FIRST SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 17169/06
by Heinz FELLER
against Austria
The European Court of Human Rights (First Section), sitting on 4 February 2010 as a Chamber composed of:
Nina Vajić, President,
Anatoly Kovler,
Elisabeth Steiner,
Dean Spielmann,
Sverre Erik Jebens,
Giorgio Malinverni,
George Nicolaou, judges,
and Søren Nielsen, Section Registrar,
Having regard to the above application lodged on 26 April 2006,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr. Heinz Feller, is an Austrian national who was born in Vienna and lives in Leopoldsdorf. He was represented before the Court by Mr T. Mödlagl, a lawyer practising in Vienna. The Austrian Government (“the Government”) were represented by their Agent, Ambassador F. Trauttmansdorff, Head of the International Law Department at the Federal Ministry of Foreign Affairs.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant is an architect who is employed by the municipality of Vienna as a local government civil servant.
On 2 June 2001 he was hurt in a car accident and was on sick leave from 5 June 2001.
After having examined the expert opinions of a psychiatrist, a labour psychologist and an orthopaedist, the public health officer (Amtsarzt), on 30 October 2001, came to the conclusion that the applicant could work if special conditions, in particular easy physical work, no deadlines and no psychological hardship, were met.
On 22 November 2001 the applicant was informed about the above findings and he was offered work without hardship. The applicant refused this offer, because he wanted to stay in his old job but was not yet fit to perform all the duties allotted to it. Therefore, he decided to remain on sick leave.
On 23 November 2001 the Municipal Authority Division 19 (Magistratsabteilung 19), relying on the expert opinion of the public health officer, ordered him to return to work immediately.
Thereupon, the applicant submitted a letter from his general practitioner attesting that he was incapable of working.
Two additional expert opinions by public health officers, based on opinions by official medical experts (Amtssachverständiger), came to the conclusion that the applicant could work under certain restrictions, and twice the applicant refused to appear at work and sent medical certificates from his general practitioner.
On 19 February 2002 the director of Municipal Authority Division 19 informed the applicant of the consequences of being absent without permission.
On 25 February 2002 a summons ordering the applicant to appear for an examination with the public health officer was served on him by deposition in the post office (Hinterlegung). However, the applicant did not appear for this examination and subsequently was absent when the public health officer tried to visit him at home. Again, the applicant sent a medical certificate from his general practitioner.
The Municipal Authority Division 2 informed the applicant that it was investigating whether he was absent from work on his own authority and without permission.
The applicant, now represented by counsel, submitted several medical certificates and opinions of medical doctors showing that he was not capable of working.
On 24 July 2002 the public health officer and an officially appointed psychiatric expert visited the applicant at home. Since the applicant refused to remove his top clothing no examination could take place.
The applicant submitted a private expert opinion to the Municipal Authority, attesting that he was unable to come to work.
The Municipal Authority Division 2 issued three decisions, on 1 August 2002, 17 March 2003 and 3 April 2003, holding that the applicant had lost his entitlement to salary payments for the period from 29 November 2001 to 3 March 2003.
Upon the applicant's request to appoint an independent medical expert, the Vienna Public Service Appeals Board (Dienstrechtssenat der Stadt Wien) appointed Dr P., who examined the applicant and issued his opinion on 14 January 2004.
On 5 August 2004 the Vienna Public Service Appeals Board, without holding a public hearing, granted the applicant's appeal in part concerning the first decision and held that the applicant had lost his entitlement to salary payments only on 26 February 2002 and not on 29 November 2001. The senate's decision comprised thirty-nine pages in which all medical expert opinions were assessed in detail.
The applicant lodged a complaint with the Constitutional Court and subsequently the Public Service Appeals Board submitted its observations.
In his reply to the Public Service Appeals Board's submissions, on 29 November 2004, the applicant requested the Constitutional Court to hold a public hearing in these proceedings.
On 29 November 2005 the Constitutional Court dismissed the applicant's complaint without a hearing. It held that Article 6 of the Convention was not applicable to the proceedings at issue, because of the applicant's involvement in the shaping of public space.
B. Relevant domestic law
1. The Vienna Public Service Appeals Board
The relevant rules are contained in the 1994 Civil Service Act for Vienna (Dienstordnung 1994). In the version in force at the material time it provided as follows.
Pursuant to section 74a § 1 the Board decides, inter alia, on appeals against decisions issued by the municipality in matters which belong to its proper sphere of competence and in which it had applied the Public Service Procedure Act (Dienstrechtsverfahrensgesetz)
Section 74b regulates the composition of the Board. Its paragraph 1 provides that its chair and his or her substitute are judges, one member and his or her substitute being a legally trained civil servant. The seven other members must belong to the different grades of service (Verwendungsgruppen). The members are appointed by the Vienna Municipal Council.
According to section 74b § 1 the term of office is five years.
Section 74b § 5 provides that the Board decides in panels (Senate) consisting of three members, the chair or his or her substitute, one legally trained civil servant and one civil servant who belongs to the same grade of service as the civil servant concerned by the proceedings.
Section 74d § 2 provides that the Board decides by a majority of votes. Section 74c § 4 provides that the members of the Board are not bound by any instructions in the exercise of their functions.
The Board's decisions are not subject to an appeal to the Administrative Court. They are, however, subject to a complaint to the Constitutional Court, and, if they concern decisions given in disciplinary proceedings, to the Administrative Court.
2. Hearings before the Vienna Public Service Appeals Board
Hearings before the Appeals Commission are governed by the Code of General Administrative Procedure (Allgemeines Verwaltungsverfahrens-gesetz). Article 40 § 1 of this Act provides as follows:
“Oral hearings shall be held in the presence of all known parties and the necessary witnesses and experts...”
It has been the practice of administrative authorities to hold oral hearings in camera unless the law provides otherwise. The Constitutional Court, however, modified this approach in 2001. The Constitutional Court found that while Article 40 of the Code of General Administrative Procedure did not provide for a public hearing it did, at the same time not rule out the holding of a public hearing in Administrative Proceedings. In matters which fell within the civil rights limb of Article 6 § 1 of the Convention a hearing before a tribunal within the meaning of that provision must be held in public (Decision of 13 December 2001, VfSlg 16402; Decision 23 June 2005, VfSlg 17597; Decision 12 June 2006, VfSlg 17855).
COMPLAINTS
The applicant complained under Article 6 § 1of the Convention about the lack of a public oral hearing. He further complained under the same provision about the outcome of the proceedings, the lack of impartiality of the official medical experts and of Dr P. Furthermore, he complained that the assessment of Dr. P's expert opinion had been incorrect.
THE LAW
1. The applicant complained about the lack of a public oral hearing in these proceedings. He relied on Article 6 § 1 of the Convention, which reads as follows:
“In the determination of his civil rights and obligations ..., everyone is entitled to a fair and public hearing ... by [a] ... tribunal...”
The Government submitted that the applicant, represented by counsel, had failed to request a hearing before the Vienna Public Service Appeals Board. He had therefore failed to exhaust domestic remedies. As regards the merits of the application the Government accepted that, having regard to the criteria established in the case of Vilho Eskelinen and Others v. Finland (no. 63235/00, ECHR 2007‑IV) Article 6 § 1 was applicable to the proceedings at issue. They further submitted that, having regard to the relevant rules on the establishment of this body, the Vienna Public Service Appeals Board qualified as a tribunal within the meaning of Article 6 § 1 and the applicant could have had a hearing before this authority if he had asked for one. In any event a hearing had not been necessary. Relying on the case of Kaipila v. Finland (Decision, no. 49453/99, 18 October 2005), the Government argued that also in the present case the decision to be taken by the authority had to rely to a large extent on the expert opinion of medical doctors and therefore was better determined in writing. Moreover, since the subject matter of the dispute was the applicant's ability to work, sensitive health data had to be examined, which would justify the absence of an oral hearing.
This is disputed by the applicant. He maintained that he had exhausted domestic remedies, because the Vienna Public Service Appeals Board did not normally hold oral hearings and there had been no point in asking for one, because it was entirely at the Board's discretion whether to hold a hearing or not. As regards the merits of the complaint, the applicant agreed with the Government that Article 6 § 1 applied to the proceedings at issue and that the Vienna Public Service Appeals Board did qualify as a tribunal within the meaning of Article 6 § 1. However, he maintained that throughout the entire proceedings he did not have an opportunity to have a public hearing and that the Government had failed to give clear reasons why the exclusion of the public was in the interest of secrecy in his case.
The Court reiterates that Article 35 § 1 requires that normal recourse should be had by an applicant to remedies which are available and sufficient to afford redress in respect of the breaches alleged (see Akdivar and Others v. Turkey, judgment of 16 September 1996, Reports 1996‑IV, p. 1210, § 66). In the area of the exhaustion of domestic remedies there is a distribution of the burden of proof. It is for the Government to show that the remedy was an effective one available in theory and in practice at the relevant time, that is to say that it was accessible, was capable of providing redress in respect of the applicant's complaints, and offered reasonable prospects of success. However, once this burden of proof has been satisfied it falls to the applicant to establish that the remedy advanced by the Government has in fact been exhausted or was for some reason inadequate and ineffective in the particular circumstances of the case (ibid., p. 1211, § 68).
At the outset, the Court would agree with the parties that Article 6 § 1 of the Convention is applicable to the proceedings at issue. Further, having regard to its case-law on tribunals within the meaning of Article 6 § 1, (see for instance, Stallinger and Kuso v. Austria, judgment of 23 April 1997, Reports of Judgments and Decisions 1997-II, §§ 34-37, relating to land reform boards, Rozsa v. Austria (dec.), no. 67950/01, 6 April 2004, concerning trial and appeal boards for tax offences, and Stojakovic v. Austria, no. 30003/02, §§ 46-50, 9 November 2006, relating to the Appeals Commission under the Civil Servants Act), the Court considers that the Vienna Public Service Appeals Board has to be regarded as a tribunal within the meaning of Article 6 § 1. In this respect the Court observes that the Board determining matters within its competence on the basis of the rule of law and after proceedings conducted in a prescribed manner should decide in three-member panels: a judge as a chairman, a legally trained civil servant from the complainant's department as the representative of the employer and a further civil servant, that its members are appointed for a five-year term and are not bound by any instruction in the exercise of their functions. Furthermore, under Article 40 of the Code of General Administrative Procedure, as interpreted by the Constitutional Court, hearings before the Vienna Public Service Appeals Board, in cases like the present one, would be public.
This being so the applicant, assisted by counsel throughout the proceedings, could be expected to ask for a public hearing if he wished for one to be held. In view of the Court's case-law on that matter, neither the argument that the Vienna Public Service Appeals Board has discretion whether to hold a hearing nor that it does not normally hold one, can dispense the applicant from making an explicit request for an oral hearing (see Riess-Passer v. Austria (dec.), no. 31820/04, 20 September 2007). Since the applicant failed to do so, he failed to exhaust domestic remedies.
It follows that this part of the application must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
2. The applicant further complained under Article 6 § 1 about the outcome of the proceedings, of lack of impartiality on the part of the official medical experts and of Dr P. and of wrongful assessment of Dr P.'s expert opinion.
However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.
It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Decides to discontinue the application of Article 29 § 3 of the Convention;
Declares the application inadmissible.
Søren NielsenNina Vajić
RegistrarPresident
Full & Egal Universal Law Academy