Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 21317/93

by A.W.

against Austria

The European Commission of Human Rights (First Chamber) sitting

in private on 11 May 1993, the following members being present:

MM. J.A. FROWEIN, President of the First Chamber

F. ERMACORA

G. SPERDUTI

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

Sir Basil HALL

Mr. C.L. ROZAKIS

Mrs. J. LIDDY

MM. M. PELLONPÄÄ

G.B. REFFI

Mrs. M.F. BUQUICCHIO, Secretary to the First 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 28 December 1992

by A.W. against Austria and registered on 3 February 1993 under file

No. 21317/93;

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 living in O. She is

represented by Mr. J. Hippacher, a lawyer practising in Lienz. It

follows from her statements and the documents submitted that in

September 1985, the applicant, as the owner of a hotel in Oberlienz,

was requested by the Tyrolian Social Insurance Authorities

(Gebietskrankenkasse) to pay contributions in the amount of some

AS 240,000. It was stated in the order that according to an audit the

correct amount of wages upon which contributions were due had been

concealed in 32 cases.

On 16 August 1990 the Tyrolian Regional Authorities, (Tiroler

Landesregierung) rejected the applicant's request for the repayment of

certain sums which she had been ordered to pay to the Social Security

Authorities as a guarantee (Sicherheitszahlung) for arrears of

contribution payments. It is stated in the decision that the Social

Security Authorities had informed the applicant that her request would

have to be addressed to the Federal Ministry for Labour and Social

Affairs. Furthermore, she had been informed that sums of money claimed

by her were not to be considered as a security deposit. Rather they

had been paid in compliance with her obligations, i.e. in fulfilment

of payments due by her. It is further stated that the applicant's

appeals against payment orders of the Social Security Authorities were

still pending. Therefore it could not now be decided whether or not

the applicant did have any claims for repayment.

The applicant then lodged a constitutional complaint.

By letter of 23 October 1990, the Constitutional Court

(Verfassungsgerichtshof) informed the applicant's Counsel,

Mr. Hippacher, that the brief containing the constitutional complaint

was incomplete as certain annexes were missing.

By letter of 29 October 1990 the applicant's Counsel submitted

further documents to the Constitutional Court.

On 27 November 1990 the Constitutional Court rejected the

constitutional complaint as being inadmissible. It is stated in the

decision that the applicant had not complied with the Court's request

to submit the missing documents as she had sent copies of the decision

complained of but not copies of nine further annexes which were

necessary, namely certain accounts sheets (Berechnungsblätter).

The applicant then addressed a request to the Constitutional

Court in order to be granted leave to appeal out of time in accordance

with Section 146 of the Code on Civil Proceedings (Zivilprozessordnung)

in connection with Section 35 of the Constitutional Court Act (VerfG)

which provides for a subsidiary application of the Code of Civil

Proceedings. The applicant argued that her Counsel had not been

informed in a sufficient manner by the Constitutional Court which

annexes exactly were missing. In any event the fact that certain

annexes were eventually still missing was due to an excusable technical

error in that an employee of applicant's Counsel had inadvertently

failed to photocopy two pages of the documents which were to be sent

to the Constitutional Court. Furthermore, the missing documents were

of no relevance as they did not relate to her complaints.

On 22 June 1992 the Constitutional Court rejected the applicant's

request for reinstatement. The Court stated that the requirements set

out in the legal provisions invoked by the applicant in order to be granted

leave to appeal out of time were not given. In addition, it is

stated that even if the missing documents were of no importance with regard

to the decision on the merits of the applicant's complaints there was no

reason to grant reinstatement as at the admissibility stage of the

proceedings the Court only had to examine whether the formal requirements

were fulfilled. The requirement for a complainant to submit sufficient

copies of all annexes referred to in his complaint, inter alia served the

purpose to enable the Court to send a complete set of copies to the other

parties involved. Therefore it did not matter whether or not annexes were

relevant for a decision on the merits.

COMPLAINTS

The applicant complains that her request for reinstatement was wrongly

dismissed by the Constitutional Court in violation of Article 6 of the

Convention.

She also complains of the proceedings relating to the dispute with the

Social Security Authorities concerning alleged arrears on contribution

payments.

THE LAW

The applicant invokes Article 6 (Art. 6) of the Convention with

respect to proceedings before the Austrian Constitutional Court which

rejected her constitutional complaint as being inadmissible.

However, even assuming that Article 6 (Art. 6) applies to the

proceedings in question the Commission notes that the applicant's counsel

had been requested by the Constitutional Court to submit a certain number

of documents. Indisputably this court order was not fully complied with.

A request to be granted restitutio in integrum, i.e. leave to submit out of

time copies of the missing documents was rejected on the grounds that at

the admissibility stage the court only had to examine whether formal

requirements were fulfilled and no right to reinstatement was given if that

was not the case. The Commission is not competent to examine whether this

decision is based on errors of law or fact unless such errors reveal a

violation of Convention rights. It cannot, however, be found that the

interpretation by the Austrian Constitutional Court of the rules governing

restitutio in integrum were arbitrary and amounted to a denial of justice

that would be contrary to Article 6 (Art. 6) of the Convention, if that

provision were at all applicable.

It follows that the application is in any event manifestly ill-founded

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

Insofar as the applicant complains of the proceedings before the

administrative authorities, and again assuming that Article 6 (Art. 6) of

the Convention applies and that domestic remedies are exhausted, it can

likewise not be found that the applicant's submissions disclose any

appearance of a violation of the Convention and in particular the Article

in question.

For these reasons, the Commission unanimously

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the First Chamber President of the First Chamber

(M.F. BUQUICCHIO) (J.A. FROWEIN)

Menu

A.W. v. AUSTRIA

A.W. v. AUSTRIA

LEXI