CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 10 mars 1962

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }  THE FACTS   Whereas the facts of the case may be summarised as follows:   1.   The first Applicant, X., is a workman living in A. and formerly employed by the firm B. He states that on ... 1960 he introduced before the Labour Court (Arbeitsgericht) of A. a civil action against his former employers claiming the sum of DM ... which he alleged was due to him as compensation for loss of holidays and for pay during illness.   2.   On ... 1960 the first Applicant executed a power of attorney in favour of the second Applicant, Dr. Y., a lawyer practising in A. and this was sent on the same day to the Labour Court with the explanation that the plaintiff, namely the first Applicant, was of the opinion that his scanty knowledge of labour law did not permit him adequately to plead his case.   On ... 1960 the case was heard in court and Dr. Y. attended to represent the plaintiff who, by reason of his work, was prevented from appearing in person. The presiding judge refused to recognise the power of attorney executed in the name of Dr. Y. and the procès-verbal of the Court states that the plaintiff was not present. Subsequently, the judge fixed an oral hearing of the case for ... 1960.   3.   The refusal on the part of the judge to recognise the plaintiff's representation by his lawyer was apparently based on Article 11 of the Act on Labour Courts (Arbeitsgerichtsgesetz of 3rd September 1953) which states as follows:   "Article 11   Before the Labour Courts the parties may present their case themselves or be represented by representatives of trade unions or employers' unions or of an association of such unions when, according to statutes or special mandates, such persons are competent to represent and act for the Association, the union or its members and do not, in addition to this representation, practise as a lawyer, or, without being a lawyer, practise professionally for fees for taking cases before the Court; the same applies to representation by representatives of independent organisations of employees with social or professional objects. Lawyers are only admitted before the Labour Courts as representatives or counsel when it seems necessary for the safeguard of the rights of the parties.   The President of the Labour Court shall decide on this question.   If admission is refused the party concerned may request a decision from the chamber of the Labour Court. This decision is final. If the value of the matters in dispute is not less than 300 DM, lawyers are admitted as representatives.   2.   The parties must be represented before the Regional Labour Courts and the Federal Labour Court by lawyers; any lawyer admitted to the bar of a German court is entitled to be a representative ..."   4.   Immediately after the refusal by the presiding judge, Dr. Y. addressed a complaint to the court which was rejected during a session held on ... 1960 without any prior notice being given to the parties who were consequently absent. These proceedings took place in C., more than 20 kilometres from A., which is the ordinary seat of the Court and the place of residence of both Applicants and of the defendant firm. The complaint was rejected as the safeguard of the plaintiff's interests did not apparently necessitate the services of a lawyer. This decision was communicated to the first Applicant on ... 1960, but never officially to the second Applicant, Dr. Y.   5. On ... 1960, Dr. Y. lodged a constitutional complaint (Verfassungsbeschwerde) atttacking the decisions of ... and ... 1960. He invoked the provisions of Article 6 of the Convention, various Articles of the German Basic Law and Article 3 of the Federal Regulations for Lawyers (Bundesrechtsanwaltsordnung of 1st August 1959) which states:   "1. The lawyer is the professional (berufene) independent adviser and representative in all legal matters.   2. His right to act as a representative in any kind of legal matters before courts, arbitral tribunals and public authorities can only be restricted by a Federal Law.   3. Every person has the right in all legal matters, within the limits laid down in legal regulations, to be advised and represented by a lawyer of his choice before the courts, tribunals and public authorities."   Dr. Y. further submitted that the first Applicant, X., was prevented by his work from appearing in court, that he needed legal assistance for a proper presentation of his claim, that he was not a member of a trade union or any other professional organisation, that the refusal to allow him the assistance of a lawyer, as laid down in the above Article 11, was tantamount to forcing him to become a member of a trade union, that the Labour Court had admitted lawyers in many other cases in which the value of the matter in dispute was below 300 DM and, finally, that the refusal on the part of the Court was an example of discrimination, partly against non-members of unions, partly against lawyers and, in particular, against the second Applicant.   6.   Dr. Y. appeared on behalf on the plaintiff at an oral hearing in these proceedings before the Labour Court on ... 1960 as, again, the plaintiff was prevented from attending by reason of his work. The Court held that the plaintiff was absent and gave judgment in default, acquitting the defendants and ordering the plaintiff to pay costs.   The Applicants submit that, according to German law, the hearing of a case - in which a judgment in default has been given - may be resumed, if the plaintiff so requests, within a period of three days from notification, which in this case was given to Mr. X. on ... 1960. On ... 1960, the very same day, Dr. Y., still acting under a power of attorney, lodged a formal request with the Court for a resumption of the hearing. The first Applicant, Mr. X., represented this request in a letter of ... 1960 which arrived on the following day.   7. The Court accordingly fixed a new hearing for ... 1960. The plaintiff, Mr. X., appeared personally but the Court dismissed the request for a resumption of the proceedings on the ground that it had been lodged on ... 1960, two days after the expiry of the three day time-limit mentioned above. This decision makes no reference to the request by Dr. Y. which had arrived in due time. No further remedy was available to the Applicants and the claim of the first Applicant of ...DM was forfeited.   8. On ... 1960 Dr. Y. introduced a new constitutional complaint and the two complaints which had now been joined were rejected on ... 1961 as being manifestly ill-founded and the Applicants were sentenced to a fine of DM ... for abuse of the right to appeal to the Constitutional Court.   In order to prepare the submission of the present Application to the Commission, the second Applicant, Dr. Y. apparently requested permission to consult the case-file but on ... 1961 the Federal Constitutional Court refused this request. In reply to a complaint of ... 1961, the Court stated on ... 1961 that the file did not contain any documents which were not also in the Applicant's possession.   Whereas the Applicants allege violation of Article 6 of the Convention and ask that the decisions of the Labour Court of A. should be quashed;   Whereas the first Applicant alleges that, by its refusal to accept his representation by a lawyer, the Labour Court of A. did not give him a fair hearing; whereas the second Applicant alleges that by its decision not to admit him as a lawyer for the first Applicant, the Court discriminated against him in violation of Article 14 of the Convention;   THE LAW   Whereas Article 6, paragraph 1 (Art. 6-1) of the Convention provides that "in the determination of his civil rights and obligations ... everyone is entitled to a fair and public hearing ...; whereas the action introduced by the first Applicant, Mr. X., for obtaining compensation for loss of holidays and pay during illness was clearly an action to determine that Applicant's civil rights;   Whereas the question arises whether or not the refusal by the Labour Court to accept his representation by a lawyer constituted a violation of the provision of a "fair hearing" within the meaning of Article 6 (Art. 6); whereas this principle cannot be determined in abstracto but must be considered in the light of the special circumstances of each case;   Whereas, when a case does not give rise to any serious legal dispute but only necessitates a correct establishment of the facts, the barring of the parties from the right to be represented or assisted by practising lawyers in the procedure cannot be held to constitute a denial of a fair hearing;   Whereas it is clear that the action introduced by the first Applicant, which concerned a sum of less than 100 DM, did not involve legal issues making it necessary for him to be represented or assisted by a lawyer;   Whereas it is to be noted that Article 11 of the Act on Labour Courts provides that, in cases where the value of the matters in dispute is less than 300 DM, lawyers shall only be admitted before the Labour Courts as representatives or as counsel when it seems necessary for the safeguard of the rights of the parties;   Whereas, the first Applicant, when he consulted the second Applicant, who was a lawyer, must have been informed of the Rules laid down in Article 11 of the Act on Labour Courts; whereas he must thus have been fully aware of the risk to which he exposed himself by insisting upon being represented by a lawyer, even after the refusal by the Court of ... 1960, and by failing to appear in person, or by some representative other than a lawyer, at the sessions of the Court to which he was duly summoned;   Whereas it follows that the proceedings before the Labour Court did not in the present case violate the principle of "fair hearing" within the meaning of Article 6, paragraph 1 (Art. 6-1) of the Convention;   Whereas the Application lodged by the first Applicant is manifestly ill-founded and must be rejected in accordance with Article 27, paragraph 2 (Art. 27-2) of the Convention;   Whereas, in regard to the complaints made by the second Applicant, Dr.Y. that because of his being a practising lawyer he was barred by the above Article 11 from representing his clients before the Labour Courts, it is to be observed that this question does not involve a civil right for that Applicant; whereas Article 6 (Art. 6) is not applicable to the present case; whereas, moreover, the Convention, under the terms of Article 1 (Art. 1), guarantees only the rights and freedoms set forth in Section 1 of the Convention and under Article 25, paragraph 1 (Art. 25-1) only an alleged violation of one of those rights and freedoms by a Contracting Party can be the subject of an application admissible by the Commission; whereas in its decision as to the admissibility of Application No. 134/55 (Z. against the Federal Republic of Germany) the Commission has already held that the right to exercise the profession of a lawyer was not guaranteed by the Convention; whereas it follows a fortiori that restrictions on the exercise of such profession cannot be considered to be a violation of any provisions of the Convention; whereas, accordingly, the right claimed is not as such included among the rights and freedoms guaranteed by the Convention; whereas, consequently, this part of the Application is incompatible with the provisions of the Convention and must be rejected in accordance with Article 27, paragraph 2 (Art. 27-2) of the Convention;   Now therefore the Commission declares this Application INADMISSIBLE."