Lexploria

THE FACTS

Whereas the facts presented by the Applicant may be summarised as

follows:

The Applicant is an Austrian citizen born in 1919 and at present

resident in Graz.

In 1961 and 1963 disciplinary proceedings were brought against the

Applicant, who is a lawyer, before the Disciplinary Committee of the

Bar Association for the Steiermark (Disziplinarrat der Steiermärkischen

Rechtsanwaltskammer) for overcharging in a number of cases. The

Applicant was of the opinion that the Disciplinary Committee was not

impartial and that a number of irregularities had been committed in the

intermediate (interlocutory) proceedings in these cases. He therefore

applied under paragraph 27 of the Disciplinary Code (Disziplinarstatut)

for the cases to be transferred to a different Disciplinary Committee.

The Disciplinary Committee referred this application to the Supreme

Appeals and Disciplinary Commission for Lawyers and Legal Pupils

(Oberste Berufungs- und Disziplinarkommission für Rechtsanwälte und

Rechtsanwaltsanwärter).

On ..., 1962, the Supreme Appeals and Disciplinary Commission rejected

the applications as being out of time.

On appeal the Constitutional Court (Verfassungsgerichtshof) set aside

this decision on the ground that the decision on the question of

whether an application was made in time did not lie within the

competence of the Supreme Appeals and Disciplinary Commission but in

that of the Disciplinary Committee.

The Disciplinary Committee then informed the Supreme Appeals and

Disciplinary Commission that it did not consider that the applications

were out of time and again referred the applications together with a

subsequent application relating to a case arising in 1963, to the

Supreme Commission.

On ..., 1964, the Supreme Commission rejected the applications for

transfer on the ground that the facts alleged by the Applicant did not

establish any lack of impartiality in the Disciplinary Committee and

the other alleged irregularities were not such as to justify a transfer

to another Disciplinary Committee.

The Applicant appealed to the Constitutional Court which rejected his

appeal on ..., 1965. The decision was served on the Applicant on ...,

1965.The Court rejected the Applicant's contention that he had not been

judged by a proper court, because the Supreme Commission had proceeded

with complete lack of logic in its application of paragraph 27 of the

Disciplinary Code (denkunmöglich angewendet) and thus did not

constitute a court at all. The Court held that the decision had been

lawfully made by a competent court. Furthermore, contrary to what

appeared to the Applicant's opinion, it did not contain any decision

on the question of whether the Disciplinary Committee had been properly

constituted at the time it made a number of intermediate

(interlocutory) decisions. Nor did it in any way forejudge the future

composition of the Disciplinary Commission in the hearing of the case

against the Applicant.

In respect of the Applicant's contention that the principle of equality

of treatment had been violated with regard to the Applicant by the

decision, the Court decided that the Supreme Commission had not acted

arbitrarily in deciding that the Disciplinary Committee had not shown

a lack of impartiality and that there were not other weighty reasons

requiring the case to be transferred to another Disciplinary Committee

because:

- in 16 cases mentioned by the Applicant various persons had allegedly

improperly taken part in intermediate decisions of the Disciplinary

Committee;

- the Disciplinary Committee had not dealt with one matter relating to

the Applicant according to the relevant provisions;

- the Disciplinary Committee had not dealt with the Applicant in the

same manner as it had dealt with other lawyers in similar cases;

- the Disciplinary Committee had allegedly in certain cases given the

Supreme Commission incorrect information in its report and had

committed certain other irregularities;

- the representative of the Bar Association (Kammeranwalt) had

allegedly committed certain irregularities;

- the Court rejected the Applicant's contention that the decision of

the Supreme Commission constituted a violation of Article 6 of the

Convention on Human Rights and maintained its former jurisprudence

according to which Article 6 does not apply to disciplinary as opposed

to criminal or civil proceedings.

The Applicant maintains that Article 6 of the Convention, properly

interpreted, applies to disciplinary proceedings as these are, on a

substantive (as opposed to a merely procedural) classification,

criminal proceedings since they imply punishment and the punishments

which can be imposed are as far-reaching in their effects as many of

those imposed by the criminal law. Furthermore, it is not a valid

objection that disciplinary proceedings only to a limited class of

persons as this is true of certain crimes.

Presuming that Article 6 applies, the Applicant maintains that it is

violated by the fact that the Supreme Appeals and Disciplinary

Commission for Lawyers is not a court but an administrative authority

and so does not constitute a tribunal within the meaning of Article 6.

He submits that the right to a fair trial is further violated as the

Supreme Commission took its decision after hearing the Attorney-General

(Generalprokuratur) in the absence of the Applicant at a hearing which

was not open to the public.

The Applicant further maintains that by refusing his applications for

transfer the Supreme Commission deprived him of his right to trial by

an impartial court contrary to Article 6.

The Applicant also complains that an effective remedy was not available

for the alleged violation of Article 6 and invokes Article 13 of the

Convention.

THE LAW

Whereas, in so far as the Applicant's complaints concern alleged

violations of Article 6 (Art. 6) of the Convention, it is to be

observed that Article specifically relates only to the determination

of civil rights and obligations or of a criminal charge; whereas in the

case of the Applicant the proceedings concerned his alleged misconduct

as a member of the legal profession and took place before disciplinary

authorities; whereas it is clear that these proceedings were not

concerned with a determination of the Applicant's civil rights or

obligations within the meaning of paragraph (1) of Article 6

(Art. 6-1); whereas it is equally clear that the Applicant was not

charged with a criminal offense within that paragraph; whereas,

therefore, Article 6 (Art. 6) of the Convention is not applicable to

the proceedings instituted against the Applicant before the

disciplinary authorities; whereas it follows that this part of the

Application is incompatible with the provisions of the Convention;

whereas in this connection the Commission refers to its decision in

Application No. 734/60 S. v. the Federal Republic of Germany

(Collection of Decisions No. 6, page 28); whereas the Applicant's

complaint of a violation of Article 13 (Art. 13) is based on the fact

that no effective remedy is provided under Austrian law for alleged

breaches of Article 6 (Art. 6) in connection with disciplinary

proceedings;

Whereas the Commission has already found that the Applicant's complaint

of a violation of Article 6 (Art. 6) is incompatible with the

Convention;

Whereas it follows that his complaint of a violation of Article 13

(Art. 13) is likewise incompatible with the Convention; whereas the

Application must accordingly be rejected in accordance with Article 27,

paragraph (2) (Art. 27-2), of the Convention.

Now therefore the Commission declares this Application inadmissible.

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X. v. AUSTRIA

X. v. AUSTRIA