AS TO THE ADMISSIBILITY OF
Application No. 21317/93
by A.W.
against Austria
The European Commission of Human Rights (First Chamber) sitting
in private on 11 May 1993, the following members being present:
MM. J.A. FROWEIN, President of the First Chamber
F. ERMACORA
G. SPERDUTI
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
Sir Basil HALL
Mr. C.L. ROZAKIS
Mrs. J. LIDDY
MM. M. PELLONPÄÄ
G.B. REFFI
Mrs. M.F. BUQUICCHIO, Secretary to the First 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 28 December 1992
by A.W. against Austria and registered on 3 February 1993 under file
No. 21317/93;
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 applicant is an Austrian citizen living in O. She is
represented by Mr. J. Hippacher, a lawyer practising in Lienz. It
follows from her statements and the documents submitted that in
September 1985, the applicant, as the owner of a hotel in Oberlienz,
was requested by the Tyrolian Social Insurance Authorities
(Gebietskrankenkasse) to pay contributions in the amount of some
AS 240,000. It was stated in the order that according to an audit the
correct amount of wages upon which contributions were due had been
concealed in 32 cases.
On 16 August 1990 the Tyrolian Regional Authorities, (Tiroler
Landesregierung) rejected the applicant's request for the repayment of
certain sums which she had been ordered to pay to the Social Security
Authorities as a guarantee (Sicherheitszahlung) for arrears of
contribution payments. It is stated in the decision that the Social
Security Authorities had informed the applicant that her request would
have to be addressed to the Federal Ministry for Labour and Social
Affairs. Furthermore, she had been informed that sums of money claimed
by her were not to be considered as a security deposit. Rather they
had been paid in compliance with her obligations, i.e. in fulfilment
of payments due by her. It is further stated that the applicant's
appeals against payment orders of the Social Security Authorities were
still pending. Therefore it could not now be decided whether or not
the applicant did have any claims for repayment.
The applicant then lodged a constitutional complaint.
By letter of 23 October 1990, the Constitutional Court
(Verfassungsgerichtshof) informed the applicant's Counsel,
Mr. Hippacher, that the brief containing the constitutional complaint
was incomplete as certain annexes were missing.
By letter of 29 October 1990 the applicant's Counsel submitted
further documents to the Constitutional Court.
On 27 November 1990 the Constitutional Court rejected the
constitutional complaint as being inadmissible. It is stated in the
decision that the applicant had not complied with the Court's request
to submit the missing documents as she had sent copies of the decision
complained of but not copies of nine further annexes which were
necessary, namely certain accounts sheets (Berechnungsblätter).
The applicant then addressed a request to the Constitutional
Court in order to be granted leave to appeal out of time in accordance
with Section 146 of the Code on Civil Proceedings (Zivilprozessordnung)
in connection with Section 35 of the Constitutional Court Act (VerfG)
which provides for a subsidiary application of the Code of Civil
Proceedings. The applicant argued that her Counsel had not been
informed in a sufficient manner by the Constitutional Court which
annexes exactly were missing. In any event the fact that certain
annexes were eventually still missing was due to an excusable technical
error in that an employee of applicant's Counsel had inadvertently
failed to photocopy two pages of the documents which were to be sent
to the Constitutional Court. Furthermore, the missing documents were
of no relevance as they did not relate to her complaints.
On 22 June 1992 the Constitutional Court rejected the applicant's
request for reinstatement. The Court stated that the requirements set
out in the legal provisions invoked by the applicant in order to be granted
leave to appeal out of time were not given. In addition, it is
stated that even if the missing documents were of no importance with regard
to the decision on the merits of the applicant's complaints there was no
reason to grant reinstatement as at the admissibility stage of the
proceedings the Court only had to examine whether the formal requirements
were fulfilled. The requirement for a complainant to submit sufficient
copies of all annexes referred to in his complaint, inter alia served the
purpose to enable the Court to send a complete set of copies to the other
parties involved. Therefore it did not matter whether or not annexes were
relevant for a decision on the merits.
COMPLAINTS
The applicant complains that her request for reinstatement was wrongly
dismissed by the Constitutional Court in violation of Article 6 of the
Convention.
She also complains of the proceedings relating to the dispute with the
Social Security Authorities concerning alleged arrears on contribution
payments.
THE LAW
The applicant invokes Article 6 (Art. 6) of the Convention with
respect to proceedings before the Austrian Constitutional Court which
rejected her constitutional complaint as being inadmissible.
However, even assuming that Article 6 (Art. 6) applies to the
proceedings in question the Commission notes that the applicant's counsel
had been requested by the Constitutional Court to submit a certain number
of documents. Indisputably this court order was not fully complied with.
A request to be granted restitutio in integrum, i.e. leave to submit out of
time copies of the missing documents was rejected on the grounds that at
the admissibility stage the court only had to examine whether formal
requirements were fulfilled and no right to reinstatement was given if that
was not the case. The Commission is not competent to examine whether this
decision is based on errors of law or fact unless such errors reveal a
violation of Convention rights. It cannot, however, be found that the
interpretation by the Austrian Constitutional Court of the rules governing
restitutio in integrum were arbitrary and amounted to a denial of justice
that would be contrary to Article 6 (Art. 6) of the Convention, if that
provision were at all applicable.
It follows that the application is in any event manifestly ill-founded
within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
Insofar as the applicant complains of the proceedings before the
administrative authorities, and again assuming that Article 6 (Art. 6) of
the Convention applies and that domestic remedies are exhausted, it can
likewise not be found that the applicant's submissions disclose any
appearance of a violation of the Convention and in particular the Article
in question.
For these reasons, the Commission unanimously
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the First Chamber President of the First Chamber
(M.F. BUQUICCHIO) (J.A. FROWEIN)
Full & Egal Universal Law Academy