CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 10 juillet 1987

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                       AS TO THE ADMISSIBILITY OF                         Application No. 11761/85                       by K.O                       against Austria           The European Commission of Human Rights sitting in private on 10 July 1987, the following members being present:                 MM. G. SPERDUTI, Acting President                   J.A. FROWEIN                   F. ERMACORA                   G. JÖRUNDSSON                   S. TRECHSEL                   A. WEITZEL                   H.G. SCHERMERS                   H. DANELIUS                   H. VANDENBERGHE              Mrs.   G.H. THUNE              Sir   Basil HALL              MM.   F. MARTINEZ                   C.L. ROZAKIS              Mrs.   J. LIDDY                Mr.   J. RAYMOND, Deputy Secretary to the Commission           Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;           Having regard to the application introduced on 24 September 1985 by K.O against Austria and registered on 27 September 1985 under file N° 11761/85;           Having regard to           - the Government's observations of 21 August 1986 and the applicant's observations in reply of 9 October 1986;           - the oral submissions of the parties at the hearing on 10 July 1987;           Having deliberated;           Decides as follows:   THE FACTS           The applicant is an Austrian citizen born in 1926 who resides in Linz.           The facts apparently not in dispute between the parties may be summarised as follows.           The applicant was employed by a private insurance company as the Director of their regional branch office for Upper Austria.   He was also entrusted with the administration of the company's building in which the branch office was situated.   A dispute arose between the applicant and the company as to the termination of this activity before the Labour Court (Arbeitsgericht) of Vienna.   In the relevant proceedings, the applicant's claim was finally rejected by a decision of the Supreme Court (Oberster Gerichtshof) of 18 May 1982.   The applicant subsequently complained to the Commission that these proceedings were unfair and contrary to Art. 6, para. 1 of the Convention (Application No. 10247/83).   This application was declared inadmissible on 12 March 1986.   I.       In connection with the above litigation, the applicant's employers suspended him from his duties as Director of the regional office on the day following the first hearing before the Labour Court of Vienna, i.e. on 10 March 1978.   They took the view that such suspension was possible at any time without giving reasons.   The applicant contested this opinion and asked for the institution of disciplinary proceedings against himself.   This was however refused. Eventually the applicant challenged his suspension by an action which he lodged with the Labour Court of Linz on 9 March 1981,   claiming in particular that the suspension was unjustified because it was in reality a sanction for his having sued the employers in court.   In the first round of the proceedings, this action led to a decision of the Supreme Court of 30 March 1982 finding that the employers were required to give reasons for the suspension.   The Supreme Court therefore referred the case back to the Labour Court of first instance.           In the renewed proceedings before this court the employers contested the applicant's legal interest to obtain a judicial decision on the lawfulness of his suspension because they had in the meantime dismissed him with effect from 31 March 1982.   The applicant on the other hand challenged the legal validity of the dismissal inter alia as having been pronounced before the required consent of the authority under the Disabled Persons (Employment) Act (Invalideneinstellungsgesetz) had become final.   He had in fact lodged an appeal against the relevant decisions before the Administrative Court (Verwaltungsgerichtshof).   For this reason he also brought new proceedings against his employers in the Labour Court of Linz contesting the lawfulness of his dismissal, and in the pending proceedings concerning his suspension he claimed to have a continued legal interest.           However, in its decision of 9 December 1982, the Labour Court of Linz denied the applicant's legal interest, finding that the dismissal was valid because it had been pronounced with the consent of the competent administrative authorities and the Administrative Court proceedings having no suspensive effect.   This decision was confirmed on 11 May 1983 by the Regional Labour Court (Landesgericht als Berufungsgericht in arbeitsgerichtlichen Rechtsstreitigkeiten) of Linz which added that the applicant's appeal to the Administrative Court had in the meantime been rejected.   (A complaint concerning the Administrative Court's proceedings was included in the applicant's above Application No. 10247/83 and was declared inadmissible as being incompatibile with the provisions of the Convention.)           In the present case the applicant appealed further to the Supreme Court which on 23 October 1984 reversed the above decisions of the Labour Courts.   It found - contrary to its own earlier case-law - that the consent of the competent authority must have become final (rechtskräftig) before the dismissal of a disabled person such as the applicant can be pronounced by his employer.   It also stated that the applicant's case did not come within the scope of Section 8 (2) of the Disabled Persons (Employment) Act according to which a handicapped person may be exceptionally dismissed without prior consent of the authority, in which case the consent may be sought retroactively. The applicant's dismissal was therefore invalid   and his claim relating to his suspension could consequently not be rejected on the ground that he lacked a legal interest because of this dismissal. The Supreme Court therefore again referred the case back to the Labour Court of first instance, directing it to deal with the merits of the question of the justification of the applicant's suspension.           By a decision of 30 January 1985 the Labour Court of Linz allowed the applicant's claim that his suspension had been unlawful, finding that the reasons given by his employers - essentially the fact that he had brought lawsuits against them - were not sufficient to justify this suspension.   As a matter of principle, the employers were not entitled to prejudge the decision of the competent courts by such a measure, in particular as the applicant's lawsuits had not been abusive.   The Labour Court rejected the employers' request to adjourn the proceedings pending the outcome of new administrative proceedings which they had in the meantime instituted to obtain retroactive consent of the authority to the applicant's dismissal.           The employers appealed against this judgment, claiming that the retroactive consent to the dismissal had in the meantime been granted and that as a consequence the dismissal was valid and deprived the applicant of his legal interest to challenge his previous suspension. The applicant contested this argument claiming that the grant of retroactive consent to the dismissal was unlawful.   He referred to his appeal to the Constitutional Court (Verfassungsgerichtshof) and the Administrative Court and requested the adjournment of the Labour Court proceedings pending the decision of these courts.   However, this request was rejected and the Regional Labour Court of Linz allowed the employers' appeal by a decision of 31 July 1985.           In the reasons, the Regional Labour Court noted in particular that the retroactive consent to the dismissal had in the meantime been granted by the competent administrative authority.   It considered that it was bound by this decision notwithstanding the applicant's appeals to the Constitutional and Administrative Courts.   The dismissal was therefore to be considered as valid and accordingly the applicant could raise claims resulting from his earlier suspension only until the date of the dismissal, i.e. 31 March 1982.   In this context, the Court further noted that in the labour court proceedings concerning the (original) dismissal the parties had reached a settlement on 26 May 1983 according to which the employers undertook to pay the applicant compensation (Abfertigung) for certain claims arising from his employment until the date of dismissal.   The Court considered that the settlement covered all claims which the applicant still could raise as a consequence of his suspension, and therefore it rejected his action for lack of legal interest in the judicial determination of these claims.   It stated that it was not required in these circumstances to deal with the justification of the suspension.           On 7 October 1985, the applicant lodged an appeal on points of law (Revision) to the Supreme Court which thus was seized for the third time in this case.   He claimed that the Regional Labour Court had wrongly stated the facts concerning the settlement of 26 May 1983 because that settlement by its express terms was only of a partial nature and did not cover all claims, in particular it did not cover any claims posterior to the date of the dismissal.   He further claimed that the Regional Labour Court had committed an error of law in considering the dismissal as valid.   In doing so it had disregarded the Supreme Court's earlier finding that Section 8 (2) of the Disabled Persons (Employment) Act was not applicable in his case and that a retroactive consent to the dismissal was therefore excluded.           The applicant's appeal was rejected by the Supreme Court on 15 July 1986.   The Supreme Court considered it as irrelevant whether or not the settlement of 26 May 1983 had been correctly interpreted by the Regional Labour Court as in any event the applicant's dismissal had now to be regarded as valid, the competent administrative authorities having in the meantime declared their retroactive consent to this dismissal under Section 8 (2) of the Disabled Persons (Employment) Act.   The Regional Labour Court had correctly held that it was bound by the administrative authorities' decision in this respect.   These authorities were exclusively competent to apply the said Act and they were not bound by the Supreme Court's opinion expressed in the decision of 23 October 1984 according to which the conditions of Section 8 (2) concerning retroactive consent were not met.   The civil courts had no power to review the administrative authorities' decisions.   The Court concluded that the applicant had no legal interest in the determination of his claim concerning his suspension.           The Supreme Court did not deal with the relevance of the public law appeals which the applicant had filed with the Constitutional and Administrative Courts against the authorities' retroactive consent to his dismissal.   As the Administrative Court had in the meantime quashed the authorities' consent by its decision of 21 May 1986 the applicant requested the reopening of the Labour Court proceedings concerning his suspension.           On 9 October 1986 the Regional Labour Court of Linz rejected the action (Wiederaufnahmeklage) and the applicant again appealed to the Supreme Court which thus is dealing with this case for the fourth time.   It has not yet taken a decision.           The applicant had in the meantime brought new proceedings against his employers concerning the dismissal, seeking a declaration that his employment had not been validly terminated and raising claims for the period after 31 March 1982.   However, his action to this effect had been rejected by the Labour Court of first instance on 14 August 1985, on the ground that the administrative authority had validly declared its retroactive consent to this dismissal.           Following the Administrative Court's above decision quashing the consent the applicant also requested the reopening of these proceedings.   The Labour Court of Linz allowed the request on 24 September 1986 and the Regional Labour Court confirmed this decision on 3 February 1987.   However, the employers have appealed to the Supreme Court where this case, too, is still pending.   II.      The administrative proceedings under the Disabled Persons (Employment) Act, to which the labour courts referred when judging the applicant's legal interest, may be summarised as follows:           As mentioned above, the applicant's employers, after having suspended him from his functions, eventually decided to dismiss him. This followed unsuccessful attempts to arrive at a friendly settlement with him concerning the various matters which by then had given rise to judicial litigation.   However, as the applicant was 70 % handicapped, his dismissal required the previous consent of the Disabled Persons Board (Invalidenausschuss) in accordance with the provisions of the Disabled Persons (Employment) Act.   Administrative proceedings were therefore instituted for this purpose.   The Disabled Persons Board declared its consent to the dismissal on 8 July 1981, and this decision was confirmed on appeal by the Provincial Governor (Landeshauptmann) for Upper Austria on 16 October 1981.   The applicant then lodged a complaint with the Administrative Court which was eventually rejected on 9 March 1983.           The Court found essentially that the reason for the applicant's dismissal had not been his invalidity, and that the authorities had not overstepped the limits of their discretionary powers by finding that there were objective reasons for the applicant's dismissal as he had rejected all offers to settle the dispute with his employers.   In view of the pension to which the applicant was entitled there was no question of a social hardship arising for him.   The Administrative Court finally considered that no procedural principles had been violated in the administrative proceedings, in particular as regards the applicant's right to be granted access to the file.           The applicant was in fact given notice of the termination of his employment contract on 14 July 1981 with effect from 31 March 1982. The employers thus relied on the administrative decision of first instance, without awaiting the determination of the applicant's appeals.           According to the Supreme Court's above judgment of 23 October 1984 the original notice of dismissal could not be considered as valid because of the employers' failure to wait until the administrative decision had become final.   However, following this decision the applicant's employers applied for the retroactive consent of the Disabled Persons Board to the applicant's dismissal pronounced on 14 July 1981, basing themselves on the provision in Section 8 (2) of the Disabled Persons (Employment) Act according to which such retroactive consent can be sought in exceptional cases.           They claimed that the Supreme Court's decision departing from its long established case-law had not been foreseeable for them, and that therefore an exceptional case within the meaning of Section 8 (2) was given.   The applicant opposed this argument by referring to the Supreme Court's decision itself which had expressly stated that there was no reason to apply this provision.   He further submitted that the employers' application was inadmissible on the ground of res judicata.           By a decision of 14 March 1985, the Disabled Persons Board refused to grant retroactive consent to the dismissal on 31 March 1982, but stated at the same time that the earlier consent continued to produce effect for any future notice of dismissal.   Insofar as the application sought to reopen the issues discussed in the earlier proceedings, it was therefore struck by res judicata.           Both parties appealed, and on 17 June 1985 the Provincial Governor of Upper Austria allowed their appeals.   The employers' appeal against the refusal of retroactive consent was allowed on the ground that the administrative authority was not bound by the opinion of the Supreme Court that Section 8 (2) was inapplicable.   The Provincial Governor considered that the employers had acted in conformity with the law as it was applied at the relevant time when they gave notice to the applicant without awaiting the final effect of the administrative decision.   The Supreme Court's change of jurisprudence had not been foreseeable and constituted an exceptional case within the meaning of Section 8 (2), in particular as the employers had acted in good faith and would suffer unfair disadvantages if the dismissal at the original date was considered as ineffective.   In fact they would have to pay the applicant's full salary in the amount of several million Schillings without his having worked for them.   The applicant's appeal was also allowed.   It was noted that the employers had, as a matter of precaution, addressed a new notice of dismissal to the applicant with effect from 30 June 1985, should the earlier dismissal not be considered as valid, but that they had not newly applied for the authorities' consent.   The Provincial Governor agreed with the Disabled Persons Board that the previous decisions continued to produce effect if the same case of dismissal was concerned.   However, if there was a new case of dismissal, the proceedings would have to be repeated.           On 23 July 1985, the applicant appealed against this decision to the Constitutional Court, invoking his right to a decision by the competent judge under Art. 83 of the Federal Constitution (Bundes- verfassungsgesetz).   This provision had allegedly been violated by the Provincial Governor in that he had given a new decision on the merits by declaring his retroactive consent to the dismissal instead of rejecting the employers' application on the ground of res judicata as required by Section 68 of the Code of General Administrative Procedure (Allgemeines Verwaltungsverfahrensgesetz).   In the alternative the applicant requested the Constitutional Court to refer the question of the alleged violation of provisions of the Code of General Administrative Procedure to the Administrative Court.           On 25 November 1985, the Constitutional Court decided in conformity with Art. 144 para. 2 of the Federal Constitution as amended in 1984 (Fed.   Law Gazette No. 196/1984) to refrain from dealing with the case as it did not raise specific questions concerning the interpretation of constitutional law.   Any violation of the right to a decision by the competent judge could only result from an error of ordinary law, a matter which could be decided by the Administrative Court to which the case was accordingly referred.           On 21 May 1986 the Administrative Court allowed the applicant's appeal finding that retroactive consent to the dismissal of a disabled person could only be granted in very exceptional cases, i.e. cases at the borderline of justified protection against dismissal, characterised by a situation where the employer could not reasonably be expected to solicit the prior consent of the authority. The present case was not of such a nature.   The employers had in fact applied for prior consent and had given notice of dismissal only after the decision of first instance had been given.   The fact that in doing so they had committed an error of law because they had failed to await the final decision could not be considered as a "very exceptional circumstance" justifying a retroactive consent.   COMPLAINTS           The applicant, invoking Article 6 para. 1 of the Convention, complains of the length of the labour court proceedings and the fact that, eight years after his suspension, the question of whether or not this suspension was justified has not yet been fully determined by the courts.           The applicant further complains under Article 6 para. 1 that he was refused access to court insofar as the courts considered themselves bound by administrative decisions and, on this basis, denied his legal interest in the determination of the suspension case. He also invokes Article 13 of the Convention in this context.           The applicant alleges discrimination (Article 14 of the Convention) in that the protection against unjustified dismissal laid down in the Employment (Principles) Act does not extend to disabled persons.   Unlike that Act the Disabled Persons (Employment) Act contains no specific regulations concerning unfair dismissal but leaves the matter to the discretion of the administrative authority. Allegedly no effective judicial remedy is available to disabled persons after the administrative authority's consent to the dismissal has become final.           In the course of the proceedings before the Commission the applicant has further invoked Articles 3, 6 para. 2, and 11 of the Convention as well as Article 1 of Protocol No. 1.   PROCEEDINGS           The application was introduced on 24 September and registered on 27 September 1985.           On 12 March 1986 the Commission rejected the applicant's earlier Application No. 10247/83 which partly relates to the same facts.   At the same time the Commission decided to give notice of the present application to the respondent Government and to invite them, in accordance with Rule 42 para. 2 (b) of the Rules of Procedure, to submit observations in writing on the admissibility and merits.           The time-limit for the submission of the Government's observations was fixed at 30 May 1986.   At the Government's request this time-limit was subsequently extended until 22 August 1986.           The Government submitted their observations on 21 August 1986 and the applicant replied on 9 October 1986.           On 4 March 1987 the Commission decided to invite the parties, in accordance with Rule 42 para. 3 (b) of the Rules of Procedure, to submit further observations on the admissibility and merits orally at a hearing before the Commission.           The hearing took place on 10 July 1987.   At the hearing the parties were represented as follows:   -        The Government by their Agent, Botschafter Dr.   Helmut Türk,         Head of the International Law Department, Federal Ministry of         Foreign Affairs, who was assisted by Dr.   Sabine Bernegger of         the Federal Chancellery's Constitutional Law Department, and         Dr.   Irene Gartner of the Federal Ministry of Justice, Advisers.   -        The applicant appeared in person, assisted by his wife,         Mrs.   Obermeier, as adviser.     SUMMARY OF THE PARTIES' OBSERVATIONS   A.       The Government           The Government admit that the applicant has complied with the conditions of Article 26 of the Convention.           They submit, however, that the application is manifestly ill-founded.           There could even be certain doubts concerning the applicability of Article 6 of the Convention.   The Government emphasise that the proceedings at issue concern exclusively the applicant's claim that his suspension be revoked (Aufhebung der Suspendierung).   In substance the applicant thereby demands the reinstatement in his job, for his suspension was based on Section 32 of the Collective Agreement for Insurance Employees according to which such a measure leaves unaffected all aspects of the employment contract except the employee's obligation to work.   He has no right to work, neither under the Convention nor under civil law.   He only has a contractual duty to work which, in this case, the employer suspended by a disciplinary measure.   However, in the Government's view the taking of disciplinary measures in the context of a private law relationship between employer and employee does not necessarily come within the scope of Article 6.           The Government stress that apart from the above claim that his suspension be revoked the applicant has not raised any other claims in the relevant proceedings.   In particular, these proceedings did not concern any financial claims nor the validity of the applicant's dismissal as such.   These matters were the subject of different proceedings which are not at issue here.           Insofar as the validity of the dismissal was nevertheless relevant as a preliminary issue (Vorfrage) in the present case, the examination of this issue did not involve a direct determination of the applicant's civil rights.   The preliminary issue concerned the applicant's legal interest (Rechtsschutzinteresse) in the judicial determination of his above claim.   The existence of such legal interest is a condition for the admissibility of judicial proceedings (Prozessvoraussetzung) which the court is required to examine ex officio at any stage of the proceedings.           The applicant's specific claim to have his suspension revoked logically presupposes a situation of continuing employment.   It would not make sense to demand the revocation of a suspension from employment after the termination of this employment.   Therefore the applicant's legal interest in the action depended on whether or not his employment had been validly terminated by the employer's notice of dismissal.           Generally, the employer's right to give notice is not restricted by a requirement of administrative consent.   The employer can dismiss by a unilateral private law declaration addressed to the employee who has certain possibilities to challenge the dismissal only after it has been pronounced (cf. in particular Section 105 of the Employment Principles Act which assigns an important function to the works council).   However, a different regime exists for disabled employees.   Under the Disabled Persons (Employment) Act the employer cannot validly give notice of dismissal to them without the prior consent of the competent administrative authority.   This means there exists a general prohibition to dismiss disabled employees.   It is true that the Disabled Persons Board enjoys a measure of discretion in deciding on derogations, but the discretion must be exercised in accordance with the aim and purpose of the legislation and this is controlled by the Administrative Court which has developed a pertinent case-law since 1954.   In view of the fact that the regime introduced for disabled persons is generally more favourable, it cannot be said that it is discriminating.           If the employer fails to obtain the required consent, or if the consent is defective, the dismissal will not be regarded as valid.   However, this lack of validity becomes operative only if the employee subsequently challenges the dismissal by a Labour Court action in which he claims that he is still employed and thus entitled to continued payment of his salary (Leistungsklage).   The applicant could and did in fact make use of this possibility, i.e. he actually challenged his dismissal in labour court proceedings which, however, are not at issue here.   He cannot pretend that in this respect he was refused access to court.           Nor was the applicant's right of access to court interfered with in the present case insofar as the courts assumed a binding effect of the administrative decisions taken under the Disabled Persons (Employment) Act when judging the preliminary question of the validity of the applicant's dismissal.   In the Government's view the binding effect of administrative decisions only played a role in the third round of the labour court proceedings.   Moreover, it was only the fact that the administrative authority had consented to the dismissal which was regarded as binding (Tatbestandswirkung).   There was no decisive determination of the applicant's civil rights in this respect.   As the Commission confirmed in its decision on the applicant's first application No. 10247/83, the administrative proceedings themselves did not determine such rights and fell outside the scope of Article 6.   The Government furthermore observe that in these proceedings the administrative authority was only called upon to apply the Disabled Persons (Employment) Act and not to examine the question of the lawfulness of the dismissal in its entirety.   The question of whether the dismissal infringed the Civil Code as being contra bonos mores (sittenwidrig), whether it was contrary to contractual clauses, to the applicable collective agreement, or to provisions of the Employees Act (Angestelltengesetz) were matters which could be raised in labour court proceedings to challenge the dismissal.   In the present labour court proceedings the applicant either failed to draw the court's attention to such issues, or if the courts examined them, they must have come to the conclusion that the applicant's dismissal was in substance justified.           As regards the length of the labour court proceedings, the Government observe that these proceedings were instituted only three years after the applicant's suspension, on 9 March 1981.   The previous period during which settlement negotiations took place between the applicant and his employers cannot be taken into account for the purposes of Article 6 para. 1.           Until the Supreme Court's final judgment of 15 July 1986 the proceedings lasted some five years and four months.   This included three rounds of court proceedings through all levels of jurisdiction. The Government observe that in the course of these proceedings delays have hardly occurred, and this despite the complexity of the matter and the interaction of court and administrative proceedings.   They consider that in these circumstances the total length of the proceedings was not unreasonable.           The particular complexity of the case arose from several circumstances:   The fact that the applicant was given notice of dismissal before a final decision had been taken in the case concerning the revocation of his suspension;   the interaction between the court proceedings and the administrative proceedings concerning the consent to that dismissal;   the change of the Supreme Court's case-law as to when the authority's prior consent becomes effective; finally, the fact that in reaction to this unexpected change of jurisprudence the applicant's employers requested and eventually obtained retroactive consent, a fact which was binding on the Labour Court and created a new legal situation.           If something is to be "blamed" for the length of the proceedings it is the Supreme Court's decision of 23 October 1984 by which a change of the constant case-law was brought about.   Without that decision a third round of the proceedings would not have become necessary.   The Government also admit that a certain delay occurred in the preparation of this decision which was the reaction to an appeal registered on 16 August 1983.   However, this delay was attributable to the complexity of the matter and the fact that the Supreme Court decided contrary to its long established previous case-law.   Such a departure from previous case-law is not an everyday affair.   It requires thorough consideration and should be made in the interest of legal security only in the presence of good reasons and sound arguments.   This explains why the short delay occurred.           As such, this change of the case-law did not interfere with the applicant's rights.   The decision was in his favour as he was thereby given a new opportunity to assert his claim concerning his suspension:   He again acquired a legal interest which according to the earlier practice would no longer have existed.   Accordingly he cannot complain of the resultant prolongation of the proceedings.           The change of the Supreme Court's case-law was completely unexpected.   That is why the applicant's employers requested retroactive consent to the dismissal under Section 8 (2) of the Disabled Persons (Employment) Act which was eventually granted by the Provincial Governor for Upper Austria.   In the Government's submission it was not unreasonable for the Provincial Governor to consider the unexpected change of the Supreme Court's case-law as an exceptional circumstance within the meaning of this provision.           The Provincial Governor's decision was a final administrative decision and thus binding on the Regional Labour Court which, at the relevant time, was seized with an appeal.   In fact, it changed the legal situation underlying the case (veränderte Entscheidungsgrundlage), and this was subsequently also confirmed by the Supreme Court.           The Government observe that the interaction between the administrative proceedings and the judicial proceedings did not lead to any unjustifiable delays.   The two proceedings were conducted simultaneously without any adjournment of the judicial proceedings pending an administrative decision, or vice versa.   Only the result and not the length of the judicial proceedings was thus influenced by the administrative proceedings.   The mere fact that Austrian law attributes a role to administrative authorities in dismissal proceedings cannot be criticised as a circumstance which tends to reduce the legal protection of the persons concerned.   On the contrary, it increases their legal protection even if the relevant proceedings may sometimes last longer.           The Government also observe that in the administrative proceedings concerning retroactive consent the applicant was given sufficient opportunity under the Code of General Administrative Procedure to submit his legal arguments, although no oral hearing took place in these proceedings.   Such a hearing could be dispensed with as there had been one already in the earlier proceedings, because the facts were essentially unchanged and the issue to be decided was merely a legal question.   The authority took its decision on the basis of the voluminous file.           As the Supreme Court confirmed, the fact that the authority had consented to the dismissal was binding on the labour courts which had no possibility to enquire whether the authority's decision was correct in terms of its merits.   The fact that the Provincial Governor's decision had, in the meantime, been quashed by the Administrative Court could not be taken into account by the Supreme Court because the Administrative Court's decision of 21 May 1986 had not yet been issued in writing.           A lengthy procedure, which is caused above all by the particular legal structure of the interaction of courts and administrative authorities and the change in the jurisprudence of the Supreme Court which was so decisive for this interaction in particular, cannot be considered inappropriately long.   The Government therefore move that the Commission should declare the application inadmissible as being manifestly ill-founded.   B.       The applicant           The applicant refers to the successful activities which he had performed for many years for his employer.   His suspension took place shortly before his 25th anniversary of employment in May 1978, for which a public ceremony was planned.   Already for some time he had had difficulties with the central management concerning certain parts of his income which were related to the real property administration. Although reluctant he was in substance ready to agree to a reduction, but he was not prepared to accept a three months' notice clause in the new contract offered to him.   Nevertheless the dispute concerning this question did not disturb the enthusiasm which he showed for the insurance business and the esteem which he enjoyed for his activities. Finally, it was even with the agreement of the general director that he put the matter before the courts for decision.           However, the situation suddenly changed when the first court hearing actually took place.   The following day, i.e. on 10 March 1978, the applicant was summoned to appear before the management.   He was not allowed to be legally assisted and his wife, who also worked for the firm, was told to leave the room.   The applicant was then informed that he was suspended with immediate effect.   This was followed by a general staff meeting in the absence of the applicant at which the works council defended the management's measure taken against the applicant.           For him it was like an execution.   He had to return the keys and was no longer admitted to the premises.   Not only was he not allowed to work for his employer, he also lost a number of other functions and could not seek alternative employment without prejudging his legal interests.   If he had acted as a private insurance agent for other companies, this would at once have led to the loss of his pension entitlement.           The applicant considers that he had not given any cause for the suspension.   He had not failed to perform his professional duties nor had he committed a disciplinary offence.   Indeed, under Section 32 of the Collective Agreement a suspension is not considered as a disciplinary measure.   The applicant actually asked for disciplinary proceedings but none were taken.   His employers simply used the suspension as an instrument to secure his accommodation in the above contractual matters.           The applicant considers that in view of their serious consequences (inter alia health problems of the applicant and members of his family) his suspension and subsequent dismissal amounted to inhuman and degrading treatment contrary to Article 3 of the Convention.   Also they were discriminatory and thus in breach of Article 14.   Furthermore the suspension infringed the presumption of innocence guaranteed by Article 6 para. 2 of the Convention and, because of the financial losses it caused the applicant, also his property rights under Article 1 of Protocol No. 1.   Finally, the fact that the applicant's trade union did nothing to defend his interests and even refused him legal assistance allegedly interfered with his trade union rights under Article 11 of the Convention.           In the circumstances it must be wholly understandable that the applicant continues to fight for his full rehabilitation, and in doing so he should neither be regarded as a "Michael Kolhaas" nor as a "Don Quichote".           However, the applicant claims that the Austrian legal system does not provide sufficient protection.   He observes that despite a lapse of almost ten years since his suspension and despite the 71 legal acts mentioned in the time-schedule submitted by the Government, the simple question of whether or not his suspension was justified has not yet been determined.   The applicant is not so much interested in the actual revocation of the suspension as in a judicial finding that he had done nothing to justify it.   The one decision which was taken on the merits of this question, and which was fully in his favour, could not become final because of his legal interest being denied in the subsequent appeal proceedings.   According to the Supreme Court decision of 15 July 1986, a determination of this question is no longer possible.   However, the applicant is trying to obtain a reopening of the proceedings having regard to the Administrative Court decision of 21 May 1986.           In the applicant's view the question at issue in the labour court proceedings was not particularly complex.   Everybody would agree that a serious measure like suspension cannot be taken by an employer without reasons.   It cannot be right to suspend somebody, refuse him disciplinary proceedings, and if he seeks judicial protection, dismiss him in order to deprive him of any remedy.   The whole proceedings could have been avoided if disciplinary proceedings in accordance with the Collective Agreement had been taken against the applicant.   They would have provided the possibility of serious sanctions, including punitive dismissal under Section 23 para. 1 (6) of the Collective Agreement.           The applicant considers it as unjustified to make the decision concerning his suspension dependent on the validity of his dismissal. In his view the administrative authority's consent to the dismissal was not a relevant preliminary question in the judicial proceedings. The fact that on this basis his legal interest was repeatedly, and at last even finally, denied constitutes according to him a breach of his right of access to court under Article 6 of the Convention and of his right to an effective remedy under Article 13.   The applicant further alleges that as a disabled person he was discriminated against as regards his right of access to the existing remedies.   He invokes Article 14 of the Convention in this respect.           The applicant submits that the Austrian law does not provide for a judicial competence to challenge the dismissal of a disabled person to which the administrative authority has consented. The Disabled Persons (Employment) Act differs from the Employment (Principles) Act in that it does not contain any specific regulations on unfair dismissal, nor a social hardship clause.   The decision on the justification of dismissals is left to the unfettered discretion of the competent administrative authorities.   In fact these authorities deal with all aspects of the dismissal.   It is unrealistic to assume that a dismissal to which the authority has consented could subsequently be challenged under the Civil Code as being contra bonos mores, as the Government suggest.           In the applicant's view the competent authorities, i.e. the Disabled Persons Board and the Provincial Governor, are not independent courts.   They are administrative authorities bound by instructions of the Federal Minister of Social Affairs.   In the present case this Minister was at the same time the husband of the head of personnel in the applicant's firm.   Furthermore he was chairman of the applicant's trade union (whose representatives in the works council had backed the employer's measures and which had refused him legal aid).   Finally, the Minister had also acted as mediator.             In the particular case the proceedings were also unfair because the Disabled Persons Board refused to adjourn the case pending the parallel court proceedings on the justification of the dismissal, and because it failed to take into account numerous pieces of evidence which the applicant had submitted in order to show that his dismissal was not justified.   The applicant states in this context that he was permanently employed (unkündbar) and, according to his contract and the applicable collective agreement, could be given notice only in view of a so-called "administrative retirement" (Administrativ- Pensionierung).   The latter, however, required serious reasons in the person of the employee concerned, for whom it brought about various financial and other disadvantages.   The applicant denies that such reasons existed in his case.           The Provincial Governor's proceedings, before issuing his decision on retroactive consent, were likewise unfair.   This decision was taken without hearing the applicant and it relied on documents which had not been part of the file.           It is true that the administrative decisions could be challenged before the Administrative Court.   However, the applicant contests the Constitutional Court's opinion expressed in decisions Nos. 5100 and 5102 according to which the Administrative Court proceedings satisfy the requirements of Article 6.   In this respect he invokes the Commission's Report in the Ettl Case (No. 9273/81, Comm.   Rep. 3.7.85).   The Administrative Court cannot take a decision on the merits, but can only confirm or quash the administrative decisions.   It is impossible to raise questions of fact before it. Also, certain important procedural principles such as the direct evidence rule (Unmittelbarkeit), the principles of oral proceedings (Mündlichkeit) and hearing of both parties (be