Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 13202/87

by O. and A.K.

against Austria

The European Commission of Human Rights sitting in private

on 15 March 1990, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

G. BATLINER

J. CAMPINOS

H. VANDENBERGHE

Mrs. G.H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

L. LOUCAIDES

Mr. H.C. KRÜGER, Secretary to the Commission

Having regard to Article 25 of the Convention for the

Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 23 June 1987

by O. and A.K. against Austria and registered on 10 September 1987

under file No. 13202/87;

Having regard to the report provided for in Rule 40 of the

Rules of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicants are Austrian citizens and living in Graz where

they practise as dentists. Mr. K. was born in 1920 and Mrs. K. in

1926. They are represented by Mr. F. König, a lawyer in Graz.

The facts agreed between the parties may be summarised as

follows.

The applicants complained about the interpretation of the

Regulation on Contributions and Apportionment of Costs (Beitrags- und

Umlageverordnung) and about the amount of an annual contribution they

had to pay for 1978 to their official professional organisation, the

Medical Association (Ärztekammer) of Styria.

The contributions serve to finance a pension and invalidity

fund and are calculated on the basis of an estimated income situation.

According to Section 6 of the above-mentioned Regulations they are

fixed every year by the assembly of the Medical Association.

The applicants' complaints were rejected by the Complaints

Committee (Beschwerdeausschuss) of the Medical Association on 14 May 1986.

They then brought the matter before the Administrative Court

(Verwaltungsgerichtshof). This Court returned the statement of claim

and requested the applicants' counsel by order of 30 July 1986 to

re-submit it within two weeks together with a further copy needed

for communication to the Minister of Health and Environment.

According to Section 24 (1) of the Administrative Court Act (VwGG) a

party to administrative court proceedings has to submit as many copies

of each submission made to the Court as are needed for communication

to all other parties or authorities involved in the proceedings.

On 10 September 1986 the Administrative Court discontinued

(Einstellung) the proceedings in accordance with Section 34 (2) of

the Administrative Court Act on the ground that the applicants had

not complied with the order of 30 July 1986. While counsel had in due

time submitted three copies of the statement of claim, his office had

omitted to submit three identical specifications of costs (Kosten-

verzeichnisse). The original specification had had to be corrected

because further stamp-duty (Stempelmarken) had to be paid for the

additional copy of the statement of claim. The correction which had

therefore become necessary had, however, only been made on two copies

of the annexed specification of costs and not on the third one.

The applicants' request to be granted restitutio in integrum

(Wiedereinsetzung in den vorigen Stand) was rejected by the

Administrative Court on 19 November 1986 (served on applicants'

counsel on 14 January 1987) on the ground that according to the

Court's recent and reaffirmed case-law the incorrect compliance with

an order to complete or amend a statement of claim could not be

treated like the non-observance of a time-limit.

COMPLAINTS

The applicants complain that they were denied access to a

court on formalistic grounds. They argue that the Administrative

Court's jurisprudence violates the principle of a fair trial as

guaranteed by Article 6 of the Convention. They consider that formal

requirements of procedural law should be interpreted in a manner such

as to allow that substantive rights can be pleaded effectively.

Referring to criticism in legal writing of the Administrative Court's

jurisprudence and a recent decision granting restitutio in integrum in

a similar case they consider it inequitable that in case of

non-observance of a time-limit restitutio in integrum may be granted

but not in cases where the time-limit is respected but the submission

does, for reasons not imputable to the party concerned, not comply with

formal requirements.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 23 June 1987 and registered

on 10 September 1987.

On 2 May 1989 the Commission decided to invite the respondent

Government to submit observations on the admissibility and merits of

the application.

The Government's observations were received on 21 July 1989

and the applicants' reply on 11 September 1989.

THE LAW

The applicants complain that they were denied access to the

Administrative Court and thereby arbitrarily denied a fair hearing of

the action they intended to lodge with a view to having the annual

contribution they have to pay to their professional organisation

determined by this Court.

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

which, in its relevant parts, reads:

"In the determination of his civil rights and

obligations ... everyone is entitled to a fair

and public hearing ... by an independent tribunal ..."

The respondent Government submit that the applicants' complaint

only relates to the denial of the request to be granted restitutio in

integrum. These proceedings concerned - in their submission - a

procedural issue only and not a "civil right" or a "civil obligation"

within the meaning of Article 6 (Art. 6). In any event the duty to

contribute to the welfare fund of the professional organisation does,

in the Government's opinion, not constitute a "civil obligation". The

applicants argue the contrary.

The Commission observes that the proceedings in question

related to a remedy which the applicants had lodged against the

Administrative Court's decision of 10 September 1986 refusing to deal

with their action. This decision had the effect of depriving the

applicants of the possibility of having determined by a tribunal to

what extent they owed contributions to the welfare fund of their

professional organisation.

The application consequently raises the question whether the

disputed obligation to pay contributions to the welfare fund of the

professional organisation was of a "civil" nature, in the sense of

Article 6 para. 1 (Art. 6-1), and if so whether access to a tribunal

was, as the applicants submit, denied in a manner violating their

right of access to a court. However, the first question can be left

undecided as in any event there is no element in the present case

indicating that the applicants were denied access to a court in an

arbitrary manner. The Commission has repeatedly recognised the right

of the High Contracting States to make access to courts dependent on

the respect by the parties of formal rules relating in particular to

the form of their submissions to a court and to time-limits (No.

8407/78, Dec. 6.5.80, D.R. 20 p. 179 with further reference).

In the present case the applicants' counsel had been requested

by the Administrative Court to submit a certain number of identical

copies of the statement of claim within a certain time-limit.

Undisputedly he did not comply with this court order as the different

copies submitted by him within the time-limit were not identical in

all details. His request to be granted restitutio in integrum, i.e.

leave to submit out of time identical copies of the statement of the

claim, was rejected on the ground that such a request could only be

considered where a party failed to respect a time-limit, not however

where an incomplete set of the statement of claim was submitted within

the given time-limit. The Comission 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 Court of the rules

governing restitutio in integrum were arbitrary and amounted to a

denial of justice contrary to Article 6 (Art. 6) of the Convention.

It follows that 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

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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O.K. ; A.K. v. AUSTRIA

O.K. ; A.K. v. AUSTRIA