EUROPEAN COMMISSION OF HUMAN RIGHTS
FIRST CHAMBER
Application No. 22351/93
Erich Fenzel and Ernst Köllner
against
Austria
REPORT OF THE COMMISSION
(adopted on 15 January 1997)
TABLE OF CONTENTS
Page
INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
PART I : STATEMENT OF THE FACTS . . . . . . . . . . . . . . . . . 3
PART II : SOLUTION REACHED . . . . . . . . . . . . . . . . . . . . 4
INTRODUCTION
1. This Report relates to the application introduced under
Article 25 of the European Convention for the Protection of Human
Rights and Fundamental Freedoms by Erich Fenzel and Ernst Köllner
against Austria on 8 April 1993. It was registered on 27 July 1993
under file No. 22351/93.
2. The applicants were represented by Dr. G. Grießer, a lawyer
practising in Vienna.
3. The Government of Austria were represented by their Agent,
Ambassador F. Cede, Head of the International Law Department at the
Federal Ministry of Foreign Affairs.
4. On 15 May 1996 the Commission (First Chamber) declared the
application partially admissible insofar as it concerns the
applicants' complaint that they were not heard as regards the
permission to terminate their contracts of employment under SS. 20 b
and c of the Composition with Creditors Act. It then proceeded to
carry out its task under Article 28 para. 1 of the Convention which
provides as follows:
"In the event of the Commission accepting a petition referred to
it:
a. it shall, with a view to ascertaining the facts, undertake
together with the representatives of the parties an examination
of the petition and, if need be, an investigation, for the
effective conduct of which the States concerned shall furnish all
necessary facilities, after an exchange of views with the
Commission;
b. it shall at the same time place itself at the disposal of
the parties concerned with a view to securing a friendly
settlement of the matter on the basis of respect for Human Rights
as defined in this Convention."
5. The Commission (First Chamber) found that the parties had reached
a friendly settlement of the case and on 15 January 1997 it adopted
this Report, which, in accordance with Article 28 para. 2 of the
Convention, is confined to a brief statement of the facts and of the
solution reached.
6. The following members were present when the Report was adopted:
Mrs. J. LIDDY, President
MM. E. BUSUTTIL
L. LOUCAIDES
B. MARXER
B. CONFORTI
N. BRATZA
I. BÉKÉS
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
M. VILA AMIGÓ
Mrs. M. HION
PART I
STATEMENT OF THE FACTS
7. The applicants are both Austrian citizens, born in 1944 and 1937,
respectively, and resident in Vienna.
8. In the context of composition with creditors proceedings, the
applicants' employer company requested the Vienna Commercial Court
(Handelsgericht) for permission to terminate their contracts of
employment under SS. 20 b and c of the Composition with Creditors Act
(Ausgleichsordnung). These provisions, in the version which was in
force at the time of the relevant facts, allowed the court, without
being obliged to hear the persons concerned, to grant a debtor
permission to terminate contracts of employment. The debtor had to
respect the period of notice (Kündigungsfrist) provided for in a law
or in collective agreement, but was not bound by a longer period of
notice which might have been agreed upon in a specific contract.
9. On 25 January 1990 the Vienna Commercial Court, without hearing
the applicants, granted their employer company permission to terminate
their contracts of employment in accordance with SS. 20 b and c of the
Composition with Creditors Act.
10. On 31 January 1990 the employer company, referring to the
Commercial Court's permission, gave the applicants' notice of the
termination of their contracts of employment with effect from
30 June 1990.
11. On 31 January 1991 the Vienna Labour and Social Court (Arbeits-
und Sozialgericht), in proceedings under the Insolvency Continued
Payment Act (Insolvenz-Entgeltsicherungsgesetz) found that the period
of notice provided for by law was three months in case of the first and
two months in case of the second applicant. A longer period of notice,
namely five months, which had formed part of their contracts could be
disregarded by their employer. Although the employer company had only
dismissed them with effect of 30 June 1990, it could have dismissed the
first applicant with effect of 30 April and the second applicant with
effect of 31 March 1990. As the Insolvency Continued Payment Act only
provided payment until the end of the period of notice provided for by
law, they were only entitled to payment until 30 April and
31 March 1990, respectively. The applicant's appeals were dismissed by
the Vienna Court of Appeal (Oberlandesgericht) and, finally, by the
Supreme Court (Oberster Gerichtshof).
12. Before the Commission, the applicants complained under Article 6
of the Convention that they were not heard by the Vienna Commercial
Court prior to its decision of 25 January 1990. They considered that
this decision directly affected their civil rights in that their claims
relating to their employment were reduced. In particular their employer
was allowed to disregard the period of notice provided for in their
contracts and they were not fully compensated under the Insolvency
Continued Payment Act. Further the applicants complained under
Article 4 of the Convention and under Article 1 of Protocol No. 1 alone
and in combination with Article 14 of the Convention.
PART II
SOLUTION REACHED
13. Following the decision on the admissibility of the application,
the Commission (First Chamber) placed itself at the disposal of the
parties with a view to securing a friendly settlement in accordance
with Article 28 para. 1 (b) of the Convention and invited the parties
to submit any proposals they wished to make.
14. In accordance with the usual practice, the Chamber Secretary,
acting on the Commission's instructions, contacted the parties to
explore the possibilities of reaching a friendly settlement.
15. By letters of 18 November 1996 and 21 November 1996,
respectively, the applicants and the respondent Government informed the
Commission that they had agreed on the terms of a friendly settlement,
and submitted the following declaration.
"Statements of the parties with a view to a friendly settlement
With reference to Article 28 para. 1 (b) of the European
Convention for the Protection of Human Rights and Fundamental Freedoms,
the parties in the proceedings concerning Application No. 22351/93
lodged by Erich Fenzel and Ernst Köllner, declare with a view to a
friendly settlement, reached with the assistance of the European
Commission of Human Rights, as follows:
1. The Government of the Republic of Austria will pay the
applicants a sum amounting to altogether AS 40,000 as
compensation in respect of any possible claims relating to the
present application. This sum is composed of an amount of AS
10,000 for each of the two applicants and an amount of AS 20,000
in respect of the counsel's fees and expenses incurred in the
proceedings before the Commission.
This amount will be paid to the applicant's counsel,
Mr. G. Grießer in Vienna.
2. The applicants declare their application settled.
3. The applicants waive any further claims against the
Republic of Austria relating to the present application."
"Erklärungen der Parteien zur gütlichen Regelung
In der Beschwerdesache Nr. 22351/93 der Herrn Erich Fenzel und
Ernst Köllner einigen sich die Parteien under Bezugnahme auf Artikel 28
Abs. 1 lit b der Europäischen Konvention zum Schutze der Menschenrechte
und Grundfreiheiten und unter Mitwirkung der Europäischen Kommission
für Menschenrechte auf die nachstehende gütliche Regelung:
1. Die österreichische Regierung zahlt den Beschwerdeführern
als Ausgleich für sämtliche etwaige Ansprüche im Zusammenhang mit
der vorliegenden Beschwerde einen Gesamtbetrag von öS 40,000.
Dieser Betrag setzt sich zusammen aus einem Betrag von öS 10,000
für jeden der zwei Beschwerdeführer und einem Betrag von
öS 20,000 hinsichtlich der Gebühren und Auslagen, die im Rahmen
des Verfahrens vor der Kommission entstanden sind.
Dieser Betrag wird an den Verfahrensbevollmächtigten der
Beschwerdeführer Herrn Rechtsanwalt Dr. Georg Griesser in Wien
überwiesen.
2. Die Beschwerdeführer erklären ihre oben genannte Beschwerde
als erledigt.
3. Die Beschwerdeführer verzichten auf die Geltendmachung
allfälliger weiterer Forderungen gegen die Republik Österreich
im Zusammenhang mit dem der Beschwerde zugrundeliegenden
Sachverhalt."
16. At its session on 15 January 1997, the Commission noted that the
parties had reached an agreement regarding the terms of a settlement.
It further considered, having regard to Article 28 para. 1 (b) of the
Convention, that the friendly settlement of the case had been secured
on the basis of respect for Human Rights as defined in the Convention.
17. For these reasons, the Commission adopted the present Report.
M.F. BUQUICCHIO J. LIDDY
Secretary President
to the First Chamber of the First Chamber