Austrian case solution

The court first referred to its jurisdiction that the words “in its entire behaviour” in Art. 43 para 2 of the civil servants’ act make clear that not only behaviour in service, but also behaviour in private life is at stake. Relevant is only whether there is an impact on public service. This impact exists whenever the civil servant’s behaviour may evoke doubts concerning his ability to fulfil his official duties correctly. Judging this question, behaviour during service and private behaviour have to be treated differently. Only serious misbehaviour in private life constitutes a disciplinary offence, violating Art. 43 para 2. The fact that a person is civil servant does not generally entitle the state to interfere in his employee’s private life, but it is necessary to weigh up carefully in each single case the civil servant’s interests concerning protection of his private life and the state’s interest in public confidence in the functioning of civil service.

Moreover, Article 8 of the Convention also protects a policeman’s private and family life, that covers the right to uphold private contacts with a prostitute, be it in form of friendship, partnership or marriage, as well. Therefore the applicant must not be blamed for his private contacts with A and O as far as they took place out of the red light milieu.

On the other hand, policemen are forbidden to support prostitution, or even to evoke the impression in public to do so (for example, according to the court’s jurisdiction, advertising a red light club on a policeman’s private car creates a disciplinary offence).

Therefore, it would have been a disciplinary offence, if the applicant had given his permission to A to use his flat for prostitution. But this was not the case, because he has explicitly forbidden them to let other persons in. The court found this directive sufficient; as long as the applicant was not aware of circumstances that might evoke serious doubts that A will behave according to this directive. His mere knowledge that she used to work as prostitutes sometimes ago was not sufficient to evoke such doubts.

Concerning the controversy with the bar owner, the Administrative Court found that a policeman who holds private contacts with a prostitute should abstain from meeting her during her work in the demimonde, in order to avoid the impression of his personal implication in this milieu. But, this requirement stood in a certain conflict with the applicant’s private interest to meet her in order to clarify their future personal relationship. It might not be excluded, that, nevertheless, visiting her in the bar where she worked and discussing with the owner, constituted a disciplinary misbehaviour, but, taking into consideration his private interests, the court found that it was not serious enough to justify his dismissal.

Therefore the court annulled the challenged administrative decision