CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 13 octobre 1986

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }  The European Commission of Human Rights sitting in private on 13 October 1986, the following members being present:                    MM   C.A. NØRGAARD, President                      J.A. FROWEIN                      F. ERMACORA                      E. BUSUTTIL                      G.JÖRUNDSSON                      G. TENEKIDES                      S. TRECHSEL                      B. KIERNAN                      A.S. GÖZÜBÜYÜK                      A. WEITZEL                      J.C. SOYER                      H.G. SCHERMERS                      H. DANELIUS                      G. BATLINER                      J. CAMPINOS                  Mrs G.H. THUNE                  Sir Basil HALL                  Mr   F. MARTINEZ            Mr H.C. KRÜGER, Secretary to the Commission   Having regard to Article 25 (art. 25) of the Convention for the Protection of Human Rights and Fundamental Freedoms;   Having regard to the application introduced on 20 December 1985 by C.D. against the United Kingdom and Spain and registered on 14 February 1986 under file No. 11980/86;   Having regard to the report provided for in Rule 40 of the Rules of Procedure of the Commission;   Having deliberated;   Decides as follows:   THE FACTS   The applicant is a Spanish citizen, born in 1934 and living in London. She is represented by Mr J. Goldsmith, solicitor, of the Citizens Advice Bureau.   It follows from her statements and the documents submitted by her that the applicant, who has been living in England since 1960, first worked for some years with the Inner London Education Authority (ILEA) as a teacher of Spanish.   In January 1975, at the invitation of the Education Attaché of the Spanish Embassy, she began to teach Spanish children for ten hours a week, while continuing to work for the ILEA. In June 1976 the applicant gave up working for the ILEA and thereafter, until the end of the summer term of 1982, she taught Spanish children exclusively.   She was initially employed by the Embassy under an oral contract.   By a letter dated 15 October 1976 from the director of the personnel department of the Spanish Ministry of Education and Science, the applicant was appointed a temporary teacher at one of the schools set up in England by the Board of Education for Spanish Emigrants.   It was an express condition of the applicant taking up that post that she should swear adherence to the principles of the Spanish National Movement and other fundamental laws of the State of Spain.   This she did on 1 November 1976.   From 1977 until the end of the summer term of 1982 the applicant's place of employment was a school in Portobello Road, London.   By a document issued by the Spanish Ministry of Education, dated 13 June 1979, the applicant was appointed a "provisional title holder" for three years to carry out her duties at the Portobello Road School. With effect from 13 June 1982 the applicant was granted "official duty status" until 31 August 1982.   By a notice dated 8 July 1982 the applicant was informed that her service post in the United Kingdom was not to be extended beyond 31 August 1982 and that she should join a post which had been allotted to her in Spain for the following term.   On 1 September 1982 the applicant, who did not want to return to Spain, nevertheless reported at her new posting, which was in Barcelona, because her Spanish permit to work abroad had expired and because she wished to protect her status as a Spanish civil servant. In Spain she immediately applied for, and was granted, three months' leave of absence.   She thereupon returned to England and remained there until November.   She then went back to Spain where, from 1 November 1982 to 31 August 1983, she taught at Barcelona. On 1 September 1983 the applicant was posted to Getafe, near Madrid. On 15 September she was granted indefinite leave of absence and she again returned to England.   While she had been working under the oral contract down to 31 October 1976 the applicant was remunerated by the Spanish Ministry of Labour. For the period between 1 November 1976 and 31 August 1982 the applicant's basic salary was paid by the Spanish Ministry of Education, but she also received a supplementary remuneration from the Spanish Ministry of Labour in consideration of her working outside Spain.   In 1982, when her service post in the United Kingdom was not extended, the applicant brought an action before the Industrial Tribunal against, firstly, the Junta de Promoción Educativa de Los Emigrantes and, secondly, the State of Spain, complaining of unfair dismissal.   On 4 January 1984 the Industrial Tribunal decided that it had jurisdiction to hear the complaint.   On 4 July 1985, however, the application was dismissed on the ground that the right not to be unfairly dismissed was, under the Employment Protection (Consolidation) Act 1978, conferred on "every employee", while the applicant was considered to be a Spanish civil servant.   The Tribunal found, in the light of the evidence obtained, that, under Spanish law, a civil servant - whether temporary or established - was the holder of an office of profit and that the relationship between the office holder and the State of Spain was not, and could not be, governed by contract.   The oral contract under which the applicant had been employed down to 31 October 1976 was, according to the findings of the English tribunal, superseded by the applicant's appointment to her teaching post on becoming a civil servant on 1 November 1976. Thereafter she was employed solely in her capacity as the holder of an office of profit and not under a contract of employment.   The applicant submits that she did not appeal from the Industrial Tribunal's decision to the Employment Appeal Tribunal as an appeal is possible only on a point of law while the Industrial Tribunal founded its decision of 16 July 1985 on a finding of fact.   COMPLAINTS   The applicant complains under Article 6 para. 1 (art. 6-1) of the Convention that the civil rights which she enjoyed under the contract of employment prior to 1 November 1976 should have been removed by her designation as a civil servant after that date, in consequence of the Industrial Tribunal's decision.   She argues that despite her designation as a civil servant she has civil rights.   A mere designation of an employee as a civil servant should not, without more, remove civil rights from that employee.   THE LAW   1. Complaint against the United Kingdom   The applicant has complained that by becoming a civil servant she was deprived, in consequence of the English Industrial Tribunal's decision of 16 July 1985, of the civil rights she enjoyed previously under her contract of employment.   With regard to the judicial decision of which the applicant complains, the Commission recalls that, in accordance with Article 19 (art. 19) of the Convention, its only task is to ensure the observance of the obligations undertaken by the Parties in the Convention.   In particular, it is not competent to deal with an application alleging that errors of law or fact have been committed by domestic courts, except where it considers that such errors might have involved a possible violation of any of the rights and freedoms set out in the Convention.   The Commission refers, on this point, to its constant jurisprudence (see e.g. decisions on the admissibility of applications No. 458/59, Yearbook 3, pp. 222, 236 and No. 1140/61, Collection of Decisions, 8, pp. 57, 62).   It is true that in this case the applicant also complains that, by the decision of the Tribunal, she was deprived of civil rights.   In this connection she alleges a violation of Article 6 para. 1 (art. 6-1) of the Convention.   However, this provision only contains procedural guarantees, mainly the right to a fair and public hearing by an independent and impartial tribunal.   The applicant has not even alleged that the Industrial Tribunal denied her a fair hearing.   The fact that the Tribunal denied the right claimed by the applicant does not in itself violate any right under Article 6 para. 1 (art. 6-1) nor any other provision of the Convention.   It follows that to this extent the application is manifestly ill-founded within the meaning of Article 27 para. 2 (art. 27-2) of the Convention.   2. Complaint against Spain   Insofar as the application is directed against Spain the Commission observes that this High Contracting State is in no way responsible for decisions given by an English Tribunal.   It follows that to this extent the application is incompatible ratione personae with the Convention within the meaning of Article 27 para. 2 (art. 27-2) of the Convention.   For these reasons, the Commission   DECLARES THE APPLICATION INADMISSIBLE.   Secretary to the Commission            President of the Commission   (H.C. KRÜGER)                          (C.A. NØRGAARD)