THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 43371/02 by Helmut RABUS against Germany

The European Court of Human Rights (Third Section), sitting on 1 December 2005 and 9 February 2006 as a Chamber composed of:

Mr B.M. Zupančič , President , Mr J. Hedigan , Mr L. Caflisch , Mr C. Bîrsan , Mrs A. Gyulumyan , Mrs R. Jaeger , Mr E. Myjer , judges , and Mr V. Berger , Section Registrar ,

Having regard to the above application lodged on 5 December 2002 ,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Helmut Rabus , is a German national who was born in 1957 in Günzburg and lives in Bibertal . He is represented before the Court by Mr W. Peukert , a lawyer practising in Strasbourg .

A. The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

The applicant works as a technician for the German Telecom Corporation ( Deutsche Telekom Aktiengesellschaft ). He has the status of a permanent civil servant ( Beamter auf Lebenszeit ) as the German Telecom Corporation used to be a f ederal agency – the German Federal Postal Service ( Deutsche Bundespost ) – before its privatisation in 1995.

On 5 February 1994 the applicant was caught while he was driving with a blood alcohol level of 2 , 43 ‰. On 21 April 1994 the Ulm District Court convicted the applicant of intoxication ( Vollrausch ), sentenced him to a fine of DEM 4200 (approximately EUR 2150) and revoked his driving permit for ten months. The decision became final on the same day as the applicant and the Public Prosecutor waived their rights to appeal.

In December 1994 disciplinary proceedings were instituted against the applicant.

On 1 January 1995 the Federal Postal Service was privatised and transformed into a joint stock company, the German Telecom Corporation.

On 18 July 1995 the Federal Disciplinary Court ( Bundesdisziplinargericht ) convicted the applicant of having culpably violated a professional duty ( schuldhaft begangenes Dienstvergehen ) pursuant to Section 77 of the Federal Civil Service Act ( Bundesbeamtengesetz , see “Relevant domestic law below”). It ordered a 5% reduction of the applicant ’ s salary for five months. The applicant ’ s total pecuniary loss amounted to approximately EUR 420 .

On 20 August 1996 the Federal Administrative Court rejected his appeal ( Berufung ).

On 2 June 2002 the Federal Constitutional Court refused to admit the applicant ’ s constitutional complaint. In its decision of six pages, the court assessed inter alia why the disciplinary sanction did not violate the principle ne bis in idem . The decision was served on the applicant ’ s lawyer on 28 June 2002 .

B. Rele vant domestic law

1. The Federal Civil Service Act

Pursuant to Section 77 § 1 sentence 2 of the Federal Civil Service Act ( Bundesbeamtengesetz ) , a civil servant commits a disciplinary offence ( Dienstvergehen ) if his conduct off duty is, having regard to the special circumstances of the case, capable of notably compromising the respect and confidence in his office or in officialdom ( Beamtentum ) .

Section 77 § 3 refers to the Federal Disciplinary Code for the full particulars.

2. The Federal Disciplinary Code

Section 5 of the Federal Disciplinary Code ( Bundesdisziplinarordnung ) enumerates the following penalties for a disciplinary offence: reprimand, fine, reduction of salary, transfer to another duty-station with a lower salary, discharge from office, reduction of pension and deprivation of pension.

COMPLAINTS

1. The applicant complained under Article 4 of Protocol No. 7 that the disciplinary sanction constituted a violation of the principle ne bis in idem .

2. The applicant further complained under Article 6 of the Convention about the length of proceedings as a whole and in particular that the proceedings had been pending five years before the Federal Constitutional Court .

3. The applicant finally complained that the d isciplinary sanction gave rise to a breach of Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1 and taken in conjunction with Article 6 of the Convention. He maintained that he had been discriminated against because the di sciplinary sanction could not have been imposed on employees w ho were not civil servants.

THE LAW

1. The applicant complained under Article 4 of Protocol No. 7 that the disciplinary sanction violated the principle ne bis in idem as it had been imposed although the applicant had already been sentenced to a fine b y the District Court.

The Court recalls that the principle ne bis in idem is embodied solely in Article 4 of Protocol No. 7 and that other provisions of the Convention do not guarantee compliance with it (see Ponsetti and Chesnel v. France (dec. ), nos. 36855/97 and 41731/98, ECHR-1999 VI). Accordingly, this part of the application is incompatible ratione personae , as Germany has not ratified Protocol No. 7.

2. The applicant also complained about the length of proce edings, in particular, that the proceedings had been pending for five years before the Federal Constitutional Court . He relied on Article 6 § 1 of the Convention which, as far as relevant, reads as follows:

“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 Court must first of all determine whether that Article is applicable to the present case although the applicant holds the status of a civil servant.

Pursuant to its case-law only disputes are excluded from the scope of Article 6 § 1 of the Convention which are raised by public servants whose duties typify the specific activities of the public service in so far as the latter is acting as the depositary of public authority responsible for protecting the general interests of the State or other public authorities (see Pellegrin v. France [GC], no. 28541/95, § 66, ECHR 1999 ‑ VIII). The Court notes that the applicant worked for the Federal Postal Service which was owned by the German State . T he applicant worked as a technician, however ; he did not directly or indirectly participate in the exercise of powers conferred by public law and duties designed to safeguard the general interests of the State or of other public authorities. Accordingly , the applicant ’ s status as a civil servant as such does not exclude the applicability of Article 6.

Furthermore, the Court must examine whether the disciplinary proceedings at issue involved the determination of a “criminal charge” or whether they concerned the applicant ’ s “civil” rights and obligations.

a. Applicability of Article 6 under its criminal head

In order to determine whether Article 6 is applicable under its “criminal” head, the Court will have regard to the three alternative criteria laid down in its case-law (see Engel and Others v. the Netherlands , judgment of 8 June 1976, Series A no. 22, p. 35, § 82; Ravnsborg v. Sweden , judgment of 23 March 1994, Series A no. 283-B, p. 28, § 30; and Putz v. Austria , judgment of 22 February 1996 , Reports of Judgments and Decisions 1996 ‑ I, p. 324 § 31).

It must first be ascertained whether the provisions defining the offence in issue belong, according to the domestic legal system, to criminal law, disciplinary law or both (see Engel and Others , cited above , § 82). The sanction imposed on the applicant was based on Section 5 of the Federal Disciplinary Code in conjunction with Section 77 of the Federal Civil Service Act (see “Relevant domestic law” above) . A s their denomination implies, the German law categorises these provisions as belong ing to disciplinary law.

The second criterion to be examined by the Court is the nature of the conduct imputed to the applicant (see, inter alia , Engel and Others , cited above, § 82). The latter was sanctioned because driving a car under the influence of alcohol was considered to be capable of compromising the respect and confidence i n his office or in officialdom and therefore considered a disciplinary offence under Section 77 of the Federal Civil Service Ac t. Although in the present case the applicant also committed an offence under the general criminal law, the misconduct for which he had to answer before the disciplinary courts could only be imputed to a civil servant. Accordingly, the pertinent provisions exhibit a typical feature of disciplinary law as they are designed to ensure that members of a particular group comply with specific rules governing their conduct (see Weber v. Switzerland , judgment of 22 May 1990 , Series A no. 177, § 33). The Court therefore considers that the offence with which the applicant was charged has to be regarded as “ disciplinary ”.

Notwithstanding the non-criminal nature of the proscribed misconduct, the nature and degree of severity of the consequences that the person concerned risked incurring – the third criterion – may introduce the category of “criminal” matters.

T he severest sanction the Federal Disciplinary Code provided for would be a discharge from office. However, given that the actual penalty imposed on the applicant was a slight reduction of 5 % of his salary for five months, this consequence is to be left out of consideration. Even assuming that the applicant effectively risked being discharged, it has to be borne in mind that any employed person might be dismissed if he compromises his employer ’ s confidence through a serious offence and that a dismissal can regularly be declared without previously instituting criminal proceedings.

The Court further notes that the penalties imposed pursuant to the Federal Disciplinary Code are not entered in the records of the F ederal Central Register of Convictions ( Bundeszentralregister ) which contains all criminal sentences. The Court therefore holds that the penalty at issue was not sufficiently important to warrant classifying the proceedings as criminal within the meaning of Article 6 of the Convention.

b. Applicability of Article 6 under its civil head

As regards Article 6 under its civil head the Court recalls that it only applies to proceedings concerning the “determination” of a “civil right or obligation” and that disciplinary proceedings do generally not lead to a dispute over such rights and obligations (see Le Compte , Van Leuven and De Meyere v. Belgium , judgment of 23 June 1981 , Series A no. 43, § 42).

The Court further recalls that the outcome of the proceedings must be directly decisive for the civil right in question (see Acquaviva v. France , judgment of 21 November 1995 , Series A no. 333 ‑ A, p. 14 , § 46; Le Calvez v. France , judgment of 29 July 1998, Reports of Judgments and Decisions 1998 ‑ V, pp. 1899-900 , § 56; and Athanassoglou and Others v. Switzerland [GC], no. 27644/95, § 43 , ECHR 2000 ‑ IV ). Accordingly, the mere fact that the disciplinary sanction at issue – namely a five months ’ reduction of the applicant ’ s salary – also entailed a pecuniary loss for the applicant cannot automatically lead to the conclusion that these proceedings determined a civil right .

The present proceedings must be distinguished from labour law suits instituted against ordinary employees since the relation between civil servants and the State is in many aspects not comparable to the one between employees and their employers who are never entitled to reduce salaries for disciplinary reasons. The salaries of civil servants are, for instance, determined by law and not the result of contract negotiations. Furthermore, the status of German civil servants is founded on a special relationship of trust with the State and based on the officials ’ duty of allegiance ( Treuepflicht ) whose counterpart is the State ’ s fiduciary duty ( Fürsorgepflicht ). Since permanent civil servants are appointed by a public authority by deed of appointment “for life” and accordingly enjoy particular protection against dismissal, disciplinary proceedings originating from this relationship have a different significance, purpose and procedure than those instituted against non-officials and typically belong to the realm of public law.

The Court therefore considers that the disciplinary proceedings complained of did not give rise to a dispute over the applicant ’ s civil rights and that Article 6 § 1 of the Convention is accordingly not applicable in the present case.

It follows that this part of the application is incompatible ratione materiae with the provisions of the Convention and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.

3. The applicant finally alleged that he had been treated in a discriminatory manner, contrary to Article 14 of the Convention taken in conjunction with Article 6 of the Convention and taken in conjunction with Article 1 of Protocol No. 1. He asserted that he had been discriminated against because the di sciplinary sanction could not have been imposed on employees wh o were not civil servants.

The Court recalls first of all that f or Article 14 to become applicable, the facts of the case must fall within the ambit of another substantive provision of the Convention or its Protocols ( see Thlimmenos v. Greece [GC], no.34369/97, § 40, ECHR 2000-IV , and Camp and Bourimi v. the Netherlands , no. 28369/95, ECHR 2000-X, § 34). Even assuming that the facts of the present case fall within the scope of Article 1 of Protocol No. 1 – Article 6 of the Convention not being applicable to the impugned proceedings (see above) – the complaint is manifestly ill-founded for the following reasons.

While Article 14 affords protection against discrimination in the enjoyment of the rights and freedoms safeguarded by the other substantive provisions of the Convention, not every difference in treatment will amount to a violation of this Article. Instead, it must be established that other persons in an analogous or relevantly similar situation enjoy preferential treatment, and that there is no reasonable or objective justification for this distinction (see Van der Mussele v. Belgium , judgment of 23 November 1983 , Series A no. 70, p. 22 , § 46).

In the present case, the applicant alleges that a difference in treatment of civil servants and employees amounts to discrimination. However, a permanent civil servant enjoys, as stated above, certain privileges such as an increased protection against dismissal, subsidies to the costs of health care and an affiliation in a different pension system. Moreover, he has special duties such as official secrecy, allegiance to democracy. For the same reason civil servants are also requested not to compromise the confidence in officialdom. The Court accordingly considers that the distinction drawn between employees and civil servants in respect of disciplinary sanctions does not amount to discrimination.

Th is complaint is accordingly manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court by a majority

Declares the application inadmissible.

Vincent Berger Boštjan M. Zupančič Registrar President