EUROPEAN COMMISSION OF HUMAN RIGHTS

Application No. 30428/96

Gertrude Beer

against

Austria

REPORT OF THE COMMISSION

(adopted on 3 March 1999)

I. INTRODUCTION

(paras. 1-16) ........................................................ 1

A. The application

(paras. 2-4) ..................................................... 1

B. The proceedings

(paras. 5-11) .................................................... 1

C. The present Report

(paras. 12-16) .................................................. 2

II. ESTABLISHMENT OF THE FACTS

(paras. 17-20) ....................................................... 3

III. OPINION OF THE COMMISSION

(paras. 21-41) ....................................................... 4

A. Complaint declared admissible

(para. 21) ...................................................... 4

B. Points at issue

(para. 22) ...................................................... 4

C. As regards Article 6 para. 1 of the Convention

(paras. 23-33) .................................................. 4

a. Applicability of Article 6 para. 1 of the Convention

(paras. 23-27) ................................................... 4

b. Compliance with Article 6 para. 1 of the Convention

(paras. 28-33) .................................................. 5

CONCLUSION

(para. 34) ....................................................... 6

D. As regards Article 13 of the Convention

(paras. 35-38) .................................................. 6

CONCLUSION

(para. 39) ....................................................... 6

E. Recapitulation

(paras. 40-41) ................................................... 7

APPENDIX : DECISION OF THE COMMISSION AS TO

THE ADMISSIBILITY OF THE APPLICATION ................. 8

I. INTRODUCTION

1. The following is an outline of the case as submitted to the European Commission of Human Rights, and of the procedure before the Commission.

A. The application

2. The applicant is an Austrian citizen, born in 1949 and residing in Vienna.  She was represented before the Commission by Mr R. Armster, a lawyer practising in Maria Enzersdorf.

3. The application is directed against Austria.  The respondent Government were represented by their Agent, Ambassador Mr F. Cede, Head of the International Law Department at the Federal Ministry of Foreign Affairs.

4. The case concerns the alleged violation of the principle of equality of arms in proceedings for an order to reimburse procedural costs made in the course of civil proceedings.  The applicant invokes Article 6 para. 1 of the Convention.

B. The proceedings

5. The application was introduced on 29 January 1996 and registered on 13 March 1996.

6. On 16 October 1996 the Commission (First Chamber) decided, pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to give notice of the application to the respondent Government and to invite the parties to submit written observations on its admissibility and merits.

7. The Government's observations were submitted on 20 December 1996.  The applicant replied on 3 March 1997.

8. On 14 January 1998 the Commission declared the application admissible.

9. The text of the Commission's decision on admissibility was sent to the parties on 28 January 1998 and they were invited to submit such further information or observations on the merits as they wished.  No such observations were submitted.

10. After declaring the case admissible, the Commission, acting in accordance with  former Article 28 para. 1 (b) of the Convention [1] , also placed itself at the disposal of the parties with a view to securing a friendly settlement.  In the light of the parties' reaction, the Commission now finds that there is no basis on which such a settlement can be effected.

11. Pursuant to the entry into force of Protocol No. 11 of the Convention, the application was transferred to the Commission sitting in Plenary.

C. The present Report

12. The present Report has been drawn up by the Commission in pursuance of former Article 31 of the Convention and after deliberations and votes, the following members being present:

MM. S. TRECHSEL, President

E. BUSUTTIL

A. WEITZEL

J.-C. SOYER

H. DANELIUS

Mrs G.H. THUNE

Mr F. MARTINEZ

Mrs J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

M.A. NOWICKI

B. CONFORTI

Sir Nicolas BRATZA

MM. I. BÉKÉS

D. ŠVÁBY

G. RESS

A. PERENIĆ

K. HERNDL

E. BIELIŪNAS

E.A. ALKEMA

M. VILA AMIGÓ

Mrs M. HION

MM. R. NICOLINI

A. ARABADJIEV

13. The text of this Report was adopted on 3 March 1999 by the Commission and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with former Article 31 para. 2 of the Convention.

14. The purpose of the Report, pursuant to former Article 31 of the Convention, is:

(i) to establish the facts, and

(ii) to state an opinion as to whether the facts found disclose a breach by the State concerned of its obligations under the Convention.

15. The Commission's decision on the admissibility of the application is annexed hereto.

16. The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.

II. ESTABLISHMENT OF THE FACTS

17. 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.

18. 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.

19. 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.  This appeal was not transmitted to the applicant.

20. 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.

III. OPINION OF THE COMMISSION

A. Complaint declared admissible

21. The Commission has declared admissible the applicant’s complaint 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 thereof and had no possibility to react thereto.

B. Points at issue

22. Accordingly, the points at issue are:

- whether there has been a violation of Article 6 para. 1 of the Convention;

- whether there has been a violation of Article 13 of the Convention.

C. As regards Article 6 para. 1 of the Convention

a. Applicability of Article 6 para. 1 of the Convention

23. Article 6 para. 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. ..."

24. The applicant submits that Article 6 para. 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.

25. This is disputed by the Government.  They submit that Article 6 para. 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 of the Convention.

26. The Commission recalls that in its previous case-law it had been of the opinion that Article 6 para. 1 of the Convention is not applicable to proceedings for the fixing of procedural costs as they do not involve a determination of "civil rights and obligations" (see Application No. 12446/86, Dec. 5.5.88, D.R. 56, p. 229). The Commission maintained this view in the Robins case (see Geoffrey and Margaret Robins v. the United Kingdom, Comm. Report 4.7.96, paras. 35-38). In its judgment in the Robins case the Court, however, found Article 6 para. 1 of the Convention to be applicable to costs proceedings, provided that the legal costs which form the subject matter of the proceedings were incurred during the resolution of a dispute which involved the determination of civil rights and obligations (Eur. Court HR, Robins v. the United Kingdom judgment of 23 September 1997, Reports of Judgments and Decisions 1997-V, p. 1809, para. 28).  In such circumstances the costs proceedings, even though separately decided, must be seen as a continuation of the substantive litigation and accordingly as part of a determination of "... civil rights  and obligations" (Robins v. United Kingdom judgment, loc.cit).

27. In the present case the court proceedings in the course of which the cost order had been issued concerned a labour law dispute between the applicant and her employer, proceedings which involve the determination of civil rights and obligations within the meaning of Article 6 para. 1 of the Convention.  Having regard to the above quoted judgment by the Court the Commission therefore finds that Article 6 para. 1 of the Convention applies to the costs proceedings at issue.

b. Compliance with Article 6 para. 1 of the Convention

28. The applicant complains that the failure to serve on her the opposing party’s appeal against the cost order which prevented her from reacting thereto violated the principle of equality of arms under Article 6 para. 1 of the Convention.

29. The Government submit that by a 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 Article 6 para. 1 of the Convention in such cases where matters of procedural law or matters not relating to the main issue are concerned.  Accordingly there has been no violation of Article 6 para. 1 of the Convention in the proceedings at issue.

30. The Commission recalls that the principle of equality of arms requires that each party should be afforded a reasonable opportunity to present his case under conditions that do not place him at a substantial disadvantage vis-à-vis his opponent (Eur. Court HR, Dombo Beheer B.V. v. the Netherlands judgment of 27 October 1993, Series A no. 274, p. 19, para. 33; Ankerl v. Switzerland judgment of 23 October 1996, Reports 1996-V, pp. 1567-68, para. 38).  Each party must be given the opportunity to have knowledge of and comment on the observations filed or evidence adduced by the other party (Eur. Court HR, Ruiz Mateos v. Spain judgment of 24 June 1993, Series A no. 262, p. 25, para. 63; Nideröst-Huber v. Switzerland judgment of 18 February 1997, Reports 1997-I, p. 108, para. 24; Werner v. Austria judgment of 24 November 1997, Reports  1997-VII, p. 2513, para. 65).

31. In the present case the defendant party, on 31 May 1995, filed an appeal against the cost order included in the judgment in default of 15 May 1995 which was not served on the applicant .  Neither was she by any other means informed of the existence of this appeal.  Thus she had no possibility to react thereto.

32. The Government submit that in the appeal proceedings no issues of fact could be raised and that the participation of the applicant in these proceedings had therefore not been necessary.  In this respect the Commission recalls, however, that it is for the parties to say whether or not a document calls for their comments.  What is at stake is the the litigants’ confidence in the working of the justice, which is based on, inter alia , the knowledge that they have had the opportunity to express their views on every document in the file (Eur. Court HR, Nideröst-Huber v. Switzerland judgment , op. cit., p. 108, para. 29).

33. The Commission therefore considers that the fact that the appeal of the opposing party had not been communicated to the applicant and that she was not given the opportunity of replying thereto constituted an infringement of the principle of equality of arms as guaranteed by Article 6 para. 1 of the Convention.

CONCLUSION

34. The Commission concludes, unanimously, that in the present case there has been a violation of Article 6 para. 1 of the Convention.

D. As regards Article 13 of the Convention

35. The applicant also complains under Article 13 of the Convention that she did not have an effective remedy at her disposal to complain about the above violation of the Convention.

36. Article 13 of the Convention reads as follows:

"Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity."

37. The Commission recalls that Article 6 para. 1 of the Convention provides a more rigorous procedural guarantee than Article 13 of the Convention and therefore operates as a lex specialis with regard to a civil right, to the exclusion of the more general provisions of Article 13 of the Convention (No. 11468/85, Dec. 15.10.86, D.R. 50 p. 199; No. 11949/86, Dec. 1.12.86, D.R. 51 p. 195).

38. The Commission therefore considers that in the present case the guarantees of Article 13 are superseded by those under Article 6.

CONCLUSION

39. The Commission concludes, unanimously, that no separate issue arises under Article 13 of the Convention.

E. Recapitulation

40. The Commission concludes, unanimously, that in the present case there has been a violation of Article 6 para. 1 of the Convention (para. 34).

41. The Commission concludes, unanimously, that no separate issue arises under Article 13 of the Convention (para. 39).

   M. -T. SCHOEPFER S. TRECHSEL

            Secretary President

               to the Commission of the Commission

[1] The term “former” refers to the text of the Convention before the entry into force of Protcol No. 11 on 1 November 1998.