Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 18117/91

by S.G.

against Germany

The European Commission of Human Rights sitting in private

on 14 April 1994, the following members being present:

MM. C.A. NØRGAARD, President

S. TRECHSEL

A. WEITZEL

F. ERMACORA

A.S. GÖZÜBÜYÜK

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

Mrs. G.H. THUNE

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

B. MARXER

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

N. BRATZA

I. BÉKÉS

J. MUCHA

E. KONSTANTINOV

D. SVÁBY

Mr. H.C. KRÜGER, Secretary to the Commission

Having regard to Article 25 of the Convention for the

Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 9 April 1991

by S.G. against Germany and registered on 24 April 1991 under

file No. 18117/91;

Having regard to :

- reports provided for in Rule 47 of the Rules of Procedure

of the Commission ;

- the observations submitted by the respondent Government on

16 December 1991 and the observations in reply submitted by

the applicant on 10 February 1992 ;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a German citizen, born in 1960 and living

in Fürth. He is represented by Mr. U. Fischer, a lawyer in

Frankfurt am Main.

The applicant was working from 3 September 1979 to 2 March

1982 as an apprentice with Mercedes-Benz A.G. By letter of 15

October 1981 the company informed the applicant that it was not

in a position to offer him employment after the termination of

his apprenticeship. The applicant successfully finished his

professional training programme on 22 January 1982.

He then brought a Labour Court action against Mercedes-Benz

requesting the court to find that his employment with the

defendant continued after 22 January 1982 and that he was to be

given work as a mechanic. He pointed out that all other

apprentices had been given contracts. He argued that the refusal

in his case was arbitrary because it constituted a sanction for

having expressed a political opinion. The applicant had in fact

published an article in the journal edited by the pupils of his

professional training school. The article related to a

demonstration against the construction of a nuclear power plant

in Brokdorf. It stated inter alia: "We do not at all intend to

dissociate ourselves from so-called militant demonstrations. The

violence exerted by the State and industry in this case justifies

any kind of opposition. This is not to be understood as an

incitement to violent acts but meant to make it clear that

opponents to nuclear power as well as squatters and other persons

awkward for the State should not let themselves be divided into

`violent' and `non-violent' camps. The fight against nuclear

death should by now involve everybody and will continue after 28

February not only in Brokdorf, but anywhere in this world."

On 23 March 1982 the Stuttgart Labour Court (Arbeitsgericht)

granted the action. Applying the principle of equal treatment

(Gleichbehandlungsgrundsatz) and taking into account that all

other apprentices had been given employment, the Court considered

that the refusal vis-à-vis the applicant was not objectively

justified (sachlich gerechtfertigt) as the applicant's political

opinion as expressed in the article in question did not justify

the conclusion that the applicant would not carry out his work

in a loyal and correct manner.

Following an appeal lodged by the defendant, the Regional

Labour Court (Landesarbeitsgericht) of Baden-Württemberg quashed

the first instance judgment on 16 September 1982 and dismissed

the action. This Court held that the principle of freedom of

contract (Vertragsfreiheit) prevailed while the principle of

equal treatment mainly applied to those who were given an

employment contract.

An appeal on points of law (Revision) was rejected by the

Federal Labour Court (Bundesarbeitsgericht) on 5 April 1984.

The applicant then lodged a constitutional complaint arguing

that the decisions given against him violated the principle of

equality before the law and the right to protection of freedom

of opinion.

The applicant was informed by the Federal Constitutional

Court on 3 May 1989 that due to the Court's workload it was

impossible to foresee when his case would be decided.

On 19 May 1992 the Federal Constitutional Court quashed the

judgments complained of considering that they violated the

applicant's right to freedom of expression.

On 11 November 1992 the Federal Labour Court gave judgment

in the applicant's favour, the defendant having recognised his

claim to be well-founded (Anerkennungsurteil).

On 23 February 1993 the parties in the Labour Court

proceedings concluded a friendly settlement. The applicant's

former employer agreed to pay compensation in the amount of DM

80,000 for the applicant's loss of earnings.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 9 April 1991 and

registered on 24 April 1991.

On 3 September 1991 the Commission decided to communicate

the application to the respondent Government under Rule 48 para.

2 (b) of its Rules of Procedure.

The Government's observations were submitted by letter dated

16 December 1991 and the applicant's reply by letter of

10 February 1992.

On 16 May 1992 the Commission decided to adjourn the

proceedings pending the outcome of the Ruiz Mateos case before

the European Court of Human Rights. Judgment in that case was

given on 23 June 1993 (Eur. Court H.R., Ruiz Mateos judgment of

23 June 1993, Series A no. 262).

COMPLAINTS

Invoking Article 6 para. 1 of the Convention, the applicant

complains of the length of the proceedings.

THE LAW

The applicant complains of the length of the proceedings

which he instituted in the spring of 1982 and which ended on

11 November 1992. He invokes Article 6 para. 1 (Art. 6-1) of the

Convention, the relevant part of which reads as follows:

"In the determination of his civil rights and obligations

... everyone is entitled to a fair and public hearing

within a reasonable time by an independent and impartial

tribunal established by law."

It is uncontested that the proceedings in the present case

concern the determination of a civil right.

The period to be examined under Article 6 (Art. 6) of the

Convention, exceeds ten years.

After conducting a preliminary examination of the facts and

the submissions of the parties, the Commission considers that the

application raises complex factual and legal issues which require

an examination of the merits. The Commission concludes,

therefore, that the application is not manifestly ill-founded

within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention. No other grounds for declaring the application

inadmissible have been established.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION ADMISSIBLE.

Secretary to the Commission President of the

Commission

(H.C. Krüger) (C.A. Nørgaard)

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S.G. v. GERMANY

S.G. v. GERMANY

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