AS TO THE ADMISSIBILITY OF
Application No. 13202/87
by O. and A.K.
against Austria
The European Commission of Human Rights sitting in private
on 15 March 1990, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
G. BATLINER
J. CAMPINOS
H. VANDENBERGHE
Mrs. G.H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
L. LOUCAIDES
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 23 June 1987
by O. and A.K. against Austria and registered on 10 September 1987
under file No. 13202/87;
Having regard to the report provided for in Rule 40 of the
Rules of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicants are Austrian citizens and living in Graz where
they practise as dentists. Mr. K. was born in 1920 and Mrs. K. in
1926. They are represented by Mr. F. König, a lawyer in Graz.
The facts agreed between the parties may be summarised as
follows.
The applicants complained about the interpretation of the
Regulation on Contributions and Apportionment of Costs (Beitrags- und
Umlageverordnung) and about the amount of an annual contribution they
had to pay for 1978 to their official professional organisation, the
Medical Association (Ärztekammer) of Styria.
The contributions serve to finance a pension and invalidity
fund and are calculated on the basis of an estimated income situation.
According to Section 6 of the above-mentioned Regulations they are
fixed every year by the assembly of the Medical Association.
The applicants' complaints were rejected by the Complaints
Committee (Beschwerdeausschuss) of the Medical Association on 14 May 1986.
They then brought the matter before the Administrative Court
(Verwaltungsgerichtshof). This Court returned the statement of claim
and requested the applicants' counsel by order of 30 July 1986 to
re-submit it within two weeks together with a further copy needed
for communication to the Minister of Health and Environment.
According to Section 24 (1) of the Administrative Court Act (VwGG) a
party to administrative court proceedings has to submit as many copies
of each submission made to the Court as are needed for communication
to all other parties or authorities involved in the proceedings.
On 10 September 1986 the Administrative Court discontinued
(Einstellung) the proceedings in accordance with Section 34 (2) of
the Administrative Court Act on the ground that the applicants had
not complied with the order of 30 July 1986. While counsel had in due
time submitted three copies of the statement of claim, his office had
omitted to submit three identical specifications of costs (Kosten-
verzeichnisse). The original specification had had to be corrected
because further stamp-duty (Stempelmarken) had to be paid for the
additional copy of the statement of claim. The correction which had
therefore become necessary had, however, only been made on two copies
of the annexed specification of costs and not on the third one.
The applicants' request to be granted restitutio in integrum
(Wiedereinsetzung in den vorigen Stand) was rejected by the
Administrative Court on 19 November 1986 (served on applicants'
counsel on 14 January 1987) on the ground that according to the
Court's recent and reaffirmed case-law the incorrect compliance with
an order to complete or amend a statement of claim could not be
treated like the non-observance of a time-limit.
COMPLAINTS
The applicants complain that they were denied access to a
court on formalistic grounds. They argue that the Administrative
Court's jurisprudence violates the principle of a fair trial as
guaranteed by Article 6 of the Convention. They consider that formal
requirements of procedural law should be interpreted in a manner such
as to allow that substantive rights can be pleaded effectively.
Referring to criticism in legal writing of the Administrative Court's
jurisprudence and a recent decision granting restitutio in integrum in
a similar case they consider it inequitable that in case of
non-observance of a time-limit restitutio in integrum may be granted
but not in cases where the time-limit is respected but the submission
does, for reasons not imputable to the party concerned, not comply with
formal requirements.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 23 June 1987 and registered
on 10 September 1987.
On 2 May 1989 the Commission decided to invite the respondent
Government to submit observations on the admissibility and merits of
the application.
The Government's observations were received on 21 July 1989
and the applicants' reply on 11 September 1989.
THE LAW
The applicants complain that they were denied access to the
Administrative Court and thereby arbitrarily denied a fair hearing of
the action they intended to lodge with a view to having the annual
contribution they have to pay to their professional organisation
determined by this Court.
They invoke Article 6 para. 1 (Art. 6-1) of the Convention
which, in its relevant parts, reads:
"In the determination of his civil rights and
obligations ... everyone is entitled to a fair
and public hearing ... by an independent tribunal ..."
The respondent Government submit that the applicants' complaint
only relates to the denial of the request to be granted restitutio in
integrum. These proceedings concerned - in their submission - a
procedural issue only and not a "civil right" or a "civil obligation"
within the meaning of Article 6 (Art. 6). In any event the duty to
contribute to the welfare fund of the professional organisation does,
in the Government's opinion, not constitute a "civil obligation". The
applicants argue the contrary.
The Commission observes that the proceedings in question
related to a remedy which the applicants had lodged against the
Administrative Court's decision of 10 September 1986 refusing to deal
with their action. This decision had the effect of depriving the
applicants of the possibility of having determined by a tribunal to
what extent they owed contributions to the welfare fund of their
professional organisation.
The application consequently raises the question whether the
disputed obligation to pay contributions to the welfare fund of the
professional organisation was of a "civil" nature, in the sense of
Article 6 para. 1 (Art. 6-1), and if so whether access to a tribunal
was, as the applicants submit, denied in a manner violating their
right of access to a court. However, the first question can be left
undecided as in any event there is no element in the present case
indicating that the applicants were denied access to a court in an
arbitrary manner. The Commission has repeatedly recognised the right
of the High Contracting States to make access to courts dependent on
the respect by the parties of formal rules relating in particular to
the form of their submissions to a court and to time-limits (No.
8407/78, Dec. 6.5.80, D.R. 20 p. 179 with further reference).
In the present case the applicants' counsel had been requested
by the Administrative Court to submit a certain number of identical
copies of the statement of claim within a certain time-limit.
Undisputedly he did not comply with this court order as the different
copies submitted by him within the time-limit were not identical in
all details. His request to be granted restitutio in integrum, i.e.
leave to submit out of time identical copies of the statement of the
claim, was rejected on the ground that such a request could only be
considered where a party failed to respect a time-limit, not however
where an incomplete set of the statement of claim was submitted within
the given time-limit. The Comission 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 Court of the rules
governing restitutio in integrum were arbitrary and amounted to a
denial of justice contrary to Article 6 (Art. 6) of the Convention.
It follows that 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
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
Full & Egal Universal Law Academy