Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 17917/91

by J.P.C.

against Austria

The European Commission of Human Rights (Second Chamber) sitting

in private on 2 December 1992, the following members being present:

MM. S. TRECHSEL, President of the Second Chamber

G. JÖRUNDSSON

A. WEITZEL

J.-C. SOYER

H. G. SCHERMERS

H. DANELIUS

Mrs. G. H. THUNE

MM. F. MARTINEZ

L. LOUCAIDES

J.-C. GEUS

Mr. K. ROGGE, Secretary to the Second 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 17 January 1991

by J.P.C. against Austria and registered on 14 March 1991 under file

No. 17917/91;

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, born in 1928, is an Austrian national resident in

Innsbruck. He is a lawyer by profession.

Particular circumstances of the case

On 13 June 1986 the Disciplinary Council (Disziplinarrat) of the

Tyrol Lawyers' Association (Rechtsanwaltskammer) imposed a fine of

AS 8,000 upon the applicant for having impaired the honour and

reputation of the lawyers' profession (Beeinträchtigung von Ehre und

Ansehen des Standes). The Disciplinary Council found that the applicant

had failed to comply with a client's request to provide her with

detailed information about his bill amounting to almost AS 160,000, and

about payments of the opposing party. Furthermore, in a letter, he had

urged her not to insist on her request for information. The Council

considered that a lawyer had to be particularly correct with regard to

his fee claims. A lawyer had to give detailed information as to his

claims and thus avoid any impression of lacking transparency. The

applicant was acquitted of the reproach of having charged the client

concerned excessive fees.

On 19 December 1986 the Disciplinary Council of the Tyrol Bar

Association imposed a fine of AS 5,000 upon the applicant for having

breached his professional obligations and having impaired the honour

and reputation of the lawyers' profession. The Council found that he

had requested persons who intended to conduct negotiations with his

clients in his office to sign a declaration that they had to reimburse

any legal expenses incurred by the applicant in case of failure of the

negotiations. The applicant had failed to clarify his intention that

reimbursement of such expenses would only be requested in case of

negligence on the part of the third persons concerned. The Council

considered that the applicant had thereby contravened his professional

duty duly to inform and advise third persons entering into contractual

negotiations with his clients on the premises of his office.

The applicant lodged appeals against both decisions. As regards

the decision of 13 June 1986 he submitted inter alia that he had not

been promptly informed about the reproach of having breached his duty

of proper accounting, and thus had not been able properly to defend

himself.

On 6 July 1987 the High Appeals and Disciplinary Board (Oberste

Berufungs- und Disziplinarkommission) dismissed the applicant's

appeals. The Board, referring to its constant case-law, considered

that, in matters concerning fees and expenses, a lawyer ought to be

scrupulously correct. The Board also found that the examination of

disciplinary reproaches could be extended at the hearing before the

Disciplinary Council; moreover, the applicant had not objected thereto

at the hearing and had presented extensive arguments on this point.

On 30 June 1988 the Austrian Constitutional Court (Verfassungs-

gerichtshof), upon the applicant's complaint, quashed the decisions

against the applicant. The Constitutional Court found that the

disciplinary sanctions had been based on S. 2 of the Disciplinary Code

(Disziplinarstatut) which referred to professional duties as a general

notion (unbestimmter Rechtsbegriff) the contents of which was

sufficiently defined in the context of the general opinion and the

constant practice of the profession concerned. Disciplinary sanctions

imposed under this provision were in conformity with Article 7 of the

Convention, if they concerned a breach of professional duties or an

impairment of the honour or reputation of the profession which resulted

with sufficient clarity from legal provisions or the previous case-law

on disciplinary matters. The disciplinary decisions against the

applicant had not sufficiently qualified the professional obligations

breached by the applicant.

On 17 April 1989 the High Appeals and Disciplinary Board, with

regard to the applicant's appeal against the decision of 13 June 1986,

acquitted him to the extent that he had been reproached with having

urged a client not to insist on a detailed bill, and reduced the fine

in this respect to AS 5,000. The remainder of the appeals was

dismissed. The Board, referring in particular to S. 2 of the

Disciplinary Code and its constant case-law as well as S. 9 of the

Lawyers' Code (Rechtsanwaltsordnung), considered that a lawyer had the

duty to draft legal documents, especially standard forms, with

sufficient clarity and precisely so that third persons not assisted by

counsel would not be in doubt about their contractual obligations and

thus placed at a disadvantage. Moreover, in accordance with S. 2 of the

Disciplinary Act and the Board's constant case-law as well as the

general duty to account under S. 1012 of the Civil Code (Allgemeines

Bürgerliches Gesetzbuch), a lawyer was obliged to be particularly

accurate in matters concerning his claims for fees.

On 26 November 1990 the Constitutional Court dismissed the

applicant's further complaint. The Constitutional Court considered in

particular that the High Appeals and Disciplinary Board, in its

decision of 17 April 1989, had defined the professional obligations in

question with sufficient precision. The decision was served upon the

applicant on 15 January 1991.

Domestic law

The Austrian Lawyers' Code (Rechtsanwaltsordnung) regulates the

professional duties of lawyers in SS. 9 et seq., inter alia his duty

to practise with care, faithfully and conscientiously, to keep

professional secrecy, to show honesty and integrity and thus secure the

honour and dignity of his profession. S. 33 provides that the lawyers'

profession (Rechtsanwaltsstand) is independent of the judiciary, and

that disciplinary powers in respect of lawyers and trainee lawyers are

to be exercised by organs of the profession. The proceedings are laid

down by the legislature in the Disciplinary Code for Lawyers and

Trainee Lawyers (Disziplinarstatut).

S. 1 of this Disciplinary Code provides that a lawyer who

negligently or intentionally breaches his professional duties or,

whether in pursuit of his profession or otherwise, behaves in such a

manner as to impair the honour or reputation of the profession of

lawyers, commits a disciplinary offence (Disziplinarvergehen), which

is dealt with by the Disciplinary Council (Disziplinarrat). Under S. 16

of this Code, disciplinary penalties (Disziplinarstrafen) are the

written admonition, a fine not exceeding AS 500,000, the suspension of

the right to practise for a period not exceeding one year, or the

exclusion from the Bar.

COMPLAINTS

1. The applicant complains under Article 7 of the Convention that

the disciplinary sanctions imposed on him were not based upon a clear

legal provision.

2. The applicant complains under Article 6 para. 3 of the Convention

that he was not promptly informed about one of the charges against him,

and thus could not properly prepare his defence.

THE LAW

1. The applicant complains that the disciplinary decisions against

him under S. 2 of the Disciplinary Code were not based upon a clear

legal provision within the meaning of Article 7 (Art. 7) of the

Convention.

Article 7 para. 1 (Art. 7-1), first sentence, reads as follows:

"No one shall be held guilty of any criminal offence on account

of any act or omission which did not constitute a criminal

offence under national or international law at the time when it

was committed."

The Commission, assuming that the disciplinary sanctions

complained of fall into the criminal sphere, observes that Article 7

para. 1 (Art. 7-1) confirms the general principle that legal provisions

interfering with individual rights must be adequately accessible, and

formulated with sufficient precision to enable the citizen to regulate

his conduct. However, many laws are inevitably couched in terms which,

to a greater or lesser extent, are vague and whose interpretation and

application are questions of practice (cf. Eur. Court H.R., Sunday

Times judgment of 26 April 1979, Series A No. 30, p. 31, para. 49;

No. 8710/79, Dec. 7.5.82, D.R. 28 p. 77).

The Commission notes that the decisions of the Disciplinary Board

of the Tyrol Lawyers' Association of 13 June and 19 December 1986, as

confirmed by the High Appeals and Disciplinary Council on 17 April

1989, were based on S. 2 of the Disciplinary Code for Lawyers which

defines as a disciplinary offence the breach of professional duties or

impairment of the honour or reputation of the profession. The applicant

was found guilty of having breached his professional duties of proper

accounting and of precise drafting of legal documents in the interest

of persons entering into contractual obligations at his law office. The

High Appeals and Disciplinary Council, in its decision of 17 April

1989, set out in detail the applicant's professional misconduct within

the meaning of this provision, as applied in its constant case-law, and

the general duties of lawyers as laid down in the Lawyers' Code. The

Constitutional Court found that disciplinary sanctions imposed under

S. 2 of the Disciplinary Code were in conformity with Article 7

(Art. 7) of the Convention, if they concerned a breach of professional

duties or an impairment of the honour or reputation of the profession

which resulted with sufficient clarity from legal provisions or the

previous case-law on disciplinary matters. The decision of 17 April

1989 clearly established the professional rules and standards applied

in the applicant's case.

The Commission considers that the elements of the disciplinary

offence under S. 2 of the Disciplinary Code for Lawyers were

established in the relevant provisions of the Lawyers' Code and in

particular in the case-law of the disciplinary bodies concerned. In the

present case, the High Appeals and Disciplinary Council has not

exceeded the limits of a reasonable interpretation of S. 2 of the

Disciplinary Code.

Consequently, the Commission finds no appearance of a violation

of Article 7 para. 1 (Art. 7-1) of the Convention.

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.

2. The applicant also complains under Article 6 para. 3 (b)

(Art. 6-3-b) of the Convention that in the course of the disciplinary

proceedings against him he was not promptly informed about one of the

charges against him, and thus could not properly prepare his defence.

The Commission, assuming the applicability of Article 6 (Art. 6),

notes that at the hearing before the Disciplinary Council on 13 June

1986, the proceedings against the applicant were extended to the

question of his failure to comply with his client's request for

accounting. This matter was one element of two further reproaches as

regards his fee claims against this client. The High Appeals and

Disciplinary Council, in its decision of 6 July 1987, noted that the

applicant had not objected to the extension of the proceedings and had

presented extensive arguments on this point.

In these circumstances, the Commission finds that the applicant,

a lawyer, failed to show that he could not duly prepare and present his

defence in the disciplinary proceedings against him, or that these

proceedings were otherwise not fair within the meaning of

Article 6 (Art. 6).

It follows that this part of the application is also 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 Second Chamber President of the Second Chamber

(K. ROGGE) (S. TRECHSEL)

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J.P.C. v. AUSTRIA

J.P.C. v. AUSTRIA

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