Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 17798/91

by Olga Renate DEIXLER

against Austria

The European Commission of Human Rights (First Chamber) sitting

in private on 28 February 1996, the following members being present:

Mr. C.L. ROZAKIS, President

Mrs. J. LIDDY

MM. E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

M.P. PELLONPÄÄ

B. MARXER

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

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 15 August 1990 by

Olga Renate DEIXLER against Austria and registered on 13 February 1991

under file No. 17798/91 ;

Having regard to:

- the reports provided for in Rule 47 of the Rules of Procedure of

the Commission;

- the Commission's decision of 31 August 1994 to declare the

application partly inadmissible and to communicate the remainder

of the application to the respondent Government for observations

on its admissibility and merits;

- the observations submitted by the respondent Government on 28

December 1994 and the observations in reply submitted by the

applicant on 13 February 1995;

Having deliberated;

Decides as follows:

THE FACTS

The applicant in an Austrian citizen, born in 1945 and residing

in Freistadt (Austria).

The facts of the case as submitted by the parties may be

summarised as follows.

A. The criminal proceedings instituted against the applicant

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.

On 24 September 1980 and 10 October 1980 the Vienna Regional

Court (Landesgericht) issued two warrants 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.

On 17 September 1980 the applicant and her former husband were

arrested in Frascati (Italy).

On 20 November 1981 the applicant was extradited to Austria where

she was remanded in custody until 29 November 1983.

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.

On 5 September 1985 the Vienna Regional Court informed the

applicant that part of the proceedings had been discontinued on

28 March 1985.

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

admitted a request of the Public Prosecutor of 11 April 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.

In these proceedings the Vienna Regional Court appointed an

expert on 16 October 1986. In July 1987 his expert was replaced by

another expert who after several extensions of time-limits submitted

his expert opinion on 22 June 1988.

On 30 August 1988 the main criminal proceedings were

discontinued.

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 facts 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.

The Public Prosecutor lodged a plea of nullity against this

judgment which he later withdrew.

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.

B. The applicant's disbarment

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.

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

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

inadmissible.

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).

On 8 July 1985 the Disciplinary Appeals Board declared the appeal

inadmissible for lack of jurisdiction.

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.

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 with the binding opening of

bankruptcy proceedings until their binding termination (Die

Berechtigung zur Ausübung der Rechtsanwaltschaft erlischt: ... durch

die rechtskräftige Eröffnung des Konkurses bis zu seiner

rechtskräftigen Aufhebung). 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 further provided that the Bar Committee

exercised also 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.

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.

C. Relevant domestic law

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 ...

with the binding opening of bankruptcy proceedings until their binding

termination; ... (Die Berechtigung zur Ausübung der Rechtsanwaltschaft

erlischt: ... durch die rechtskräftige Eröffnung des Konkurses bis zu

seiner rechtskräftigen Aufhebung; ...).

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 ...

with 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; ...).

COMPLAINTS

The applicant's remaining complaints under Article 6 para. 1 of

the Convention concern the length of the criminal proceedings

instituted against her and the decision of the Bar Committee of

30 April 1985 to strike her off the roll.

1. As to the length of the criminal proceedings, the applicant

submits that these proceedings have lasted for ten years. The facts

were clear and the relevant documents had been at the disposal of the

judicial authorities which, according to her, alone are responsible for

the length of the proceedings.

2. The applicant complains also that the decision to strike her off

the roll was not taken by a tribunal established by law with full

jurisdiction on questions of law and fact and had not been pronounced

publicly. Furthermore there lay no appeal against this decision.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 15 August 1990 and registered

on 13 February 1991.

On 31 August 1994 the Commission decided to communicate the

applicant's complaints relating to the length of the criminal

proceedings and to her disbarment and declared inadmissible the

remainder of the application.

The Government's written observations were submitted on

28 December 1994. The applicant replied on 13 February 1995.

On 4 July 1995 the Commission decided to grant the applicant

legal aid.

THE LAW

1. The applicant complains that the criminal proceedings instituted

against her on 4 January 1978 were not concluded within a reasonable

time as required by Article 6 para. 1 (Art. 6-1) of the Convention.

Article 6 para. 1 (Art. 6-1) of the Convention, as far 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 ..."

The Government submit that the proceedings instituted against the

applicant consist of three separate sets of criminal proceedings.

Solely with regard to the proceedings in which the applicant has been

acquitted, the application has been lodged within the six months' time

limit. 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 to be heard, also 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 considerable

delays were imputable to them, whereas important delays have 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. They also refer to the fact that the

applicant changed her defence counsel which delayed the trial for

almost four months. 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.

The applicant denies that she is responsible for the length of

the proceedings. Delays occurred in the proceedings had to be

attributed to the authorities. The expert opinions did not concern the

charges brought against her. As to the change in her defence counsel,

she submits that her former defence counsel had been arrested and that

therefore she was appointed another official defence counsel. She

finally submits that the facts of the proceedings, which were

terminated with her acquittal on 28 September 1989, concerned events

which had occurred between 1971 and 1979. The criminal proceedings have

therefore to be considered as a whole.

The Commission considers, in the light of the criteria

established by the case law of the Convention organs on the question

of "reasonable time" (the complexity of the case, the applicant's

conduct and that of the competent authorities), and having regard to

all the information in its possession, that a thorough examination of

this complaint is required, both as to the law and as to the facts.

2. The applicant complains also that the question of her being

struck off the roll was not determined by an impartial and independent

tribunal established by law as required by Article 6 para. 1 (Art. 6-1)

of the Convention.

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

relevant, reads as follows:

"In the determination of his civil rights and obligations

..., everyone is entitled to a fair and public hearing ...

by an independent and impartial tribunal established by law

..."

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 (Rechtsanwaltsordnung) 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 practice

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.

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

practice terminates automatically in accordance with the law, namely

by virtue of Section 34 of the Practising Lawyers Act.

The decision of the bar therefore was of a purely declarative

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.

This is contested by the applicant. She points out that Section

34 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 not contained in Section 34 of the

Practising Lawyers Act. Nor did this provision refer to the question

of a lawyer's trustworthiness. 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.

After an examination of these issue in the light of the parties'

submissions, the Commission considers that it raises questions of fact

and law which can only be determined by an examination of the merits.

It follows that this part of the application cannot, therefore, be

declared inadmissible as being manifestly ill-founded within the

meaning of Article 27 para. 2 (Art. 27-2) of the Convention. No other

grounds for inadmissibility have been established.

For these reasons, the Commission, unanimously,

DECLARES ADMISSIBLE the remainder of the application.

Secretary to the First Chamber President of the First Chamber

(M.F. BUQUICCHIO) (C.L. ROZAKIS)

Menu

DEIXLER v. AUSTRIA

DEIXLER v. AUSTRIA