CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 10 septembre 1997

.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. 25412/94                       by Robert WEGMANN                       against Austria        The European Commission of Human Rights (First Chamber) sitting in private on 10 September 1997, the following members being present:              Mrs. J. LIDDY, President            MM.   M.P. PELLONPÄÄ                 E. BUSUTTIL                 A. WEITZEL                 C.L. ROZAKIS                 L. LOUCAIDES                 B. MARXER                 B. CONFORTI                 N. BRATZA                 I. BÉKÉS                 G. RESS                 A. PERENIC                 C. BÎRSAN                 K. HERNDL            Mrs. M. HION            Mr.   R. NICOLINI              Mrs. M.F. BUQUICCHIO, Secretary to the Chamber        Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;        Having regard to the application introduced on 21 June 1994 by Robert WEGMANN against Austria and registered on 12 October 1994 under file No. 25412/94;        Having regard to:   -     the reports provided for in Rule 47 of the Rules of Procedure of      the Commission;   -     the observations submitted by the respondent Government on      22 February 1996 and the observations in reply submitted by the      applicant on 22 March 1996;        Having deliberated;        Decides as follows:   THE FACTS        The applicant, born in 1943, is an Austrian national and resident at Hainburg.   He is a consultant in internal medicine by profession. In the proceedings before the Commission, he is represented by Mr. O. Ackerl, a lawyer practising in Vienna.        The facts, as submitted by the parties, may be summarised as follows.   A.    Particular circumstances of the present case        In 1979 the applicant took up employment as head of the department for internal medicine at the Hainburg Hospital.   In 1983 the applicant also started to practise as a doctor registered on the Health Insurance Scheme (Kassenordination).        In 1992 the applicant, represented by Mr. Ackerl, instituted proceedings before the Vienna Labour and Social Court (Arbeits- und Sozialgericht) against the Hainburg Municipality, in its capacity as authority responsible for the Hainburg Hospital and thereby his employer, relating to the terms of his employment.   The applicant claimed a declaratory judgment to the effect that on Tuesdays he was not obliged to start work at the hospital before 9 a.m., or, in the alternative, that on Tuesdays he was not obliged to start work at the hospital before 9 a.m. if the hospital routine and the treatment of patients were not negatively affected.        On 8 September 1992 the Vienna Labour and Social Court, having held a hearing and heard the parties as well as several witnesses, dismissed the applicant's main claim, but, upon his alternative claim, issued a declaratory judgment to the effect that on Tuesdays he was not obliged to start work at the hospital before 9 a.m. if the hospital routine and the treatment of patients were not negatively affected.        The Labour and Social Court found that the applicant's employment contract contained no explicit rules fixing the working hours and working time, but was based on the Rules on the Hainburg Hospital, according to which the head of a department had to spent as much working time in the hospital as required by the hospital routine and the treatment of patients, and to provide for representation in case of his absence.   These Rules also granted the right to practise as a medical practitioner outside the hospital.   In the beginning the applicant had agreed with his superiors to start his daily working time at 7 a.m.   When in 1983 he opened a practice as a registered medical practitioner, he changed this routine on Tuesdays, starting his work at the hospital only at 9 a.m. in order to arrange for consultation hours as from 7 a.m.   In February 1991 the defendant, having established that repeated delays were occurring in the daily routine in the applicant's department at the hospital, in particular with regard to the visits, requested the applicant to start his work on Tuesdays at 7 a.m. like on the other days of the week.   The applicant complied with this request as from March 1991, however, delays still occurred.        The Court considered that the applicant had no fixed working hours and time, but he was obliged to work as much as necessary for the hospital routine and treatment of the patients, and he was entitled to have a private practice only to the extent that the interests of the hospital were not negatively affected.   His main claim to have an unlimited right to start his work on Tuesdays only at 9 a.m. was therefore unfounded.   However, there was nothing to show that the hospital routine required his presence on Tuesdays at 7 a.m.   In this respect, the Court took into account that the delays in the routine had not stopped in March 1991.        On 29 October 1993 the Vienna Court of Appeal (Oberlandes- gericht), following a hearing, dismissed the defendant's appeal (Berufung).        The Court of Appeal observed that, contrary to the findings in the first instance court decision and the arguments presented upon appeal, the main question was not whether the applicant had no fixed working hours and time, but whether he was entitled to start his work on Tuesdays at 9 a.m. in order to arrange for his consultation hours in his private practice.   The Court of Appeal, having regard to the finding of the first instance court that the applicant had proceeded with the above arrangement for eight years already, found that he had, under general labour law, acquired a right to continue with this arrangement.   Furthermore, the Court of Appeal considered that the first instance court had not established any disturbances in the hospital routine due to the above arrangement.   Moreover, general experience of life showed that, contrary to the defendant's arguments, the routine at a hospital could be arranged so as to allow for the absence of the head of a department during some hours of the day.        The Court of Appeal confirmed the first instance court's decisions that the applicant's main claim was too far reaching, but that his alternative claim took due account of the needs of the hospital.   He was, therefore, entitled to exercise his private practice whenever he had arranged for his representation at the hospital.        On 17 March 1994 the Supreme Court (Oberster Gerichtshof), following a session in camera, granted the defendant's appeal on points of law (Revision) and dismissed the applicant's claims.        The Supreme Court observed that the applicant's labour contract did not impose fixed working hours and time upon him, but obliged him to work as much was as necessary for the hospital routine and treatment of patients; and he was entitled to exercise a private practice only to the extent that the hospital routine was not negatively affected. The Supreme Court considered that the requirements of the hospital routine included punctuality which the head of a department had to ensure, if necessary, with his personal presence.        The Supreme Court, having regard to the binding findings of the lower courts according to which repeatedly delays had occurred in the routine at the department for internal medicine, considered as obvious that an increase in the applicant's overall working time, including his work on Tuesday mornings between 7 and 9 a.m., would reduce such delays.   As long as any delays occurred in the department, the applicant could not invoke his right to determine his working hours and time and decide to be absent on Tuesday mornings.   As the repeated delays had only been established after a lapse of time, no tacit consent on the part of the defendant could be assumed. B.    Relevant domestic law        According to S. 502 of the Austrian Code of Civil Procedure (Zivilprozeßordnung) an appeal on points of law can only be lodged against an appellate court judgment if the decision of the case depends upon a question of substantive or procedural law which is of considerable importance in view of the uniformity of law, the stability of law or the development of law, or if the appellate court deviated from the jurisprudence of the Supreme Court or in the absence of any such jurisprudence.   Moreover, the appeal on points of law can only be based on the specific grounds enumerated in S. 503, such as procedural failures, contradiction between the appellate court's factual findings and the contents of the files or incorrect application of the law.        As regards the proceedings on an appeal on points of law, S. 509 para. 1 provides that the Supreme Court decides following a session in camera without an oral hearing.   According to paragraph 2 of S. 509, a hearing may be ordered to be held on application by one of the parties or on the court's own motion, if such course appears necessary in the specific circumstances of the case.        S. 510 para. 1 provides that the Supreme Court should generally decide the case.   C.    Austria's reservation        Austria's reservation in respect of Article 6 of the Convention reads as follows:        "The provisions of Article 6 of the Convention shall be so      applied that there shall be no prejudice to the principles      governing public court hearings laid down in Article 90 of the      1929 version of the Federal Constitutional Law."        Article 90 para. 1 of the Federal Constitution provides:        "Hearings by trial courts in civil and criminal cases shall be      oral and public.   Exceptions may be prescribed by law."     COMPLAINTS        The applicant complains under Article 6 para. 1 of the Convention about the Supreme Court's judgment and the proceedings before the Supreme Court.        The applicant submits in particular that the Supreme Court did not sufficiently reason its judgment.        The applicant further complains about the absence of an oral hearing before the Supreme Court.   In this respect, he maintains that, although its jurisdiction was limited to a legal review, the Supreme Court, on the basis of factual assumptions, deviated from the lower court findings and amended the factual findings of the lower courts.   PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 21 June 1994 and registered on 12 October 1994.        On 29 November 1995 the Commission decided to communicate the application to the respondent Government.        The Government's written observations were submitted on 22 February 1996.   The applicant replied on 22 March 1996.     THE LAW   1.    The applicant complains about the Supreme Court's judgment of 17 March 1994 and also about the proceedings concerned.   He invokes Article 6 para. 1 (Art. 6-1) of the Convention.        This provision, as far as relevant, provides as follows:        "In the determination of his civil rights and obligations ...,      everyone is entitled to a fair and public hearing ... by [a] ...      tribunal ..."   2.    As regards his complaint about the Supreme Court judgment, the applicant submits in particular that the Supreme Court did not give sufficient reasons for dismissing his alternative claim.        The Commission recalls that Article 6 para. 1 (Art. 6-1) obliges the courts to give reasons for their judgments, but cannot be understood as requiring a detailed answer to every argument.   The extent to which this duty to give reasons applies may vary according to the nature of the decision.   It is moreover necessary to take into account, inter alia, the diversity of the submissions that a litigant may bring before the courts and the differences existing in the Contracting States with regard to statutory provisions, customary rules, legal opinion and the presentation and drafting of judgments (Eur. Court HR, Ruiz Torija and Hiro Balani v. Spain judgments of 9 December 1994, Series A nos. 303 A and B, p. 12, para. 29, and pp. 29- 30, para. 27, respectively).   However, the Convention organs are not called upon to examine whether arguments are adequately met (see above and Eur. Court HR, Van De Hurk v. the Netherlands judgment of 19 April 1994, Series A no. 288, p. 20, para. 61).        In the present case, the Supreme Court, like the lower instance courts, considered that the applicant's labour contract did not impose fixed working hours and time upon him, but obliged him to work as much as necessary for the hospital routine and treatment of patients; and he was entitled to exercise a private practice only to the extent that the hospital routine was not negatively affected.   However, the Supreme Court, having regard to the needs of punctuality in a hospital routine found that the applicant could not invoke his right to determine his working hours and time and decide to be absent on Tuesday mornings as long as any delays occurred in the department's daily routine.   In this respect, the Supreme Court, having regard to the binding findings of the lower courts, noted that repeatedly such delays had occurred.   The Supreme Court regarded as obvious that an increase in the applicant's overall working time, including his work on Tuesday mornings between 7 and 9 a.m., would reduce such delays.        In these circumstances, there is no indication that the Supreme Court failed to fulfil its obligation to state reasons.        Consequently, the applicant's submissions concerning the Supreme Court decision, in particular its reasoning, do not disclose any appearance of a violation of the right to a fair hearing, as guaranteed by Article 6 para. 1 (Art. 6-1) of the Convention.        It follows that this part of the application is manifestly ill- founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   3.    The applicant further complains under Article 6 para. 1 (Art. 6-1) that the Supreme Court did not hold an oral hearing on the defendant's appeal on points of law.        The Government submit that the absence of a public hearing in the proceedings before the Supreme Court is covered by the Austrian reservation to Article 6 (Art. 6).   The Government consider that this reservation is valid.   In their submission, the reservation at issue refers to all forms of procedures where a decision is taken which concerns civil rights or criminal charges and therefore complies with the requirements of Article 64 para. 2 (Art. 64-2) of the Convention. Accordingly, in their view, the Commission is prevented from considering this question.        Article 64 (Art. 64) of the Convention provides:        "1. Any State may, when signing [the] Convention or when      depositing its instrument of ratification, make a reservation in      respect of any particular provision of the Convention to the      extent that any law then in force in its territory is not in      conformity with the provision.   Reservations of a general      character shall not be permitted under this Article.        2.   Any reservation made under this Article shall contain a brief      statement of the law concerned."        The Government further maintain that, following hearings at first and second instance, no further oral hearing was necessary in the proceedings before the Supreme Court.   According to them, the Supreme Court was only dealing with legal issues.   In the applicant's case, the Supreme Court, on the basis of the lower courts' factual findings deviated from their conclusions as to the applicant's professional duties as head of department.        The applicant argues to the contrary.   He submits in particular that the Supreme Court departed from the factual findings of the two lower instances in that it regarded as obvious that an increase in his overall working time, including his work on Tuesday mornings between 7 and 9 a.m., would reduce the delays in his department.        The Commission considers, in the light of the parties' submissions, that the applicant's complaint under Article 6 para. 1 (Art. 6-1) about the absence of a hearing before the Supreme Court raises complex issues of law and of fact under the Convention, including questions relating to the Austrian reservation to Article 6 (Art. 6) of the Convention,   the determination of which should depend on an examination of the merits of the application.   The Commission concludes, therefore, that this complaint is not manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   No other grounds for declaring it inadmissible have been established.        For these reasons, the Commission, unanimously,        DECLARES ADMISSIBLE, without prejudging the merits, the      applicant's complaint about the absence of a public hearing      before the Supreme Court, and        DECLARES INADMISSIBLE the remainder of the application.     M.F. BUQUICCHIO                                 J. LIDDY      Secretary                                    President to the First Chamber                         of the First Chamber