Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 32206/96

by G. K.

against Austria

The European Commission of Human Rights (First Chamber) sitting

in private on 16 October 1996, the following members being present:

Mrs. J. LIDDY, President

MM. M.P. PELLONPÄÄ

E. BUSUTTIL

A. WEITZEL

B. MARXER

G.B. REFFI

B. CONFORTI

N. BRATZA

I. BÉKÉS

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

M. VILA AMIGÓ

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 various dates (see

Annex) by G. K. against Austria and registered on 10 July 1996 under

file No. 32206/96;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is an Austrian citizen born in 1955. He is a

retired lawyer, and lives in Vienna. This is his third application to

the Commission. The first (No. 23861/94) was declared inadmissible on

31 August 1994, and the second (No. 26137/95) was declared inadmissible

on 6 April 1995. The facts of the present case, as submitted by the

applicant in a series of application forms, may be summarised as

follows.

I. In an application form dated 5 April 1994 the applicant referred

to a decision of the Review Chamber (Ratskammer) of the Vienna Regional

Criminal Court (Landesgericht für Strafsachen) of 2 December 1992. In

the decision, the Review Chamber rejected a complaint by the applicant

against a summons which had been issued against him to secure his

attendance at a psychiatric examination. The Vienna Court of Appeal

(Oberlandesgericht) on 1 February 1993 rejected the applicant's appeal

against the decision of 2 December 1992 on the ground that no appeal

lay. A further purported appeal was rejected on 13 April 1993 on the

grounds that it was out of time, that it repeated the first appeal, and

that in any event no more that one complaint could be made in respect

of a single decision.

II. In an application form dated 1 November 1995 the applicant

referred to proceedings which are being taken with a view to a guardian

being appointed for him. It appears that, in the light of a large

number of applications made by the applicant to the Administrative

Court (Verwaltungsgerichtshof), that Court proposed that guardianship

proceedings should be instituted in order to establish whether a

guardian was need to protect the applicant and in his own interest,

because he was bringing a large number of applications which would

saddle him with a considerable costs burden.

The applicant was summoned to appear before the Donaustadt

District Court (Bezirksgericht) on 13 January 1994. He challenged the

summons, and on several occasions requested, and demanded, that the

guardianship proceedings should be stayed. At the same time he applied

for an expert's report to be prepared on the ground that he would in

any event exercise his right to silence in the guardianship

proceedings, which could therefore never come to a conclusion. The

District Court tried to summon the applicant for 20 June 1994 and

27 June 1994, but each time the applicant challenged the summons.

On 9 August 1994 the applicant attended the court. A judge met

him and invited him into his room. The applicant refused to comply

with the "oral summons" and ran away. He challenged the "summons".

In November 1994, the applicant added to the latter challenge an

allegation that the judge had attempted to bring him before the court

and had violated his right to freedom of the person.

On 9 August 1994 the court ordered the applicant's arrest for the

purpose of bringing him before the court as he had failed to reply to

summonses.

On 31 January 1995 the Vienna Regional Civil Court (Landesgericht

für Zivilsachen) dealt with the applicant's appeals against all the

above matters. It rejected the appeal as to the oral "summons" of

9 August 1994 and the addition of November 1994 on the ground that

discussion between the judge and the applicant took place outside a

formal hearing, and so could not possibly constitute a summons which

could be challenged. As to the request that the guardianship

proceedings should be stayed, and that an expert's report should be

prepared, the Regional Court noted that the proceedings had not

properly begun, and that until the applicant appeared before the

District Court, that court could not consider any applications.

As to the warrant for the applicant's arrest, the Regional Court

noted that it was a fundamental principle of guardianship proceedings

that the person concerned should be present in court for the judge to

make his own assessment: for that reason the Non-Contentious

Proceedings Act (Außerstreitverfahrensgesetz) provides for coercive

measures - such as arrest - to ensure the attendance at court of the

person concerned. The Regional Court found that the conditions for a

first hearing had been present, and that the applicant had failed to

appear on several occasions, such that the issue of the arrest warrant

was justified.

In connection with the applicant's request for an expert's

report, the Regional Court noted that the request was incompatible with

rules on guardianship proceedings, which provide for the judge himself

to form an impression of the person concerned before any reports are

commissioned and interim guardianship orders made.

Notwithstanding the statement in the decision of 31 January 1995

that no ordinary appeal lay, the applicant applied to the Supreme Court

(Oberster Gerichtshof) by way of extraordinary appeal

(außerordentlicher Revisionsrekurs) and application for the proceedings

to be re-opened (Antrag auf Wiedereinsetzung in den vorigen Stand).

The Supreme Court rejected the applications on 10 October 1995. The

applicant informed the Commission of the proceedings before the Supreme

Court by way of a further application form, dated 19 April 1996.

III. In an application form dated 2 November 1995 the applicant

referred to a decision of the Administrative Court of 1 February 1995

(received by the applicant on 21 March 1995). Further complaints were

made in an application form dated 19 April 1996. The applicant had

first raised these complaints in a letter to the Commission's

secretariat of 9 September 1995.

The Administrative Court noted that in three of the cases

referred to by the applicant, the decision challenged was not a

formally valid decision because the person who signed it was not the

person whose name it bore. The complaints concerning those decisions

were therefore rejected. As to a series of four complaints the

applicant had made that the administrative authority had not dealt with

applications within the time-limit laid down by law

(Säumnisbeschwerden), the Administrative Court noted that as the

administrative authority had in any event given a decision on the case

after the Administrative Court's time-limit for action had passed, that

the applicant's complaint became meaningless, and the proceedings were

stayed (eingestellt).

As to costs, the Administrative Court noted that the applicant

was not entitled to costs in connection with the challenges to the

"non-decisions" as the complaints had been rejected. In connection

with the other complaints (the "Säumnisbeschwerden"), the

Administrative Court found that the content of the complaints had a

close factual nexus, and were all introduced on the same day. It

considered that they should have been brought as one complaint, and

that the applicant was therefore only entitled to reimbursement for one

pleading and the stamp duty on it. Costs of ATS 600.00 were awarded.

The Court commented that there was no question of awarding ATS

162,200.00, as requested in one of the complaints.

IV. In an application dated 5 November 1995 the applicant referred

to a decision of the Administrative Court of 23 November 1994 (received

by him on 28 December 1994).

In its decision of 23 November 1994 the Administrative Court

recalled that on 20 September 1994 the tax authorities had decided to

seize part of the applicant's pension entitlement, pursuant to

Section 65 (1) of the Tax (Execution) Act (Abgabenexekutionsordnung).

On the same day, 20 September 1994, the tax authority made an order

prohibiting the applicant from dealing with the pension entitlement.

The applicant's complaint against the (second) decision of 20 September

1994 was rejected as such a decision could not be challenged by way of

complaint to the Administrative Court. The Court noted that the

applicant's protection under the law was ensured because the applicant

was able to challenge the seizure itself. A subsidiary request for the

proceedings to be re-opened (Wiedereinsetzung in den vorherigen Stand)

depended on a time-limit having been missed: here, as no administrative

complaint was possible, there was no time limit to miss.

V. In an application form dated 11 April 1996 the applicant referred

a series of decisions of the Administrative Court of 30 June 1995

(received by him on 16 October 1995) and 12 December 1995 (received on

29 January 1996).

In one decision of 30 June 1995 (93/12/0303) the Administrative

Court dismissed complaints by the applicant concerning his pension.

It found that the calculation of his pension on the basis of 80% of his

last earnings as a civil servant was both appropriate and in accordance

with the law. It did not accept that expenses listed by him (including

various leisure pursuits and loans) counted as "obligations", nor did

it accept that he should be entitled to a pension based on 100% of his

last salary. It found no reason to base the pension not on the actual

last salary but on the last salary which he said he should have

received. It did not agree with the applicant that he should be

entitled to an extra pension on the ground that Austria, and especially

the 2nd and 20th Districts of Vienna, was a multi-cultural society (in

which he could not find his bearings) and he was entitled to leave it.

In another decision of 30 June 1995 (95/12/0158) the

Administrative Court dismissed a claim by the applicant that, before

his early retirement, he should have been paid more because he was

doing the work of a person in a higher grade.

A further complaint by the applicant was rejected by the

Administrative Court on 30 June (95/12/0102) as being out of time.

By decision No. 93/12/0302 of 30 June 1995 the Administrative

Court dismissed an application from the applicant that a wrong

authority had taken a decision.

By decision No. 93/12/0153 of 30 June 1995 the Administrative

Court rejected a complaint from the applicant that an authority had

failed to take a decision, as the original request to the authority was

merely consequential on another matter (the applicant requested

increased salary, whereas the issue was in fact the grade he was

entitled to).

By further decisions of 30 June 1995 (93/12/0334, 94/12/0001,

93/12/0285) the Administrative Court dismissed further complaints from

the applicant concerning his alleged entitlement to payments of various

kinds.

In further decisions of the Administrative Court

(Nos. 93/12/0130, 93/12/0222, 93/12/0344 & 93/12/0347 of 30 June 1995,

93/09/0332 of 19 October 1995, 95/12/0288-95/12/0291 of 12 December

1995 and 95/12/0189 & 216 of 12 December 1995) various further

requests, complaints and applications were rejected or refused.

COMPLAINTS

I. The applicant complains about the decision of 2 December 1992,

alleging violation of Articles 5, 6 and 13 of the Convention and of

Article 2 of Protocol No. 4.

II. The applicant alleges violation of Article 8 of the Convention,

Article 2 of Protocol No. 4, Article 1 of Protocol No. 1, and

Articles 2, 3, 4, 5, 6 and 13 of the Convention.

III. The applicant alleges violation of Article 1 of Protocol No. 1

to the Convention, and of Articles 3, 4, 8, 10 and 13 of the

Convention. In particular, he complains that he was required to pay

costs in the proceedings, and that his costs were re-imbursed on a

different basis from the basis on which he had to pay.

IV. The applicant alleges violation of Article 1 of Protocol No. 1

to the Convention, and of Articles 2 and 5 of the Convention. He claims

that he was deprived of his possessions because he was required to

spend money on the proceedings before the Administrative Court, and

claims that the way the Administrative Court handled the proceedings

amounted to expropriation without compensation. In connection with

Articles 2 and 5 the applicant claims that his life and security of

person are at risk because of externally caused financial strain. He

adds reference to Articles 13, 14, 17 and 15 of the Convention.

V. The applicant alleges violation of Article 1 of Protocol No. 1

to the Convention, and of Articles 3, 4, 6, 8, 10, 13 and 14 of the

Convention. He complains in particular that he had to expend a

considerable amount of time and money on all the proceedings he

brought, and that his contemporaries were able to enjoy more pay for

equal work. He also complains that he did not - and does not - receive

the pension to which he is entitled.

THE LAW

I. The applicant complains about the decision of 2 December 1992,

alleging violation of Articles 5, 6 and 13 (Art. 5, 6, 13) of the

Convention and of Article 2 of Protocol No. 4 (P4-2). However, the

Commission is not required to consider whether this aspect of the case

discloses a violation of the Convention as, by virtue of Article 26

(Art. 26) of the Convention, the Commission may only deal with a matter

"within a period of six months from the date on which the final

decision was taken".

It is clear from the decisions of the Vienna Court of Appeal of

1 February 1993 and 13 April 1993 that no appeal lay against the

decision of 2 December 1992, which was merely a summons to appear. The

Commission was first apprised of the complaint by the application form

of 5 April 1994, that is, more than six months after the decision of

2 December 1992 and, indeed, more than six months after the decisions

of 1 February and 13 April 1993.

It follows that the applicant has not complied with the six

months rule set out in Article 26 (Art. 26) of the Convention, and this

part of the application must be rejected pursuant to Article 27 para.

3 (Art. 27-3).

II. The applicant makes a series of complaints about the decision of

the Vienna Regional Civil Court of 31 January 1995 and the subsequent

decision of the Supreme Court.

The Commission notes that the Regional Court's decision was an

interlocutory decision in proceedings to determine whether a guardian

should be appointed for the applicant. Complaints about the imposition

of a guardianship order as such and procedural matters connected with

it are therefore premature.

The applicant complains that he was arrested in the course of the

proceedings. The Commission notes that the Regional Court found that

the arrest was justified in order to obtain the applicant's attendance

at court, given that he had failed to answer a summons on several

occasions. The applicant's arrest and detention were therefore

compatible with Article 5 para. 1 (b) (Art. 5-1-b) of the Convention,

which permits detention for non-compliance with the lawful order of a

court. Any attendant interference with the applicant's right to

respect for his private and family life was "necessary in a democratic

society ... for the protection of health ..." within the meaning of

Article 8 (Art. 8) of the Convention.

To the extent that the applicant complains of the length of the

proceedings, it appears that the first time the applicant was affected

by the proceedings was on 31 December 1994, when he was summoned to

appear before the Donaustadt District Court. Assuming that Article 6

(Art. 6) applies to the proceedings, the Commission does not find that

they have taken more than a "reasonable time" within the meaning of

that provision.

The Commission has also considered the remainder of the

applicant's complaints in his application forms of 1 November 1995 and

19 April 1996. It finds, to the extent that they are substantiated and

fall within the Commission's competence, that they disclose no

appearance of a violation 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.

III. The applicant makes a series of complaints about the decision of

the Administrative Court of 1 February 1995. In particular, he

complains about the costs position.

The Commission recalls that the imposition of costs may raise

questions under Article 6 para. 1 (Art. 6-1) of the Convention where

the costs are of such an order as to impede effective access to court

(cf. No. 6206/73, Dec. 16.3.75, D.R. 1 p. 66; No. 22741/93, De Luca v.

Italy, Dec. 11.1.95). There is, however, no right under the Convention

or its protocols to reimbursement of a successful litigant's costs

(see, in the context of a person acquitted of a criminal offence, Eur.

Court HR, Masson and van Zon judgement of 28 September 1995, Series A

no. 327-A, p. 19, para. 49).

The applicant does not complain about the imposition of the

initial costs as such, but rather complains that he was reimbursed only

the costs - to the extent that he was successful - for the proceedings

which he ought to have brought. In the absence of a right to costs,

the Commission finds that this complaint raises no issues under

Article 6 para. 1 (Art. 6-1) of the Convention.

The Commission has also considered the remainder of the

applicant's complaints in his application form of 2 November 1995. It

finds, to the extent that they are substantiated and fall within the

Commission's competence, that they disclose no appearance of a

violation of the Convention.

IV. The applicant makes a series of complaints about the

Administrative Court's decision of 23 November 1994. In particular,

he claims that he has been deprived of his possessions.

The Commission notes that in its decision of 23 November 1994 the

Administrative Court did not deprive the applicant of anything, and did

not permit or otherwise confirm any deprivation. Rather, it simply

found that the decision to prevent the applicant dealing with part of

his pension entitlement which had been seized could not be challenged,

and rejected that part of the complaint. The decision to seize could

be challenged.

Accordingly, the applicant was not deprived of any possessions

by the decision of 23 November 1994, with the result that this

complaint raises no issues under Article 1 of Protocol No. 1 (P1-1).

The Commission has also considered the remainder of the

applicant's complaints in his application form of 5 November 1995. It

finds, to the extent that they are substantiated and fall within the

Commission's competence, that they disclose no appearance of a

violation of the Convention.

V. The applicant complains about the series of decisions of 30 June

1995 and of 12 December. In particular, he complains under Article 1

of Protocol No. 1 (P1-1).

The Commission recalls that the Convention does not guarantee a

right to a pension of a particular amount (see, for example, Müller v.

Austria, Comm Rap. 1.10.75, D.R. 3 p. 25). Further, the Convention

does not contain a right for civil servants to receive a particular

salary (No. 7565/76, Dec. 7.3.77, D.R. 9 p. 117). The applicant has

clearly not been deprived of the right to a pension following his early

retirement, and indeed has been permitted to make a lengthy series of

applications to the administrative authorities and the Administrative

Court to allege that he should be entitled to further payments. The

Commission finds that the applicant's enjoyment of his possessions has

not been affected by the decisions he complains of.

The Commission has also considered the remainder of the

applicant's complaints in his application form of 11 April 1996. It

finds, to the extent that they are substantiated and fall within the

Commission's competence, that they disclose no appearance of a

violation of the Convention.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

M.F. BUQUICCHIO J. LIDDY

Secretary President

to the First Chamber of the First Chamber

Annex

The applicant's complaints were made in a series of application

forms. The date of introduction in respect of each set of complaints

is as follows:

I. Application form dated 5 April 1994: introduced on 5 April 1994;

II. Application form dated 1 November 1995: introduced on 1 November

1995;

III. Application forms dated 2 November 1995 and 19 April 1995:

introduced on 9 September 1995;

IV. Application form dated 5 November 1995: introduced on 5 November

1995;

V. Application form dated 11 April 1996: introduced on 11 April

1996.

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G.K. v. AUSTRIA

G.K. v. AUSTRIA

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