Austrian case study

I./ Legal framework

In Austria, policemen are civil servants of the federation, whose relationship to the state is ruled by public law. The relevant provisions are inter alia found in the Beamten-Dienstrechtsgesetz 1979, BGBl. Nr. 333 (law concerning the tenure of civil servants). According to Article 10 para 1 of this law, civil servants’ tenure starts as a provisional one. As long as tenure has not become definitive, what happens after 5 years, the federation is entitled to dismiss the civil servant if there is a justified ground. Article 10 para 4 subpara 4 defines irresponsible behaviour as such a ground.
According to Article 43 para 2 of the law the civil servant is obliged to take care in its entire behaviour that public confidence in his ability to observe his duties correctly keeps preserved.

II. / The facts

In 2003 the applicant met a lady, O, from abroad. He knew that she worked as prostitute and (nevertheless) felt in love with her. They came to Austria together and started to live together in a partnership. She stopped working in the red light milieu. 
The applicant was appointed as policeman on 1st of September 2004. 
In October 2004, A, another lady from abroad, who has also worked as a prostitute in Rumania, came to visit her friend O in Austria. The applicant was informed that A has worked as a prostitute aboard some time ago.
O asked the applicant whether he agrees that A may stay in his flat (together with O) for the time of his stay in a police school. The applicant agreed.

On occasion of a vacancy in police school the applicant came back to his flat and tried to open it. This was not possible according to the key sticking inside. The applicant knocked at the door and rang the bell. Due to the fact that there was no reaction he ordered a locksmith to open the door by force. This was quite loud, so many inhabitants of the house came to look what’s going on. Finally, the door was opened from inside, where A appeared with two sparely dressed men. One inhabitant informed the police.

In December 2004 the applicant suspected his friend O to work as a prostitute in a Viennese bar again. During his freed time, he went to this bar in order to convince her to stop her work as a prostitute. In this context he had a dispute with the owner of the bar who called the police.

In 2005 the applicant married O, who still works as a prostitute.

In March 2006 the first instance authority dismissed the applicant, arguing that his behaviour was not in accordance with Article 43 para 2 of the Civil Servants’ Act.

The Minister of Interior dismissed the applicant’s appeal, arguing in the same way. The applicant appealed to the Austrian Administrative Court, arguing that the interpretation of Art. 43 para 2 by the Administrative Authority is not in conformity with Art. 8 of the Convention on Human Rights.