Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 13114/87

by H.

against the Netherlands

The European Commission of Human Rights sitting in private

on 13 April 1989, the following members being present:

MM. S. TRECHSEL, Acting President

F. ERMACORA

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

J. CAMPINOS

H. VANDENBERGHE

Mrs. G.H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

Mr. L. LOUCAIDES

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 6 April 1987 by

H. against the Netherlands and registered on 4 August 1987 under file

No. 13114/87;

Having regard to the report provided for in Rule 40 of the

Rules of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Dutch citizen, born in 1947 and presently

residing on the island of Curaçao in the Netherlands Antilles. In

the proceedings before the Commission he is represented by Mr. Errol

J. Maduro, a lawyer practising on the island of Curaçao.

The facts, as submitted by the applicant, may be summarised as

follows:

Since 1 June 1964 the applicant has been in the civil

service. On 1 December 1978 he finished his studies of physiotherapy

at the University of Colombia. On 14 December 1978 he was promoted to

clerk.

It appears that, on the basis of his Colombian university

degree, the applicant brought an action for promotion as from 1

December 1979 to deputy officer, which is a particular grade in

the civil service. On 8 October 1979 the Civil Servants Court

in the Netherlands Antilles (Gerecht in Ambtenarenzaken in de

Nederlandse Antillen) rejected the applicant's action, holding that

the applicant's degree should first be evaluated.

By letter of 19 June 1985 the applicant requested the Governor

of the Netherlands Antilles to promote him to a grade in accordance

with his university degree.

On 22 August 1985 the applicant brought an action, inter alia

for promotion, against the Governor before the Civil Servants Court

because he had not received an answer to his letter nor had he been

promoted. He submitted, inter alia, that those who had a degree from

the University of the Netherlands Antilles were appointed as or

promoted to deputy officer and that the failure to do so in his case

was in violation of the principle of equality.

In its decision of 5 November 1985 the Court declared the

applicant's claim for promotion inadmissible, insofar as he claimed

promotion as from 14 December 1979 because the Court had already

rejected a similar claim on 8 October 1979, and insofar as he claimed

promotion as from 1 July 1985 because, inter alia, it could not yet be

assumed that the Governor had refused this.

The applicant appealed to the Civil Servants Council of Appeal

(Raad van Beroep in Ambtenarenzaken). By decision of 12 March 1986

the Council of Appeal rejected the appeal.

On 10 June 1986 the applicant requested the Council of Appeal

to revise its decision. He submitted that one of the members of the

Council of Appeal had been nominated Deputy Governor on 1 March 1986

and that the Governor had been the defendant in his case. He invoked

Article 6 of the Convention.

In its decision of 16 October 1986 the Council of Appeal

rejected the request for a revision of its decision. It considered

that the decision, pronounced on 12 March 1986, was taken in

chambers on 12 February 1986 and that the member of the Council of

Appeal concerned did not belong to the administration at that time.

On 1 December 1986 the applicant again brought an action for

promotion against the Governor before the Civil Servants Court.

In its decision of 14 May 1987 the Court quashed the refusal

of the Governor to promote the applicant because it found an

evaluation of applicant's studies, finished on 19 February 1987,

to be inadequate.

On 9 June 1987, the Governor appealed to the Civil Servants

Council of Appeal. On 4 September 1987 the Council held a hearing

during which the applicant challenged one of the members of the

Council of Appeal because, under national law, only persons with the

Dutch nationality and residing in the Netherlands Antilles could be

nominated to the Council. At the time of the hearing, the member of

the Council concerned resided in Aruba, this no longer being a part of

the Netherlands Antilles.

By interlocutory decision of 16 September 1987 the Council of

Appeal rejected the challenge. The member of the Council, who was

challenged by the applicant, participated in this decision.

In its decision of 13 November 1987 the Council of Appeal

quashed the decision of the Civil Servants Court of 14 May

1987 and declared the applicant's original action ill-founded.

By letters of 24 July 1987 and 18 September 1987 the applicant

requested the President of the Civil Servants Council of Appeal

for the records of the hearings held in 1986 in his case,

because he intended to send these records to the European Commission

of Human Rights. By letter of 18 September 1987 the President refused

this request.

On 8 March 1988 the applicant instituted summary proceedings

requesting the records. By decision of 25 March 1988 the Court in

First Instance of the Netherlands Antilles (Het Gerecht in Eerste

Aanleg van de Nederlandse Antillen) rejected the request. It held,

inter alia, that, contrary to the requirements of national law, no

records of the proceedings had been made but that, as the registrar

who was present at the hearings concerned had died, it was impossible

to make them now. It noted that the registrar's notes had been made

available to the applicant.

COMPLAINTS

1. The applicant complains that his case was not dealt with by an

independent and impartial tribunal within the meaning of Article 6

para. 1 of the Convention. He brought an action against the Governor

of the Netherlands Antilles. At the moment the decision by the

Council of Appeal was pronounced one of the members of this Council

was deputy Governor.

The applicant submits that in the present case a civil right

is involved since he had requested equal treatment, i.e. to have the

same position as other civil servants with a university degree.

2. The applicant complains that no records were made of the

hearings held in his case by the Civil Servants Council of Appeal in

1986. He submits that this is contrary to the requirements of

publicity. He invokes Article 6 para. 1 of the Convention.

3. The applicant complains that the member of the Council of

Appeal who was challenged by the applicant, was one of the members of

the Council of Appeal participating in the decision on the challenge.

He submits that this decision was not taken by an independent and

impartial tribunal. He invokes Article 6 para. 1 of the Convention.

THE LAW

The applicant has complained that his case was not heard by an

independent and impartial tribunal, that no records were made of the

hearings held in his case by the Civil Servants Council of Appeal in

1986, and that the member of the Council of Appeal who was challenged

by him, was one of the members who participated in the decision on the

challenge. He has invoked Article 6 (Art. 6) of the Convention.

The relevant part of Article 6 para. 1 (Art. 6-1) of the Convention

provides as follows:

"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.

Judgment shall be pronounced publicly...".

However, the Commission notes that the proceedings of which

the applicant complains concern his access to a particular grade in

the civil service.

The Commission recalls its constant case-law, according to

which litigation concerning access to, or dismissal from civil service

falls outside the scope of Article 6 para. 1 (Art. 6-1) of the

Convention (see, for example, No. 7374/76, Dec. 8.3.1976, D.R. 5 p.

157 and No. 9248/81, Dec. 10.10.1983, D.R. 34 p. 78).

It follows that this application is incompatible ratione

materiae 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

DECLARES THE APPLICATION INADMISSIBLE

Secretary to the Commission Acting President of the Commission

(H.C. KRÜGER) (S. TRECHSEL)

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H. v. NETHERLANDS

H. v. NETHERLANDS

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