Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 27633/95

by Helga STADLER

against Austria

The European Commission of Human Rights (First Chamber) sitting

in private on 10 April 1997, the following members being present:

Mrs. J. LIDDY, President

MM. M.P. PELLONPÄÄ

E. BUSUTTIL

A. WEITZEL

C.L. ROZAKIS

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 21 February 1995

by Helga STADLER against Austria and registered on 15 June 1995 under

file No. 27633/95;

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 is an Austrian citizen, born in 1946 and residing

in Maria Enzersdorf. She is a civil servant in the Ministry for

Agriculture and Forests (Bundesministerium für Land- und

Forstwirtschaft).

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

summarised as follows.

A. Relevant facts

a. Disciplinary proceedings

In December 1989 the Ministry's Disciplinary Board

(Disziplinarkommission) decided to institute disciplinary proceedings

against the applicant. She filed a complaint against this decision

with the Administrative Court (Verwaltungsgerichtshof). On

23 April 1990 the Disciplinary Board discontinued the disciplinary

proceedings on the ground that these proceedings had become time-

barred. On 28 June 1990 the Administrative Court therefore

discontinued the proceedings on the complaint brought by the applicant.

Her further requests for re-opening of the disciplinary proceedings as

well as appeals remained unsuccessful.

These disciplinary proceedings were the subject of a previous

application to the Commission (No. 23125/93) which the Commission, on

31 August 1994, declared inadmissible.

b. Proceedings for the determination of an extra duties allowance

From 1984 onwards the applicant was the deputy head of the

department for internal auditing (Interne Revision) in the Ministry for

Agriculture and Forests. From 1 April 1989 to 31 March 1990 S., the

head of the department, was on temporary leave and seconded to the

Court of Audit (Rechnungshof). From the beginning of this period the

applicant as his deputy headed the department.

On 16 May 1989 the applicant filed a request for an extended

extra duties allowance (Verwendungszulage; see below "Relevant domestic

law") with the Ministry of Agriculture and Forests to compensate her

for her additional work load and her additional responsibility as

deputy head of the department.

On 27 June 1989 M. was appointed as provisional head of the

department for internal auditing. This appointment was made public in

August 1989.

On 21 September 1989 the responsible civil servant in the

Ministry of Agriculture and Forests qualified the applicant's request

as one for a simple extra duties allowance (Verwendungsabgeltung) and

transmitted this request for approval to the Federal Chancellor's

Office (Bundeskanzleramt).

On 18 December 1989 the Ministry for Agriculture and Forestry,

in a summary decision (Dienstrechtsmandat), granted the applicant a

simple extra duties allowance for the period from 1 April 1989 until

30 June 1989.

On 3 January 1990 the applicant filed objections (Vorstellung)

against the summary decision. She submitted that M., head of the

department for external auditing, had been appointed as provisional

head of the department for internal auditing on 29 June 1989. This

appointment was only effective as from 28 August 1989. As she had not

been officially removed from her position as substitute head of the

department, she continued to occupy the position of substitute head

even after the appointment of M. Consequently, she was entitled to an

extended extra duties allowance also for the period after 30 June 1989.

Though the calculation of the allowance must be altered after M. had

started to work on 30 August, the allowance could not be cancelled

completely. Furthermore she pointed out that M.'s position as head of

the department for external auditing was incompatible with his

functions in the department for internal auditing. This circumstance

would have to be taken into account in the calculation of the simple

extra duties allowance. She therefore requested the re-calculation of

her "simple extra duties allowance (extended extra duties allowance)".

By letter of 14 February 1990 the Ministry of Agriculture and

Forests informed the applicant that it intended to grant her a simple

extra duties allowance for the period from 1 April 1989 until

31 August 1989. It stated that the appointment of M. as provisional

head of the department for internal auditing was effective as from

30 August 1989. Therefore the applicant's function as substitute head

of the department had ended on 30 August 1989. As far as the

incompatibility of M.'s functions as head of the department for

external auditing and provisional head of the department for internal

auditing was concerned, the Ministry pointed out that the Federal

Chancellor's Office had stated that there were no grounds for

incompatibility of the functions. Besides this, this question was

irrelevant for the assessment of the applicant's simple extra duties

allowance.

On 19 May 1990 the applicant commented on the Ministry's letter

of 14 February 1990. She repeated that she was still substitute head

of the department for internal auditing, contested that M. had been

validly appointed and again raised doubts about the compatibility of

M.'s functions. She claimed a simple extra duties allowance for the

whole period of actual substitution, namely from 1 April 1989 until

31 March 1990.

On 14 February 1991 the Ministry for Agriculture and Forests

granted the applicant a simple extra duties allowance for the period

from 1 April 1989 until 31 August 1989 and dismissed her request for

an allowance for the period from 1 September 1989 until 31 March 1990.

The Ministry found that the applicant had actually been in charge of

the department as substitute to the head from 1 April 1989 until

30 August 1989. For this period she was therefore entitled to a simple

extra duties allowance.

On 4 April 1991 the applicant, represented by counsel, filed a

complaint with the Administrative Court. She submitted that the former

head of the department had decided to stay permanently with the Court

of Audit. The post of the head of the department was therefore vacant.

As she had never been removed from her functions as actual head of the

department and as someone was needed in the department who did not

exercise any incompatible functions, she was still provisional head of

the department. Since only the abstract scope of her responsibilities

was decisive for the allowance she had a right to a simple extra duties

allowance until 31 January 1991, on which date she had been seconded

to the Office of the Parliament (Parlamentsdirektion).

On 14 September 1994 the Administrative Court dismissed the

complaint. Referring to the provisions of Section 30a paras. 1 (3) and

5 of the Salaries Act (Gehaltsgesetz) it found that the only issue to

be determined was whether or not the applicant had been entitled to a

simple extra duties allowance. She had not complained to the

Administrative Court that she had been entitled to an extended extra

duties allowance and the case file did not show that she had been

entitled to such an allowance.

After the appointment of M. and in any case after

1 September 1989 the applicant had no longer performed any duties

connected with the position of a head of the department. Under the law

a right to a short-term allowance required that these duties must be

actually exercised, therefore the applicant did not satisfy the

conditions for a short-term allowance after this date. The mere

function of a substitute to the head of the department without the

actual fulfilment of the respective duties was not sufficient. The

validity of M.'s appointment was therefore irrelevant. This decision

was served on the applicant on 6 October 1994.

On 17 November 1994 the applicant filed a complaint

(Säumnisbeschwerde) with the Administrative Court in which she

complained that the Ministry had failed to decide her application of

16 May 1989 for an extended extra duties allowance. She also filed a

request with the Administrative Court for the re-opening of the

proceedings on her complaint of 4 April 1991 as she considered that the

Ministry for Agriculture and Forests had concealed from the

Administrative Court that she had filed on 16 May 1989 a request for

an extended extra duties allowance.

c. The applicant's position in the department for internal auditing

On 22 September 1989, after M. had been appointed as provisional

head of the department for internal auditing, the applicant contested

M.'s appointment and requested a formal decision stating that she was

in charge of the department.

In its decision of 1 March 1990 the Ministry for Agriculture and

Forests stated that the applicant was the deputy head of the department

for internal auditing. Neither the transfer of S., the former head of

the department, to the Court of Audit nor M.'s appointment as

provisional head of the division had affected her position.

Against this decision the applicant lodged a complaint with the

Administrative Court.

On 14 September 1994 the Administrative Court dismissed her

complaint and found that the appointment of an interim head of the

department did not deprive the applicant of her function as deputy

head.

d. The applicant's position in the public administration

By letter of 24 October 1990 the Ministry of Agriculture and

Forests released the applicant from her functions and assigned her to

another department (III B 11) where she was appointed as substitute to

the head of the department.

The applicant objected to this transfer and complained that a

valid transfer would have required a formal decision (Bescheid) instead

of an order (Weisung) as it concerned a qualified change of her

employment (qualifizierte Verwendungsänderung). She refused to take

up her functions in the new department.

On 21 January 1991 the Ministry of Agriculture and Forests

seconded the applicant to the Office of the Parliament

(Dienstzuteilung) and informed her that this temporary measure had no

effect on her position in the new department.

On 14 February 1991 the applicant requested a formal decision

finding that she was still deputy head of the department for internal

auditing.

After the termination of her secondment to the Office of the

Parliament on 1 March 1992, the applicant went on holidays and sick-

leave until the end of February 1993. During her holidays the Ministry

of Agriculture and Forests assigned her as from 1 May 1992 to the

department III B 6. Again the applicant contested the validity of this

measure and requested a formal decision to be taken.

Subsequently the applicant filed a complaint with the

Administrative Court in which she complained about the Ministry's

failure to take a formal decision.

On 28 September 1994 the Administrative Court ordered the

Ministry to take the requested decision.

On 13 December 1994 the Ministry for Agriculture and Forests took

this formal decision and dismissed the applicant's request. It found

that the applicant's position in the public administration had not been

substantially affected by the mere transfer from one department of the

Ministry to another. This measure therefore had not required a formal

decision to be taken.

In January 1995 the applicant lodged a complaint with the

Administrative Court against the decision. Repeating her previous

arguments that the posting decisions were unlawful she pointed out that

in the department III B 6 her position as substitute to the head of the

department was not respected, that she got no training and that she was

also otherwise badly treated by her superior and colleagues.

This complaint is still pending before the Administrative Court.

B. Relevant domestic law

Section 30 a paras. 1 and 5 of the Salaries Act (Gehaltsgesetz),

insofar as relevant, reads as follows:

[German]

"(1) Dem Beamten gebührt eine ruhegenußfähige Verwendungszulage,

wenn er dauernd

...

3. ein besonderes Maß an Verantwortung für die Führung der

Geschäfte der allgemeinen Verwaltung zu tragen hat und diese

Verantwortung über dem Ausmaß an Verantwortung liegt, das Beamte

in gleicher dienst- und besoldungsrechtlicher Stellung tragen.

(5) Leistet der Beamte die in Abs. 1 erwähnten Dienste nicht

dauernd, aber mindestens während eines Kalendermonates, so

gebührt ihm hiefür eine nicht ruhegenußfähige Verwendungs-

abgeltung ..."

[Translation]

"(1) A civil servant is entitled to an extra duties allowance

which has to be taken into account when assessing his pension

claim, if he permanently

...

3. has a considerable level of responsibility for the

accomplishment of tasks of general administration and if this

level of responsibility exceeds the one which is normally

connected with a position in an equal grade.

(5) If the civil servant does not permanently perform the duties

mentioned in para. 1, but at least during one month, he is

entitled to an extra duties allowance, which shall not be taken

into account when assessing his pension claim ..."

COMPLAINTS

1. The applicant complains about the disciplinary proceedings in

various respects and invokes Article 6 para. 1, 7 and 13 of the

Convention.

2. She further complains under Article 6 para. 1 of the Convention

that the proceedings on the determination of her position within the

Ministry were unfair and unreasonably lengthy. Under Article 14 of the

Convention she complains that M.'s appointment amounted to a

discrimination against her as a woman.

3. She also complains under Article 4 of the Convention that the

transfer to another department within the Ministry amounted to forced

labour as she feels unqualified to fulfil the required tasks which do

not correspond to her previous tasks.

4. Lastly, she complains under Article 6 para. 1 of the Convention

that the proceedings on the determination of an extra duties allowance

had been unfair. She submits that she was denied access to the

administrative file, that the Ministry had wrongly altered her request

for an extended extra duties allowance into one for a simple extra

duties allowance and that for this reason the Administrative Court's

decision was based on incorrect facts in that her claim to an extended

extra duties allowance was wrongly dismissed by the Administrative

Court. She also complains about the length of the proceedings and

submits that the Administrative Court has not yet decided on her

request for a long-term allowance.

THE LAW

1. The applicant complains about the disciplinary proceedings in

various respects and invokes Articles 6 para. 1, 7 and 13

(Art. 6-1, 7, 13) of the Convention.

However, the Commission need not determine whether or not the

facts alleged by the applicant disclose any appearance of a violation

of the Convention rights invoked by her, as under Article 27 para. 1

(b) (Art. 27-1-b) the Commission shall not deal with an application

which is substantially the same as a matter which has already been

examined by the Commission and if it contains no relevant new

information.

The Commission observes that the applicant has filed a previous

application (No. 23125/93) concerning the disciplinary proceedings

conducted against her, which the Commission on 31 August 1994 declared

inadmissible. The present application does not contain relevant new

information in this respect.

It follows that this part of the application must be rejected

under Article 27 para. 1 (Art. 27-1) of the Convention.

2. The applicant complains under Article 6 para. 1 (Art. 6-1) of the

Convention that the proceedings on the determination of her position

within the Ministry for Agriculture and Forests were unfair and

unreasonably lengthy.

The Commission recalls that disputes relating to the recruitment,

careers and termination of service of civil servants fall outside the

scope of Article 6 para. 1 (Art. 6-1) of the Convention (Eur. Court HR,

Francesco Lombardo v. Italy judgment of 26 November 1992, Series A no.

249-B, p. 26, para. 17; Neigel v. France judgment of 17 March 1997,

para. 43, to be published in Reports 1997-I). Furthermore, no right

to promotion is guaranteed by the Convention (Halford v. the United

Kingdom, Comm. Report 18.4.96, para. 89).

The Commission observes that the applicant's complaints relate

to the proceedings on the determination of the specific functions to

be performed by the applicant within the public sector. However

Article 6 para. 1 (Art. 6-1) of the Convention does not apply to such

proceedings.

It follows that this part of the 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.

3. The applicant also complains that the appointment of a male civil

servant as provisional head of the department amounted to a

discrimination against her on the basis of her sex and invokes

Article 14 (Art. 14) of the Convention.

The Commission recalls that Article 14 (Art. 14) of the

Convention has no independent existence in that, as stated in the

Convention itself, it covers only "rights and freedoms recognised in

the Convention" (No. 10733/84, Dec. 11.3.85, D.R. 41, p. 211; No.

10503/83, Dec. 16.5.85, D.R. 42, p. 162; No. 23728/94, Dec. 16.5.95,

unpublished).

The Commission refers to the above finding that the applicant's

complaint regarding the determination of her position in the civil

service falls outside the scope of the Convention and therefore is

incompatible ratione materiae with its provisions.

It follows that also this part of the 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.

4. The applicant further complains under Article 4 (Art. 4) of the

Convention that the transfer to a new department within the Ministry

amounted to forced labour as she feels not qualified to fulfil the

required tasks which do not correspond to her previous tasks.

The Commission recalls that the concept of forced or compulsory

labour within the meaning of Article 4 para. 2 (Art. 4-2) comprises two

elements. These elements are first that the labour or service must be

performed by the person concerned against his or her will and secondly

that the obligation to perform this labour or service must be either

unjust or oppressive, or must itself constitute avoidable hardship (No.

9322/81, Dec. 3.5.83, D.R. 32, p. 180; No. 20781/92. Dec. 29.6.94, D.R.

78-A, p. 116; No. 22351/93, Dec. 15.5.96, unpublished).

The Commission cannot find that any of the above criteria is met

in the present case. Therefore, there is no appearance of a violation

of the applicant's rights under Article 4 (Art. 4) of the Convention.

It follows that this part of the application is manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

5. The applicant complains under Article 6 para. 1 (Art. 6-1) of the

Convention that the proceedings on the determination of an extra duties

allowance were unfair. She submits that she was denied access to the

administrative file, that the Ministry had wrongly altered her request

for an extended extra duties allowance into one for a simple extra

duties allowance, that for this reason the Administrative Court's

decision was based on incorrect facts and that her claim to an extended

extra duties allowance was wrongly dismissed by the Administrative

Court. She also complains about the length of the proceedings and

submits that the Administrative Court has not yet decided on her

request for a long-term allowance.

Article 6 para. 1 (Art. 6-1) of the Convention, insofar as

relevant reads as follows:

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

everyone is entitled to a fair and public hearing within a

reasonable time by an independent and impartial tribunal

established by law."

The Commission need not determine whether or not the proceedings

concerning an extra duties allowance involved a determination of the

applicant's civil rights within the meaning of Article 6 para. 1

(Art. 6-1) of the Convention, because the above complaint is, in any

event, inadmissible for the following reasons.

The Commission observes that the applicant initially filed a

request for an extended extra duties allowance. The Ministry altered

this request into one for a simple extra duties allowance, as it

considered that the applicant did not fulfil the requirements for an

extended extra duties allowance, and in summary proceedings granted a

simple extra duties allowance for a specific period. During the

proceedings on the applicant's objections before the Ministry and in

her subsequent complaint to the Administrative Court, the applicant

never contested the qualification of the allowance granted as a simple

extra duties allowance. Rather, she explicitly contested the period

for which a simple extra duties allowance should have been paid. In

her various submissions she either mixed the terms or requested the

determination of a simple extra duties allowance. In particular, in

her complaint to the Administrative Court, which she submitted with the

assistance of a lawyer, no reference was made to the qualification of

the allowance nor to her initial request for an extended extra duties

allowance. The Administrative Court's decision was therefore based on

the applicant's explicit statements and requests in her complaint.

Insofar the applicant alleges that access to her file had been denied

the Commission observes that the applicant has not shown that she ever

had made a formal request to inspect her file and that such a request

had been refused.

In these circumstances the Commission finds that the above

proceedings do not disclose any appearance of a violation of the

applicant's right to a fair hearing under Article 6 para. 1

(Art. 6-1) of the Convention.

It follows that also this part of the application is manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

6. Lastly, the applicant complains under Article 6 para. 1

(Art. 6-1) of the Convention about the length of the proceedings on the

determination of an extra duties allowance.

The Commission considers that it cannot, on the basis of the

file, determine the admissibility of this complaint and that it is

therefore necessary, in accordance with Rule 48 para. 2 (b) of the

Rules of Procedure, to give notice of this complaint to the respondent

Government.

For these reasons, the Commission,

DECIDES TO ADJOURN the examination of the applicant's

complaint as regards the length of the proceedings for an

allowance.

and, unanimously,

DECLARES INADMISSIBLE the remainder of the application.

M.F. BUQUICCHIO J. LIDDY

Secretary President

to the First Chamber of the First Chamber

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STADLER v. AUSTRIA

STADLER v. AUSTRIA

LEXI