CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 14 janvier 1993

.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 }                            Application No. 15026/89                       by K.O.                       against Austria         The European Commission of Human Rights sitting in private on 14 January 1993, the following members being present:              MM.    C.A. NØRGAARD, President                  J.A. FROWEIN                  S. TRECHSEL                  F. ERMACORA                  G. SPERDUTI                  E. BUSUTTIL                  G. JÖRUNDSSON                  A.S. GÖZÜBÜYÜK                  A. WEITZEL                  J.-C. SOYER                  H.G. SCHERMERS                  H. DANELIUS            Mrs.   G. H. THUNE            Sir    Basil HALL            Mr.    F. MARTINEZ            Mrs.   J. LIDDY            MM.    J.-C. GEUS                  M.P. PELLONPÄÄ                  B. MARXER                  G.B. REFFI                Mr.    H.C. KRÜGER, 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 30 September 1988 by K.O. against Austria and registered on 23 May 1989 under file No. 15026/89;         Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;         Having deliberated;         Decides as follows:       THE FACTS         The applicant, born in 1926, is an Austrian national resident in Linz.   He was formerly employed as the director of the regional branch office of a private insurance company.   He is disabled.   Before the Commission, the applicant has been represented since 24 September 1992 by Mr. H. Blum, a lawyer practising in Linz.   a.     The background of the application         The present application is related to his two previous applications which all arose from disputes with his employer.         His first Application No. 10247/83 related to court proceedings brought by the applicant against his employer and to administrative proceedings concerning his subsequent dismissal.   It was declared inadmissible on 12 March 1986 (D.R. 46 p. 77).          Application No. 11761/85 concerned court proceedings in respect of the applicant's suspension from his duties.   The Commission declared this application admissible on 10 July 1987.   On 28 June 1990 the European Court of Human Rights (Series A no. 179) found a breach of Article 6 para. 1 of the Convention in that the applicant did not have an effective judicial review, as the Austrian labour courts, on a preliminary question, had considered themselves bound by administrative decisions which were not delivered in conformity with the requirements of Article 6 para. 1.   There was also a breach of Article 6 para. 1 in that the proceedings in question had exceeded a "reasonable time".         The main course of the various domestic proceedings has been established by the Commission in its Report, pursuant to Article 31 of the Convention, as regards Application No. 11761/85 (Comm. Report 15.12.88), and stated by the Court in the Obermeier judgment (loc. cit., pp. 8-20, paras. 8-60).   Having regard to the parties' submissions, these facts may be summarised as follows.         In the context of a court action brought against his employer, the applicant was suspended from his duties in March 1978.         In March 1981 the applicant instituted court proceedings before the Linz Labour Court (Arbeitsgericht) challenging his suspension. On 23 April 1981 the Linz Labour Court dismissed the applicant's action.   On 25 November 1981 the Linz Regional Court (Landesgericht), upon the applicant's appeal (Rekurs), quashed the Labour Court's decision on the ground that it had failed to ascertain whether the conditions for suspension of an employee had been met.   The Regional Court's decision was confirmed by the Supreme Court (Oberster Gerichtshof) on 30 March 1982.         In the course of these proceedings, on 14 July 1981, the applicant's employer had pronounced the applicant's dismissal as from 31 March 1982.   The necessary authorisation under the Disabled Persons (Employment) Act (Invalideneinstellungsgesetz) - the applicant having been declared disabled for the purposes of that Act in 1980 - had been granted by the competent authority.   The administrative appeal proceedings instituted by the applicant against the authorisation eventually remained unsuccessful.   The administrative decision became final on 9 March 1983.         In the remitted suspension proceedings, the decisive issue was whether or not the applicant still had a legal interest (Rechtsschutz- bedürfnis) in a court decision after his dismissal the lawfulness of which he challenged.   The applicant remained unsuccessful at first and second instance.   On 23 October 1984 the Supreme Court quashed the decisions dismissing the applicant's action on the ground that his dismissal should not have been pronounced before its administrative authorisation had become final.   His dismissal being thus invalid, the applicant had an interest in pursuing his suspension case.   The case was again remitted to the Linz Labour Court.         On 21 December 1984 the employer again pronounced the applicant's dismissal, which was supposed to take effect on 30 June 1985.         On 30 January 1985, in the remitted suspension proceedings, the Linz Labour Court revoked the applicant's suspension.   On 31 July 1985 the Linz Regional Court, upon the employer's appeal, quashed the Labour Court's decision.   The Regional Court considered itself bound by a decision of the Provincial Governor dated 17 June 1985 granting the employer's request for a retroactive authorisation of the dismissal pronounced in July 1981.   The applicant had, therefore, no longer any legal interest in obtaining a revocation of his suspension.   The Regional Court did not stay the proceedings pending appeal proceedings brought by the applicant against this retroactive authorisation which were eventually successful.   On 15 July 1986 the Supreme Court dismissed the applicant's appeal on points of law, thereby confirming that the Provincial Governor's decision had been binding.         On 19 November 1987, following successful appeal proceedings, the Linz Court of Appeal ordered the proceedings concerning the suspension to be reopened but allowed the employer's application for a stay pending the conclusion of the proceedings concerning the dismissal of 21 December 1984.     B.     The present application         The present application relates to court proceedings concerning the second notification of dismissal, sent to the applicant on 21 December 1984.   The course of the labour court proceedings which concerned both the first dismissal of 14 July 1981, and the second one of 21 December 1984, has been summarised in the Court's Obermeier judgment (loc. cit., pp. 12-14, paras. 30-39) as follows:         "30. ... On 16 August 1982 he [the applicant] brought an action       in the Linz Labour Court for a declaration that his dismissal was       invalid.   He argued that the company had not waited until the       authorisation given by the Disabled Persons Board had become       final in law and had in addition failed to inform the works       council, as it was required to do under section 105 § 1 of the       Industrial Relations Act (Arbeitsverfassungsgesetz ...).         31.   After having stayed these proceedings on 9 December 1982,       the court dismissed Mr. Obermeier's action on 14 August 1985 on       the ground that, in the meantime, the Provincial Governor had       given his retroactive consent to the applicant's dismissal from       employment ...   The parties did not appeal from this decision.         32.   Following the Administrative Court's judgment of 21 May       1986 ..., the applicant filed an application on 22 July 1986 for       the proceedings to be reopened (Wiederaufnahmeklage) and       requested that such proceedings also deal with the second       dismissal from employment.   The Linz Labour court's judgment of       24 September 1986, which allowed this application, was upheld by       the Linz Court of Appeal (Oberlandesgericht) and, on 15 July       1987, by the Supreme Court.         33.   Ruling on the merits on 15 September 1987, the Labour Court       found that Mr. Obermeier had never been validly dismissed.   It       took the view that the effects of the prior authorisation given       by the Board were not permanent and that such authorisation could       provide the legal basis only for a dismissal which was closely       linked to it both in terms of the period of time which had       elapsed and as regards the substance; this was not the case in       respect of the second dismissal.         34.   On an appeal by the company, the Linz Court of Appeal set       aside this decision on 15 March 1988 on the ground that the       situation was a continuous one so that there was a sufficient       connection between the consent given by the administrative       authority and the dismissal from employment pronounced on       21 December 1984.         35.   The applicant claimed that he had cited at the hearing, as       an additional ground for the invalidity of his dismissal,       disregard of clause 33 § 9 of the collective agreement ..., which       requires the valid consent of the works council.   The transcript       of the hearing, notified to the applicant on 31 March 1988, did       not refer to his statements in this respect; he therefore lodged       an objection to it on 5 April 1988, which the Court of Appeal       dismissed on 12 April as out of time.         36.   In the meantime, the applicant had appealed on a point of       law against the Court of Appeal's judgment of 15 March 1988 ...       On 23 June 1988 in a supplementary memorial he stressed that for       his second dismissal no valid prior consent had been obtained       from the works council as was required under clause 33 § 9 of the       collective agreement.         37.   The Supreme Court dismissed the appeal on 29 June, holding       that section 105 of the Industrial Relations Act, by virtue of       which any dismissal from employment without prior consultation       of the works council is invalid, did not apply to a disabled       person.   In such cases the consultation of the works council had       already been effected by the interposition of the Board, acting       in pursuance of section 8 § 2 of the Disabled Persons       (Employment) Act.   The Supreme Court declared the memorial of       23 June inadmissible under the rule that only one appeal may be       lodged (Grundsatz der Einmaligkeit des Rechtsmittels ...).         38.   On 30 June 1988, even before a copy of the Supreme Court's       judgment had been served on him, the applicant instituted new       proceedings in the Linz Regional Court, sitting as a social and       labour court.   He sought a declaration that the second dismissal       was void on the ground that the company had not obtained the       prior consent of the works council, as it was required to do       under clause 33 § 9 of the collective agreement.   The court       dismissed the action on 23 September 1988, finding that the       agreement given by the works council in 1981 was also valid in       relation to the 1984 dismissal.              The Court of Appeal, and subsequently the Supreme Court,       dismissed Mr. Obermeier's appeals on 28 February and 14 June 1989       respectively.         39.   On 21 March 1989 the applicant applied again to the Linz       Regional Court for a declaration that the dismissal of       21 December 1984 and the authorisation given by the       administrative bodies were void as being contrary to honest       practices (Sittenwidrigkeit).   On 12 May 1989 the court rejected       the claim.   It took the view that the administrative organs in       question had, by implication, expressed their opinion on the       matter by giving their agreement pursuant to section 8 § 2 of the       Disabled Persons (Employment) Act, because an authorisation       accorded for a dismissal contrary to honest practices would have       been inconsistent with the criteria which the Administrative       Court had laid down for the validity of such decisions.   On       10 October 1989 the Linz Court of Appeal upheld this judgment.       On appeal on points of law by Mr. Obermeier, the Supreme Court       quashed these two decisions but dismissed his application on       14 March 1990, on the ground that the judicial decisions which       had closed the proceedings in which the applicant had already       contested the validity of his dismissal in the labour courts ...       were final."         On 31 January 1991 the applicant and his employer entered into an agreement concerning all disputes between them.   The agreement provided in particular for payments to the applicant.   It also stated that the employer had withdrawn its appeal against the judgment of the Linz Labour Court of 30 January 1985 concerning the applicant's suspension, and that any other disputes between them remained stayed or suspended, but that the proceedings before the Convention organs or other proceedings against Austrian authorities were not affected by the agreement.     COMPLAINTS   1.     The applicant complains that, as regards the question of the substantive justification of his dismissal, he was denied access to court, as required by Article 6 para. 1 of the Convention, in that the Austrian labour courts considered themselves bound by an administrative decision and did not, therefore, review this matter.   2.     The applicant complains under Article 3 and Article 6 para. 1 of the Convention that the altogether three sets of labour court proceedings concerning his dismissal were, for further reasons, not fair, and amounted altogether to inhuman and degrading treatment.         He submits in particular that in the first set of proceedings the Linz Court of Appeal, in its decision of 15 March 1988, and the Supreme Court, in its decision of 29 June 1988, did not duly consider his submissions relating to the requirement of consent by the works council.   He also considers that the second set of proceedings was unfair on the ground that the Linz Regional Court, in its decision of 23 September 1988, the Linz Court of Appeal, in its decision of 28 February 1989, and the Supreme Court, in its decision of 14 June 1989, not, ex officio, take the collective agreement into account, and found that S. 33 para. 9 of this collective agreement had been complied with.   Moreover, he was allegedly not allowed to make further submissions concerning the validity of the works council's consent to his second dismissal.   As regards the third set of proceedings, he complains about the Supreme Court's decision of 14 March 1990 rejecting his case as "res judicata".     PROCEEDINGS BEFORE THE COMMISSION         The application was introduced on 30 September 1988 and registered on 23 May 1989.         On 6 January 1992 the Commission decided to communicate the application to the respondent Government.   The applicant's request to reopen the proceedings concerning Application No. 10247/83 was refused.         The Government's observations were submitted on 26 June 1992. The applicant's observations in reply were submitted on 24 September 1992.     REASONS FOR THE DECISION         The Commission notes that the applicant, in his previous Application No. 11761/85 concerning his suspension in March 1978, complained that he had been refused access to a court which could have determined the lawfulness of his dismissal in 1981 and, consequently of his suspension.   The Court, in its judgment of 28 June 1990, found a violation of the applicant's right of access to a court, as guaranteed by Article 6 para. 1 of the Convention in that there was no effective judicial control regarding the social justification of his dismissal (loc. cit., pp. 21-23, paras. 66-70).         The Commission considers that the applicant's present application raises the same legal issue as regards the proceedings concerning his dismissals, which had already terminated at the time of the above Court judgment of 28 June 1990.   While the dismissal proceedings were formally separated from the suspension procedure, they arose out of the same factual background and it was clear, under Austrian law, that the binding force of the decision by the Disabled Persons Board would again be decisive.         The Commission notes that all the disputes concerning the applicant's former employment have been settled by the agreement entered into by the applicant and his former employer on 31 January 1991.         In these particular circumstances, the Commission finds that it is not justified to continue the examination of the present application, pursuant to Article 30 para. 1 (c) of the Convention. Moreover, there are no reasons of a general character affecting respect for Human Rights as defined in this Convention which require the further examination of this application.             For these reasons, the Commission, by a majority,         DECIDES TO STRIKE THE APPLICATION OFF ITS LIST OF CASES.     Secretary to the Commission             President of the Commission               (H.C. KRÜGER)                          (C.A. NØRGAARD)