AS TO THE ADMISSIBILITY OF

Application No. 40021/98

by H.A. R.

against Austria

The European Commission of Human Rights (First Chamber) sitting in private on 10 September 1998, the following members being present:

MM M.P. PELLONPÄÄ, President

N. BRATZA

E. BUSUTTIL

A. WEITZEL

C.L. ROZAKIS

Mrs J. LIDDY

MM L. LOUCAIDES

B. MARXER

B. CONFORTI

I. BÉKÉS

G. RESS

A. PERENIČ

C. BÃŽRSAN

K. HERNDL

M. VILA AMIGÓ

Mrs M. HION

Mr R. NICOLINI

Mrs M.F. BUQUICCHIO, Secretary to the 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 3 December 1997 by H.A. R. against Austria and registered on 25 February 1998 under file No. 40021/98;

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 national, born in 1939. He is a lawyer by profession, practising and residing in Innsbruck.

The facts of the case, as submitted by the applicant, may be summarised as follows.

On 18 February 1993 the Disciplinary Council ( Disziplinarrat ) of the Tyrolean Bar Chamber ( Tiroler Rechtsanwaltskammer ), upon a complaint lodged by Mr. H., decided to introduce disciplinary proceedings against the applicant on suspicion of violation of his professional duties by charging excessive fees.

On 11 February 1994, after an oral hearing, the Disciplinary Council of the Tyrolian Bar Chamber acquitted the applicant. The Disciplinary Council had regard to the decisions rendered in the context of civil proceedings brought by the applicant against Mr. H. Thus, on 13 January 1992 the Innsbruck Regional Court ( Landesgericht ), as confirmed by the Innsbruck Court of Appeal ( Oberlandesgericht ) on 14 May 1996, had partly dismissed the applicant's claims for fees. However, according to the Disciplinary Council, there was nothing to show that the applicant's conduct in calculating the excessive fees amounted to a violation of professional duties.

On 20 May 1996, following the appeal lodged by the Bar Chamber, the Appeals Board ( Oberste Berufungs - und Disziplinarkommission ) found the applicant guilty of having violated his professional duties and ordered him to pay a fine of 20,000.-ATS. The Appeals Board, having regard to the Innsbruck Regional Court's judgment, considered that the applicant had claimed fees to the total amount of 195,215.60 ATS, which exceeded by 47% the fees found justified by the Regional Court. In the Appeals Board's view, the applicant's negligence in preparing his bill of costs was inter alia evidenced by the facts that he had filed his suit without taking into account the defendant's payment of 44.000.- ATS three weeks before and that he had failed to provide any proof for his claim concerning interest of 10,25%. Taking into account all circumstances, the Appeals Board found that the applicant's conduct amounted to negligence warranting his disciplinary punishment.

On 9 June 1997 the Constitutional Court dismissed the applicant's complaint against the Appeals Board's decision. The Constitutional Court considered that the applicant's right to be heard by a statutory judge was not infringed by the fact that two lawyers of the Tyrolean Bar Chamber, of which the applicant was also a member, were sitting as judges in the Appeals Board. Furthermore, as regards the alleged failure to hear the applicant's trainee barrister as a witness before the Appeals Board, the Constitutional Court found no violation of the applicant's constitutional rights. In this respect, the Constitutional Court noted that the observations submitted by the applicant to the Appeals Board did not comprise a request for such a hearing and that, in any event, the relevance of such taking of evidence had not been shown.

COMPLAINTS

The applicant complains under Article 6 of the Convention about the alleged unfairness of the disciplinary proceedings against him. In particular, he claims that two lawyers of the Tyrolean Bar Chamber sitting as judges in the Appeals Board lacked impartiality. Furthermore, he complains that he was not permitted to explain the amount of the bank interest and that his former trainee barrister was not heard as a witness.

THE LAW

The applicant raises various complaints under Article 6 of the Convention about the disciplinary proceedings against him.

Article 6 para. 1 of the Convention, so far as relevant, reads as follows.

"In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. ... "

a. As regards the applicability of Article 6 of the Convention, the Commission recalls that disciplinary proceedings do not normally lead to a dispute over civil rights an obligations nor to the determination of a criminal charge. Thus, they do not generally fall within the scope of Article 6 (Eur. Court HR, Engel and Others v. the Netherlands judgment of 8 June 1976, Series A no. 22, pp. 33-37, paras. 80-88; Le Compte , Van Leuven and De Meyere v. Belgium judgment of 23 June 1981, Series A no. 43, p. 19, para. 42; Albert and Le Compte v. Belgium judgment of 10 February 1983, Series A no. 58, pp. 14-17, paras. 27-30; see also No. 10059/82, Dec. 5.7.85, D.R. 43, p. 5; No. 23201/94, Milhaud v. France, Dec. 3.3.97, D.R. 88, p. 25 at p. 30).

As to the question whether the disciplinary proceedings against the applicant concerned a dispute over his "civil rights and obligations", the Commission recalls that this phrase refers to all proceedings the result of which is decisive for private rights and obligations. Accordingly, the Convention organs have constantly held that disciplinary proceedings in which the right to continue to exercise a profession is at stake give rise to " contestations (disputes) over civil rights" within the meaning of Article 6 para. 1 (Eur. Court HR, Philis v. Greece (no. 2) judgment of 27 June 1997, Reports of Judgments and Decisions No. 40, 1997-IV, p. 1085, para. 45 with further references). The Commission notes that the cases decided so far all related to disciplinary proceedings in which an unconditional temporary suspension or a permanent prohibition on exercising the profession had actually been imposed at first instance. In the present case, the Disciplinary Council acquitted the applicant and the Appeals Board only imposed a fine on him. However, the question whether or not Article 6 para. 1 may apply also in such circumstances may be left open as the application is in any event inadmissible for the following reasons.

b. The applicant claims that the two members of the Tyrolean Bar Chamber, who were sitting as judges in the Appeals Board, lacked impartiality.

The Commission recalls that the presence of judges making up half the membership of a disciplinary tribunal, including the chairman, provides a definite assurance of impartiality of the disciplinary tribunal (see Eur. Court HR, Le Compte , Van Leuven and De Meyere v. Belgium judgment of 23 June 1981, Series A no. 43, p. 25, para. 58). Therefore, the participation of representatives of the applicant's profession in the Appeals Board does not in itself render the Board partial. Again, the personal impartiality of each member must be presumed until there is proof to the contrary.

The Commission, having regard to all material before it, finds that the applicant's submissions do not disclose any reason to doubt the impartiality on the part of the lawyers concerned. In particular, he did not challenge them for bias in the course of the proceedings before the Appeals Board.

c. As concerns the lack of a hearing of the applicant's former trainee-barrister, the Commission recalls that it is primarily the duty of the domestic courts to take and to assess evidence, while it is incumbent to the Convention organs to examine if the proceedings on the whole were fair within the meaning of Article 6 (see Eur. Court HR, Bricmont v. Belgium judgment of 7 July 1989, Series A no. 158, p. 31, para. 89; Vidal v. Belgium judgment of 22 April 1992, Series A no. 235-B, pp. 32-33, para. 33).

In the present case, the applicant did not repeat his motion for the taking of evidence before the Appeals Board. Moreover, the Constitutional Court concluded that the taking of the evidence in question, namely the questioning of the applicant's former trainee-barrister, was not relevant for the proceedings.

The Commission considers that there is nothing to show that the applicant, a trained and practising lawyer, could not properly present his arguments or that the proceedings were otherwise unfair.

Having regard to all material before it, the Commission finds no indication of a violation of Article 6.

It follows that the application is manifestly ill-founded within the meaning of Article 27 para. 2 of the Convention.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

  M.F. BUQUICCHIO   M.P. PELLONPÄÄ

     Secretary President

to the First Chamber of the First Chamber