CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 11 mai 1993

.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. 21317/93                       by A.W.                       against Austria           The European Commission of Human Rights (First Chamber) sitting in private on 11 May 1993, the following members being present:                MM.   J.A. FROWEIN, President of the First Chamber                   F. ERMACORA                   G. SPERDUTI                   E. BUSUTTIL                   A.S. GÖZÜBÜYÜK              Sir   Basil HALL              Mr.   C.L. ROZAKIS              Mrs. J. LIDDY              MM.   M. PELLONPÄÄ                   G.B. REFFI              Mrs. M.F. BUQUICCHIO, Secretary to the First 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 28 December 1992 by A.W. against Austria and registered on 3 February 1993 under file No. 21317/93;         Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;         Having deliberated;         Decides as follows:       THE FACTS         The applicant is an Austrian citizen living in O. She is represented by Mr. J. Hippacher, a lawyer practising in Lienz.   It follows from her statements and the documents submitted that in September 1985, the applicant, as the owner of a hotel in Oberlienz, was requested by the Tyrolian Social Insurance Authorities (Gebietskrankenkasse) to pay contributions in the amount of some AS 240,000.   It was stated in the order that according to an audit the correct amount of wages upon which contributions were due had been concealed in 32 cases.         On 16 August 1990 the Tyrolian Regional Authorities, (Tiroler Landesregierung) rejected the applicant's request for the repayment of certain sums which she had been ordered to pay to the Social Security Authorities as a guarantee (Sicherheitszahlung) for arrears of contribution payments.   It is stated in the decision that the Social Security Authorities had informed the applicant that her request would have to be addressed to the Federal Ministry for Labour and Social Affairs.   Furthermore, she had been informed that sums of money claimed by her were not to be considered as a security deposit.   Rather they had been paid in compliance with her obligations, i.e. in fulfilment of payments due by her.   It is further stated that the applicant's appeals against payment orders of the Social Security Authorities were still pending.   Therefore it could not now be decided whether or not the applicant did have any claims for repayment.         The applicant then lodged a constitutional complaint.         By letter of 23 October 1990, the Constitutional Court (Verfassungsgerichtshof) informed the applicant's Counsel, Mr. Hippacher, that the brief containing the constitutional complaint was incomplete as certain annexes were missing.         By letter of 29 October 1990 the applicant's Counsel submitted further documents to the Constitutional Court.         On 27 November 1990 the Constitutional Court rejected the constitutional complaint as being inadmissible.   It is stated in the decision that the applicant had not complied with the Court's request to submit the missing documents as she had sent copies of the decision complained of but not copies of nine further annexes which were necessary, namely certain accounts sheets (Berechnungsblätter).         The applicant then addressed a request to the Constitutional Court in order to be granted leave to appeal out of time in accordance with Section 146 of the Code on Civil Proceedings (Zivilprozessordnung) in connection with Section 35 of the Constitutional Court Act (VerfG) which provides for a subsidiary application of the Code of Civil Proceedings.   The applicant argued that her Counsel had not been informed in a sufficient manner by the Constitutional Court which annexes exactly were missing.   In any event the fact that certain annexes were eventually still missing was due to an excusable technical error in that an employee of applicant's Counsel had inadvertently failed to photocopy two pages of the documents which were to be sent to the Constitutional Court.   Furthermore, the missing documents were of no relevance as they did not relate to her complaints.         On 22 June 1992 the Constitutional Court rejected the applicant's request for reinstatement.   The Court stated that the requirements set out in the legal provisions invoked by the applicant in order to be granted leave to appeal out of time were not given. In addition, it is stated that even if the missing documents were of no importance with regard to the decision on the merits of the applicant's complaints there was no reason to grant reinstatement as at the admissibility stage of the proceedings the Court only had to examine whether the formal requirements were fulfilled.   The requirement for a complainant to submit sufficient copies of all annexes referred to in his complaint, inter alia served the purpose to enable the Court to send a complete set of copies to the other parties involved.   Therefore it did not matter whether or not annexes were relevant for a decision on the merits.   COMPLAINTS         The applicant complains that her request for reinstatement was wrongly dismissed by the Constitutional Court in violation of Article 6 of the Convention.         She also complains of the proceedings relating to the dispute with the Social Security Authorities concerning alleged arrears on contribution payments.   THE LAW         The applicant invokes Article 6 (Art. 6) of the Convention with respect to proceedings before the Austrian Constitutional Court which rejected her constitutional complaint as being inadmissible.         However, even assuming that Article 6 (Art. 6) applies to the proceedings in question the Commission notes that the applicant's counsel had been requested by the Constitutional Court to submit a certain number of documents.   Indisputably this court order was not fully complied with. A request to be granted restitutio in integrum, i.e. leave to submit out of time copies of the missing documents was rejected on the grounds that at the admissibility stage the court only had to examine whether formal requirements were fulfilled and no right to reinstatement was given if that was not the case.   The Commission 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 Constitutional Court of the rules governing restitutio in integrum were arbitrary and amounted to a denial of justice that would be contrary to Article 6 (Art. 6) of the Convention, if that provision were at all applicable.         It follows that the application is in any event manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.         Insofar as the applicant complains of the proceedings before the administrative authorities, and again assuming that Article 6 (Art. 6) of the Convention applies and that domestic remedies are exhausted, it can likewise not be found that the applicant's submissions disclose any appearance of a violation of the Convention and in particular the Article in question.         For these reasons, the Commission unanimously         DECLARES THE APPLICATION INADMISSIBLE.     Secretary to the First Chamber         President of the First Chamber        (M.F. BUQUICCHIO)                        (J.A. FROWEIN)