Human rights—Servants of the state—Right of access to a court

European Court of Human Rights, Grand Chamber

Judges Costa (President), Wildhaber, Rozakis, Bratza, Lorenzen, Tulkens, Bonello, Turmen, Pellonpaa, Traja, Ugrekhelidze, Kovler, Garlicki, Borrego Borrego, Mijovic, Myjer and Jociene, and Mr E Fribergh (Registrar)

19 April 2007

To rebut the presumption that a servant of the state does not have rights under Art 6 (1) of the European Convention on Human Rights (the Convention) the respondent state would have to demonstrate, first, that a civil servant applicant does not have a right of access to a court under national law and, second, that the exclusion of the rights under Art 6 is justified.

 The applicants worked for a Police District. They initially were entitled to a wage supplement for working in a remote part of the country, but that was later stopped. As proceedings they brought in the domestic courts lasted for over seven years, they complained to the European Court of Human Rights (ECtHR), inter alia, under Art 6(1) of the Convention about the excessive length of those proceedings. The Fourth Section of the court relinquished jurisdiction in favour of the Grand Chamber.

The court examined the government’s argument in which, relying on Pellegrin v France (Application 28541/95) (1999) 31 EHRR 651, it contended that Art 6 was not applicable since disputes raised by servants of the state, such as police officers over their conditions of service were excluded from its ambit. The court noted that the instant case, highlighted that the application of the functional criterion might itself lead to anomalous results.

Ascertaining the nature and status of an applicant’s functions had not proved to be an easy task; nor had the category of public service in which the applicant worked always been clearly distinguishable on the basis of his or her actual role. The court stated that Pellegrin should be understood as constituting a first step away from the previous principle of inapplicability of Art 6 to the civil service, towards partial applicability. It reflected the basic premise that certain civil servants, because of their functions were bound by a special bond of trust and loyalty towards their employer.

However, it was evident from the cases decided since Pelligrin that in many contracting states access to a court was accorded to civil servants. While neither the Convention nor its Protocols guaranteed a right of recruitment to the civil servant, it did not follow that in other respects civil servants fell outside the scope of the Convention. There should, therefore, be convincing reasons for excluding any category of applicant from the protection of Art 6(1).

The court recognised the state’s interest in controlling access to a court when it came to certain categories of staff. Nevertheless it was primarily for the contracting states, in particular the competent national legislature, not the court, to identify expressly those areas of public service involving the exercise of discretionary powers intrinsic to state sovereignty where the interests of the individual had to give way. The court exerted its supervisory role subject to the principle of subsidiarity. If a domestic system barred access to a court, the ECtHR would verify that the dispute was indeed such as to justify the application of the exception to the guarantees of Art 6. If it did not, then there was no issue and Art 6(1) would apply.

In summary, therefore, in order for the respondent state to be able to rely before the court on the applicant’s status as a civil servant in excluding the protection embodied in Art 6, two conditions had to be fulfilled. First, the state in its national law had to have expressly excluded access to a court for the post or category of staff in question. Second, the exclusion had to be justified on objective grounds in the state’s interest. The mere fact that the applicant was in a sector or department which participated in the exercise of power conferred by public law was not in itself decisive. In order for the exclusion to be justified, it was not enough for the state to establish that the civil servant in question participated in the exercise of public power or that there existed a special bond of trust and loyalty between the civil servant and the state as employer. It was also for the state to show that the subject matter of the dispute in issue was related the exercise of state power or that it had called into question the special bond.

Thus, there could in principle be no justification for the exclusion from the guarantees of Art 6 of ordinary labour disputes, such as those relating to salaries, allowances of similar entitlements, on the basis of the special nature of relationship between the particular civil servant and the state in question. There would, in effect be a presumption that art 6 applied. In the instant case, it was common ground that the applicants all had access to a court under national law and that, accordingly, Art 6(1) was applicable.

Judges Costa, Wildhaber, Turmen, Borrego Borrego and Jociene delivered joint dissenting opinions.