Date when decision was rendered: 13.3.1991

Judicial body: Cathedral Chapter of the Turku Archbishopric = Åbo ärkestifts domkapitel = Turun hiippakunnan tuomiokapituli

Reference: Report No. 1791; 1187/90

Reference to source

The Cathedral Chapter

Domkapitlet

Tuomiokapituli

Date of publication:

Subject

church, criminal charge, courts, fair trial,
kyrka, brottsanklagelse, domstol, rättvis rättegång,
kirkko, rikossyyte, tuomioistuimet, oikeudenmukainen oikeudenkäynti,

Relevant legal provisions

Sections 444, 451, 452, 455, 457, 458 of the Church Act; Chapter 7, section 2 of the Penal Code

= kyrkolagen 444 §, 451 §, 452 §, 455 §, 457 §, 458 §; strafflagen 7 kapitel 2 §

= kirkkolaki 444 §, 451 §, 452 §, 455 §, 457 §, 458 §; rikoslaki 7 luku 2 §.

ECHR-6 (unspecified reference)

Abstract

Based on the Archbishop's request for appropriate measures towards a vicar who had not behaved in accordance with what was required of a priest under the Church Act, the Cathedral Chapter had held a hearing of the vicar and drawn up a protocol of the hearing.The vicar was informed of the contents of the protocol.After this, the Cathedral Chapter had appointed a prosecutor who sent an indictment to the Cathedral Chapter.The documents in the case were sent to the County Dean for a statement.The prosecutor claimed that the vicar had neglected his duty to obey his superior, the Archbishop, and thereby behaved in a way that was inappropriate for a vicar, for which he demanded punishment under sections 96, 99, 108, 397 of the Church Act and Chapter 7, section 2 of the Penal Code.

The vicar stated that the hearing in the Cathedral Chapter was contrary to the requirement of a fair trial under Article 6 of the ECHR.He also asked to be allowed to explain himself again personally to the Cathedral Chapter and that the Cathedral Chapter hear witnesses.These request were rejected by the Cathedral Chapter.

The Cathedral Chapter agreed that the provisions of the Church Act on criminal procedure were contrary to the ECHR, which was incorporated into Finnish law.It therefore decided to take into account the provisions of the ECHR.The Cathedral Chapter had in its opinion acted in accordance with the Church Act and within the jurisdiction accorded by it.The procedure followed was however contrary to the requirements of the Article 6 of the ECHR.The Cathedral Chapter was therefore not authorised to give its opinion on the case.It therefore dismissed the case without considering the merits.

17.4.1998 / 31.3.2003 / LISNELLM

Date when decision was rendered: 27.8.2004

Judicial body: Vaasa Administrative Court = Vasa förvaltningsdomstol = Vaasan hallinto-oikeus

Reference: Report No. 04/0253/3; 00411/04/5990

Reference to source

Registry of Vaasa Administrative Court

Vasa förvaltningsdomstols registratorskontor

Vaasan hallinto-oikeuden kirjaamo

Date of publication:

Subject

equality, non-discrimination, sexual orientation, homosexuality, church,
jämlikhet, icke-diskriminering, sexuell orientering, homosexualitet, kyrka,
tasa-arvo, syrjintäkielto, seksuaalinen suuntautuminen, homoseksuaalisuus, kirkko,

Relevant legal provisions

section 6 of the Non-Discrimination Act; section 6 of the Constitution Act; section 1 of the Act on Registration of Partnership; Chapter 24, section 4 of the Church Act; Chapter 6, section 24-1 of the Church Order

= lag om lika behandling 6 §; grundlagen 6 §; lag om registrerat partnerskap 1 §; kyrkolagen 24 kapitel 4 §; kyrkoordning 6 kapitel 24 § 1 mom.

= yhdenvertaisuuslaki 6 §; perustuslaki 6 §; laki rekisteröidystä parisuhteesta 1 §; kirkkolaki 24 luku 4 §; kirkkojärjestys 6 luku 24 § 1 mom.

Abstract

A had applied for the position as an assistant vicar.The Cathedral Chapter decided that A was not qualified for the position because of the fact that she was living in a same-sex relationship and possibly intended to register that partnership.A appealed against the decision to the administrative court, referring among other things to the prohibition of discrimination in the Constitution Act and in international human rights treaties.The administrative court noted that the registration of a same-sex partnership is accepted and prescribed in law.It then referred to the Constitution Act and the Non-Discrimination Act and to the prohibition of discrimination, without an acceptable reason, on the ground of personal characteristics.The court regarded a same-sex partnership as a reason pertaining to a person or to personal characteristics.In the court's opinion, exceptions to the prohibition of discrimination are not possible in this case unless the reasons for disqualification, though based on the teachings of the church, are also based on the law.As there are no such exceptions included in the Church Act, A could not be disqualified on the grounds presented in the decision of the Cathedral Chapter.The matter was returned to the Cathedral Chapter for a new consideration.

20.1.2005 / 20.1.2005 / ASADINMA

Date when decision was rendered: 8.2.2008

Judicial body: Supreme Administrative Court = Högsta förvaltningsdomstolen = Korkein hallinto-oikeus

Reference: Report no. 181; 284/3/07

Reference to source

KHO 2008:8.

Yearbook of the Supreme Administrative Court 2008 January-June

Högsta förvaltningsdomstolens årsbok 2008 januari-juni

Korkeimman hallinto-oikeuden vuosikirja 2008 tammi-kesäkuu

Place of publication: Helsinki

Publisher: Edita

Date of publication: 2011

Pages: pp. 162-171

Subject

freedom of religion, non-discrimination, church,
religionsfrihet, icke-diskriminering, kyrka,
uskonnonvapaus, syrjintäkielto, kirkko,

Relevant legal provisions

chapter 5 section 1-1 and chapter 8 section 1 of the Church Act; chapter 5 section 1-1, chapter 6 sections 18, 22, 24-1 and 34 of the Church Order; sections 2-1-1, 4, 6 and 7 of the Equality Act; sections 6-2 and 11 of the Constitution Act

= kyrkolagen 5 kapitel 1 § 1 mom. och 8 kapitel 1 §; kyrkoordning 5 kapitel 1 § 1 mom., 6 kapitel 18 §, 22 §, 24 § 1 mom. och 34 §; jämlikhetslagen 2 § 1 mom. 1 punkten, 4 §, 6 § och 7 §; grundlagen 6 § 2 mom. och 11 §

= kirkkolaki 5 luku 1 § 1 mom. ja 8 luku 1 §; kirkkojärjestys 5 luku 1 § 1 mom., 6 luku 18 §, 22 §, 24 § 1 mom. ja 34 §; laki naisten ja miesten välisestä tasa-arvosta 2 § 1 mom. 1 kohta, 4 §, 6 § ja 7 §; perustuslaki 6 § 2 mom. ja 11 §

Abstract

X had applied for a post as a vicar.However, the Cathedral Chapter found that X was not eligible under the Church Order and excluded him from the list of candidates for the election of a vicar.In an interview with the Cathedral Chapter, X had told that because of his religious conviction he would not hold church services in cooperation with a female priest.Having been excluded from the election, X asked the Cathedral Chapter to rectify its decision.He claimed that his attitude towards female priests falls within the ambit of freedom of religion and conviction, and his exclusion form the list of candidates constituted discrimination on the basis of religious conviction.

The Cathedral Chapter rejected the request.It found that the Church Act or the Church Order did not contain any provisions which would allow church officials to leave their tasks and duties unattended because of their religious conviction or for reasons of conscience.Differentiated treatment cannot be accepted on the grounds that it is based on a person's conviction.The Cathedral Chapter also pointed out that, under the Equality Act, male and female priests cannot be treated differently on the basis of gender.The Act also requires that in managing work, distributing tasks and arranging working conditions, an employer shall not treat employees differently on the basis of gender.Arranging shifts on the basis of gender thus constitutes discrimination.Although the Equality Act is explicitly not applicable to activities associated with the religious practices of the church, it is applicable in most everyday activities of the church.In the Cathedral Chapter's view, X's statement, that he would not hold church services in cooperation with a female priest, constituted discrimination based on gender.By his statement, X had announced in advance that he was not prepared to attend to all his tasks and duties as a vicar and work as the head of a parish and a foreman to the parish staff.The Cathedral Chapter concluded that there were sufficient and weighty reasons to hold that X was not eligible for the office.

X appealed further to the administrative court, but the court dismissed the appeal much on the same grounds as the Cathedral Chapter.The court emphasized that when holding a church service, a vicar was attending to his or her duties, not practising his or her religion in the meaning of the right to freedom of religion as guaranteed by the Constitution Act.X's statement that he was not prepared to hold church services in cooperation with a female priest, would lead to discriminatory practices in terms of arranging shifts on the basis of employees' gender.This was as such against the Equality Act.The court did not change the decision of the Cathedral Chapter.Also the Supreme Administrative Court rejected X's appeal and upheld the decision of the administrative court.

15.9.2009 / 28.3.2011 / RHANSKI

Date when decision was rendered: 26.11.2009

Judicial body: Supreme Administrative Court = Högsta förvaltningsdomstolen = Korkein hallinto-oikeus

Reference: Report no. 2796; 3485/2/08

Reference to source

KHO 2009:95.

Yearbook of the Supreme Administrative Court 2009 July-December

Högsta förvaltningsdomstolens årsbok 2009 juli-december

Korkeimman hallinto-oikeuden vuosikirja 2009 heinä-joulukuu

Place of publication: Helsinki

Publisher: Edita

Date of publication: 2010

Pages: pp. 687-708

Subject

freedom of religion, church, fair trial, independent and impartial tribunal, equality,
religionsfrihet, kyrka, rättvis rättegång, oavhängig och opartisk domstol, jämlikhet,
uskonnonvapaus, kirkko, oikeudenmukainen oikeudenkäynti, riippumaton ja puolueeton tuomioistuin, tasa-arvo,

Relevant legal provisions

chapter 5, section 1, chapter 7, section 5-2, chapter 17a, section 3, chapter 19, section 2-3, chapter 23, sections 8-1, 8-2 and 9-1, chapter 24, sections 4-1 and 4-2, and chapter 25, section 5-1 of the Church Act; chapter 2, section 6-1, chapter 5, sections 1-1 and 6, chapter 6, sections 3-1, 3-2 and 3-3 and chapter 18, section 1 of the Church Order; sections 6, 27, 28-1-7 and 40 of the Administrative Procedure Act; Equality Act; section 11 of the Constitution Act

= kyrkolagen 5 kapitel 1 §, 7 kapitel 5 § 2 mom., 17a kapitel 3 §, 19 kapitel 2 § 3 mom., 23 kapitel 8 § 1 mom. och 2 mom., 9 § 1 mom., 24 kapitel 4 § 1 mom. och 2 mom., 25 kapitel 5 § 1 mom.; kyrkoordning 2 kapitel 6 § 1 mom., 5 kapitel 1 § 1 mom. och 6 §, 6 kapitel 3 § 1 mom., 2 mom. och 3 mom., 18 kapitel 1 §; förvaltningslag 6 §, 27 §, 28 § 1 mom. 7 punkten och 40 §; jämlikhetslag; grundlagen 11 §

= kirkkolaki 5 luku 1 §, 7 luku 5 § 2 mom., 17a luku 3 §, 19 luku 2 § 3 mom., 23 luku 8 § 1 mom. ja 2 mom., 9 § 1 mom., 24 luku 4 § 1 mom. ja 2 mom., 25 luku 5 § 1 mom.; kirkkojärjestys 2 luku 6 § 1 mom., 5 luku 1 § 1 mom. ja 6 §, 6 luku 3 § 1 mom., 2 mom. ja 3 mom., 18 luku 1 §; hallintolaki 6 §, 27 §, 28 § 1 mom. 7 kohta ja 40 §; laki miesten ja naisten välisestä tasa-arvosta; perustuslaki 11 §.

ECHR-6

Abstract

The Cathedral Chapter had ordered that X is suspended from his office as a priest for three months, because X had twice neglected his duties by refusing to hold a church service in cooperation with a female priest.X appealed against the decision to the administrative court and referred to his freedom of religion and conviction.He also claimed that the bishop, who had acted as a chairman of the Cathedral Chapter, should have been disqualified, because he had expressed his views on X's case in a report submitted to the Cathedral Chapter and in a newspaper interview before the decision on disciplinary measures against X was taken.

Regarding the impartiality of the Cathedral Chapter, the administrative court found that Article 6 of the ECHR was not applicable in this case, because, according to the case law of the European Court of Human Rights (Manuel Linde Falero v.Spain, decision of 22 June 2000), disputes relating to the fixed-term suspension from office of civil servants are outside the scope of Article 6.The disqualification of the bishop was thus assessed in accordance with the Administrative Procedure Act.The court found that in his report to the Cathedral Chapter, the bishop have given an account of his discussions with X and his fellow workers which had been conducted in order to find a solution to the problems in the parish caused by conflicting views on female priests.It is the duty of a bishop to oversee the work of the church and the priests and to safeguard the unity of the parish.The bishop's report to the Cathedral Chapter was thus a part of his official duties.Regarding the newspaper interview, the court found that the bishop had discussed the policy and practice of the church in general without taking a stand on X's case in particular.The court concluded that confidence in the bishop's impartiality had not been jeopardized on the grounds that he had been attending to his official duties.

Regarding the disciplinary punishment, the court held that when X was ordinated as priest, he had exercised his freedom of religion and had at the same time committed himself to following the law and order of the church.The Church Act and the Church Order do not contain any provisions which would allow church officials to leave their tasks and duties unattended because of their religious conviction or for reasons of conscience.Officiating a service is a central official task of a priest, and it is not the question of the priest exercising his or her right to practice his or her religion as guaranteed in the Constitution Act.The court continued that arranging working shifts on the basis of gender is as such disciminatory under the Equality Act.The Evangelic Lutheran Church of Finland allows female priests, so the Equality Act is applicable also when assigning duties and shifts pertaining to church services.

The court held that an employer has a right to order how a task is carried out.In the parish where X worked, shifts had previously been arranged, if necessary, so that male and female priests were not ordered to hold services together.However, this practice was abandoned after the Bishops' Conference had recommended that the priests' duties shall be assigned on an equal basis and irrespective of gender.The court found that changing the previous practice was justified, and X had no statutory right to demand the arrangement of shifts or a right to refuse to attend to his duties by referring to earlier practice.The administrative court concluded that in refusing to hold church services, X had acted contrary to his official duties and could be submitted to a disciplinary measure.The Supreme Administrative Court agreed with the administrative court and upheld its decision.

24.2.2010 / 21.10.2010 / RHANSKI