CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 14 janvier 1998

.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. 30428/96                       by Gertrude BEER                       against Austria        The European Commission of Human Rights (First Chamber) sitting in private on 14 January 1998, the following members being present:              MM     M.P. PELLONPÄÄ, President                  N. BRATZA                  E. BUSUTTIL                  A. WEITZEL                  C.L. ROZAKIS            Mrs    J. LIDDY            MM     L. LOUCAIDES                  B. MARXER                  B. CONFORTI                  I. BÉKÉS                  G. RESS                  A. PERENIC                  C. BÎRSAN                  K. HERNDL                  M. VILA AMIGÓ            Mrs    M. HION            Mr     R. NICOLINI              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 29 January 1996 by Gertrude BEER against Austria and registered on 13 March 1996 under file No. 30428/96;        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      20 December 1996 and the observations in reply submitted by the      applicant on 3 March 1997 ;        Having deliberated;        Decides as follows:     THE FACTS        The applicant, an Austrian citizen born in 1949 and residing in Vienna, is a nurse.   Before the Commission she is represented by Mr. R. Armster, a lawyer practising in Maria Enzersdorf.        The facts of the case, as submitted by the parties, may be summarised as follows.        On 2 December 1994 the applicant filed an action with the Vienna Labour and Social Court (Arbeits- und Sozialgericht) against her employer, the General Accident Insurance Company (Allgemeine Unfallversicherungsanstalt).   She requested the Court to order her employer to annul her transfer from one department of the hospital where she was working to another department.        On 15 May 1995 the Social and Labour Court granted the applicant's action by a judgment in default (Versäumungsurteil) and ordered the defendant to reimburse the applicant's costs of proceedings in the amount of ATS 33,658.        On 31 May 1995 the General Accident Insurance Company filed an appeal against the cost order (Kostenrekurs).   It submitted that the costs had not been calculated correctly under the Act on Lawyers' Fees (Rechtsanwaltstarifgesetz) and requested a reduction of the costs to be reimbursed to the applicant.   According to the applicant, this appeal was not transmitted to her.        On 19 July 1995 the Vienna Court of Appeal (Oberlandesgericht), sitting in camera, granted the General Accident Insurance Company's appeal, recalculated the costs to be reimbursed and reduced them to ATS 14,754.     COMPLAINTS        The applicant complains under Article 6 para. 1 of the Convention that the principle of equality of arms was violated in the proceedings on the defendant's appeal of 31 May 1995 against the cost order as she had not been informed of this appeal and thus had no possibility to react thereto.   She further invokes Article 13 of the Convention.     PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 29 January 1996 and registered on 13 March 1996.        On 16 October 1996 the Commission decided to communicate the application to the respondent Government.        The Government's written observations were submitted on 20 December 1996.   The applicant replied on 3 March 1997.     THE LAW   1.    The applicant complains under Article 6 para. 1 (Art. 6-1) of the Convention that the principle of equality of arms was violated in the proceedings on the defendant's appeal of 31 May 1995 against the cost order as she had not been informed of this appeal and thus had no possibility to react thereto.   She further invokes Article 13 (Art. 13) of the Convention.        Article 6 para. 1 (Art. 6-1) of the Convention, insofar as relevant, reads as follows:        "In the determination of his civil rights and obligations ...      everyone is entitled to a fair and public hearing ... by an      independent and impartial tribunal established by law. ..."        The Government submit that Article 6 para. 1 (Art. 6-1) of the Convention is not applicable to claims for reimbursement of costs. Under Austrian law such claims are subsidiary rights in relation to the principal claim in civil proceedings and are governed by civil procedural law which make them public law claims.   The Government also refer to Application No. 12446/86, Dec. 5.5.88, D.R. 56, p. 229 in which the Commission has found that the issue of procedural costs was a subsidiary matter which fell outside the scope of Article 6 para. 1 (Art. 6-1) of the Convention.   Furthermore it should also be taken into account that by an unilateral appeal against a cost order questions of fact cannot be raised again on appeal.   The fact that appeal proceedings are unilateral does not constitute, therefore, a violation of the Convention in such cases where matters of procedural law or matters not relating to the main issue are concerned.        The applicant contests this view.   In her opinion Article 6 para. 1 (Art. 6-1) applies to proceedings relating to claims for reimbursement of costs as such claims are pecuniary rights and the outcome of the proceedings is directly decisive for the right in question.   It does not matter how such rights are qualified under domestic law.   Moreover, the rights on which she relied in the Austrian courts in her labour law dispute were civil rights and the same must be true for her claim for reimbursement of costs.   The facts that she could not react to the defendant's appeal against the cost order violated the principle of equality of arms under Article 6 para. 1 (Art. 6-1) of the Convention.        After an examination of this issue in the light of the parties' submissions, the Commission considers that it raises questions of fact and law including questions concerning the applicability of Article 6 (Art. 6) of the Convention, which can only be determined by an examination of the merits.   It follows that the application cannot be declared inadmissible as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   No other grounds for inadmissibility have been established.        For these reasons, the Commission, unanimously,        DECLARES THE APPLICATION ADMISSIBLE, without prejudging the      merits of the case.        M.F. BUQUICCHIO                             M.P. PELLONPÄÄ         Secretary                                  President    to the First Chamber                       of the First Chamber