CEDH · CASELAW;JUDGMENTS;GRANDCHAMBER;ENG — 19 avril 2007

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margin-bottom:0pt; text-indent:14.25pt; text-align:justify }     GRAND CHAMBER             CASE OF VILHO ESKELINEN AND OTHERS v. FINLAND   (Application no. 63235/00)                         JUDGMENT         STRASBOURG   19 April 2007       In the case of Vilho Eskelinen and Others v. Finland, The European Court of Human Rights, sitting as a Grand Chamber composed of:   Jean-Paul Costa, President ,   Luzius Wildhaber,   Christos Rozakis,   Nicolas Bratza,   Peer Lorenzen,   Françoise Tulkens,   Giovanni Bonello,   Rıza Türmen,   Matti Pellonpää,   Kristaq Traja,   Mindia Ugrekhelidze,   Anatoly Kovler,   Lech Garlicki,   Javier Borrego Borrego,   Ljiljana Mijović,   Egbert Myjer,   Danutė Jočienė, judges , and Erik Fribergh, Registrar , Having deliberated in private on 20 September 2006 and on 21 February 2007, Delivers the following judgment, which was adopted on the last-mentioned date: PROCEDURE 1.     The case originated in an application (no. 63235/00) 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”) on 19 October 2000 by eight Finnish nationals (“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 Mrs Päivi Lappalainen, Mr Janne Lappalainen and Mr Jyrki Lappalainen, who are the heirs of Mr Hannu Matti Lappalainen (a police officer who died on 22 August 1995). 2.     The applicants, two of whom had been granted legal aid, were represented by Mr P.M. Petäjä and by Mr P. Orava, both lawyers practising in Haapajärvi. The Finnish Government (“the Government”) were represented by their Agent, Mr A. Kosonen of the Ministry of Foreign Affairs. 3.     The applicants alleged, in particular, that they were denied an oral hearing in the proceedings concerning their salaries and that the proceedings were excessive in length. 4.     The application was allocated to the Fourth Section of the Court (Rule   52 § 1 of the Rules of Court). On 29 November 2005 it was declared admissible by a Chamber of that Section, composed of Nicolas Bratza, Giovanni Bonello, Matti Pellonpää, Kristaq Traja, Lech Garlicki, Javier Borrego Borrego and Ljiljana Mijović, judges, and Michael O’Boyle, Section Registrar. The Chamber joined to the merits the question of the applicability of Article 6 of the Convention. On 21 March 2006 the Chamber relinquished jurisdiction in favour of the Grand Chamber, neither of the parties having objected to relinquishment (Article 30 of the Convention and Rule 72). 5.     The composition of the Grand Chamber was determined according to the provisions of Article 27 §§ 2 and 3 of the Convention and Rule 24. Luzius Wildhaber, whose term of office expired after presiding over the hearing, continued to participate in the examination of the case (Article 23 §   7). Boštjan M. Zupančič, who was unable to attend the deliberations on 21   February 2007, was replaced by Françoise Tulkens, substitute judge (Rule 24 § 3). 6.     The applicants and the Government each filed a memorial on the merits. The parties replied in writing to each other’s observations. 7.     A hearing took place in public in the Human Rights Building, Strasbourg, on 20 September 2006 (Rule 59 § 3).   There appeared before the Court: (a)     for the Government Mr   A. Kosonen, Ministry of Foreign Affairs,   Agent , Mrs   A. Manner, Ministry of Justice, Mrs   T. Eränkö, Ministry of the Interior,   Advisers ; (b)     for the applicants Mr   P . Orava ,   Counsel .   8.     The Court heard addresses by Mr Kosonen and Mr Orava and their replies to questions put by judges. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 9.     The applicants were born in 1955, 1953, 1954, 1956, 1937, 1957, 1983 and 1981 respectively and live in Sonkakoski and Sonkajärvi. A.     The incorporation of the Sonkajärvi Police District 10.     The first five applicants and 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 abolished. 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 monthly individual wage supplements from 1 March 1988. 11.     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 up to 50 km per day as they had to travel from Sonkajärvi to Iisalmi. 12.     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. 13.     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 between 500 and 700 Finnish marks (FIM) (84 ‑ 118 euros) per person, to those police officers and other personnel 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. 14.     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 ). B.     The proceedings before the Kuopio County Administrative Board 15.     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 ; Law no. 94/1919). 16.     Four years later, on 19 March 1997, the request was rejected by the Kuopio County Administrative Board. It reasoned: “The civil servants of the former Sonkajärvi Police District ... have ... requested compensation for the losses arising from the incorporation of police districts, in response to which the Provincial Police Command, endorsing the request, submitted documents to the Police Department of the Ministry of the Interior. By a letter of 25   March 1991, the Ministry of the Interior recommended to the Ministry of Finance the retroactive payment from 1 November 1990 of individual wage supplements to those civil servants whose duty station, after the incorporation, is Iisalmi. By a letter of 3 July 1991, [the Ministry of Finance] informed the Ministry of the Interior that it had found that it could not grant the request. Following the [Ministry of Finance’s] decision, competence to decide on individual wage supplements was transferred to the County Administrative Boards. On 28   January 1993, in a negotiation meeting held by the Provincial Police Command at which the applicants were represented by Mr Lappalainen, it was noted that negotiations were pending with regard to the Askola Police District in Uusimaa County, which was a corresponding case. As [the Ministry of Finance], which had the relevant competence, had already decided the claims concerning the Sonkajärvi Police District, it was concluded that, on grounds of fairness, the decision in Uusimaa would be adhered to in Kuopio County were it to depart from the view of the Ministry of Finance. The Uusimaa County Administrative Board rejected the application and the decision was upheld by the Supreme Administrative Court. No new grounds have been presented in the letter of 19 March 1993, or in Mr Pallonen’s [further and] separate claim of 17 August 1994, to support the claims which have already been decided [by the Ministry of Finance]. The County Administrative Board has not learned of any positive decisions regarding compensation in corresponding cases as regards the incorporation of police districts anywhere in the country following the above-mentioned [Ministry of Finance’s] decision. In 1990, when the incorporation took place, the Provincial Police Command lacked competence to make any binding promises as regards the compensation of costs. Its view had been shown through its support of the application. The County Administrative Board, using its discretion and basing itself on the earlier decision by the competent authority, considers that the decision has acquired a certain res judicata effect. Emphasising the principles of equality and fairness, the County Administrative Board also bases itself on the prevalent practice throughout the country.” 17.     Meanwhile, in December 1996 one of the applicants lodged a complaint with the Chancellor of Justice ( oikeuskansleri, 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. C.     The proceedings before the Kuopio County Administrative Court 18.     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 facts of the case, in particular that a promise had been made by the Provincial Police Command. 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. 19.     By a decision of 8 June 1998, the County Administrative Court reasoned: “Rectification of wage increases affecting pensions falls outside the County Administrative Court’s competence. It is not necessary to receive oral testimony from the parties as regards the Provincial Police Command of the County Administrative Board’s promises concerning the incorporation of police districts, or on how the case has been otherwise handled, in order to clarify the case. In its letter of 25 March 1991, the Ministry of the Interior proposed to the Ministry of Finance that the Sonkajärvi Police District be incorporated into the Iisalmi Police District from 1 November 1990 [in fact, the Ministry of the Interior recommended payment, not incorporation] and that the inconvenience caused by the change of duty station be compensated in the form of a wage supplement of FIM 500 to 700 per month, retroactively from 1 November 1990. In its letter of 3 July 1991, the Ministry of Finance considered that it could not grant the request. Negotiations were held between the Police Department of the Ministry of the Interior and the Police Association [ Suomen Poliisiliitto ry ] on 3 September 1992 and between the Provincial Police Command of the Kuopio County Administrative Board and the applicants’ representative on 28 January 1993. Pursuant to Article 9 § 2 of the State Collective Agreement Decree (as amended on 18 September 1992), the County Administrative Board has competence to decide on wage supplements in respect of ... civil servants in the local police forces. The County Administrative Board must be considered to have examined the applicants’ ... submission dated 19 March 1993 as a rectification request, referred to in section 84 of the State Civil Servants Act. The rectification request has been lodged within the time laid down by section 95(1) of the State Civil Servants Act, if calculated from the Ministry of Finance’s decision of 3 July 1991. In 1990 the Provincial Police Command of the County Administrative Board lacked competence to give any binding promises pertaining to compensation. Competence to decide the matter lay at that time with the Ministry of Finance, which in its letter of 3   July 1991 had stated that it considered that it could not accede to the request. Since 1 October 1992 the County Administrative Board has had competence to decide on the wages of local police. The County Administrative Board has in its decision, subject to appeal, based itself on the decision by the former competent authority and on the fact that after 3 July 1991 no compensation had been awarded to personnel in other cases in which incorporation had taken place. The decision is therefore based on the prevalent practice at that time in the entire country. The decision cannot be considered unreasonable in those circumstances. It has been possible to dismiss the request for rectification.” D.     The proceedings before the Supreme Administrative Court 20.     On 7 July 1998 the applicants appealed further, requesting an oral hearing and emphasising that similar wage supplements had been granted to personnel from 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. 21.     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 having communicated them to the applicants for comment, upheld the lower court’s decision. It reasoned: “The Supreme Administrative Court has examined the case. The promises made by the Provincial Police Command of the Kuopio County Administrative Board as regards compensation for costs arising from the incorporation of police districts have no legal relevance to the case. Thus, the holding of an oral hearing is manifestly unnecessary. Accordingly, the Supreme Administrative Court, having regard to section 38(1) of the Administrative Judicial Procedure Act, refuses [the appellants’] request for an oral hearing. In their letter of 19 March 1993, [the appellants] requested compensation in the form of individual wage supplements of costs arising from the incorporation of their police district. On 1 October 1992 competence to decide on wages in respect of local police forces was transferred to the County Administrative Board pursuant to section 9(2) of the State Collective Agreement Decree (as amended on 18 September 1992). [The appellants] have no statutory right to the individual wage supplement in question. The Kuopio County Administrative Board has not overstepped its margin of appreciation. The County Administrative Board’s decision is not in breach of the law. Therefore, the Supreme Administrative Court, having regard to section 7(1) of the Administrative Judicial Procedure Act, finds that there is no reason to amend the outcome of the County Administrative Board’s decision, which accordingly remains final.” II.     RELEVANT DOMESTIC LAW AND PRACTICE A.     Individual wage supplements 22.     The implementing instruction of 26 April 1988 on the application of the collective agreement with regard to the payment of a cold-area allowance to civil servants provided: “A civil servant working (before 29 February 1988) in a municipality not covered by the new collective agreement is entitled to an individual wage supplement ... as long as he or she is working in the municipality giving rise to an entitlement to such an allowance. 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 duty station is transferred to a municipality in which the previous remote-area allowance has not been 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 wage supplement, the civil servant has to perform his or her duties in a municipality giving rise to entitlement to the wage supplement.” According to the applicants, this instruction was not relevant to the present case, in that it allegedly concerned only temporary transfers, whereas the transfer of the applicants’ place of duty had been of a permanent nature. 23.     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). 24.     On 3 July 1991 the Ministry of Finance refused a request for compensation for commuting costs lodged by a civil servant whose duty station had changed following the incorporation of the Askola Police District into that of the Mäntsälä and Porvoo Police District. The decision was upheld by the Uusimaa County Administrative Board and the Supreme Administrative Court on 7 April 1993 and 7 December 1994 respectively. 25.     By a decision of 10 January 1997, the Pohjois-Karjala County Administrative Board granted a police officer a cold-area allowance at level   1 plus an individual wage supplement compensating for the difference between level 2 (Valtimo) and level 1 (Nurmes) of the cold-area allowance following the incorporation of the Valtimo Police District into the Nurmes Police District (the Nurmes case). B.     Oral hearings 26.     Section 38(1) of the Administrative Judicial Procedure Act ( hallintolainkäyttölaki, förvaltningsprocesslagen ; Law no. 586/1996) provides that an oral hearing must be held if requested by a private party. An oral hearing may however be dispensed with if a party’s request is ruled inadmissible or immediately dismissed or if an oral hearing would be clearly unnecessary due to the nature of the case or other circumstances. 27.     The explanatory report on the Government Bill (no. 217/1995) for the enactment of the Administrative Judicial Procedure Act examines the right to an oral hearing as provided by Article 6 of the Convention and the possibility in administrative matters to dispense with the hearing when it would be clearly unnecessary, as stated in section 38(1) of the said Act. It notes that an oral hearing contributes to a focused and immediate procedure but since it does not always bring any added value, it must be ensured that the flexibility and cost-effectiveness of the administrative procedure is not undermined. An oral hearing is to be held when it is necessary for the clarification of the issues and the hearing can be considered beneficial for the case as a whole. III.     RELEVANT INTERNATIONAL LAW AND PRACTICE 28.     The international law and practice from which the Court sought guidance in Pellegrin v. France ([GC], no. 28541/95, ECHR 1999 ‑ VIII) has been outlined in that judgment (see §§ 37-41). 29.     Article 47 of the Charter of Fundamental Rights of the European Union, proclaimed on 7 December 2000, on the right to an effective remedy and a fair trial, provides: “Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article. Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law. Everyone shall have the possibility of being advised, defended and represented. Legal aid shall be made available to those who lack sufficient resources in so far as such aid is necessary to ensure effective access to justice.” 30.     The Explanations relating to the Charter of Fundamental Rights, originally prepared under the authority of the Praesidium of the Convention which drafted the Charter and finally integrated in the Final Act of the Treaty establishing a Constitution for Europe, do not have equal authority to the Charter. However, they are a “valuable tool of interpretation intended to clarify the provisions of the Charter”. They read as follows (extract): “The second paragraph [of Article 47] corresponds to Article 6(1) of the ECHR which reads as follows: ‘In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.’ In Union law, the right to a fair hearing is not confined to disputes relating to civil law rights and obligations. That is one of the consequences of the fact that the Union is a community based on the rule of law as stated by the Court in Case 294/83, ‘ Les Verts’ v. European Parliament (judgment of 23 April 1986, [1988] ECR 1339). Nevertheless, in all respects other than their scope, the guarantees afforded by the ECHR apply in a similar way to the Union.” It follows that Article 47, in the context of European Union law, is not confined to civil rights and obligations or to criminal matters within the meaning of Article 6 of the Convention. In this respect the Charter codified existing case-law of the Court of Justice of the European Communities (see Marguerite Johnston v. Chief Constable of the Royal Ulster Constabulary , Case 222/84, [1986] ECR 1651, referred to in paragraph 60 below). THE LAW I.     ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 31.     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 and about the lack of an oral hearing before any of the domestic instances. The relevant provision reads: “In the determination of his civil rights and obligations ..., everyone is entitled to a fair and public hearing within a reasonable time by [a] ... tribunal ...” A.     The parties’ submissions 1.     The applicants 32.     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 amount of their salaries was a contractual matter regulated by the collective agreement between the employee and the employer. The applicants emphasised that they had not complained about the decision to move their offices from one location to another. Neither did the case concern the use of public authority, hiring, career or termination of employment. The dispute also had relevance to the amount of their pensions. 33.     The applicants considered that the proceedings had begun on 17   October 1990 when they had lodged their initial application. On 3 July 1991 the Ministry of Finance had rendered its decision. On 19 March 1993, after nearly two years of futile negotiations with the State, the applicants had petitioned the County Administrative Board. The procedures in the Ministry of the Interior and the County Administrative Board were relevant because they had been a necessary prerequisite for obtaining a decision in the case. The applicants could not have seized the County Administrative Court without having obtained the Board’s decision first. The proceedings ended 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. In any event, the resolution of that case had become final on 7 December 1994. The applicants had acted speedily. The case had concerned their basic livelihood. 34.     Lastly, the applicants maintained that a hearing should have been held with a view to taking oral testimony from them about the particular facts of the case. The administration had promised them compensation. In fact, section 38(1) of the Administrative Judicial Procedure Act required that a hearing be held since a hearing was not manifestly unnecessary. 2.     The Government 35.     The Government contested the 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 (in this connection, they referred to Pellegrin v. France [GC], no. 28541/95, §   66, ECHR 1999-VIII). Whether the duties of the office-assistant applicant included indirect participation was less obvious. However, the Government referred to the Court’s reasoning in Verešová v. Slovakia ((dec.), no.   70497/01, 1 February 2005) in which it found that Article 6 was inapplicable to a lawyer serving in the police and held that “having regard to the nature of the functions and responsibilities which [the police] incorporates, the applicant’s employment can be regarded as a direct participation in [the] exercise of the public authority and functions aiming at safeguarding the general interests of the State”. The rights and obligations of police officers had a distinctly “public” rather than a “civil” aspect for the purposes of Article 6. The alleged fact that the applicants’ pecuniary interests were at stake did not suffice to bring the proceedings within the ambit of Article 6 since “proceedings do not become ‘civil’ merely because they also raise an economic issue” (see Pierre-Bloch v. France , 21 October 1997, § 51, Reports of Judgments and Decisions 1997 ‑ VI). Accordingly, the complaints were incompatible ratione materiae with the Convention. 36.     The Government also contested applicability on the ground that there was no statutory right to the wage supplement in question. The applicants had no right or entitlement to the wage supplement based on the collective agreement and the implementing instruction concerning the payment of wage supplements instead of the earlier remote-area allowance. Thus, the complaints of all the applicants were incompatible ratione materiae with the Convention in this regard. 37.     Were the Court to hold otherwise, the Government submitted that in any event there had been no breach of Article 6 § 1 of the Convention. In their view 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 case had not been complex; the County Administrative Board had stayed the proceedings partly because it had wished to wait for the outcome of the Askola case with a view to treating personnel from different police districts in an equal manner, although the matter had already been decided in respect of the applicants. 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 the proceedings. The case had not involved basic subsistence and had not therefore, or on any other ground, been particularly urgent. There had been efforts to resolve the case by way of negotiation between 3 July 1991 and 19   March 1993. During the negotiations the applicants had been informed that a wage supplement could only be granted if the Supreme Administrative Court amended the decision of the lower court in the Askola case. 38.     As to the lack of a hearing, the Government pointed out that the County Administrative Court had found that the facts which the applicants wished to present in an oral hearing had no relevance for the outcome of the case and that the Supreme Administrative Court had found that the promises made by the Provincial Police Command had no legal relevance, both courts finding an oral hearing unnecessary. The applicants had been given an opportunity to provide additional written observations. The issue at stake had been technical and based on the relevant documents. There had been 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. No additional information could have been gathered by hearing any of the applicants in person. B.     The Court’s assessment 1.     Applicability of Article 6 39.     The Government have contested the applicability of Article 6 on two grounds, namely whether there was a “right” and whether it was “civil” in nature. (a)     Existence of a right 40.     Firstly, the Court will examine whether there existed a “right” in the present case. According to the principles enunciated in its case-law (see, inter alia , Pudas v. Sweden , 27 October 1987, § 31, Series A no. 125 ‑ A), the dispute over a “right”, which can be said at least on arguable grounds to be recognised under domestic law, must be genuine and serious; it may relate not only to the actual existence of a right but also to its scope and the manner of its exercise; and, finally, the result of the proceedings must be directly decisive for the right in question. 41.     The Court notes that it has not been disputed that the Provincial Police Command had promised the applicants compensation. The case file also discloses that individual wage supplements were granted in situations which were not entirely dissimilar from that of the applicants. Nor did the national courts dismiss the applicants’ claims as lacking any basis. While it is true that their claims were rejected, the Administrative Courts may be regarded as having examined the merits of the application and in so doing they determined the dispute over their rights. The Court considers that against such a background the applicants could claim to have a right on arguable grounds (see, inter alia , Neves e Silva v. Portugal , 27 April 1989, § 37, Series A no. 153 ‑ A). (b)     Civil nature of the right 42.     Secondly, the Court has examined the Government’s argument, relying on Pellegrin (cited above), that Article 6 is not applicable since disputes raised by servants of the State such as police officers over their conditions of service are excluded from its ambit. The present case concerns proceedings in which it was determined whether the first five applicants, and the late Mr Hannu Matti Lappalainen, who were civil servants, were entitled to receive a wage supplement. In order to determine this question, the Court must note the background to and the ratio of the judgment in Pellegrin and how this has been applied in practice in subsequent cases. (i)     Summary of the case-law 43.     Before the judgment in Pellegrin , the Court had held that disputes relating to the recruitment, careers and termination of service of civil servants were as a general rule outside the scope of Article 6 § 1. That general principle of exclusion had however been limited and clarified in a number of judgments. For example, in Francesco Lombardo v. Italy (26   November 1992, § 17, Series A no. 249 ‑ B) and Massa v. Italy (24   August 1993, § 26, Series A no. 265 ‑ B) the Court had considered that the applicants’ complaints related neither to the “recruitment” nor to the “careers” of civil servants and only indirectly to “termination of service” as they consisted in claims for purely pecuniary rights arising in law after termination of service. In those circumstances and in view of the fact that the Italian State was not using “discretionary powers” in performing its obligation to pay the pensions in issue and could be compared to an employer who was a party to a contract of employment governed by private law, the Court had held that the applicants’ claims were “civil” in nature within the meaning of Article 6 § 1. 44.     On the other hand, in Neigel v. France (17 March 1997, § 44, Reports 1997 ‑ II) the decision contested by the applicant, namely the refusal to reinstate her to a permanent post in the civil service, had been held by the Court to concern “her ‘recruitment’, her ‘career’ and the ‘termination of [her] service’”. Nor did the applicant’s claim for payment of the salary she would have received if she had been reinstated render Article 6 § 1 applicable, as an award of such compensation by the administrative court was “directly dependent on a prior finding that the refusal to reinstate [had been] unlawful”. The Court had accordingly decided that the dispute did not concern a “civil” right within the meaning of Article 6 § 1. 45.     According to other judgments, Article 6 § 1 had applied where the claim in issue related to a “purely economic” right – such as payment of salary (see De Santa v. Italy , Lapalorcia v. Italy and Abenavoli v. Italy , 2   September 1997, §§ 18, 21 and 16 respectively, Reports 1997-V) – or an “essentially economic” one (see Nicodemo v. Italy , 2 September 1997, § 18, Reports 1997-V) and did not mainly call in question “the authorities’ discretionary powers” (see Benkessiouer v. France and Couez v. France , 24   August 1998, §§ 29-30 and § 25 respectively, Reports 1998-V; Le Calvez v. France , 29 July 1998, § 58, Reports 1998-V; and Cazenave de la Roche v. France , 9 June 1998, § 43, Reports 1998-III). 46.     When the Court came to review the situation in Pellegrin (§ 60), it considered that the above-mentioned case-law contained a degree of uncertainty for Contracting States as to the scope of their obligations under Article 6 § 1 in disputes raised by employees in the public sector over their conditions of service. The Court sought to put an end to that uncertainty by establishing an autonomous interpretation of the term “civil service” which would make it possible to afford equal treatment to public servants performing equivalent or similar duties in the States Parties to the Convention, irrespective of the domestic system of employment and, in particular, whatever the nature of the legal relation between the official and the administrative authority. 47.     To that end the Court introduced a functional criterion based on the nature of the employee’s duties and responsibilities. The holders of posts involving responsibilities in the general interest or participation in the exercise of powers conferred by public law wielded a portion of the State’s sovereign power. The State therefore had a legitimate interest in requiring of these officials a special bond of trust and loyalty. On the other hand, in respect of other posts which did not have this “public administration” aspect, there was no such interest (see Pellegrin , cited above, § 65). The Court therefore ruled that the only disputes excluded from the scope of Article 6 § 1 were those which were raised by public servants whose duties typified the specific activities of the public service in so far as the latter was acting as the depositary of public authority responsible for protecting the general interests of the State or other public authorities. A manifest example of such activities was provided by the armed forces and the police (§ 66). It concluded that no disputes between administrative authorities and employees who occupied posts involving participation in the exercise of powers conferred by public law attracted the application of Article 6 § 1 (§   67). 48.     The Court observes that Pellegrin was categorical in its wording; where the post belonged to the said category, all disputes were excluded from Article 6 irrespective of their nature. It allowed only one exception: disputes concerning pensions all came within the ambit of Article 6 § 1 because, on retirement, the special bond between the employees and the authorities was broken; the employees then found themselves in a situation exactly comparable to that of employees under private law in that the special relationship of trust and loyalty binding them to the State had ceased to exist and the employee could no longer wield a portion of the State’s sovereign power (see Pellegrin , cited above, § 67). 49.     It is important to note that the Court emphasised that in applying a functional criterion it must adopt a restrictive interpretation, in accordance with the object and purpose of the Convention, of the exceptions to the safeguards afforded by Article 6 § 1 (§§ 64-67). This was to limit the cases in which public servants could be denied the practical and effective protection afforded to them (as confirmed in Frydlender v. France [GC], no.   30979/96, § 40, ECHR 2000 ‑ VII). (ii)     Whether there is a need for development of the case-law 50.     The judgment in Pellegrin , which is the most recent significant link in the chain of development of the case-law, was intended to provide a workable concept by which it was to be ascertained, on a case-by-case basis, whether the applicant’s post entailed – in the light of the nature of the duties and responsibilities appertaining to it – direct or indirect participation in the exercise of powers conferred by public law and duties designed to safeguard the general interests of the State or of other public authorities. It then had to be determined whether the applicant, in the framework of one of these categories of posts, did indeed exercise functions which could be characterised as falling within the exercise of public power, that is, whether the applicant’s position within the State hierarchy was sufficiently important or elevated to speak of a participation in wielding State power. 51.     The present case, however, highlights that the application of the functional criterion may itself lead to anomalous results. At the material time the applicants were employed by the Ministry of the Interior. Five of them were employed as police officers, which typifies the specific activities of the public service as defined above. This entailed participating directly in the exercise of powers conferred by public law and the performance of duties designed to safeguard the general interests of the State. The functions of the office-assistant applicant were purely administrative, without any decision-making competence or other exercise directly or indirectly of public power. Her functions were thus not distinguishable from any other office assistant in public or private employment. As noted above, Pellegrin expressly mentioned the police as a manifest example of activities belonging to the exercise of public authority, thus excluding a whole category of persons from the scope of Article 6. On a strict application of the Pellegrin approach it would appear that the office-assistant applicant in the present case would enjoy the guarantees of Article 6 § 1, whereas there is no doubt that the police-officer applicants would not. This would be so irrespective of the fact that the dispute was identical for all the applicants. 52.     Further, an examination of the cases decided since Pellegrin shows that ascertaining the nature and status of the applicant’s functions has not been an easy task; nor has the category of public service in which the applicant works always been clearly distinguishable on the basis of his or her actual role. In some cases it has not been apparent the extent to which inclusion in a particular sector of public service was sufficient to remove the applicability of Article 6 without consideration of the nature of the individual’s responsibilities. For example, in Kępka v. Poland ((dec.), nos. 31439/96 and 35123/97, ECHR 2000 ‑ IX) the Court found that, although the applican