CASE OF GASSNER v. AUSTRIA
Remainder inadmissible;No violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Access to court;Reasonable time)
Elisabeth Steiner;Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska
4. The applicant was born in 1955 and lives in Eisenstadt. 5. The applicant is a judge at the Eisenstadt Regional Court. In July 1997 he made a study visit to the Commission of the European Union in Brussels. The Federal Ministry of Justice paid his travel expenses and granted the applicant two weeks’ special leave, in addition to which he took two weeks of his annual leave. 6. On 9 July 1997 the Federal Minister of Justice informed the applicant on his return that it would not reimburse any of the additional expenses he had claimed in the meantime on 20 June 1997. 7. On 5 September 1997 the applicant formally requested the reimbursement of further costs, incurred during the study visit, in particular the costs for his accommodation in the amount of Austrian schillings 17,699.75 (ATS - 1,284.11 euros (EUR)), and submitted additional records. 8. On 20 March 1998 the Federal Minister dismissed the applicant’s request on the grounds that the trip had not been an official journey – this having been made clear by the fact that the applicant had taken some annual leave during that period. 9. On 3 June 1998 the applicant filed a complaint with the Administrative Court. He submitted that the Federal Minister had interpreted the relevant law incorrectly and that if he had properly assessed the evidence he would have concluded that the study visit to Brussels had to be treated as an official journey. 10. On 30 January 2002 the Administrative Court quashed the Federal Minister’s decision finding that the President of the Vienna Court of Appeal had been the authority competent to decide on the request for reimbursement at first instance, rather than the Federal Minister. 11. Thereupon, the matter was transferred to the President of the Vienna Court of Appeal who requested the applicant and the Federal Minister to submit explanations regarding the study visit. 12. On 17 September 2002 the applicant lodged a complaint (Säumnisbeschwerde) with the Administrative Court against the alleged failure of the President of the Court of Appeal to decide on his request within the statutory six-month time-limit. 13. On 23 October 2002 the Administrative Court rejected the complaint because the applicant had not made a prior request under Section 73 of the General Administrative Procedure Act for jurisdiction to be transferred to the Federal Minister of Justice as the authority responsible for hearing appeals. 14. On 29 November 2002 the President of the Vienna Court of Appeal dismissed the applicant’s request for reimbursement of the costs of his accommodation in Brussels on the grounds that the applicant had not been given instructions for an official journey and had not performed any official duties during his stay in Brussels. Therefore he was not entitled to reimbursement of his costs. 15. On an unspecified date the applicant appealed against that decision to the Federal Minister of Justice. 16. On 4 February 2003 the Federal Minister dismissed the applicant’s appeal, confirming the findings in the first-instance decision. 17. On 14 April 2003 the applicant filed a complaint with the Administrative Court against the Federal Minister’s decision. He submitted that while acknowledging that his trip had been in the interest of his official duties (dienstliches Interesse), the Minister had incorrectly assumed that the applicant’s study visit was not to be treated as an official journey. The applicant did not ask for a hearing before the Administrative Court. 18. On 24 February 2006 the Administrative Court dismissed the applicant’s complaint, finding that the Minister had correctly assessed the evidence before him and had correctly concluded that the applicant’s study trip had not been treated as an official journey. 19. Civil servants are entitled under the Rules on Expenses for Official Journeys (Reisegebührenvorschrift) to reimbursement of their expenses for official journeys. Under Section 2 § 1 of these Rules it is an official journey if a civil servant travels to a place which is different from his official duty station (Dienstort) in order to comply with a given instruction (Dienstauftrag). 20. Section 73 of the General Administrative Procedure Act (Allgemeines Verwaltungsverfahrensgesetz) deals with the administrative authorities’ duty to decide. Its relevant part reads as follows: “(1) Subject to any contrary provision in the administrative regulations, the authorities must give a decision on applications by parties ... and appeals without unnecessary delay and at the latest six months after the application or appeal has been lodged. (2) If the decision is not served on the party within this time-limit, jurisdiction will be transferred to the competent superior authority upon the party’s written request. ...” 21. The relevant provisions of the Administrative Court Act (Verwaltungsgerichtshofgesetz) relating to the application against the administration’s failure to decide read as follows: Section 27 “An application under Article 132 of the Federal Constitution for breach of the duty to decide (application against the administration’s failure to decide) can be lodged only when the highest authority to which an application can be made in administrative proceedings, either by way of an appeal or an application for transfer of jurisdiction, ... has been applied to by a party and has not made a decision on the matter within six months. ...” Section 36 “(2) On an application against the administration’s failure to decide under Article 132 of the Federal Constitution the relevant authority is to be ordered to give a decision within three months and either produce to the Administrative Court a copy of the decision or state why in its opinion there has not been a breach of the duty to decide. The time-limit can be extended once if the administrative authority can show that there are relevant reasons why it is impossible to reach a decision within the prescribed time-limit. If a decision is made within the prescribed time-limit, the proceedings in respect of the application against the administration’s failure to decide shall be stayed.” Section 42 “(1) Subject to any contrary provision of this Federal Act, the Administrative Court shall give a judgment in all cases. ... (4) In respect of applications under Article 132 of the Federal Constitution, the Administrative Court may initially limit its judgment to a decision on specific relevant points of law and order the authority to make a decision consistent with the determined points of law within a specified time-limit which must not exceed eight weeks. If the Administrative Court does not use that possibility or the authority in question fails to comply with the order, the Administrative Court shall rule on the application against the administration’s failure to decide by giving a judgment on the merits, for which it shall have full discretion in the administrative authority’s stead.”