AS TO THE ADMISSIBILITY OF                       Application No. 24949/94                      by Tuomo KONTTINEN                      against Finland        The European Commission of Human Rights sitting in private on3 December 1996, 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. DANELIUS                 F. MARTINEZ                 L. LOUCAIDES                 J.-C. GEUS                 M.P. PELLONPÄÄ                 B. MARXER                 M.A. NOWICKI                 I. CABRAL BARRETO                 B. CONFORTI                 I. BÉKÉS                 J. MUCHA                 D. SVÁBY                 A. PERENIC                 C. BÎRSAN                 K. HERNDL                 E. BIELIUNAS                 E.A. ALKEMA                 M. VILA AMIGÓ            Mr.   H.C. KRÜGER, Secretary to the Commission        Having regard to Article 25 of the Convention for the Protectionof Human Rights and Fundamental Freedoms;       Having regard to the application introduced on 7 August 1994 byTuomo Konttinen against Finland and registered on 19 August 1994 underfile No. 24949/94;      Having regard to the reports provided for in Rule 47 of the Rulesof Procedure of the Commission;       Having regard to the observations submitted by the respondentGovernment on 30 April 1996 and the observations in reply submitted bythe applicant on 25 June 1996;       Having deliberated;       Decides as follows: THE FACTS       The applicant is a Finnish citizen, born in 1963. He isunemployed and resides in Hyvinkää. Before the Commission he isrepresented by Mr. Matti Wuori, a lawyer practising in Helsinki.       The facts of the case, as submitted by the parties, may besummarised as follows. A.    Particular circumstances of the case       In 1986 the applicant joined the State Railways (Valtion-rautatiet, Statsjärnvägarna), where he apparently held various posts.Most recently, he worked in a goods transportation terminal, where hewould feed information concerning completed transports into a computernetwork. As this post did not entail the exercise of public authority,his working hours were governed by the 1946 Act on Working Hours(työaikalaki, arbetstidslag 604/46) and not by lex specialis applicableto civil servants. He performed shift work, his evening shift endingat 18.39 hrs. On Saturdays and Sundays no one worked in the terminal.       In the summer of 1991 the applicant joined The Seventh-dayAdventist Church in Finland (Suomen Adventtikirkko, FinlandsAdventkyrka). An adventist must refrain from working on the Sabbath(Saturday) which starts at sunset on Friday. By ministerial decisionof 7 February 1994 (no. 115/94) the Government approved an amendmentto the confession of faith and the form of religious worship withinthis church, considering that these were not contrary to law or goodpractices.       When the sun set before his Friday shift had ended on 6 March1992 the applicant, having informed his employer, absented himself fromwork at 18.00 hrs. At his employer's request the Board of CivilServants (virkamieslautakunta, tjänstemannanämnden) within the StateRailways then issued him with a disciplinary punishment in the form ofa caution (varoitus, varning) on the grounds that he had not observedthe working hours. The punishment was upheld by the SupremeAdministrative Court (korkein hallinto-oikeus, högsta förvaltnings-domstolen) on 29 December 1992.       On 2 and 16 October and 20 November 1992 as well as on 8 Januaryand 26 February 1993 the applicant, having informed his employer, againabsented himself from his work place before his Friday evening shifthad ended. He left work at 17.49 hrs, 17.08 hrs, 15.39 hrs, 15.36 hrsand 17.39 hrs, respectively. In discussions with superiors hemaintained that he would continue to keep the Sabbath in accordancewith his religious convictions.       On 23 March 1993 the Head of the relevant district of the StateRailways dismissed the applicant as he had, on six occasions in 1992-93, absented himself from his work place before the end of his Fridayevening shift, thereby neglecting the rules regulating his workinghours. The duty of all staff to respect their working hours was aprecondition for effective working. The employer's efforts to transferhim to another post had failed, as no vacancy had been found. He hadrepeatedly been warned by superiors that further absence from workwould inevitably lead to his dismissal. He had nevertheless continuedto show a careless and indifferent attitude towards the applicablerules and his superiors' orders. The applicant and the principalemployees' representative were heard prior to the dismissal.Following the applicant's request for a re-examination the Board ofCivil Servants, on 28 April 1993, upheld his dismissal, noting, interalia, that he had been obliged to work an evening shift every fifthFriday. On 6 March, 2 and 16 October and 20 November 1992 as well ason 8 January and 26 February 1993 he had absented himself from his workplace without permission and in spite of the caution issued in May 1992and his superiors' orders and warnings. He had stated that he wouldpersist in his behaviour. The Board concluded that he had continuouslyand fundamentally breached his official duties. Reference was made tosections 20 and 46 of the 1986 Act on Civil Servants of the State(valtion virkamieslaki, statstjänstemannalag 755/86) and the StateRailways' staff regulations.       One out of the eight members of the Board dissented, noting,inter alia, that the applicant's absence during his Friday eveningshift had only had minor effects, no damage having been caused eitherto his employer or any third party. He had undertaken to compensate therelevant number of working hours and to this end he had requested thathis shifts be modified. As he was experienced and had been trained invarious tasks, he should have been issued with a further caution andtransferred to another post. A dismissal was not proportionate to thebehaviour shown by him on his particular post and would result inabsence from work on religious grounds being punished more severelythan, for instance, alcohol problems.       The applicant appealed to the Supreme Administrative Court,arguing that his right to freedom of religion had been violated. Hisabsence had resulted from an irreconcilable conflict between hisreligious convictions and work duties and not from negligence. Thequestion concerned a maximum of some five Fridays between October andMarch, when the sun would set at the most three and a half hours beforethe end of his shift. In return for a permission to finish his shiftat sunset on those days he would have been prepared to work a longershift in the summertime, when the sun would set late. The StateRailways had not argued that such an arrangement would have beenunreasonably difficult to implement. Instead of showing indifferencetowards his duties he had honestly informed his employer that he feltobliged to give priority to his religious convictions, though possiblyat the price of being dismissed. Although the State Railways could alsoorder its staff to work on Sundays, it had regulated the working hoursat the applicant's work place so that no Sunday work was necessary.       On 17 February 1994 the Supreme Administrative Court upheld theBoard's decision, finding no reason for amending it. B.    Relevant domestic law       Finland recognises two State Churches, the Evangelical-LutheranChurch and the Orthodox Church of Finland. Approximately 86 per centof the population belong to the Evangelical-Lutheran Church and about1 per cent belong to the Orthodox Church of Finland.       Under the 1919 Constitution Act (Suomen Hallitusmuoto, Regerings-form för Finland 94/19), as in force at the relevant time, a Finnishcitizen was entitled to manifest his or her religion both in privateand in public, provided this did not violate the law or good practices(section 8). The rights and obligations of a Finnish citizen did notdepend on whether or not he or she belonged to a certain religiouscommunity, if any (section 9). As of 1 August 1995 the Constitution Actguarantees the freedom of religion to everyone. This freedom includesthe right to confess one's faith, to worship, to manifest one's beliefas well as to belong or not to belong to a religious community(section 9 of amending Act no. 969/95).       In addition, the 1922 Act on Religious Freedom (uskonnonvapaus-laki, religionsfrihetslag 267/22) guarantees the freedom to manifesta religion, again provided this does not violate the law or goodpractices (section 1). Finally, according to a specific Act of 1921(no. 173/21), a Finnish citizen is qualified for a post as a civilservant regardless of whether or not he or she belongs to a certainreligious community, if any.       Under section 1 of the 1989 Act on the State Railways (lakiValtionrautateistä, lag om Statsjärnvägarna 747/89), as in force at therelevant time, the State Railways was a State enterprise subordinatedto the Ministry of Transport and Communications (liikenneministeriö,trafikministeriet). The 1989 Act has later been replaced.       According to the 1986 Act on Civil Servants of the State, as inforce at the relevant time, a civil servant was to perform his or herduties properly without delay and behave in accordance with therequirements of the relevant office (section 20). A written warning ora caution could be issued if the civil servant either deliberately orby negligence acted contrary to his or her duties. A third disciplinarypunishment was removal from office. All three disciplinary punishmentswere to be imposed by decision of a Board of Civil Servants (sections57 and 58). One or several boards existed within a public authority(section 75). A superior could also issue remarks (section 63).       A civil servant could also be dismissed if, for instance, he orshe had continuously or significantly breached the duties relating tothe relevant office or continuously had failed to perform those duties(section 46, subsection 2 (3)). On the other hand, for instance his orher religious views did not constitute such grounds for dismissal(subsection 3(4)).       On 1 December 1994 the 1986 Act was largely replaced by a 1994Act with the same title (no. 750/94).       The Act on Working Hours stipulates that every employee shall beentitled to a weekly rest lasting at least 30 hours. This rest shallbe provided on Sunday or, when this is not possible, during anotherperiod. Certain exceptions are possible but are not relevant here(section 15).       In a case of the present kind a final appeal lies with theSupreme Administrative Court. No leave to appeal is required.  COMPLAINTS 1.    The applicant complains under Article 9 of the Convention thathis right to freedom of religion has been violated on account of hisdismissal by the State Railways. This right allegedly includes theright to have one's holy day respected as long as this is notunreasonable from the employer's point of view and does not violate therights of others. Within reasonable limits Article 9 also implies aright for a civil servant to refuse to perform duties contrary to hisor her religious belief as long as this does not significantly impingeon the performance of his or her duties as a whole.       More particularly, the conflict between his duty to respect, onthe one hand, his religious convictions and, on the other hand, hisworking hours only arose about five times a year due to the earlysunset in the wintertime. His requests to have his occasional Fridayevening shift in the wintertime exchanged for the Friday morning shiftand to have his Friday morning shift in the summertime exchanged forthe Friday evening shift were not unreasonable and would not haveafforded him any advantage in comparison with his colleagues. The StateRailways never argued that such working hours would have beenimpossible to implement or that they would have been unreasonable fromthe point of view of his employer or colleagues. 2.    The applicant furthermore complains that his dismissaldiscriminated against him, since under the legislation on working hoursthe weekly holiday falls on Sunday, i.e. the holy day for the mainreligious communities in Finland. As a result the State Railwaysrespected the right of his colleagues to keep the Sabbath on Sunday butfailed to respect his right to keep it on Saturday. He invokes Article14 of the Convention in conjunction with Article 9. 3.    Finally, the applicant complains that he was denied a fairhearing, as the Supreme Administrative Court, the only independenttribunal to decide on his case, gave no reasons for its decision butinstead de facto refused him leave to appeal. He invokes Article 6 ofthe Convention and underlines that his working hours were governed bylegislation applicable to private employment contracts. The proceedingstherefore involved a determination of a civil right of his. PROCEEDINGS BEFORE THE COMMISSION       The application was introduced on 7 August 1994 and registeredon 19 August 1994.       On 28 February 1996 the Commission (First Chamber) decided tocommunicate the applicant's complaint concerning Article 9 of theConvention to the respondent Government.       The Government's written observations were submitted on30 April 1996. The applicant replied on 25 June 1996.       On 21 May 1996 the Commission granted the applicant legal aid.       On 26 November 1996 the application was transferred from theFirst Chamber to the Plenary Commission, by decision of the latter. THE LAW 1.    The applicant complains that his right to freedom of religion wasviolated on account of his dismissal. He invokes Article 9 (Art. 9) ofthe Convention which reads, as far as relevant, as follows:       "1.  Everyone has the right to freedom of ... religion;      this right includes freedom to change his religion or      belief and freedom, either alone or in communitywith others      and in public or in private, to manifest his religion or      belief, in worship, teaching, practice and observance.       2.   Freedom to manifest one's religion or belief shall be      subject only to such limitations as are prescribed by law      and are necessary in a democratic society in the interests      of public safety, for the protection of public order,      health or morals, or for the protection of the rights and      freedoms of others."       The Government accept that the State Railways' dismissal of theapplicant is imputable to the respondent State under the Convention.They also accept that such a dismissal could in certain circumstancesraise an issue under Article 9 (Art. 9). In the present case, however,this provision has not been violated. The State Railways was entitledto rely on its employment contract which the applicant had signedwithout reservations in 1986. Having joined The Seventh-day AdventistChurch in 1991, he was free to relinquish his work if he consideredthat his professional duties were not reconcilable with his religiousconvictions. He could also have taken those Fridays off when thebeginning of the Sabbath obliged him to leave work before his eveningshift had ended.       The Government consider, moreover, that when dismissing theapplicant the State Railways did not arbitrarily disregard his freedomof religion. Its efforts to transfer him to another post had failed andchanging the shift schedule in accordance with his proposal would haveled to inconveniences for the employer and the applicant's colleagues.In these circumstances his dismissal did not interfere with his freedomof religion.       Should the Commission find that the applicant's dismissal limitedhis freedom to manifest his religion, the Government submit that thislimitation was justified under Article 9 para. 2 (Art. 9-2). Thedismissal was in accordance with law and pursued legitimate aims,namely the protection both of public order and the rights and freedomsof others. Finally, the dismissal was proportionate to the aims pursuedand thus necessary in a democratic society. In most countries only thereligious holidays of the majority are celebrated as public holidays.In Finland members of different religious denominations are equalbefore the law governing working hours. Public officials whose presenceat work is required on Sundays cannot refuse to perform their duties.Accommodating the rules of different religious denominations in orderto respect an employer's wishes in this field would be unreasonable asfar as the employer and usually also the other employees are concerned.        The applicant recalls that under Article 9 para. 1 (Art. 9-1)theright to freedom of religion must be secured without qualification.Should, however, the Commission consider Article 9 para. 2 (Art. 9-2)applicable, the applicant submits that the limitation of his freedomto manifest his religion was not "prescribed by law". This notion isindependent of whether the domestic procedure as such was governed byFinnish law. In this context it is of relevance that he did not receivea fair trial within the meaning of Article 6 para. 1 (Art. 6-1) of theConvention.       The applicant furthermore contends that his dismissal did notserve any of the legitimate aims referred to by the Government. Hismanifestation of his religious belief in no way endangered publicorder. Nor would the proposed minor adjustments of his work schedulehave infringed on the rights and freedoms of others. Finally, the StateRailways never argued, though the Government does so before theCommission, that the proposed adjustments would have causedinconveniences to his employer or colleagues.       The applicant finally submits that his dismissal wasdisproportionate to any assumed legitimate aim. Due to the strongposition of the Evangelical-Lutheran State Church in Finland tolerationof other religious denominations is fairly low, as shown by the StateRailways' inflexibility in his case. He was performing ordinaryclerical duties of no urgent or otherwise pressing character requiringhis physical presence at a specific hour. The proposed adjustments ofhis work schedule concerned a maximum of three and a half hours on fiveFriday afternoons per year. His employer was adamantly against any ofthe arrangements proposed by him, including, for instance, compensatingthe lost working hours by relinquishing an equivalent part of hisvacation or days off. The matter having eventually evolved into anexertion of authority, he was dismissed for an absence lasting 39minutes. A limitation of the freedom to manifest one's religion mustnecessarily fit within a narrow margin of appreciation which wasoverstepped in the applicant's particular case.       The Commission recalls that Article 9 (Art. 9) primarily protectsthe sphere of personal convictions and religious beliefs. In addition,it protects acts which are intimately linked to these attitudes, suchas acts of worship or devotion which are aspects of the practice of areligion or belief in a generally recognised form (see, e.g., Kalaç v.Turkey, Comm. Report 27.2.96).       While it is true that a right of recruitment to the publicservice was deliberately omitted from the Convention, it does notfollow that a person designated as a public servant is debarred fromchallenging his dismissal if it infringes one of the rights guaranteedby the Convention. Public servants do not fall outside the scope of theConvention any more than do other citizens. In Articles 1 and 14(Art. 1, 14) the Convention stipulates that "everyone within [the]jurisdiction" of the Contracting States must enjoy the rights andfreedoms in Section I "without discrimination on any ground" (see Eur.Court HR, Vogt v. Germany judgment of 26 September 1995, Series A no.323, pp. 22-23, para. 43 with further references). The Commissiontherefore considers it conceivable that a dismissal of a civil servantfor disobedience could, in certain circumstances, raise an issue underArticle 9 (Art. 9) (cf. No. 8160/78, Dec. 12.3.81, D.R. 22 pp. 27-38at p. 33; No. 11045/84, Dec. 8.3.85, D.R. 42 pp. 247-258 at pp. 257-258).       In the present case the Commission finds that the applicant, asa civil servant of the State Railways, had a duty to accept certainobligations towards his employer, including the obligation to observethe rules governing his working hours. He was cautioned by hisemployer, not having relinquished his post after the irreconcilableconflict arose between his religious convictions and his working hours.       In these particular circumstances the Commission finds that theapplicant was not dismissed because of his religious convictions butfor having refused to respect his working hours. This refusal, even ifmotivated by his religious convictions, cannot as such be consideredprotected by Article 9 para. 1 (Art. 9-1). Nor has the applicant shownthat he was pressured to change his religious views or prevented frommanifesting his religion or belief.       The Commission would add that, having found his working hours toconflict with his religious convictions, the applicant was free torelinquish his post. The Commission regards this as the ultimateguarantee of his right to freedom of religion. In sum, there is noindication that the applicant's dismissal interfered with the exerciseof his rights under Article 9 para. 1 (Art. 9-1) (cf. the above-mentioned No. 8160/78, loc.cit.)       It follows that this complaint is manifestly ill-founded withinthe meaning of Article 27 para. 2 (Art. 27-2) of the Convention. 2.    The applicant furthermore complains that he has beendiscriminated against, since the State Railways respected the right ofhis colleagues to keep the Sabbath on Sunday but failed to respect hisright to keep it on Saturday. He invokes Article 14 (Art. 14) of theConvention in conjunction with Article 9 (Art. 9). Article 14 (Art. 14)reads, as far as relevant, as follows:       "The enjoyment of the rights and freedoms set forth in this      Convention shall be secured without discrimination on any      ground such as ... religion ... or other status."       The Commission recalls that Article 14 (Art. 14) of theConvention complements the other substantive provisions of theConvention and the Protocols. It may be applied in an autonomous manneras a breach of Article 14 (Art. 14) does not presuppose a breach ofthose other provisions. On the other hand, it has no independentexistence, since it is effective solely in relation to the enjoymentof the rights and freedoms safeguarded by the other substantiveprovisions (see, e.g., Eur. Court HR, Van der Mussele v. Belgiumjudgment of 23 November 1983, Series A no. 70, p. 22, para. 43).       Article 14 (Art. 14) does not forbid every difference intreatment in the exercise of the rights and freedoms recognised by theConvention and its Protocols. It safeguards persons, who are placed inanalogous situations, against discriminatory differences of treatment.For the purposes of Article 14 (Art. 14) a difference of treatment isdiscriminatory if it has no objective and reasonable justification. TheContracting States enjoy a certain margin of appreciation in assessingwhether and to what extent differences in otherwise similar situationsjustify a different treatment in law (see, e.g., Eur. Court HR, Lithgowv. the United Kingdom judgment of 8 July 1986, Series A no. 102, pp.66-67, para. 177).       The Commission considers that the present complaint falls to beexamined in conjunction with the above-cited Article 9 (Art. 9). It istrue that the Finnish legislation on working hours provides that theweekly day of rest is usually Sunday. However, this legislation doesnot contain provisions which would guarantee to members of a certainreligious community any absolute right to have a particular dayregarded as their holy day. Assuming that the applicant could beconsidered to be in a situation comparable to that of members of otherreligious communities, the Commission therefore finds that he has notbeen treated differently in comparison with such members. Consequently,this complaint does not disclose any appearance of a violation ofArticle 14 of the Convention taken in conjunction with Article 9(Art. 14+9) .       It follows that this complaint is also manifestly ill-foundedwithin the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. 3.    Finally, the applicant complains that his right to a fair hearingwas violated on the basis of the inadequate reasons in the decision ofthe Supreme Administrative Court, the only independent tribunal toexamine his case. He invokes Article 6 (Art. 6) of the Convention whichreads, as far as relevant, as follows:       "1.  In the determination of his civil rights and      obligations ..., everyone is entitled to a fair ... hearing      ... by [a] ... tribunal ..."       The Commission recalls that disputes relating to the recruitment,careers and termination of service of public servants are, as a generalrule, outside the scope of Article 6 para. 1 (Art. 6-1) of theConvention (cf., however, e.g., Eur. Court HR, Massa v. Italy judgmentof 24 August 1993, Series A no. 265-B, p. 20, para. 26).       In the present case it can be left open whether Article 6 para. 1(Art. 6-1) is applicable and whether the Board of Civil Servants withinthe State Railways is a "tribunal" within the meaning of thatprovision, since the complaint is in any event inadmissible for thefollowing reasons.       The Commission accepts that under specific circumstances theabsence of reasons in a court decision might raise an issue as to thefairness of the procedure which is guaranteed by Article 6 para. 1(cf., e.g., No. 8769/79, Dec. 16.7.81, D.R. 25 p. 240; No. 10412/83,(Art. 6-1) Dec. 14.7.87, D.R. 52 p. 128; cf. also, as regards criminalproceedings, Eur. Court HR, Hadjianastassiou v. Greece judgment of16 December 1992, Series A no. 252, pp. 16-17, paras. 33-37).       The Commission notes that the decision of the Board of CivilServants mentioned the facts, the relevant legal provisions applied aswell as the Board's conclusions. By upholding that decision the SupremeAdministrative Court must be considered to have accepted the reasonsadvanced by the Board. In these circumstances there is no indicationthat the proceedings were unfair and thereby contrary to Article 6para. 1 (Art. 6-1) of the Convention.       It follows that this complaint is also manifestly ill-foundedwithin the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.        For these reasons, the Commission, by a majority,       DECLARES THE APPLICATION INADMISSIBLE.             H.C. KRÜGER                         S. TRECHSEL             Secretary                          President         to the Commission                  of the Commission