Stoisits: Are "Zivildiener" being discriminated?

Is it illegal to discriminate, in terms of non-payment of adequate sustenance money and legal fees, for complaints brought before the Administrative Court, young people, called “Zivildieners,” who choose to do community work, instead of military service?

ORF-Series "Bürgeranwalt" (“Advocate for People”) – Broadcast of July 19th, 2008

Do “Zivildieners”, who do not have the time to take lunch in their department, have the same right to appropriate sustenance money as conscripts, who cannot have lunch in their barracks? Should these people, who perform hard tasks in ambulance services, disaster operations and other services for the community, be discriminated, as compared to conscripts, in terms of sustenance money?

Ombudswoman Terezija Stoisits pointed out, when acting on behalf of many other cases, the lengthy efforts of former “Zivildiener” Thomas B, to obtain equal treatment for “Zivildieners”.

This ORF - broadcast focused on the fact that the ultimate result of this legal dispute, which lasted 6 years, was that the complainant was asked to pay an unjustified legal fee to the Administrative Court.

The facts of the case are as follows: “Zivildiener” Thomas B from Vorarlberg worked 12 month in 2001/2002 as a paramedic for the Red Cross in Bregenz.

He was in charge of applying first aid treatments in cases of emergency as well as of rendering ambulance services to and from the hospital, particularly to patients, who are unable to walk.

Instead of the € 13, 60 (since 1.1.2008: € 16) per day that the Administrative Court would grant a conscript in similar cases, the “Zivildiener” received only € 5, 92 per day.

The Red Cross argued that the kitchen in the department was at their disposal for the preparation of meals and that furthermore it was possible to take meals at the hospital.

The complainant alleged at the court proceedings, that due to the fact that service could be requested at any moment, it was not always possible to take the meals at the hospital. The hospital also confirmed that “Zivildiener” were not in any case allowed to take their breakfast and dinner at the hospital.

In a final step Thomas B. was asked to pay a court fee of €180 for the expenses of the complaint lodged at the Administrative Court. This final measure went against the case law of the Administrative Court.

When the complainant claimed that “Zivildieners” were legally exempted from paying court fees, the relevant Tax Authority charged a surtax of 50 %.

Ombudswoman Terezija Stoisits pointed out that, to begin with, the civilian services that a “Zivildiener” is asked to perform are invariably hard task. She therefore holds that this difference of treatment between “Zivildiener” and a conscript is not justified. The difference in the amount of sustenance money actually paid out to a “Zivildiener”, when compared to that paid out to a military conscript, constitutes a big loss for the concerned.

The representative of the Ministry of Finance reported that in view of the allegations of the Austrian Ombudsman Board, a solution had been found which exempted Thomas B from paying legal fees for having submitted his complaint to the Administrative Court. As a result of an informal complaint submitted by the Board to the relevant Tax Authority the Ministry showed itself lenient towards the complainant. Thomas B. was therefore exempted from paying the legal fees.

For the other pending proceedings of Zivildieners, the representative of the Ministry of Finance announced the following approach: depending on the status of the proceedings the court fees would not be charged or would be refunded on request.
Ombudswoman Terezija Stoisits sees this result as a success for the Austrian Ombudsman Board, which goes far beyond this individual case.

In addition, Ombudswoman Terezija Stoisits hopes that, a permanent legal solution will soon be found that will eliminate the unjustified differentiation in the payment of sustenance money to “Zivildiener” and conscripts. The sustenance money payable to those affiliated to the army, which was raised to €16 at the beginning of 2008, should now also be paid to “Zivildieners”, so as to respect the principle of equality.

Special waste collecting point. - The Municipality of Oggau agrees to the changed opening hours.

Good news after the involvement of the Austrian Ombudsman Board concerning the changed opening hours of the special waste collecting point in Oggau.

This special waste collecting point run by the Municipality of Oggau for more than 10 years has been expanded several times and is not only used by the residents of Oggau.

The Austrian Ombudsman Board reported in the ORF- series „Bürgeranwalt“ (people’s advocate) of April 5th 2008 about the growing disturbances that the expansion of the special waste collecting point was causing to local residents.
The residents were especially disturbed by the actual opening hours on Saturdays and by the ensuing noise, dust and smell that ruined their possibilities of enjoying the open air.

The Austrian Ombudsman Board pointed out that as operator of this public facility, it was the duty of the Municipality to make sure that the neighborhood did not suffer any unreasonable nuisance. In the past, the degree of disturbance had not been measured, but after the expansion of the facility, these measurements would now have to be taken.

Ombudswoman Terezija Stoisits is pleased that as a result of the Austrian Ombudsman Boards’ examination procedure the facility shall now only be open until 3 p.m. on Saturdays, a decision which the residents see as a noticeable improvement.

Obligation to surrender land – The Municipality of Vienna accepts the deletion from the Land Registry

Good news to report in the case of a Viennese, who wants to sell unencumbered real estate in Vienna Simmering.

The Austrian Ombudsman Board reported in the ORF- series „Bürgeranwalt“ (people’s advocate) of January 26th 2008 that the Municipality of Vienna refused to delete an obligation to surrender that has been groundless for many years now from the Land Registry.

This obligation had been registered 1949 in the Land Registry due to the granting building license at that time. The land was never actually handed over to the Municipality, but decades later the Municipality actually bought the land that was needed from the present owner. The general public now uses the road and sidewalk, which were built on the land in 1990.

The Austrian Ombudsman Board held against the Municipality of Vienna the fact that the obligation to surrender the land had become groundless after the construction of the road. And as the general public had been using this part of the road since 1990, the entry in the Land Registry should also be deleted.

The Building Authorities agree with the legal opinion of the Austrian Ombudsman Board. They decided that after 17 years of public use of the road it had become common property. Ombudswoman Terezija Stoisits is pleased to report that: “as a result, the entry concerning the obligation to surrender part of the property is to be removed from the Land Registry.”

Windradelteich Guntramsdorf – Season tickets are more expensive for non-residents. Is a Municipality allowed to favor its citizens? Is a Municipality allowed to charge more money to non-residents for wharfs, ski-passes and other entry-tickets?

Ombudswoman Terezija Stoisits clarifies this matter, which has often been submitted to the Austrian Ombudsman Board, by means of the example of a swimming pond close to Vienna called Windradelteich.

The Windradelteich belonging to the Municipality of Guntramsdorf is a popular recreational area. The ORF- series „Bürgeranwalt“ (people’s advocate) of July 19th 2008 focuses on the rise of season ticket’s prices for swim guests that are not from Guntramsdorf.
Gertrud St. from Vienna has been coming to the Windradelteich every summer for many years. Until 2003 every guest had to pay €15 for an annual season ticket.

In 2004, the price was raised and residents were asked to pay €20 for an annual ticket, whereas non-residents were asked to pay €150 for the so called “annual guest card”. As a result Mrs. St. felt discriminated and she appealed to the Austrian Ombudsman Board.

The Board asked for an official examination that was to produce a survey on discriminating tariff arrangements against non- residents by municipalities. The survey supports the legal opinion of the Austrian Ombudsman Board, showing that discrimination of non-residents is illegal.

The Municipality of Guntramsdorf argued that this price raise was due to the limited capacity of the pond, and that a high percentage of guests were non-residents. Ombudswoman Terezija Stoisits argued that it was illegal to keep non-residents away from the Windradelteich pond by a season ticket, which was sold at eight times the price of the ticket of residents. The principle of equality was thus infringed by a discriminating price arrangement towards non-residents.

In respect to the limited capacity of the Windradelteich pond, the adoption of, measures to close or limit the access to the pond in cases of congestion, as is done in swimming pools, would be admissible. However, to allow residents to go swimming and to keep non-residents arbitrarily away – for instance by charging excessive prices - was illegal.

The attendant Chief Officer assured that the Municipality of Guntramsdorf had already considered new solutions. In particular, it had been decided to replace the annual ticket by a single price daily ticket of €5 per day for residents and non-residents alike. Charging higher weekend fares was also being considered.

At any rate, non-residents were to be refunded the difference for already paid annual tickets. The amount had already been paid to the complainant, 3 buyers in 2007, whose name is not known, were requested to notify the Municipality of Guntramsdorf to get the refund of the difference.

Ombudswoman Terezija Stoisits sees the result of the examination proceedings as a great success for the complainant. These proceedings clarified once again, that Municipalities had to keep in mind the principle of equality towards non-residents when doing the price arrangements.