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ISAACS v. THE UNITED KINGDOM

Doc ref: 22393/93 • ECHR ID: 001-2811

Document date: December 1, 1993

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Cited paragraphs: 0
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ISAACS v. THE UNITED KINGDOM

Doc ref: 22393/93 • ECHR ID: 001-2811

Document date: December 1, 1993

Cited paragraphs only

AS TO THE ADMISSIBILITY OF

Application No. 22393/93

by Jack ISAACS

against the United Kingdom

The European Commission of Human Rights sitting in private on

1 December 1993, the following members being present:

MM. A. WEITZEL, President

C.L. ROZAKIS

F. ERMACORA

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

Mrs. J. LIDDY

MM. M.P. PELLONPÄÄ

B. MARXER

G.B. REFFI

B. CONFORTI

N. BRATZA

I. BÉKÉS

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 24 February 1993

by Jack ISAACS against the United Kingdom and registered on

29 July 1993 under file No. 22393/93;

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 is a British citizen born in 1946 and resident in

London. The facts as submitted by the applicant may be summarised as

follows.

On 1 April 1991, the applicant took up employment as a warder at

the National Army Museum.

On 15 November 1992, a robbery took place at the museum in which

his employers suspected that he was implicated. The applicant was

questioned by the police but no charges were ever brought.

The applicant was suspended from his duties on 26 November 1992.

Following a disciplinary hearing on 12 January 1993, the applicant was

dismissed. He was informed that the ground for the dismissal was that

in light of information received from the police and the museum's own

investigation he was found to be implicated in the robbery, which

amounted to gross misconduct and a fundamental breach of his contract

of employment.

The applicant believed that the real reason for his dismissal was

his activity as officer of a trade union NUCPS. An opinion dated

17 March 1993 by counsel gave the view however that there was no

evidence to support such a claim under section 153 of the Trades Union

(Law Reform) Act 1992 which would be highly unlikely to succeed. He was

also informed that since he had been employed for less than 2 years he

would be unable pursuant to the provisions of the Employment Protection

(Consolidation) Act to bring proceedings for unfair dismissal on other

grounds.

COMPLAINTS

The applicant complains of being dismissed by means of an

allegation of a criminal charge in which process his employers refused

to supply him with documents or witnesses and by which he was found

guilty without due process of law. It also resulted in the loss of his

job and has affected his future employment prospects.

The applicant invokes Article 6 paras. 2 and 3 (d) of the

Convention.

THE LAW

1. The applicant complains that he was deprived of the presumption

of innocence and the opportunity to examine witnesses or evidence

relating to the accusation against him in the dismissal procedure.

Article 6 (Art. 6) of the Convention provides, as relevant, in

this case:

"1. In the determination of his civil rights and

obligations or of any criminal charge against him, everyone

is entitled to a fair and public hearing within a

reasonable time by an independent and impartial tribunal

established by law....

2. Everyone charged with a criminal offence shall be

presumed innocent until proved guilty according to law.

3. Everyone charged with a criminal offence has the

following minimum rights:

...

d. to examine or have examined witnesses against him and to

obtain the attendance and examination of witnesses on his behalf

under the same conditions as witnesses against him..."

The Commission recalls that the applicant was dismissed by his

employer for gross misconduct and fundamental breach of contract,

following a disciplinary hearing, on the basis that it was considered

that he was implicated in a robbery. The Commission considers that

dismissal for suspicion of criminal offences by a state employer does

not involve the determination of a criminal charge and is not against

the principle of the presumption of innocence, the matter relating to

the employment and contractual sphere and not to the context of actual

criminal proceedings (No. 11882/85, Dec. 7.10.87, D.R. 54 p.162).

The Commission concludes that these complaints do not fall within

the scope of Article 6 para. 1 (Art. 6-1) of the Convention. It follows

that they are incompatible ratione materiae with the provisions of the

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

Convention.

2. Insofar as it is implicit in the applicant's complaints that he

was unable to challenge his dismissal, the Commission has examined

whether he has been denied access to court in relation to the

determination of any civil rights or obligations within the meaning of

Article 6 para. 1 (Art. 6-1) of the Convention (see above).

The Commission recalls that the applicant considered that his

dismissal was in fact motivated by his employer's disapproval of his

trade union activities. In this respect, the applicant could under the

applicable legislation have instituted proceedings before the

Industrial Tribunal. While counsel was of the opinion that a claim was

not likely to succeed for reasons of lack of evidence, this cannot be

considered as thereby depriving him of access to court.

The Commission further notes that the applicant was unable to

institute proceedings before the Industrial Tribunal alleging that his

dismissal was unfair for any other reason since the provisions of the

Employment Protection (Consolidation) Act 1978 which afford a right not

to be unfairly dismissed only apply to be persons who have been

employed for a period exceeding 2 years. The Commission recalls however

that Article 6 para. 1 (Art. 6-1) cannot be interpreted as imposing

requirements as to the content of the substantive law of Contracting

States (see eg. Eur. Court H.R. Lithgow and others judgment of 8 July

1986, Series A no. 102, p. 70 para. 192). In particular it cannot be

construed as providing employment rights where the domestic law does

not do so (see eg. No. 15084/89, Dec. 2.10.89, unpublished). In these

circumstances, the Commission finds that the applicant did not enjoy

a "civil right" within the meaning of Article 6 para. 1 (Art. 6-1) of

the Convention.

It follows that this aspect of the application is incompatible

ratione materiae also with the provisions of the Convention within 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.

Secretary to the First Chamber President of the First Chamber

(M.F. BUQUICCHIO) (A. WEITZEL)

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