المساعد الشخصي الرقمي

مشاهدة النسخة كاملة : AND Y. v. THE FEDERAL REPUBLIC OF GERMANY - 1013/61 [1962] ECHR 3 (10 March 1962)



هيثم الفقى
07-14-2009, 01:04 AM
X. AND Y. v. THE FEDERAL REPUBLIC OF GERMANY - 1013/61 [1962] ECHR 3 (10 March 1962)
THE FACTSWhereas the facts of the case may be summarised as follows:1. The first Applicant, X., is a workman living in A. and formerlyemployed by the firm B. He states that on ... 1960 he introduced beforethe Labour Court (Arbeitsgericht) of A. a civil action against hisformer employers claiming the sum of DM ... which he alleged was dueto him as compensation for loss of holidays and for payduring illness.2. On ... 1960 the first Applicant executed a power of attorney infavour of the second Applicant, Dr. Y., a lawyer practising in A. andthis was sent on the same day to the Labour Court with the explanationthat the plaintiff, namely the first Applicant, was of the opinion thathis scanty knowledge of labour law did not permit him adequately toplead his case.On ... 1960 the case was heard in court and Dr. Y. attended torepresent the plaintiff who, by reason of his work, was prevented fromappearing in person. The presiding judge refused to recognise the powerof attorney executed in the name of Dr. Y. and the procès-verbal of theCourt states that the plaintiff was not present. Subsequently, thejudge fixed an oral hearing of the case for ... 1960.3. The refusal on the part of the judge to recognise the plaintiff'srepresentation by his lawyer was apparently based on Article 11 of theAct on Labour Courts (Arbeitsgerichtsgesetz of 3rd September 1953)which states as follows:"Article 11Before the Labour Courts the parties may present their case themselvesor be represented by representatives of trade unions or employers'unions or of an association of such unions when, according to statutesor special mandates, such persons are competent to represent and actfor the Association, the union or its members and do not, in additionto this representation, practise as a lawyer, or, without being alawyer, practise professionally for fees for taking cases beforethe Court; the same applies to representation by representatives ofindependent organisations of employees with social orprofessional objects. Lawyers are only admitted before the LabourCourts as representatives or counsel when it seems necessary for thesafeguard 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 fromthe chamber of the Labour Court. This decision is final. If the valueof the matters in dispute is not less than 300 DM, lawyers are admittedas representatives.2. The parties must be represented before the Regional Labour Courtsand the Federal Labour Court by lawyers; any lawyer admitted to the barof 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 sessionheld on ... 1960 without any prior notice being given to the partieswho were consequently absent. These proceedings took place in C., morethan 20 kilometres from A., which is the ordinary seat of the Court andthe place of residence of both Applicants and of the defendant firm.The complaint was rejected as the safeguard of the plaintiff'sinterests did not apparently necessitate the services of a lawyer. Thisdecision was communicated to the first Applicant on ... 1960, but neverofficially 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, variousArticles of the German Basic Law and Article 3 of the FederalRegulations for Lawyers (Bundesrechtsanwaltsordnungof 1st August 1959) which states:"1. The lawyer is the professional (berufene) independent adviser andrepresentative in all legal matters. 2. His right to act as a representative in any kind of legal mattersbefore courts, arbitral tribunals and public authorities can only berestricted by a Federal Law. 3. Every person has the right in all legal matters, within the limitslaid down in legal regulations, to be advised and represented by alawyer of his choice before the courts, tribunals andpublic authorities."Dr. Y. further submitted that the first Applicant, X., was preventedby his work from appearing in court, that he needed legal assistancefor a proper presentation of his claim, that he was not a member of atrade union or any other professional organisation, that the refusalto allow him the assistance of a lawyer, as laid down in the aboveArticle 11, was tantamount to forcing him to become a member of a tradeunion, that the Labour Court had admitted lawyers in manyother cases in which the value of the matter in dispute wasbelow 300 DM and, finally, that the refusal on the part of the Courtwas an example of discrimination, partly against non-members of unions,partly against lawyers and, in particular, against thesecond Applicant.6. Dr. Y. appeared on behalf on the plaintiff at an oral hearingin 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 indefault, acquitting the defendants and ordering the plaintiff topay costs.The Applicants submit that, according to German law, the hearingof a case - in which a judgment in default has been given - may beresumed, if the plaintiff so requests, within a period of three daysfrom notification, which in this case was given to Mr. X. on ... 1960.On ... 1960, the very same day, Dr. Y., still acting under a powerof attorney, lodged a formal request with the Court for a resumptionof the hearing. The first Applicant, Mr. X., represented this requestin a letter of ... 1960 which arrived on the following day.7. The Court accordingly fixed a new hearing for ... 1960. Theplaintiff, Mr. X., appeared personally but the Court dismissed therequest for a resumption of the proceedings on the ground that it hadbeen lodged on ... 1960, two days after the expiry of the three daytime-limit mentioned above. This decision makes no reference to therequest by Dr. Y. which had arrived in due time. No further remedy wasavailable to the Applicants and the claim of the first Applicantof ...DM was forfeited.8. On ... 1960 Dr. Y. introduced a new constitutional complaint andthe two complaints which had now been joined were rejected on ... 1961as being manifestly ill-founded and the Applicants were sentencedto a fine of DM ... for abuse of the right to appeal to theConstitutional Court.In order to prepare the submission of the present Application tothe Commission, the second Applicant, Dr. Y. apparently requestedpermission to consult the case-file but on ... 1961 the FederalConstitutional Court refused this request. In reply to a complaintof ... 1961, the Court stated on ... 1961 that the file did not containany documents which were not also in the Applicant's possession.Whereas the Applicants allege violation of Article 6 of the Conventionand ask that the decisions of the Labour Court of A. should be quashed;Whereas the first Applicant alleges that, by its refusal to accept hisrepresentation by a lawyer, the Labour Court of A. did not give him afair hearing; whereas the second Applicant alleges that by its decisionnot to admit him as a lawyer for the first Applicant, the Courtdiscriminated against him in violation of Article 14 ofthe Convention;THE LAWWhereas Article 6, paragraph 1 (Art. 6-1) of the Convention providesthat "in the determination of his civil rights and obligations ...everyone is entitled to a fair and public hearing ...; whereas theaction introduced by the first Applicant, Mr. X., for obtainingcompensation for loss of holidays and pay during illness was clearlyan action to determine that Applicant's civil rights;Whereas the question arises whether or not the refusal by the LabourCourt to accept his representation by a lawyer constituted a violationof the provision of a "fair hearing" within the meaningof Article 6 (Art. 6); whereas this principle cannot be determined inabstracto but must be considered in the light of the specialcircumstances of each case;Whereas, when a case does not give rise to any serious legal disputebut only necessitates a correct establishment of the facts, the barringof the parties from the right to be represented or assisted bypractising lawyers in the procedure cannot be held to constitute adenial 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 issuesmaking 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 Courtsprovides that, in cases where the value of the matters in dispute isless than 300 DM, lawyers shall only be admitted before the LabourCourts as representatives or as counsel when it seems necessary for thesafeguard 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 downin Article 11 of the Act on Labour Courts; whereas he must thus havebeen fully aware of the risk to which he exposed himself by insistingupon being represented by a lawyer, even after the refusal by the Courtof ... 1960, and by failing to appear in person, or by somerepresentative other than a lawyer, at the sessions of the Court towhich he was duly summoned;Whereas it follows that the proceedings before the Labour Court did notin the present case violate the principle of "fair hearing" within themeaning of Article 6, paragraph 1 (Art. 6-1) of the Convention;Whereas the Application lodged by the first Applicant is manifestlyill-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 bythe above Article 11 from representing his clients before the LabourCourts, it is to be observed that this question does not involve acivil right for that Applicant; whereas Article 6 (Art. 6) is notapplicable to the present case; whereas, moreover, the Convention,under the terms of Article 1 (Art. 1), guarantees only the rights andfreedoms set forth in Section 1 of the Convention and under Article 25,paragraph 1 (Art. 25-1) only an alleged violation of one of thoserights and freedoms by a Contracting Party can be the subject of anapplication admissible by the Commission; whereas in its decision asto the admissibility of Application No. 134/55 (Z. against the FederalRepublic of Germany) the Commission has already held that the right toexercise the profession of a lawyer was not guaranteed bythe Convention; whereas it follows a fortiori that restrictions on theexercise of such profession cannot be considered to be a violation ofany provisions of the Convention; whereas, accordingly, the rightclaimed is not as such included among the rights and freedomsguaranteed by the Convention; whereas, consequently, this part of theApplication is incompatible with the provisions of the Convention andmust be rejected in accordance with Article 27, paragraph 2 (Art. 27-2)of the Convention;Now therefore the Commission declares this Application INADMISSIBLE."