Review article
Civil servants' status: legal viewpoints and the practice of the European Court of Human Rights, The European Court of Human Rights, The European Court of Justice, and The Constitutional Court of The Republic of Croatia
Jasna Omejec
; Faculty of Law, University of Zagreb, Zagreb, Croatia
Abstract
The status of civil servants whose jobs are related to executing public authority or who are in charge of performing tasks form the scope of state administrative bodies stipulated in the Constitution, laws, or other regulations based on the Constitution and law, differs from the status of private law employees. Beginning with the particularities of civil servants’ relations, the author discusses whether civil servants are protected by the guarantees stipulated in the Croatian Constitution and the European Convention for the Protection of Human Rights and Fundamental Freedoms when they file cases against the State with regard to the conditions of their service?
The European Court of Human Rights has been preoccupied with general applicability of the first sentence of Article 6, Paragraph 1 of the Convention to the cases concerning civil servants’ relations. The Court’s legal viewpoints in that matter have changed. These changes are presented in the paper together with a detailed description of the Court’s current legal viewpoint on civil servants’ relations based on the functional criterion, which originates from civil servants’ tasks and competences. According to this criterion, cases filed by civil servants against their employer – the State – are excluded from Article 6, Paragraph 1 of the Convention if the civil servant filing the case is
in charge of the protection of general interests of the State.
The European Commission and the European Court of Justice have similar viewpoints, which is visible from their interpretation of the applicability of Article 48, Paragraph 4 of the Treaty of the European Economic Community. The Treaty signed on 25 March 1957 marked the foundation of the EEC and its Article 48, Paragraph 4 regulates the cases of permitted deviations from the freedom of movement of workers within the Community considering their employment in public services.
Unlike the above mentioned European institutions, the Constitutional Court of the Republic of Croatia has not accepted the functional criterion, and, therefore, civil servants in Croatia who perform tasks related to executing public authority have the right to constitutional-court protection with regard to the conditions of their service. Such approach of the Constitutional Court has originated from different scopes of Article 29, Paragraph 1 of the Constitution and Article 6, Paragraph 1 of the Convention, as well as from insufficiently regulated demarcation of competence between the Constitutional Court and the Supreme Court of the Republic of Croatia, which is the highest court in the country, with powers to ensure equal applicability of laws and equality of citizens in the courts of law.
Keywords
civil servant; civil servants’ dispute; functional criterion; the Constitutional Court of the Republic of Croatia; the European Court of Human Rights; the European Union
Hrčak ID:
135903
URI
Publication date:
30.6.2006.
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