AS TO THE ADMISSIBILITY OF
Application No. 23458/94
by Hotel Casino AREGUA PARANA AG
against Austria
The European Commission of Human Rights (First Chamber) sitting
in private on 6 September 1995, the following members being present:
Mr. C.L. ROZAKIS, President
Mrs. J. LIDDY
MM. E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
M.P. PELLONPÄÄ
G.B. REFFI
B. CONFORTI
N. BRATZA
I. BÉKÉS
E. KONSTANTINOV
G. RESS
A. PERENIC
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 18 October 1993
by Hotel Casino Aregua Parana AG against Austria and registered on
14 February 1994 under file No. 23458/94;
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 facts of the case, as submitted by the applicant, may be
summarised as follows.
The applicant is a company incorporated under Swiss law. Before
the Commission it is represented by Mr. F.H. Knöbl, a lawyer practising
in Vienna.
A. Particular circumstances of the case
Between 1986 and 1988 the B.Z.S.A., a company registered under
the law of Panama was engaged in a real estate development project in
Paraguay. In May 1988 the B.Z.S.A. and an Austrian bank, the M. Bank,
concluded a contract according to which the M. Bank undertook to emit
shares of the B.Z.S.A. in order to finance the Paraguay development
project. Since B.Z.S.A. had no liquid means, the M. Bank put a sum of
310.000 Canadian $ at the disposal of Mr. T.S., an Austrian lawyer and
representative of the B.Z.S.A., for organising the financing of
development project.
Subsequently the M. Bank withdrew from the financing of the
Paraguay development project by issue of shares and instituted civil
proceedings against T.S. to recover the 310.000 Canadian $ put at his
disposal. In these proceedings T.S. in the name of B.S.Z.A. invoked
a counter claim in the amount of 36.925,000 Canadian $ against the
M.Bank, as, in his view, the plaintiff was responsible for the failure
of the project and had to compensate damages caused.
On 6 November 1989 the Vienna Regional Court (Landesgericht) in
a partial judgment found against T.S. and ordered him to refund the sum
to the M. Bank but at the same time found that the counter claim for
damages was justified and reserved the determination of its amount.
As regards the counter claim for damages the Regional Court noted that
the withdrawal of the M. Bank from the financing of the project was not
sufficiently justified and therefore had caused damages to B.Z.S.A.
The fact that the representative of B.Z.S.A. had issued without the
consent of the M.Bank order forms for shares could not be regarded as
seriously destroying the mutual relationship of trust and confidence
between the parties. Moreover, the rumour that the Austrian
representative of B.Z.S.A. had been involved in the bankruptcy of a
major Austrian company had been known to the M. Bank before concluding
the contract of May 1988.
On 30 November 1990 the Vienna Court of Appeal (Oberlandes-
gericht) amended the Regional Court's decision and found against the
defendant. The Court of Appeal held that in view of the abstract
nature of the claim of the plaintiff, based on a guarantee given by the
defendant, the claim could not be set off against other possible
claims.
On 10 April 1991 the Supreme Court (Oberster Gerichtshof)
dismissed the defendant's further appeal on points of law (Revision).
On 28 June 1991 the applicant company instituted civil
proceedings before the Vienna Commercial Court (Handelsgericht) for
compensation of damages in the amount of 35,000.000 Canadian $ against
the M. Bank for breach of the contract of May 1988. The applicant
company submitted that the B.Z.S.A. had meanwhile assigned its
compensation claim to the applicant company.
On 25 February 1991 the Commercial Court granted legal aid to the
applicant company for these proceedings.
On 29 January 1992 the Commercial Court dismissed the request of
the defendant that legal aid be withdrawn. It noted that since 1990
the applicant company had no financial means and it could not be
assumed that it had acquired such means meanwhile.
On 24 April 1992 the Court of Appeal rejected the defendant's
appeal as the action has not yet been served on the defendant who
therefore was not yet a party to the proceedings.
On 24 May 1992 the defendant requested again that legal aid be
withdrawn. This request was dismissed by the Commercial Court on
10 July 1992.
On 6 November 1992 the Vienna Court of Appeal, upon an appeal
lodged by the defendant, withdrew legal aid. The Court of Appeal noted
that a requirement for granting legal aid was that the party applying
for it was indigent and examined the circumstances of the assignation
of the compensation claim from B.S.Z.A. to the applicant company. It
noted that the assignment took place without any payment by the
assignee and that at the same time the shares of the applicant company
were transferred to Mrs. B.B., who had only a modest income, no further
assets and no knowledge that she had actually become the owner of these
shares. The Court of Appeal concluded that in such circumstances the
assignment was a sham transaction its only purpose being the shift of
a claim from the interested person who would not have qualified for
legal aid to another person who met the requirements. Such a conduct,
however, constituted abuse of legal aid.
Following the withdrawal of legal aid, on 20 January 1993 the
applicant company was ordered to pay as court fees (Gerichtsgebühr) the
sum of AS 3,557.750.
On 5 February 1993 the applicant company requested that the
amount of the court fees be reduced.
On 1 March 1993 the Minister of Justice (Bundesminister für
Justiz) dismissed this request. He found that if the conditions for
granting of legal aid were not met, no reduction could be granted.
On 14 April 1993 the applicant company lodged a complaint with
the Constitutional Court (Verfassungsgerichtshof) against the
Minister's decision.
On 15 June 1993 the Constitutional Court refused to deal with the
complaint for lack of prospect of success, having regard to its
previous case-law according to which no doubts as to the
constitutionality of the system of court fees existed. This decision
was served on the applicant company on 28 June 1993.
B. Relevant domestic law
Court fees in civil proceedings are regulated by the Court Fees
Act (Gerichts- und Justizgebührengesetz). In principle court fees are
calculated on the bases of the value of the claim raised in the action
(Section 14). Specific regulations exist if the claim is not for a
monetary amount and for certain summary proceedings. The amount of
court fees for proceedings at first instance are fixed sums
corresponding to value brackets up to an amount of 1,000.000 AS and if
the value of the claim is more than 1,000.000 AS 1% of the value
(Section 32 Scheme 1). Court fees are due once the action is filed
with the court (Section 2 para. 1). In case legal aid has been granted
the plaintiff is not liable to court fees (Section 9).
If a judgment is passed the court fees are part of the costs of
the proceedings which the party who looses the law suit has to pay
according to the principles of the Code on Civil Proceedings.
COMPLAINTS
1. The applicant company complains under Article 6 para. 1 of the
Convention that the imposition of court fees which it cannot afford,
violated its right of access to court. They submit that for ordinary
civil proceedings no maximum amount for court costs is fixed while such
a maximum amount exists for lawyers fees.
2. The applicant company complains further that the imposition of
court fees for their action violated their right to property as
guaranteed by Article 1 of Protocol No. 1. It submits that if it had
had the possibility to introduce an action against the M. Bank before
Swiss courts this action would have resulted in court fees of half of
the amount charged by the Austrian courts. In the difference of the
amount between the Austrian court fees and the probable court fees in
Switzerland its right to property had been violated.
THE LAW
1. The applicant company complains under Article 6 para. 1
(Art. 6-1) of the Convention that the imposition of court fees which
it considers as excessive and which it cannot afford, violated its
right of access to court.
Article 6 para. 1 (Art. 6-1) of the Convention, so far as
relevant, provides 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."
Having regard to the nature of the claim raised by the applicant
company in the proceedings before the Vienna Commercial Court, namely
compensation for damages, the Commission finds that these proceedings
concerned the determination of the applicant company's civil rights.
Accordingly, Article 6 para. 1 (Art. 6-1) of the Convention is
applicable to these proceedings.
The Commission recalls that Article 6 para. 1 (Art. 6-1) of the
Convention embodies the right to a court, of which the right of access,
that is the right to institute proceedings before courts in civil
matters, constitutes one aspect (Eur. Court H.R., Philis judgment of
27 August 1991, Series A no. 209, p. 20, para. 59).
However, Article 6 para. 1 (Art. 6-1) of the Convention does not
debar Contracting States from making regulations, in the interest of
the good administration of justice, concerning access to courts (No.
6916/75, Dec. 8.10.76, D.R. 6 p. 107; No. 22335/93, Dec. 17.5.95,
unpublished). Moreover, the right to free legal aid in civil cases is
not as such included among the rights and freedoms guaranteed by the
Convention (No. 8158/78, Dec. 10.7.80, D.R. 21 p. 95; No. 10594/83,
Dec. 14.7.87, D.R. 52 p. 158). Free legal aid can be made dependent
on the financial situation of the litigant or the prospects of success
of the proceedings (No. 8158/78, Dec. 10.7.80, D.R. 21 p. 95; No.
10594/83, Dec. 14.7.87, D.R. 52 p. 158).
Furthermore, when the State regulates access to courts, it must
not restrict the access to such an extent that the very essence of the
right is impaired and the limitation will not be compatible with
Article 6 para. 1 (Art. 6-1) of the Convention if it does not pursue
a legitimate aim and if there is not a reasonable relationship of
proportionality between the means employed and the aim sought to be
achieved (Eur. Court H.R., Fayed judgment of 21 September 1994, Series
A no. 294-B), para. 65 .
In the present case the Court of Appeal on 6 November 1992
withdrew legal aid granted to the applicant company by the Regional
Court. It considered the applicant company's application for legal aid
abusive, after having examined the circumstances of the assignment of
the B.Z.S.A.'s compensation claim to the applicant company. It noted
that the assignment took place without any payment by the assignee and
that at the same time the shares of the applicant company were
transferred to Mrs. B.B., who had only a modest income, no further
assets and no knowledge that she had actually become the owner of these
shares. Thereupon the Austrian courts imposed court fees on the
applicant company as it was no longer eligible for legal aid. On
1 March 1993 the Minster of Justice, relying on the reasoning of the
Court of Appeal, refused to reduce on exceptional grounds the amount
of court fees due.
The Commission, having regard to the detailed reasons given by
the Court of Appeal in the above decision, does not find that its
withdrawal of legal aid was unreasonable or that this decision was
taken arbitrarily.
The Commission therefore finds that the withdrawal of legal aid
which resulted in the imposition of court costs did not, in the
particular circumstances of the present case, impair the very essence
of the applicant company's right of access to court as guaranteed by
Article 6 para. 1 (Art. 6-1) of the Convention.
It follows that this part of the application is manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
2. The applicant company complains further about a violation of its
right to property as guaranteed by Article 1 of Protocol No. 1 (P1-1)
in that the court fees which had been imposed on it by the Austrian
courts were much higher than court fees which would have been due if
it had had the possibility to bring an action before Swiss courts.
Article 1 of Protocol No. 1 (P1-1) reads as follows:
"(1) Every natural or legal person is entitled to the
peaceful enjoyment of his possessions. No one shall be
deprived of his possessions except in the public interest
and subject to the conditions provided for by law and by
the general principles of international law.
(2) The preceding provisions shall not, however, in any way
impair the right of a State to enforce such laws as it
deems necessary to control the use of property in
accordance with the general interest or to secure the
payment of taxes or other contributions or penalties."
The Commission has found in previous cases that court fees are
contributions within the meaning of paragraph 2 of this provision (No.
7544/76, Dec. 12.7.78, D.R. 14 p. 60; No. 7909/74, Dec. 12.10.78, D.R.
15 p. 160). However, in a recent case the Commission has found that
the imposition of court fees under the specific circumstances of that
particular case, as they were imposed after the underlying civil
proceedings had been terminated and involved only a very small amount,
did not come within the ambit of Article 1 of Protocol No. 1 (P1-1)
(No. 21775/93, Dec. 25.5.1995, D.R. 81-B).
In the present case, however, the Commission finds that no such
specific circumstances exist and that the present case therefore can
be distinguished from the above mentioned one. Thus, the court fees
imposed on the applicant company have to be considered as contributions
within the meaning of this provision. It is irrelevant in this context
that the filing of the applicant company's action in another State
would have possibly resulted in the imposition of lower court fees.
The Commission therefore finds that there is no appearance of a
violation of the applicant company's right to peaceful enjoyment of its
possessions by the imposition of court fees possibly higher than such
which would have been incurred in another State.
It follows that this part of the application is manifestly ill-
founded within the meaning of Article 27 para. 1 (Art. 27-1) of the
Convention.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the First Chamber President of the First Chamber
(M.F. BUQUICCHIO) (C.L. ROZAKIS)
Full & Egal Universal Law Academy