CEDH · CASELAW;CLIN;ENG — 9 novembre 2006

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Austria - 30003/02 Judgment 9.11.2006 [Section I] Article 6 Civil proceedings Article 6-1 Civil rights and obligations Proceedings before ministerial disciplinary commission concerning recall from post as head of a research institute and transfer to a post with a lower grade: article   6 § 1 applicable   Public hearing Oral hearing Lack of oral hearing in proceedings concerning recall from post and transfer to a post with a lower grade for disciplinary reasons: violation   Impartial tribunal Independent tribunal Ministerial appeals commission dealing with civil servants' disciplinary matters qualifies as “tribunal”   Facts : The applicant was the head of the Federal Bacteriological Serological Research Institute in Linz. The Disciplinary Commission at the Ministry for Work, Health and Social Affairs found him guilty of making sexually harassing statements about some of his employees. He appealed, asking for a witness to be examined at an oral hearing. In the meantime, the competent Federal Minister recalled him from his post and transferred him to a post with a lower grade. A ministerial appeals commission dismissed his appeal without holding a hearing. The Constitutional Court also found against him, considering 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. Law :   The Government maintained that Article   6 did not apply to the impugned proceedings as the institute is tasked with maintaining a notification system concerning certain infectious diseases, assisting in the elaboration of the relevant legislation and recommendations, and representing the Ministry's department in various expert groups. The Government further pointed to the applicant's degree of responsibility as head of the institute and stressed his authority to issue decisions in accordance with Section 3 of the Civil Servants Act. Furthermore, the applicant had received an extra duties allowance as he had had a considerable level of responsibility for the accomplishment of tasks of general administration. The applicant maintained that being head of the institute in question had involved no participation in the exercise of public authority and that his responsibilities had been comparable of those of a director of a private institution. The Court noted that the institute's task were in essence restricted to the carrying out of various examinations, the collecting and transfer of data and the giving of expert advice but did not include the taking of any binding decisions or orders to the general public. There was nothing to indicate that the expertise required from the institute was more than of a purely technical nature or that it took part in the State's diplomatic missions in foreign fora . The applicant's responsibility and authority as head of the institute did not exceed those of a director of a comparable private institution. The nature of his duties and responsibilities therefore did not entail the exercise of any portion of the State's sovereign power unless this concept was to be construed broadly. However, the correct approach was to adopt a restrictive interpretation of the exceptions to the safeguards afforded by Article   6(1), which provision was applicable . The competent ministerial appeals commission decides in formations consisting of three members: a judge as a chairman, a legally trained civil servant as the representative of the employer and a legally trained civil servant as representative of the employee. The mere fact that the interests of both the employer and of the employee are represented in the composition of a court cannot be considered to be contrary to Article   6(1), if no imbalance between what might be seen as conflicting interests arises in the case concerned. There was no indication of any imbalance in the present case. Moreover, the commission's members are appointed for a term of five years and are not bound by any instruction in the exercise of their functions. In sum, the commission has to be regarded as a tribunal within the meaning of Article   6(1) . It could not be said that the applicant had waived his right to an oral hearing. Under the Court's case-law, he was entitled to a hearing, unless exceptional circumstances justified dispensing with it. As there were no such circumstances in his case there had been a violation of Article   6(1). Conclusion : violation (unanimously).   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes