PROCEDURE

The case originated in an application (no. 8453/04) against the Federal Republic of Germany lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a German national, Mr Detlef Bayer (“the applicant”), on 1 March 2004.

The applicant was represented by Mr D. Herrmann, a lawyer practising in Karlsruhe. The German Government (“the Government”) were represented by their Agent, Mrs A. Wittling-Vogel, Ministerialdirigentin, of the Federal Ministry of Justice.

On 11 February 2008 the President of the Fifth Section decided to give notice of the application to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 3).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

The applicant was born in 1949 and lives in Linsengericht.

He joined the civil service in 1967 and was appointed a civil servant in 1969. In 1976 the applicant was appointed a bailiff and civil servant for life. In 1984 he was promoted to chief bailiff.

In 1985 a new supervisor (Dienstvorgesetzte) was appointed for him, with whom he had numerous professional disputes. The applicant unsuccessfully challenged a great number of his supervisor's instructions in court. Despite this being pointed out to him, he continued to ignore his supervisor's guidance and to act contrary to the latter's instructions.

On 28 November 1986 preliminary disciplinary investigations were opened against the applicant. On 17 July 1987 a final (preliminary) report was drawn up. On 3 August 1987 the applicant was informed that the preliminary investigations had been closed. However, the preliminary investigations had to be re-started and expanded as numerous further misdemeanours possibly committed by the applicant had been discovered.

On 9 May 1990 the President of the Frankfurt Court of Appeal opened formal disciplinary investigations against the applicant on suspicion of a large number of misdemeanours committed from 1987 to 1990. The allegations included false recording of enforcement proceedings, imposition of excessive costs and hindering audits of his professional conduct.

On 3 November 1990 the applicant challenged the President of the Frankfurt Court of Appeal for bias. As no decision was reached, the applicant complained to the Hessen Ministry of Justice, which, on 28 February 1991, informed him that he had no right to lodge complaints of bias in the framework of disciplinary investigations.

In the meantime, the disciplinary proceedings were stayed on 29 November 1990 in accordance with Article 14 § 1 of the Hessen Disciplinary Code (see paragraph 30 below) (“the Code”) with respect to the then ongoing criminal proceedings concerning the same facts. Moreover, the applicant was temporarily removed from office. His basic remuneration remained unaffected.

On 20 September 1991 the applicant again challenged the President of the Frankfurt Court of Appeal for bias; on 8 October 1991 the latter rejected the challenge as being unfounded, and on 7 November 1991 the Hessen Ministry of Justice, again informed the applicant that he had no right to challenge members of the investigating authority for bias.

On 12 December 1991 the applicant was acquitted of the criminal charges and the criminal proceedings were thus terminated.

On 3 May 1995 the disciplinary investigations were resumed.

The formal disciplinary investigations were closed and a first formal report was drawn up on 20 October 1995. However, as the hearing of further witnesses was necessary, the investigation was continued. According to a note dated 27 September 1996 the delays in the investigation were due to the complexity of the case and to the processing of priority disciplinary matters. On 5 February 1997 the final report was drawn up.

On 25 August 1997 the President of the Court of Appeal ordered the head of the investigation to compile the charges.

On 17 October 1997 the prosecutor in charge of the preparation of the charges withdrew due to overwork and illness and had to be replaced by another prosecutor.

On 27 September 1999 the charges were finalised. They were received by the Disciplinary Chamber of the Frankfurt Administrative Court on 12 January 2000. The applicant was accused of having hindered the audit of his professional conduct on three occasions, having falsified and then charged for disbursements and fees without any legal basis on 541 occasions and having acted against his supervisor's instructions on multiple occasions.

On 20 March 2000 the applicant requested that the court hear further witnesses.

On 6 July and 23 November 2000 oral hearings were held. On the latter date the proceedings were stayed and the charges were sent back to the investigating authority to correct errors.

From 19 February to 6 March 2001 eight witnesses were reheard by the investigating authority. On 21 March 2001 the applicant was scheduled to be heard but failed to attend.

On 1 June 2001 the revised charges of 11 May 2001 were submitted to the Administrative Court along with 48 volumes of files.

On 5 July 2001 the applicant repeated his request of 20 March 2000 as no decision had been taken on his request to hear further witnesses.

On 30 October 2001 the Frankfurt Administrative Court held an oral hearing and decided to remove the applicant from office in accordance with the provisions of the Hessen Civil Service Act and the Disciplinary Code as he had been found responsible for 519 misdemeanours between 27 November 1987 and 3 November 1990.

On 11 December 2001 the applicant appealed to the Kassel Administrative Court of Appeal.

On 1 July 2003 the Kassel Administrative Court of Appeal dismissed the applicant's appeal. It found that Article 6 of the Convention was not applicable to disciplinary proceedings and that, in contrast to criminal proceedings, unreasonable delays could not result in the discontinuation of the proceedings or in the reduction of the penalty. The court further found that there had been no reason to formally decide on the applicant's requests of 20 March 2000 and 5 July 2001 to hear witnesses as the requests were wholly unsubstantiated.

On 7 August 2003 the applicant lodged a constitutional complaint with the Federal Constitutional Court regarding the length of the proceedings and the interpretation and application of procedural rules and substantial provisions of disciplinary law.

On 10 September 2003 the Federal Constitutional Court refused to admit the applicant's constitutional complaint without giving reasons.
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CODE
DIRECT
8453/04
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ORG
NO_MASK
Federal Republic of Germany
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DEM
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German
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PERSON
DIRECT
Mr Detlef Bayer
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DATETIME
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1 March 2004
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PERSON
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Mr D. Herrmann
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LOC
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Karlsruhe
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DEM
NO_MASK
German
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Mrs A. Wittling-Vogel
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Ministerialdirigentin
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Federal Ministry of Justice
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DATETIME
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11 February 2008
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DATETIME
QUASI
1949
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LOC
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Linsengericht
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DATETIME
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1967
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DEM
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civil servant
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DATETIME
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1969
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1976
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DEM
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bailiff
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DEM
QUASI
civil servant
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DATETIME
QUASI
1984
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DEM
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bailiff
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DATETIME
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1985
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28 November 1986
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17 July 1987
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3 August 1987
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9 May 1990
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ORG
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Frankfurt Court of Appeal
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1987 to 1990
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3 November 1990
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ORG
QUASI
Frankfurt Court of Appeal
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ORG
QUASI
Hessen Ministry of Justice
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DATETIME
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28 February 1991
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29 November 1990
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LOC
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Hessen
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20 September 1991
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Frankfurt Court of Appeal
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8 October 1991
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7 November 1991
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Hessen Ministry of Justice
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12 December 1991
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3 May 1995
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20 October 1995
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27 September 1996
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5 February 1997
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25 August 1997
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17 October 1997
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27 September 1999
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Disciplinary Chamber of the Frankfurt Administrative Court
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12 January 2000
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20 March 2000
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6 July and 23 November 2000
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19 February to 6 March 2001
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21 March 2001
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1 June 2001
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11 May 2001
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Administrative Court
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5 July 2001
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20 March 2000
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30 October 2001
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Frankfurt Administrative Court
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LOC
QUASI
Hessen
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27 November 1987
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3 November 1990
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11 December 2001
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Kassel Administrative Court of Appeal
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1 July 2003
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Kassel Administrative Court of Appeal
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20 March 2000
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5 July 2001
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7 August 2003
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Federal Constitutional Court
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10 September 2003
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Federal Constitutional Court
Detlef Bayer
DEU
CHAMBER
Task: Annotate the document to anonymise the following person: Detlef Bayer