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VORHEMES v. AUSTRIA

Doc ref: 33378/96 • ECHR ID: 001-4271

Document date: May 21, 1998

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Cited paragraphs: 0
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VORHEMES v. AUSTRIA

Doc ref: 33378/96 • ECHR ID: 001-4271

Document date: May 21, 1998

Cited paragraphs only

AS TO THE ADMISSIBILITY OF

Application No. 33378/96

by Franz VORHEMES

against Austria

The European Commission of Human Rights (First Chamber) sitting

in private on 21 May 1998, the following members being present:

MM M.P. PELLONPÄÄ, President

N. BRATZA

E. BUSUTTIL

A. WEITZEL

C.L. ROZAKIS

Mrs J. LIDDY

MM L. LOUCAIDES

B. MARXER

B. CONFORTI

I. BÉKÉS

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

M. VILA AMIGÓ

Mrs M. HION

Mr R. NICOLINI

Mrs M.F. BUQUICCHIO, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 17 July 1996 by

Franz VORHEMES against Austria and registered on 7 October 1996 under

file No. 33378/96;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant, born in 1935, is an Austrian national and resident

in Vienna. In the proceedings before the Commission he is represented

by Mr. Richard Soyer, a lawyer practising in Vienna.

The facts of the case, as submitted by the applicant, may be

summarised as follows.

On 29 September 1988 the Regional Tax Authority of Vienna

(Finanzlandesdirektion Wien) ordered the applicant, a civil servant at

the customs office in Vienna, to take early retirement as being

permanently unfit for duty. The authority, having regard to a medical

expert opinion, considered that he was suffering from paranoia

querulans. Moreover the Tax Authority found that he had repeatedly

violated his professional duties and also accused his superiors of

having committed criminal offences.

On 7 July 1989 the Federal Ministry for Financial Affairs

(Bundesministerium für Finanzen), after further investigations and an

oral hearing, dismissed the appeal (Berufung) lodged by the applicant,

basing its decision mainly upon the medical expert opinion. It also

found that sufficient access to the files had been granted to the

applicant and that the allegation of bias on the part of the authority

lacked any ground.

On 20 December 1995, the Administrative Court

(Verwaltungsgerichtshof) dismissed the applicant's appeal (Beschwerde).

The Administrative Court held that the compulsory retirement had been

lawful. The Court pointed out that unfitness for duty could also result

from the incapacity to maintain correct relations with one's colleagues

and superiors. The applicant's request for an oral hearing was

dismissed. The decision was served on 2 February 1996.

The applicant's requests for a reopening of the proceedings were

to no avail.

COMPLAINTS

The applicant complains under Article 6 about the length of

proceedings. Furthermore he complains that no oral hearing was granted

to him before the Administrative Court. In his view, he had no access

to a tribunal in the sense of Article 6.

THE LAW

The applicant complains about the length of the proceedings which

led to his retirement. He relies on Article 6 (Art. 6) which, as far

as relevant, provides as follows:

"1. In the determination of his civil rights and obligations or

of any criminal charge against him, everyone is entitled to a ...

hearing within a reasonable time by [a] ... tribunal ..."

The Commission recalls that disputes relating to the recruitment,

careers and termination of service of public servants are as a general

rule outside the scope of Article 6 para. 1 (Art. 6-1). However,

State intervention by means of public-law legislation or delegated

legislation has not prevented the Convention organs from finding in

several cases that the right in issue was a civil one. Thus,

notwithstanding public-law aspects, Article 6 para. 1 (Art. 6-1)

applies to disputes concerning an obligation on the State to pay a

pension to a public servant or a public servant's spouse in accordance

with the legislation because, in performing this obligation, the State

is not using discretionary powers and may be compared, in this respect,

to an employer who is a party to a contract of employment governed by

private law (cf. Eur. Court HR, Francesco Lombardo and Giancarlo

Lombardo v. Italy judgments of 26 November 1992, Series A no. 249-B,

p. 26, para. 17, and no. 249-C, p. 42, para. 16; Massa v. Italy

judgment of 24 August 1993, Series A no. 265-B, para. 26; Neigel v.

France judgment of 17 March 1997, Reports 1997-II no. 32, para. 43;

Soldani v. Italy judgment of 4 September 1997, Reports 1997-V no. 48,

para. 18).

The present case relates to proceedings concerning the

applicant's compulsory early retirement. The competent authorities

found that he was unfit to comply with his duties as a civil servant

and that he had repeatedly violated his professional duties and also

accused his superiors of having committed criminal offences. Thus the

proceedings complained of relate to the termination of the applicant's

service as a civil servant. This matter belongs to the sphere of a

State's discretionary powers in organising, as a matter of public law,

the civil service. Consequently, no determination of the applicant's

"civil rights" was at issue (cf. No. 23576/94, Dec. 29.11.95,

unpublished; and, mutatis mutandis, Soldani v. Italy judgment, op.

cit., para. 19, concerning a dispute relating to the career of a civil

servant).

Article 6 (Art. 6) does not, therefore, apply to the proceedings

complained of by the applicant.

It follows that the application is incompatible ratione materiae

with the provisions of the Convention within the meaning of

Article 27 para. 2 (Art. 27-2).

For these reasons, the Commission, by a majority,

DECLARES THE APPLICATION INADMISSIBLE.

M.F. BUQUICCHIO M.P. PELLONPÄÄ

Secretary President

to the First Chamber of the First Chamber

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