EUROPEAN COMMISSION OF HUMAN RIGHTS

FIRST CHAMBER

Application No. 17798/91

Olga Renate Deixler

against

Austria

REPORT OF THE COMMISSION

(adopted on 22 October 1997)

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1-15) 1

A. The application

(paras. 2-4) 1

B. The proceedings

(paras. 5-10) 1

C. The present Report

(paras. 11-15) 2

II. ESTABLISHMENT OF THE FACTS

(paras. 16-35) 3

A. Particular circumstances of the case

(paras. 16-33) 3

B. Relevant domestic law

(paras. 34-35) 5

III. OPINION OF THE COMMISSION

(paras. 36-64) 6

A. Complaints declared admissible

(para. 36) 6

B. Points at issue

(para. 37) 6

C. As regards the length of the criminal proceedings and its compliance

with Article 6 para. 1 of the Convention

(paras. 38-47) 6

CONCLUSION

(para. 48) 8

D. As regards the question of access to court, as secured by Article 6

para. 1 of the Convention, following the applicant's disbarment

(paras. 49-61) 8

CONCLUSION

(para. 62) 10

E. Recapitulation

(paras. 63-64) 10

APPENDIX I: PARTIAL DECISION OF THE COMMISSION

AS TO THE ADMISSIBILITY OF THE APPLICATION 11

APPENDIX II: FINAL DECISION OF THE COMMISSION

AS TO THE ADMISSIBILITY OF THE APPLICATION 17

I. INTRODUCTION

1. The following is an outline of the case as submitted to the European

Commission of Human Rights, and of the procedure before the Commission.

A. The application

2. The applicant is an Austrian citizen born in 1945 and residing in

Freistadt.

3. The application is directed against Austria. The respondent Government

were represented by Mr. F. Cede, Agent of the Austrian Federal Government.

4. The case concerns the length of criminal proceedings and the right of

access to court following the applicant's disbarment.

B. The proceedings

5. The application was introduced on 15 August 1990 and registered on 13

February 1991.

6. On 31 August 1994 the Commission (First Chamber) decided, pursuant to Rule

48 para. 2 (b) of its Rules of Procedure, to give notice of the application to

the respondent Government and to invite the parties to submit written

observations on the admissibility and merits of the applicant's complaints under

Article 6 par. 1 of the Convention with regard to the length of the criminal

proceedings and the applicant's right to access to court. It declared the

remainder of the application inadmissible.

7. The Government's observations were submitted on 28 December 1994, after an

extension of the time-limit fixed for that purpose. The applicant replied on 13

February 1995. On 4 July 1995 the Commission decided to grant the applicant

legal aid for the representation of her case.

8. On 28 February 1996 the Commission declared the remainder of the

application admissible.

9. The text of the Commission's decision on admissibility was sent to the

parties on 18 March 1996 and they were invited to submit such further

information or observations on the merits as they wished.  The Government

submitted observations on 24 April 1996 to which the applicant replied on 31 May

1996.

10. After declaring the case admissible, the Commission, acting in accordance

with Article 28 para. 1 (b) of the Convention, also placed itself at the

disposal of the parties with a view to securing a friendly settlement. Active

consultations with the parties took place between 18 March 1996 and 20 July

1996. In the light of the parties' reaction, the Commission now finds that there

is no basis on which such a settlement can be effected.

C. The present Report

11. The present Report has been drawn up by the Commission (First Chamber) in

pursuance of Article 31 of the Convention and after deliberations and votes, the

following members being present:

Mrs J. LIDDY, President

MM M.P. PELLONPÄÄ

E. BUSUTTIL

A. WEITZEL

L. LOUCAIDES

B. MARXER

B. CONFORTI

N. BRATZA

I. BÉKÉS

G. RESS

A. PERENIC

C. BÃŽRSAN

K. HERNDL

M. VILA AMIGÓ

Mrs M. HION

Mr R. NICOLINI

12. The text of this Report was adopted on 22 October 1997 by the Commission

and is now transmitted to the Committee of Ministers of the Council of Europe,

in accordance with Article 31 para. 2 of the Convention.

13. The purpose of the Report, pursuant to Article 31 of the Convention, is:

(i) to establish the facts, and

(ii) to state an opinion as to whether the facts found disclose a breach

by the State concerned of its obligations under the Convention.

14. The Commission's decisions on the admissibility of the application is

annexed hereto.

15. The full text of the parties' submissions, together with the documents

lodged as exhibits, are held in the archives of the Commission.

II. ESTABLISHMENT OF THE FACTS

A. Particular circumstances of the case

The criminal proceedings instituted against the applicant

16. In 1975 inquiries were started against various persons, including the

applicant's former husband, on the suspicion of having committed  inter alia

aggravated fraud and fraudulent conversion in relation to real estate business.

On 4 January 1978 preliminary investigations were opened also against the

applicant.

17. On 15 February 1980 the Vienna Regional Court (Landesgericht) issued a

warrant of arrest against the applicant and her former husband on charges of

aggravated fraud, fraudulent conversion, contravention of the Social Security

Act and forgery committed between 1971 and 1979.

18. On 17 September 1980 the applicant and her former husband were arrested in

Italy. On 24 September and 10 October 1980 the Vienna Regional Court issued two

further warrants of arrest. On 20 November 1981 the applicant was extradited to

Austria where she was remanded in custody until 29 November 1983.

19. On 9 July 1982 the Vienna Public Prosecutor issued an indictment against

the applicant. This was served on her by the prison authorities on 22 July 1982.

20. On 5 September 1985 the Vienna Regional Court informed the applicant that

part of the proceedings had been discontinued on 28 March 1985.  

21. By a decision of 5 August 1986, the Vienna Regional Court admitted a

request of the Public Prosecutor of 21 July 1986 to extend the indictment to

another offence committed between 1975 and 1979 to the detriment of two further

persons and decided to deal with this question in separate proceedings.

22. In these proceedings the Vienna Regional Court appointed an expert on 16

October 1986. In July 1987 this expert was replaced by another expert who after

several extensions of time-limits submitted his expert opinion on 22 June 1988.

23. On 30 August 1988 the main criminal proceedings were discontinued.

24. By a judgment of 28 September 1989, the Vienna Regional Court acquitted

the applicant of the remainder of the charges brought against her. In its

judgment the Vienna Regional Court referred to events which occurred between

1975 and 1979 and observed that the facts which were subject of the remaining

proceedings were, without any doubt, covered by the extradition requests of the

Austrian Government.

25. The Public Prosecutor lodged a plea of nullity against this judgment which

he later withdrew.

26. On 6 April 1990 the Vienna Regional Court informed the applicant that the

judgment of 28 September 1989 had become final on 20 March 1990. At the

applicant's request this judgment was notified to her on 27 July 1990.

The applicant's disbarment

27. By a decision of the Bar Committee (Ausschuß der Rechtsanwaltskammer) for

Vienna, Lower Austria and Burgenland of 30 April 1985 the applicant was struck

off the roll following a final decision of 26 February 1985 by which the Vienna

Commercial Court (Handelsgericht) had dismissed a request to open bankruptcy

proceedings (Konkurs) against the applicant on the ground that her assets were

insufficient to cover the costs of such proceedings. The request to open

bankruptcy proceedings had been brought by a former employee of the applicant's

law firm. Her claim was finally settled by an insolvency fund.

28. On 28 May 1985 the Bar Committee declared the applicant's appeal

(Vorstellung) against the decision to strike her off the roll inadmissible.

29. The Bar Committee and the applicant referred the case for decision to the

Disciplinary Appeals Board for Practising Lawyers and Prospective Practising

Lawyers (Oberste Berufungs- und Disziplinar-kommission für Rechtsanwälte und

Rechtsanwaltsanwärter).

30. On 8 July 1985 the Disciplinary Appeals Board declared the appeal

inadmissible for lack of jurisdiction.

31. On 24 September 1990 the Constitutional Court (Verfassungs-gerichtshof)

dismissed a constitutional appeal lodged by the applicant considering that the

decision by which the applicant was struck off the roll was not contrary to any

of the rights guaranteed by the Federal Constitution.

32. The Constitutional Court pointed out that, in accordance with Section 34

para. 1 (a) of the Practising Lawyers Act (Rechtsanwaltsordnung) the right to

exercise the profession of a practising lawyer should be revoked following the

final opening of bankruptcy proceedings until their final termination. The

Constitutional Court recalled that a request to open bankruptcy proceedings had

been rejected for lack of sufficient means to cover the costs of the bankruptcy

proceedings. Section 28 para. 1 of the Practising Lawyers Act enumerated the

functions exercised by the Bar Committee. Section 28 para. 2 of the Practising

Lawyers Act provided that the Bar Committee also exercised those functions which

were not expressly referred by law to any other body. The striking off the roll

was not assigned to any specified organ. In accordance with Section 28 para. 2

of the Practising Lawyers Act, the Bar Committee was therefore entrusted with

this task. No appeal lay in this matter. Decisions could be appealed against

solely in cases expressly provided for by law.

33. The Constitutional Court concluded that the legal provisions had been

correctly applied when rejecting the applicant's appeal and that her right of

access to a court had thus not been violated. Referring to its previous case-

law, the Constitutional Court recalled that these legal provisions were in

accordance with the Constitution and that it was therefore excluded that any

other constitutional rights of the applicant had been breached.

B. Relevant domestic law

34. Section 34 para. 1 (a) of the Practising Lawyers Act

(Rechtsanwaltsordnung) provided at the relevant time that the right to exercise

the profession of a practising lawyer should be revoked ... following the final

opening of bankruptcy proceedings until their final termination; ... (Die

Berechtigung zur Ausübung der Rechtsanwaltschaft erlischt: ... durch die

rechtskräftige Eröffnung des Konkurses bis zu seiner rechtskräftigen Aufhebung;

...).

35. Section 34 para. 1 (a) of the Practising Lawyers Act (Imp. Law Gazette No.

1990/474 as amended) now provides that the right to exercise the profession of a

practising lawyer shall be revoked ... following the binding opening of

bankruptcy proceedings until their binding termination and the final dismissal

of a request to open bankruptcy proceedings for lack of sufficient means; ...

(Die Berechtigung zur Ausübung der Rechtsanwaltschaft erlischt: ... durch die

rechtskräftige Eröffnung des Konkurses bis zu seiner rechtskräftigen Aufhebung

und die rechtskräftige Abweisung eines Konkursantrags mangels kostendeckenden

Vermögens; ...).

III. OPINION OF THE COMMISSION

A. Complaints declared admissible

36. The Commission has declared admissible the applicant's complaints under

article 6 para. 1 of the Convention that the criminal proceedings against her

were not determined within a reasonable time and that the decision to strike her

off the roll was not subject to a court review.

B. Points at issue

37. The points at issue in the present case are:

- whether the length of the proceedings complained of exceeded the

"reasonable time" requirement referred to in Article 6 para. 1 (Art. 6-1) of the

Convention, and

- whether the applicant was denied access to court in relation to the

question of her disbarment contrary to Article 6 para. 1 (Art. 6-1) of the

Convention.

C. As regards the length of the criminal proceedings and its compliance with

article 6 para. 1 (Art. 6-1) of the Convention

38. Article 6 para. 1 (Art. 6-1) of the Convention,  insofar as relevant,

reads as follows:

"In the determination ... of any criminal charge against him, everyone is

entitled to a ... hearing within a reasonable time by (a) ... tribunal ..."

39. The applicant submits that the criminal proceedings against her have

lasted for more than ten years and cannot be regarded as "reasonable" within the

meaning of Article 6 para. 1 (Art. 6-1) of the Convention. The applicant points

out that the criminal proceedings instituted against her were subsequently split

up into three separate sets of proceedings of which two sets were discontinued

in 1985 and 1988 respectively. However, according to her,  the three sets of

proceedings were inextricably linked to each other and cannot be considered

separately.

40. The delays which occurred in the proceedings had to be attributed to the

authorities. The facts were clear and the relevant documents had been at the

disposal of the judicial authorities. As to delays which occurred in relation to

the establishment of an expert opinion, she submits that she did not contribute

in any way to this delay, since the expert opinion did not concern the charges

brought against her, but against her husband.

41. The Government submit that the proceedings instituted against the

applicant consisted of three separate sets of criminal proceedings. Only the

proceedings in which the applicant was acquitted, are at issue. These

proceedings lasted from 5 August 1986, the date from which the proceedings were

dealt with separately, to 20 March 1990 when the judgment of the Vienna Regional

Court of 28 September 1989 became final. The proceedings were extremely complex.

Voluminous files had to be examined and numerous witnesses had to be heard, some

of them abroad. It took one year and nine months to prepare an expert opinion in

the proceedings which terminated with the applicant's acquittal. This delay was

due to the complexity of the case, but also to the lack of cooperation of the

applicant's former husband. The Austrian authorities have done everything to

streamline the proceedings and no substantial delays were imputable to them,

whereas important delays had to be attributed to the applicant. The Government

mention in this respect the applicant's flight to Italy in 1980 and her

extradition which did not occur before November 1981. The Government conclude

that the overall duration of the proceedings lasting from 5 August 1986 to 20

March 1990 cannot be considered as being unreasonable.

42. The Commission agrees with the applicant that the three sets of

proceedings complained of were indissociable. The proceedings which began on 5

August 1986 with the decision of the Vienna Regional Court to extend the

indictment to another offence committed between 1975 and 1979, must be regarded

as the third stage of the proceedings which began  on 4 January 1978, when

preliminary investigations were instituted against the applicant. This view is

confirmed by the judgment of the Vienna Regional Court of 28 September 1989

covering events which had occurred between 1975 and 1979.

43. The Commission recalls that the right, in criminal matters, to a hearing

within a reasonable time covers the initial period of investigations starting at

the moment the person was "charged" irrespective of whether his case has come

before a trial court or not (Eur. Court HR, Deweer v. Belgium judgment of 27

February 1980, Series A no. 35, pp. 21 et seq., paras. 41-47).

44. The period to be taken into consideration thus started on 4 January 1978,

when preliminary investigations were instituted against the applicant. The

proceedings terminated on 20 March 1990 when the judgment by which she was

acquitted became final. The proceedings thus lasted for approximately twelve

years.

45. The reasonableness of the length of proceedings is to be determined with

reference to the criteria laid down in the Court's case-law and in the light of

the circumstances of the case, which in this instance call for an overall

assessment (Eur. Court HR, Messina v. Italy judgment of 26 February 1993, Series

A no. 257-H, p. 103, para. 26).

46. The Commission finds that the matter must be regarded as rather complex,

taking into account that the proceedings were first instituted against various

other persons including the applicant's husband. Further, it appears that the

applicant undoubtedly contributed to the length of the proceedings by fleeing to

Italy. Taken separately, the different phases of the proceedings were, in

addition, conducted at a regular pace, apart from some periods of delay

attributable to the authorities, in particular with regard to the submission of

an expert opinion, which took approximately one year and eight months (from 16

October 1986 to 22 June 1988) in the proceedings which ended with the

applicant's acquittal. If the case is examined as a whole however, the

Commission considers that a period of approximately twelve years for the

conclusion of the criminal proceedings against the applicant is excessive (see

also Eur. Court HR, Ferrantelli and Santangelo v. Italy judgment of 7 August

1996, Reports of Judgments and Decisions 1996-III, pp. 948-949, para. 42).

47. In the light of the criteria established by case-law and having regard to

the circumstances of the present case, the Commission finds that the length of

the proceedings failed to meet the "reasonable time" requirement.

CONCLUSION

48. The Commission concludes, unanimously that in the present case there has

been a violation of Article 6 para. 1 (Art. 6-1) of the Convention on account of

the length of the criminal proceedings.

D. As regards the question of access to court, as secured by Article 6 para.

1 (Art. 6-1) of the Convention, following the applicant's disbarment

49. 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 ... hearing ... by (a) ... tribunal ..."

50. The applicant submits that she was denied access to court as the decision

of the bar to strike her off the roll was not subject to judicial review. She

points out that Section 34 para. 1 (a) of the Practising Lawyers Act applies

when bankruptcy proceedings have been opened against a lawyer. The ground

invoked for her disbarment, namely the lack of sufficient means to pay the costs

of bankruptcy proceedings, was, however, not contained in Section 34 of the

Practising Lawyers Act then in force. A decision should therefore have been

given on the question of her disbarment in proceedings conducted in accordance

with Article 6 (Art. 6) of the Convention.

51. The Government deny that Article 6 para. 1 (Art. 6-1) of the Convention

applies to the present case. They submit that according to Section 1 of the

Practising Lawyers Act the exercise of the profession of a lawyer requires "no

appointment by a public authority" (behördliche Ernennung). If the legal

requirements are met, the registration as a member of the bar is automatic.

There is a statutory duty of registration. Similarly, the right to practise

terminates where specified by law. There is no further measure required to

obtain this result. The disbarment is mandatory in character; the Bar Committee

must take such a decision if the requisite conditions are met.

52. The Government further submit that Section 5 para. 2 of the Practising

Lawyers Act refers to the lawyer's trustworthiness (Vertrauenswürdigkeit). If a

lawyer fails to meet this requirement in relation to financial matters, as in

the present case, the right to practise terminates automatically in accordance

with the law, namely by virtue of Section 34 of the Practising Lawyers Act.

53. The decision of the bar therefore was of a purely declaratory nature and

did not determine the applicant's civil rights and obligations. Those rights

were determined by the proceedings related to the applicant's insolvency which

were conducted in accordance with Article 6 (Art. 6) of the Convention.

54. The Commission recalls that Article 6 para. 1 (Art. 6-1) secures to

everyone the right to have any claim relating to his civil rights and

obligations brought before a court or tribunal (Eur. Court HR, Golder v. the

United Kingdom judgment of 21 February 1975, Series A no. 18, p. 18, para. 36).

55. The Commission further recalls that the expression "civil rights and

obligations" in Article 6 para. 1 (Art. 6-1) of the Convention has been

interpreted by the European Court of Human Rights to mean, first that the

evidence must disclose the existence of a "contestation" or dispute, secondly,

that the dispute must relate to civil rights and obligations or, in other words,

that the result of the proceedings must be directly decisive for such rights and

obligations which can be said, at least on arguable grounds, to be recognised

under domestic law (Eur. Court HR, Le Compte, Van Leuven and De Meyere v.

Belgium judgment of 23 June 1981, Series A no. 43, pp. 19-21, paras. 41-50; H.

v. Belgium judgment of 30 November 1987, Series A no. 127-B, p. 31, para. 40).

56. The first point which needs to be resolved concerns the question whether

or not a "contestation" or dispute existed between the applicant and her

professional organisation.

57. The Commission notes that Section 34 para. 1 (a) of the Practising Lawyers

Act then in force permitted the striking off of a practising lawyer following

the final opening of bankruptcy proceedings against him until their final

termination. The ground invoked for the applicant's disbarment, namely the lack

of sufficient means to cover bankruptcy proceedings, was not expressly contained

in Section 34 para. 1 (a) of the Practising Lawyers Act. This ground was

subsequently included in that provision in the 1990 version of the Practising

Lawyers Act.

58. The Commission finds that in these circumstances a "contestation" or

dispute existed between the applicant and her professional organisation as to

whether Section 34 para. 1 (a) of the Practising Lawyers Act then in force could

be extended to cover a case where the opening of bankruptcy proceedings had been

refused for lack of sufficient means. The Bar Committee's decision resulted in

the applicant's name being removed from the roll of barristers. There can be no

doubt therefore that the applicant's right to practise as a barrister was

directly in issue before the Bar Committee.

59. As to the second element of whether the determination of the dispute in

the present case was directly decisive for the applicant's civil rights and

obligations, the Commission's refers to its established case-law according to

which the right to continue to exercise the profession of a lawyer is a civil

right (cf. No. 12502/86, Dec. 9.3.88, D.R. 55, p. 251; No. 12458/86, Dec.

18.1.89, D.R. 59, p. 113; see also Eur. Court HR, H. v. Belgium judgment, cited

above, p. 34, para. 48 and de Moor v. Belgium judgment of 23 June 1994, Series A

no. 292-A, p. 16, para. 47).

60. Accordingly, the Commission considers that Article 6 para. 1 (Art. 6-1) of

the Convention applies to the proceedings at issue.

61. The Commission recalls that the decision of the Bar Committee for Vienna,

Lower Austria and Burgenland of 30 April 1985, by which the applicant was struck

off the roll, was not open to review as to its lawfulness by either ordinary or

administrative courts, or by any other body which could be considered a

"tribunal" for the purposes of article 6 para. 1 of the Convention.

Consequently, the applicant did not have at her disposal a procedure satisfying

this provision.

CONCLUSION

62. The Commission concludes, unanimously, that there has been a violation of

Article 6 para. 1 (Art. 6-1) of the Convention.

E. Recapitulation

63. The Commission concludes, unanimously, that there has been a violation of

Article 6 para. 1 (Art. 6-1) of the Convention with regard to the length of the

criminal proceedings brought against the applicant.

64. The Commission concludes, unanimously, that there has been a violation of

Article 6 para. 1 (Art. 6-1) of the Convention with regard to the absence of

judicial review concerning the decision of the applicant's disbarment.

M.F. BUQUICCHIO J. LIDDY

   Secretary President

   to the First Chamber of the First Chamber