Fundamental Rights Section
As the VfGH declared in its decision VfSlg. 13.223/1992, 'it is incongruous with the Constitution for state authorities to circumvent mandatory legal protections by failing to issue an
official ruling as required by constitutional law.' In its subsequent decision VfSlg.
13.699/1994 the VfGH determined, in this context, that 'it assumes an understanding of the
rule of law principle, … that administrative acts, which have significant legal effects, may
not be legally construed as uncontestable administrative acts, because the constitutionally
guaranteed legal protection system would otherwise remain idle. … On the contrary, the
rule of law principle requires the official determination of legal consequences to be linked to
a form, which enables constitutionally designated legal protection.'
The fact that the non-approval of an application to determine permanent use as a financial
advisor has significant legal consequences, presumably does not require further justification. However, it follows from this that it is constitutionally necessary to make a decision on
the application of the applicant by way of official notification, in order to enable him to the
take the constitutionally provided legal protection route.
In the proceedings subject to complaint, the Ombudsman Board was ultimately able to persuade Post AG to fulfil its legal obligations and issue the official notification.
2.3
Right to a fair trial (Art. 6 ECHR)
2.3.1
Excessively long duration of proceedings
Within the scope of the fundamental rights section of the 29th Report to the National
Council and the Federal Council (p. 315), the Ombudsman Board noted that the risk of
undermining the constitutional state by not processing applications within an adequate period continues to represent a very serious problem of state organisational law, which is a
recurrent theme throughout the entire administrative activity of all local authorities. During
the reporting year, numerous cases were again submitted to the Ombudsman Board, in
which the boundaries of the admissible duration for administrative proceedings were far
exceeded. These findings are to also be documented by several examples in the following:
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