Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 23772/94

by Helmut KOLLER

against Austria

The European Commission of Human Rights (First Chamber) sitting in

private on 28 June 1995, the following members being present:

Mr. C.L. ROZAKIS, President

Mrs. J. LIDDY

MM. E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

M.P. PELLONPÄÄ

B. MARXER

G.B. REFFI

B. CONFORTI

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

G. RESS

A. PERENIC

C. BÎRSAN

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 March 1994 by

Helmut KOLLER against Austria and registered on 29 March 1994 under

file No. 23772/94;

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 facts of the case, as submitted by the applicant, may be

summarised as follows.

The applicant, born in 1942, is an Austrian national residing in

Mödling. In the proceedings before the Commission he is represented by

Mr. A. Friedberg, a lawyer practising in Vienna.

A. Particular circumstances of the case

From January 1991 to July 1992 the applicant, in his capacity as

practitioner of the municipality of Mödling (Stadtarzt), carried out

altogether thirty-one examinations of patients with an indication of

mental illness in accordance with S. 8 of the Psychiatric Hospitals

(Committal) Act (Unterbringungsgesetz).

On 8 January 1993 the Mödling District Administrative Authority

(Bezirksverwaltungsbehörde) dismissed the applicant's claim for payment

for the examinations carried out between January 1991 and July 1992.

On 27 July 1993 the Office of the Lower Austria Regional

Government (Amt der niederösterreichischen Landesregierung) dismissed

the applicant's appeal. It noted that the amendment to the

Practitioners' Act (Ärztegesetz), which had entered into force on

1 August 1992, had explicitly established a duty for practitioners

working in public medical service, including practitioners of a

municipality, to carry out the examinations at issue and had introduced

a right to payment in relation to them. As regards the examinations

carried out before 1 August 1992, the Office of the Lower Austria

Regional Government found that the obligation of practitioners working

in public medical service also followed from SS. 8 and 9 of the

Psychiatric Hospitals (Committal) Act. However, no right to payment had

been foreseen and the above amendment to the Practitioners' Act did not

apply retroactively. Nevertheless, the work performed was not to be

considered as forced or compulsory labour.

On 29 November 1993 the Constitutional Court (Verfassungs-

gerichtshof) dismissed the applicant's complaint for lack of sufficient

prospects of success. The Court noted in particular that the work load,

which the examinations at issue placed on practitioners working in

public medical service, was not disproportionate.

The applicant did not pursue his complaint before the

Administrative Court (Verwaltungsgerichtshof). He submits that this

complaint would not have constituted an effective remedy as he had

invoked his constitutionally guaranteed rights.

B. Relevant domestic law

The Psychiatric Hospitals (Committal) Act (Unterbringungsgesetz)

entered into force on 1 January 1991.

S. 8 provides that a person may only be committed to a

psychiatric hospital against his or her will, if a practitioner in

public medical service or a police practitioner has examined him or her

and has certified that the conditions for committal are met. These

conditions are, according to S. 3, that a person suffering from a

mental illness, would endanger his or her own life or health or would

be a serious threat to the life or health of others.

According to S. 9, officers of the public security service are

entitled and obliged to bring any person before a practitioner within

the meaning of S. 8 in order to have him or her examined, if there are

particular reasons to believe that the conditions for committal to a

psychiatric hospital are met.

COMPLAINTS

The applicant complains under Article 4 para. 2 of the Convention

that he was, between January 1991 and July 1992, obliged to carry out

examinations under the Psychiatric Hospitals (Committal) Act without

payment.

THE LAW

The applicant complains that he was obliged to carry out

examinations under the Psychiatric Hospitals (Committal) Act without

payment. He invokes Article 4 para. 2 (Art. 4-2) of the Convention,

which reads as follows:

"No one shall be required to perform forced or compulsory

labour."

The Commission, assuming exhaustion of domestic remedies, recalls

that the concept of forced or compulsory labour within the meaning of

Article 4 para. 2 (Art. 4-2) comprises two elements. These elements are

first that the labour or service must be performed by the person

concerned against his will and secondly that the obligation to perform

this labour or service must be either unjust or oppressive, or must

itself constitute an avoidable hardship (No. 9322/81, Dec. 3.5.83, D.R.

32 p. 182).

In the present case, the applicant, in his capacity as

practitioner of the municipality of Mödling, was obliged to carry out

examinations of patients in accordance with SS. 8 and 9 of the

Psychiatric Hospitals (Committal) Act, which entered into force on

1 January 1991. His claims for payment for thirty-one examinations

carried out between January 1991 and July 1992 remained unsuccessful.

The competent authorities found that an amendment of the Practitioners'

Act, entitling practitioners employed in public medical service to

claim payment for the examinations at issue, only entered into force

on 1 August 1992 and did not apply retroactively.

As regards the first condition for establishing whether the

applicant had to perform forced or compulsory labour, the Commission

finds that the applicant freely entered the public medical service. At

the time, when he became practitioner of the municipality of Mödling,

he might not have been able to foresee that he would have to carry out

examinations of patients under the Psychiatric Hospitals (Committal)

Act of 1991. However, the examinations under S. 8 of this Act relate

to a kind of emergency situation, where there might be a danger for the

patient's or other people's lives and, thus, do not fall outside the

ambit of the normal activities of a practitioner (see mutatis mutandis,

Eur. Court H.R., Van der Mussele judgment of 29 September 1982,

Series A no. 70, p. 17 et seq., paras. 36-39).

As regards the second condition, the Commission considers that

the work performed by the applicant served the general interest. Given

the number of examinations he actually carried out, namely thirty-one

examinations over a period of one and a half years, the burden imposed

on him does not appear disproportionate. In these circumstances, the

work complained of cannot be considered as being unjust or oppressive

or as constituting avoidable hardship.

In conclusion, the Commission finds that there is no appearance

of a violation of Article 4 para. 2 (Art. 4-2) of the Convention.

It follows that the application is manifestly ill-founded within

the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the First Chamber President of the First Chamber

(M.F. BUQUICCHIO) (C.L. ROZAKIS)

Menu

KOLLER v. AUSTRIA

KOLLER v. AUSTRIA

LEXI