Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 31062/96

by Leo VON DER THANNEN

against Austria

The European Commission of Human Rights (First Chamber) sitting

in private on 16 October 1996, the following members being present:

Mrs. J. LIDDY, President

MM. M.P. PELLONPÄÄ

E. BUSUTTIL

A. WEITZEL

B. MARXER

G.B. REFFI

B. CONFORTI

N. BRATZA

I. BÉKÉS

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

M. VILA AMIGÓ

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 31 January 1996

by Leo VON DER THANNEN against Austria and registered on 19 April 1996

under file No. 31062/96;

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 is an Austrian citizen born in 1952 and residing

in Andelsbuch.

The facts of the case, as they have been submitted by the

applicant may be summarised as follows.

The applicant is a judge at the Feldkirch Regional Court

(Landesgericht) since January 1989. Until August 1993 he was,

according to the distribution of cases then in force, in charge of

bankruptcy matters. With effect of 1 September 1993 the Staff Senate

(Personalsenat) of the Feldkirch Regional Court modified the

distribution of cases (Geschäftsverteilung). Henceforth, the applicant

was in charge of litigation in social and labour law matters.

The applicant was not satisfied with the modification of his

tasks by the Staff Senate, as he considered that his new task amounted

to a considerable increase of his work load.

On 18 November 1993 the applicant filed a request for an

allowance in the amount of one quarter of his salary as a judge. He

submitted that with effect of September 1993 the distribution of cases

among the judges of the Feldkirch Regional Court had been amended to

his disadvantage as it burdened him with a work load which was at least

25% higher compared to the work load of average judges. He had no

possibility to appeal against this amendment. Since he was compelled

to comply with the unfair distribution of cases, he was therefore

entitled to an allowance corresponding to this increased work load, be

it on the basis of overtime payments or an allowance under the Civil

Servants Salary Act (Gehaltsgesetz) or as damage awarded under the

provisions of the Civil Code (Allgemeines Bürgerliches Gesetzbuch).

On 16 February 1994 the President of the Innsbruck Court of

Appeal (Oberlandesgericht) dismissed the applicant's claim. He found

that under the provisions of the Judges Act (Richterdienstgesetz)

judges were entitled to a service allowance (Dienstzulage) which was

a payment for all possible additional work carried out by them. Once

a service allowance had been granted, there was no legal basis for any

further claim for payments in addition to the normal salary. Since the

provisions of the Judges Act were unambiguous in this respect, there

was no room for applying per analogiam other provisions of the law as

the applicant had suggested.

On 5 March 1994 the applicant filed an appeal (Berufung) and

objections (Vorstellung) against the President's decision. In his

appeal he submitted that the service allowance only covered additional

work done by a judge which was within the average working load for

judges. On him, however, an excessive work load had been imposed and

no provisions of the Judges Act provided for such a case. He therefore

suggested that per analogiam provisions of the Civil Servants Salary

Act or the provisions of Civil Code be applied.

On 14 March 1994 the President of the Innsbruck Court of Appeal

rejected as inadmissible the applicant's objections, as no such remedy

lay against the President's decision. On 5 April 1994 the applicant

appealed also against this decision.

On 11 May 1994 the Federal Minster of Justice (Bundesminister für

Justiz) dismissed the applicant's appeals. The Minister found that the

provisions of the Civil Servants Salary Act to which the applicant had

referred were not applicable to judges. The Minister also observed

that no appeal lay against a decision by the Staff Senate on the

distribution of cases. This could not be circumvented by instituting

service regulation proceedings (Dienstrechtsverfahren).

On 13 July 1994 the applicant lodged a complaint with the

Constitutional Court (Verfassungsgerichtshof). He submitted that the

provisions of the Judges Act which regulated the granting of a service

allowance were unconstitutional as they prevented that in the case of

an excessive work load a reasonable salary be given.

On 29 November 1994 the Constitutional Court declined to deal

with the applicant's complaint. It noted that according to its previous

case-law the legislator was not bound to grant a corresponding

allowance for any work performed by a civil servant which was above the

average. Moreover the applicant's complaint related to a subject

matter which was not excluded from the competence of the Administrative

Court.

On 7 February 1995 the Constitutional Court, upon the applicant's

request, remitted his case to the Administrative Court

(Verwaltungsgerichtshof).

On 14 June 1995 the Administrative Court dismissed the

applicant's complaint. It found that it was a principle of the civil

service that any claims for payment could only be made on the basis of

a legal provision providing for it. In the present case the only

provision was the one by which he was entitled to a service allowance.

It was not in dispute that the applicant received a service allowance

under Section 68 of the Judges Act. If the applicant could at all be

considered a victim of an excessive work load, the reason for this was

not any deficiency in the system of the salary of judges but the

distribution of cases by the Staff Senate. However this decision, as

one taken by an organ of the Judiciary, could not be attacked before

the Administrative Court. Since it was apparent that the complaint was

unfounded it had to be rejected without further proceedings and without

any decision on the procedural costs.

COMPLAINTS

The applicant complains that the distribution of cases as

modified in 1993 put a work load on him which was considerable higher

than the one of his colleagues at the court. As no increase in pay

corresponded to the increase in work, he was a victim of a violation

of Article 4 of the Convention.

He complains that because of the unfair distribution of cases he

was also discriminated against his colleagues at the court which had

a lighter work load and invokes Article 14 of the Convention.

He complains under Article 1 of Protocol No. 1 that his right to

peaceful enjoyment of his possessions had been violated because as a

consequence of the modified distribution of cases he had lost a part

of his spare time which could have been used for other opportunities

of making money.

He complains under Article 13 of the Convention that he did not

have an effective remedy at his disposal in order to complain about the

above violations caused by the unfair modification of the distribution

of cases.

Lastly he complains under Article 6 para. 1 of the Convention

that in the proceedings on his request for an allowance the Austrian

authorities and courts did not sufficiently examine the factual basis

of his claims and the legal situation involved. Furthermore, no public

hearing in these proceedings was held.

THE LAW

1. The applicant complains that the distribution of cases as

modified in 1993 put a work load on him which was considerable higher

than the one of his colleagues at the court. In this respect he

invokes Article 4, 13 and 14 (Art. 4, 13, 14) of the Convention and

Article 1 of Protocol No. 1 (P1-1).

The Commission observes that the applicant has introduced a

previous application, No. 24376/94, in which he complained about the

modification of the distribution of cases by the Staff Senate of the

Feldkirch Regional court and the adverse consequences this modification

had for him. On 31 August 1994 the Commission declared this

application inadmissible.

According to Article 27 para. 1 (b) (Art. 27-1-b) of the

Convention the Commission shall not deal with an application which "is

substantially the same as a matter which has already been examined by

the Commission ... and if it contains no relevant information"

The Commission finds that the above complaints relate to

essentially the same matter as Application No. 24376/94 which had

already been examined by the Commission.

It follows that the Commission is prevented from dealing with

this part of the present application by virtue of Article 27 para. 1

(b) (Art. 27-1-b) of the Convention.

2. The applicant further complains under Article 6 para. 1

(Art. 6-1) of the Convention that in the proceedings on his request for

an allowance the Austrian authorities and courts did not sufficiently

examine the factual basis of his claims and the legal situation

involved and that no public hearing in these proceedings was held.

Article 6 para. 1 (Art. 6-1) of the Convention, insofar as

relevant, reads as follows:

"In the determination of his civil rights and obligations ...

everyone is entitled to a fair and public hearing ... by an

independent and impartial tribunal established by law."

The Commission recalls that Article 6 (Art. 6) of the Convention

only applies to disputes over "rights and obligations" which can be

said, at least on auguable grounds, to be recognised under domestic

law. Article 6 (Art. 6) does not in itself guarantee any particular

content for "rights and obligations" in the substantive law of the

Contracting States (see Eur. Court H.R., James and others judgment v.

the United Kingdom of 21 February 1986, Series A no. 98, p. 46, para.

81, and Lithgow and others judgment of 8 July 1986, Series A no. 102,

p. 70, para. 192). The dispute which gives a right to a determination

by a court must be "genuine and of a serious nature" (see Eur. Court

H.R., Benthem judgment v. the Netherlands of 23 October 1985, Series

A no. 97, p. 14, para. 32). The dispute may relate not only to the

actual existence of a right but also to its scope or the manner in

which it may be exercised, and it may concern both questions of fact

and questions of law (see Eur. Court H.R., van Marle and Others

judgment v. the Netherlands of 26 June 1986, Series A no. 101, p. 11,

para. 32; Karni v. Sweden, Comm. Report 15.12.88, D.R. 62 p. 90,

para. 86).

The Commission notes that the applicant requested the President

of the Innsbruck Court of Appeal for an additional allowance as he

considered that his work load was excessive and no direct remedy lay

against the decision by which the allegedly excessive work load was

imposed on him. He acknowledged that the Judges Act, which is the

legal basis for payments of salary to judges, did not provide for the

claim he made, but suggested that other provisions of law be applied

in his case, which was such an exceptional one. The President of the

Court of Appeal dismissed his claim as no legal basis existed for

granting the payments he had requested. On the same ground his appeal

was dismissed. The Constitutional Court refused to deal with his

complaint as there was no prospect of success and the Administrative

Court confirmed the Minister's appeal decision. The Minister and the

Administrative Court, in their respective decisions, also noted that

the applicant essentially complained about the distribution of cases

but that this matter could not be considered in the proceedings he had

instituted.

The Commission finds that in the present case there was no

serious dispute on facts, as the domestic court had to leave open the

question whether or not the applicant's work load was excessive as,

even if this had been the case, there was no legal basis for the

granting of an allowance as the applicant had requested (see

No. 10732/84, Dec. 11.3.85, D.R. 41 p. 21). Thus, there was no dispute

on the scope or manner of a "right" or "obligation". What the

applicant challenged was the law in force as regards the granting of

salary to judges and the distribution of cases by the Staff Senate of

the Feldkirch Regional Court against which however he could not have

brought any proceedings. The Commission finds that the applicant could

not on arguable grounds claim a right to an allowance. The dispute

thus did not concern a right within the meaning of Article 6 para. 1

(Art. 6-1) and the applicant therefore cannot rely on that provision

in this instance.

It follows that this part of the application must accordingly be

rejected as incompatible ratione materiae with the provisions of the

Convention in accordance with Article 27 para. 2 (Art. 27-2) of the

Convention.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

M.F. BUQUICCHIO J. LIDDY

Secretary President

to the First Chamber of the First Chamber

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VON DER THANNEN v. AUSTRIA

VON DER THANNEN v. AUSTRIA

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