(Application no. 8453/04)
16 July 2009
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Bayer v. Germany,
The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:
Peer Lorenzen, President,
Mirjana Lazarova Trajkovska, judges,
and Claudia Westerdiek, Section Registrar,
Having deliberated in private on 23 June 2009,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
II. RELEVANT DOMESTIC LAW
A. The Hessen Disciplinary Code
31. Under Article 61 of the Code a civil servant may apply for a ruling from the Administrative Court if, within six months following service of the order opening disciplinary proceedings, the proceedings have neither been discontinued nor the charges served on the civil servant. If the president of the Administrative Court finds that an unreasonable delay has occurred, he or she imposes a deadline within which the charges must be submitted or the proceedings discontinued. If the president finds that an unreasonable delay has occurred, he or she may reject the application by way of final decision. The president may extend the deadline for the submission of the charges or the discontinuation of the proceedings. If the charges are not submitted or the proceedings not discontinued within that deadline, the formal disciplinary proceedings shall be considered to be discontinued. At the civil servant's request, the president of the disciplinary administrative court shall give a final decision not subject to review.
32. In respect of a comparable remedy provided for by Baden-Württemberg disciplinary law, the Mannheim Administrative Court of Appeal ruled that the unreasonable length of the proceedings could not result in the discontinuation of the disciplinary proceedings against the civil servant as disciplinary law provided for an effective remedy to accelerate the proceedings (see Mannheim Administrative Court of Appeal, decision of 18 June 2003, no. DL 17 S 5/03).
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”
1. The parties' submissions
2. The Court's assessment
38. In the present case, the proceedings concerned a disciplinary measure, namely the applicant's removal from office for having committed numerous misdemeanours. This dispute, as the Government rightly pointed out, did not concern a question relating to "salaries, allowances or similar entitlements”, which are, however, no more than non-exhaustive examples of the “ordinary labour disputes” to which Article 6 should in principle apply. The Court notes in this respect that after the President of the Frankfurt Court of Appeal had terminated the disciplinary investigations, the applicant had the right to challenge the charges brought against him before the administrative courts at two levels of jurisdiction. The German system thus secured the applicant's “right to a court” of which the right of access constitutes one aspect.
1. Period to be taken into consideration
2. The reasonableness of the length of proceedings
a) Submissions made before the Court
b. The Court's assessment
There has accordingly been a breach of Article 6 § 1.
II. OTHER ALLEGED VIOLATIONS
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
B. Costs and expenses
C. Default interest
FOR THESE REASONS, THE COURT UNANIMOUSLY
(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts:
(i) EUR 3,500 (three thousand five hundred euros) in respect of non-pecuniary damage
(ii) EUR 3,000 (three thousand euros) in respect of costs and expenses;
(iii) any tax that may be chargeable to him on the above amounts;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
Done in English, and notified in writing on 16 July 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen