Lexploria

EUROPEAN COMMISSION OF HUMAN RIGHTS

FIRST CHAMBER

Application No. 22351/93

Erich Fenzel and Ernst Köllner

against

Austria

REPORT OF THE COMMISSION

(adopted on 15 January 1997)

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 Erich Fenzel and Ernst Köllner

against Austria on 8 April 1993. It was registered on 27 July 1993

under file No. 22351/93.

2. The applicants were represented by Dr. G. Grießer, a lawyer

practising in Vienna.

3. The Government of Austria were represented by their Agent,

Ambassador F. Cede, Head of the International Law Department at the

Federal Ministry of Foreign Affairs.

4. On 15 May 1996 the Commission (First Chamber) declared the

application partially admissible insofar as it concerns the

applicants' complaint that they were not heard as regards the

permission to terminate their contracts of employment under SS. 20 b

and c of the Composition with Creditors Act. 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 15 January 1997 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:

Mrs. J. LIDDY, President

MM. E. BUSUTTIL

L. LOUCAIDES

B. MARXER

B. CONFORTI

N. BRATZA

I. BÉKÉS

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

M. VILA AMIGÓ

Mrs. M. HION

PART I

STATEMENT OF THE FACTS

7. The applicants are both Austrian citizens, born in 1944 and 1937,

respectively, and resident in Vienna.

8. In the context of composition with creditors proceedings, the

applicants' employer company requested the Vienna Commercial Court

(Handelsgericht) for permission to terminate their contracts of

employment under SS. 20 b and c of the Composition with Creditors Act

(Ausgleichsordnung). These provisions, in the version which was in

force at the time of the relevant facts, allowed the court, without

being obliged to hear the persons concerned, to grant a debtor

permission to terminate contracts of employment. The debtor had to

respect the period of notice (Kündigungsfrist) provided for in a law

or in collective agreement, but was not bound by a longer period of

notice which might have been agreed upon in a specific contract.

9. On 25 January 1990 the Vienna Commercial Court, without hearing

the applicants, granted their employer company permission to terminate

their contracts of employment in accordance with SS. 20 b and c of the

Composition with Creditors Act.

10. On 31 January 1990 the employer company, referring to the

Commercial Court's permission, gave the applicants' notice of the

termination of their contracts of employment with effect from

30 June 1990.

11. On 31 January 1991 the Vienna Labour and Social Court (Arbeits-

und Sozialgericht), in proceedings under the Insolvency Continued

Payment Act (Insolvenz-Entgeltsicherungsgesetz) found that the period

of notice provided for by law was three months in case of the first and

two months in case of the second applicant. A longer period of notice,

namely five months, which had formed part of their contracts could be

disregarded by their employer. Although the employer company had only

dismissed them with effect of 30 June 1990, it could have dismissed the

first applicant with effect of 30 April and the second applicant with

effect of 31 March 1990. As the Insolvency Continued Payment Act only

provided payment until the end of the period of notice provided for by

law, they were only entitled to payment until 30 April and

31 March 1990, respectively. The applicant's appeals were dismissed by

the Vienna Court of Appeal (Oberlandesgericht) and, finally, by the

Supreme Court (Oberster Gerichtshof).

12. Before the Commission, the applicants complained under Article 6

of the Convention that they were not heard by the Vienna Commercial

Court prior to its decision of 25 January 1990. They considered that

this decision directly affected their civil rights in that their claims

relating to their employment were reduced. In particular their employer

was allowed to disregard the period of notice provided for in their

contracts and they were not fully compensated under the Insolvency

Continued Payment Act. Further the applicants complained under

Article 4 of the Convention and under Article 1 of Protocol No. 1 alone

and in combination with Article 14 of the Convention.

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 18 November 1996 and 21 November 1996,

respectively, the applicants and the respondent Government informed the

Commission that they had agreed on the terms of a friendly settlement,

and submitted the following declaration.

"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. 22351/93

lodged by Erich Fenzel and Ernst Köllner, declare with a view to a

friendly settlement, reached with the assistance of the European

Commission of Human Rights, as follows:

1. The Government of the Republic of Austria will pay the

applicants a sum amounting to altogether AS 40,000 as

compensation in respect of any possible claims relating to the

present application. This sum is composed of an amount of AS

10,000 for each of the two applicants and an amount of AS 20,000

in respect of the counsel's fees and expenses incurred in the

proceedings before the Commission.

This amount will be paid to the applicant's counsel,

Mr. G. Grießer in Vienna.

2. The applicants declare their application settled.

3. The applicants waive any further claims against the

Republic of Austria relating to the present application."

"Erklärungen der Parteien zur gütlichen Regelung

In der Beschwerdesache Nr. 22351/93 der Herrn Erich Fenzel und

Ernst Köllner einigen sich die Parteien under Bezugnahme auf Artikel 28

Abs. 1 lit b der Europäischen Konvention zum Schutze der Menschenrechte

und Grundfreiheiten und unter Mitwirkung der Europäischen Kommission

für Menschenrechte auf die nachstehende gütliche Regelung:

1. Die österreichische Regierung zahlt den Beschwerdeführern

als Ausgleich für sämtliche etwaige Ansprüche im Zusammenhang mit

der vorliegenden Beschwerde einen Gesamtbetrag von öS 40,000.

Dieser Betrag setzt sich zusammen aus einem Betrag von öS 10,000

für jeden der zwei Beschwerdeführer und einem Betrag von

öS 20,000 hinsichtlich der Gebühren und Auslagen, die im Rahmen

des Verfahrens vor der Kommission entstanden sind.

Dieser Betrag wird an den Verfahrensbevollmächtigten der

Beschwerdeführer Herrn Rechtsanwalt Dr. Georg Griesser in Wien

überwiesen.

2. Die Beschwerdeführer erklären ihre oben genannte Beschwerde

als erledigt.

3. Die Beschwerdeführer verzichten auf die Geltendmachung

allfälliger weiterer Forderungen gegen die Republik Österreich

im Zusammenhang mit dem der Beschwerde zugrundeliegenden

Sachverhalt."

16. At its session on 15 January 1997, 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 J. LIDDY

Secretary President

to the First Chamber of the First Chamber

Menu

FENZEL and KÖLLNER v. AUSTRIA

FENZEL and KÖLLNER v. AUSTRIA

LEXI