Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 16153/90

by P.

against Austria

The European Commission of Human Rights sitting in private on

12 April 1991, the following members being present:

MM. C.A. NØRGAARD, President

S. TRECHSEL

F. ERMACORA

G. SPERDUTI

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.C. SOYER

H.G. SCHERMERS

H. DANELIUS

Mrs. G.H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

MM. J.C. GEUS

A.V. ALMEIDA RIBEIRO

M.P. PELLONPÄÄ

B. MARXER

Mr. H.C. KRÜGER, Secretary to the Commission

Having regard to Article 25 of the Convention for the

Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 11 January 1990

by P. against Austria and registered on 12 February 1990 under file

No. 16153/90;

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 lawyer practising in St. Pölten.

He complains of a disciplinary sanction for having violated

the professional rule not to impair the honour and reputation of the

legal profession.

The facts submitted may be summarised as follows.

On 15 January 1985 the Disciplinary Council (Disziplinarrat)

of the applicant's Bar Association ordered a two months' suspension of

the applicant's right to practise. He was found guilty of having

impaired the honour and reputation of the profession by having stated:

- in a motion of challenge submitted to the District Court

(Bezirksgericht) in St. Pölten:

(German)

"Bei der Behandlung der von mir erstatteten Strafanzeige....

ist es nämlich zu Unkorrektheiten gekommen, die eindeutig

als kriminell anzusehen sind. Das eben beschriebene

kriminelle Verhalten im Bereich der Bundespolizeidirektion...."

(English translation)

"The charges I have laid have been dealt with in an incorrect

manner which is clearly criminal. This criminal behaviour in

the sphere of the Federal Police...."

- in a letter to the executive committee of his Bar Association:

(German)

"Der Verdacht einer willkürlichen Vorgangsweise (§ 302 StGB)

scheint nicht völlig denkunmöglich."

(English translation)

"The suspicion of an arbitrary action (S. 302 of the Criminal

Code) cannot be excluded."

- in a letter to the Disciplinary Council:

(German)

"... der Ausschuss, der das genannte Schreiben von Dr. S.

offenbar ohne förmliche Beschlussfassung dem Disziplinarrat

... gleichsam unter der Hand zugespielt haben dürfte ..."

(English translation)

"The executive council, which has apparently transmitted

Mr. S.'s letter to the Disciplinary Council ... in a

somewhat clandestine manner without taking a formal decision

..."

- in a letter laying disciplinary charges against a colleague:

that the colleague

(German)

i. "...in nicht mehr zu überbietender Unverfrorenheit meint

er ...";

ii. "... versucht hat, meine Mandantschaft durch ein plumpes

Überrumpelungs- und Einschüchterungsmanöver zur

Befriedigung einer nicht anerkannten Forderung zu bringen ..."

(English translation)

i. "... with an unequalled impertinence he states..."

ii. "... has made a crude attempt to intimidate my client

and to take him by surprise in order to make him comply

with an unrecognised claim..."

The applicant was furthermore found guilty of having failed to

submit a declaration relating to his obligation to pay contributions

for the years 1980, 1982 and 1983 to the Bar Association.

The applicant's appeal (Berufung) was rejected by the Supreme

Appeals and Disciplinary Board for Lawyers (Oberste Berufungs- und

Disziplinarkommission für Rechtsanwälte und Rechtsanwaltsanwärter)

on 20 January 1986.

On 2 July 1987 the Constitutional Court (Verfassungsgerichtshof)

partly quashed the decision as logically unfounded (denkunmöglich)

insofar as the applicant had been found guilty of having impaired the

honour and reputation of the profession by not having submitted

reports relating to his duty to pay contributions. This finding and

the sanction therefore imposed constituted an unjustified interference

with the applicant's right freely to exercise a profession (freie

Erwerbsausübung). The Constitutional Court found no violation of

constitutional rights, insofar as the applicant was found guilty of

further violations of his professional obligations. In particular

there was no violation of Articles 7 and 10 of the Convention.

On 1 February 1988 the Supreme Appeals and Disciplinary Board

for Lawyers acquitted the applicant in compliance with the

Constitutional Court's judgment with regard to the charge of not

having paid contributions. The applicant's appeal as to the remainder

was rejected. In respect of the offences previously established and

not put in question by the Constitutional Court the applicant was now

fined 50,000 AS.

The applicant again lodged a constitutional complaint which

was rejected on 12 June 1989 (received by the applicant on 20 July

1989). Insofar as the applicant had repeated the argument that his

disciplinary punishment violated Article 7 para. 1 of the Convention

as being based on vague and imprecise professional rules, the

Constitutional Court referred to its earlier decision of 2 July 1987

in the applicant's case and to a decision of 30 June 1988. Insofar

as the applicant had raised a new argument, namely that the

professional rules violated the principle of equality as guaranteed by

Article 7 of the Austrian Constitution (B-VG), the Court pointed out

that this provision did not exclude differential treatment based on

objective criteria.

COMPLAINTS

The applicant maintains that his disciplinary punishment

violates Articles 7 para. 1 and 10 para. 1 of the Convention.

THE LAW

The Commission first notes that the applicant's complaints

under Articles 7 and 10 (Art. 7, 10) of the Convention were already

held to be unfounded in the Constitutional Court's decision of 2 July

1987. It is true that on 2 July 1987 the Constitutional Court quashed

the whole decision complained of, i.e. the judgment given on 20

January 1986 by the Supreme Appeals and Disciplinary Board for

Lawyers. The Constitutional Court made it clear, however, that

insofar as the applicant had been found guilty of having made

objectionable statements, his constitutional complaint was unfounded.

Nevertheless the whole of the Appellate Court's decision had to be

quashed as it did not follow from this decision to which extent the

disciplinary sanction imposed on the applicant related to the part of

his conviction which the Constitutional Court found to be in violation

of constitutional rights. The applicant was then, on 1 February 1988,

again found guilty of having made objectionable statements.

In these circumstances it was obvious that a repeated

constitutional complaint did no longer constitute an effective remedy

as it had to be rejected by the Constitutional Court for the reasons

already stated in its earlier decision given in the applicant's case.

A new argument raised by the applicant in his second

constitutional complaint was rejected as being clearly ill-founded and

the Commission finds that the applicant as a lawyer could not have

expected that the new argument, namely an alleged violation of the

principle of equality, offered any prospects of success. In

these particular circumstances the Commission considers that the

judgment of 1 February 1988 given by the Supreme Appeals and

Disciplinary Board for Lawyers was the final decision in the

applicant's case, while the present application was lodged on

11 January 1990, that is, more than six months later. The application

has therefore been lodged out of time and must be rejected in

accordance with Articles 26 and 27 para. 3 (Art. 26, 27-3) of the Convention.

For these reasons, the Commission by a majority

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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P. v. AUSTRIA

P. v. AUSTRIA