THE FACTS

Whereas the facts of the case may be summarised as follows:

1.  The first Applicant, X., is a workman living in A. and formerly

employed by the firm B. He states that on ... 1960 he introduced before

the Labour Court (Arbeitsgericht) of A. a civil action against his

former employers claiming the sum of DM ... which he alleged was due

to him as compensation for loss of holidays and for pay

during illness.

2.  On ... 1960 the first Applicant executed a power of attorney in

favour of the second Applicant, Dr. Y., a lawyer practising in A. and

this was sent on the same day to the Labour Court with the explanation

that the plaintiff, namely the first Applicant, was of the opinion that

his scanty knowledge of labour law did not permit him adequately to

plead his case.

On ... 1960 the case was heard in court and Dr. Y. attended to

represent the plaintiff who, by reason of his work, was prevented from

appearing in person. The presiding judge refused to recognise the power

of attorney executed in the name of Dr. Y. and the procès-verbal of the

Court states that the plaintiff was not present. Subsequently, the

judge fixed an oral hearing of the case for ... 1960.

3.  The refusal on the part of the judge to recognise the plaintiff's

representation by his lawyer was apparently based on Article 11 of the

Act on Labour Courts (Arbeitsgerichtsgesetz of 3rd September 1953)

which states as follows:

"Article 11

Before the Labour Courts the parties may present their case themselves

or be represented by representatives of trade unions or employers'

unions or of an association of such unions when, according to statutes

or special mandates, such persons are competent to represent and act

for the Association, the union or its members and do not, in addition

to this representation, practise as a lawyer, or, without being a

lawyer, practise professionally for fees for taking cases before

the Court; the same applies to representation by representatives of

independent organisations of employees with social or

professional objects. Lawyers are only admitted before the Labour

Courts as representatives or counsel when it seems necessary for the

safeguard of the rights of the parties.

The President of the Labour Court shall decide on this question.

If admission is refused the party concerned may request a decision from

the chamber of the Labour Court. This decision is final. If the value

of the matters in dispute is not less than 300 DM, lawyers are admitted

as representatives.

2.  The parties must be represented before the Regional Labour Courts

and the Federal Labour Court by lawyers; any lawyer admitted to the bar

of a German court is entitled to be a representative ..."

4.  Immediately after the refusal by the presiding judge, Dr. Y.

addressed a complaint to the court which was rejected during a session

held on ... 1960 without any prior notice being given to the parties

who were consequently absent. These proceedings took place in C., more

than 20 kilometres from A., which is the ordinary seat of the Court and

the place of residence of both Applicants and of the defendant firm.

The complaint was rejected as the safeguard of the plaintiff's

interests did not apparently necessitate the services of a lawyer. This

decision was communicated to the first Applicant on ... 1960, but never

officially to the second Applicant, Dr. Y.

5. On ... 1960, Dr. Y. lodged a constitutional complaint

(Verfassungsbeschwerde) atttacking the decisions of ... and ... 1960.

He invoked the provisions of Article 6 of the Convention, various

Articles of the German Basic Law and Article 3 of the Federal

Regulations for Lawyers (Bundesrechtsanwaltsordnung

of 1st August 1959) which states:

"1. The lawyer is the professional (berufene) independent adviser and

representative in all legal matters.

2. His right to act as a representative in any kind of legal matters

before courts, arbitral tribunals and public authorities can only be

restricted by a Federal Law.

3. Every person has the right in all legal matters, within the limits

laid down in legal regulations, to be advised and represented by a

lawyer of his choice before the courts, tribunals and

public authorities."

Dr. Y. further submitted that the first Applicant, X., was prevented

by his work from appearing in court, that he needed legal assistance

for a proper presentation of his claim, that he was not a member of a

trade union or any other professional organisation, that the refusal

to allow him the assistance of a lawyer, as laid down in the above

Article 11, was tantamount to forcing him to become a member of a trade

union, that the Labour Court had admitted lawyers in many

other cases in which the value of the matter in dispute was

below 300 DM and, finally, that the refusal on the part of the Court

was an example of discrimination, partly against non-members of unions,

partly against lawyers and, in particular, against the

second Applicant.

6.  Dr. Y. appeared on behalf on the plaintiff at an oral hearing

in these proceedings before the Labour Court on ... 1960 as, again,

the plaintiff was prevented from attending by reason of his work.

The Court held that the plaintiff was absent and gave judgment in

default, acquitting the defendants and ordering the plaintiff to

pay costs.

The Applicants submit that, according to German law, the hearing

of a case - in which a judgment in default has been given - may be

resumed, if the plaintiff so requests, within a period of three days

from notification, which in this case was given to Mr. X. on ... 1960.

On ... 1960, the very same day, Dr. Y., still acting under a power

of attorney, lodged a formal request with the Court for a resumption

of the hearing. The first Applicant, Mr. X., represented this request

in a letter of ... 1960 which arrived on the following day.

7. The Court accordingly fixed a new hearing for ... 1960. The

plaintiff, Mr. X., appeared personally but the Court dismissed the

request for a resumption of the proceedings on the ground that it had

been lodged on ... 1960, two days after the expiry of the three day

time-limit mentioned above. This decision makes no reference to the

request by Dr. Y. which had arrived in due time. No further remedy was

available to the Applicants and the claim of the first Applicant

of ...DM was forfeited.

8. On ... 1960 Dr. Y. introduced a new constitutional complaint and

the two complaints which had now been joined were rejected on ... 1961

as being manifestly ill-founded and the Applicants were sentenced

to a fine of DM ... for abuse of the right to appeal to the

Constitutional Court.

In order to prepare the submission of the present Application to

the Commission, the second Applicant, Dr. Y. apparently requested

permission to consult the case-file but on ... 1961 the Federal

Constitutional Court refused this request. In reply to a complaint

of ... 1961, the Court stated on ... 1961 that the file did not contain

any documents which were not also in the Applicant's possession.

Whereas the Applicants allege violation of Article 6 of the Convention

and ask that the decisions of the Labour Court of A. should be quashed;

Whereas the first Applicant alleges that, by its refusal to accept his

representation by a lawyer, the Labour Court of A. did not give him a

fair hearing; whereas the second Applicant alleges that by its decision

not to admit him as a lawyer for the first Applicant, the Court

discriminated against him in violation of Article 14 of

the Convention;

THE LAW

Whereas Article 6, paragraph 1 (Art. 6-1) of the Convention provides

that "in the determination of his civil rights and obligations ...

everyone is entitled to a fair and public hearing ...; whereas the

action introduced by the first Applicant, Mr. X., for obtaining

compensation for loss of holidays and pay during illness was clearly

an action to determine that Applicant's civil rights;

Whereas the question arises whether or not the refusal by the Labour

Court to accept his representation by a lawyer constituted a violation

of the provision of a "fair hearing" within the meaning

of Article 6 (Art. 6); whereas this principle cannot be determined in

abstracto but must be considered in the light of the special

circumstances of each case;

Whereas, when a case does not give rise to any serious legal dispute

but only necessitates a correct establishment of the facts, the barring

of the parties from the right to be represented or assisted by

practising lawyers in the procedure cannot be held to constitute a

denial of a fair hearing;

Whereas it is clear that the action introduced by the first Applicant,

which concerned a sum of less than 100 DM, did not involve legal issues

making it necessary for him to be represented or assisted by a lawyer;

Whereas it is to be noted that Article 11 of the Act on Labour Courts

provides that, in cases where the value of the matters in dispute is

less than 300 DM, lawyers shall only be admitted before the Labour

Courts as representatives or as counsel when it seems necessary for the

safeguard of the rights of the parties;

Whereas, the first Applicant, when he consulted the second Applicant,

who was a lawyer, must have been informed of the Rules laid down

in Article 11 of the Act on Labour Courts; whereas he must thus have

been fully aware of the risk to which he exposed himself by insisting

upon being represented by a lawyer, even after the refusal by the Court

of ... 1960, and by failing to appear in person, or by some

representative other than a lawyer, at the sessions of the Court to

which he was duly summoned;

Whereas it follows that the proceedings before the Labour Court did not

in the present case violate the principle of "fair hearing" within the

meaning of Article 6, paragraph 1 (Art. 6-1) of the Convention;

Whereas the Application lodged by the first Applicant is manifestly

ill-founded and must be rejected in accordance with Article 27,

paragraph 2 (Art. 27-2) of the Convention;

Whereas, in regard to the complaints made by the second Applicant,

Dr.Y. that because of his being a practising lawyer he was barred by

the above Article 11 from representing his clients before the Labour

Courts, it is to be observed that this question does not involve a

civil right for that Applicant; whereas Article 6 (Art. 6) is not

applicable to the present case; whereas, moreover, the Convention,

under the terms of Article 1 (Art. 1), guarantees only the rights and

freedoms set forth in Section 1 of the Convention and under Article 25,

paragraph 1 (Art. 25-1) only an alleged violation of one of those

rights and freedoms by a Contracting Party can be the subject of an

application admissible by the Commission; whereas in its decision as

to the admissibility of Application No. 134/55 (Z. against the Federal

Republic of Germany) the Commission has already held that the right to

exercise the profession of a lawyer was not guaranteed by

the Convention; whereas it follows a fortiori that restrictions on the

exercise of such profession cannot be considered to be a violation of

any provisions of the Convention; whereas, accordingly, the right

claimed is not as such included among the rights and freedoms

guaranteed by the Convention; whereas, consequently, this part of the

Application is incompatible with the provisions of the Convention and

must be rejected in accordance with Article 27, paragraph 2 (Art. 27-2)

of the Convention;

Now therefore the Commission declares this Application INADMISSIBLE."