PROCEDURE

The case originated in an application (no. 10781/08) 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 Wolfgang Ohneberg (“the applicant”), on 19 February 2008.

The applicant was represented by Mr W.L. Weh, a lawyer practising in Bregenz. The Austrian Government (“the Government”) were represented by their Agent, Ambassador H. Tichy, Head of the International Law Department at the Federal Ministry for European and International Affairs.

The applicant alleged a violation of Article 6 § 1 of the Convention because neither the Appeals Commission nor the Constitutional Court had held an oral hearing.

On 23 September 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 1950 and lives in Hard.

The applicant worked for the Bregenz Tax Authority (Finanzamt) as a civil servant. He was the head of a tax assessment division (Leiter der Veranlagungsabteilung).

As the Austrian Tax Authorities were to be reformed, the applicant was removed from his post as head of the tax assessment division by a decision of the Bregenz Tax Authority of 29 March 2005. On 28 April 2005 the Tax Authority appointed the applicant to the post of specialist (Fachexperte im Fachbereich), a post that had a lower grade. Upon the applicant’s appeal the Appeals Commission at the Federal Chancellery (Berufungskommission beim Bundeskanzleramt - “the Appeals Commission”) set aside those two decisions on 28 July 2005.

By letter dated 24 November 2005 the Tax Authority sent the applicant the job profiles for both the post of head of division and the post of specialist.

The job profile for his former post as head of the tax assessment division stated that the applicant was responsible for, among other tasks, organising, coordinating and supervising the procedural requirements within the tax-assessment division, and dealing with case files in special circumstances. The applicant was also the supervisor of forty-three other civil servants and employees.

The job profile for the new post of specialist stated that, among other tasks, the applicant would assist the leading specialist (Fachvorstand), especially in the areas of coordination, quality check and supervisory measures. He would further participate in several working groups and deal autonomously and on his own initiative with legal remedies. He was not entitled to directly assign that task to someone else. He would also have to take decisions on questions of procedural and material law, give advice in difficult cases in his area of expertise (Fachgebiet), and represent the authority before the Independent Finance Panel (Unabhängiger Finanzsenat). The job profile did not state that any employees or civil servants were to be under his direct supervision.

On 27 April 2006 the Bregenz Tax Authority issued a decision by which the applicant was transferred to the post of specialist without any team-leading responsibilities. The applicant’s new post was graded lower than his former post in the internal categorisation of public-service positions. However, with regard to a three-year moratorium provided by the law in the context of transfers involving downgrading due to re-organisation, the applicant would only be subject to a salary reduction after three years.

The applicant appealed against the decision to the Appeals Commission on 18 May 2006. He argued, inter alia, that his actual work had not changed sufficiently to justify the lower grade. Consequently the legal requirements for justifying a transfer to another post with a reduction in salary had not been met. The applicant requested the Appeals Commission to hold an oral hearing.

On 21 July 2006, and without holding an oral hearing, the Appeals Commission dismissed the applicant’s appeal. It held that the applicant’s job profile had changed to a sufficient extent to qualify as a transfer to another post. Furthermore, the transfer had been strictly necessary in the interests of the service, specifically, the implementation of the overall reform of the Tax Authorities.

The applicant complained to the Constitutional Court, arguing, inter alia, that the transfer had been arbitrary and violated his civil rights, as his salary had decreased in the new position. He also complained that the Appeals Commission had failed to hold an oral hearing and requested the Constitutional Court to do so.

The Appeals Commission replied on 30 October 2006 and stated, referring to the Constitutional Court’s case-law, that the rights and obligations arising from employment in public service did not amount to civil rights and obligations within the meaning of Article 6 of the Convention.

In his reply of 19 June 2007 the applicant argued that Article 6 of the Convention was applicable to his case and that the Constitutional Court was obliged to compensate the lack of an oral hearing before the Appeals Commission by holding one in the course of the complaint proceedings.

The Constitutional Court, without holding a hearing, dismissed the complaint on 11 July 2007, finding that none of the legal provisions on which the contested decision had been based was in violation of the Austrian Constitution. The decision was served on the applicant’s counsel on 21 August 2007.
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CODE
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10781/08
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ORG
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Republic of Austria
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DEM
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Austrian
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PERSON
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Mr Wolfgang Ohneberg
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DATETIME
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19 February 2008
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Mr W.L. Weh
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Bregenz
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Austrian Government
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H. Tichy
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International Law Department
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Federal Ministry for European and International Affairs
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Appeals Commission
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Constitutional Court
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1950
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LOC
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Hard
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Bregenz Tax Authority (Finanzamt)
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tax assessment division (Leiter der Veranlagungsabteilung)
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Austrian Tax Authorities
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tax assessment division
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Bregenz Tax Authority
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29 March 2005
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28 April 2005
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Tax Authority
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Appeals Commission
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Appeals Commission
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28 July 2005
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24 November 2005
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Tax Authority
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tax assessment division
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tax-assessment division
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Independent Finance Panel (Unabhängiger Finanzsenat)
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27 April 2006
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Bregenz Tax Authority
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three-year
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three years
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Appeals Commission
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18 May 2006
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Appeals Commission
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21 July 2006
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Appeals Commission
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Tax Authorities
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Appeals Commission
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30 October 2006
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Constitutional Court’s
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19 June 2007
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Constitutional Court
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11 July 2007
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21 August 2007
Wolfgang Ohneberg
AUT
CHAMBER
Task: Annotate the document to anonymise the following person: Wolfgang Ohneberg