AS TO THE ADMISSIBILITY OF
Application No. 40013/98
by Frieder Willi Peter WALTER
against Germany
The European Commission of Human Rights (First Chamber) sitting
in private on 16 April 1998, the following members being present:
MM M.P. PELLONPÄÄ, President
N. BRATZA
A. WEITZEL
C.L. ROZAKIS
Mrs J. LIDDY
MM L. LOUCAIDES
B. MARXER
I. BÉKÉS
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
Mrs M. HION
Mr R. NICOLINI
Mrs M.F. BUQUICCHIO, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 2 December 1997
by Frieder Willi Peter WALTER against Germany and registered on
24 February 1998 under file No. 40013/98;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant, born in 1940, is a German national and resident
at Grasellenbach-Wahlen.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
On 9 September 1987 the Frankfurt am Main Directorate of the
German Federal Railways (Bundesbahndirektion) decided to dismiss the
applicant, a civil servant, on the ground of his unauthorised absence
from work. On 10 December 1987 the Frankfurt am Main Federal
Disciplinary Court (Bundesdisziplinargericht) quashed the decision of
9 September 1987 as the applicant, on account of pending appeal
proceedings against a transfer order, had not been obliged to work at
his new place of work. On 28 January 1988 the Federal Administrative
Court (Bundesverwaltungsgericht) dismissed the defendant body's appeal.
A further set of proceedings before the Federal Disciplinary
Court was discontinued in July 1988 after the defendant body's reversal
of its decision to stop payment of his salary as from December 1987.
On 18 April 1989, in a new set of proceedings, the Federal
Disciplinary Court confirmed the defendant body's decision to stop
payment of the applicant's salary as from June 1988 on the ground of
his unauthorised absence from work after having been requested to take
up work at his old place of work. On 1 August 1989 the Federal
Administrative Court dismissed the applicant's appeal.
On 7 February 1990 the Frankfurt am Main Directorate instituted
disciplinary proceedings against the applicant, charging him with a
violation of his duties as a civil servant, namely his unauthorised
absence from service, ordered his provisional suspension and a
reduction of his salary by 20%.
In June 1990 his early retirement was ordered.
On 29 June 1990 the Disciplinary Court dismissed the applicant's
appeal against the decision of 7 February 1990 as far as his suspension
was concerned, but quashed the reduction of his salary. On
4 October 1990 the Federal Administrative Court dismissed the
applicant's appeal.
On 8 March 1991 the Federal Disciplinary Court quashed the
Directorate's decision of June 1990 to reduce the applicant's pension
payments by 20%. On 1 July 1991, upon the Directorate's appeal, the
Federal Administrative Court amended the first instance judgment and
quashed the reduction as far as the amount was concerned.
On 17 September 1991 the Federal Disciplinary Court confirmed the
Directorate's decision of January 1991 ordering the reduction by 20%
of the applicant's salary for the period between March and June 1990.
On 3 April 1992 the Federal Administrative Court, upon the applicant's
appeal, quashed the said decisions.
On 2 September 1992 the Disciplinary Court dismissed the
applicant's request that the Directorate be ordered to render a new
decision on the reduction of his pension, pursuant to the decision of
the Federal Administrative Court of 1 July 1990. The applicant's
appeal was dismissed by the Federal Administrative Court on
4 November 1992.
On 11 April 1994 the bill of disciplinary charges against the
applicant was received by the Disciplinary Court.
The Directorate's decision of 21 April 1994 to reduce the
applicant's pension by 30% was quashed by the Disciplinary Court on
5 July 1994.
On 2 November 1994, in the main disciplinary proceedings, the
Disciplinary Court, having taken expert evidence as to the applicant's
state of health at the relevant time, found that the applicant had been
absent from work without authorisation and thereby violated his
professional duties as a civil servant, pursuant to the relevant
provisions of the Federal Civil Service Act (Bundesbeamtengesetz) and
imposed, as a disciplinary sanction, the deprivation of his pension
entitlement.
On 12 July 1997 the Federal Administrative Court dismissed his
appeal.
On 5 November 1997 the Federal Constitutional Court, leaving open
the question of a reinstatement of the proceedings, refused to
entertain the applicant's constitutional complaint.
COMPLAINTS
The applicant complains under Article 6 of the Convention about
the length of the disciplinary proceedings against him.
THE LAW
The applicant complains about the length of the disciplinary
proceedings. He relies on Article 6 (Art. 6) which, as far as
relevant, provides as follows:
"1. In the determination of his civil rights and obligations or
of any criminal charge against him, everyone is entitled to a ...
hearing within a reasonable time by [a] ... tribunal ..."
The Commission recalls that disputes relating to the recruitment,
careers and termination of service of public servants are as a general
rule outside the scope of Article 6 para. 1 (Art. 6-1). However, State
intervention by means of a statute or delegated legislation has not
prevented the Convention organs from finding in several cases that the
right in issue was a civil one. Thus, notwithstanding public-law
aspects, Article 6 para. 1 (Art. 6-1) applies to disputes concerning
an obligation on the State to pay a pension to a public servant or a
public servant's spouse in accordance with the legislation because, in
performing this obligation, the State is not using discretionary powers
and may be compared, in this respect, to an employer who is a party to
a contract of employment governed by private law (cf. Eur. Court HR,
Francesco Lombardo and Giancarlo Lombardo v. Italy judgments of
26 November 1992, Series A no. 249-B, p. 26, para. 17, and no. 249-C,
p. 42, para. 16; Massa v. Italy judgment of 24 August 1993, Series A
no. 265-B, para. 26; Neigel v. France judgment of 17 March 1997,
Reports 1997-II, no. 32, para. 43; Soldani v. Italy judgment of 4
September 1997, Reports 1997-V, no. 48, para. 18).
The present case relates to disciplinary proceedings against the
applicant for failure to comply with his duties as a civil servant.
As the applicant had in the meanwhile retired, the disciplinary
sanction could only relate to his pension entitlement. These matters
belong to the sphere of a State's discretionary powers in organising,
as a matter of public law, the civil service. Consequently, no
determination of the applicant's "civil rights" was at issue (cf.
No. 23576/94, Dec. 29.11.95, unpublished; and, mutatis mutandis,
Soldani v. Italy judgment, op. cit., para. 19).
Furthermore, the applicant's suspension did not involve a
determination of any "criminal charge" against him.
Article 6 (Art. 6) does not, therefore, apply to the proceedings
complained of by the applicant.
It follows that the application is incompatible ratione materiae
with the provisions of the Convention within the meaning of Article 27
para. 2 (Art. 27-2).
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
M.F. BUQUICCHIO M.P. PELLONPÄÄ
Secretary President
to the First Chamber of the First Chamber
Full & Egal Universal Law Academy