Lexploria

The European Commission of Human Rights sitting in private on

13 October 1986, the following members being present:

MM C.A. NØRGAARD, President

J.A. FROWEIN

F. ERMACORA

E. BUSUTTIL

G.JÖRUNDSSON

G. TENEKIDES

S. TRECHSEL

B. KIERNAN

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.C. SOYER

H.G. SCHERMERS

H. DANELIUS

G. BATLINER

J. CAMPINOS

Mrs G.H. THUNE

Sir Basil HALL

Mr F. MARTINEZ

Mr H.C. KRÜGER, Secretary to the Commission

Having regard to Article 25 (art. 25) of the Convention for the

Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 20 December 1985 by

C.D. against the United Kingdom and Spain and registered on 14

February 1986 under file No. 11980/86;

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 Spanish citizen, born in 1934 and living in London.

She is represented by Mr J. Goldsmith, solicitor, of the Citizens

Advice Bureau.

It follows from her statements and the documents submitted by her that

the applicant, who has been living in England since 1960, first worked

for some years with the Inner London Education Authority (ILEA) as a

teacher of Spanish. In January 1975, at the invitation of the

Education Attaché of the Spanish Embassy, she began to teach Spanish

children for ten hours a week, while continuing to work for the ILEA.

In June 1976 the applicant gave up working for the ILEA and

thereafter, until the end of the summer term of 1982, she taught

Spanish children exclusively. She was initially employed by the

Embassy under an oral contract.

By a letter dated 15 October 1976 from the director of the personnel

department of the Spanish Ministry of Education and Science, the

applicant was appointed a temporary teacher at one of the schools set

up in England by the Board of Education for Spanish Emigrants. It was

an express condition of the applicant taking up that post that she

should swear adherence to the principles of the Spanish National

Movement and other fundamental laws of the State of Spain. This she

did on 1 November 1976.

From 1977 until the end of the summer term of 1982 the applicant's

place of employment was a school in Portobello Road, London.

By a document issued by the Spanish Ministry of Education,

dated 13 June 1979, the applicant was appointed a "provisional title

holder" for three years to carry out her duties at the Portobello Road

School. With effect from 13 June 1982 the applicant was granted

"official duty status" until 31 August 1982.

By a notice dated 8 July 1982 the applicant was informed that her

service post in the United Kingdom was not to be extended beyond

31 August 1982 and that she should join a post which had been allotted

to her in Spain for the following term.

On 1 September 1982 the applicant, who did not want to return to

Spain, nevertheless reported at her new posting, which was in

Barcelona, because her Spanish permit to work abroad had expired and

because she wished to protect her status as a Spanish civil servant.

In Spain she immediately applied for, and was granted, three months'

leave of absence. She thereupon returned to England and remained

there until November. She then went back to Spain where, from

1 November 1982 to 31 August 1983, she taught at Barcelona.

On 1 September 1983 the applicant was posted to Getafe, near Madrid.

On 15 September she was granted indefinite leave of absence and she

again returned to England.

While she had been working under the oral contract down to

31 October 1976 the applicant was remunerated by the Spanish Ministry

of Labour. For the period between 1 November 1976 and 31 August 1982

the applicant's basic salary was paid by the Spanish Ministry of

Education, but she also received a supplementary remuneration from the

Spanish Ministry of Labour in consideration of her working outside

Spain.

In 1982, when her service post in the United Kingdom was not extended,

the applicant brought an action before the Industrial Tribunal

against, firstly, the Junta de Promoción Educativa de Los Emigrantes

and, secondly, the State of Spain, complaining of unfair dismissal.

On 4 January 1984 the Industrial Tribunal decided that it had

jurisdiction to hear the complaint.

On 4 July 1985, however, the application was dismissed on the ground

that the right not to be unfairly dismissed was, under the Employment

Protection (Consolidation) Act 1978, conferred on "every employee",

while the applicant was considered to be a Spanish civil servant. The

Tribunal found, in the light of the evidence obtained, that, under

Spanish law, a civil servant - whether temporary or established - was

the holder of an office of profit and that the relationship between

the office holder and the State of Spain was not, and could not be,

governed by contract. The oral contract under which the applicant had

been employed down to 31 October 1976 was, according to the findings

of the English tribunal, superseded by the applicant's appointment to

her teaching post on becoming a civil servant on 1 November 1976.

Thereafter she was employed solely in her capacity as the holder of an

office of profit and not under a contract of employment.

The applicant submits that she did not appeal from the Industrial

Tribunal's decision to the Employment Appeal Tribunal as an appeal is

possible only on a point of law while the Industrial Tribunal founded

its decision of 16 July 1985 on a finding of fact.

COMPLAINTS

The applicant complains under Article 6 para. 1 (art. 6-1) of the

Convention that the civil rights which she enjoyed under the contract

of employment prior to 1 November 1976 should have been removed by her

designation as a civil servant after that date, in consequence of the

Industrial Tribunal's decision. She argues that despite her

designation as a civil servant she has civil rights. A mere

designation of an employee as a civil servant should not, without

more, remove civil rights from that employee.

THE LAW

1. Complaint against the United Kingdom

The applicant has complained that by becoming a civil servant she was

deprived, in consequence of the English Industrial Tribunal's decision

of 16 July 1985, of the civil rights she enjoyed previously under her

contract of employment.

With regard to the judicial decision of which the applicant complains,

the Commission recalls that, in accordance with Article 19 (art. 19)

of the Convention, its only task is to ensure the observance of the

obligations undertaken by the Parties in the Convention. In

particular, it is not competent to deal with an application alleging

that errors of law or fact have been committed by domestic courts,

except where it considers that such errors might have involved a

possible violation of any of the rights and freedoms set out in the

Convention. The Commission refers, on this point, to its constant

jurisprudence (see e.g. decisions on the admissibility of applications

No. 458/59, Yearbook 3, pp. 222, 236 and No. 1140/61, Collection of

Decisions, 8, pp. 57, 62).

It is true that in this case the applicant also complains that, by the

decision of the Tribunal, she was deprived of civil rights. In this

connection she alleges a violation of Article 6 para. 1 (art. 6-1) of

the Convention.

However, this provision only contains procedural guarantees, mainly

the right to a fair and public hearing by an independent and impartial

tribunal. The applicant has not even alleged that the Industrial

Tribunal denied her a fair hearing. The fact that the Tribunal denied

the right claimed by the applicant does not in itself violate any

right under Article 6 para. 1 (art. 6-1) nor any other provision of

the Convention.

It follows that to this extent the application is manifestly

ill-founded within the meaning of Article 27 para. 2 (art. 27-2) of

the Convention.

2. Complaint against Spain

Insofar as the application is directed against Spain the Commission

observes that this High Contracting State is in no way responsible for

decisions given by an English Tribunal.

It follows that to this extent the application is incompatible ratione

personae with 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 President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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D. v. THE UNITED KINGDOM AND SPAIN

D. v. THE UNITED KINGDOM AND SPAIN

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