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BEER v. AUSTRIA

Doc ref: 30428/96 • ECHR ID: 001-4099

Document date: January 14, 1998

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Cited paragraphs: 0
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BEER v. AUSTRIA

Doc ref: 30428/96 • ECHR ID: 001-4099

Document date: January 14, 1998

Cited paragraphs only

AS TO THE ADMISSIBILITY OF

Application No. 30428/96

by Gertrude BEER

against Austria

The European Commission of Human Rights (First Chamber) sitting

in private on 14 January 1998, the following members being present:

MM M.P. PELLONPÄÄ, President

N. BRATZA

E. BUSUTTIL

A. WEITZEL

C.L. ROZAKIS

Mrs J. LIDDY

MM L. LOUCAIDES

B. MARXER

B. CONFORTI

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 29 January 1996

by Gertrude BEER against Austria and registered on 13 March 1996 under

file No. 30428/96;

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

20 December 1996 and the observations in reply submitted by the

applicant on 3 March 1997 ;

Having deliberated;

Decides as follows:

THE FACTS

The applicant, an Austrian citizen born in 1949 and residing in

Vienna, is a nurse. Before the Commission she is represented by

Mr. R. Armster, a lawyer practising in Maria Enzersdorf.

The facts of the case, as submitted by the parties, may be

summarised as follows.

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.

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.

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. According to the applicant, this

appeal was not transmitted to her.

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.

COMPLAINTS

The applicant complains under Article 6 para. 1 of the Convention

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 of this appeal and thus had no possibility to

react thereto. She further invokes Article 13 of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 29 January 1996 and registered

on 13 March 1996.

On 16 October 1996 the Commission decided to communicate the

application to the respondent Government.

The Government's written observations were submitted on

20 December 1996. The applicant replied on 3 March 1997.

THE LAW

1. The applicant complains under Article 6 para. 1 (Art. 6-1) of the

Convention 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 of this appeal and thus had no

possibility to react thereto. She further invokes Article 13 (Art. 13)

of the Convention.

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 and public hearing ... by an

independent and impartial tribunal established by law. ..."

The Government submit that Article 6 para. 1 (Art. 6-1) 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

(Art. 6-1) of the Convention. Furthermore it should also be taken into

account that by an 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 the Convention in such cases where matters of procedural law or

matters not relating to the main issue are concerned.

The applicant contests this view. In her opinion

Article 6 para. 1 (Art. 6-1) 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. The facts that she

could not react to the defendant's appeal against the cost order

violated the principle of equality of arms under Article 6 para. 1

(Art. 6-1) of the Convention.

After an examination of this issue in the light of the parties'

submissions, the Commission considers that it raises questions of fact

and law including questions concerning the applicability of Article 6

(Art. 6) of the Convention, which can only be determined by an

examination of the merits. It follows that the application cannot be

declared inadmissible as being manifestly ill-founded within the

meaning of Article 27 para. 2 (Art. 27-2) of the Convention. No other

grounds for inadmissibility have been established.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION ADMISSIBLE, without prejudging the

merits of the case.

M.F. BUQUICCHIO M.P. PELLONPÄÄ

Secretary President

to the First Chamber of the First Chamber

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