Lexploria

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

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WEGMANN v. AUSTRIA

WEGMANN v. AUSTRIA

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