AS TO THE ADMISSIBILITY OF

                      Application No. 11761/85

                      by K.O

                      against Austria

        The European Commission of Human Rights sitting in private

on 10 July 1987, the following members being present:

              MM. G. SPERDUTI, Acting President

                  J.A. FROWEIN

                  F. ERMACORA

                  G. JÖRUNDSSON

                  S. TRECHSEL

                  A. WEITZEL

                  H.G. SCHERMERS

                  H. DANELIUS

                  H. VANDENBERGHE

             Mrs.  G.H. THUNE

             Sir  Basil HALL

             MM.  F. MARTINEZ

                  C.L. ROZAKIS

             Mrs.  J. LIDDY

             Mr.  J. RAYMOND, Deputy Secretary to the Commission

        Having regard to Article 25 of the Convention for the

Protection of Human Rights and Fundamental Freedoms;

        Having regard to the application introduced on 24 September 1985

by K.O against Austria and registered on 27 September 1985

under file N° 11761/85;

        Having regard to

        - the Government's observations of 21 August 1986 and the

applicant's observations in reply of 9 October 1986;

        - the oral submissions of the parties at the hearing on

10 July 1987;

        Having deliberated;

        Decides as follows:

THE FACTS

        The applicant is an Austrian citizen born in 1926 who resides

in Linz.

        The facts apparently not in dispute between the parties may be

summarised as follows.

        The applicant was employed by a private insurance company as

the Director of their regional branch office for Upper Austria.  He

was also entrusted with the administration of the company's building

in which the branch office was situated.  A dispute arose between the

applicant and the company as to the termination of this activity

before the Labour Court (Arbeitsgericht) of Vienna.  In the relevant

proceedings, the applicant's claim was finally rejected by a decision

of the Supreme Court (Oberster Gerichtshof) of 18 May 1982.  The

applicant subsequently complained to the Commission that these

proceedings were unfair and contrary to Art. 6, para. 1 of the

Convention (Application No. 10247/83).  This application was declared

inadmissible on 12 March 1986.

I.      In connection with the above litigation, the applicant's

employers suspended him from his duties as Director of the regional

office on the day following the first hearing before the Labour Court

of Vienna, i.e. on 10 March 1978.  They took the view that such

suspension was possible at any time without giving reasons.  The

applicant contested this opinion and asked for the institution of

disciplinary proceedings against himself.  This was however refused.

Eventually the applicant challenged his suspension by an action which

he lodged with the Labour Court of Linz on 9 March 1981,  claiming in

particular that the suspension was unjustified because it was in

reality a sanction for his having sued the employers in court.  In the

first round of the proceedings, this action led to a decision of the

Supreme Court of 30 March 1982 finding that the employers were

required to give reasons for the suspension.  The Supreme Court

therefore referred the case back to the Labour Court of first

instance.

        In the renewed proceedings before this court the employers

contested the applicant's legal interest to obtain a judicial

decision on the lawfulness of his suspension because they had in the

meantime dismissed him with effect from 31 March 1982.  The applicant

on the other hand challenged the legal validity of the dismissal

inter alia as having been pronounced before the required consent

of the authority under the Disabled Persons (Employment) Act

(Invalideneinstellungsgesetz) had become final.  He had in fact lodged

an appeal against the relevant decisions before the Administrative

Court (Verwaltungsgerichtshof).  For this reason he also brought new

proceedings against his employers in the Labour Court of Linz

contesting the lawfulness of his dismissal, and in the pending

proceedings concerning his suspension he claimed to have a continued

legal interest.

        However, in its decision of 9 December 1982, the Labour Court

of Linz denied the applicant's legal interest, finding that the

dismissal was valid because it had been pronounced with the consent of

the competent administrative authorities and the Administrative Court

proceedings having no suspensive effect.  This decision was confirmed

on 11 May 1983 by the Regional Labour Court (Landesgericht als

Berufungsgericht in arbeitsgerichtlichen Rechtsstreitigkeiten) of Linz

which added that the applicant's appeal to the Administrative Court

had in the meantime been rejected.  (A complaint concerning the

Administrative Court's proceedings was included in the applicant's

above Application No. 10247/83 and was declared inadmissible as

being incompatibile with the provisions of the Convention.)

        In the present case the applicant appealed further to the

Supreme Court which on 23 October 1984 reversed the above decisions of

the Labour Courts.  It found - contrary to its own earlier case-law -

that the consent of the competent authority must have become final

(rechtskräftig) before the dismissal of a disabled person such as the

applicant can be pronounced by his employer.  It also stated that the

applicant's case did not come within the scope of Section 8 (2) of the

Disabled Persons (Employment) Act according to which a handicapped

person may be exceptionally dismissed without prior consent of the

authority, in which case the consent may be sought retroactively.

The applicant's dismissal was therefore invalid  and his claim

relating to his suspension could consequently not be rejected on

the ground that he lacked a legal interest because of this dismissal.

The Supreme Court therefore again referred the case back to the Labour

Court of first instance, directing it to deal with the merits of the

question of the justification of the applicant's suspension.

        By a decision of 30 January 1985 the Labour Court of Linz

allowed the applicant's claim that his suspension had been unlawful,

finding that the reasons given by his employers - essentially

the fact that he had brought lawsuits against them - were not

sufficient to justify this suspension.  As a matter of principle, the

employers were not entitled to prejudge the decision of the competent

courts by such a measure, in particular as the applicant's lawsuits

had not been abusive.  The Labour Court rejected the employers'

request to adjourn the proceedings pending the outcome of new

administrative proceedings which they had in the meantime instituted

to obtain retroactive consent of the authority to the applicant's

dismissal.

        The employers appealed against this judgment, claiming that the

retroactive consent to the dismissal had in the meantime been granted

and that as a consequence the dismissal was valid and deprived the

applicant of his legal interest to challenge his previous suspension.

The applicant contested this argument claiming that the grant of

retroactive consent to the dismissal was unlawful.  He referred to his

appeal to the Constitutional Court (Verfassungsgerichtshof) and the

Administrative Court and requested the adjournment of the Labour Court

proceedings pending the decision of these courts.  However, this

request was rejected and the Regional Labour Court of Linz allowed the

employers' appeal by a decision of 31 July 1985.

        In the reasons, the Regional Labour Court noted in particular

that the retroactive consent to the dismissal had in the meantime been

granted by the competent administrative authority.  It considered

that it was bound by this decision notwithstanding the applicant's

appeals to the Constitutional and Administrative Courts.  The

dismissal was therefore to be considered as valid and accordingly the

applicant could raise claims resulting from his earlier suspension

only until the date of the dismissal, i.e. 31 March 1982.  In this

context, the Court further noted that in the labour court proceedings

concerning the (original) dismissal the parties had reached a

settlement on 26 May 1983 according to which the employers undertook

to pay the applicant compensation (Abfertigung) for certain

claims arising from his employment until the date of dismissal.  The

Court considered that the settlement covered all claims which the

applicant still could raise as a consequence of his suspension, and

therefore it rejected his action for lack of legal interest in the

judicial determination of these claims.  It stated that it was not

required in these circumstances to deal with the justification of the

suspension.

        On 7 October 1985, the applicant lodged an appeal on points of

law (Revision) to the Supreme Court which thus was seized for the

third time in this case.  He claimed that the Regional Labour Court

had wrongly stated the facts concerning the settlement of 26 May 1983

because that settlement by its express terms was only of a partial

nature and did not cover all claims, in particular it did not cover

any claims posterior to the date of the dismissal.  He further claimed

that the Regional Labour Court had committed an error of law in

considering the dismissal as valid.  In doing so it had disregarded

the Supreme Court's earlier finding that Section 8 (2) of the Disabled

Persons (Employment) Act was not applicable in his case and that a

retroactive consent to the dismissal was therefore excluded.

        The applicant's appeal was rejected by the Supreme Court on

15 July 1986.  The Supreme Court considered it as irrelevant whether

or not the settlement of 26 May 1983 had been correctly interpreted by

the Regional Labour Court as in any event the applicant's dismissal

had now to be regarded as valid, the competent administrative

authorities having in the meantime declared their retroactive consent

to this dismissal under Section 8 (2) of the Disabled Persons (Employment)

Act.  The Regional Labour Court had correctly held that it was bound

by the administrative authorities' decision in this respect.  These

authorities were exclusively competent to apply the said Act and they

were not bound by the Supreme Court's opinion expressed in the

decision of 23 October 1984 according to which the conditions of

Section 8 (2) concerning retroactive consent were not met.  The civil

courts had no power to review the administrative authorities'

decisions.  The Court concluded that the applicant had no legal

interest in the determination of his claim concerning his suspension.

        The Supreme Court did not deal with the relevance of the

public law appeals which the applicant had filed with the

Constitutional and Administrative Courts against the authorities'

retroactive consent to his dismissal.  As the Administrative Court had

in the meantime quashed the authorities' consent by its decision of

21 May 1986 the applicant requested the reopening of the Labour Court

proceedings concerning his suspension.

        On 9 October 1986 the Regional Labour Court of Linz rejected

the action (Wiederaufnahmeklage) and the applicant again appealed to

the Supreme Court which thus is dealing with this case for the fourth

time.  It has not yet taken a decision.

        The applicant had in the meantime brought new proceedings

against his employers concerning the dismissal, seeking a declaration

that his employment had not been validly terminated and raising claims

for the period after 31 March 1982.  However, his action to this

effect had been rejected by the Labour Court of first instance on

14 August 1985, on the ground that the administrative authority had

validly declared its retroactive consent to this dismissal.

        Following the Administrative Court's above decision quashing

the consent the applicant also requested the reopening of these

proceedings.  The Labour Court of Linz allowed the request on

24 September 1986 and the Regional Labour Court confirmed this

decision on 3 February 1987.  However, the employers have appealed

to the Supreme Court where this case, too, is still pending.

II.     The administrative proceedings under the Disabled Persons

(Employment) Act, to which the labour courts referred when judging

the applicant's legal interest, may be summarised as follows:

        As mentioned above, the applicant's employers, after having

suspended him from his functions, eventually decided to dismiss him.

This followed unsuccessful attempts to arrive at a friendly settlement

with him concerning the various matters which by then had given rise to

judicial litigation.  However, as the applicant was 70 % handicapped,

his dismissal required the previous consent of the Disabled Persons

Board (Invalidenausschuss) in accordance with the provisions of the

Disabled Persons (Employment) Act.  Administrative proceedings were

therefore instituted for this purpose.  The Disabled Persons Board

declared its consent to the dismissal on 8 July 1981, and this decision

was confirmed on appeal by the Provincial Governor (Landeshauptmann)

for Upper Austria on 16 October 1981.  The applicant then lodged a

complaint with the Administrative Court which was eventually rejected

on 9 March 1983.

        The Court found essentially that the reason for the

applicant's dismissal had not been his invalidity, and that the

authorities had not overstepped the limits of their discretionary

powers by finding that there were objective reasons for the

applicant's dismissal as he had rejected all offers to settle the

dispute with his employers.  In view of the pension to which the

applicant was entitled there was no question of a social hardship

arising for him.  The Administrative Court finally considered that no

procedural principles had been violated in the administrative

proceedings, in particular as regards the applicant's right to be

granted access to the file.

        The applicant was in fact given notice of the termination of

his employment contract on 14 July 1981 with effect from 31 March 1982.

The employers thus relied on the administrative decision of first

instance, without awaiting the determination of the applicant's appeals.

        According to the Supreme Court's above judgment of

23 October 1984 the original notice of dismissal could not be

considered as valid because of the employers' failure to wait until

the administrative decision had become final.  However, following this

decision the applicant's employers applied for the retroactive consent

of the Disabled Persons Board to the applicant's dismissal pronounced

on 14 July 1981, basing themselves on the provision in Section 8 (2)

of the Disabled Persons (Employment) Act according to which such

retroactive consent can be sought in exceptional cases.

        They claimed that the Supreme Court's decision departing from

its long established case-law had not been foreseeable for them, and

that therefore an exceptional case within the meaning of Section 8 (2)

was given.  The applicant opposed this argument by referring to the

Supreme Court's decision itself which had expressly stated that there

was no reason to apply this provision.  He further submitted that the

employers' application was inadmissible on the ground of res judicata.

        By a decision of 14 March 1985, the Disabled Persons Board

refused to grant retroactive consent to the dismissal on 31 March 1982,

but stated at the same time that the earlier consent continued to produce

effect for any future notice of dismissal.  Insofar as the application

sought to reopen the issues discussed in the earlier proceedings, it

was therefore struck by res judicata.

        Both parties appealed, and on 17 June 1985 the Provincial

Governor of Upper Austria allowed their appeals.  The employers'

appeal against the refusal of retroactive consent was allowed on the

ground that the administrative authority was not bound by the opinion

of the Supreme Court that Section 8 (2) was inapplicable.  The

Provincial Governor considered that the employers had acted in

conformity with the law as it was applied at the relevant time when

they gave notice to the applicant without awaiting the final effect of

the administrative decision.  The Supreme Court's change of

jurisprudence had not been foreseeable and constituted an exceptional

case within the meaning of Section 8 (2), in particular as the

employers had acted in good faith and would suffer unfair

disadvantages if the dismissal at the original date was considered as

ineffective.  In fact they would have to pay the applicant's full

salary in the amount of several million Schillings without his having

worked for them.  The applicant's appeal was also allowed.  It was

noted that the employers had, as a matter of precaution, addressed a

new notice of dismissal to the applicant with effect from 30 June 1985,

should the earlier dismissal not be considered as valid, but that they

had not newly applied for the authorities' consent.  The Provincial

Governor agreed with the Disabled Persons Board that the previous

decisions continued to produce effect if the same case of dismissal

was concerned.  However, if there was a new case of dismissal, the

proceedings would have to be repeated.

        On 23 July 1985, the applicant appealed against this decision

to the Constitutional Court, invoking his right to a decision by the

competent judge under Art. 83 of the Federal Constitution (Bundes-

verfassungsgesetz).  This provision had allegedly been violated by the

Provincial Governor in that he had given a new decision on the merits

by declaring his retroactive consent to the dismissal instead of

rejecting the employers' application on the ground of res judicata

as required by Section 68 of the Code of General Administrative

Procedure (Allgemeines Verwaltungsverfahrensgesetz).  In the

alternative the applicant requested the Constitutional Court to refer

the question of the alleged violation of provisions of the Code of

General Administrative Procedure to the Administrative Court.

        On 25 November 1985, the Constitutional Court decided in

conformity with Art. 144 para. 2 of the Federal Constitution

as amended in 1984 (Fed.  Law Gazette No. 196/1984) to refrain from

dealing with the case as it did not raise specific questions

concerning the interpretation of constitutional law.  Any violation of

the right to a decision by the competent judge could only result from

an error of ordinary law, a matter which could be decided

by the Administrative Court to which the case was accordingly

referred.

        On 21 May 1986 the Administrative Court allowed the

applicant's appeal finding that retroactive consent to the dismissal

of a disabled person could only be granted in very exceptional cases,

i.e. cases at the borderline of justified protection against

dismissal, characterised by a situation where the employer could not

reasonably be expected to solicit the prior consent of the authority.

The present case was not of such a nature.  The employers had in fact

applied for prior consent and had given notice of dismissal only after

the decision of first instance had been given.  The fact that in doing

so they had committed an error of law because they had failed to await

the final decision could not be considered as a "very exceptional

circumstance" justifying a retroactive consent.

COMPLAINTS

        The applicant, invoking Article 6 para. 1 of the Convention,

complains of the length of the labour court proceedings and the fact

that, eight years after his suspension, the question of whether

or not this suspension was justified has not yet been fully determined

by the courts.

        The applicant further complains under Article 6 para. 1 that

he was refused access to court insofar as the courts considered

themselves bound by administrative decisions and, on this basis,

denied his legal interest in the determination of the suspension case.

He also invokes Article 13 of the Convention in this context.

        The applicant alleges discrimination (Article 14 of the

Convention) in that the protection against unjustified dismissal laid

down in the Employment (Principles) Act does not extend to disabled

persons.  Unlike that Act the Disabled Persons (Employment) Act

contains no specific regulations concerning unfair dismissal but

leaves the matter to the discretion of the administrative authority.

Allegedly no effective judicial remedy is available to disabled

persons after the administrative authority's consent to the dismissal

has become final.

        In the course of the proceedings before the Commission the

applicant has further invoked Articles 3, 6 para. 2, and 11 of the

Convention as well as Article 1 of Protocol No. 1.

PROCEEDINGS

        The application was introduced on 24 September and registered

on 27 September 1985.

        On 12 March 1986 the Commission rejected the applicant's

earlier Application No. 10247/83 which partly relates to the same

facts.  At the same time the Commission decided to give notice of the

present application to the respondent Government and to invite them,

in accordance with Rule 42 para. 2 (b) of the Rules of Procedure, to

submit observations in writing on the admissibility and merits.

        The time-limit for the submission of the Government's

observations was fixed at 30 May 1986.  At the Government's request

this time-limit was subsequently extended until 22 August 1986.

        The Government submitted their observations on 21 August 1986

and the applicant replied on 9 October 1986.

        On 4 March 1987 the Commission decided to invite the parties,

in accordance with Rule 42 para. 3 (b) of the Rules of Procedure, to

submit further observations on the admissibility and merits orally at

a hearing before the Commission.

        The hearing took place on 10 July 1987.  At the hearing the

parties were represented as follows:

-       The Government by their Agent, Botschafter Dr.  Helmut Türk,

        Head of the International Law Department, Federal Ministry of

        Foreign Affairs, who was assisted by Dr.  Sabine Bernegger of

        the Federal Chancellery's Constitutional Law Department, and

        Dr.  Irene Gartner of the Federal Ministry of Justice, Advisers.

-       The applicant appeared in person, assisted by his wife,

        Mrs.  Obermeier, as adviser.

SUMMARY OF THE PARTIES' OBSERVATIONS

A.      The Government

        The Government admit that the applicant has complied with the

conditions of Article 26 of the Convention.

        They submit, however, that the application is manifestly

ill-founded.

        There could even be certain doubts concerning the applicability

of Article 6 of the Convention.  The Government emphasise that the

proceedings at issue concern exclusively the applicant's claim that

his suspension be revoked (Aufhebung der Suspendierung).  In substance

the applicant thereby demands the reinstatement in his job, for his

suspension was based on Section 32 of the Collective Agreement for

Insurance Employees according to which such a measure leaves

unaffected all aspects of the employment contract except the

employee's obligation to work.  He has no right to work, neither under

the Convention nor under civil law.  He only has a contractual duty to

work which, in this case, the employer suspended by a disciplinary

measure.  However, in the Government's view the taking of disciplinary

measures in the context of a private law relationship between employer

and employee does not necessarily come within the scope of Article 6.

        The Government stress that apart from the above claim that

his suspension be revoked the applicant has not raised any other

claims in the relevant proceedings.  In particular, these proceedings

did not concern any financial claims nor the validity of the

applicant's dismissal as such.  These matters were the subject of

different proceedings which are not at issue here.

        Insofar as the validity of the dismissal was nevertheless

relevant as a preliminary issue (Vorfrage) in the present case, the

examination of this issue did not involve a direct determination of

the applicant's civil rights.  The preliminary issue concerned the

applicant's legal interest (Rechtsschutzinteresse) in the judicial

determination of his above claim.  The existence of such legal

interest is a condition for the admissibility of judicial proceedings

(Prozessvoraussetzung) which the court is required to examine ex officio

at any stage of the proceedings.

        The applicant's specific claim to have his suspension revoked

logically presupposes a situation of continuing employment.  It would

not make sense to demand the revocation of a suspension from

employment after the termination of this employment.  Therefore the

applicant's legal interest in the action depended on whether or not

his employment had been validly terminated by the employer's notice of

dismissal.

        Generally, the employer's right to give notice is not

restricted by a requirement of administrative consent.  The employer

can dismiss by a unilateral private law declaration addressed to the

employee who has certain possibilities to challenge the dismissal only

after it has been pronounced (cf. in particular Section 105 of the

Employment Principles Act which assigns an important function to the

works council).  However, a different regime exists for disabled

employees.  Under the Disabled Persons (Employment) Act the employer

cannot validly give notice of dismissal to them without the prior

consent of the competent administrative authority.  This means there

exists a general prohibition to dismiss disabled employees.  It is

true that the Disabled Persons Board enjoys a measure of discretion in

deciding on derogations, but the discretion must be exercised in

accordance with the aim and purpose of the legislation and this is

controlled by the Administrative Court which has developed a pertinent

case-law since 1954.  In view of the fact that the regime introduced

for disabled persons is generally more favourable, it cannot be said

that it is discriminating.

        If the employer fails to obtain the required consent, or if

the consent is defective, the dismissal will not be regarded as

valid.  However, this lack of validity becomes operative only if the

employee subsequently challenges the dismissal by a Labour Court action

in which he claims that he is still employed and thus entitled to

continued payment of his salary (Leistungsklage).  The applicant could

and did in fact make use of this possibility, i.e. he actually

challenged his dismissal in labour court proceedings which, however,

are not at issue here.  He cannot pretend that in this respect he was

refused access to court.

        Nor was the applicant's right of access to court interfered

with in the present case insofar as the courts assumed a binding

effect of the administrative decisions taken under the Disabled

Persons (Employment) Act when judging the preliminary question of the

validity of the applicant's dismissal.  In the Government's view the

binding effect of administrative decisions only played a role in the

third round of the labour court proceedings.  Moreover, it was only

the fact that the administrative authority had consented to the

dismissal which was regarded as binding (Tatbestandswirkung).  There

was no decisive determination of the applicant's civil rights in this

respect.  As the Commission confirmed in its decision on the

applicant's first application No. 10247/83, the administrative

proceedings themselves did not determine such rights and fell outside

the scope of Article 6.  The Government furthermore observe that in

these proceedings the administrative authority was only called upon to

apply the Disabled Persons (Employment) Act and not to examine the

question of the lawfulness of the dismissal in its entirety.  The

question of whether the dismissal infringed the Civil Code as being

contra bonos mores (sittenwidrig), whether it was contrary to

contractual clauses, to the applicable collective agreement, or to

provisions of the Employees Act (Angestelltengesetz) were matters

which could be raised in labour court proceedings to challenge the

dismissal.  In the present labour court proceedings the applicant

either failed to draw the court's attention to such issues, or if the

courts examined them, they must have come to the conclusion that the

applicant's dismissal was in substance justified.

        As regards the length of the labour court proceedings, the

Government observe that these proceedings were instituted only three

years after the applicant's suspension, on 9 March 1981.  The

previous period during which settlement negotiations took place

between the applicant and his employers cannot be taken into account

for the purposes of Article 6 para. 1.

        Until the Supreme Court's final judgment of 15 July 1986 the

proceedings lasted some five years and four months.  This included

three rounds of court proceedings through all levels of jurisdiction.

The Government observe that in the course of these proceedings delays

have hardly occurred, and this despite the complexity of the matter

and the interaction of court and administrative proceedings.  They

consider that in these circumstances the total length of the

proceedings was not unreasonable.

        The particular complexity of the case arose from several

circumstances:  The fact that the applicant was given notice of

dismissal before a final decision had been taken in the case

concerning the revocation of his suspension;  the interaction between

the court proceedings and the administrative proceedings concerning

the consent to that dismissal;  the change of the Supreme Court's

case-law as to when the authority's prior consent becomes effective;

finally, the fact that in reaction to this unexpected change of

jurisprudence the applicant's employers requested and eventually

obtained retroactive consent, a fact which was binding on the Labour

Court and created a new legal situation.

        If something is to be "blamed" for the length of the

proceedings it is the Supreme Court's decision of 23 October 1984 by

which a change of the constant case-law was brought about.  Without

that decision a third round of the proceedings would not have become

necessary.  The Government also admit that a certain delay occurred in

the preparation of this decision which was the reaction to an appeal

registered on 16 August 1983.  However, this delay was attributable to

the complexity of the matter and the fact that the Supreme Court

decided contrary to its long established previous case-law.  Such a

departure from previous case-law is not an everyday affair.  It

requires thorough consideration and should be made in the interest of

legal security only in the presence of good reasons and sound

arguments.  This explains why the short delay occurred.

        As such, this change of the case-law did not interfere with

the applicant's rights.  The decision was in his favour as he was

thereby given a new opportunity to assert his claim concerning his

suspension:  He again acquired a legal interest which according to

the earlier practice would no longer have existed.  Accordingly he

cannot complain of the resultant prolongation of the proceedings.

        The change of the Supreme Court's case-law was completely

unexpected.  That is why the applicant's employers requested

retroactive consent to the dismissal under Section 8 (2) of the

Disabled Persons (Employment) Act which was eventually granted by the

Provincial Governor for Upper Austria.  In the Government's submission

it was not unreasonable for the Provincial Governor to consider the

unexpected change of the Supreme Court's case-law as an exceptional

circumstance within the meaning of this provision.

        The Provincial Governor's decision was a final administrative

decision and thus binding on the Regional Labour Court which, at the

relevant time, was seized with an appeal.  In fact, it changed the

legal situation underlying the case (veränderte Entscheidungsgrundlage),

and this was subsequently also confirmed by the Supreme Court.

        The Government observe that the interaction between the

administrative proceedings and the judicial proceedings did not lead

to any unjustifiable delays.  The two proceedings were conducted

simultaneously without any adjournment of the judicial proceedings

pending an administrative decision, or vice versa.  Only the result

and not the length of the judicial proceedings was thus influenced by

the administrative proceedings.  The mere fact that Austrian law

attributes a role to administrative authorities in dismissal

proceedings cannot be criticised as a circumstance which tends to

reduce the legal protection of the persons concerned.  On the

contrary, it increases their legal protection even if the relevant

proceedings may sometimes last longer.

        The Government also observe that in the administrative

proceedings concerning retroactive consent the applicant was given

sufficient opportunity under the Code of General Administrative

Procedure to submit his legal arguments, although no oral hearing took

place in these proceedings.  Such a hearing could be dispensed with

as there had been one already in the earlier proceedings, because

the facts were essentially unchanged and the issue to be decided was

merely a legal question.  The authority took its decision on the basis

of the voluminous file.

        As the Supreme Court confirmed, the fact that the authority had

consented to the dismissal was binding on the labour courts which had no

possibility to enquire whether the authority's decision was correct in

terms of its merits.  The fact that the Provincial Governor's decision

had, in the meantime, been quashed by the Administrative Court could

not be taken into account by the Supreme Court because the

Administrative Court's decision of 21 May 1986 had not yet been issued

in writing.

        A lengthy procedure, which is caused above all by the

particular legal structure of the interaction of courts and

administrative authorities and the change in the jurisprudence of the

Supreme Court which was so decisive for this interaction in

particular, cannot be considered inappropriately long.  The Government

therefore move that the Commission should declare the application

inadmissible as being manifestly ill-founded.

B.      The applicant

        The applicant refers to the successful activities which he had

performed for many years for his employer.  His suspension took place

shortly before his 25th anniversary of employment in May 1978, for

which a public ceremony was planned.  Already for some time he had had

difficulties with the central management concerning certain parts of

his income which were related to the real property administration.

Although reluctant he was in substance ready to agree to a reduction,

but he was not prepared to accept a three months' notice clause in the

new contract offered to him.  Nevertheless the dispute concerning this

question did not disturb the enthusiasm which he showed for the

insurance business and the esteem which he enjoyed for his activities.

Finally, it was even with the agreement of the general director that

he put the matter before the courts for decision.

        However, the situation suddenly changed when the first court

hearing actually took place.  The following day, i.e. on

10 March 1978, the applicant was summoned to appear before the

management.  He was not allowed to be legally assisted and his wife,

who also worked for the firm, was told to leave the room.  The

applicant was then informed that he was suspended with immediate

effect.  This was followed by a general staff meeting in the absence

of the applicant at which the works council defended the management's

measure taken against the applicant.

        For him it was like an execution.  He had to return the keys

and was no longer admitted to the premises.  Not only was he not

allowed to work for his employer, he also lost a number of other

functions and could not seek alternative employment without prejudging

his legal interests.  If he had acted as a private insurance agent for

other companies, this would at once have led to the loss of his

pension entitlement.

        The applicant considers that he had not given any cause for

the suspension.  He had not failed to perform his professional duties

nor had he committed a disciplinary offence.  Indeed, under Section 32

of the Collective Agreement a suspension is not considered as a

disciplinary measure.  The applicant actually asked for disciplinary

proceedings but none were taken.  His employers simply used the

suspension as an instrument to secure his accommodation in the above

contractual matters.

        The applicant considers that in view of their serious

consequences (inter alia health problems of the applicant and members

of his family) his suspension and subsequent dismissal amounted to

inhuman and degrading treatment contrary to Article 3 of the

Convention.  Also they were discriminatory and thus in breach of

Article 14.  Furthermore the suspension infringed the presumption of

innocence guaranteed by Article 6 para. 2 of the Convention and,

because of the financial losses it caused the applicant, also his

property rights under Article 1 of Protocol No. 1.  Finally, the fact

that the applicant's trade union did nothing to defend his interests

and even refused him legal assistance allegedly interfered with his

trade union rights under Article 11 of the Convention.

        In the circumstances it must be wholly understandable that the

applicant continues to fight for his full rehabilitation, and in doing

so he should neither be regarded as a "Michael Kolhaas" nor as a "Don

Quichote".

        However, the applicant claims that the Austrian legal system

does not provide sufficient protection.  He observes that despite a

lapse of almost ten years since his suspension and despite the 71

legal acts mentioned in the time-schedule submitted by the Government,

the simple question of whether or not his suspension was justified has

not yet been determined.  The applicant is not so much interested in

the actual revocation of the suspension as in a judicial finding that

he had done nothing to justify it.  The one decision which was taken

on the merits of this question, and which was fully in his favour,

could not become final because of his legal interest being denied in

the subsequent appeal proceedings.  According to the Supreme Court

decision of 15 July 1986, a determination of this question is no

longer possible.  However, the applicant is trying to obtain a

reopening of the proceedings having regard to the Administrative Court

decision of 21 May 1986.

        In the applicant's view the question at issue in the labour

court proceedings was not particularly complex.  Everybody would agree

that a serious measure like suspension cannot be taken by an employer

without reasons.  It cannot be right to suspend somebody, refuse him

disciplinary proceedings, and if he seeks judicial protection, dismiss

him in order to deprive him of any remedy.  The whole proceedings

could have been avoided if disciplinary proceedings in accordance with

the Collective Agreement had been taken against the applicant.  They

would have provided the possibility of serious sanctions, including

punitive dismissal under Section 23 para. 1 (6) of the Collective

Agreement.

        The applicant considers it as unjustified to make the decision

concerning his suspension dependent on the validity of his dismissal.

In his view the administrative authority's consent to the dismissal

was not a relevant preliminary question in the judicial proceedings.

The fact that on this basis his legal interest was repeatedly, and at

last even finally, denied constitutes according to him a breach of

his right of access to court under Article 6 of the Convention and of

his right to an effective remedy under Article 13.  The applicant

further alleges that as a disabled person he was discriminated against

as regards his right of access to the existing remedies.  He invokes

Article 14 of the Convention in this respect.

        The applicant submits that the Austrian law does not

provide for a judicial competence to challenge the dismissal of a

disabled person to which the administrative authority has consented.

The Disabled Persons (Employment) Act differs from the Employment

(Principles) Act in that it does not contain any specific regulations

on unfair dismissal, nor a social hardship clause.  The decision on

the justification of dismissals is left to the unfettered discretion

of the competent administrative authorities.  In fact these

authorities deal with all aspects of the dismissal.  It is unrealistic

to assume that a dismissal to which the authority has consented could

subsequently be challenged under the Civil Code as being contra

bonos mores, as the Government suggest.

        In the applicant's view the competent authorities, i.e.

the Disabled Persons Board and the Provincial Governor, are not

independent courts.  They are administrative authorities bound by

instructions of the Federal Minister of Social Affairs.  In the

present case this Minister was at the same time the husband of the

head of personnel in the applicant's firm.  Furthermore he was

chairman of the applicant's trade union (whose representatives in the

works council had backed the employer's measures and which had refused

him legal aid).  Finally, the Minister had also acted as mediator.

        In the particular case the proceedings were also unfair

because the Disabled Persons Board refused to adjourn the case pending

the parallel court proceedings on the justification of the dismissal,

and because it failed to take into account numerous pieces of evidence

which the applicant had submitted in order to show that his dismissal

was not justified.  The applicant states in this context that he was

permanently employed (unkündbar) and, according to his contract and

the applicable collective agreement, could be given notice only in

view of a so-called "administrative retirement" (Administrativ-

Pensionierung).  The latter, however, required serious reasons in the

person of the employee concerned, for whom it brought about various

financial and other disadvantages.  The applicant denies that such

reasons existed in his case.

        The Provincial Governor's proceedings, before issuing his

decision on retroactive consent, were likewise unfair.  This decision

was taken without hearing the applicant and it relied on documents

which had not been part of the file.

        It is true that the administrative decisions could be

challenged before the Administrative Court.  However, the applicant

contests the Constitutional Court's opinion expressed in decisions

Nos. 5100 and 5102 according to which the Administrative Court

proceedings satisfy the requirements of Article 6.  In this respect

he invokes the Commission's Report in the Ettl Case (No. 9273/81,

Comm.  Rep. 3.7.85).  The Administrative Court cannot take a decision

on the merits, but can only confirm or quash the administrative

decisions.  It is impossible to raise questions of fact before it.

Also, certain important procedural principles such as the direct

evidence rule (Unmittelbarkeit), the principles of oral proceedings

(Mündlichkeit) and hearing of both parties (beiderseitiges rechtliches

Gehör) are widely disregarded.  Thus the Administrative Court refused

to hold a hearing in the applicant's case.  In this respect the

applicant refers to the submissions in his earlier application

No. 10247/83 which he reiterates despite the Commission's decision of

12 March 1986 to reject that application.  He claims that that decision

was based on wrong assumptions.  In particular, it is not correct that

the administrative consent to a dismissal can be challenged before the

ordinary courts after the Administrative Court's decision.  For this

reason the applicant requests a reopening of the Commission's

proceedings on his first application.

        Although it is apparently the intention of the Disabled

Persons (Employment) Act to provide better protection against

dismissal for disabled persons, they are in fact protected less

effectively than normal employees and thus discriminated against.  As

the present case shows, the system of dual protection by the courts

and administrative authorities has only adverse effects on the

individual concerned.  In fact it leads to divergent decisions of the

administrative authorities and the courts.  The present application

challenges this dual system as such.

        In the applicant's view interaction between the administrative

and the judicial proceedings not only led to an unreasonable

prolongation of the proceedings, it also involved an interference with

his right of access to court insofar as the labour courts considered

themselves bound by the administrative decisions.  In fact it amounts

to an encroachment on a person's legal protection if he is confronted

with a complicated legal system involving a shuttle (Pendelbewegung)

between administrative and judicial decisions and a confusing

interdependency of various tricky problems.

        As regards the length of the labour court proceedings the

applicant considers that it was in fact mainly caused by the

interaction with the parallel administrative proceedings and not by

the change of the Supreme Court's constant case law.

        The applicant accepts the Government's submission that the

period prior to the filing of his action cannot be taken into

account for the purposes of Article 6.  However, he also observes that

he waited until the very end of the prescription period because he

still hoped to reach a settlement with his employers.  For three years

he undertook many efforts to settle the question of his suspension

without applying to the courts.  In his view the matter could have

been solved on the basis of the applicable collective agreement for

insurance employees.  However, all his efforts to secure a

satisfactory solution with the assistance of his trade union and the

competent professional corporation, the Workman's Chamber, were to no

avail.   It is only for this reason that he filed his action one day

before the expiration of the legal prescription period on 9 March 1981.

This shows that he did not start the litigation prematurely or in an

abusive way.  He did so at his own cost as his trade union had refused

to grant him legal assistance.  He had to prove his claim for legal

assistance in other court proceedings.

        The labour court proceedings lasted about five-and-a-half

years and thus considerably longer than those in the Zand case

(No. 7360/76, Comm.  Rep. 12.10.78, D.R. 15 p. 70) where the

Commission stated with regard to similar proceedings which had lasted

three-and-a-half years "that such a delay can only be accepted, under

Article 6 para. 1 of the Convention, in very exceptional cases".

Morever, the applicant does not feel responsible for any delay which

occurred in his case.  He therefore claims that Article 6 has been

breached.

THE LAW

1.      The applicant's complaints relate to labour court proceedings

on his suspension from employment.  He complains, in particular, under

Article 6 para. 1 (Art. 6-1) of the Convention that in these proceedings his

civil rights were not determined within a reasonable time and that his

right of access to court was interfered with insofar as the courts

considered themselves bound by administrative decisions consenting to

his dismissal.  Following the dismissal the courts found that the

applicant had no longer any legal interest in the determination of the

suspension case.

        The applicant also invokes his right to an effective domestic remedy

under Article 13 (Art. 13) of the Convention and claims that he has been

discriminated against, as a disabled person, contrary to Article 14 (Art. 14)

of the Convention.

2.      The Commission notes that in the course of the proceedings the

applicant has submitted a number of further arguments under the

Convention relating, on the one hand, to his suspension and dismissal

as such and, on the other, to the legal protection against dismissal

which Austrian law provides for disabled persons.  The Commission has

considered these submissions as ancillary to the above complaint

concerning access to court, and not as separate complaints introduced

in conformity with Article 25 (Art. 25) of the Convention.  In any event the

applicant's suspension and dismissal are acts of his private employer

which he could not challenge as such before the Commission and the

labour court proceedings by which the applicant challenged his

dismissal are not at issue in the present case.

3.      Having regard to the specific claim which the applicant raised

before the Labour Courts in the present case the Government have expressed

doubts concerning the applicability of Article 6 para. 1 (Art. 6-1) of the

Convention to the proceedings in question.  The relevant part of this provision

reads as follows:

            "In the determination of his civil rights and

        obligations ... everyone is entitled to a fair

        and public hearing within a reasonable time by an

        independent and impartial tribunal established by

        law."

        The Government submit that in the last analysis the

applicant's action concerned exclusively his right to work which

they claim is not a civil right.  Moreover, the suspension was a

disciplinary measure taken by the employers which, in the Government's

view, likewise fell outside the concept of civil rights.

        However, the Commission is unable to follow the Government on

this point.  Even if the applicant did not have a right to work under

the applicable Austrian law but only a contractual duty to work which

his employers suspended by a disciplinary or other measure covered by

a collective agreement, the litigation still concerned the private law

relationships between the applicant and his employers, and thus the

determination of his "civil rights and obligations" within the meaning of

Article 6 para. 1 (Art. 6-1).  It follows that this provision is applicable to

the proceedings.

4.      The applicant complains that his civil rights were not determined

"within a reasonable time" as required by Article 6 para. 1 (Art. 6-1). The

Commission notes in this context that the applicant's action was introduced on

9 March 1981 and that after three rounds of proceedings it was finally

dismissed by the Supreme Court on 15 July 1986.  The proceedings thus lasted

more than five years and four months.

        The Commission further notes that the applicant has requested

the reopening of the proceedings on the ground that the Supreme Court

disregarded the fact that the administrative decision which it

considered as binding had in the meantime been quashed by the

Administrative Court.  Therefore it is not excluded that there will be

further proceedings which again will come within the scope of Article 6 para. 1

(Art. 6-1) (cf. in this respect No. 9816/82, Poiss v.  Austria, Comm.  Rep.

24.1.1986, at paras. 88 et seq.)

        The reasonableness of the length of proceedings has to be

assessed in each case according to the particular circumstances and

having regard to the criteria enunciated in the case-law of the

European Court of Human Rights (see Zimmermann and Steiner

judgment of 13 July 1983, Series A no. 66, p. 11, para. 24).

        In this context the Court has regard, inter alia, to the

complexity of the factual or legal issues raised by the case, to the

conduct of the applicant(s) and the competent authorities and to what

was at stake for the former; in addition, only delays attributable to

the State may justify a finding of a failure to comply with the

"reasonable time" requirement (see, mutatis mutandis, König

judgment of 28 June 1978, Series A no. 27, pp. 34-40, paras. 99,

102-105 and 107-111, and - concerning labour court proceedings -

Buchholz judgment, Series A no. 42, p. 16, para. 49).

        The Commission holds that the same approach must be adopted in

the present case in assessing the duration of the proceedings before

the Austrian courts.

        The Commission has taken cognisance of the pleadings of both

parties in this respect.  It notes the Government's argument that the

case was particularly complex because of the applicant's subsequent

dismissal, the interaction with administrative proceedings and the

change of the Supreme Court's case-law, and that in view of the fact

that there were three full rounds of judicial proceedings, during which

there occurred no major delay at any stage, the length of these

proceedings does not appear excessive.  It also notes the applicant's

contention that this case, which concerned vital interests of his

because of the humiliation and financial consequences brought about by

his suspension, was not as such a complex one, that the delay was

mainly caused by the unnecessary interaction with administrative

proceedings, and that the applicant himself was in no way responsible

for this delay.

        After carrying out a preliminary examination of these

arguments the Commission finds that the applicant's above complaint

cannot be rejected as being manifestly ill-founded, and that its

determination should accordingly depend upon the examination of the

merits.

5.      The applicant further complains under Article 6 para. 1 (Art. 6-1) and

Article 13 (Art. 13) of the Convention that he was refused access to court

insofar as the courts considered themselves bound by administrative

decisions and, on this basis, denied his legal interest in the

determination of the suspension case.

        The Commission notes that in the proceedings concerning the

applicant's suspension the Labour Courts considered it as decisive for

his legal interest that his employment had not been terminated.  The

validity of the dismissal was therefore a preliminary issue of

overriding importance.  Under the applicable law, the Disabled Persons

(Employment) Act, the dismissal could only be valid with the prior, or

exceptionally, the retroactive consent of the competent administrative

authority.

        In the second round of the labour court proceedings the

applicant's legal interest was denied on the ground that the Disabled

Persons Board had declared its prior consent and that the dismissal

must accordingly be regarded as valid.  However, that decision was

quashed by the Supreme Court on the ground that there had been no

prior consent, and thus no valid dismissal, because the Board's

decision had not become final.  In the third round of the labour court

proceedings, the applicant's legal interest was then denied on the

ground that the Provincial Governor, being the competent appeal

authority, had in the meantime given his retroactive consent to the

dismissal which therefore again had to be regarded as valid.

        In both instances, the Regional Labour Court expressly stated

that it was bound by the relevant administrative decisions.  This view

was expressly confirmed by the Supreme Court's decision of 15 July 1986

which is the final decision in this case.  It appears, moreover, that,

apart from the administrative consent, the courts did not consider any

other question which might have been of relevance for the validity of

the dismissal under civil law.

        The applicant claims that the issue of the justification of

his dismissal in general could not be brought before the courts.  The

administrative proceedings which, despite the possible review by the

Administrative Court, did not fulfil the requirements of Article 6 (Art. 6), in

fact determined all aspects relevant to the validity of this dismissal, and

left no room for a different decision of the courts.  As a consequence he was

refused a judicial decision on the dismissal, which in the circumstances of his

case was a preliminary issue in the determination of his claim in the

suspension case.

        The Government object that the decision on the preliminary

issue did not involve any decisive determination of the applicant's

civil rights.  The administrative proceedings concerned only those

aspects of the dismissal which were relevant under the Disabled

Persons (Employment) Act.  As the Commission found in its decision on

the applicant's first application No. 10247/83 those proceedings did

not determine his civil rights as there was a possibility to

challenge the dismissal subsequently before the Labour Courts where

other aspects of its validity could be discussed as well.  Moreover,

the Government submit that the courts were bound only by the fact that

administrative consent had been granted, but not by the administrative

decisions as such.

        The Commission considers that there could under special

circumstances be an issue under Article 6 para. 1 (Art. 6-1) if a court, in

reaching its decision on a civil right, was prevented by law from

investigating an essential preliminary question and if it were instead

bound by the decision of an administrative authority which did not

fulfil the requirements of a tribunal in the sense of Article 6 (Art. 6) (cf.

in such a case it could be said that, to the extent that the court was

bound by the administrative decision, there was an interference with the right

of access to court, which is implied in Article 6 para. 1 (Art. 6-1) of the

Convention (cf.  Eur.  Court H.R., Golder judgment of 21 February 1975, Series

A no. 18, paras. 26-35).

        In the light of these considerations, the Commission finds

that the applicant's above complaint raises important and complex

questions of law and fact which require an examination of the merits.

It follows that this part of the application, too, cannot be rejected

as being manifestly ill-founded.

6.      The applicant finally complains under Article 14 (Art. 14) of the

Convention that he was discriminated against as a disabled person, in

particular as regards his right of access to court under Article 6

para. 1 (Art. 6-1) of the Convention.

        The Commission notes that the legal protection of disabled

persons in matters of employment is in fact fundamentally different

from that of other employees in the Austrian legal system.  The

Commission is not called upon to carry out an abstract examination of

this question.  However, insofar as the applicant's complaint of

discrimination is related to the particular situation in the above

labour court proceedings concerning his suspension, it is so

intimately linked to the other issues that it cannot be separated from

their examination.  The Commission therefore considers that this part

of the application also raises issues which require the determination

of their merits.

        For these reasons, the Commission,

        DECLARES THE APPLICATION ADMISSIBLE

        without prejudging the merits of the case.

Deputy Secretary to the Commission       Acting President of the Commission

          (J. RAYMOND)                             (G. SPERDUTI)