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	European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> X. AND Y. v. THE FEDERAL REPUBLIC OF GERMANY - 1013/61 [1962] ECHR 3 (10 March 1962) URL: http://www.bailii.org/eu/cases/ECHR/1962/1013_61.html Cite as: [1962] ECHR 3

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THE FACTS

Whereas the facts of the case may be summarised as follows:

1.  The first Applicant, X., is a workman living in A. and formerly
employed by the firm B. He states that on ... 1960 he introduced before
the Labour Court (Arbeitsgericht) of A. a civil action against his
former employers claiming the sum of DM ... which he alleged was due
to him as compensation for loss of holidays and for pay
during illness.

2.  On ... 1960 the first Applicant executed a power of attorney in
favour of the second Applicant, Dr. Y., a lawyer practising in A. and
this was sent on the same day to the Labour Court with the explanation
that the plaintiff, namely the first Applicant, was of the opinion that
his scanty knowledge of labour law did not permit him adequately to
plead his case.

On ... 1960 the case was heard in court and Dr. Y. attended to
represent the plaintiff who, by reason of his work, was prevented from
appearing in person. The presiding judge refused to recognise the power
of attorney executed in the name of Dr. Y. and the procès-verbal of the
Court states that the plaintiff was not present. Subsequently, the
judge fixed an oral hearing of the case for ... 1960.

3.  The refusal on the part of the judge to recognise the plaintiff's
representation by his lawyer was apparently based on Article 11 of the
Act on Labour Courts (Arbeitsgerichtsgesetz of 3rd September 1953)
which states as follows:

"Article 11

Before the Labour Courts the parties may present their case themselves
or be represented by representatives of trade unions or employers'
unions or of an association of such unions when, according to statutes
or special mandates, such persons are competent to represent and act
for the Association, the union or its members and do not, in addition
to this representation, practise as a lawyer, or, without being a
lawyer, practise professionally for fees for taking cases before
the Court; the same applies to representation by representatives of
independent organisations of employees with social or
professional objects. Lawyers are only admitted before the Labour
Courts as representatives or counsel when it seems necessary for the
safeguard 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 from
the chamber of the Labour Court. This decision is final. If the value
of the matters in dispute is not less than 300 DM, lawyers are admitted
as representatives.

2.  The parties must be represented before the Regional Labour Courts
and the Federal Labour Court by lawyers; any lawyer admitted to the bar
of 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 session
held on ... 1960 without any prior notice being given to the parties
who were consequently absent. These proceedings took place in C., more
than 20 kilometres from A., which is the ordinary seat of the Court and
the place of residence of both Applicants and of the defendant firm.
The complaint was rejected as the safeguard of the plaintiff's
interests did not apparently necessitate the services of a lawyer. This
decision was communicated to the first Applicant on ... 1960, but never
officially 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, various
Articles of the German Basic Law and Article 3 of the Federal
Regulations for Lawyers (Bundesrechtsanwaltsordnung
of 1st August 1959) which states:

"1. The lawyer is the professional (berufene) independent adviser and
representative in all legal matters.
 2. His right to act as a representative in any kind of legal matters
before courts, arbitral tribunals and public authorities can only be
restricted by a Federal Law.
 3. Every person has the right in all legal matters, within the limits
laid down in legal regulations, to be advised and represented by a
lawyer of his choice before the courts, tribunals and
public authorities."

Dr. Y. further submitted that the first Applicant, X., was prevented
by his work from appearing in court, that he needed legal assistance
for a proper presentation of his claim, that he was not a member of a
trade union or any other professional organisation, that the refusal
to allow him the assistance of a lawyer, as laid down in the above
Article 11, was tantamount to forcing him to become a member of a trade
union, that the Labour Court had admitted lawyers in many
other cases in which the value of the matter in dispute was
below 300 DM and, finally, that the refusal on the part of the Court
was an example of discrimination, partly against non-members of unions,
partly against lawyers and, in particular, against the
second Applicant.

6.  Dr. Y. appeared on behalf on the plaintiff at an oral hearing
in 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 in
default, acquitting the defendants and ordering the plaintiff to
pay costs.

The Applicants submit that, according to German law, the hearing
of a case - in which a judgment in default has been given - may be
resumed, if the plaintiff so requests, within a period of three days
from notification, which in this case was given to Mr. X. on ... 1960.
On ... 1960, the very same day, Dr. Y., still acting under a power
of attorney, lodged a formal request with the Court for a resumption
of the hearing. The first Applicant, Mr. X., represented this request
in a letter of ... 1960 which arrived on the following day.

7. The Court accordingly fixed a new hearing for ... 1960. The
plaintiff, Mr. X., appeared personally but the Court dismissed the
request for a resumption of the proceedings on the ground that it had
been lodged on ... 1960, two days after the expiry of the three day
time-limit mentioned above. This decision makes no reference to the
request by Dr. Y. which had arrived in due time. No further remedy was
available to the Applicants and the claim of the first Applicant
of ...DM was forfeited.

8. On ... 1960 Dr. Y. introduced a new constitutional complaint and
the two complaints which had now been joined were rejected on ... 1961
as being manifestly ill-founded and the Applicants were sentenced
to a fine of DM ... for abuse of the right to appeal to the
Constitutional Court.

In order to prepare the submission of the present Application to
the Commission, the second Applicant, Dr. Y. apparently requested
permission to consult the case-file but on ... 1961 the Federal
Constitutional Court refused this request. In reply to a complaint
of ... 1961, the Court stated on ... 1961 that the file did not contain
any documents which were not also in the Applicant's possession.

Whereas the Applicants allege violation of Article 6 of the Convention
and ask that the decisions of the Labour Court of A. should be quashed;

Whereas the first Applicant alleges that, by its refusal to accept his
representation by a lawyer, the Labour Court of A. did not give him a
fair hearing; whereas the second Applicant alleges that by its decision
not to admit him as a lawyer for the first Applicant, the Court
discriminated against him in violation of Article 14 of
the Convention;

THE LAW

Whereas Article 6, paragraph 1 (Art. 6-1) of the Convention provides
that "in the determination of his civil rights and obligations ...
everyone is entitled to a fair and public hearing ...; whereas the
action introduced by the first Applicant, Mr. X., for obtaining
compensation for loss of holidays and pay during illness was clearly
an action to determine that Applicant's civil rights;

Whereas the question arises whether or not the refusal by the Labour
Court to accept his representation by a lawyer constituted a violation
of the provision of a "fair hearing" within the meaning
of Article 6 (Art. 6); whereas this principle cannot be determined in
abstracto but must be considered in the light of the special
circumstances of each case;

Whereas, when a case does not give rise to any serious legal dispute
but only necessitates a correct establishment of the facts, the barring
of the parties from the right to be represented or assisted by
practising lawyers in the procedure cannot be held to constitute a
denial 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 issues
making 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 Courts
provides that, in cases where the value of the matters in dispute is
less than 300 DM, lawyers shall only be admitted before the Labour
Courts as representatives or as counsel when it seems necessary for the
safeguard 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 down
in Article 11 of the Act on Labour Courts; whereas he must thus have
been fully aware of the risk to which he exposed himself by insisting
upon being represented by a lawyer, even after the refusal by the Court
of ... 1960, and by failing to appear in person, or by some
representative other than a lawyer, at the sessions of the Court to
which he was duly summoned;

Whereas it follows that the proceedings before the Labour Court did not
in the present case violate the principle of "fair hearing" within the
meaning of Article 6, paragraph 1 (Art. 6-1) of the Convention;

Whereas the Application lodged by the first Applicant is manifestly
ill-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 by
the above Article 11 from representing his clients before the Labour
Courts, it is to be observed that this question does not involve a
civil right for that Applicant; whereas Article 6 (Art. 6) is not
applicable to the present case; whereas, moreover, the Convention,
under the terms of Article 1 (Art. 1), guarantees only the rights and
freedoms set forth in Section 1 of the Convention and under Article 25,
paragraph 1 (Art. 25-1) only an alleged violation of one of those
rights and freedoms by a Contracting Party can be the subject of an
application admissible by the Commission; whereas in its decision as
to the admissibility of Application No. 134/55 (Z. against the Federal
Republic of Germany) the Commission has already held that the right to
exercise the profession of a lawyer was not guaranteed by
the Convention; whereas it follows a fortiori that restrictions on the
exercise of such profession cannot be considered to be a violation of
any provisions of the Convention; whereas, accordingly, the right
claimed is not as such included among the rights and freedoms
guaranteed by the Convention; whereas, consequently, this part of the
Application is incompatible with the provisions of the Convention and
must be rejected in accordance with Article 27, paragraph 2 (Art. 27-2)
of the Convention;

Now therefore the Commission declares this Application INADMISSIBLE."