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