AS TO THE ADMISSIBILITY OF
Application No. 30428/96
by Gertrude BEER
against Austria
The European Commission of Human Rights (First Chamber) sitting
in private on 14 January 1998, the following members being present:
MM M.P. PELLONPÄÄ, President
N. BRATZA
E. BUSUTTIL
A. WEITZEL
C.L. ROZAKIS
Mrs J. LIDDY
MM L. LOUCAIDES
B. MARXER
B. CONFORTI
I. BÉKÉS
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
M. VILA AMIGÓ
Mrs M. HION
Mr R. NICOLINI
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 29 January 1996
by Gertrude BEER against Austria and registered on 13 March 1996 under
file No. 30428/96;
Having regard to:
- the reports provided for in Rule 47 of the Rules of Procedure of
the Commission;
- the observations submitted by the respondent Government on
20 December 1996 and the observations in reply submitted by the
applicant on 3 March 1997 ;
Having deliberated;
Decides as follows:
THE FACTS
The applicant, an Austrian citizen born in 1949 and residing in
Vienna, is a nurse. Before the Commission she is represented by
Mr. R. Armster, a lawyer practising in Maria Enzersdorf.
The facts of the case, as submitted by the parties, may be
summarised as follows.
On 2 December 1994 the applicant filed an action with the Vienna
Labour and Social Court (Arbeits- und Sozialgericht) against her
employer, the General Accident Insurance Company (Allgemeine
Unfallversicherungsanstalt). She requested the Court to order her
employer to annul her transfer from one department of the hospital
where she was working to another department.
On 15 May 1995 the Social and Labour Court granted the
applicant's action by a judgment in default (Versäumungsurteil) and
ordered the defendant to reimburse the applicant's costs of proceedings
in the amount of ATS 33,658.
On 31 May 1995 the General Accident Insurance Company filed an
appeal against the cost order (Kostenrekurs). It submitted that the
costs had not been calculated correctly under the Act on Lawyers' Fees
(Rechtsanwaltstarifgesetz) and requested a reduction of the costs to
be reimbursed to the applicant. According to the applicant, this
appeal was not transmitted to her.
On 19 July 1995 the Vienna Court of Appeal (Oberlandesgericht),
sitting in camera, granted the General Accident Insurance Company's
appeal, recalculated the costs to be reimbursed and reduced them to
ATS 14,754.
COMPLAINTS
The applicant complains under Article 6 para. 1 of the Convention
that the principle of equality of arms was violated in the proceedings
on the defendant's appeal of 31 May 1995 against the cost order as she
had not been informed of this appeal and thus had no possibility to
react thereto. She further invokes Article 13 of the Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 29 January 1996 and registered
on 13 March 1996.
On 16 October 1996 the Commission decided to communicate the
application to the respondent Government.
The Government's written observations were submitted on
20 December 1996. The applicant replied on 3 March 1997.
THE LAW
1. The applicant complains under Article 6 para. 1 (Art. 6-1) of the
Convention that the principle of equality of arms was violated in the
proceedings on the defendant's appeal of 31 May 1995 against the cost
order as she had not been informed of this appeal and thus had no
possibility to react thereto. She further invokes Article 13 (Art. 13)
of the Convention.
Article 6 para. 1 (Art. 6-1) of the Convention, insofar as
relevant, reads as follows:
"In the determination of his civil rights and obligations ...
everyone is entitled to a fair and public hearing ... by an
independent and impartial tribunal established by law. ..."
The Government submit that Article 6 para. 1 (Art. 6-1) of the
Convention is not applicable to claims for reimbursement of costs.
Under Austrian law such claims are subsidiary rights in relation to the
principal claim in civil proceedings and are governed by civil
procedural law which make them public law claims. The Government also
refer to Application No. 12446/86, Dec. 5.5.88, D.R. 56, p. 229 in
which the Commission has found that the issue of procedural costs was
a subsidiary matter which fell outside the scope of Article 6 para. 1
(Art. 6-1) of the Convention. Furthermore it should also be taken into
account that by an unilateral appeal against a cost order questions of
fact cannot be raised again on appeal. The fact that appeal
proceedings are unilateral does not constitute, therefore, a violation
of the Convention in such cases where matters of procedural law or
matters not relating to the main issue are concerned.
The applicant contests this view. In her opinion
Article 6 para. 1 (Art. 6-1) applies to proceedings relating to claims
for reimbursement of costs as such claims are pecuniary rights and the
outcome of the proceedings is directly decisive for the right in
question. It does not matter how such rights are qualified under
domestic law. Moreover, the rights on which she relied in the Austrian
courts in her labour law dispute were civil rights and the same must
be true for her claim for reimbursement of costs. The facts that she
could not react to the defendant's appeal against the cost order
violated the principle of equality of arms under Article 6 para. 1
(Art. 6-1) of the Convention.
After an examination of this issue in the light of the parties'
submissions, the Commission considers that it raises questions of fact
and law including questions concerning the applicability of Article 6
(Art. 6) of the Convention, which can only be determined by an
examination of the merits. It follows that the application cannot be
declared inadmissible as being manifestly ill-founded within the
meaning of Article 27 para. 2 (Art. 27-2) of the Convention. No other
grounds for inadmissibility have been established.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION ADMISSIBLE, without prejudging the
merits of the case.
M.F. BUQUICCHIO M.P. PELLONPÄÄ
Secretary President
to the First Chamber of the First Chamber
Full & Egal Universal Law Academy