Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 15207/89

by H.S.

against Austria

The European Commission of Human Rights (Second Chamber)

sitting in private on 14 October 1991, the following members being

present:

MM. S. TRECHSEL, President of the Second Chamber

G. SPERDUTI

G. JÖRUNDSSON

A. WEITZEL

H. G. SCHERMERS

Mrs. G. H. THUNE

Mr. F. MARTINEZ

Mrs. J. LIDDY

Mr. M.P. PELLONPÄÄ

Mr. K. ROGGE, Secretary to the Second 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 7 May 1987 by

H.S. against Austria and registered on 10 July 1989 under

file No. 15207/89;

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 facts of the case, as they have been submitted by the

parties, may be summarised as follows.

The applicant, born in 1920, is an Austrian national and

resident in Vienna. He is receiving an old age pension.

On 26 September 1977 the applicant instituted proceedings

before the Vienna Labour Court (Arbeitsgericht) against his former

employer who had dismissed him without notice from his job as

commercial agent on 5 July 1977. The applicant claimed, inter alia,

about AS 161,271 with interest as outstanding salary and compensation

for overtime and leave which he had not taken. In the following

proceedings the applicant was first represented by Mrs H., counsel of

his choice.

In written submissions of 18 October 1977 he increased his

claims to about AS 168,886.

On 28 October 1977 the Labour Court received the defendant's

reply upon the action according to which, having regard to proceedings

concerning the applicant's dismissal pending before the Steyr Labour

Court, the Vienna Labour Court was not competent to deal with the case.

On 24 January 1978 the Vienna Labour Court consulted the

files concerning the Steyr Labour Court proceedings where meanwhile

the applicant's action challenging his dismissal had been dismissed.

On 31 January 1978 the applicant lodged a second action with

the Vienna Labour Court against his former employer claiming about

AS 80,485 with interest as commissions due for the first six months of

1975. In the beginning of February 1978 the Vienna Labour Court, upon

the applicant's request, joined the proceedings with his earlier

action of 6 September 1977.

On 9 February 1978 the Steyr Labour Court informed the Vienna

Labour Court that the applicant had appealed in the proceedings

concerning his dismissal.

On 6 April 1978, at a hearing, the Vienna Labour Court

discontinued the proceedings concerning both actions until final

termination of proceedings before the Steyr Labour Court. Proceedings

were to be continued upon request by the parties. The decision was

served upon the parties on 1 June 1978.

On 28 June 1978 the applicant filed a third action with the

Vienna Labour Court against his former employer claiming about

AS 714,562 as commissions due from 1 July 1975 until his dismissal.

On 19 July 1978 the Vienna Regional Court (Landesgericht), upon

the applicant's appeal (Rekurs) of 4 July, quashed the decision of

6 April 1978 and ordered the Vienna Labour Court to continue the

proceedings. The Regional Court found in particular that the validity

of the applicant's dismissal, which was at issue in the proceedings

before the Steyr Labour Court, was not a preliminary question in the

present proceedings. The Regional Court noted in this respect that

the applicant's claims related to periods before his dismissal. The

decision was served upon the parties on 25 August 1978.

On 6 December 1978 the Vienna Labour Court, at a hearing,

joined the three actions filed by the applicant. The defendant

declared that his claims against the applicant adjudicated in the

proceedings before the Steyr Labour Court be set off against the

applicant's claims. The applicant requested a partial consent

judgment (Anerkenntnisurteil) as regards some amounts recognised by

the defendant. The Court decided to consult the files concerning the

Steyr proceedings, and ordered the taking of evidence, in particular

that an opinion be prepared by an accountant expert.

On 31 January 1979 the case was referred to another Department

of the Vienna Labour Court.

On 27 April 1979 the Vienna Labour Court held a further

hearing, and heard, inter alia, a witness.

On 15 June 1979 the Vienna Labour Court, having consulted the

parties, appointed the accountant expert K. to prepare an opinion as

regards the applicant's commission claims. The files were sent to the

expert on 26 June 1979.

On 28 August 1979 the applicant requested the Vienna Labour

Court to grant him legal aid in view of his changed financial

situation.

On 9 January 1980, following reminders by the Court in

October, November and December 1979, the expert submitted his opinion

dated 10 December 1979.

On 16 April 1980, at the next hearing before the Labour Court,

both parties requested that the expert be ordered to supplement his

opinion on several items.

On 2 May 1980 the Vienna Labour Court ordered the expert K. to

amend, within eight weeks, his earlier opinion as regards the items

specified by the parties. The files were sent to him on 12 May 1980.

In September 1980 the expert, following a reminder in July

1980, informed the Court that he had not been able to inspect the

defendant's firm due to holiday periods, but he would carry out the

inspection before 20 September and deliver his opinion before

30 September 1980. On 4 November 1980 the Court sent him a further

reminder. On 1 December 1980 K.'s amended opinion dated 15 November

1980 arrived at the Court. K. stated inter alia that some relevant

facts could only be established on 3 and 12 November 1980.

On 22 January 1981 the Vienna Labour Court dismissed the

applicant's request of August 1979 for legal aid on the ground that he

had a chosen counsel.

On 4 February 1981 the applicant's chosen counsel resigned.

On 18 March 1981 the Vienna Regional Court, upon the

applicant's appeal, quashed the decision refusing him legal aid.

It sent the matter back to the Labour Court for a new decision

considering changes in the applicant's financial situation. The

decision was received by the Labour Court on 19 May 1981.

On 21 May 1981 the Labour Court requested the applicant to

give, within two weeks, details as to his financial situation. The

applicant, due to his absence from domicile, gave the information only

on 7 July 1980.

On 21 July 1981 the Labour Court granted the applicant legal

aid. Mr. F. was appointed counsel.

On 22 September 1981 the applicant's new counsel appealed

against the grant of legal aid on the ground that the applicant's

action, having regard to the amount of claims, had no prospect of

success and appeared malicious. The appeal was declared inadmissible

on 6 October 1981.

On 23 December 1981 the Vienna Labour Court held a hearing and

again heard witnesses. The applicant, due to illness, could not

attend the hearing in person. A further hearing in order to confront

the applicant with a witness was fixed for 25 February 1982.

In February 1982 Mr. H. was appointed as new legal aid counsel

for the applicant, following the death of Mr. F. On 22 February 1982

counsel requested that the hearing be postponed to a date after 6

April 1982. Thereupon 20 April 1982 was fixed as date for the next

hearing. The hearing was cancelled on 14 April on the ground that the

competent Department of the Labour Court was without staff at that

time. In summer 1982 the next hearing was fixed for 2 September 1982.

On 24 August 1982 the applicant submitted his observations

as regards the expert opinions and requested the Vienna Labour Court

in particular to have the opinion further supplemented. His

submissions were received by the Court on 1 September 1982.

At the hearing on 2 September 1982 the Vienna Labour Court

requested the parties to submit any documents relevant to the

proceedings. The expert K. was ordered to amend, within four months,

his opinion as to the applicant's commission claims on the basis of

all relevant documents. The parties also agreed on a conditional

settlement of the case, which was, however, revoked by the defendant.

Following submission of the relevant documents by the

applicant and payment of the expert's advance fees by the defendant,

the files were sent to K. on 25 October 1982.

On 22 December 1982 Mr. D. was appointed as the applicant's

new counsel.

In March and April 1983 the Labour Court urged the expert K.

to produce the amended opinion. On 20 May 1983 K., referring in

particular to numerous discussions with the parties, requested an

extension of the time-limit until 10 June 1983.

On 30 May 1983 the applicant's counsel requested that the

decision to grant the applicant legal aid should be cancelled insofar

as his expenses were covered by an insurance contract for legal

protection.

On 7 June 1983 the expert submitted his amended opinion. He

stated inter alia that he could not complete the opinion earlier

because of the number of documents.

On 15 June 1983 the Vienna Labour Court fixed 12 August as

date for the next hearing. The parties were invited to comment upon

the expert opinion. The defendant's request to postpone the hearing

was dismissed.

At the hearing on 12 August 1983 the Vienna Labour Court

decided to have the opinion amended again.

On 18 August 1983 the applicant's counsel requested that the

expert be summoned for the next hearing, as the applicant had

personally made lengthy submissions as regards the expert opinion,

which he could not possibly reproduce in his written observations. He

enclosed the applicant's comments. The applicant's own submissions

were returned in order to be presented in proper form; they were

received again on 19 September 1983. On 29 September 1983 the

applicant lodged complaints about his counsel.

On 12 October 1983 the files were submitted to the expert K.

for amendment of his opinion within three weeks. K. submitted further

observations on 10 November 1983, which were received by the Court on

22 November 1983.

At the hearing of 23 November 1983 the applicant stated that

he could not immediately comment upon the expert's observations, he

would be absent from Vienna until 23 April 1984 and not be able to

attend a hearing. Thus 25 April 1984 was fixed as date for the next

hearing.

On 27 December 1983 the applicant's counsel forwarded further

comments of the applicant and requested to be relieved from his

duties.

On 5 January 1984 the applicant complained about omissions by

his counsel.

On 24 February 1984 the competent Bar Association dismissed

the request of the applicant's counsel. The Association found that

the difficulties in the relationship between the applicant and Mr. D.

as counsel were not of a personal nature, but resulted from the

applicant's special wishes and ideas, and would thus also occur if

he were represented by another counsel.

On 24 April 1984 the applicant's counsel forwarded further

comments of the applicant upon the expert opinion.

On 25 April 1984 the Vienna Labour Court, having held a

hearing, decided to pass a judgment in written procedure. The Court

also fixed the expert's fees at AS 36,000.

On 9 June 1984 the applicant appealed against the decision on

the expert's fees.

On 3 July 1984 the judgment of 25 April 1984 was served upon

the parties. The Labour Court ordered the defendant to pay the

applicant about AS 276,856 (gross) as well as AS 1460 (net) with

interest. It dismissed the remainder of the action. The Labour Court

relied in particular on the expert opinion as regards the commission

claims and on the testimony of two witnesses as regards sickness

benefits and compensation for leave.

Both parties appealed against the judgment. The applicant's

further request that the judgment be amended was rejected on 1 August

1984. On 8 November 1984 the Vienna Regional Court held a hearing on

the appeals, and decided to pass judgment in written procedure. In

its judgment served on 4 April 1985, the Regional Court quashed the

judgment of 25 April 1984 and sent the case back to the Vienna Labour

Court. The Regional Court found procedural mistakes in the hearing of

witnesses, and the calculation of claims and interest.

On 11 June and 10 September 1985 the Vienna Labour Court

held further hearings and heard in particular two witnesses as

requested by the applicant. The judgment was to be passed in written

procedure. The Labour Court, in its judgment served on 3 March 1986,

ordered the defendant to pay the applicant about AS 234,000

(gross) minus a net amount of AS 71,000, i.e. in particular the

defendant's counter-claims. The remainder of the applicant's action

was dismissed.

In March and April 1986 both parties appealed against the

Labour Court's judgment.

On 11 April 1986 the Vienna Labour Court rejected the

applicant's requests to reduce his claims and to have the judgment

amended. On 27 August 1986, following successful appeal proceedings

in this respect, the Labour Court dismissed the applicant's request to

have the judgment amended. The applicant's further appeal concerning

this matter was dismissed on 7 October 1986. His appeal on points of

law (Revisionsrekurs) of 10 November 1986 was first transmitted to the

Supreme Court (Oberster Gerichtshof) and then to the Vienna Court of

Appeal (Oberlandesgericht) competent as from 1 January 1987.

On 24 April 1987 the Vienna Court of Appeal heard the

parties' appeals and decided that judgment be passed in written

procedure.

Furthermore, on 24 April 1987 the Vienna Court of Appeal

rejected the applicant's appeal on points of law concerning the

amendment of the Labour Court's judgment of 10 September 1985.

On 22 May 1987 a partial judgment (Teilurteil) of the Court of

Appeal was served upon the parties, according to which the defendant's

appeal was well founded and the applicant's appeal partly well founded.

The first instance judgment was amended as partial judgment to

the effect that the case was sent back to the Vienna Labour Court as

regards claims of AS 434,058 (gross) and AS 12,142 (net), and the

dismissal of the remainder of claims was confirmed. The Court of

Appeal found that the Labour Court had to amend its establishement of

facts inter alia as regards some claims concerning commissions,

compensation for leave and working materials. As regards the

applicant's complaint that, although in the course of the proceedings

the composition of the Vienna Labour Court had changed, the witnesses

had not been heard again, the Court of Appeal found that he had failed

to show that in the hearings of 25 April 1984 and 10 September 1985 he

had objected to the reading out of the records including the taking of

evidence.

Furthermore the Court of Appeal decided that the

proceedings at first instance were only to be resumed after its

decision to quash the Labour Court's judgment had become final

(Rechtskraftvorbehalt). The parties thus had the possibility to

appeal first to the Supreme Court (Oberster Gerichtshof).

On 19 June 1987 the applicant filed an appeal on points of law

(Revision) insofar as the Court of Appeal had dismissed his claims

(except AS 797), and had not sent the case concerning all claims back

to the Vienna Labour Court.

On 21 October 1987 the Austrian Supreme Court, sitting in

camera without the parties, dismissed the applicant's appeal on points

of law. Upon the applicant's appeal (Berufung) against the Regional

Court's judgment, the Supreme Court held in a final judgment

(Endurteil) that the defendant had to pay the applicant about AS

240,739 (gross) and AS 445,797 (net) with interest each. It dismissed

the remainder of the applicant's claims and the defendant's

counter-claims.

The Supreme Court found that the applicant, in his appeal on

points of law, had in substance also lodged an appeal concerning the

Court of Appeal's decision to quash the Vienna Labour Court's

judgment of 10 September 1985. Furthermore the Supreme Court

considered that the case was ripe for decision (spruchreif).

As regards the applicant's commission claims the Supreme Court

considered that the Vienna Regional Court, on the basis of proceedings

of eight years and four expert opinions, had only clearly established

claims of about AS 54,000 whereas he claimed about AS 233,000 and the

defendant agreed to about AS 93,000. Proceedings to clarify the

differences would entail an expenditure which could not be justified

in respect of the procedural costs of AS 300,000 per party so far.

The Supreme Court therefore assessed the amount of the applicant's

commission claims as it saw fit (nach freier Ãœberzeugung), in

accordance with S. 273 of the Austrian Code of Civil Procedure

(Zivilprozeßordnung), and fixed it at AS 200,000. It also fixed his

compensation for leave entitlement under the above provision to about

AS 38,000. The applicant's claim for sickness benefits was dismissed

on the ground that the applicant had not duly informed his employer

about his illness. The Supreme Court referred, in this respect, to

the reasoning of the Court of Appeal. Compensation for overtime was

fixed at AS 2000, on the ground the applicant had failed to prove

further claims. The Supreme Court also decided upon several minor

compensation claims, and refund of about AS 45,000 which the defendant

had withheld in connection with alleged counter-claims.

The judgment was served upon the applicant on 19 November 1987.

COMPLAINTS

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

Convention about the length of his proceedings before the Austrian

Courts.

2. The applicant also complains under Article 6 para. 1 of the

Convention about the decisions taken by the Austrian courts, in

particular the final decision by the Supreme Court. He considers that

the proceedings concerned were unfair. In particular in the

proceedings before the Vienna Labour Court two witnesses were heard

too late and witnesses who had given evidence at earlier hearings were

not heard again after changes in the composition of the Court.

Furthermore the Supreme Court incorrectly interpreted his appeal on

points of law and disregarded the Court of Appeal's decision to send

the case back to the court of first instance.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 7 May 1987 and registered on

10 July 1989.

On 9 November 1989 the Commission decided to bring the

application to the notice of the respondent Government and invite them

to submit written submissions on its admissibility and merits.

On 15 February 1990 the observations were submitted by the

respondent Government. On 12 March 1990 the applicant sent his

observations in reply.

On 8 January 1991 the Commission decided to refer the

application to the Second Chamber.

THE LAW

1. The applicant complains about the length of labour court

proceedings against his employer concerning his claims of commissions

and compensation. He relies upon Article 6 para. 1 (Art. 6-1) of the

Convention which, insofar as relevant, provides:

"In the determination of his civil rights and

obligations ... everyone is entitled to a fair and

public hearing within a reasonable time by an

independent and impartial tribunal established by law."

The Government submit that the proceedings were complex as

regards the establishment of the relevant facts which related to the

applicant's professional activities in various European countries.

The examination of his commission and other claims required the taking

of expert evidence. The conduct of the applicant, in particular the

introduction of three proceedings concerning partly identical claims,

repeated extensions and reductions of his claims and the confused

nature of his submissions resulted in a complete disorder. The

Austrian courts could not be held responsible for any delays in the

proceedings, for example with regard to the preparation of the expert

opinions. Moreover, the applicant never raised complaints in this

respect.

The Commission finds that the applicant's complaint about the

length of his civil proceedings raises questions of fact and law which

require an examination of the merits. The application is therefore

not manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention. No other ground for declaring it

inadmissible has been established.

2. The applicant also complains that the decisions taken by the

Austrian courts upon his claims were incorrect, and also of unfairness

of the court proceedings concerned.

With regard to the judicial decisions of which the

applicant complains, the Commission recalls that, in accordance with

Article 19 (Art. 19) of the Convention, its only task is to ensure the

observance of the obligations undertaken by the Parties in the

Convention. In particular, it is not competent to deal with an

application alleging that errors of law or fact have been committed by

domestic courts, except where it considers that such errors might have

involved a possible violation of any of the rights and freedoms set

out in the Convention (see e.g. No. 458/59, Dec. 29.3.60, Yearbook 3

pp. 222, 236; No. 5258/71, Dec. 8.2.73, Collection 43 pp. 71, 77;

No. 7987/77, Dec. 13.12.79, D.R. 18 pp. 31, 45).

Insofar as the applicant complains under Article 6 para. 1

(Art. 6-1) of the Convention about his proceedings before the Vienna

Labour Court as well as the appeal proceedings, the Commission finds

no indication that he did not receive a fair hearing.

The Commission notes in particular that the applicant failed

to show that he, represented first by chosen and then by a legal aid

counsel, could not properly present his arguments, or that the taking

of evidence was unfair. In particular, the Commission refers to the

findings of the Vienna Court of Appeal in its judgment of 24 April

1987 according to which he had failed to lodge complaints about the

reading out of witness statements at the hearings concerned.

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.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION ADMISSIBLE as regards the length

of the Austrian court proceedings,

without prejudging the merits of the case,

DECLARES INADMISSIBLE the remainder of the application.

Secretary to the Second Chamber President of the Second Chamber

(K. ROGGE) (S. TRECHSEL)

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