EUROPEAN COMMISSION OF HUMAN RIGHTS

FIRST CHAMBER

Application No. 25412/94

Robert Wegmann

against

Austria

REPORT OF THE COMMISSION

(adopted on 8 July 1998)

TABLE OF CONTENTS

Page

INTRODUCTION 1

PART I  : STATEMENT OF THE FACTS 3

PART II : SOLUTION REACHED 4

INTRODUCTION

1. This Report relates to the application introduced under Article 25 of the European Convention for the Protection of Human Rights and Fundamental Freedoms by Robert Wegmann against Austria on 21 June 1994.  It was registered on 12 October 1994 under file No. 25412/94.

2. The applicant was represented by Mr. O. Ackerl , a lawyer practising in Vienna.

3. The Government of Austria were represented by their Agent, Mr. F. Cede, Ambassador, Head of the International Law Department at the Federal Ministry of Foreign Affairs.

4. On 10 September 1997 the Commission (First Chamber) declared the application admissible  insofar as it concerns the absence of an oral hearing before the Supreme Court.  It then proceeded to carry out its task under Article 28 para. 1 of the Convention which provides as follows:

"In the event of the Commission accepting a petition referred to it:

a. it shall, with a view to ascertaining the facts, undertake together with the representatives of the parties an examination of the petition and, if need be, an investigation, for the effective conduct of which the States concerned shall furnish all necessary facilities, after an exchange of views with the Commission;

b. it shall at the same time place itself at the disposal of the parties concerned with a view to securing a friendly settlement of the matter on the basis of respect for Human Rights as defined in this Convention."

5. The Commission (First Chamber) found that the parties had reached a friendly settlement of the case and on 8 July 1998 it adopted this Report, which, in accordance with Article 28 para. 2 of the Convention, is confined to a brief statement of the facts and of the solution reached.

6. The following members were present when the Report was adopted:

MM M.P. PELLONPÄÄ, President

N. BRATZA

E. BUSUTTIL

A. WEITZEL

C.L. ROZAKIS

Mrs J. LIDDY

MM L. LOUCAIDES

B. MARXER

B. CONFORTI

I. BÉKÉS

G. RESS

A. PERENIČ

C. BÃŽRSAN

K. HERNDL

M. VILA AMIGÓ

Mrs M. HION

Mr R. NICOLINI

PART I

STATEMENT OF THE FACTS

7. The applicant, an Austrian citizen born in 1943 and residing at Hainburg , complains under Article 6 para. 1 of the Convention about the absence of an oral hearing before the Supreme Court.

8. 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.

9. 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, in particular his working hours on Tuesdays.

10. On 8 September 1992 the Vienna Labour and Social Court, having held a hearing, issued a declaratory judgment to the effect that on Tuesdays the applicant 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.

11. On 29 October 1993 the Vienna Court of Appeal ( Oberlandes-gericht ), following a hearing, dismissed the defendant's appeal ( Berufung ).  The Court of Appeal found that the applicant was entitled to start his work on Tuesdays at 9 a.m. in order to exercise his private practice whenever he had arranged for his representation at the hospital.

12. 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 action. 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. 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.

PART II

SOLUTION REACHED

13. Following the decision on the admissibility of the application, the Commission (First Chamber) placed itself at the disposal of the parties with a view to securing a friendly settlement in accordance with Article 28 para. 1 (b) of the Convention and invited the parties to submit any proposals they wished to make.

14. In accordance with the usual practice, the Chamber Secretary, acting on the Commission's instructions, contacted the parties to explore the possibilities of reaching a friendly settlement.

15. By letters of 15 May 1998 and 23 June 1998, respectively, the parties submitted the following agreement reached between them:

"Statements of the parties with a view to a friendly settlement

With reference to Article 28 para. 1 (b) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, the parties in the proceedings concerning Application No. 25412/94, lodged by the applicant Robert Wegmann , declare with a view to a friendly settlement, reached with assistance of the European Commission of Human Rights, as follows:

1. The Government of the Republic of Austria will pay to the applicant a sum of ATS 83,480 as compensation in respect of any possible claims relating to the present application. This sum includes ATS 33,480 in respect of counsel's fees and expenses incurred in the proceedings before the Commission.

This sum will be transferred to the applicant's representative Mr. Otto Ackerl in Vienna.

2. The applicant declares his application settled.

3. The applicant waives any further claims against the Republic of Austria relating to the facts underlying the present application."

"Erklärungen der Parteien zur gütlichen Regelung

In der Beschwerdesache Nr. 25412/94 des Herrn Robert Wegmann einigen sich die Parteien unter Bezugnahme auf Artikel 28 Abs. 1 lit. b der Europäischen Konvention zum Schutz der Menschenrechte und Grundfreiheiten und unter Mitwirkung der Europäischen Kommission für Menschenrechte auf die nachstehende gütliche Regelung:

1. Die österreichische Regierung zahlt dem Beschwerdeführer als Ausgleich für sämtliche etwaige Ansprüche im Zusammenhang mit der vorliegenden Beschwerde einen Gesamtbetrag von ATS 83.480. Dieser Betrag beinhaltet einen Betrag von ATS 33.480 hinsichtlich der Gebühren und Auslagen, die im Rahmen des Verfahrens vor der Kommission entstanden sind.

Dieser Betrag wird an den Verfahrensbevollmächtigten des Beschwerdeführers, Herrn Rechtsanwalt Dr. Otto Ackerl in Wien überwiesen.

2. Der Beschwerdeführer erklärt seine oben genannte Beschwerde als erledigt.

3. Der Beschwerdeführer verzichtet auf die Geltendmachung allfälliger weiterer Forderungen gegen die Republik Österreich im Zusammenhang mit dem der Beschwerde zugrundeliegendem Sachverhalt."

16. At its session on 8 July 1998, the Commission noted that the parties had reached an agreement regarding the terms of a settlement. It further considered, having regard to Article 28 para. 1 (b) of the Convention, that the friendly settlement of the case had been secured on the basis of respect for Human Rights as defined in the Convention.

17. For these reasons, the Commission adopted the present Report.

       M.F. BUQUICCHIO    M.P. PELLONPÄÄ

          Secretary President

     to the First Chamber of the First Chamber