CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 26 juin 1996

.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. 19740/92                       by Luise BASTA                       against Austria        The European Commission of Human Rights (First Chamber) sitting in private on 26 June 1996, the following members being present:              Mr.    C.L. ROZAKIS,            Mrs.   J. LIDDY            MM.    A.S. GÖZÜBÜYÜK                  A. WEITZEL                  M.P. PELLONPÄÄ                  B. MARXER                  G.B. REFFI                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  G. RESS                  A. PERENIC                  C. BÎRSAN                  K. HERNDL              Mrs.   M.F. BUQUICCHIO, Secretary to the 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 5 August 1991 by Louise BASTA against Austria and registered on 13 March 1992 under file No. 19740/92;        Having regard to:   -     the reports provided for in Rule 47 of the Rules of Procedure of      the Commission;   -     the observations submitted by the respondent Government on      4 May 1993 and on 28 July 1995 and the observations in reply      submitted by the applicant personally on 18 January 1993, her      counsel on 20 August 1995 and again by the applicant personally      on 18 January 1996;        Having deliberated;        Decides as follows:   THE FACTS        The applicant is Hungarian.   She was born in 1955 in Hungary but has also acquired Austrian nationality by marriage and is living in Vienna, Austria.   She is represented by Mr. W. Mayerhofer, a lawyer practising in Vienna.        The facts of the case, as submitted by the parties, may be summarised as follows:        On 22 August 1979 the applicant brought an action before the Vienna Labour Court (Arbeitsgericht) against the Republic of Austria alleging that she had been an employee of the Austrian Embassy in Budapest and had been unlawfully dismissed.   She claimed a finding that her employment contract was still valid and that the defendant owed her some AS 300.000.        The action was dismissed on 7 July 1981.   The applicant appealed on 7 December 1981.        The appeal was dismissed on 18 February 1982 by the Vienna Regional Court acting as court of appeal.   An appeal on points of law was granted on 9 November 1982 by the Supreme Court (Oberster Gerichtshof) which quashed the Regional Court's judgment and sent the case back to it.         A friendly settlement was reached before the Appellate Court at a hearing on 21 February 1983 which was, however, revoked by the applicant on 29 March 1983.        On 16 December 1983 the Federal Ministry of Justice replied to a request made by the Appellate Court informing it that, under Hungarian international private law, it was Austrian law which applied to the applicant's employment contract concluded with the Austrian Embassy.        Subsequently the Appellate Court considered it necessary to obtain information about Hungarian law by way of a rogatory request which was made on 22 November 1984.   Despite reminders by the Appellate Court no answer was received to this request over the following two years.        On 23 January 1987 the files were transmitted to the Vienna Court of Appeal which had in the mean-time acquired jurisdiction in the matter in accordance with changes in the law.        On 22 November 1984 the Court of Appeal again considered it necessary to submit a rogatory request to the Hungarian authorities via the Federal Ministry of Justice.        An answer to the rogatory request was eventually received on 27 January 1988 following several reminders.        On 4 May 1988 the Court of Appeal again sent a rogatory request to the Hungarian authorities via the Federal Ministry of Justice.   A reply was received on 30 April 1990 and a second reply on 9 August 1990, following the appellate court's repeated insistance.        On 12 April 1991 the Vienna Court of Appeal (Oberlandesgericht) quashed the judgment of 9 June 1981 and also sent the case back for a new trial.        According to the Appellate Court's findings the applicant alleged that she had been employed as a chamber maid in the Austrian Embassy in Budapest since August 1972.   On 11 March 1978 she had a traffic accident and had to be hospitalised.   While still on sick leave the Austrian Embassy dismissed her without justifying the decision.   She argued that this dismissal was incompatible with Hungarian law.        The defendant party denied the existence of an employment contract.   It alleged that the applicant had been employed by the Ambassador on a personal basis.   In addition it argued that the dismissal dated 19 September 1978 had been carried out in conformity with Hungarian law.        The Appellate Court stated that in view of information received in reply to its rogatory requests from the Hungarian Social Security dated 25 February 1987 but which was not communicated by the Hungarian Justice Department to the Austrian authorities before 5 July 1990 it was eventually established that the plaintiff had been an employee of the defendant party from 21 August 1972 until 26 October 1978.        The Appellate Court considered that consequently it still remained to be examined whether the plaintiff's accident was related to her position as an employee (Arbeitsunfall) and if so what claims the plaintiff could raise under Hungarian law and whether these claims were directed against the employer or the social insurance.   These questions would have to be determined by the first instance court.        However, on 16 September 1993 the Vienna Labour and Social Court (Arbeits-und Sozialgericht) dismissed the action on the ground that under the applicable Austrian law the applicant had failed to bring her case within a time-limit of 15 days after having received the notice of her dismissal before the Hungarian Labour Arbitration Commission.        An appeal (Berufung) against the judgment was rejected by the Vienna Court of Appeal on 28 November 1994 which likewise found that the applicant had failed to raise the matter on time and in a formal manner before a Hungarian Labour Arbitration Commission.        The applicant then lodged an appeal on points of law (Revision) which was rejected by the Supreme Court (Oberster Gerichtshof) on 22 November 1995.   This Court left the question open as to whether the applicant first had to submit her case to a Hungarian Labour Arbitration Commission.   In any event the Hungarian 15 days time-limit rule was applicable whereas the applicant had seized an Austrian Court on 22 August 1979 i.e. nearly a year after her dismissal and therefore by far out of time.   COMPLAINTS        The applicant considers that the Labour Court proceedings have exceeded a reasonable time and therefore violate Article 6 of the Convention.   She also claims that her action was wrongly dismissed.   PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 5 August 1991 and registered on 13 March 1992.        On 8 January 1993 the Commission (First Chamber) decided to communicate the application to the respondent Government, pursuant to Rule 48 para. 2 (b) of the Rules of Procedure.        The Government's written observations were submitted on 4 May 1993.   The applicant submitted a reply on 29 July 1993.        On 28 May 1993 the applicant requested legal aid which was granted by the Commission on 13 April 1994.        On 28 July 1995 the Austrian Government reported on the further development of the proceedings.        On 20 August 1995 further observations were submitted by applicant's counsel after an extension of the time-limit.        On 19 February 1996 the Government submitted the final decision given in the proceedings complained of. The applicant personally commented   that decision in a letter received on 18 January 1996.   THE LAW   1.    The applicant complains about the length of the domestic Labour Court proceedings which she had instituted on 22 August 1979 and which were terminated on 22 November 1995 when the Supreme Court rejected the applicant's appeal on points of law.        The Government first argues that domestic remedies were not exhausted because as of 1 January 1990 the applicant could have made a request under Section 91 of the Judiciary Act (Gerichtsorganisationsgesetz) with a view to urging the court to take action.        However, in 1990 the proceedings had already been pending for more than ten years and in those circumstances it cannot be found that the possibility invoked by the Government constitutes an effective remedy.        As regards the length of the proceedings before the Labour Court, which lasted more than fifteen years, the Commission finds that the case raises complex questions of law and fact which necessitate an examination on the merits.   The applicant's above complaint therefore cannot be rejected as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.        No other reasons to declare this part of the application inadmissible have been established.   2.    The applicant also seems to complain that she was not given a fair trial.   However, in this respect her submissions are unsubstantiated and do not disclose any appearance of a violation of Article 6 para. 1 (Art. 6-1) of the Convention.        This part of the application therefore has to be rejected as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.        For these reasons, the Commission, unanimously,        DECLARES ADMISSIBLE, without prejudging the merits, the      applicant's complaint about the length of the domestic      proceedings;        DECLARES INADMISSIBLE the remainder of the application.   Secretary to the First Chamber        President of the First Chamber        (M.F. BUQUICCHIO)                   (C.L. ROZAKIS)