AS TO THE ADMISSIBILITY OF
Application No. 27951/95
by Burkhard HIRN
against Austria
The European Commission of Human Rights (First Chamber) sitting
in private on 27 February 1997, the following members being present:
Mrs. J. LIDDY, President
MM. M.P. PELLONPÄÄ
E. BUSUTTIL
A. WEITZEL
C.L. ROZAKIS
L. LOUCAIDES
B. CONFORTI
N. BRATZA
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 22 May 1995 by
Burkhard HIRN against Austria and registered on 24 July 1995 under file
No. 27951/95;
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
17 April 1996 and the observations in reply submitted by the applicant
on 12 July 1996;
Having deliberated;
Decides as follows:
THE FACTS
The applicant, an Austrian citizen born in 1947, resides in
Feldkirch (Austria). He is a lawyer by profession.
A. Particular circumstances of the case
The facts of the case, as they have been submitted by the
parties, may be summarised as follows.
On 18 March 1994 the applicant filed with the Bludenz District
Court (Bezirksgericht) a civil action in summary proceedings
(Mahnklage) against P.H. claiming an amount of 1800 AS for services
rendered. In the form the applicant used for filing the action, he put
his name in the area marked "plaintiff" (Kläger) while he put his and
his associate's name in the area marked "counsel for plaintiff"
(Klagevertreter).
Following an objection (Einspruch) raised by P.H., the District
Court instituted ordinary proceedings and summoned the applicant on
17 May 1994 for a hearing on 15 June 1994, which, according to the
summons, should have lasted from 10.45 a.m. to 11.30 a.m.
On 30 May 1994 the District Court informed the applicant that the
hearing was postponed to 13 July 1994 and informed him that the hearing
should last from 11.30 a.m. to 12.15 a.m.
On 7 July 1994 the applicant submitted a written statement to the
District Court in which he argued further his claim against P.H. and
proposed that the court hear him personally as means of evidence
(Parteienvernehmung).
On 13 July 1994 the hearing took place before the District Court.
The applicant did not attend the hearing but was represented by Mr. D.,
a junior lawyer (Rechtsanwaltsanwärter). The District Court decided
to take evidence by examining documents and by hearing the parties.
The District Court heard the defendant P.H. and inspected the file of
P.H.'s divorce proceedings to which the applicant's claim related.
Thereupon the applicant's representative requested the District Court
to adjourn the hearing for submitting documents and to hear the
applicant personally. The District Court refused to grant an
adjournment. It found that the applicant had duly been summoned for
the hearing but had not appeared and had not given valid reasons for
not doing so. Subsequently the District Court pronounced judgment and
dismissed the applicant's claim.
On 7 September 1994 the applicant appealed. He submitted that
he had not been summoned correctly for the hearing since from the
summons served on him it had not been clear that the District Court had
had the intention to hear him as a party. The District Court had used
form no. A 4 (Formblatt A 4) by which the addressee is summoned as
representative of the plaintiff (Klagevertreter). If the District
Court had had the intention to summon him as a party it should have
used form no. C 1 (Formblatt C 1) which expressly mentions that the
plaintiff would be heard as a party and had to appear in person. His
right to be heard by the court had therefore been violated.
On 21 October 1994 the Feldkirch Regional Court (Landesgericht)
dismissed the applicant's appeal. It found that the applicant had not
been properly summoned to the court hearing because the District Court
had used the wrong form. However he had been aware of the hearing and
had been represented therein. The District Court's failure to hear him
as a party was therefore a procedural mistake (Verfahrensmangel) but
did not constitute a ground of nullity (Nichtigkeitsgrund). The ground
of nullity provided for in Section 477 para. 1 (4) of the Code of Civil
Procedure (Zivilprozeßordnung), namely that a party had been unlawfully
excluded from the proceedings, was only met if the participation in the
proceedings had been made "impossible" for the party but not, as in the
present case, if it only had been rendered "difficult". Since the
applicant's claim did not exceed the value of 15.000 AS he could only
rely on grounds of nullity. The Regional Court also noted that no
further appeal lay against this decision. This decision was served on
the applicant on 30 November 1994.
On 7 December 1994 the applicant lodged an extraordinary appeal
on points of law (außerordentlicher Revisionsrekurs) to the Supreme
Court (Oberster Gerichtshof).
On 12 December 1994 the Bludenz District Court rejected the
extraordinary appeal as inadmissible. It found that no further appeal
lay against the Regional Court's decision. On 2 January 1995 the
applicant appealed.
On 13 January 1995 the Regional Court confirmed the District
Court's decision of 12 December 1994.
Meanwhile, on 2 January 1995, the applicant had introduced an
action for nullity (Nichtigkeitsklage) under Section 529 of the Code
of Civil Procedure against the District Court's judgment of
13 July 1994 and the Feldkirch Regional Court's appeal decision of
21 October 1994. He submitted that in the proceedings at issue he had
not been properly heard by the court.
Under Section 529 of the Code of Civil Procedure an action for
nullity may be introduced against a judgment which has become final if
a judge excluded by law has decided the case or if the party has not
been present or represented in the proceedings. A party is, however,
prevented from introducing an action for nullity if the ground of
nullity has already been unsuccessfully raised in appeal proceedings.
On 10 January 1995 the Feldkirch Regional Court rejected the
applicant's action for nullity as inadmissible. It found that in his
action the applicant relied on the argument that he had not been heard
in the proceedings at issue. However, he had raised this ground of
nullity without success already in the previous proceedings. He was
therefore barred from filing an action for nullity based on the same
ground. His action had therefore to be rejected as inadmissible.
On 25 January 1995 the applicant appealed.
On 6 April 1995 the Supreme Court dismissed the applicant's
appeal against the Regional Court's decision of 10 January 1995. It
found that the Regional Court had acted correctly when rejecting the
applicant's action for nullity.
B. Relevant domestic law
Section 146 of the Code of Civil Procedure provides for an
application for proceedings to be reinstituted (Wiedereinsetzung in den
vorigen Stand) by a party who had failed to appear in time at a court
hearing or had failed to take a procedural step in time for which a
time-limit has been set. Reinstitution of the proceedings requires
that the person requesting it has been prevented from taking the
procedural step by an unforeseeable or insurmountable obstacle.
Reinstitution of the proceedings has also to be granted if the failure
was the party's own fault, provided that there was only a slight
degree of negligence. A request for proceedings to be reinstituted
cannot be based on reasons which the court had already found to be
insufficient for granting an extension of a time limit or an
adjournment of a hearing.
The Commentary of Strohanzl, referring to case-law, states at
marginal note 9 to Section 146 that the failure to hear a party could
not lead to proceedings being reinstituted because the hearing of a
party was not a procedural step but a means of evidence. However, it
is a valid reason for an application for proceedings to be reinstituted
that the person requesting it had failed to make a request for an
adjournment or had failed to apologize for his or her failure to appear
in court (Strohanzl, Jurisdiktionsnorm und Zivilprozeßordnung, Vienna
1990, 14th Edition, p. 492).
Section 440 para. 4 of the Code of Civil Procedure provides that
in proceedings before a District Court the case should, if possible,
be determined at the first oral hearing.
COMPLAINTS
1. The applicant complains under Article 6 para. 1 of the Convention
that the District Court violated the principle of equality of arms in
the civil proceedings in his action of 18 March 1994 because it heard
the defendant but refused to hear him as well.
2. He further complains that the refusal of the Austrian courts to
allow his claim against P.H. violated his right to property under
Article 1 of Protocol No. 1 and the prohibition of forced or compulsory
labour under Article 4 of the Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 22 May 1995 and registered on
24 July 1995.
On 28 February 1996 the Commission decided to communicate the
application to the respondent Government.
The Government's written observations were submitted on
17 April 1996. The applicant replied on 12 July 1996.
THE LAW
1. The applicant complains under Article 6 para. 1 (Art. 6-1) of the
Convention that the District Court violated the principle of equality
of arms in the civil proceedings in his action of 18 March 1994 because
it heard the defendant but refused to hear him as well.
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 ... hearing ... by an
independent and impartial tribunal established by law."
The Government submit that the applicant has failed to exhaust
domestic remedies as required by Article 26 (Art. 26) of the
Convention. At the hearing of 13 July 1994 before the Bludenz District
Court, the applicant's representative asked that the applicant's
absence be excused because of a "professional engagement". The true
reason, namely the failure to summon the applicant to be heard as a
party, had not been known at the hearing. The applicant's
representative also did not base his request for an adjournment on the
failure to summon. Against that failure the applicant could have made
an application for proceedings to be reinstituted in order to be heard
as a party at a further hearing. The Government refer in this respect
to case-law quoted in two Commentaries on the Code of Civil Procedure.
The Government submit further that in the proceedings at issue
the principle of equality of arms had been respected, since the failure
of the District Court to hear the applicant as a party was caused by
his own mistakes. Moreover, the proceedings at issue concerned a very
small claim and proceedings on such claims are normally conducted by
the courts in a summary manner. The applicant, as a practising lawyer,
must have been aware that in such summary proceedings evidence is taken
right away in the first hearing. This had also been obvious from the
timing of the hearing.
This is disputed by the applicant. He submits that the
possibility to apply for proceedings to be reinstituted would not have
been an effective remedy. The Commentary to which the Government refer
states that the omission to hear a party could not lead to a
reinstitution of the proceedings because the hearing of a party was not
a procedural step but a means of evidence. Furthermore, Section 146
of the Code of Civil Procedure provides that an application for
proceedings to be reinstituted can only be filed by a person who has
been prevented from taking the procedural step by an unforeseeable and
insurmountable obstacle. This requirement was not met in the present
case, because his representative had by mistake failed to examine the
case file before the court hearing. If he had done so he would have
found out that the true reason for the applicant's absence had been the
court's failure to summon him properly. This mistake of his
representative was, however, imputable to himself. Moreover, under
Section 146 of the Code of Civil Procedure a reinstitution of the
proceedings is only possible if an adjournment of the hearing could not
be requested. In the present case, his representative, could have had
based his request for an adjournment on the wrong summons of the
applicant if he had consulted the case file in time.
The applicant submits further that in examining the fairness of
the proceedings at issue the value of his claim is not relevant. From
the timing of the hearing it could not be determined in what manner the
judge intended to conduct the proceedings. It had been essential for
the determination of his claim that the court heard him as a party
because only he himself could have given the necessary clarifications.
His representative had not been in a position to do so. The District
Court therefore had deprived him of the possibility to prove the well-
foundedness of his claim because it had not summoned him properly.
The Government submit that the applicant could have filed an
application for proceedings to be reinstituted under Section 146 of the
Code of Civil Procedure, in order to be granted a further hearing in
which he could have been heard as a party. He has not done so and his
application is therefore inadmissible for non-exhaustion of domestic
remedies.
In the applicant's view, however, he could not have filed such
an application for proceedings to be reinstituted. Having regard to
the case-law referred to by the Government, the Commission finds that
such an application in the present case was not excluded by the law as
interpreted by the Austrian courts. The Commission notes in particular
that according to the case-law quoted in the Commentary to which the
Government refers, a valid reason for an application for proceedings
to be reinstituted is that the person requesting it has failed to make
a request for an adjournment or has failed to apologize for his or her
failure to appear in court.
The applicant also submits that an application for proceedings
to be reinstituted would have had no prospect of success. The
Commission is not persuaded by his argument. It notes that the essence
of the applicant's argument is that an application for proceedings to
be reinstituted would have been bound to fail because of mistakes and
omissions of his representative. Such failures, however, are imputable
to the applicant. There is nothing to show that if the applicant or
his representative had acted with due diligence an application for
proceedings to be reinstituted would have had no prospect of success.
However, the Commission may leave open the issue whether or not
the applicant has complied with the requirement of exhaustion of
domestic remedies as required by Article 26 (Art. 26) of the
Convention, because his complaint is, in any event, manifestly ill
founded for the following reasons.
The Commission recalls that the principle of equality of arms is
only one feature of a wider concept of fair trial and implies that each
party shall have a reasonable opportunity of presenting his case to the
court under conditions which do not place him at a substantial
disadvantage vis-a-vis his opponent (Eur. Court HR, Dombo Beheer B.V.
v. the Netherlands judgment of 27 October 1993, Series A no. 274,
p. 19).
In the present case, the applicant was summoned to an oral
hearing before the District Court in his action of 18 March 1994.
Before the hearing took place he requested on 7 July 1994 to be heard
as a party. The applicant, who as a practising lawyer was familiar
with the forms of summons used by the courts, considered that his
personal presence at the hearing of 13 July 1994 was not required and
asked another lawyer to replace him. At the hearing the judge of the
District Court, who was under the impression that the applicant had
been summoned to appear personally before the court, refused a request
for an adjournment of the hearing as he found that the applicant had
failed to appear before the District Court without a proper excuse.
The judge considered that the explanation given by the applicant's
representative, namely, that the applicant had other professional
engagements, was not a valid reason for granting an adjournment of the
hearing. Thereupon, the District Court, after having heard the
defendant who had appeared before the court, dismissed the applicant's
claim. Appeal proceedings, and an action for nullity instituted by the
applicant were to no avail, as the higher instances found that in cases
of minor claims, like the present one, only grave deficiencies in the
proceedings, like a party being left in proceedings without any
representation at all, could lead to a quashing of a judgment and a
fresh taking of evidence.
The Commission has to examine whether in the particular
circumstances of the above proceedings the applicant had been placed
at a substantial disadvantage vis-a vis his opponent, or, in other
words, whether the applicant could have avoided a situation in which
his opponent was heard by the court but not he himself.
The applicant argues that, relying on the summons form used by
the District Court he could not have expected that at the first hearing
the court would have heard him as a party. It was, however, the
applicant himself who had asked the District Court to be heard as a
party. Moreover, the hearing was scheduled for a duration of
45 minutes, which would appear remarkably long for a hearing in which
the District Court would have merely taken a decision as to what
evidence should be adduced in a quite simple matter. It could hardly
have come as a surprise to the applicant that the District Court had
been prepared to determine the case at its first (and only) hearing,
since this is the normal course of events envisaged by Section 440
para. 4 of the Code of Civil Procedure. Having regard to these
elements which must have been familiar to the applicant as an
experienced lawyer, one would expect that he would have checked with
the District Court whether his presence at the hearing was necessary
or advisable. However, the applicant has not done so.
Moreover, as has been noted above, it is the applicant's own
submission that his representative at the hearing of 13 July 1994 had
failed to act with due diligence in that he had not checked the case
file before the hearing took place. If his representative had done so
he could have asked for an adjournment of the hearing on the ground
that the applicant had not been properly summoned instead of justifying
the applicant's absence on grounds of "another professional
engagement".
The Commission therefore finds that, in the circumstances of the
present case, there is no appearance of a violation of the applicant's
right to a fair hearing under 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 further complains that the refusal of the Austrian
courts to allow his claim against P.H. violated his right to property
under Article 1 of Protocol No. 1 (P1-1) and the prohibition of forced
or compulsory labour under Article 4 (Art. 4) of the Convention.
The Commission, assuming that the applicant has exhausted
domestic remedies, has examined the remainder of the applicant's
complaints as they have been submitted by him, but finds that they do
not disclose any appearance of a violation of his rights and freedoms
set out in the Convention.
It follows that also the remainder of the application is
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
For these reasons, the Commission, by a majority,
DECLARES THE APPLICATION INADMISSIBLE.
M.F. BUQUICCHIO J. LIDDY
Secretary President
to the First Chamber of the First Chamber
Full & Egal Universal Law Academy