Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 19740/92

by Luise BASTA

against Austria

The European Commission of Human Rights (First Chamber) sitting

in private on 26 June 1996, the following members being present:

Mr. C.L. ROZAKIS,

Mrs. J. LIDDY

MM. A.S. GÖZÜBÜYÜK

A. WEITZEL

M.P. PELLONPÄÄ

B. MARXER

G.B. REFFI

B. CONFORTI

N. BRATZA

I. BÉKÉS

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

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 5 August 1991 by

Louise BASTA against Austria and registered on 13 March 1992 under file

No. 19740/92;

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

4 May 1993 and on 28 July 1995 and the observations in reply

submitted by the applicant personally on 18 January 1993, her

counsel on 20 August 1995 and again by the applicant personally

on 18 January 1996;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is Hungarian. She was born in 1955 in Hungary but

has also acquired Austrian nationality by marriage and is living in

Vienna, Austria. She is represented by Mr. W. Mayerhofer, a lawyer

practising in Vienna.

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

summarised as follows:

On 22 August 1979 the applicant brought an action before the

Vienna Labour Court (Arbeitsgericht) against the Republic of Austria

alleging that she had been an employee of the Austrian Embassy in

Budapest and had been unlawfully dismissed. She claimed a finding that

her employment contract was still valid and that the defendant owed her

some AS 300.000.

The action was dismissed on 7 July 1981. The applicant appealed

on 7 December 1981.

The appeal was dismissed on 18 February 1982 by the Vienna

Regional Court acting as court of appeal. An appeal on points of law

was granted on 9 November 1982 by the Supreme Court (Oberster

Gerichtshof) which quashed the Regional Court's judgment and sent the

case back to it.

A friendly settlement was reached before the Appellate Court at

a hearing on 21 February 1983 which was, however, revoked by the

applicant on 29 March 1983.

On 16 December 1983 the Federal Ministry of Justice replied to

a request made by the Appellate Court informing it that, under

Hungarian international private law, it was Austrian law which applied

to the applicant's employment contract concluded with the Austrian

Embassy.

Subsequently the Appellate Court considered it necessary to

obtain information about Hungarian law by way of a rogatory request

which was made on 22 November 1984. Despite reminders by the Appellate

Court no answer was received to this request over the following two

years.

On 23 January 1987 the files were transmitted to the Vienna Court

of Appeal which had in the mean-time acquired jurisdiction in the

matter in accordance with changes in the law.

On 22 November 1984 the Court of Appeal again considered it

necessary to submit a rogatory request to the Hungarian authorities via

the Federal Ministry of Justice.

An answer to the rogatory request was eventually received on

27 January 1988 following several reminders.

On 4 May 1988 the Court of Appeal again sent a rogatory request

to the Hungarian authorities via the Federal Ministry of Justice. A

reply was received on 30 April 1990 and a second reply on 9 August

1990, following the appellate court's repeated insistance.

On 12 April 1991 the Vienna Court of Appeal (Oberlandesgericht)

quashed the judgment of 9 June 1981 and also sent the case back for a

new trial.

According to the Appellate Court's findings the applicant alleged

that she had been employed as a chamber maid in the Austrian Embassy

in Budapest since August 1972. On 11 March 1978 she had a traffic

accident and had to be hospitalised. While still on sick leave the

Austrian Embassy dismissed her without justifying the decision. She

argued that this dismissal was incompatible with Hungarian law.

The defendant party denied the existence of an employment

contract. It alleged that the applicant had been employed by the

Ambassador on a personal basis. In addition it argued that the

dismissal dated 19 September 1978 had been carried out in conformity

with Hungarian law.

The Appellate Court stated that in view of information received

in reply to its rogatory requests from the Hungarian Social Security

dated 25 February 1987 but which was not communicated by the Hungarian

Justice Department to the Austrian authorities before 5 July 1990 it

was eventually established that the plaintiff had been an employee of

the defendant party from 21 August 1972 until 26 October 1978.

The Appellate Court considered that consequently it still

remained to be examined whether the plaintiff's accident was related

to her position as an employee (Arbeitsunfall) and if so what claims

the plaintiff could raise under Hungarian law and whether these claims

were directed against the employer or the social insurance. These

questions would have to be determined by the first instance court.

However, on 16 September 1993 the Vienna Labour and Social Court

(Arbeits-und Sozialgericht) dismissed the action on the ground that

under the applicable Austrian law the applicant had failed to bring her

case within a time-limit of 15 days after having received the notice

of her dismissal before the Hungarian Labour Arbitration Commission.

An appeal (Berufung) against the judgment was rejected by the

Vienna Court of Appeal on 28 November 1994 which likewise found that

the applicant had failed to raise the matter on time and in a formal

manner before a Hungarian Labour Arbitration Commission.

The applicant then lodged an appeal on points of law (Revision)

which was rejected by the Supreme Court (Oberster Gerichtshof) on

22 November 1995. This Court left the question open as to whether the

applicant first had to submit her case to a Hungarian Labour

Arbitration Commission. In any event the Hungarian 15 days time-limit

rule was applicable whereas the applicant had seized an Austrian Court

on 22 August 1979 i.e. nearly a year after her dismissal and therefore

by far out of time.

COMPLAINTS

The applicant considers that the Labour Court proceedings have

exceeded a reasonable time and therefore violate Article 6 of the

Convention. She also claims that her action was wrongly dismissed.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 5 August 1991 and registered

on 13 March 1992.

On 8 January 1993 the Commission (First Chamber) decided to

communicate the application to the respondent Government, pursuant to

Rule 48 para. 2 (b) of the Rules of Procedure.

The Government's written observations were submitted on 4 May

1993. The applicant submitted a reply on 29 July 1993.

On 28 May 1993 the applicant requested legal aid which was

granted by the Commission on 13 April 1994.

On 28 July 1995 the Austrian Government reported on the further

development of the proceedings.

On 20 August 1995 further observations were submitted by

applicant's counsel after an extension of the time-limit.

On 19 February 1996 the Government submitted the final decision

given in the proceedings complained of. The applicant personally

commented that decision in a letter received on 18 January 1996.

THE LAW

1. The applicant complains about the length of the domestic Labour

Court proceedings which she had instituted on 22 August 1979 and which

were terminated on 22 November 1995 when the Supreme Court rejected the

applicant's appeal on points of law.

The Government first argues that domestic remedies were not

exhausted because as of 1 January 1990 the applicant could have made

a request under Section 91 of the Judiciary Act

(Gerichtsorganisationsgesetz) with a view to urging the court to take

action.

However, in 1990 the proceedings had already been pending for

more than ten years and in those circumstances it cannot be found that

the possibility invoked by the Government constitutes an effective

remedy.

As regards the length of the proceedings before the Labour Court,

which lasted more than fifteen years, the Commission finds that the

case raises complex questions of law and fact which necessitate an

examination on the merits. The applicant's above complaint therefore

cannot be rejected as being manifestly ill-founded within the meaning

of Article 27 para. 2 (Art. 27-2) of the Convention.

No other reasons to declare this part of the application

inadmissible have been established.

2. The applicant also seems to complain that she was not given a

fair trial. However, in this respect her submissions are

unsubstantiated and do not disclose any appearance of a violation of

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

This part of the application therefore has to be rejected as

being manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

For these reasons, the Commission, unanimously,

DECLARES ADMISSIBLE, without prejudging the merits, the

applicant's complaint about the length of the domestic

proceedings;

DECLARES INADMISSIBLE the remainder of the application.

Secretary to the First Chamber President of the First Chamber

(M.F. BUQUICCHIO) (C.L. ROZAKIS)

Menu

BASTA v. AUSTRIA

BASTA v. AUSTRIA

LEXI