CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 13 avril 1989

.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 }                          AS TO THE ADMISSIBILITY OF                         Application No. 13114/87                       by H.                       against the Netherlands             The European Commission of Human Rights sitting in private on 13 April 1989, the following members being present:                 MM. S. TRECHSEL, Acting President                   F. ERMACORA                   E. BUSUTTIL                   G. JÖRUNDSSON                   A.S. GÖZÜBÜYÜK                   J.-C. SOYER                   H.G. SCHERMERS                   H. DANELIUS                   J. CAMPINOS                   H. VANDENBERGHE              Mrs.   G.H. THUNE              Sir   Basil HALL              MM.   F. MARTINEZ                   C.L. ROZAKIS              Mrs.   J. LIDDY              Mr.   L. LOUCAIDES                Mr.   H.C. KRÜGER, Secretary to the Commission           Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;           Having regard to the application introduced on 6 April 1987 by H. against the Netherlands and registered on 4 August 1987 under file No. 13114/87;           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 Dutch citizen, born in 1947 and presently residing on the island of Curaçao in the Netherlands Antilles.   In the proceedings before the Commission he is represented by Mr.   Errol J. Maduro, a lawyer practising on the island of Curaçao.           The facts, as submitted by the applicant, may be summarised as follows:           Since 1 June 1964 the applicant has been in the civil service.   On 1 December 1978 he finished his studies of physiotherapy at the University of Colombia.   On 14 December 1978 he was promoted to clerk.           It appears that, on the basis of his Colombian university degree, the applicant brought an action for promotion as from 1 December 1979 to deputy officer, which is a particular grade in the civil service.   On 8 October 1979 the Civil Servants Court in the Netherlands Antilles (Gerecht in Ambtenarenzaken in de Nederlandse Antillen) rejected the applicant's action, holding that the applicant's degree should first be evaluated.           By letter of 19 June 1985 the applicant requested the Governor of the Netherlands Antilles to promote him to a grade in accordance with his university degree.           On 22 August 1985 the applicant brought an action, inter alia for promotion, against the Governor before the Civil Servants Court because he had not received an answer to his letter nor had he been promoted.   He submitted, inter alia, that those who had a degree from the University of the Netherlands Antilles were appointed as or promoted to deputy officer and that the failure to do so in his case was in violation of the principle of equality.           In its decision of 5 November 1985 the Court declared the applicant's claim for promotion inadmissible, insofar as he claimed promotion as from 14 December 1979 because the Court had already rejected a similar claim on 8 October 1979, and insofar as he claimed promotion as from 1 July 1985 because, inter alia, it could not yet be assumed that the Governor had refused this.           The applicant appealed to the Civil Servants Council of Appeal (Raad van Beroep in Ambtenarenzaken).   By decision of 12 March 1986 the Council of Appeal rejected the appeal.           On 10 June 1986 the applicant requested the Council of Appeal to revise its decision.   He submitted that one of the members of the Council of Appeal had been nominated Deputy Governor on 1 March 1986 and that the Governor had been the defendant in his case.   He invoked Article 6 of the Convention.           In its decision of 16 October 1986 the Council of Appeal rejected the request for a revision of its decision.   It considered that the decision, pronounced on 12 March 1986, was taken in chambers on 12 February 1986 and that the member of the Council of Appeal concerned did not belong to the administration at that time.           On 1 December 1986 the applicant again brought an action for promotion against the Governor before the Civil Servants Court. In its decision of 14 May 1987 the Court quashed the refusal of the Governor to promote the applicant because it found an evaluation of applicant's studies, finished on 19 February 1987, to be inadequate.           On 9 June 1987, the Governor appealed to the Civil Servants Council of Appeal.   On 4 September 1987 the Council held a hearing during which the applicant challenged one of the members of the Council of Appeal because, under national law, only persons with the Dutch nationality and residing in the Netherlands Antilles could be nominated to the Council.   At the time of the hearing, the member of the Council concerned resided in Aruba, this no longer being a part of the Netherlands Antilles.           By interlocutory decision of 16 September 1987 the Council of Appeal rejected the challenge.   The member of the Council, who was challenged by the applicant, participated in this decision.           In its decision of 13 November 1987 the Council of Appeal quashed the decision of the Civil Servants Court of 14 May 1987 and declared the applicant's original action ill-founded.           By letters of 24 July 1987 and 18 September 1987 the applicant requested the President of the Civil Servants Council of Appeal for the records of the hearings held in 1986 in his case, because he intended to send these records to the European Commission of Human Rights.   By letter of 18 September 1987 the President refused this request.           On 8 March 1988 the applicant instituted summary proceedings requesting the records.   By decision of 25 March 1988 the Court in First Instance of the Netherlands Antilles (Het Gerecht in Eerste Aanleg van de Nederlandse Antillen) rejected the request.   It held, inter alia, that, contrary to the requirements of national law, no records of the proceedings had been made but that, as the registrar who was present at the hearings concerned had died, it was impossible to make them now.   It noted that the registrar's notes had been made available to the applicant.   COMPLAINTS   1.       The applicant complains that his case was not dealt with by an independent and impartial tribunal within the meaning of Article 6 para. 1 of the Convention.   He brought an action against the Governor of the Netherlands Antilles.   At the moment the decision by the Council of Appeal was pronounced one of the members of this Council was deputy Governor.           The applicant submits that in the present case a civil right is involved since he had requested equal treatment, i.e. to have the same position as other civil servants with a university degree.   2.       The applicant complains that no records were made of the hearings held in his case by the Civil Servants Council of Appeal in 1986.   He submits that this is contrary to the requirements of publicity.   He invokes Article 6 para. 1 of the Convention.   3.       The applicant complains that the member of the Council of Appeal who was challenged by the applicant, was one of the members of the Council of Appeal participating in the decision on the challenge. He submits that this decision was not taken by an independent and impartial tribunal.   He invokes Article 6 para. 1 of the Convention.   THE LAW           The applicant has complained that his case was not heard by an independent and impartial tribunal, that no records were made of the hearings held in his case by the Civil Servants Council of Appeal in 1986, and that the member of the Council of Appeal who was challenged by him, was one of the members who participated in the decision on the challenge.   He has invoked Article 6 (Art. 6) of the Convention.           The relevant part of Article 6 para. 1 (Art. 6-1) of the Convention provides as follows:   "In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly...".           However, the Commission notes that the proceedings of which the applicant complains concern his access to a particular grade in the civil service.           The Commission recalls its constant case-law, according to which litigation concerning access to, or dismissal from civil service falls outside the scope of Article 6 para. 1 (Art. 6-1) of the Convention (see, for example, No. 7374/76, Dec. 8.3.1976, D.R. 5 p. 157 and No. 9248/81, Dec. 10.10.1983, D.R. 34 p. 78).           It follows that this application is incompatible ratione materiae with the provisions of 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         Acting President of the Commission             (H.C. KRÜGER)                           (S. TRECHSEL)