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STROHAL v. AUSTRIA

Doc ref: 20871/92 • ECHR ID: 001-1832

Document date: April 7, 1994

  • Inbound citations: 3
  • Cited paragraphs: 0
  • Outbound citations: 0

STROHAL v. AUSTRIA

Doc ref: 20871/92 • ECHR ID: 001-1832

Document date: April 7, 1994

Cited paragraphs only



                  AS TO THE ADMISSIBILITY OF

                    Application No. 20871/92

                    by Theodor STROHAL

                    against Austria

     The European Commission of Human Rights (First Chamber),

sitting in private on 7 April 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 31 July 1992

by Theodor STROHAL against Austria and registered on 30 October

1992 under file No. 20871/92;

     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 facts of the case, as submitted by the applicant, may

be summarised as follows.

     The applicant, an Austrian national born in 1949 and

residing in Vienna, is a lawyer (Rechtsanwalt) and real estate

administrator (Hausverwalter) by profession.  The applicant,

inter alia, acted as agent for the administration of an apartment

building owned by Mr. K.

     In 1992 a tenant of an apartment owned by Mr. K. introduced

a civil law action for recovery of a premium (Ablöse) against the

S. company, which had acted as real estate agent

(Realitätenvermittler) for Mr. K.

     On 2 April 1992 the Vienna District Court (Bezirksgericht)

summoned the applicant as a witness in these proceedings.  The

defendant had requested the applicant to be heard as a witness

to give evidence as to whether he had, in his capacity as real

estate administrator of Mr. K.'s apartment building, received

payment of 100,000 AS from the plaintiff.

     In a hearing before the District Court on 27 August 1992 the

applicant refused to give evidence, relying on Section 321 para.

1 (4) of the Code of Civil Procedure according to which a witness

has the right to refuse to give evidence with regard to what has

been confided to him by a client in his capacity as a lawyer. He

considered the issue as to whether he had received payment from

the tenant or not as confidential information received in his

capacity as a lawyer.  The District Court did not accept the

applicant's refusal.

     On 19 December 1991, after he had again refused to give

evidence, the District Court pursuant to Section 325 of the Code

of Civil Procedure, imposed on him a fine of AS 10.000 as a

coercive measure (Beugestrafe).  The District Court found that

the question as to whether the applicant had received a payment

in his capacity as real estate administrator could not be

considered as covered by the duty of professional secrecy as a

lawyer.

     On 3 March 1992 the applicant's appeal was dismissed by the

Vienna Regional Court (Landesgericht).  It found that the

applicant could only rely on his right not to give evidence as

regards confidential information confided to him by a client in

his capacity as lawyer.  The question whether he, in his capacity

as real estate administrator, had actually received a payment

from a third person, the contract partner of Mr. K, could not be

considered as such information.

COMPLAINTS

     The applicant complains under Article 6 of the Convention

about the imposition of the coercive measure for having refused

to give evidence.  Such a measure was contrary to the principle

of a fair trial because it would compel him to give evidence on

confidential information received from a client.

THE LAW

1.   The applicant complains under Article 6 (Art. 6) of the

Convention about the unfairness of the main civil law suit

against the S. company, as a result of the courts not accepting

his refusal to give evidence.

     The Commission observes that these proceedings concerned a

dispute between a tenant of Mr. K. and the S. company to which

the applicant was not a party.  Consequently, the applicant

cannot, in this respect, claim to be a victim of an alleged

violation of Article 6

(Art. 6) of the Convection within the meaning of Article 25 para.

1(Art. 25-1) of the Convention.

      It follows that, in this respect, the application is

manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

2.   The applicant's complaint concerning the District Court's

decision of 19 December 1991 could also be understood as a

complaint under Article 10 (Art. 10) of he Convention.  In this

respect, the Commission recalls that the right to freedom of

expression by implication also guarantees a "negative right" not

to be compelled to express oneself, i.e. to remain silent (see

K. v. Austria, Comm. Report 13.10.92, para. 45, loc. cit.).

     The Commission, having regard to Section 325 of the Code of

Civil Procedure, notes that the coercive fine imposed on the

applicant was in accordance with Austrian law.  Moreover, the

coercive measure imposed on the applicant served a legitimate aim

under paragraph 2 of Article 10 (Art. 10-2), namely the

protection of the right of the defendant in the civil law

proceedings.  Furthermore the coercive measure imposed on the

applicant cannot be regarded as disproportionate to the aim

pursued.

      It follows that the interference with the applicant's

rights under Article 10 para. 1 (Art. 10-1) is justified under

paragraph 2 of this provision and that the application in this

respect is manifestly ill-founded within the meaning of Article

27 para. 2 (Art. 27-2) of the Convention.

     For these reasons, the Commission, unanimously

      DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the First Chamber        President of the First

Chamber

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

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