Resolution ResDH (2004)1

concerning the judgment of the European Court of Human Rights of 6 February 2001 in the case of Beer Gertrude against Austria

(Adopted by the Committee of Ministers on 24 February 2004 at the 871st meeting of the Ministers’ Deputies)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocol No. 11 (hereinafter referred to as “the Convention”),

Having regard to the final judgment of the European Court of Human Rights in the Beer Gertrude case delivered on 6 February 2001 and transmitted the same day to the Committee of Ministers under Article 46 of the Convention;

Recalling that the case originated in an application (No. 30428/96) against Austria, lodged with the European Commission of Human Rights under former Article 25 of the Co n vention by Ms Gertrude Beer , an Austrian national, and that the Commission declared admissible the complaint relating to an infringement of the principle of equality of arms, in that the applicant was not informed of an appeal brought by her opponents against a cost order in proceedings to which had been party before a labour tribunal, and could therefore not reply;

Recalling that the case was brought before the Court by the applicant, under Protocol No. 9, on 17 June 1999;

Whereas in its judgment of 6 February 2001 the Court unanimously:

- held that there had been a violation of Article 6, paragraph 1, of the Convention;

- held that the finding of a violation constituted in itself sufficient just satisfaction for any non-pecuniary damage sustained by the applicant;

- held that the government of the respondent state was to pay the applicant, within three months 80 000 Austrian schillings in respect of costs and expenses and that simple interest at an annual rate of 4% would be payable on this sum from the expiry of the above-mentioned three months until settlement;

- dismissed the remainder of the applicant’s claim for just satisfa c tion;

Having regard to the Rules adopted by the Committee of Ministers concerning the application of Article 46, paragraph 2, of the Convention;

Having invited the government of the respondent state to inform it of the mea s ures which had been taken in consequence of the judgment of 6 February 2001, having regard to Austria’s obligation under Article 46, paragraph 1, of the Conve n tion to abide by it;

Whereas during the examination of the case by the Committee of Ministers, the government of the respondent state gave the Committee information about the measures taken preventing new violations of the same kind as that found in the present judgment; this information appears in the appendix to this resolution;

Having satisfied itself that on 21 March 2001, within the time-limit set, the government of the respondent state had paid the a p plicant the sum provided for in the judgment of 6 February 2001,

Declares, after having taken note of the information supplied by the Government of Austria, that it has exe r cised its functions under Article 46, paragraph 2, of the Convention in this case.

Appendix to Resolution ResDH (2004)1

Information provided by the Government of Austria during the examination of the Beer Gertrude case

by the Committee of Ministers

At the origin of the violation found by the European Court of Human Rights was the system established by the Code of Civil Procedure, governing appeals against cost orders ( Kostenrekurs ) . More precisely, Article 521a of the Code of Civil Procedure enumerated in an exclusive way the categories of appeals to be subject to an adversarial procedure before domestic courts and in which, accordingly, the communication of a copy of such appeal to the opposing party was required. Appeals against cost orders were not included in these categories and therefore their communication to the opposing party was not required.

Following the European Court’s judgment, Article 521a of the Code of Civil Procedure was amended by Article 94 (20d) of the “First law on the conversion to Euro” ( Erstes Euro- Umstellungsgezetz ) which entered into force on 8 August 2001 . According to the amendment, the court of first instance is obliged to communicate appeals against cost orders to the opposing party who now has the opportunity to reply within a time-limit of 14 days from the communication of the appeal.

The government is of the opinion that, through this amendment, the principle of equality of arms with regard to appeals against cost orders is henceforth ensured.

Furthermore, the attention of the legal community has been drawn to the judgment through its publication in the Newsletter of Austrian Institute for Human Rights 1/2001.

The Government considers that, given the developments mentioned above, there is no risk of new violations similar to that found in the present case and that Austria has consequently satisfied its obligations under Article 46, paragraph 1, of the Convention.