AS TO THE ADMISSIBILITY OF
Application No. 20781/92
by Franz Otto ACKERL, Franz ACKERL jun.,
Ernst GRÖTZBACH, Marlies GLAWISCHNIG,
Günter SCHWALM, Gerhard KLEIN,
Einar SLADECEK, and Herbert LIMBERGER
against Austria
The European Commission of Human Rights (First Chamber) sitting
in private on 29 June 1994, the following members being present:
MM. A. WEITZEL, President
C.L. ROZAKIS
F. ERMACORA
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
Mrs. J. LIDDY
MM. M.P. PELLONPÄÄ
B. MARXER
G.B. REFFI
B. CONFORTI
N. BRATZA
I. BÉKÉS
E. KONSTANTINOV
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 25 October 1991
by Franz Otto ACKERL and others against Austria and registered on
8 October 1992 under file No. 20781/92;
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 applicants are all Austrian citizens and are all judges at
the Vienna Labour and Social Court (Arbeits und Sozialgericht). With
the exception of Mr. Grötzbach, they are all represented by Mr.
Otto Ackerl, a lawyer practising in Vienna. Mr. Grötzbach is
represented by Mr. Adalbert Laimer, also a lawyer practising in Vienna.
It follows from their statements and the documents submitted that
the applicants contested that they were obliged under certain
circumstances to take over the functions of other judges without
receiving supplementary remuneration.
These requests were rejected by the Vienna Court of Appeal
(Oberlandesgericht) on 27 August 1990.
An appeal was rejected by the Ministry of Justice on
13 March 1991 insofar as the applicants had complained about the
obligation to take over the functions of other judges. The Ministry
stated in its decision that according to Section 68 of the Act on
Judges' Duties (RDG), judges have no claim to supplementary payment if
their work-load requires them to work overtime.
The applicants then lodged an action with the Administrative
Court (Verwaltungsgerichtshof) alleging that their obligation to
represent other judges in instances of sickness, leave and other
reasons amounted to forced labour, if and as long as the additional
work was not adequately remunerated.
The Administrative Court dismissed the action on 21 October 1991.
The decisions were served on the applicants on 21 November 1991.
The Constitutional complaint was not admitted by the
Constitutional Court (Verfassungsgerichtshof). It dismissed the
complaints on 17 June 1991.
COMPLAINTS
The applicants submit that the Court is understaffed and
consequently the delays in dealing with pending matters are
substantial. They point out that according to a report by the Ministry
of Justice, some 20 posts for judges were needed in Vienna.
Furthermore, they submit that between 1989 and 1991, one or two judges
were continuously and for long periods prevented from carrying out
their functions and had to be replaced by the other judges. They point
out that in Labour and Social Court disputes special diligence is
required under Article 6 of the Convention and consider that the
Austrian Government is obliged to take measures in order to guarantee
the smooth running of the judicial system and an adequate distribution
of the work-load among judges as well as adequate remuneration in the
case of a work-load increase.
They allege violations of Articles 4 and 6 of the Convention.
THE LAW
1. The applicants have first invoked Article 4 para. 2
(Art. 4-2) of the Convention which prohibits "forced or compulsory
labour".
The first of these adjectives implies physical or mental
constraint, a factor which is absent in the present case.
As regards the second adjective, it does not, according to the
jurisprudence of the European Court of Human Rights, refer just to any
form of legal compulsion or obligation. Work to be carried out in
pursuance of freely negotiated or accepted terms of employment cannot,
according to the Court, be regarded as falling within the scope of
Article 4 (Art. 4) on the sole ground that one of the parties has
undertaken with the other to carry out that work and will be subject
to sanctions if he or she does not honour his promise (cf. Eur. Court
H.R., Van der Mussele judgment of 23 November 1993, Series A no. 70,
p. 17, para. 34).
The applicants have freely entered public civil service as judges
and thus accepted the conditions of their work. In any event the
applicants have not shown that their individual work-load has increased
to such an excessive extent that the obligation to carry it out would
have to be considered as "unjust" or "oppressive" or that its
performance would constitute "an avoidable hardship".
It follows that there is no appearance of a violation of
Article 4 (Art. 4) of the Convention and this complaint has therefore
to be rejected as being manifestly ill-founded within the meaning of
Article 27 para. 2 (Art. 27-2) of the Convention.
2. Insofar as the applicants rely on Article 6 (Art. 6) of the
Convention, arguing that in order to comply with the "reasonable time
requirement" the number of judges in the Vienna Social Courts would
have to be considerably increased, the Commission recalls that, under
Article 25 (Art. 25) of the Convention, it is only the alleged victim
of a violation of Convention rights who is entitled to bring
application proceedings. The applicants cannot themselves claim to be
victims of lengthy proceedings and consequently this complaint has to
be rejected in accordance with Article 27 para. 2 (Art. 27-2) of the
Convention as being incompatible with the provisions of the Convention
ratione personae.
For these reasons, the Commission unanimously
DECLARES THE APPLICATION INADMISSIBLE
Secretary to the First Chamber President of the First Chamber
(M.F. BUQUICCHIO) (A. WEITZEL)
Full & Egal Universal Law Academy