so-for-humanity

Seventy-ninth session
(20 October-7 November 2003)

Eightieth session
(15 March-2 April 2004)

Eighty-first session
(5-30 July 2004)

General Assembly
Official Records
Fifty-ninth session
Supplement No. 40 (A/59/40)

United Nations • New York, 2004

CONTENTS

Chapter
I. JURISDICTION AND ACTIVITIES
A. States parties to the International Covenant on Civil and Political Rights
B. Sessions of the Committee
C. Election of officers
D. Special rapporteurs
E. Working groups and country report task forces
F. Secretary-General's recommendations for reform of treaty bodies
G. Related United Nations human rights activities
H. Derogations pursuant to article 4 of the Covenant
I. General comments under article 40, paragraph 4, of the Covenant
J. Staff resources
K. Emoluments of the Committee
L. Publicity for the work of the Committee
M. Documents and publications relating to the work of the Committee
N. Publication of Festschrift commemorating the twenty-fifth anniversary of the Committee's work
O. Future meetings of the Committee
P. Adoption of the report
GE.04-43700 (E) 181004

II. METHODS OF WORK OF THE COMMITTEE UNDER
ARTICLE 40 OF THE COVENANT AND COOPERATION WITH OTHER UNITED NATIONS BODIES
A. Recent developments and decisions on procedures
B. Concluding observations
C. Links to other human rights treaties and treaty bodies
D. Cooperation with other United Nations bodies

III. SUBMISSION OF REPORTS BY STATES PARTIES UNDER ARTICLE 40 OF THE COVENANT
A. Reports submitted to the Secretary-General from August 2003 to July 2004
B. Overdue reports and non-compliance by States parties with their obligations under article 40

IV. CONSIDERATION OF REPORTS SUBMITTED BY STATES PARTIES UNDER ARTICLE 40 OF THE COVENANT
A. Concluding observations on State reports examinedduring the reporting period
The Philippines
Russian Federation
Latvia
Sri Lanka
Colombia
Germany
Suriname
Uganda
Lithuania
Belgium
Liechtenstein
Namibia
Serbia and Montenegro
B. Provisional concluding observations adopted by the
Committee on country situations in the absence of a
report, and converted into public final concluding
observations pursuant to rule 69A, paragraph 3,
of the rules of procedure
Gambia
Equatorial Guinea

V. CONSIDERATION OF COMMUNICATIONS UNDER THE OPTIONAL PROTOCOL
A. Progress of work
B. Growth of the Committee's caseload under the Optional Protocol
C. Approaches to consider communications under the Optional Protocol
D. Individual opinions
E. Issues considered by the Committee
F. Remedies called for under the Committee's Views

VI. FOLLOW-UP ACTIVITIES UNDER THE OPTIONAL PROTOCOL

VII. FOLLOW-UP TO CONCLUDING OBSERVATIONS ON STATE REPORTS
Annexes
I. STATES PARTIES TO THE INTERNATIONAL COVENANT
ON CIVIL AND POLITICAL RIGHTS AND TO THE TWO
OPTIONAL PROTOCOLS, AND STATES WHICH HAVE
MADE THE DECLARATION UNDER ARTICLE 41 OF
THE COVENANT AS AT 31 JULY 2004

A. States parties to the International Covenant on Civil and Political Rights
B. States parties to the Optional Protocol
C. States parties to the Second Optional Protocol, aiming at the abolition of the death penalty
D. States which have made the declaration under article 41 of the Covenant

II. MEMBERSHIP AND OFFICERS OF THE HUMAN RIGHTS COMMITTEE, 2003-2004
A. Membership of the Human Rights Committee
B. Officers
III. GENERAL COMMENT ADOPTED UNDER ARTICLE 40,
PARAGRAPH 4, OF THE INTERNATIONAL COVENANT
ON CIVIL AND POLITICAL RIGHTS

IV. SUBMISSION OF REPORTS AND ADDITIONAL
INFORMATION BY STATES PARTIES UNDER
ARTICLE 40 OF THE COVENANT

V. STATUS OF REPORTS CONSIDERED DURING THE
PERIOD UNDER REVIEW AND OF REPORTS STILL
PENDING BEFORE THE COMMITTEE
VI. COMMITTEE DECISION OF 2 APRIL 2004 TO
TRANSFORM WEEK OF WORKING GROUP OF THE
EIGHTY-FIRST SESSION INTO WEEK OF PLENARY
MEETINGS AND PROGRAMME BUDGET
IMPLICATION STATEMENT

VII. SELECTION OF DATABASES CARRYING THE
COMMITTEE'S DECISIONS UNDER THE OPTIONAL
PROTOCOL

VIII. COMMITTEE DECISION ON WORKING METHODS
UNDER THE OPTIONAL PROTOCOL, ADOPTED
23 JULY 2004

IX. VIEWS OF THE HUMAN RIGHTS COMMITTEE UNDER
ARTICLE 5, PARAGRAPH 4, OF THE OPTIONAL
PROTOCOL TO THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS
Appendix

Z. Communication No. 1015/2001, Perterer v. Austria ...... (pp. 231 -246)
(Views adopted on 20 July 2004, eighty-first session)
The following members of the Committee participated in the examination of the present
communication: Mr. Abdelfattah Amor, Mr. Nisuke Ando, Mr. Prafullachandra Natwarlal
Bhagwati, Ms. Christine Chanet, Mr. Franco Depasquale, Mr. Maurice Glèlè Ahanhanzo,
Mr. Walter Kälin, Mr. Ahmed Tawfik Khalil, Mr. Rajsoomer Lallah, Mr. Rafael Rivas Posada,
Sir Nigel Rodley, Mr. Martin Scheinin, Mr. Ivan Shearer, Mr. Hipólito Solari Yrigoyen,
Ms. Ruth Wedgwood, Mr. Roman Wieruszewski and Mr. Maxwell Yalden.

Submitted by: Paul Perterer (represented by counsel,
Mr. Alexander H.E. Morawa)
Alleged victim: The author
State party: Austria
Date of communication: 31 July 2001 (initial submission)

The Human Rights Committee, established under article 28 of the International Covenant
on Civil and Political Rights, Meeting on 20 July 2004,

Having concluded its consideration of communication No. 1015/2001, submitted to the
Human Rights Committee on behalf of Paul Perterer under the Optional Protocol to the
International Covenant on Civil and Political Rights, Having taken into account all written information made available to it by the author of the communication, and the State party,
Adopts the following:

Views under article 5, paragraph 4, of the Optional Protocol

1. The author of the communication is Mr. Paul Perterer, an Austrian citizen. He claims to
be a victim of violations by Austria1 of articles 14, paragraph 1, and 26 of the Covenant. He is
represented by counsel.

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 one third. On 4 June 1996, the author challenged the chairman of the senate,
Mr. Guntram Maier, pursuant to section 124, paragraph 3,2 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,3 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.

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 defence 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 defence 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.4

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.5

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"6 justified the exclusion of the public.

3.4 The author submits that, contrary to the principle that judges must not harbour
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 totalling 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 defence 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.7

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 defence 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.8

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,9 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,10 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.11

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 States
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,12 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.13 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.

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 1999 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,14 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.

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 defence.
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.15 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.

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.16 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.17 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.

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.18 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.

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 reappointment 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.19 Moreover, while the
Administrative Court examined this question, it only did so summarily.20 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.

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 defence, the Committee recalls that, in
principle, it is beyond its competence to determine whether domestic tribunals properly evaluate
the relevance of newly requested evidence.21 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.

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.22 However, the Committee observes that adequate preparation of one's defence
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.

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-fulfilment 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.

[Adopted in English, French and Spanish, the English text being the original version.
Subsequently to be issued also in Arabic, Chinese and Russian as part of the present report.]

Notes
1 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.

2 Section 124, paragraph 3, of the Federal Civil Servants Act provides: "With the order
instituting proceedings (Verhandlungsbeschluß), the accused shall be notified of 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."

3 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. […]"

4 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.

5 The author refers to CCPR, twenty-first session (1984), general comment 13: Equality before
the courts and the right to a fair and public hearing by an independent court established by law
(art. 14), at para. 3.

6 Reference is made to ibid., at para. 6.

7 The State party refers to the judgements 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.

8 The author refers to communications Nos. 210/1986 and 225/1987, Earl Pratt and
Ivan Morgan v. Jamaica, Views adopted on 6 April 1989.

9 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.

10 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.

11 See European Court of Human Rights, application No. 28541/95, Pellegrin v. France,
judgement of 8 December 1999, at para. 65.

12 Reference is made, inter alia, to the dissenting opinion of the Committee members Graefrath,
Pocar and Tomuschat in communication No. 112/1981, Y.L. v. Canada, at para. 3.

13 The State party refers to the judgements of the European Court of Human Rights in
Pierre-Bloch v. France, judgement of 21 October 1997, at para. 51, and in Pellegrin v. France,
judgement of 8 December 1999, at para. 60.

14 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.

15 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.
16 See communications Nos. 210/1986 and 225/1987, Earl Pratt and Ivan Morgan v. Jamaica, at
para. 12.3.

17 Cf. communication No. 336/1988, Andre Fillastre and Pierre Bizouarn v. Bolivia, Views
adopted on 5 November 1991, at para. 5.2.

18 See communication No. 387/1989, Arvo O. Karttunen v. Finland, Views adopted
on 23 October 1992, at para. 7.2.

19 See page 3 of the decision of 6 March 2000 of the Appeals Commission,
No. 11-12294/94-2000.

20 See pages 7 et seq. of the decision of 29 November 2000 of the Administrative Court,
No. Zl. 2000/09/0079-6.

21 Cf. communication No. 174/1984, J.K. v. Canada, decision on admissibility adopted
on 26 October 1984, at para. 7.2.

22 See general comment 13, at para. 9.