ŠIMKA v. SLOVAKIA

THIRD SECTION

DECISION

Application no. 49131/10
Vladislav ŠIMKA
against Slovakia

The European Court of Human Rights (Third Section), sitting on 11 June 2013 as a Chamber composed of:

Josep Casadevall, President,
Alvina Gyulumyan,
Corneliu Bîrsan,
Ján Šikuta,
Luis López Guerra,
Nona Tsotsoria,
Johannes Silvis, judges,
and Marialena Tsirli, Deputy Section Registrar,

Having regard to the above application lodged on 4 August 2010,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Mr Vladislav Šimka, is a Slovak national who was born in 1956 and lives in Bratislava. He was represented before the Court by Ms V. Strážnická, a lawyer practising in Bratislava.

A. The circumstances of the case

2. The facts of the case, as submitted by the applicant, may be summarised as follows.

1. Administrative decisions removing the applicant from post and terminating his civil servant status

3. The applicant held the post of Head of Service Office (vedúci služobného úradu) at the Ministry of the Interior.

4. On 1 June 2005 the President of the State Civil Service Office (Úrad pre štátnu službu) removed the applicant from that post with effect from 2 June 2005, with reference to section 10(4) and (11)(d) as well as section 27(e) of the State Civil Service Act 2001. The decision indicated that it had been taken at the behest of the Minister of the Interior.

5. Subsequently the applicant declined the offer of a transfer to a different position within the Ministry of the Interior.

6. On 8 June 2005 the Ministry of the Interior issued a decision indicating that the applicant had lost the status of State civil servant on that day.

7. On 15 June 2005 the applicant appealed against the decisions of 1 June 2005. He argued that neither the decision nor the Minister’s letter to which it referred gave any reasons for his removal. The decision interfered with his fundamental rights and was discriminatory. In particular, section 10(11)(d) of the State Civil Service Act 2001 allowed for removal of the then thirteen heads of different ministries Offices solely on the recommendation of the Minister concerned. However, some 40,000 State civil servants holding different posts could only be removed for reasons provided for by the law. The decision to remove the applicant without justification was also contrary to the principles underlying the Administrative Proceedings Act 1967.

8. On 21 June 2005 the applicant appealed against the decision terminating his status as State civil servant. He gave reasons for his appeal against the decision.

9. On 29 June and 24 August 2005 respectively the President of the State Civil Service Office dismissed both the applicant’s appeals. Those decisions stated that under section 10(11)(d) of the State Civil Service Act 2001 the President of the State Civil Service Office was obliged to remove the head of a ministry office at the behest of the Minister concerned. There was no requirement for reasons to be given for such a recommendation. The subsequent termination of the applicant’s status as State civil servant conformed to section 40(2)(c) of the State Civil Service Act 2001.

2. Judicial review and Constitutional Court proceedings

(a) Action of 30 August 2005

10. On 30 August 2005 the applicant brought an action with the Supreme Court. He sought a review of the administrative decisions of 1 June and 29 June 2005 removing him from the post of Head of Office at the Ministry of the Interior. He argued that he had been discriminated against in that he had been removed without reasons being given. The applicant proposed that the Supreme Court should stay the proceedings on his action and request the Constitutional Court to examine the conformity of section 10(11)(d) of the State Civil Service Act 2001 with, inter alia, Article 36(b) of the Constitution, Article 14 of the Convention, and directives of the European Union.

11. On 28 September 2005 the Supreme Court transferred the case to the Bratislava Regional Court for reasons of jurisdiction.

12. On 30 July 2007 the Bratislava Regional Court stayed the proceedings, as it considered the relevant provision of the State Civil Service Act 2001 to run contrary to the Constitution and Article 14 of the Convention. It referred that issue for determination by the Constitutional Court.

13. On 9 April 2008 the Constitutional Court discontinued the proceedings, because section 10(11)(d) of the State Civil Service Act 2001 had been repealed with effect from 1 January 2007. The decision stated that the Constitutional Court’s power to review conformity of legal rules with the Constitution extended exclusively to those rules which were actually in force. Three constitutional judges attached a dissenting opinion to that conclusion.

14. On 2 October 2008 the Bratislava Regional Court dismissed the applicant’s action. It found that the applicant had been removed at the behest of the Minister of the Interior pursuant to section 10(11)(d) of the State Civil Service Act 2001, as in force at the relevant time. There had been no breach of the applicable law in that context.

15. The applicant appealed. He noted that the Regional Court itself had expressed the view that the provision under which the applicant had been removed ran contrary to the Constitution and international treaties by which Slovakia was bound. In the absence of a decision of the Constitutional Court on conformity with the Constitution of the relevant legal rule, the issue fell to be determined by the ordinary court dealing with the case. To proceed in a different manner would amount to a denial of justice.

16. On 21 October 2009 the Supreme Court upheld the first-instance judgment. It held that the applicant’s removal from post had been in accordance with the law. The ordinary courts within the administrative judiciary were not called upon to determine conflicts of law. Their role was restricted to examining whether administrative decisions complied with applicable law.

(b) Action of 13 September 2005

17. On 13 September 2005 the applicant brought an action with the Supreme Court in which he challenged the decisions of 8 June and 24 August 2005 terminating his status as civil servant. With reference to the reasons for his action of 30 August 2005 seeking review of the administrative decisions, the applicant argued that the contested decisions were unlawful and contrary to the Constitution and international treaties by which Slovakia was bound. As in his previous action, the applicant asked for the proceedings to be stayed and for the Constitutional Court to be petitioned for a review of the constitutionality of the relevant provision of the State Civil Service Act 2001.

18. On 26 October 2005 the Supreme Court transferred the case to the Bratislava Regional Court for reasons of jurisdiction.

19. On 2 October 2008 the Regional Court dismissed the action. It noted that, following his removal as Head of Office at the Ministry of the Interior, the applicant had been offered three different posts at that Ministry. After he had declined those offers, his status as State civil servant had been terminated pursuant to section 40(2)(c) of the State Civil Service Act 2001. There had been no breach of the applicable law in that context.

20. On 30 October 2008 the applicant appealed. He argued that his removal from the position of Head of Office had been unlawful and that judicial proceedings concerning that issue were pending. The applicant asked for the proceedings to be discontinued pending the final determination of the action concerning the lawfulness of his removal.

21. On 21 October 2009 the Supreme Court upheld the first-instance judgment. With reference to the reasons for its judgment of 21 October 2009 it concluded that the applicant’s status as civil servant had been terminated in accordance with the law.

(c) Complaint to the Constitutional Court

22. On 18 January 2010 the applicant lodged a complaint with the Constitutional Court. He alleged that the Supreme Court’s two judgments of 21 October 2009 breached his rights under Articles 6 § 1 and 14 of the Convention, as well as their constitutional equivalents, and also his right under Article 36b of the Constitution to protection against arbitrary dismissal and discrimination in employment. In particular, the applicant asserted that the ordinary courts had decided arbitrarily, while disregarding the discriminatory nature of the legal provision pursuant to which he had been removed.

23. On 5 February 2010 the Constitutional Court dismissed the complaint. It noted that the primary issue was conformity of the relevant statutory provision with the Constitution and international treaties. However, such decisions lay within the power of the Constitutional Court in plenary session, and they could not be addressed in the context of individual complaints under Article 127 of the Constitution. In those circumstances, both the Constitutional Court and the ordinary courts were bound by the presumption that the relevant statutory provision was in conformity with the Constitution.

24. The Constitutional Court concluded that in the judgments complained of the Supreme Court had given relevant reasons for its conclusions which were not arbitrary.

B. Relevant domestic law

1. Constitutional provisions

25. Article 7 § 5 provides, inter alia, that international treaties on human rights ratified and promulgated in accordance with the law take precedence over laws.

26. Article 36(b) guarantees protection for employees against arbitrary dismissal and discrimination.

27. Pursuant to Article 125 § 1(a), the Constitutional Court decides on conformity of laws with the Constitution, constitutional laws, and international treaties approved by the National Council which have been duly ratified and promulgated.

28. Article 127 § 1 entitles the Constitutional Court to decide on complaints lodged by natural or legal persons alleging a violation of their fundamental rights or freedoms or of human rights and fundamental freedoms enshrined in international treaties ratified by Slovakia, unless the protection of such rights and freedoms falls within the jurisdiction of a different court.

29. Article 144 § 1 provides for independence of judges in the exercise of their function. When deciding on cases judges are bound by the Constitution, constitutional laws and international treaties referred to, inter alia, in Article 7 § 5 of the Constitution and laws.

30. Pursuant to Article 144 § 2, where a court considers that a legally binding legal rule or a part thereof bearing on the matter before it is contrary to the Constitution, a constitutional law, an international treaty within the meaning of Article 7 § 5, or a law, it is to stay the proceedings and petition for proceedings to be brought under Article 125 § 1 of the Constitution. The legal opinion set out in the Constitutional Court’s decision is binding on the court concerned.

31. Under Article 152 § 4, the interpretation and application of constitutional laws, laws and other generally binding legal rules must conform to the Constitution.

2. The Code of Civil Procedure

32. Pursuant to Article 109 § 1(b), a court stays proceedings where, before determination of the merits, it concludes that the generally binding legal rule bearing on the case before it is contrary to the Constitution, a law, or an international treaty by which Slovakia is bound. In such an event it petitions the Constitutional Court for determination of that issue.

3. The State Civil Service Act 2001 (Law no. 312/2001 Coll.)

33. At the material time the relevant provisions of the State Civil Service Act 2001 (Zákon o štátnej službe a zmene niektorých zákonov) provided as follows.

34. Pursuant to section 1(1), the purpose of the Act is to govern legal relations in the context of the State civil service, namely the rights and obligations of the State and the civil servant in that context. Subsection 2 of section 1 lists professionalism, political independence and impartiality among the principles on which the State civil service is built.

35. Section 7(1)(a) lists ministries and other central State administration bodies as “service offices” (služobný úrad) for the purpose of the Act.

36. Pursuant to section 10(1), the head of a service office is the hierarchical superior of all the employees working in that service office. Subsection 3 of section 10 provides for appointment of heads of service offices at ministries at the behest of the minister concerned from among applicants who have been successful in the selection process.

37. Section 10(11) provides for dismissal of a head of a service office at a ministry in the following cases:

(a) failure to meet objectives set;

(b) inability, for health reasons, to carry out the required duties for more than six months;

(c) at his or her own written request;

(d) on the Minister’s written recommendation; and

(e) where the service office concerned has ceased to exist.

38. Sub-section 12 of section 10 provides for a head of a service office who has been removed to be transferred to a different appropriate civil service post unless a different agreement is reached.

39. Section 40(2)(c) allows for termination of a person’s status as a State civil servant where a head of a service office who has been removed cannot be transferred to an equivalent post because no such equivalent post exists, and where no other agreement has been reached. Two months’ salary is to be paid to the person concerned in such a case.

40. With effect from 1 January 2007 the State Civil Service Act 2001 was amended in that, inter alia, subsections 9 to 13 were deleted from section 10. The reports accompanying the draft amendments indicated that their purpose was to eliminate shortcomings resulting from earlier amendments and to harmonise the removal of heads of service offices who fell under the direct managerial responsibility of politically nominated superiors at ministries and other central authorities of the State administration.

COMPLAINTS

41. The applicant complained under Article 6 § 1 of the Convention that:

(i) the legal provision under which he had been removed was contrary to the Constitution and international treaties by which Slovakia is bound, and that he had been unable to have the administrative decisions reviewed by courts from that perspective; and

(ii) the absence of any reasons in the Minister’s request for his removal and the related administrative decisions prevented him from effectively protecting his rights in the ensuing judicial proceedings.

42. The applicant alleged a breach of Article 14 of the Convention in conjunction with Article 6 § 1 in that:

(i) he had been discriminated against on the ground of his position as Head of Office at a ministry, as the law then in force allowed for his removal without reasons being given, unlike in the case of other civil servants; and

(ii) the courts had failed to address that issue, despite the fact that the relevant law had been changed in the meantime, due to shortcomings which the applicant himself had indicated in actions he had taken.

THE LAW

A. Alleged violation of Article 6 § 1 of the Convention

43. The applicant complained that his right to a fair hearing had been breached in the above proceedings. He relied on Article 6 § 1, the relevant part of which reads as follows:

“ In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by a[n] ... tribunal” ...

44. The relevant principles established by the Court’s practice can be summed up as follows.

45. There is no right under the Convention to employment in civil service. This does not mean, however, that a person who has been appointed as a civil servant cannot complain of being dismissed if that dismissal violates one of his or her rights under the Convention (see Wille v. Liechtenstein [GC], no. 28396/95, § 41, ECHR 1999‑VII, with further references).

46. Article 6 § 1 of the Convention may be relied on by individuals who claim that interference with the exercise of one of their civil rights has taken place and is unlawful, and who complain that they have not had the opportunity to submit that claim to a court meeting the requirements of Article 6 § 1. It does not in itself guarantee any particular content for “civil rights and obligations” in the substantive law of the Contracting States, and the Court may not create by way of interpretation of Article 6 § 1 a substantive right which has no legal basis in the State concerned (see, for example, Roche v. the United Kingdom [GC], no. 32555/96, §§ 117 and 119, ECHR 2005‑X). For Article 6 § 1 in its “civil” limb to be applicable, there must be a dispute over a “right” which can be said, at least on arguable grounds, to be recognised under domestic law. The dispute must be genuine and serious; it must relate not only to the actual existence of a right but also to its scope and the manner of its exercise. The outcome of the proceedings must be directly decisive for the right in question (see Balmer-Schafroth and Others v. Switzerland, 26 August 1997, § 32, Reports of Judgments and Decisions 1997‑IV, with further references).

47. The Court has held that an applicant’s status as a civil servant can justify exclusion from the protection embodied in Article 6, subject to two conditions. Firstly, the State in its national law must have expressly excluded the post or category of staff in question from access to court. Secondly, the exclusion must be justified on objective grounds in the State’s interest. Otherwise, the presumption of the protection of Article 6 should exist (see Vilho Eskelinen and Others v. Finland [GC], no. 63235/00, § 62, ECHR 2007‑II; Olujić v. Croatia, no. 22330/05, §§ 32-34, 5 February 2009; and Harabin v. Slovakia, no. 58688/11, §§ 120-122, 20 November 2012).

48. In the present case the applicant, by two separate decisions, was removed as Head of Office at the Ministry of the Interior and his status as State civil servant was subsequently terminated. Both decisions were later reviewed by ordinary courts at two levels and, ultimately, the Constitutional Court dealt with the applicant’s complaint about a breach of his rights under the Constitution and the Convention in that context.

49. Thus, there was a dispute concerning the applicant’s removal and subsequent termination of his civil servant status which was not excluded from the review of domestic courts. In view of the criteria established in Vilho Eskelinen and Others, cited above (see paragraph 47), the Court accepts that Article 6 § 1 is applicable to those proceedings under its civil limb.

50. The applicant contended that the relevant statutory provision allowed for his removal on the written recommendation of the Minister, for which no reasons needed to be given. He argued that as a result he had in fact been prevented from effectively protecting his rights in the ensuing proceedings, as the judicial review had failed to address the relevant issues, namely conformity of the relevant statutory provision with the Constitution and international treaties.

51. Thus, the substance of the applicant’s complaint concerns conformity with the Constitution and international treaties of the relevant statutory provision, in view of the absence of a requirement for indication of reasons for his removal, and the fact that there was no way to have that issue judicially addressed and determined domestically.

52. However, as indicated in paragraphs 45 and 46 above, there is no right to employment in civil service under the Convention, and Article 6 does not in itself guarantee any particular content for “civil rights and obligations” in the substantive law of the Contracting States. In Roche, (judgment cited above, § 119) the Court held that Article 6 can, in principle, have no application to substantive limitations on the right existing under domestic law.

53. The extent to which the Court is entitled to deal with the applicant’s complaint under Article 6 § 1 is therefore limited to determining whether the guarantees of that Article were respected in the context of the review of the decisions on his removal in the light of the statutory provision then in force. Article 6 does not authorise it to give any legal assessment to the quality of that provision as such, or its alleged shortcomings in the context of the complaint under examination. In that respect the Court reiterates that in Vilho Eskelinen and Others (judgment cited above, § 64) it noted that its conclusion concerning the applicability of Article 6 was without prejudice to the question of how the various guarantees of that Article should be applied in disputes concerning civil servants.

54. The applicant was removed from post under section 10(11)(d) of the State Civil Service Act 2001, as in force at the relevant time. That provision allowed for removal of a head of office at a ministry on the Minister’s written recommendation. It did not require any reasons to be given for such a recommendation. Consequently, the review by administrative courts of the applicant’s removal was limited to ascertaining whether the statutory conditions had been met. Since the relevant statutory provision did not require reasons to be given for the Minister’s proposal, it follows that that aspect of the case could not be addressed in those proceedings.

55. The ordinary courts assessed the position in the case and indicated why they considered the applicant’s removal and subsequent termination of his status as civil servant lawful. Like the Constitutional Court, the Court finds no appearance of unfairness or arbitrariness in the proceedings which would be contrary to the guarantee of a fair hearing laid down in Article 6 § 1 of the Convention.

56. For reasons set out above, the Court further considers that no issue under Article 6 of the Convention arises as regards the applicant’s complaint that the courts failed to address his argument that there was a conflict between the relevant statutory provision and his rights under Articles 6 and 14 of the Convention, the constitutional equivalents of those rights as well as his rights under Article 36(b) of the Constitution.

57. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

B. Alleged violation of Article 14 in conjunction with Article 6 § 1 of the Convention

58. The applicant further complained that he had been discriminated against on the ground of his position as Head of Office at a ministry, as the relevant statutory provision allowed for his removal without reasons being given, unlike in the case of other civil servants. He also complained that the courts had failed to address that issue. The applicant relied on Article 14 of the Convention, which reads as follows:

“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

59. However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence (see, in particular, paragraphs 45-46 and 52-53 above), the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.

60. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Marialena TsirliJosep Casadevall
Deputy RegistrarPresident

 

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