THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 36966/97 by Vaclav SIMMER against the Czech Republic

The European Court of Human Rights ( Third Section ) sitting on 8 December 1998 as a Chamber composed of

Mr N. Bratza, President ,

Mr J-P. Costa,

Mr L. Loucaides,

Mr P. Kuris,

Mr F. Tulkens

Mr K. Jungwiert

Mrs H.S. Greve, Judges ,

with Mr E. Fribergh, Acting Section Registrar ;

Having regard to Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 17 January 1997 by Vaclav Simmer against the Czech Republic and registered on 21 July 1997 under file no. 36966/97;

Having regard to the report provided for in Rule 49 of the Rules of Court;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Czech citizen born in 1950. He resides in Jablonec nad Nisou.

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

A. Particular circumstances of the case

On 27 February 1991 the Rychnov u Jablonce nad Nisou Town Board of Representatives (městské zastupitelstvo) (  the Town Board of Representatives  ) accepted the mayor’s proposal to appoint the applicant as the Secretary of the Rychnov u Jablonce nad Nisou Town Office (městský úřad) ("the Town Office").

On 1 March 1991 the applicant and the Town Office, represented by the mayor, signed a contract of employment. The applicant began to work on 4 March 1991.

On 17 October 1991 the Town Board of Representatives decided to remove the applicant from his position. By letter of 18 October 1991 the mayor informed the applicant that the Town Office could not offer him an alternative employment and that he would be dismissed as of 31 January 1992.

On 22 October and 18 December 1991 the applicant brought an action against the Town Office before the Jablonec nad Nisou District Court (okresní soud) (“the District Court”) claiming unfair dismissal. He challenged the validity of the dismissal as having been made by the Town of Rychnov u Jablonce nad Nisou (město) ("the Town") and not by the Town Office which signed his contract of employment, and having been pronounced without the previous consent of a trade union authority. The applicant also claimed that the dismissal could not be made in pursuance of Sections 46(1)(c) and 65(2) of the Labour Code (zákoník práce) as these provisions applied only to a termination of an employment relationship based on appointment [i.e. without a contract as such], which was not his case because his employment relationship was created by the contract signed on 1 March 1991 without any previous or subsequent appointment. The fact that on 27 February 1991 the Town Board of Representatives approved the mayor’s proposal could not be considered as the applicant’s appointment because at that time he had not yet been working for the defendant.

On 13 May 1992 the District Court dismissed the applicant’s action. The court stated inter alia that the applicant’s employment relationship had been based on appointment and created on 4 March 1991, the date on which the applicant would start exercising his duties as agreed by the parties. It further considered that, bearing in mind that the Town Office and Town were identical legal persons, it could not be said that the applicant had not been employed by the Town. The court also examined the decision of the Town Council concerning the applicant’s dismissal and found it valid. It finally stated that the dismissal notice contained a clause which read that the applicant’s dismissal had been a matter of consultation with the trade union authority on 18 October 1991, and that the original of the notice had been signed by the applicant.

On 7 August 1992 the applicant appealed against this judgment. He claimed inter alia that the District Court had not established the facts correctly and had not assessed evidence in accordance with the domestic law. He further objected to the legal assessment of the case by this court.

By ruling of 24 August 1994 the Ústí nad Labem Regional Court (krajský soud) (“Regional Court”), after a public hearing held on 5 November 1992 in which the applicant had participated, quashed the judgment of the District Court and stayed the proceedings. It found that, in accordance with Section 4(1) of the Municipalities Act No. 367/1990 as amended (zákon o obcích) , a municipality (obec) had a legal personality. However, according to Section 58(1) and (4)(a) of this Act, a municipality office was an organ of the municipality without legal personality. Accordingly, the Town Office could not be a party to the proceedings. The ruling was not given in public.

On 26 September 1994 the applicant filed an appeal on points of law (dovolání) challenging the legal opinion of the Regional Court. He further maintained that his appeal had been dealt with by judges who should have been excluded for bias because of their knowledge of another action brought by the applicant against some judges of the Regional Court. On 17 May 1995 a lawyer appointed by the applicant informed the High Court (Vrchní soud) that he agreed with the content of the applicant’s appeal.

On 29 November 1995 the High Court, without a public hearing, rejected the applicant’s appeal. The Court confirmed the finding of the Regional Court that the applicant’s action had been brought against the Town Office which did not have legal personality and which, therefore, could not be a party to the proceedings. It found unsubstantiated the applicant’s objection concerning the exclusion of the judges stating that by a decision of 19 July 1994, referred to by the applicant, the High Court had excluded all judges of the Regional Court because of their relation to two defendants in other proceedings brought by the applicant, who did not participate in the present proceedings.

On 14 February 1996 the applicant lodged a constitutional appeal alleging a violation of his right to judicial protection under Articles 90 and 95 of the Constitution and Articles 36, 37 and 38 of the Charter of Fundamental Rights and Freedoms (  Charter  ). He claimed in particular that the courts had not complied with their duty under Section 5 of the Code of Civil Procedure to advise the applicant to change the defendant. He referred in this regard to the judgment of the Constitutional Court No. II ÚS 79/94 concerning a similar problem. He also submitted that he was in a difficult financial situation, that the Czech Bar Association had refused to appoint for him a lawyer for the purposes of the constitutional appeal and that he did not have access to the court-file of the District Court because it had been sent to the High Court. On the same day, the applicant’s constitutional appeal was submitted by a lawyer.

On 11 July 1996 the Constitutional Court declared the applicant’s appeal manifestly ill-founded. The Court held that the applicant was wrong in his opinion that the ordinary courts are generally and in any case obliged to advise a claimant on the legal capacity to be a party to the proceedings, and on who could or could not be the defendant in a particular case. The claimant is free to specify the defendant but must be sure that the defendant can be a party to the proceedings. The Court stated that the question who was authorised to dismiss the applicant and who, therefore, could be a party to the proceedings, was the subject-matter of those proceedings and that this question had been duly clarified in the course of the proceedings. Therefore, it was not explicitly included, as one of the court’s obligations, to advise the applicant in this regard. In particular, the District Court had concluded that there was no reason to declare the dismissal void on the ground that the Town had no authority to do it. Accordingly, the applicant could have concluded that it was necessary to change the defendant in his appeal. The fact that he did not do so could not be considered as a violation of his right to judicial protection as provided for in Article 90 of the Constitution and in Section 36 of the Charter. The Constitutional Court finally stated that its judgment, referred to by the applicant, concerned matters of extra-judicial rehabilitation which were different from his case.

B. Relevant domestic law

The Municipalities Act No. 367/1990 (in force until 30 June 1992)

According to Section 21, a municipality, acting in the sphere of assigned competence, executed matters of state administration in accordance with special provisions.

Municipal councils

According to Section 44, a municipal council was the executive body of a municipality as regards the sphere of independent and assigned competence. When exercising independent competence the municipal council reported to the municipal board of representatives. When exercising assigned competence it was subordinate to a district office.

Municipal offices

According to Section 58, a municipal office was constituted by a chairman, one or more deputy chairmen and other officials. The head of the municipal office was the mayor. The municipal office acted in the sphere of both independent and assigned competence. In the sphere of assigned competence, it executed matters of state administration, with the exception of matters which were within the competence of the municipal council, a commission or a special body. It was subordinate to a district office.

Secretary of the municipal office

According to Sections 36i and 59, if the municipal office had more officials, the municipal board of representatives could create the function of Secretary of the municipal office and decide on his appointment after having consulted the district office. The Secretary was a staff-member of the municipal office and reported to the municipal council. He was the superior of all other staff-members of the municipal office. He acted as the head of the organisation in accordance with special provisions unless the municipal council decided otherwise. He ensured, through the staff-members of the municipal office, that decisions taken by the municipal board of representatives and municipal council were executed. He co-ordinated and controlled the activities of the municipal office staff-members. Finally, he participated in meetings of the municipal board of representatives and municipal council in an advisory capacity.

The Municipalities Act No. 367/1990 (in force from 1 July 1992)

According to Section 21, a municipality, acting in the sphere of assigned competence, executes matters of state administration in accordance with special provisions.

Municipal councils

According to Section 44, a municipal council is the executive body of a municipality as regards the sphere of independent competence. When exercising such independent competence the municipal council reports to the municipal board of representatives. The municipal council does not act in the sphere of assigned competence, except to issue generally ‑ binding decrees.

According to Section 45, the municipal council, with the consent of the chairman of the district office, appoints and removes from office the Secretary of the municipal office and defines his remuneration in accordance with special provisions.

Municipal offices

According to Section 58, a municipal office is constituted by a chairman, one or more deputy chairmen, a Secretary (if such a position has been created) and other officials. The head of the municipal office is the mayor. The municipal office, in the sphere of independent competence, performs tasks assigned to it by the municipal council or municipal board of representatives, provides expert guidance to organisations and institutions funded by the municipality and non ‑ profit ‑ making bodies created by it, unless otherwise provided by special legislation, and provides assistance to commissions in their activities. In the sphere of assigned competence, the municipal office executes matters of state administration, with the exception of matters which are within the competence of a commission or a special body. As regards matters of assigned competence, the municipal office is subordinate to a regional office, unless otherwise provided by special legislation.

Secretary of the municipal office

According to Section 59, a Secretary is appointed in municipalities where at least two divisions have been created by the municipal council, and in municipalities with accredited municipal offices. The Secretary is a staff ‑ member of a municipal office. When acting within the sphere of independent competence he reports to the municipal council and mayor. When acting within the sphere of assigned competence he reports to the mayor. The Secretary of a municipal office is the superior of all other staff ‑ members of the municipal office. He acts as a statutory body in accordance with special provisions, ensures that decisions taken by the municipal board of representatives and municipal council are executed, directs and controls the activities of the municipal office staff ‑ members, and sets the remuneration of the municipal office staff ‑ members in accordance with special provisions. He participates in meetings of the municipal board of representatives and municipal council in an advisory capacity.

COMPLAINTS

The applicant complains that the domestic courts dealing with his case breached Articles 6, 13 and 14 of the Convention and did not proceed in conformity with Czech law. He invokes several provisions of the Constitution, the Code of Civil Procedure and the Charter of Fundamental Rights and Freedoms.

As regards Article 6 of the Convention, the applicant claims that the domestic courts did not deal with his case fairly, impartially or within a reasonable time. He submits that the District and Regional Courts, although they were aware that he was not a lawyer and was in a difficult financial situation, did not advise him on his procedural rights and obligations. He further submits that apart from the judgment of the District Court, all decisions were taken in camera. He claims that 1,078 days elapsed between the lodging of his action and the coming into force of the ruling of the appellate court and that the delays in the proceedings affected their result. The applicant further claims that the High Court was not impartial when it examined his objection concerning the exclusion for bias of the judges of the appellate court and did not advise him on his procedural rights. He also challenges the legal findings of the domestic courts.

As regards his complaints under Article 13 of the Convention, the applicant claims that he had no effective remedy before the national authorities. He challenges in this regard the decision of the Constitutional Court. He submits that he was repeatedly refused, on financial grounds, representation by Czech lawyers and that the Czech Bar Association, despite his request, did not assign him a lawyer to introduce a constitutional appeal.

Under Article 14 of the Convention, the applicant claims that he was discriminated against by the domestic courts on the grounds of his political opinions and property and because of the action he had brought against the judges of these courts. He submits that the District Court construed the lack of evidence to his disadvantage. He claims that he was discriminated against by the Constitutional Court which decided in a similar case (No. II ÚS 79/94) in favour of a claimant who was a millionaire.

THE LAW

1. The applicant claims that the domestic courts did not deal with his case fairly, impartially or within a reasonable time. He invokes Article 6 § 1 of the Convention which provides, so far as relevant, 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. ..."

The Court must determine whether the proceedings in the applicant’s case concerned in any way his "civil rights and obligations" within the meaning of Article 6 § 1 of the Convention, regard being had to the character of the rights concerned.

The Court recalls in this respect that, according to the Convention organs’ case-law, disputes relating to the recruitment, careers and termination of service of public servants are, as a general rule, outside the scope of Article 6 § 1 of the Convention (see Eur. Court HR, Massa v. Italy judgment of 4 August 1993, Series A no. 265-B, p. 20, § 26). In the case of Neigel v. France (Eur. Court HR, judgment of 17 March 1997, Reports of Judgments and Decisions 1997-II, pp. 410-411, §§ 43-44), the Court noted that the law of many member States of the Council of Europe disclose a basic distinction between civil servants and employees governed by private law. In that case, the European Court found that the applicant’s request for reinstatement to the permanent post of shorthand typist which she had previously held at the town council, related to her "‘recruitment’, her ‘career’ and the ‘termination of [her] service’. It did not therefore concern a ‘civil’ right within the meaning of Article 6 § 1 of the Convention".

In the present case, the Court observes that Czech law makes no special provision for civil servants. The relationship between the applicant and his employer was governed by the Labour Code and the ordinary courts were competent to determine any possible disputes. The Court notes, however, that the applicant’s functions as the Secretary of the Town Office were, at the same time, regulated by the Municipalities Act No. 367/1990. The employment was based on a written contract and it could not be signed without a decision of the Town Board of Representatives (this function was transferred to the municipal council on 1 July 1992) to appoint the applicant as the Secretary of the Town Office.

The Court also notes that the applicant’s functions as the Secretary of the Town Office are in the nature of public service. The Court observes in particular that according to Section 21 et seq. of the Municipalities Act No. 367/1990, a municipality, acting in the sphere of assigned competence, executes matters of state administration in accordance with special legal provisions. A Secretary of a municipal office is appointed by organs of the municipality, until 30 June 1992 by the board of representatives, and from 1 July 1992 by the municipal council with the consent of the chairman of the district office. The Secretary is the superior of the staff-members of the municipal office which is, in the sphere of assigned competence, subordinate to the district office. The Secretary himself then reports to the mayor. Moreover, in an advisory capacity, he participates in meetings of the municipal board of representatives and the municipal council. In these circumstances, the Court considers that the proceedings before the national courts concerning the applicant’s dismissal from the post of the Secretary of the Town Office were related to his “recruitment”, “career” and the “termination of his service”. Accordingly, the Court finds that the dispute between the applicant and his employer did not determine his "civil" rights within the meaning of Article 6 § 1 of the Convention. This provision therefore does not apply in the present case.

It follows that this part of the application is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3.

2. The applicant also complains that he had no effective remedy before the national authorities, in violation of Article 13 of the Convention which provides as follows:

"Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity."

The Court recalls that the guarantees of Article 13 of the Convention apply only to a grievance which can be regarded as "arguable" (see Eur. Court HR, Powell and Rayner v. the United Kingdom judgment of 21 February 1990, Series A no. 172, p. 14, § 31). In the present case, the Court has rejected the applicant’s substantive claims as incompatible with the Convention. For similar reasons, they cannot be regarded as "arguable".

It follows that this part of the application is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3.

3. The applicant finally alleges a violation of Article 14 of the Convention taken together with Article 6 of the Convention.

The Court recalls that where Article 6 proves to be inapplicable, Article 14 of the Convention cannot be combined with it (see, mutatis mutandis , Eur. Court HR, Marckx v. Belgium judgment of 13 June 1979, Series A no. 31, p. 23, § 50).

The Court has found that Article 6 of the Convention does not apply to the court proceedings in the present case. It follows that the Court cannot deal with the complaint under Article 14 of the Convention in conjunction with this provision.

It follows that this part of the application is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3.

For these reasons, the Court, by a majority,

DECLARES THE APPLICATION INADMISSIBLE.

   Erik Fribergh                 Nicolas Bratza

  Acting Registrar                 President