CASE OF STOJAKOVIC v. AUSTRIA
Violation of Art. 6-1;Pecuniary damage - claim dismissed;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses partial award - Convention proceedings
Christos Rozakis
8. The applicant was born in 1944 and lives in Linz. 9. Since 1984 the applicant was the head of the Federal Bacteriological Serological Research Institute (Bundesstaatiche bakteriologisch-serologische Untersuchungsanstalt) in Linz. According to the activity profile submitted by the Government the tasks of the Institute involved carrying out of various examinations, namely examinations upon official request under the relevant Health Acts and bacteriological examinations of water quality; research, collection and transfer of data; assistance to the installation and maintenance of a notification system concerning certain infectious diseases; maintenance of a specific network on epidemiological diseases integrating EU and other international networks; participation in international scientific projects and studies; provision of general information and advice, such as advice concerning prevention and transfer of infectious diseases and use of antibiotics; assistance by giving of expert advice in the elaboration of quality standards for microbiological laboratories, of national recommendations in the field of hygiene, medical microbiology and preventive medicine and of epidemic legislation; representation of the competent Ministry's department in national and international expert groups. 10. The applicant, as head of the Institute, was responsible for all tasks entrusted to it. Under section 3 of the Civil Servants Act (Beamten-Dienstrechtsgesetz) he was further responsible for certain matters concerning the regulation of its service, namely the arrangement of vacation and grant of special leave, and had the authority to issue decisions (Bescheide) in this regard. 11. On 22 November 1999 the Disciplinary Commission at the Ministry for Work, Health and Social Affairs (Disziplinarkommission beim Bundesministerium für Arbeit, Gesundheit und Soziales) found the applicant guilty of having violated his professional duties under the Non-Discrimination Act (Bundes-Gleichbehandlungsgesetz) and sentenced him to a fine of approximately 2,400 euros (EUR). It found that the applicant inter alia had made statements about some of his employees amounting to sexual harassment. On 15 June 2000 the Senior Disciplinary Board at the Ministry for Public Service and Sport (Disziplinaroberkommission beim Bundesministerium für öffentliche Leistung und Sport) partly dismissed the applicant's appeal. It reduced the fine to approximately EUR 1,600. On 4 September 2003 the Administrative Court dismissed the applicant's complaint. 12. In the meantime, on 31 March 2000, the Federal Minister for Work, Health and Social Affairs recalled the applicant from his post with immediate effect (Abberufung mit sofortiger Wirkung) and transferred him to a post with a lower grade, namely a referee post at the Ministry for Work, Health and Social Affairs in Vienna. 13. Referring to the applicant's behaviour which was the subject of the pending disciplinary proceedings, the Federal Minister found that the applicant had violated his professional duties, and could no longer be trusted to perform the managerial duties as head of the Institute. She referred to section 38 of the Civil Servants Act according to which a transfer can be ordered ex officio in case of important official interest. At the same time she informed the applicant that the payment of the extra duty allowance (Verwendungszulage) granted to him as head of the Institute was to be discontinued from 1 May 2000. 14. On 17 April 2000 the applicant filed an appeal and submitted that the disciplinary proceedings were still pending. 15. On 21 June 2000 the applicant, assisted by his counsel, filed further submissions. He submitted that the Federal Minister had not made sufficient findings as to the background in which his statements had been made and had placed them in the wrong context. He further contested that he had made one of the statements and requested to hear a witness in the context of a hearing. He finally argued that the Senior Disciplinary Board had partly granted his appeal and that the disciplinary proceedings were still pending. There were, therefore, no reasons for his transfer. 16. On 9 October 2000 the Appeals Commission (Berufungs-kommission) at the Ministry for Public Service and Sport dismissed the applicant's appeal without holding a hearing. It noted that the authority deciding on the transfer did not necessarily need to wait for the outcome of pending disciplinary proceedings but could assess itself whether a civil servant had violated his professional duties and whether such a violation requested a transfer. The applicant's arguments concerned mainly the question of his guilt, which was the subject of the disciplinary proceedings. Its task was to ascertain whether the applicant's transfer was objectively necessary. It nevertheless examined and dismissed the applicant's arguments as to the alleged justifying context in which the statements had been made. It further acknowledged that it was in fact not clear whether the applicant had made one of the statements at issue. However, having regard to all other statements it confirmed the Federal Minister's finding that the applicant could no longer be trusted to perform the tasks of a head of the Institute. In particular that the applicant's unqualified behaviour had deepened the already existent conflicts and tensions at work and there was, therefore, an important official interest which made his transfer to another post necessary. 17. On 6 December 2000 the applicant filed a complaint with the Constitutional Court (Verfassungsgerichtshof). He complained that the fact that the Appeals Commission had taken its decision after a private meeting was in violation of his right to court proceedings under Article 6 of the Convention. Furthermore he alleged that the Appeals Commission had decided arbitrarily as it had not duly taken account of his arguments made in the disciplinary proceedings according to which the proceedings against him had to be seen in the context of the Ministry's restructuring programme and were aimed at obliging him to take early retirement. 18. On 26 November 2001 the Constitutional Court dismissed the applicant's complaint. Referring to its case-law it found that rights and obligations which resulted from an employment as a civil servant could not be considered as “civil rights” within the meaning of Article 6 of the Convention. It followed that Article 6 was not applicable to the applicant's case. It further found that there was no indication of arbitrariness in the proceedings at issue. 19. This decision was served on the applicant's counsel on 13 February 2002. 20. The relevant rules are contained in the Civil Servants Act. In the version in force at the material time it provided as follows. 21. Section 38 § 1 of the Civil Servants Act (Beamten-Dienstrechtsgesetz) defines the transfer (Versetzung) of a civil servant as permanent assignment to another department. 22. Under section 40 § 2 the recall (Abberufung) of a civil servant is equivalent to a transfer inter alia when the new assignment has not at least the same grade as the former post. 23. According to section 38 § 2 a transfer can be ordered ex officio in case of important official interest. 24. Under section 38 § 7a the transfer is to be ordered by decision. The concerned civil servant can appeal against this decision. His appeal does not have suspensive effect on the decision. 25. Section 121 of the Salaries Act (Gehaltsgesetz) provides that a civil servant is entitled to an extra duties allowances (Verwendungszulage) if he permanently 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. 26. Pursuant to section 41a § 6 an appeal will be decided upon by the Appeals Commission (Berufungskommission) established at the Ministry for Public Service and Sport (Bundesministerium für öffentliche Leistung und Sport). 27. Section 41a regulates the composition of the Appeals Commission. Its paragraph 3 provides that its chair and his/her substitute are judges, the other members legally trained civil servants whereof one half are representatives of the employer and the other half are representatives of the employee. The members are appointed by the Federal President on a proposal of the Federal Government (Bundesregierung) or by the President of the National Assembly (Nationalratspräsident). Representatives of the employees are in principle nominated by the Union of Civil Servants (Gewerkschaft Öffentlicher Dienst) and, in case the Union makes no nomination within four weeks, by the Minister for Public Service and Sport. 28. The term of office is five years. 29. Section 41c provides that the Appeals Commission decides in formations (Senate) consisting of three members, the chair or his/her substitute, one civil servant representing the employer and one civil servant representing the employee. The civil servant representing the employer has to be employed at the Federal Ministry of the respective complainant. 30. The chair of the Appeals Commission has to fix, for one year in advance, the number of the formations, their members and the sequence in which members have to step in if a member is incapacitated. The chair further allocates business. 31. Section 41d § 1 provides that the Appeals Commission decides by a majority of votes. Its paragraph 2 provides that the members of the Appeals Commission are not bound by any instructions in the exercise of their functions. 32. The Appeals Commission's decisions are not subject to an appeal to the Administrative Court. They are, however, subject to a complaint to the Constitutional Court. 33. 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... 34. It is the consistent practice of administrative authorities to hold oral hearings in camera unless the law provides otherwise, as it is commonly understood that the principle of publicity does not extend to administrative proceedings.