. J. LIDDY,   JOINED BY MM. E. BUSUTTIL, L. LOUCAIDES, N. BRATZA AND M. VILA AMIGÓ         I regret that I cannot agree that there has been no violation of the right to a fair hearing in this case.         The applicant considered that he was employed on a full-time basis by the parish authorities. On 10 October 1989 the parish authorities disputed this, while nonetheless awarding him some extra pension and compensatory sums, apparently on an ex gratia basis. The dispute went before the Cathedral Chapter and the applicant produced in his support a written statement signed by six members of the Parish Council as to the full-time nature of the post that was created in 1966. There is no indication that in proceedings of this kind such a statement would have been inadmissible evidence. The Cathedral Chapter in Finnish law appears to have the standing of an administrative tribunal, without necessarily being a tribunal for the purpose of the Convention. It rejected the applicant's claim and also his request for an oral hearing of his witnesses without stating why the evidence submitted by the applicant was insufficient and without stating what other, countervailing, evidence there was and without stating why the witnesses could not be called.         The applicant then appealed to the Supreme Administrative Court, but in these proceedings his de facto opponent was, apparently, the Cathedral Chapter itself, as the decision-making body, and not the other party to the original dispute, the parish authorities. The Supreme Administrative Court did not take any evidence, whether by way of public hearing or otherwise, and did not refer the matter back to the Cathedral Chapter for further investigation, as requested by the applicant. Having obtained the comments of the Cathedral Chapter and the applicant, it saw no reason to change the latter's decision. It is undisputed that the Supreme Administrative Court is a tribunal within the meaning of Article 6.         Article 6 para. 1 places a tribunal under a duty to conduct a proper examination of the submissions and evidence adduced by the parties and to give reasons for its judgment. The question of whether a court has failed to fulfil the obligation to state reasons can only be determined in the light of the circumstances of the case (Eur. Court. HR, Ruiz Torija v. Spain, Series A Vol. 303-A).         In the present case the applicant has received no reason whatsoever as to why the evidence he produced, and which was not apparently countered by other evidence in proceedings before the Supreme Administrative Court was not accepted as showing the full-time nature of the post. Moreover, he appears to have been at a disadvantage vis-à-vis his real opponent, the parish authorities, in that those authorities were, apparently, replaced by the more prestigious Cathedral Chapter as his opponent before the Supreme Administrative Court, which merely adopted the Chapter's decision without reasoning. He has never received a determination of the question of the nature of the original agreement between the parties concerning his employment and whether that agreement had been observed. This cannot have been a difficult question to respond to by reference to the facts established by the tribunal and the national law principles applicable. It may be that the outcome in financial terms would have been no more favourable than the payments made in 1989, but there was a real and serious dispute which called for a reasoned answer.         Even assuming that the Cathedral Chapter was an independent and impartial tribunal within the meaning of the Convention, and that it would suffice for the Supreme Administrative Court to adopt the Cathedral Chapter's reasons, I see no support in the facts for the statement by the majority at paragraph 68 of the Report that "the Supreme Administrative Court in essence ... found insufficient evidence in support of [the applicant's] contention that his post had been full- time". There is no statement by either the Cathedral Chapter or the Supreme Administrative Court to the effect that the applicant had put forward insufficient evidence or that his evidence was outweighed by contrary evidence. Accordingly, it is not necessary in the present case to express an opinion as to whether the Cathedral Chapter was in fact an independent and impartial tribunal within the meaning of Article 6 or as to whether, if it was, the principle of equality of arms was infringed by the role it played before the Supreme Administrative Court. It suffices to note that the duty to give reasons for an eventual judgment against a litigant cannot be met by the inference that the court has "in essence" not been satisfied by his or her evidence.         In the circumstances I consider that the applicant's right to a fair hearing has been violated.        &#xa