CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 21 mai 1998

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                          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