CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 15 mars 1990

.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 }                        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)