In the case of Gassner v. Austria,
The European Court of Human Rights (First Section), sitting as
a Chamber composed of:
Isabelle Berro-Lefèvre,
President,
Elisabeth Steiner,
Nina Vajić,
Mirjana Lazarova Trajkovska,
Julia Laffranque,
Linos-Alexandre Sicilianos,
Erik Møse, judges,
and André Wampach, Deputy Section Registrar,
Having deliberated in private on 20 November 2012,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an
application (no. 38314/06) 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, Mr Herbert Gassner (“the applicant”), on
21 August 2006.
The applicant was
represented by Mr K. Dörnhöfer, a lawyer practising in Eisenstadt. The Austrian
Government (“the Government”) were represented by their Agent, Ambassador H.
Tichy, Head of the International Law Department at the Federal Ministry of
European and International Affairs.
On 12 November 2009 the
application was communicated to the Government. It was also decided to rule on
the admissibility and merits of the application at the same time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1955 and lives in
Eisenstadt.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
On an unspecified date the applicant appealed
against that decision to the Federal Minister of Justice.
On 4 February 2003 the Federal Minister
dismissed the applicant’s appeal, confirming the findings in the first-instance
decision.
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.
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.
II. RELEVANT DOMESTIC LAW
. 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).
. 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. ...”
. 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.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
The applicant complained that the length of the
proceedings had been incompatible with the “reasonable time” requirement, laid
down in Article 6 § 1 of the Convention, which reads as follows:
“In the determination of his civil rights and obligations ...,
everyone is entitled to a ... hearing within a reasonable time by [a] ...
tribunal ...”
The Government contested that argument.
A. Admissibility
1. Whether Article 6 of the Convention applies to the
present case
The Government argued that Article 6 of the
Convention did not apply to the proceedings at issue, because the applicant, as
a judge, exercised State authority and therefore belonged to a group of public
servants excluded from the scope of Article 6. Moreover, they submitted that
the proceedings did not concern an ordinary labour law dispute, as the
fundamental question was whether the applicant’s study visit was to be
considered as an official journey or not - a question which did not constitute
a civil law claim.
This was disputed by the applicant.
The Court reiterates its finding in the case of Vilho
Eskelinen and Others v. Finland [GC], no.63235/00, §62, ECHR 2007-IV
that in order for the respondent State to be able to rely before the Court on
the applicant’s status as a civil servant excluding him from the protection
embodied in Article 6, two conditions must be fulfilled. First, the State
in its national law must have expressly excluded access to a court for the post
or category of staff in question. Secondly, the exclusion must be justified on
objective grounds in the State’s interest (see Vilho
Eskelinen and Others cited above § 62, and Sabeh El Leil v.
France [GC], no. 34869/05, §
38, 29 June 2011).
In the present case the Court considers that the
first condition is not met since the applicant did have access to a domestic
court, namely the Administrative Court, regarding the dispute over the
reimbursement of his travel expenses. It is therefore not necessary to examine
whether the second condition indicated above is met. The Court therefore
concludes that Article 6 in its civil limb does apply to the proceedings
at issue. Accordingly, the Government’s objection in this respect must be
rejected.
2. Whether domestic remedies were exhausted
The Government submitted that the applicant had
failed to exhaust the domestic remedies, arguing that he had failed to apply
for a transfer of jurisdiction pursuant to section 73 of the General
Administrative Proceedings Act and had also failed to file a complaint with the
Constitutional Court about the duration of the proceedings at issue.
This was disputed by the applicant.
The Court reiterates that a request for
transfer of jurisdiction constitutes, in principle, an effective remedy which must
be used in respect of complaints about the length of proceedings before
administrative authorities (see Egger v. Austria (dec.), no.
74159/01, 9 October 2003). However, it has also found on numerous occasions
that, as regards remedies against the excessive length of proceedings, there
has been no form of relief - either preventive or compensatory - available in
respect of delays which have occurred before the Administrative Court (see Stempfer
v. Austria, no. 18294/03, § 48, 26 July 2007; Schutte v.
Austria, no. 18015/03, § 38, 26 July 2007; Vitzthum v. Austria,
no. 8140/04, § 31, 26 July 2007; and Hauser-Sporn v.
Austria, no. 37301/03, § 40, 7 December 2006).
The Court observes that the case was pending for
a substantial period of time before the Administrative Court, namely between 14 April 2003 and 24 February 2006, during which
period the applicant was unable to make use of the remedy indicated by the
Government in order to speed up the proceedings. In these circumstances the
Court considers that it would not be reasonable to expect the applicant to have
filed a request for transfer of jurisdiction during the remaining periods (see Holzinger
v. Austria (no. 2), no. 28898/95, §§ 21-22, 30 January
2001).
As regards the Government’s further argument
that the applicant should have lodged a complaint with the Constitutional Court
about the length of the proceedings, the Court has consistently held that
domestic remedies must be exhausted only if they are shown to be effective,
sufficient and accessible (see Mifsud
v. France (dec.) [GC], no. 57220/00, ECHR 2002-VIII).
The Court notes that the applicant did not raise
the issue of the length of proceedings in a complaint to the Constitutional Court. However, as the Court has held in the cases of Stechauner
v. Austria (no. 20087/06, § 34, 28 January 2010), and
Puchstein
v. Austria (no. 20089/06, § 31, 28 January 2010),
such a complaint to the Constitutional Court has a merely declaratory effect, rather
than preventive or compensatory effects. Thus, this type of remedy does not
fulfil the criterion of effectiveness in the light of the principles developed
by the Court, and an applicant is not required to make use of that remedy. In
conclusion, the Court dismisses the Government’s objection of non-exhaustion.
Moreover, the Court notes that this complaint is
not manifestly ill-founded within the meaning of Article 35 § 3 (a) of
the Convention and that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
The period to be taken into consideration began
on 29 November 2002, when the President of the Vienna Court of Appeal
dismissed the applicant’s request for reimbursement, as this had been the first
time in the proceedings that a competent authority decided on the applicant’s
claim for travel expenses. It was from that moment that a
“dispute” arose within the meaning of Article 6 § 1 of the Convention (see König v. Germany,
28 June 1978, § 98, Series A no. 27, and Morscher v.
Austria, no. 54039/00, § 38, 5 February
2004; Bachmayer v. Austria, no 36650/05, § 35, 28 October 2010). It ended on
24 February 2006, when the Administrative Court eventually dismissed the
applicant’s complaint. The proceedings therefore lasted three years, two months
and twenty-six days and came before three levels of jurisdiction.
The Court reiterates that the reasonableness of
the length of proceedings must be assessed in the light of the circumstances of
the case and with reference to the following criteria: the complexity of the
case, the conduct of the applicants and the relevant authorities and what was
at stake for the applicants in the dispute (see, among many other authorities, Frydlender v.
France [GC], no. 30979/96, § 43, ECHR 2000-VII).
The Court considers that the case was not
particularly complex and that the applicant’s conduct did not give rise to any
substantial delays in the proceedings. As regards the conduct of the
authorities, the Court finds that, while the relevant period in its totality
does not appear particularly long, the period during which the case was pending
before Administrative Court from 14 April 2003 to 24 February 2006 (i.e.
two years ten months and ten days) may raise an issue under Article 6 of the
Convention.
The Court observes that the subject matter of
the dispute did not concern an ordinary labour law dispute in which the
applicant’s employment or important features thereof were at stake. Rather it
related to reimbursement of costs from one singular trip the applicant had made
and whether that trip had been an official one or not. The Court therefore
considers that the matter was not of any particular importance for the
determination of the applicant’s civil rights. The Court does not see any
important question of principle involved in the domestic proceedings instituted
by the applicant for the reimbursement of travel expenses. Since, moreover, the
relevant overall period does not appear excessively long, the Court concludes
that there has been no violation of the relevant time requirement under Article
6 § 1 of the Convention.
II. OTHER
ALLEGED VIOLATIONS OF THE CONVENTION
The applicant complained under Article 6 about
the lack of a public oral hearing in his case and about the alleged unfairness
of the proceedings in that the authorities had failed to examine a witness called
by him. Under Article 13 he also complained that he had not had access to
a proper tribunal because the Administrative Court did not qualify as one; he
also complained, under Article 14 that the outcome of the proceedings had been arbitrary
and had violated his right to protection from discrimination.
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
1. Declares unanimously admissible the complaint concerning the length
of the proceedings and inadmissible the remainder of the application;
2. Holds by four votes to three that there
has been no violation of Article 6 § 1 of the Convention.
Done in English, and notified in writing on 11 December
2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
André Wampach Isabelle
Berro-Lefèvre
Deputy Registrar President
In accordance with Article 45 § 2 of the Convention and
Rule 74 § 2 of the Rules of Court, the separate opinion by Judges Berro-Lefèvre,
Vajić and Møse is annexed to this judgment.
I.B.L
A.M.W
JOINT DISSENTING OPINION OF JUDGES BERRO-LEFÈVRE,
VAJIĆ AND MØSE
1. We are unable to find that there has been no
violation of the applicant’s right to a hearing within a reasonable time under
Article 6 § 1 of the Convention in the present
case.
2. In our view, the starting-point of the period to
be taken into consideration was well before 29 November 2002, when the
President of the Vienna Court of Appeal dismissed the applicant’s request for
reimbursement (see paragraph 14 of the judgment).
This opinion is based on the fact that the applicant’s request
had initially been dismissed by the Federal Minister and the subsequent
proceedings were a necessary continuation of that action.
The period to be taken
into consideration in order to determine whether the length of the proceedings
was reasonable therefore began on 3 June 1998, when the applicant
filed a complaint with the Administrative Court. It was from that moment that a “dispute” arose for the purposes of Article 6 § 1 of the
Convention (see paragraph 9).
The period ended on
24 February 2006, when the Administrative Court eventually dismissed the
applicant’s complaint. The proceedings therefore lasted seven years, eight months
and twenty-one days at three levels of jurisdiction.
3. The protracted length of the proceedings was due
to the fact that there were substantial delays, imputable to the authorities in
particular, while the case was pending before the Administrative Court.
It first took
the Administrative Court almost three years and seven months - from 3 June 1998
to 30 January 2002 - to quash the Federal Minister’s decision because it
had been made by the wrong authority (see paragraph 10 of the judgment). In the
subsequent proceedings the case, which was of no particular complexity, lay
dormant before the Administrative Court from 14 April 2003 until 24 February 2006 (see paragraphs 17-18).
This second period of inactivity would
in itself have sufficed to find a violation in the present case even if, as
argued by the majority, the starting-point of the period to be taken into
consideration had been 29 November 2002.
4. Thus, having regard to
the facts of the case and the Court’s case-law on the subject, we do not find any reason to reach a different conclusion
in the present case from those in cases raising similar issues, where the Court
has frequently found violations of Article 6 § 1 of the Convention (see, for
instance, Ludescher v.
Austria, no. 35019/97, § 22, 20 December 2001; Strobel v.
Austria, no. 25929/05, § 27,
4 June 2009; and Almesberger v. Austria, no. 13471/06, § 27, 10 December 2009).
We are therefore of the opinion that the length of the
proceedings in the present case was excessive and failed to meet the
“reasonable time” requirement.
