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 31 August 1994, the following members being present:

MM. A. WEITZEL, President

C.L. ROZAKIS

F. ERMACORA

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

Mrs. J. LIDDY

MM. M.P. PELLONPÄÄ

B. MARXER

B. CONFORTI

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

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 report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

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

Freistadt (Austria).

The applicant and her husband have lodged a previous application

(N° 9231/80) against Italy and Austria in which they complained of

their detention in Italy in view of their extradition to Austria and

of the extradition proceedings concerned as well as of the conduct of

criminal proceedings instituted against them by the Austrian

authorities.

On 11 March 1983 the Commission declared this application

inadmissible as being manifestly ill-founded within the meaning of

Article 27 para. 2 of the Convention.

The facts of the present case as submitted by the applicant may

be summarised as follows.

In 1977 inquiries were started against the applicant and her

husband on the suspicion of having committed inter alia aggravated

fraud and fraudulent conversion between 1971 and 1979 in relation to

the activities of several companies belonging to the applicant's

husband and dealing with real estate transactions.

By a decision of 4 September 1979 the Bar Committee (Ausschuss

der Rechtsanwaltskammer) for Vienna, Lower Austria and Burgenland

suspended the applicant from practice as a barrister until the final

outcome of the criminal proceedings.

On 24 September 1980 and 10 October 1980 the Vienna Regional

Court (Landesgericht) issued two warrants of arrest against the

applicant and her 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 husband were arrested

in Frascati (Italy).

On 20 November 1981 the applicant was extradited to Austria where

she was remanded in custody.

On 24 May 1982 the Vienna Court of Appeal (Oberlandesgericht)

decided that the applicant's detention on remand should not exceed nine

months. On the Vienna Public Prosecutor's appeal the Vienna Court of

Appeal decided that the applicant would be granted a conditional

release subject to the payment of 2 million Schillings.

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 29 November 1983 the applicant was released from detention on

remand.

On 5 September 1985 the Vienna Regional Court informed the

applicant that part of the criminal proceedings instituted against her

had been discontinued on 28 March 1985.

By a judgment of 15 April 1986 the Vienna Regional Court

convicted the applicant of a breach of the Austrian Social Security Act

(Allgemeines Sozialversicherungsgesetz - ASVG) and imposed a pecuniary

fine on her. The applicant was found guilty of having failed to pay

during the period from January to May 1979 to the Vienna Social

Security Authorities (Gebietskrankenkasse) contributions in an amount

of 9.242,20 Schillings for the staff employed in her law firm.

The applicant lodged a plea of nullity against this judgment.

On 3 November 1987 the Supreme Court (Oberster Gerichtshof)

quashed the judgment and referred the case back to the first instance

court for an examination of the question as to whether or not the

Social Insurance Authorities' requests for contribution payments had

been served on the applicant.

The Vienna Regional Court then discontinued these proceedings.

By a judgement of 28 September 1989, the Vienna Regional Court

acquitted the applicant of the remainder of the charges brought against

her.

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 it was notified to her on

27 July 1990.

Meanwhile, by a decision of the Bar Committee (Ausschuss der

Rechtsanwaltskammer) for Vienna, Lower Austria and Burgenland of 30

April 1985 the applicant had been 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. This request was

brought by a former employee in 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 (Oberste Berufungs- und

Disziplinarkommission für Rechtsanwälte und Rechtsanwaltsanwärter).

On 8 July 1985 the Disciplinary Appeals Board declared the appeal

inadmissible on account of a 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 Barristers' Act, the right to exercise

the profession of barrister 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 Barristers' Act (Rechtsanwaltsordnung)

enumerated the functions exercised by the Bar Committee. Section 28

para. 2 of the Barristers' 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

Barristers' 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 to a fair hearing 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.

COMPLAINTS

1. The applicant complains under Article 6 para. 1 of the Convention

that the decision of the Bar Committee of 30 April 1985 to strike her

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

jurisdiction on questions of law and fact. The decision had not been

pronounced publicly and there lay no appeal against this decision.

2. The applicant next complains under Article 1 of Protocol No. 1

to the Convention that as a result of her being disbarred following the

decision of the Bar Committee of 30 April 1985 she is prevented from

practising as a barrister and deprived of her right to earn money.

3. The applicant complains also of the length of the criminal

proceedings amounting to ten years. The facts were clear. The relevant

documents had been at the disposal of the judicial authorities.

According to her, the judicial authorities alone are responsible for

the length of the proceedings. She also appears to complain about the

alleged unfairness of the proceedings.

She invokes Article 6 paras. 1, 2 and 3 (a) of the Convention.

4. The applicant finally complains that she was kept illegally in

detention on remand from 20 November 1981 to 29 November 1983 by virtue

of two invalid warrants of arrest issued by the Vienna Regional Court

against her.

She invokes para. 1 (b) and (c) and paras 2, 3, 4 and 5 of

Article 5.

THE LAW

1. The applicant complains 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 ... hearing ... by an

independent and impartial tribunal established by law."

The Commission considers that it cannot, on the basis of the

file, determine the admissibility of this complaint and that it is

therefore necessary, in accordance with Rule 48 para. 2 (b) of the

Rules of Procedure, to give notice of this complaint to the respondent

Government.

2. The applicant also complains that the decision of the Bar

Committee to strike her off the roll constitutes an unjustified

interference with her right to the peaceful enjoyment of her

possessions, contrary to Article 1 of Protocol No. 1 (P1-1) to the

Convention in the sense that she was prevented from practising as a

barrister and being deprived of her right to enjoy the fruits of her

own labour.

Article 1 of Protocol No. 1 (P1-1) reads as follows:

"(1) Every natural or legal person is entitled to the

peaceful enjoyment of his possessions. No one shall be

deprived of his possessions except in the public interest

and subject to the conditions provided for by law and by

the general principles of international law.

(2) The preceding provisions shall not, however, in any way

impair the right of a State to enforce such laws as it

deems necessary to control the use of property in

accordance with the general interest or to secure the

payment of taxes or other penalties."

Assuming that there has been an interference with the applicant's

rights as guaranteed by this article, the Commission finds that such

interference has not failed to strike a fair balance between the public

interests and the applicant's private interests.

It follows that this part of the application is manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

3. a) The applicant further complains that the criminal proceedings

instituted against her in 1979 were not concluded within a reasonable

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

The Commission considers that it cannot, on the basis of the

file, determine the admissibility of this complaint and that it is

therefore necessary, in accordance with Rule 48 para. 2 (b) of the

Rules of Procedure, to give also notice of this complaint to the

respondent Government.

b) As far as the applicant seems to complain under Article 6

paras. 1 and 3 (Art. 6-1, 6-3) of the Convention that the criminal

proceedings against her were unfair, the Commission recalls that any

procedural defects which may have existed at the time of an accused's

trial must be considered to have been rectified by the accused's

subsequent acquittal (see No. 5575/72, Dec. 8.7.74, D.R. 1 p. 45;

No. 8083/77, Dec. 13.3.80, D.R. 19 pp. 223 and 226; No. 15831/89,

Dec. 25.2.91, D.R. 69 p. 317).

The Commission notes that the proceedings instituted against the

applicant have been discontinued and that on 28 September 1989 the

Vienna Regional Court acquitted the applicant of the remaining charges

brought against her. It follows that the applicant cannot now claim to

be a "victim" of a violation of the Convention as required by Article

25 (Art. 25) since she has regained redress for her complaints in this

respect.

This part of the application, therefore, is manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

4. The applicant finally complains under Article 5 (Art. 5) of the

Convention that her detention on remand from 20 November 1981 to

29 November 1983 was unlawful.

However, the Commission is not required to decide whether or not

the facts alleged by the applicant disclose any appearance of a

violation of Article 5 (Art. 5) of the Convention as, under Article 26

(Art. 26) of the Convention, it may only deal with a matter after all

domestic remedies have been exhausted according to the generally

recognized rules of international law, and within a period of six

months from the date on which the final decision was taken.

In this respect the Commission observes that the applicant has

not shown that she appealed to the Judges' Chamber or that she had

instituted proceedings for unlawful detention. It follows that the

applicant has not complied with the requirement as to the exhaustion

of domestic remedies contained in Article 26 (Art. 26) of the

Convention.

In any event, even assuming that the applicant did exhaust

domestic remedies, the Commission finds that the applicant failed to

comply with the time limit stipulated by Article 26 (Art. 26) of the

Convention as she was released from detention on remand on

29 November 1983 but introduced the present application only on

15 August 1990.

This part of the application must, therefore, be rejected in

accordance Article 27 para. 3 (Art. 27-3) of the Convention.

For these reasons, the Commission, unanimously,

DECIDES TO ADJOURN its examination of the complaint under

Article 6 para. 1 of the Convention as regards the proceedings

concerning the applicant's disbarment and under the same

provision as regards the length of the criminal proceedings;

DECLARES INADMISSIBLE the remainder of the application.

Secretary to the First Chamber President of the First Chamber

(M.F. BUQUICCHIO) (A. WEITZEL)

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DEIXLER v. AUSTRIA

DEIXLER v. AUSTRIA

LEXI