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1. The author of the
communication is Mr. Paul Perterer, an Austrian citizen. He claims to be a
victim of violations by Austria [FN1] of articles 14, paragraph 1, and 26 of
the Covenant. He is represented by counsel.
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[FN1] The Covenant and the Optional Protocol to the Covenant entered into
force for the State party respectively on 10 December 1978 and 10 March
1988.
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THE FACTS AS SUBMITTED BY THE AUTHOR
2.1 In 1980, the author was employed by the municipality of Saalfelden in
the province of Salzburg. In 1981, he was appointed head of the
administrative office of the municipality. On 31 January 1996, the mayor of
Saalfelden filed a disciplinary complaint against the author with the
Disciplinary Commission for Employees of Municipalities of the Province of
Salzburg alleging, inter alia, that the author had failed to attend hearings
on building projects, that he had used office resources for private
purposes, that he had been absent during office hours, and other
professional shortcomings. Moreover, the mayor claimed that the author had
lost his reputation and the confidence of the public because of his private
conduct.
2.2 On 29 February 1996, the trial senate of the Disciplinary Commission
initiated proceedings against the author, and on 28 May 1996, suspended him
from office, reducing his salary by 1/3. On 4 June 1996, the author
challenged the chairman of the senate, Mr. Guntram Maier, pursuant to
section 124, paragraph 3, [FN2] of the Federal Civil Servants Service Act.
During a hearing held in June 1996, the chairman himself dismissed the
challenge, arguing that the Salzburg Civil Servants of Municipalities Act,
[FN3] as well as the Federal Civil Servants Act (Federal Act), permitted a
challenge only with respect to members, but not the chairperson of the
senate.
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[FN2] Section 124, paragraph 3, of the Federal Civil Servants Act provides:
"With the order instituting proceedings (Verhandlungsbeschluß), the accused
shall be notified the composition of the senate, including replacement
members. The accused may challenge, without stating reasons, a member of the
senate within one week after the order has been served. Upon request of the
accused, up to three civil servants may be present during the hearing. The
hearing shall otherwise be held in camera."
[FN3] Section 12 of the Salzburg Civil Servants of Municipalities Act reads,
in pertinent parts: "(1) A Disciplinary Commission for Employees of
Municipalities is established at the Office of the Provincial Government to
conduct first instance disciplinary trials. (2) The Disciplinary Commission
is composed of a chairperson, deputy chairpersons, and the necessary number
of members. (3) The Provincial Government shall appoint for a period of
three years the chairperson and the deputy chairpersons, who have to be
chosen from among the civil servants with legal training employed by the
Office of the Provincial Government or the Regional Administrative
Authorities and the members - with the exception of those members delegated
by the municipalities pursuant to paragraph 5 - who have to be chosen from
among the civil servants employed by the municipalities governed by the
present Act. (4) The Disciplinary Commission tries and decides cases in
senates composed of a chairperson and four members. The chairperson and two
members chosen from among the civil servants employed by municipalities are
appointed by the Provincial Government. (5) Two further members of the
senates are delegated by the municipality which is a party to the
proceedings. If the municipality fails to delegate two members or
replacement members [...] within a period of three days after a written
request, the chairperson shall select civil servants of the Provincial
Government as additional members. [...]"
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2.3 After the author had submitted a medical report by a neurologist to the
Disciplinary Commission, stating that he was unfit to stand trial, this
report was forwarded, allegedly by the chairman of the trial senate, to the
Regional Administrative Authority in Zell am See which, on 7 August 1996,
summoned the author to undergo a medical examination to assess his aptness
to drive a vehicle. The author subsequently brought criminal charges against
the chairman, Mr. Maier, for breach of confidentiality in public office.
This complaint was later dismissed.
2.4 On 4 July 1996, the trial senate of the Disciplinary Commission
dismissed the author. By decision of 25 September 1996, the Disciplinary
Appeals Commission for Employees of Municipalities (Disziplinaroberkommission
für Gemeindebedienstete), on the author's appeal, referred the case back to
the Disciplinary Commission, on the basis that the participation of the
chairman constituted a violation of the author's right to a fair trial,
since the right to challenge a member of the senate also extended to its
chairperson.
2.5 On 26 March 1997, the trial senate of the Disciplinary Commission,
presided by Mr. Michael Cecon, initiated a second set of proceedings against
the author. During a hearing in April 1997, the author challenged the
composition of the trial senate, arguing that the two members nominated by
the municipality of Saalfelden lacked independence and impartiality due to
their status as municipal officials or employees. The senate dismissed the
challenges and, on 1 August 1997, again dismissed the author from service.
In an undated decision, the Appeals Commission upheld the dismissal. On 2
December 1997, the municipality of Saalfelden terminated the payment of the
author's reduced salary as well as his coverage under the public health
insurance scheme.
2.6 On 7 January 1998, the author complained against the decision of the
Appeals Commission to the Austrian Constitutional Court, alleging breaches
of his right to a fair trial before a tribunal established by law. On 11
March 1998, the Court refused leave to appeal and referred the case to the
Administrative Court which, on 10 February 1999, set aside the decision of
the Appeals Commission, holding that the author had been unlawfully deprived
of his right to challenge members of the trial senate of the Disciplinary
Commission.
2.7 After the Appeals Commission had referred the matter back to the
Disciplinary Commission, the trial senate, by procedural decision of 13 July
1999, initiated a third set of proceedings, again suspending the author from
office. The author subsequently challenged the senate chairman, Michael
Cecon, and two other members appointed by the Provincial Government for lack
of impartiality, since they had participated in the second set of
proceedings and had voted for his dismissal. By procedural decision of 3
August 1999, the chairman of the senate was replaced by the substitute
chairman, Guntram Maier, who had chaired the trial senate in the first set
of proceedings, and who had refused to desist when challenged by the author,
and against whom the author had brought criminal charges. The author then
reiterated his challenge, specifically challenging Mr. Maier, as being prima
facie biased because of his previous role. On 16 August 1999, the chairman
informed the author that Mr. Cecon would resume chairmanship.
2.8 The author subsequently filed complaints against the procedural
decisions of 13 July and 3 August 1999 with the Constitutional Court,
alleging breaches of his right to a trial before a tribunal established by
law because of the composition of the trial senate, at the same time
requesting the Court to review the constitutionality of the Salzburg Civil
Servants of Municipalities Act (Salzburg Act), insofar as it provided for
the participation of members delegated by the interested municipality. On 28
September 1999, the complaints were rejected by the Constitutional Court
and, on 21 June 2000, by the Administrative Court, after the matter had been
referred to it.
2.9 Meanwhile, on 23 September 1999, the Disciplinary Commission had
dismissed the author from service, after it had rejected a formal request to
summon defense witnesses and to admit further evidence. On 11 October 1999,
the author lodged an appeal against his dismissal with the Appeals
Commission, which confirmed the trial senate's decision on 6 March 2000,
without a hearing and after the author had challenged its chairman (who was
later replaced) and the two members appointed by the Provincial Government
due to their participation in previous decisions in his case. On 14 March
2000, the municipality of Saalfelden once again terminated the payment of
the author's reduced salary, as well as his public health insurance
coverage.
2.10 On 25 April 2000, the author filed a complaint against the decision of
6 March 2000 of the Appeals Commission with the Administrative Court,
challenging the composition of the trial and appeal senates, the trial
senate's refusal to hear defense witnesses and to admit further evidence,
and other procedural irregularities. On 29 November 2000, the Court
dismissed the author's complaint as unfounded. By reference to a previous
decision concerning a different case, the Court rejected the author's
objection to Mr. Cecon's repeated chairmanship during the third set of
proceedings.
THE COMPLAINT
3.1 The author alleges violations of his rights under article 14, paragraph
1, read in conjunction with article 25, and under article 26 of the
Covenant, as his trial was neither "fair" nor "public" nor concluded
expeditiously, but was unduly delayed and conducted by bodies biased against
him. He argues that proceedings concerning employment matters are "suits at
law" within the meaning of article 14, paragraph 1, irrespective of the
status of one of the parties. [FN4]
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[FN4] The author refers to Communications No. 112/1981, Y. L. v. Canada,
decision on admissibility adopted on 8 April 1986, and No. 203/1986, Rubén
Toribio Muñoz Hermoza v. Peru, Views of 4 November 1988.
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3.2 The author concedes that States parties may establish specialized
tribunals to deal with, inter alia, employment disputes for civil servants,
as long as such establishment is based on reasonable and objective criteria
and to the extent that such tribunals are independent and impartial. But as,
pursuant to section 12, paragraph 5, of the Salzburg Act, two members of the
senates had been delegated by the interested municipality and merely served
for one specific trial, the principle that a tribunal must be independent
from the executive and legislative branches, as well as from the parties to
the proceedings, was violated. The author also argues that the duration of
office terms is a relevant factor when assessing the independence of
tribunal members. [FN5]
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[FN5] The author refers to CCPR, 21st Sess. (1984), General Comment 13:
Equality before the courts and the right to a fair and public hearing by an
independent court established by law (article 14), at para. 3.
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3.3 The author contends that his right to a public hearing under article 14,
paragraph 1, was violated, because the hearings before the trial senates of
the Disciplinary Commission were held in camera, pursuant to article 124,
paragraph 3, of the Federal Act, and since neither the Appeals Commission
nor the Constitutional or Administrative Courts held any hearings in his
case. No "exceptional circumstances" [FN6] justified the exclusion of the
public.
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[FN6] Reference is made to ibid., at para. 6.
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3.4 The author submits that, contrary to the principle that judges must not
harbor preconceptions about the matter before them, several members of the
trial senate during the third set of proceedings were of necessity partial,
considering that they either continued to work as municipal employees of
Saalfelden, or that they had previously been challenged by the author. In
particular, the fact that Mr. Cecon resumed chairmanship after having been
challenged by the author and replaced by Mr. Maier, whom the author, in
turn, challenged because of his role during the first set of proceedings,
established "understandable, verifiable and legitimate" cause to suspect
that both available chairmen were biased against the author because of the
challenges.
3.5 According to the author, the trial senate promoted the interests of the
other party by furnishing witnesses for the prosecution with copies of their
testimonies given during the first and second proceedings, by allowing them
to quote from their previous statements, and by rejecting the author's
requests to call witnesses as well as to admit further evidence. The trial
senate allegedly manipulated the transcript of the 1999 hearing so as to
make it appear as if the prosecutorial witnesses had actually given original
testimony.
3.6 The manipulated transcript was allegedly only transmitted to his counsel
two and a half weeks after the deadline for appealing the Disciplinary
Committee's decision of 23 September 1999 to dismiss him, thereby depriving
him of an opportunity to discover the procedural irregularities and to bring
them to the attention of the Appeals Commission. These irregularities, as
well as the trial senate's decision exclusively to hear prosecutorial
witnesses, also violated his right to equality of arms, guaranteed by
article 14, paragraph 1, of the Covenant.
3.7 The author submits that the length of the proceedings, which caused him
expenses of 1.2 million ATS in legal fees and lasted for almost 5 years,
starting with the filing of the disciplinary complaint against him by the
mayor of Saalfelden on 31 January 1996, and ending on 8 January 2001 when he
received the final decision of the Administrative Court, amounts to an
unreasonable delay, in violation of his right to a fair hearing under
article 14, paragraph 1. He argues that the subject matter of the
proceedings, while being of particular importance to him, was not complex,
which was underlined by the fact that the decision of the trial senate of 23
September 1999 was taken after only one hour of deliberations and amounted
to only five pages. The following delays totaling three years were
attributable to the State party, given that the first two sets of
proceedings were null and void, as they had been conducted by trial senates
composed in obvious breach of domestic procedural law: (a) from 4 June 1996,
when the chairman of the trial senate in the first set of proceedings
refused to relinquish chairmanship, until 26 March 1997, when a new trial
senate was constituted; and (b) from 8 April 1997, when the author
challenged members of the trial senate in the second set of proceedings,
until 13 June 1999, when the trial senate was constituted in the third set
of proceedings.
3.8 The author submits that he has exhausted domestic remedies and that the
same matter is not being examined under another procedure of international
investigation or settlement.
THE STATE PARTY'S OBSERVATIONS ON ADMISSIBILITY
4.1 By note verbale of 26 November 2001, the State party challenged the
admissibility of the communication, arguing that it is incompatible with
article 14, paragraph 1, of the Covenant, and that the author has failed to
exhaust domestic remedies.
4.2 The State party submits that the author has failed to raise his claims
related to the lack of publicity of the proceedings, as well as the alleged
irregularities regarding the transcript of the 1999 hearing, before the
domestic tribunals. While his failure to assert the latter claim before the
Appeals Commission might be justified by "a potentially delayed service" of
the transcript, this was not the case with respect to his later complaints
to the Constitutional and Administrative Courts. Similarly, the author had
raised the issues that two members of the trial senate in the third set of
proceedings had been nominated by the municipality of Saalfelden and that
the witnesses for the prosecution had been provided with copies of their
previous testimonies only in his appeal to the Appeals Commission, without
asserting this claim in his subsequent complaint to the Administrative
Court.
4.3 The State party contends that the only procedural flaws which the author
raised in his appeal to the Administrative Court of 25 April 2000 related to
the rejection of his requests to hear defense witnesses and to admit further
evidence, the alleged bias of the members of the Disciplinary Commission,
the failure of the Appeals Commission to hold an oral hearing, and to the
length of proceedings. With respect to the latter, the author had failed to
exhaust domestic remedies in relation to his claim that the proceedings had
been unreasonably delayed, as he had only challenged this delay
retroactively, without availing himself of the possibilities to file a
request for transfer of competence (Devolutionsantrag), enabling individuals
to bring a case before the competent higher authority if no decision is
taken within six months, or to file a complaint about the administration's
failure to take a decision within due time (Säumnisbeschwerde), with the
Administrative Court, in order to reduce the length of the proceedings.
4.4 The State party asserts that the author should have claimed a violation
of his right to a fair trial by invoking the constitutionally guaranteed ban
of arbitrariness before the Constitutional Court, instead of appealing the
decision of 6 March 2000 of the Appeals Commission before the Administrative
Court, whose competence was limited to reviewing the lawfulness of
administrative decisions under ordinary law. It concludes that the
communication is inadmissible under article 5, paragraph 2 (b), of the
Optional Protocol.
4.5 Lastly, the State party argues that the communication is inadmissible
ratione materiae under article 3 of the Optional Protocol, since article 14,
paragraph 1, of the Covenant does not apply to disputes between
administrative authorities and civil servants exercising powers intrinsic to
the nature of the public service, concerning their admission, career or
termination of employment under public law. [FN7]
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[FN7] The State party refers to the judgments of the European Court of Human
Rights in Applications No. 28541/95, Pellegrin v. France, 8 December 1999,
at paras. 64 et seq., and No. 39564/98, G. K. v. Austria, 14 March 2000.
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AUTHOR'S COMMENTS ON THE STATE PARTY'S OBSERVATIONS ON ADMISSIBILITY
5.1 By letter of 27 January 2001, the author argues that the State party
itself concedes that he raised the partiality of the trial senate in the
third set of proceedings, its rejection of his requests to hear defense
witnesses and to admit further evidence, the Appeals Commission's failure to
hold an oral hearing and the unreasonable delay of the proceedings before
the Administrative Court, and thus admitted that he had exhausted domestic
remedies with regard to these claims.
5.2 The author challenges the State party's objection that he had failed to
claim a violation of his right to a fair trial before the Constitutional
Court by invoking the constitutionally guaranteed arbitrariness ban, stating
that he had brought the complaint against his dismissal in the third set of
proceedings directly to the Administrative Court only because the
Constitutional Court had previously refused to deal with his substantially
similar complaints relating to his dismissal in the second set of
proceedings and to the procedural decisions of 13 July and 3 August 1999,
referring them to the Administrative Court. In these complaints, he had
alleged breaches of his right to a fair trial, in particular to a trial
before a tribunal established by law, and, in one case, had requested the
Constitutional Court to review the constitutionality of the Salzburg Act,
insofar as it provided for the participation of members delegated by the
municipality. By reference to the Committee's jurisprudence, the author
argues that he is not required to submit a complaint to the domestic
authorities over and over again, if the same matter has been rejected
earlier. [FN8]
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[FN8] The author refers to Communications Nos. 210/1986 and 225/1987, Earl
Pratt and Ivan Morgan v. Jamaica, Views adopted on 6 April 1989.
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5.3 The author contests the State party's argument that he failed to
challenge the manipulation of the transcript of the third trial hearing
domestically, arguing that the transcript was withheld from his counsel so
that the manipulations of the witnesses' testimonies were only discovered on
review of the case file by counsel for the present communication. The
failure to transmit the transcript to him in due time was attributable to
the State party, which therefore should be precluded from asserting
non-exhaustion of domestic remedies in that regard. The author concludes
that the State party had the opportunity to remedy the alleged violations,
since all complaints submitted to the Committee were in substance raised
before the Austrian Constitutional and Administrative Courts.
5.4 As to the State party's ratione materiae objection, the author submits
that, according to the Committee's jurisprudence, [FN9] article 14,
paragraph 1, applies to proceedings relating to the dismissal of civil
servants. This followed from the principle that human rights treaties must
be interpreted in the manner most favourable to the individual, [FN10] as
well as from a "contextual" analysis in the light of article 25 of the
Covenant, which had no equivalent in the European Convention on the
Protection of Human Rights and Fundamental Freedoms (ECHR) and indicated
that the scope of article 14, paragraph 1, was wider than that of article 6,
paragraph 1, ECHR. Moreover, he suggests that the Committee should not
follow the restrictive and artificial approach taken by the European Court
in Pellegrin v. France, which excluded civil servants who "wield a portion
of the State's sovereign power" from the protection of article 6, paragraph
1, ECHR. [FN11]
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[FN9] Reference is made, inter alia, to Communication No. 824/1998, N. M.
Nicolov v. Bulgaria, Decision on admissibility adopted on 24 March 2000, at
para. 8.3; Communication No. 468/1991, Angel N. Oló Bahamonde v. Equatorial
Guinea, Views adopted on 20 October 1993; and Communication No. 203/1986,
Rubén Toribio Muñoz Hermoza v. Peru.
[FN10] The author refers, inter alia, to the Advisory Opinion of the
Inter-American Court in Compulsory Membership in an Association Prescribed
by Law for the Practice of Journalism (Arts. 13 and 29 American Convention
on Human Rights), Advisory Opinion OC-5/85 of 13 November 1985, Series A,
no. 5.
[FN11] See European Court of Human Rights, Application No. 28541/95,
Pellegrin v. France, judgment of 8 December 1999, at para. 65.
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5.5 Lastly, the author submits that the State party's argument that he could
have accelerated the proceedings by requesting a transfer of competence (Devolutionsantrag)
or by lodging a complaint about undue delay of proceedings (Säumnisbeschwerde)
related to the merits rather than the admissibility of his complaint that
the proceedings had been unreasonably delayed. On the merits, he argues that
none of the individual stages of the three sets of proceedings exceeded the
duration of six months necessary for the above remedies. Moreover, while
State parties were required to ensure expeditious proceedings, no
corresponding obligation existed for individuals charged with disciplinary
charges. On the contrary, individuals had a right to resort to whatever
remedies to defend themselves against such charges, even if these remedies
contributed to a delay.
THE STATE PARTY'S ADDITIONAL SUBMISSIONS ON ADMISSIBILITY AND OBSERVATIONS
ON MERITS
6.1 By note verbale of 27 March 2002, the State party further elaborated on
its objections to admissibility and submitted its observations on the merits
of the communication. On admissibility, it reiterates that the author failed
to exhaust domestic remedies, adding that the dismissal of his earlier
complaints by the Constitutional Court did not absolve him from specifically
challenging the alleged deficiencies of the third set of proceedings. It
maintains that the author's request for constitutional review of section 12,
paragraph 5, of the Salzburg Act was based on an alleged lack of clarity of
that provision rather than the alleged lack of independence of the members
of the Disciplinary Commission delegated by the municipality of Saalfelden.
6.2 While conceding that the transcript of the 1999 trial was served on the
author only two weeks after the deadline for appealing to the Appeals
Commission had expired, the State party submits that, under the applicable
law, the author could have raised any deficiencies in the transcript
throughout the appeal proceedings and in his subsequent appeal to the
Administrative Court.
6.3 The State party maintains that, similar to article 6, paragraph 1, ECHR,
article 14, paragraph 1, of the Covenant does not apply to disputes between
the administrative authorities and civil servants directly participating in
the exercise of public powers, [FN12] such as the author, as reflected in
the convergence of both provisions and, in particular, in the identical
wording of their pertinent parts in the French authentic versions. The only
exception recognized by the European Court of Human Rights concerned cases
in which the claims relate to an essentially economic right. That the
author's dismissal may ultimately have had a financial impact did not as
such turn his case into a matter of civil rights and obligations. [FN13] Nor
did the disciplinary proceedings constitute a determination of a criminal
charge against the author, in the absence of a penalty equivalent to a
criminal sanction.
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[FN12] Reference is made, inter alia, to the dissenting opinion of the
Committee members Graefrath, Pocar and Tomuschat in Communication 112/1981,
Y. L. v. Canada, at para. 3.
[FN13] The State party refers to the judgments of the European Court of
Human Rights in Pierre-Bloch v. France, judgment of 21 October 1997, at para.
51, and in Pellegrin v. France, judgment of 8 December 1999, at para. 60.
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6.4 Subsidiarily, the State party submits that, even if article 14,
paragraph 1, was applicable, the Committee would be limited to a review of
whether the alleged irregularities in the disciplinary proceedings amounted
to a denial of justice or were otherwise arbitrary. This was not the case
because domestic authorities had carefully examined compliance with the
procedural rules and only confirmed the author's dismissal after having
conducted three sets of proceedings. Similarly, the assessment of the
relevance and value of requested evidence was a matter to be determined by
the national courts, subject only to an abuse control. The author's
evidentiary requests were dismissed on legitimate grounds, as they related
to issues on which he had already provided documentary evidence.
6.5 The State party argues that the author failed to substantiate his claim
concerning the alleged bias of members of the trial senate, which could not
automatically be inferred from their participation in the previous
proceedings. The participation of members who had been challenged without
reasons did not as such call into question the impartiality of the tribunal,
since the right to challenge senate members without stating reasons had to
be distinguished from challenging a senate member for bias.
6.6 The State party submits that the author's right to appear before an
independent and impartial tribunal was safeguarded by the freedom from
instruction of the Disciplinary Commission's members (section 12, paragraph
6, of the Salzburg Act). Moreover, decisions of the Disciplinary Commission
are subject to appeal to the Appeals Commission as well as the
Administrative Court, which are both independent tribunals competent to
examine questions of fact and law and, in the case of the Appeals
Commission, composed of members not delegated by the interested
municipalities and appointed for three-year-terms. Without prejudice to the
fact that the State party considers the Disciplinary Committee a tribunal
within the meaning of article 14, paragraph 1, it argues that the author's
right to be heard by an independent and impartial tribunal would therefore
be secured even if the Disciplinary Commission were denied the quality of an
independent and impartial tribunal, since article 14, paragraph 1, does not
require States parties to have a decision on civil rights issued by a
tribunal at all stages of appeal.
6.7 The State party contends that the 1997 trial transcript was sent to the
witnesses in order to provide all persons involved in the 1999 proceedings
"with the same state of information regarding their previous statements and
procedural steps." The convergence between the 1997 and 1999 trial records
merely reflected that the witnesses had made corresponding statements in the
two oral hearings. Under section 44 of the Austrian Administrative Procedure
Act, transcripts of hearings need not quote witnesses' testimonies entirely;
summarizing the relevant content of such testimony did not amount to a
manipulation.
6.8 As to the alleged lack of publicity of the proceedings, the State party
submits that the exclusion of the general public was justified in the
interest of official secrecy, which is frequently an issue in disciplinary
proceedings. In order to protect an accused civil servant against secret
administration of justice, section 124, paragraph 3, of the Federal Act
allowed for the presence of up to three civil servants nominated by the
accused as persons of confidence during the oral hearings.
6.9 The State party refutes the author's claim based on the lack of an oral
hearing during the appeal proceedings, arguing that no such hearing is
required if the case can be determined on the basis of the files, in
connection with the statement of appeal. Since the author's appeal was
confined to procedural complaints, without raising any new facts, the
appellate bodies justifiably decided not to conduct a new oral hearing.
6.10 The State party submits that the author himself admitted that the
statutory deadline for adopting a decision was met for any of the stages of
the different sets of proceedings to which he was a party; the author went
through the various stages of appeal on his own initiative, without any
delay caused by the authorities and courts. For the State party, the author
has failed to substantiate a violation of his rights under article 14,
paragraph 1, read in conjunction with article 26 of the Covenant.
ADDITIONAL COMMENTS BY THE AUTHOR
7.1 By further submission of 14 June 2002, the author reiterates that he was
not required to submit the same complaint to the Constitutional Court over
and over again, given that the Court had clearly stated in its decisions of
11 March 1998 and 28 September 19999 that the author's case involved neither
violations of his constitutional rights nor the application of an
unconstitutional law, despite the fact that the Salzburg Act provided for
the participation of two senate members delegated by the respondent party.
7.2 The author argues that, if a State decided to split the competencies of
reviewing the fairness of proceedings under constitutional and ordinary law,
between the two highest courts, applicants could only be required to submit
a complaint to one of them. The State party was given sufficient opportunity
to comply with its obligation to remedy the alleged violations, since the
Administrative Court was competent to provide such a remedy upon examination
of his complaint, even if "on a different formal level" than the
Constitutional Court.
7.3 The author reiterates that, according to the Committee's jurisprudence,
[FN14] article 14, paragraph 1, encompasses all proceedings of a civil or
criminal character, whether or not civil or public servants are parties. By
contrast to article 6, paragraph 1, ECHR, article 14, paragraph 1, of the
Covenant makes no distinction between categories of civil servants, and is
generally applicable to employment-related disputes. This follows from the
clear wording ("suits at law") of article 14, paragraph 1, which the State
party tried to ignore by reference to the European Court's contradictory
case law that had no bearing on the Covenant system.
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[FN14] The author cites Communications No.. 112/1981, Y. L. v. Canada, No.
203/1986, Rubén Toribio Muñoz Hermoza v. Peru, and No. 824/1998, N. M.
Nicolov v. Bulgaria, as well as Communication No. 454/1991, Enrique Garcia
Pons v. Spain, Views adopted on 30 October 1995.
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7.4 The author submits that the State party implicitly concedes that the
participation of two senate members delegated by the municipality of
Saalfelden in the disciplinary proceedings constituted a breach of article
14, paragraph 1. The lack of independence and impartiality of the
Disciplinary Commission was not cured by the review of his dismissal on
facts and law at the appeal level, since neither the Appeals Commission nor
the Administrative Court conducted an inquiry into the facts on their own,
being bound by the findings of fact of the first instance trial senate. In
the absence of an adversarial oral hearing at the appellate stage, the
author was deprived of his right to a fair and public hearing by an
independent and impartial tribunal and, more specifically, of an opportunity
to impeach the testimony of the prosecutorial witnesses. Moreover, the
appeals senate was as partial and dependent as the trial senate.
7.5 For the author, the decision of whether or not to call witnesses cannot
be left to the unlimited discretion of the national tribunals, arguing that
the State party failed to refute his allegation that the trial senate had
denied him equality of arms in presenting his defense. Similarly, the State
party's explanations concerning the falsification of the 1999 trial
transcript were illogical.
7.6 As to the length of proceedings, the author reiterates that the fact
that he had been compelled to proceed to the first or second appeals levels
to have clearly illegal acts of the trial senate set aside could not be
attributed to him.
7.7 The author challenges that the exclusion of the general public from the
trial senate hearings was justified in the interest of official secrecy,
since none of the charges against him involved matters of a secret nature.
Most of the counts concerned allegations of improper behaviour, while the
other charges related to public rather than secret matters. In any event,
the Disciplinary Commission could have dealt in camera with any issue
requiring secrecy and could have used acronyms to ensure the privacy of
third persons. The assistance of up to three civil servants in disciplinary
proceedings failed to meet the standard of a "public hearing" within the
meaning of article 14, paragraph 1, which also served the purpose of
safeguarding the transparency of the administration of justice.
ADDITIONAL OBSERVATIONS BY THE STATE PARTY AND AUTHOR'S COMMENTS
8. Both parties made additional submissions on 14 and 27 January 2003,
respectively. The State party argued that, by failing to request an oral
hearing before the Administrative Court, the author had waived his right
under article 14, paragraph 1, to a fair and public hearing, since he must
have been aware, on the basis of his legal representation by counsel, that
without an explicit request to that effect, proceedings before the
Administrative Court were usually only conducted in writing. The author
considers the State party's additional observations procedurally
inadmissible, on the basis that they were submitted out of time (i.e. more
than six months after submission of his comments of 14 June 2002), thereby
unduly prolonging the proceedings.
ISSUES AND PROCEEDINGS BEFORE THE COMMITTEE
CONSIDERATION OF ADMISSIBILITY
9.1 Before considering any claim contained in a communication, the Human
Rights Committee must, in accordance with rule 87 of its rules of procedure,
decide whether or not the communication is admissible under the Optional
Protocol to the Covenant.
9.2 With regard to the State party's objection ratione materiae, the
Committee recalls that the concept of a "suit at law" under article 14,
paragraph 1, is based on the nature of the right in question rather than on
the status of one of the parties. [FN15] The imposition of disciplinary
measures taken against civil servants does not of itself necessarily
constitute a determination of one's rights and obligations in a suit at law,
nor does it, except in cases of sanctions that, regardless of their
qualification in domestic law, are penal in nature, amount to a
determination of a criminal charge within the meaning of the second sentence
of article 14, paragraph 1. In the present case, the State party has
conceded that the trial senate of the Disciplinary Commission was a tribunal
within the meaning of article 14, paragraph 1, of the Covenant. While the
decision on a disciplinary dismissal does not need to be determined by a
court or tribunal, the Committee considers that whenever, as in the present
case, a judicial body is entrusted with the task of deciding on the
imposition of disciplinary measures, it must respect the guarantee of
equality of all persons before the courts and tribunals as enshrined in
article 14, paragraph 1, and the principles of impartiality, fairness and
equality of arms implicit in this guarantee. Consequently, the Committee
declares the communication admissible ratione materiae insofar as the author
claims to be a victim of violations of his rights under article 14,
paragraph 1, of the Covenant.
-------------------------------------------------------------------------------------------------------------------------------
FN15 See Communication No. 112/1981, Y. L. v. Canada, at para. 9.2;
Communication No. 441/1990, Robert Casanovas v. France, Views adopted on 19
July 1994, at para. 5.2.
-------------------------------------------------------------------------------------------------------------------------------
9.3 As to the author's claim that the lack of an oral hearing during the
appeal proceedings violated his right to a fair and public hearing under
article 14, paragraph 1, the Committee has noted the State party's argument
that the author could have requested an oral hearing before the
Administrative Court and that, failing this, he had waived his right to such
a hearing. The Committee also notes that the author has not refuted this
argument in substance, and that, throughout the proceedings, he was
represented by counsel. It therefore considers that the author has failed to
substantiate, for purposes of admissibility, that his right to an oral
hearing has been violated. The Committee concludes that this part of the
communication is inadmissible under article 2 of the Optional Protocol.
9.4 The Committee has taken note of the State party's objection that the
author did not exhaust domestic remedies in relation to his claims
concerning the lack of independence of the two members of the trial senate
delegated by the municipality of Saalfelden in the third set of proceedings,
the lack of publicity of the hearings before that senate, the fact that
copies of the 1997 testimonies had been sent to the prosecutorial witnesses
prior to the 1999 trial hearing, and the alleged manipulation of the 1999
trial transcripts. After careful examination of the author's complaints to
the Appeals Commission (complaint dated 11 October 1999) and to the
Administrative Court (complaints dated 21 January and 25 April 2000), the
Committee observes that the author has failed to raise these claims before
the Appeals Commission or, in any event, before the Administrative Court.
9.5 Moreover, it does not appear from the file before the Committee that the
author challenged the participation of the trial senate members, on the
basis that they had been designated by the municipality, in his
constitutional complaint challenging the trial senate's procedural decision
of 13 July 1999. Consequently, the Committee concludes that the author has
failed to exhaust domestic remedies with regard to these claims and that,
consequently, this part of the communication is inadmissible under article
5, paragraph 2 (b), of the Optional Protocol.
9.6 With regard to the remainder of the communication, the Committee has
taken note of the State party's argument that the author should have lodged
a complaint with the Constitutional Court against the confirmation of his
dismissal by the Appeals Commission in the third set of proceedings, in
order to have this decision reviewed not only under ordinary, but also under
constitutional law. In this regard, the Committee recalls its consistent
jurisprudence that article 5, paragraph 2 (b), of the Optional Protocol does
not require resort to domestic remedies which objectively have no prospect
of success. [FN16] Although the author's constitutional complaint of 25
August 1999 concerned the second rather than the third set of proceedings,
the allegations underlying this complaint were substantively similar to the
claims raised in his complaint of 25 April 2000 to the Administrative Court.
The Committee also observes that, by the time the author appealed the
decision of the Appeals Commission of 6 March 2000, the proceedings had
already extended over a period of more than four years. [FN17] Under these
circumstances, the Committee is satisfied that the author, by filing a
complaint against his dismissal in the third set of proceedings with the
Administrative Court, has made reasonable efforts to exhaust domestic
remedies.
-------------------------------------------------------------------------------------------------------------------------------
[FN16] See Communications No. 210/1986 and 225/1987, Earl Pratt and Ivan
Morgan v. Jamaica, at para. 12.3.
[FN17] Cf. Communication No. 336/1988, Andre Fillastre and Pierre Bizouarn
v. Bolivia, Views adopted on 5 November 1991, at para. 5.2.
-------------------------------------------------------------------------------------------------------------------------------
9.7 The Committee considers that the author has sufficiently substantiated,
for purposes of admissibility, his claim that the alleged bias of the
members of the trial senate in the third set of proceedings, its rejection
of the author's request to hear witnesses and to admit further evidence, its
delay in sending him the 1999 trial transcript, and the length of the
disciplinary proceedings raise issues under article 14, paragraph 1.
9.8 To the extent that the author alleges a violation of his rights under
article 26 of the Covenant, the Committee finds that he has failed to
substantiate, for purposes of admissibility, any claim of a potential
violation of that article. The communication is therefore inadmissible under
article 2 of the Optional Protocol, insofar as article 26 is concerned.
CONSIDERATION OF THE MERITS
10.1. The issue before the Committee is whether the proceedings of the trial
senate of this Commission violated article 14, paragraph 1, of the Covenant.
10.2 With regard to the author's claim that several members of the trial
senate in the third set of proceedings were biased against him, either
because of their previous participation in the proceedings, the fact that
they had already been challenged by the author, or because of their
continued employment with the municipality of Saalfelden, the Committee
recalls that "impartiality" within the meaning of article 14, paragraph 1,
implies that judges must not harbour preconceptions about the matter put
before them, and that a trial flawed by the participation of a judge who,
under domestic statutes, should have been disqualified cannot normally be
considered to be fair and impartial. [FN18] The Committee notes that the
fact that Mr. Cecon resumed chairmanship of the trial senate after having
been challenged by the author during the same set of proceedings, pursuant
to section 124, paragraph 3, of the Federal Civil Servants Act, raises
doubts about the impartial character of the third trial senate. These doubts
are corroborated by the fact that Mr. Maier was appointed substitute
chairman and temporarily even chaired the senate, despite the fact that the
author had previously brought criminal charges against him.
-------------------------------------------------------------------------------------------------------------------------------
[FN18] See Communication No. 387/1989, Arvo O. Karttunen v. Finland, Views
adopted on 23 October 1992, at para. 7.2.
-------------------------------------------------------------------------------------------------------------------------------
10.3 The Committee observes that, if the domestic law of a State party
provides for a right of a party to challenge, without stating reasons,
members of the body competent to adjudicate disciplinary charges against him
or her, this procedural guarantee may not be rendered meaningless by the
re-appointment of a chairperson who, during the same stage of proceedings,
had already relinquished chairmanship, based on the exercise by the party
concerned of its right to challenge senate members.
10.4 The Committee also notes that, in its decision of 6 March 2000, the
Appeals Commission failed to address the question of whether the decision of
the Disciplinary Commission of 23 September 1999 had been influenced by the
above procedural flaw, and to that extent merely endorsed the findings of
the Disciplinary Commission. [FN19] Moreover, while the Administrative Court
examined this question, it only did so summarily. See p. 7 et seq. of the
decision of 29 November 2000 of the Administrative Court, No. Zl.
2000/09/0079-6. [FN20] In the light of the above, the Committee considers
that the third trial senate of the Disciplinary Commission did not possess
the impartial character required by article 14, paragraph 1, of the Covenant
and that the appellate instances failed to correct this procedural
irregularity. It concludes that the author's right under article 14,
paragraph 1, to an impartial tribunal has been violated.
-------------------------------------------------------------------------------------------------------------------------------
[FN19] See p. 3 of the decision of 6 March 2000 of the Appeals Commission,
No. 11-12294/94-2000.
[FN20] See p. 7 et seq. of the decision of 29 November 2000 of the
Administrative Court, No. Zl. 2000/09/0079-6.
-------------------------------------------------------------------------------------------------------------------------------
10.5 With respect to the rejection by the Disciplinary Commission of the
author's requests to call witnesses and to admit further evidence in his
defense, the Committee recalls that, in principle, it is beyond its
competence to determine whether domestic tribunals properly evaluate the
relevance of newly requested evidence. [FN21] In the Committee's view, the
trial senate's decision that the author's evidentiary requests were futile
because of the sufficient written evidence does not amount to a denial of
justice, in violation of article 14, paragraph 1.
-------------------------------------------------------------------------------------------------------------------------------
[FN21] Cf. Communication No. 174/1984, J. K. v. Canada, decision on
admissibility adopted on 26 October 1984, at para. 7.2.
-------------------------------------------------------------------------------------------------------------------------------
10.6 As to the trial senate's failure to transmit the 1999 trial transcript
to the author before the end of the deadline for appealing the decision of
the Disciplinary Commission of 23 September 1999, the Committee observes
that the principle of equality of arms implies that the parties to the
proceedings must have adequate time and facilities for the preparation of
their arguments, which, in turn, requires access to the documents necessary
to prepare such arguments. [FN22] However, the Committee observes that
adequate preparation of one's defense cannot be equated with the adequate
preparation of an appeal. Furthermore, it considers that the author has
failed to demonstrate that the late transmittal of the 1999 trial transcript
prevented him from raising the alleged irregularities before the
Administrative Court, especially since he admits himself that the alleged
manipulation of the testimonies was only discovered by counsel for the
present communication. The Committee therefore concludes that the author's
right to equality of arms under article 14, paragraph 1, has not been
violated.
-------------------------------------------------------------------------------------------------------------------------------
[FN22] See General Comment 13, at para. 9.
-------------------------------------------------------------------------------------------------------------------------------
10.7 Regarding the length of the disciplinary proceedings, the Committee
considers that the right to equality before the courts, as guaranteed by
article 14, paragraph 1, entails a number of requirements, including the
condition that the procedure before the national tribunals must be conducted
expeditiously enough so as not to compromise the principles of fairness and
equality of arms. The Committee observes that responsibility for the delay
of 57 months to adjudicate a matter of minor complexity lies with the
authorities of Austria. It also observes that non-fulfillment of this
responsibility is neither excused by the absence of a request for the
transfer of competence (Devolutionsantrag), nor by the author's failure to
lodge a complaint about undue delay of proceedings (Säumnisbeschwerde), as
it was primarily caused by the State party's failure to conduct the first
two sets of proceedings in accordance with domestic procedural law. The
Committee concludes that the author's right to equality before the courts
and tribunals has been violated.
11. The Human Rights Committee, acting under article 5, paragraph 4, of the
Optional Protocol to the International Covenant on Civil and Political
Rights, is of the view that the facts before it reveal a violation of
article 14, paragraph 1, of the Covenant.
12. In accordance with article 2, paragraph 3, of the Covenant, the State
party is under an obligation to provide the author with an effective remedy,
including payment of adequate compensation. The State party is also under an
obligation to prevent similar violations in the future.
13. Bearing in mind that, by becoming a party to the Optional Protocol, the
State party has recognized the competence of the Committee to determine
whether there has been a violation of the Covenant or not and that, pursuant
to article 2 of the Covenant, that State party has undertaken to ensure all
individuals within its territory or subject to its jurisdiction the rights
recognized in the Covenant and to provide an effective and enforceable
remedy in case a violation has been established, the Committee wishes to
receive from the State party, within 90 days, information about the measures
taken to give effect to the Committee's Views. The State party is also
requested to publish the Committee's Views.
___________________________
[Done in English, French and Spanish, the English text being the original
version. Subsequently to be issued in Arabic, Chinese and Russian as part of
the Committee's annual report to the General Assembly.] |
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