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FIRST
SECTION
CASE OF GABRIEL v. AUSTRIA
(Application
no. 34821/06)
JUDGMENT
STRASBOURG
1 April
2010
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Gabriel v. Austria,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos Rozakis, President,
Nina
Vajić,
Anatoly Kovler,
Elisabeth
Steiner,
Khanlar Hajiyev,
Dean
Spielmann,
Sverre Erik Jebens, judges,
and André
Wampach, Deputy
Section Registrar,
Having
deliberated in private on 11 March 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 34821/06) against the Republic
of Austria lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by an Austrian national, Werner Gabriel (“the
applicant”).
- The
applicant was represented by Ms Baumgartner-Gabriel, a lawyer
practising in Graz. 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.
- The
applicant complained, in particular, that there was no public hearing
in the disciplinary proceedings against him before the Administrative
Court.
- On
1 December 2007 the Court decided to give notice of the application
to the Government. Applying Article 29 § 3 of the Convention, it
decided to rule on the admissibility and merits of the application at
the same time.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1939 and lives in Graz.
- The
applicant was, at the time of the events, a civil servant in a public
employment relationship with the Styria Regional Government
(Landesregierung). He worked at the Department for Legal
Affairs (Traffic Department).
- On
17 May 1993 the Department for Legal Affairs (Human Resources) laid
disciplinary information against the applicant.
- The
Disciplinary Commission at the Office of the Regional Styria
Government (Disziplinarkommission des Amtes der
Landesregierung) decided, on 21 June 1993, to institute the main
disciplinary proceedings on account of seventeen specific charges
dating from December 1990 to April 1993 and suspended the
applicant from his duties (Einleitungs- und
Suspendierungsbeschluss).
- On
21 September 1994 the Disciplinary Commission decided to hold a
hearing (Verhandlungsbeschluss) in the disciplinary matter
against the applicant, charging him on twenty-four counts. However,
in the summons for the hearing the Disciplinary Commission informed
the applicant on 2 October 2005 that only counts 1 to 14 would
be subject matter of the hearing.
- A
hearing was held in presence of the applicant and his counsel on
7 December 1995 following which the Disciplinary Commission held
the applicant liable in respect of ten counts of misbehaviour. It
imposed a disciplinary penalty of immediate retirement with a
deduction of 20% of his pension benefits. On the remaining four
counts the Disciplinary Commission found no reason to take further
action.
- On
7 November 1996 the Senior Disciplinary Board at the Office of the
Styria Regional Government (Disziplinaroberkommission des
Amtes der Landesregierung) on the basis of the result of an
oral hearing upheld this decision with regard to six counts, but
found no reason for criticism as regards the remaining four counts.
As a result the disciplinary penalty was reduced by setting the
deduction of the applicant's pension benefits at 15%.
- The
applicant lodged a complaint with the Constitutional Court on
9 January 1997. The applicant also requested the Constitutional
Court to hold a public hearing.
- The
Constitutional Court declined to deal with the applicant's complaint
for lack of prospect of success on 9 June 1998 and, on 24 June 1998,
remitted the case to the Administrative Court at the applicant's
request.
- On
23 September 1998 the applicant supplemented his complaint as
requested by the Administrative Court and requested again a public
hearing to be held. In his complaint he argued that the Senior
Disciplinary Board had not been properly composed and that there were
inconsistencies as to the number of charges in the decision to
institute proceedings, the decision to hold a hearing and for which
he was eventually held liable. Further, the authorities had not
properly gathered the evidence and had erred in its assessment.
- On
15 December 1999 (served on the applicant's counsel on 24 January
2000) the Administrative Court, without a hearing, dismissed the
applicant's complaint as unfounded.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF
THE CONVENTION
- The
applicant complained that no public hearing before the Administrative
Court had taken place. 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...”
A. Admissibility
1. Compliance with the six-month time-limit
- The
Government submitted that the application had been lodged outside the
six-month time-limit, as the domestic proceedings had ended on 24
January 2000 when the Administrative Court's decision of
15 December 1999 was served on the applicant′s
counsel, while the application form transmitted to the Government
bore the date 3 August 2006.
- This
is disputed by the applicant. He submitted that by 24 July 2000
he had already introduced an application with the Registry of the
Court. For reasons beyond his control the file opened for this
application was destroyed and he had to re-submit the same
application later. Therefore the date of the initial introduction of
the application should be taken into account and the application had
therefore been introduced in time.
- According
to its case-law, the Court considers the date of introduction of an
application to be the date of the first letter indicating an
intention to lodge and application and giving some indication of the
nature of the complaint. However, where a substantial interval
follows before an applicant submits further information as to his
proposed application, the Court examines the particular circumstances
of the case in order to decide what date shall be regarded as the
date of introduction and from which to calculate the running of the
six-month period set out in Article 35 § 1 of the Convention
(see Alzery v. Sweden (dec.), no. 10786/04, 26 October 2004
with further references).
- In
the present case the Court notes that the applicant indeed lodged the
present application on 24 July 2000. On 4 September 2000, in a
letter addressed to his then counsel, the Registry requested the
applicant to confirm his wish to pursue his application. As no reply
was received the file was destroyed on 9 July 2002 in accordance with
the Court's practice. On 7 January 2003 the applicant, through
his then counsel, inquired about the state of the proceedings, but
received no reply form the Court's Registry. On 5 July 2006 the
applicant, through his present counsel, again inquired about the
state of proceedings following which he was informed by the Court's
Registry that the file had been destroyed. On 3 August 2006 the
applicant requested the restoration of the original application and
for its date of introduction the date when the application was
initially introduced, namely 24 July 2000. He maintained that he
had never received the letter of 4 September 2000 and had
therefore assumed that his application was being dealt with by the
Court in the usual manner.
- Having
regard to the above the Court finds that there is nothing to indicate
that the applicant had reason to believe that his application, as
submitted on 24 July 2000, was not dealt with. Moreover there is
nothing in the facts challenging the bona fide of the applicant or
his representative.
- Thus,
the Court considers the date of introduction of the application to be
24 July 2000. The application has therefore been submitted within the
time-limit set down by Article 35 § 1 of the Convention.
Accordingly the Government's objection has to be dismissed.
2. Applicability of Article 6 of the Convention
- The
Government submitted that Article 6 of the Convention did not apply
to the proceedings at issue because, at the time of the events, the
Court's judgment in the case of Vilho Eskelinen and Others
v. Finland ([GC], no. 63235/00, ECHR 2007 IV), had not
yet been given and under the Pellegrin test (Pellegrin v. France
[GC], no. 28541/95, § ..., ECHR 1999 VIII) Article 6 would
not have been applicable to disciplinary proceedings against a civil
servant such as the applicant.
- This
is disputed by the applicant. In his view, even when applying the
criteria established by the Court in the now outdated judgment of
Pellegrin v. France, Article 6 would apply.
- The
Court is not persuaded by the Government's argument. The question the
Court has to deal with when it exercises its jurisdiction is not
whether a Contracting State has complied with the courts' existing
case-law on a specific issue but, under Article 19 of the Convention,
whether a Contracting Party has complied with its obligation under
Article 1 of the Convention, namely “to secure to everyone
within [its] jurisdiction the rights and freedoms defined in Section
I of this Convention” (see Weixelbraun v. Austria,
no. 33730/96, § 27, 20 December 2001). In the light of the
Vilho Eskelinen and Others v. Finland judgment Article 6 § 1
is applicable to the proceedings at issue, because the applicant, as
a civil servant, was not excluded from access to court in the present
case. Article 6 therefore applies to the proceedings at issue.
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
- The
applicant submitted that throughout the entire proceedings he did not
have an opportunity to have a public hearing even though he had
explicitly asked for one. Furthermore the Government had failed to
give clear reasons why the exclusion of the public was in the
interests of secrecy in his case.
- The
Government submitted that the applicant, who was represented by
counsel, had failed to request a hearing in his complaints with the
Constitutional Court and Administrative Court and must therefore be
deemed to have waived his right thereto. In any event a hearing
before these courts had not been necessary. Moreover, since matters
subject to official secrecy are as a rule discussed in disciplinary
proceedings and as the civil servant charged with a disciplinary
offence is not restricted in his defence by the duty of official
secrecy, the exclusion of the general public from an oral hearing was
therefore justified.
- The Court finds that the Administrative Court was the
only instance in the proceedings which qualifies as a tribunal within
the meaning of Article 6 § 1 of the Convention (see Fischer
v. Austria, judgment of 26 April 1995, Series
A no. 312, pp. 20-21, § 44, and Pauger v. Austria,
judgment of 28 May 1997, Reports 1997-III). Thus the applicant
would be entitled to a hearing before that court unless exceptional
circumstances dispensed it from doing so (see Håkansson and
Sturesson v. Sweden, judgment of 21 February 1990, Series A no.
171, p. 20 § 64).
- No
hearing was held before the Administrative Court, even though,
contrary to the Government's contention, the applicant had explicitly
requested one (§ 14 above). There is accordingly no question of
the applicant having waived that right.
- The
Administrative Court gave no reason why it considered a hearing to be
unnecessary. The Government argued that since the matters discussed
in disciplinary proceedings are as a rule subject to official
secrecy, the exclusion of the general public from the oral hearing
was justified. The Court is not persuaded by this argument. The Court
has accepted in the past that the requirement to hold a public
hearing is not absolute and that it is consistent with Article 6 §
1 for a State to designate an entire class of cases as an exception
to the general rule of public hearings (see B. and P. v. the
United Kingdom, nos. 36337/97 and 35974/97, § 39
ECHR 2001 III, and Osinger v. Austria, no. 54645/00,
§ 47, 24 March 2005). However, the justification under
Article 6 § 1 of such an exclusion of the general public from a
hearing in certain classes of cases is not the issue here, as
hearings before the Administrative Court are in principle public (see
Zumtobel v. Austria, 21 September 1993, § 20, Series A
no. 268 A). Since the Administrative Court had not given any
reason why it did not hold a hearing in the applicant's case the
Court cannot speculate whether the exclusion of the public would have
been justified had a hearing taken place.
- Nor
have the Government identified any other exceptional circumstances
that might have justified dispensing with a hearing. Thus, as the
applicant received no hearing there was a breach of the applicant's
right to a “public hearing”.
- There
has accordingly been a violation of Article 6 § 1 of the
Convention.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant further complained under Article 6 § 1 about the
length of the disciplinary proceedings against him and that his right
to an independent and impartial tribunal had been infringed.
- 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.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed 178,000 euros (EUR) in respect of pecuniary damage.
He submitted that he had suffered financial losses because of his
early retirement ordered in the disciplinary proceedings and as a
result of his suspension in the course of the proceedings.
- The
Government contested these claims as, in their view, there was no
causal link between the alleged violation and the pecuniary damage
claimed. In respect of any non-pecuniary damage the Government
asserted that the finding of a violation would be sufficient.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged. It therefore rejects this claim.
B. Costs and expenses
- The
applicant also claimed EUR 40,000 for costs of his representation
incurred in the domestic proceedings and before the Court, without
giving details.
- The
Government contested the claim. They submitted that the costs of the
applicant's representation in the domestic proceedings had not been
caused by the alleged violations, as they would have been incurred in
any event. Moreover the applicant merely gave a lump-sum figure and
did not specify his claims, which in any event are excessive.
- It
is true that the applicant failed to specify the costs incurred by
him and merely indicated a lump sum. However, noting that in the
proceedings before the Court the applicant was represented by counsel
and did not have the benefit of legal aid, the Court considers that
the applicant must have incurred expenses for the fees of his legal
representation before the Court. Making an assessment on an equitable
basis and having regard to similar cases it considers it reasonable
to award him EUR 1,000 under this head, plus any tax that may be
chargeable to the applicant on this amount
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint concerning the lack of an
oral hearing admissible and the remainder of the application
inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 1,000 (one
thousand euros), plus any tax that may be chargeable to the
applicant, in respect of costs and expenses;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 1 April 2010, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
André Wampach Christos Rozakis
Deputy Registrar President
