Stoisits: No citizenship without shaking hands

No citizenship without shaking hands

ORF-Series "Bürgeranwalt" (“Advocate for People”) – Broadcast of November 8th, 2008

An Islamic teacher has been living and working in Carinthia for more than 15 years already. He founded a family here and all of his four children were born in Austria. Hence in March 2005 he applied for Austrian citizenship for himself and his family. After an investigation the Carinthian Provincial Government rejected his application on the grounds of lack of integration. In the opinion of the authority the decisive reason for this was that the applicant refuses to shake hands with women and according to the complainant, this refusal is on religious grounds.

An appeal was lodged at the Constitutional Court which described the reasons of the decision as „rudimentary“. Due to serious errors on the part of the authority its decision was held to be arbitrary and set aside in the decision of 13 October 2006. Subsequently the Carinthian Pro-vincial Government issued a further decision on 26 April 2007 which again rejected the application in consideration of the same issues on the same grounds and again the applicant appealed to the Constitutional Court.

Also in these highest court proceedings the Constitutional Court set aside the decision on the grounds of infringement of constitutionally protected rights and stated that the refusal to shake hands with women had again been used as the only indicator for assessing the person’s integration. In its decision of 11. December 2007 the Court again accused the Carinthian Provincial Government of acting arbitrarily.

Although after the first decision by the highest court the authority had been obliged to forth-with establish the legal status in accordance with the legal opinion of the Constitutional Court, not even the general obligation of any administrative authority, to issue a decision within six months, was observed and accordingly the complainant filed a complaint of default at the Administrative Court. The Court invited the Carinthian Provincial Government to remedy the default and issue a decision. The representative of the authority, who was present at the broadcast, could not give any information yet as to when the (now third) decision could be expected nor about its contents.

Ombudsperson Terezija Stoisits complained that the whole family had been put off for years by these decisions with flawed reasons which the Constitutional Court had held arbitrary twice already. The complainant and his family have a right to a quick decision in accordance with the rule of law.

Head of Music School without office – waste of money and mobbing at the Music School Vösendorf?

The complainant has been (and can be rightfully considered to remain) Head of the Music School in the market town of Vösendorf since 1990. As such since 2000 he has had to teach in premises which were totally inadequate.

After having requested the local authority unsuccessfully to remedy the situation for years, the complainant, with the help of worried parents, also went public. He did so in a very committed way which was regarded as breach of confidence and even as grounds for his dismissal or at least reason for terminating his employment by the local authority.

The complainant instituted proceedings against his dismissal at the Regional Court Wiener Neustadt. In the proceedings at first instance it was determined that his dismissal was invalid and thus his employment was continuing and also that the school building at that time was in a alarmingly bad state of repairs which had been pointed out by the complainant. After the complainant had also obtained judgement in his favour in the appeal proceedings at the Re-gional Appeal Court Vienna, this judgement was confirmed by the Supreme Court at last in-stance on 11.8.06.

Thus the council of Vösendorf as employer has lost the action at three court instances! And the bad state of repairs pointed out by the complainant had also been confirmed by the court. It would be expect that the Council, as fair loser, would have allowed the complainant to re-turn to work again, but this was not the case.

To begin with, the complainant even had to wait for payment of his salary to which he was entitled and for which he had fought for at court. It was paid to him only after intervention of the Office of the Ombudsperson. Furthermore, he was not allowed to return to work but had to remain idle whilst still receiving his full salary! This case has already been presented by the former Ombudsperson Mag. Hilmar KABAS on 31.3.2007 in the series „Ombudsperson – equal rights for all“.

Now enquiries were made as how the situation had developed. The result is sobering: The complainant now has a „workroom“ made available by the Council, where he has to sit a few hours daily, but he still gets practically no work.

Ombudsperson Terezija STOISITS again referred to the duty of care of the employer and emphasized that the conduct of the persons responsible from the Council towards the complainant was inconsistent with their duty, not only because the complainant was unable to use his working potential in a meaningful way, but also because he was in a way also socially stigmatized by this treatment. The Ombudsperson further referred to court rulings, according to which under certain conditions employees have a right to proper work and not just to payment of a salary. She argued that according to the principle of these court rulings the complainant must at least be given some meaningful work or teaching work at the Music School.

This would be a solution to the really scandalous present situation, where there are in reality only losers - the Council of Vösendorf which can „afford“ two Heads of the Music School, one of which has to remain practically idle with full payment of salary – a blatant waste of taxpayers’ money – and even more, the complainant, who is unable to use his knowledge and skills in practice and in addition has to suffer a certain level of social stigmatization. The latter could result in further financial loss for the Council. If the complainant’s health was affected by this treatment, which is clearly in breach of contract and unlawful and contravenes the duty of care, the Council could be liable for damages.