DISSENTING OPINION OF JUDGE FOIGHEL

I am in complete agreement with the dissenting opinion of Judge Casadevall. I would, however, add the following reflections.

1. It is my opinion that the complexity of the Court’s jurisprudence (e.g. the case of Neigel v. France – judgment of 17 March 1997, Reports of Judgments and Decisions 1997-II – and the eighteen Italian cases – judgments of 2 September 1997, Reports 1997-V) stems from the fact that the Court in its interpretation of civil rights has taken as a basis two different ideas which, taken separately, are sound and reasonable, but taken together are confusing.

2. The first idea accepted by the Court within the framework of its autonomous interpretation of Article 6 concerns public rights based on public law and disputes over such rights. The starting-point was that public rights are not civil rights and therefore Article 6 was not applicable. The Court, however, very soon realised that – in relation to procedural guarantees – it was impossible to justify the sharp distinction between public rights and civil rights. It became obvious that many public rights were very similar to private rights – for example, all pecuniary rights which concerned social insurance, pension rights or rights to compensation for damage.

3. So the Court adopted the first idea: if a dispute over a public right concerns money, it is covered by Article 6 . It was natural for the Court to accept this because in all countries public pecuniary rights are laid down by law. In such situations, governments exercise no discretionary powers which the Court would be interfering with. Pecuniary rights are legally formulated rights and are therefore rights which a court of law can adjudicate. This is the crux of the interpretation of Article 6 in both historical and logical terms.

4. The second idea was developed in connection with civil servants.

Here the Court held that the “recruitment”, “careers” and “termination of service” of civil servants were outside the scope of Article 6 (cases of Francesco Lombardo v. Italy, judgment of 26 November 1992, Series A no. 249-B, and Massa v. Italy, judgment of 24 August 1993, Series A no. 265-B). This is a generally accepted idea and, taken separately, it is easy to apply. It reflects the fact that governments have a legitimate special interest in avoiding interference by the courts in their relations with their civil servants. Governments use their discretionary powers when determining “recruitment”, “careers” and “termination of service”, and in these cases disputes concerning civil servants normally fall outside the scope of Article 6.             

5. But the Court has had to make exceptions to that rule. And it has done so in an unfortunate way by introducing the “first idea” and holding that if – and only if – the civil servant has a pecuniary interest in the dispute, Article 6 does apply. This made the Court’s jurisprudence difficult to understand, as is reflected in the eighteen Italian cases. Because most questions concerning the “recruitment”, “careers” and “termination of service” of civil servants can be seen as a claim for money and every pecuniary claim a civil servant may make stems from his status as a civil servant, distinguishing between disputes in which the civil servant has a pecuniary interest and those in which he does not, comes very close to being completely arbitrary.

6. Of course the Court has to accept – rightly – that in some situations a civil or public servant is covered by Article 6. But the criterion should not be the “pecuniary issue”, but whether the application of the procedural guarantees in Article 6 does or does not affect the government’s discretionary right to determine the “recruitment”, “careers” or “termination of service” of civil servants. Only when the application of Article 6 does affect that right should Article 6 not be applicable. The discretionary powers as such are outside the scope of Article 6. Such an approach would make the interpretation of “civil rights” consistent in itself and compatible with the historical reason for the wording of Article 6, as in earlier cases (see the Feldbrugge v. the Netherlands judgment of 29 May 1986, Series A no. 99, p. 15, § 37, and the Deumeland v. Germany judgment of 29 May 1986, Series A no. 100, p. 24, § 71).

7. In the instant case it is easy to see that the issue as presented to the Court has nothing to do with the discretionary element in the Government’s power to determine the “recruitment”, “careers” or “termination of service” of civil servants. The Court was not being asked to take a stand on whether the authorities had been right or wrong to treat the applicant as they did. The Court had to decide whether there had been a breach of the applicant’s right to have his case heard within a reasonable time. The outcome of the case between the applicant and his national authorities was not its concern.

8. I would like to add the following. The Court’s narrow interpretation of Article 6, which means that disputes on the “recruitment”, “careers” or “termination of service” of civil servants are outside Article 6, is motivated only by the fact that historically governments have sought to avoid interference by courts of law in the sensitive relationship between authorities and their civil servants. The narrow interpretation therefore becomes absolutely meaningless in situations where the national law as in this case permits such interference by giving the civil servant access to the national courts.

The Court should at least, within the framework of autonomous interpretation, accept that where the national law gives civil servants access to a court of law, the procedural guarantees in Article 6 § 1 should apply. There is no reason whatsoever why civil servants – in such a situation – should be deprived of the procedural guarantees enshrined in Article 6. The same national courts have to afford those guarantees to all other persons.