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
Full & Egal Universal Law Academy