THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 57448/00 by Dieter WINTERSBERGER against Austria

The European Court of Human Rights (Third Section), sitting on 27 May 2003 as a Chamber composed of

Mr I. Cabral Barreto , President , Mr P. Kūris , Mr R. Türmen , Mr J. Hedigan , Mrs M. Tsatsa-Nikolovska , Mrs H.S. Greve , Mrs E. Steiner , judges , and Mr M. Villiger , Deputy Section Registrar ,

Having regard to the above application lodged on 6 March 2000,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr. Dieter Wintersberger, is an Austrian national, who was born in 1938 and lives in Mödling (Austria). He is represented before the Court by Mr. P. Schmautzer, a lawyer practising in Vienna (Austria).

The facts of the case, as submitted by the parties, may be summarised as follows.

A. The circumstances of the case

Since 1977 the applicant was the director of the Central Mint Office ( Hauptmünzamt ).

On 10 May 1988 the Federal Ministry of Finance ( Bundesministerium für Finanzen ) dismissed the applicant without notice ( fristlose Entlassung ). It found that internal investigations had shown that the Ministry could no longer trust the applicant’s service as director.

On the same day the applicant was ordered to return to his former working place at the Ministry of Finance as a civil servant.

On 14 June 1988 the Vienna Disabled Person’s Office ( Landesinvalidenamt ) stated that the applicant qualified as a favoured disabled person ( begünstigter Behinderter ) pursuant to the Disabled Persons Employment Act ( Behinderteneinstellungsgesetz ) since 1 February 1988 as his work ability was reduced by 60 %.

1. The first set of civil proceedings

Subsequently, on 21 June 1988 the applicant instituted civil proceedings against the Ministry of Finance and the Münze Austria AG, the legal successor of the Central Mint Office which had to enter into all work contracts of the latter. He claimed that he had not committed any violation of his duties which could have justified the dismissal without notice. He requested the court to state that his work contract with the Ministry of Finance as director of the Central Mint Office was in force until 31 December 1988 and that the Münze Austria AG had entered into his work contract after that date.

On 3 September 1992 the Vienna Labour and Social Court ( Arbeits - und Sozialgericht ) partly allowed the applicant’s claim. It found that the dismissal without notice was unlawful and that the work contract with the Ministry of Finance was in force until 31 December 1988 but refused the second claim of the applicant. The applicant as well as the defendants filed appeals against this decision.

On 28 May 1993 the Vienna Court of Appeal ( Oberlandesgericht ) dismissed the applicant’s appeal and allowed the defendants’ appeal. It found that the dismissal without notice was lawful. The applicant filed a further appeal against this decision.

On 10 December 1993 the Supreme Court allowed the applicant’s further appeal. It found that the dismissal without notice was unlawful and stated that the applicant’s work contract with the Federal Ministry as director of the Central Mint Office was valid until 31 December 1988. Further it found that the Münze Austria AG had entered into this work contract thereafter. The contract was still in force as the dismissal without notice could not be interpreted as a valid regular dismissal on the ground that the applicant qualified as a favoured disabled person since 1 February 1988 that is a person who may not be dismissed without the consent of the Federal Social Office. However, the Ministry of Finance had not requested such an authorisation. This judgment was served on 9 March 1994.

Subsequently, the applicant instituted civil proceedings, claiming the remuneration resulting from these valid work contracts. The Ministry of Finance instituted administrative proceedings, in order to obtain a retroactive authorisation to dismiss the applicant.

2. The administrative proceedings

On 30 April 1994 the Ministry of Finance filed an application with the Disabled Persons Committee at the Federal Social Office ( Behindertenausschuss beim Bundessozialamt ) to grant a retroactive authorisation as regards the applicant’s dismissal as provided under the Disabled Persons Employment Act.

On 12 December 1994 the Federal Social Office, after having held a hearing on 31 May 1994, dismissed the Ministry of Finance’s application. The Ministry of Finance appealed against this decision and the applicant requested that the appeal be dismissed.

On 20 April 1995 the Appeals Commission at the Federal Ministry of Labour and Social Affairs ( Berufungskommission beim Bundesministerium für Arbeit und Soziales ) allowed the appeal and granted the retroactive authorisation for the applicant’s dismissal. It found that the dismissal had not been problematical from a social point of view as the applicant could return to his former post at the Ministry of Finance and had meanwhile retired. The exceptional circumstances to grant the authorisation retroactively were fulfilled as the Ministry of Finance came to know that the authorisation would be necessary after it had issued the dismissal. This decision was served on 26 June 1995.

On 6 July 1995 the applicant lodged a complaint with the Administrative Court and on 20 July 1995 with the Constitutional Court against this decision. He complained that the Appeals Commission failed to hold a hearing and that the granting of the retroactive authorisation was unlawful.

On 23 September 1996 the Constitutional Court refused to deal with the applicant’s complaint of 20 July 1995 for lack of prospects of success.

On 21 September 1999 the Administrative Court dismissed the applicant’s complaint of 6 July 1995. It considered that the authorisation for the applicant’s dismissal given by the Appeals Commission was lawful since it was not vitiated by errors of law and that the contested decision had not exceeded the discretionary power which the law conferred on the administrative authorities in this field. Moreover, it found that the Appeals Commission based its decision on facts which were stated in the Supreme Court’s decision of 10 December 1993. Thus, the applicant’s work contract with the Ministry for Finance was already terminated in 1988. This decision was served on 25 October 1999.

3. The second set of civil proceedings

On 11 March 1994 the applicant instituted civil proceedings with the Vienna Labour and Social Court claiming the remuneration resulting from the work contracts found to be valid by the Supreme Court’s decision of 10 December 1993.

On 17 June 1994 the Vienna Labour and Social Court, after having held two hearings, issued a partial decision. The defendant appealed against this decision.

On 19 April 1995 the Court of Appeal dismissed the appeal.

On 6 December 1995 the Supreme Court dismissed the appeal and confirmed the partial decision.

On 12 June 1996 the Labour and Social Court, after having held hearings on 27 February and 3 May 1996, dismissed the applicant’s claim for remuneration resulting from the work contracts. It found that meanwhile, in the administrative proceedings, the Appeals Commission had granted the retroactive authorisation of the dismissal and therefore the applicant’s dismissal in 1988 was valid. The applicant appealed against this decision.

On 7 April 1997 the Court of Appeal held a hearing and decided to suspend the civil proceedings pending the outcome of the administrative proceedings.

On 23 April 1998 the applicant instituted further civil proceedings against the Ministry of Finance to prevent prescription of his potential claims resulting from the work contracts. These proceedings were suspended as well.

The applicant submits that he did not file a request to continue the civil proceedings due to lack of prospects of success as the civil courts are bound by the administrative authorities’ decisions.

B. Relevant domestic law and practice

a) The dismissal of employees in general

As a general rule the dismissal of employees is governed in principle by section 105 of the Industrial Relations Act ( Arbeitsverfassungsgesetz ). This provision enables a dismissed employee to institute civil proceedings to dispute the dismissal. A labour and social court has to examine whether or not a dismissal was justified from a social point of view.

b) The dismissal of favoured disabled persons

If an employer wants to dismiss a favoured disabled person pursuant to Article 2 of the Disabled Persons Employment Act ( Behinderteneinstellungsgesetz ) Article 8 of that act must be complied with. Pursuant to this provision the employer is required to file an application with the Disabled Persons Committee ( Behindertenausschuss ) to grant an authorisation for a dismissal. In exceptional circumstances this authorisation may be granted retroactively. The procedure before the Disabled Persons Committee and, on appeal, before the Appeals Commission at the Federal Ministry of Labour and Social Affairs ( Berufungskommission ) is governed by the Code of General Administrative Procedure ( Allgemeines Verwaltungsverfahrensgesetz ).

The Appeals Commission was established in 1992, after the Court held in the Obermeier v. Austria judgment of 28 June 1990 (Series A no. 179, pp. 22, § 70) that the decisions of the administrative authorities were not delivered in conformity with the requirements of Article 6. In the Appeals Commission a judge, acting as president, is joined by four lay assessors. The members of the Appeals Commission, who may not be members of the Disabled Persons Committee at the same time, are nominated by the Minister of Justice for a period of five years, which is renewable. The Appeals Commission is classified as a board whose members include judges ( Kollegialbehörden mit richterlichem Einschlag ) pursuant to Article 20 § 2 and Article 133 § 4 of the Federal Constitution ( Bundesverfassungsgesetz ) and its members are therefore independent and must not receive instructions. If the Appeals Commission has to clarify questions of facts it has to hold a public hearing.

In sum, these authorities have to examine whether there are facts which justify a dismissal from a social point of view, which process requires a more far-reaching examination than that provided for under section 105 §§ 2 to 6 of the Industrial Relations Act.

The Appeals Commission’s decisions may be the subject of an appeal to the Administrative Court as well as to the Constitutional Court.

c) Section 91 of the Courts Act

Section 91 of the Courts Act ( Gerichtsorganisationsgesetz ), which has been in force since 1 January 1990, provides as follows.

"(1) If a court is dilatory in taking any procedural step, such as announcing or holding a hearing, obtaining an expert’s report, or preparing a decision, any party may submit a request to this court for the superior court to impose an appropriate time-limit for the taking of the particular procedural step; unless sub-section (2) of this section applies, the court is required to submit the request to the superior court, together with its comments, forthwith.

  (2) If the court takes all the procedural steps specified in the request within four weeks after receipt, and so informs the party concerned, the request is deemed withdrawn unless the party declares within two weeks after service of the notification that it wishes to maintain its request.

  (3) The request referred to in sub-section (1) shall be determined with special expedition by a chamber of the superior court consisting of three professional judges, one of whom shall preside; if the court has not been dilatory, the request shall be dismissed. This decision is not subject to appeal."

COMPLAINTS

The applicant complains under Article 6 of the Convention about the length of the proceedings.

Further he complains that he has been refused access to a court which could have determined the lawfulness of his dismissal as the civil courts were bound by the administrative decisions. He relies on Article 6 and 13 of the Convention.

Further he alleges that he was discriminated against as a retroactive authorisation for a dismissal was provided for only in proceedings relating to favoured disabled persons. Finally, he alleges that the real motivation leading to his dismissal lay in organisational modifications in the Ministry of Finance and that his person did not fit anymore into these plans of the Ministry. He concludes that the administrative authorities had only agreed to his dismissal as the Republic of Austria had been his employer. He relies on Article 14 of the Convention.

THE LAW

1. The applicant complains under Article 6 § 1 about the length of the proceedings relating to his dismissal and about a lack of access to court. He also relies on Article 13. Article 6 § 1, so far as relevant, provides as follows:

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing within a reasonable time by an independent and impartial tribunal established by law.”

Article 13 states:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

a. As to the applicability of Article 6 § 1 of the Convention the Court reiterates that in the case of Pellegrin v. France ([GC] no. 28541/95, § 66, ECHR 1999-II), the Court found that the only disputes excluded from Article 6 § 1 are those which are raised by public servants “whose duties typify the specific activities of the public service in so far as the latter is acting as the depository of public authority responsible for protecting the general interests of the State or other public authorities”. In the present case, the applicant was the director of the Central Mint Office which was responsible for the production of coins. However, this office was not wielding “a portion of the State’s sovereign power” and therefore there is no reason to exclude the dispute at issue from the ambit of Article 6 § 1 of the Convention.

b. The applicant’s first complaint relates to the length of the proceedings. The Government contend that the first set of civil proceedings was not related to the following proceedings. However, they point out, if the Court finds that the length of the three proceedings has to be considered together, that the applicant failed to exhaust domestic remedies as he did not make an application under Section 91 of the Courts Act during the first set of the civil proceedings. In the Government’s view such an application is an effective remedy as its use would have reduced the length of the proceedings and that this remedy was available to the applicant for more than two years. Also the second set of the civil proceedings may not be included in the Court’s assessment concerning the length of the proceedings as the applicant failed to request to continue these proceedings. In general the Government contend that the proceedings were of some complexity, that they were conducted expeditiously and point out that there had been no unacceptable procedural delay.

The applicant contests these submissions and replies that all the proceedings at issue have to be considered together as they determined the lawfulness of his dismissal.

The Court observes that the subject-matter of all three sets of proceedings at issue was the lawfulness of the applicant’s dismissal and that the set of administrative proceedings and the second set of the civil proceedings had been the direct outcome of the first set of the proceedings. It, therefore, finds that the proceedings have to be considered together.

As to the Government’s allegation that the applicant failed to exhaust domestic remedies, the Court reiterates its finding that a request under Section 91 of the Austrian Courts Act is, in principle, an effective remedy which has to be used in respect of complaints about the length of court proceedings ( Holzinger v. Austria (no. 1) , no. 23459/94, §§ 24-25, ECHR 2001-I). It stated, however, that the effectiveness of such a remedy may depend on whether it has a significant effect on the length of the proceedings as a whole (ibid., § 22).

In the present case, the first set of civil proceedings was pending from 21 June 1998 until 9 March 1994. Section 91 of the Courts Act only entered into force on 1 January 1990. It was from that moment on until 3 September 1992 when the Vienna Labour Court took its first instance decision, that the applicant could have made use of an application under this provision. Before that period, however, the proceedings had already lasted for some one and a half years. Moreover, following termination of the civil proceedings the administrative proceedings lasted five and a half years between 30 April 1994 and 25 October 1999, and the Government have not claimed that the applicant had a remedy to speed up the administrative proceedings. It follows that the periods during which the applicant had no remedy at his disposal against unreasonable delay were substantial. Accordingly, in the particular circumstances of the present case, a request under Section 91 of the Courts Act cannot be considered as an effective remedy (see Holzinger v. Austria (no. 2), no. 28898/95, §§ 21-22, 30 January 2001). The Government’s preliminary objection on non-exhaustion must therefore be dismissed.

The Court considers, in the light of the criteria established in its case-law on the question of “reasonable time” (the complexity of the case, the applicant’s conduct and that of the competent authorities), and having regard to all the information in its possession, that an examination of the merits of this complaint is required.

The Court concludes therefore that this complaint is not manifestly ill ‑ founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

c. The applicant further complains under Article 6 and 13 that he had no access to court as the civil courts had no power to rule on the lawfulness of the dismissal as they would have been bound by the decisions of the administrative authorities which cannot be regarded as independent tribunals within the meaning of Article 6 § 1 of the Convention.

The Court observes that, following the Administrative Court’s decision of 12 September 1999, the applicant did not pursue the civil court proceedings concerning his claim for payment resulting from his contract of employment, in which the lawfulness of his dismissal was a preliminary question. However, the Court does not consider it necessary to determine whether the requirement as to the exhaustion of domestic remedies has been complied with as this part of the application is, in any event, inadmissible for the following reasons.

The Court reiterates that a "tribunal" is characterised in the substantive sense of the term by its judicial function, that is to say determining matters within its competence on the basis of rules of law and after proceedings conducted in a prescribed manner. It must also satisfy a series of further requirements - independence, in particular of the executive; impartiality; duration of its members’ terms of office; guarantees afforded by its procedure - several of which appear in the text of Article 6 § 1 itself ( Belilos v. Switzerland judgment of 29 April 1988, Series A no. 132, p. 29, § 64).

In the above mentioned Obermeier case (ibid., § 70) the Court found a violation of the right of access to court as the civil courts considered themselves bound by the decision of the administrative authorities, none of which qualified as a tribunal. Following the Obermeier judgment , the Disabled Persons Employment Act was amended. In the present case the Appeals Commission at the Federal Ministry for Labour and Social Affairs had to decide on the applicant’s appeal. The Appeals Commission is composed of a judge and four lay assessors who are appointed by the Federal Ministry for Justice for a renewable period of five years and may only be recalled, if they do not anymore fulfil the professional requirements to be appointed or if they violate or neglect their official duties (see also the Committee of Ministers’ Resolution DH (92)51 of 17 September 1992 concerning the Obermeier case). In fulfilling their tasks the members of the Appeals Commission are independent and not bound by any instructions. The Court, thus, finds that the Appeals Commission qualifies as a tribunal within the meaning of Article 6 of the Convention (see for instance Baischer v. Austria , no. 32381/96, §§ 23-25, 20 December 2001, unreported). The applicant failed to submit any arguments to the contrary.

Finally, having regard to the above considerations, the Court finds that these allegations do not raise an issue under Article 13 of the Convention.

It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected in accordance with Article 35 § 4.

2. Finally, the applicant complains that the proceedings at issue amounted to discrimination. He relies on Article 14 of the Convention. which in so far as relevant provides:

“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

a. The applicant submits that he suffered discrimination as against non ‑ disabled employees because a retroactive authorisation for a dismissal was provided for only in proceedings relating to favoured disabled persons.

The Court finds that the complaint under Article 14 has to be considered in conjunction with Article 6 of the Convention. Referring to its above considerations, the Court does not consider it necessary to determine whether the requirement as to the exhaustion of domestic remedies has been complied with as this part of the application is, in any event, inadmissible for the following reasons.

The Court observes that the Disabled Persons Employment Act provides protection for favoured disabled persons, as for the validity of a dismissal, an authorisation by the Disabled Persons Committee is required. In exceptional circumstances such an authorisation may be retroactively granted. In particular these circumstances are given if the employer did not know at the time of the dismissal, that such an authorisation would have been required.

The Court concludes that for non-disabled employees a dismissal is valid without such authorisation and therefore it finds that the positive discrimination of favoured disabled persons legitimates the exceptional possibility of a retroactive authorisation. The Court finds that there is no appearance of a violation of the applicant’s rights under Article 14 of the Convention taken together with Article 6.

b. Further, the applicant complains that the authorisation for his dismissal was only granted as he had been an employee of the Republic of Austria.

The Court observes that the applicant did not substantiate this complaint and finds that there is no appearance of a violation of the applicant’s rights under the Convention in this respect.

It follows that these parts of the application are manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares admissible, without prejudging the merits, the applicant’s complaints concerning the length of the proceedings ;

Declares the remainder of the application inadmissible.

Mark Villiger I reneu Cabral Barreto              Deputy Section Registrar President