THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 30192/96 by Johann FONTANESI against Austria

The European Court of Human Rights ( Third Section ) sitting on 8 February 2000 as a Chamber composed of

Sir Nicolas Bratza, President , Mr J.-P. Costa, Mr L. Loucaides, Mr P. KÅ«ris, Mr W. Fuhrmann , Mrs H.S. Greve, Mr K. Traja, judges ,

and Mrs S. Dollé , Section Registrar ;

Having regard to Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 5 September 1995 by Johann Fontanesi against Austria and registered on 14 February 1996 under file no. 30192/96;

Having regard to the report provided for in Rule 49 of the Rules of Court;

Having regard to the observations submitted by the respondent Government on 11 December 1998 and the observations in reply submitted by the applicant on 12 March 1999;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a n Austrian national, born in 1947 and living in Vienna . He is a practising lawyer by profession and presents his own case to the Court.

A. Particular circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

In August 1992 criminal proceedings were instituted before the Vienna Regional Criminal Court ( Landesgericht für Strafsachen Wien ) against the applicant under the Tax Offences Act ( Finanzstrafgesetz ). He was suspected of having evaded taxes exceeding 1 million Austrian schillings (ATS) between 1985 and 1989.

On 8 October 1992, upon a warrant issued by the Regional Court , a search of the applicant’s law office was carried out, at which two representatives of the Bar ( Rechtsanwaltskammer ) were present.

In April 1993 the Bar Disciplinary Council ( Kammeranwalt ) was informed about the criminal proceedings pending against the applicant.

On 4 June 1993 the Disciplinary Council ( Disziplinarrat ) of the Vienna Bar appointed an Investigating Commissioner ( Untersuchungskommissär ), to whom the applicant submitted observations on 29 June 1993.

On 26 January 1994 the Disciplinary Council requested the applicant to file observations as regards a possible interlocutory measure ( einstweilige Maßnahme ) against him.

On 30 March 1994 the Disciplinary Council imposed an interlocutory measure under section 19 § 3 subparagraph 1 (b) of the Disciplinary Act 1990 ( Disziplinarstatut 1990) upon the applicant, withdrawing his right to represent people before the Vienna Regional Criminal Court, its subordinate courts, the corresponding prosecution authorities, and the Tax Office of the First District of Vienna. The Disciplinary Council held that there was cause to fear that the observance of the applicant’s professional duties would not be sufficiently safeguarded if the applicant represented his clients before a court or authority where criminal proceedings were pending against him. In addition, such representation would prejudice the reputation of the profession. It stated that the measure would be in force at the most until the termination of the disciplinary proceedings against the applicant. Further, he was informed that the measure had immediate effect.

On 27 April 1994 the applicant filed an appeal with the Appeals Board ( Oberste Berufungs - und Disziplinarkommission ). Alleging that the contested decision was unlawful, unconstitutional and in breach of the European Convention of Human Rights, he particularly complained that the imposition of the interlocutory measure was not justified since it had not been taken immediately, but only nineteen and a half months after the introduction of criminal proceedings against him. In this respect, he pointed out that two Bar representatives had been present during the search of his law office on 8 October 1992, and that the Disciplinary Council should, therefore, have been aware of the charges against him. The applicant further claimed that the Disciplinary Council had failed to indicate that he had, during these nineteen and a half months, actually prejudiced his clients or the reputation of the profession.

On 24 October 1994 the Appeals Board dismissed the applicant’s appeal. It noted that the Vienna Regional Criminal Court had apparently failed to inform the Bar about the institution of criminal proceedings against the applicant. The latter had only learned about these proceedings in April 1993. The Appeals Board found that the requirements laid down in section 19 § 1 of the Disciplinary Act 1990 for imposing an interlocutory measure were met: Criminal proceedings concerning charges of tax evasion of more than ATS 1 million were pending against the applicant and, in view of the serious nature of these accusations and the ensuing disciplinary offence, the measure was necessary in order to protect the interests of potential litigants and the reputation of the profession. It was quite obvious that the applicant could not, in full independence, discharge his professional duties before the Vienna Regional Criminal Court, which was conducting preliminary investigations against him, or its subordinate courts, the respective prosecution authorities, or the Tax Office for the First District of Vienna which was carrying out the underlying tax assessment proceedings. Moreover, it was harmful to the reputation of the profession if a lawyer appeared before the same court once as an accused and then as counsel.

Further, as regards the applicant’s complaint that the interlocutory measure had been taken belatedly, the Appeals Board observed that section 19 of the Disciplinary Act 1990 did not specify any time-limits. The Disciplinary Council could, therefore, impose such measures as long as the criminal proceedings were pending and the above conditions were satisfied. The applicant had failed to show any new circumstances indicating that a considerable prejudice was no longer to be feared. It was irrelevant whether any clients or the profession had actually suffered any prejudice, since the imposition of the interlocutory measure only required that there was reason to fear that such prejudice would occur if the applicant continued to act before the respective courts or authorities.

On 31 January 1995 the applicant lodged a complaint with the Constitutional Court ( Verfassungsgerichtshof ). He claimed, in particular, that the disciplinary authorities had failed properly to investigate the facts as regards the institution of criminal proceedings against him. He submitted that the Bar had, at the latest on 8 October 1992, become aware that criminal proceedings had been instituted against him. The interlocutory measure, since it had only been imposed in March 1994, was therefore arbitrary and infringed the principle of non-discrimination ( Gleichheitsgrundsatz ), as well as Article 8 of the European Convention of Human Rights.

On 19 June 1995 the Constitutional Court dismissed the applicant’s complaint. It confirmed the finding of the Appeals Board that section 19 of the Disciplinary Act 1990 allowed the Disciplinary Council to take interlocutory measures as long as criminal proceedings were pending. To ensure the principle of non-discrimination, the Appeals Board was not free to decide, without giving objective reasons, whether or not and when it imposed an interlocutory measure. However, the applicant had failed to substantiate that the Appeals Board had acted arbitrarily in the present case. The sole fact that a measure could have been taken earlier did not render the decision arbitrary. Further, the applicant had failed to show that the proceedings, as such, had lasted unreasonably long.

On 21 February 1996 the Disciplinary Council of the Vienna Bar decided to open disciplinary proceedings against the applicant on the ground that there were reasons to suspect him of having evaded income tax between 1985 and 1989, in an amount to be specified in the further proceedings.

On 15 May 1996 the Review Chamber ( Ratskammer ) at the Vienna Regional Criminal Court, referring to a report of the Tax Office of the First District of Vienna, found that the amount of taxes allegedly evaded by the applicant was below ATS 1 million. Therefore, the prosecution of the tax offences did not fall within the competence of the courts.

On 1 July 1996 the Vienna Regional Criminal Court discontinued the criminal proceedings against the applicant and informed the Bar accordingly.

On 5 July 1996 the Bar lifted the interim measure of 30 March 1994, finding that the conditions for upholding it were no longer met, given that the criminal proceedings against the applicant had been discontinued.

B. Relevant domestic law

Section 19 of the Disciplinary Act 1990 ( Disziplinarstatut 1990) deals with interlocutory measures.

Paragraph 1 provides that the Disciplinary Council may impose an interlocutory measure on a lawyer, inter alia, if criminal proceedings are pending against him and if the measure, having regard to the nature and severity of the disciplinary offence at issue, is necessary on the ground that there are reasons to fear considerable prejudice either to the interests of potential litigants or to the reputation of the profession.

Paragraph 3 enumerates the interlocutory measures. In the case of a practising lawyer, they include the withdrawal of the right to represent people before specified courts or administrative authorities, or before courts and administrative authorities in general (subparagraph 1 (b)).

COMPLAINTS

1. The applicant complains under Article 8 of the Convention that the disciplinary authorities arbitrarily imposed the interlocutory measure withdrawing his right of representation before certain courts and administrative authorities. In particular, he argues that the disciplinary authorities are obliged to take such a measure immediately after the introduction of criminal proceedings against a lawyer. He criticises the fact that, in his case, the measure was only taken nineteen and a half months after criminal proceedings had been instituted against him and almost twelve months after the disciplinary authorities had been informed about them. He argues that the measure, when it was finally taken, was no longer justified.

2. The applicant also complains under Article 6 of the Convention that the disciplinary authorities started the proceedings against him belatedly and that they were unreasonably long.

PROCEDURE

The application was introduced on 5 September 1995 and registered on 14 February 1996.

On 7 September 1998 the European Commission of Human Rights decided to communicate the application to the respondent Government.

The Government’s written observations were submitted on 11 December 1998. The applicant replied on 12 March 1999.

On 1 November 1998, by operation of Article 5 § 2 of Protocol No. 11 to the Convention, the case fell to be examined by the Court in accordance with the provisions of that Protocol.

THE LAW

1. The applicant complains that the interlocutory measure by which the disciplinary authorities withdrew his right of representation before certain courts and authorities violated his rights under Article 8 of the Convention, which reads as follows:

“1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

The Government argue that the measure complained of did not fall within the scope of Article 8 of the Convention. They concede that the notion of “private life” has been interpreted so as to include certain business activities. However, regarding practising lawyers, two types of business activities should be distinguished: the counselling of clients on the one hand and the representation of parties before courts and other authorities on the other. While the first type of activities would - in the light of the Court’s Niemietz judgment - seem to fall within the scope of Article 8, the second type of activities necessarily involves the lawyer’s appearance in public, and could not therefore be considered as forming part of his “private life”. In the present case, Article 8 did not apply, as the measure complained of concerned the applicant’s right to represent his clients in public before courts and other authorities.

Further, the Government submit that, even if Article 8 applied, the contested measure had a legal basis in section 19 § 3 subparagraph 1 (b) of the Disciplinary Act and was necessary to protect the rights of others, namely the applicant’s clients. As regards the necessity of the measure, the Government refer in particular to the reasons given by the disciplinary bodies. They repeat that there is reason to fear that a lawyer is not fully able to represent his clients’ interests before courts and authorities which are conducting criminal proceedings against him. The measure was proportionate as it did not withdraw the applicant’s right to practise as such, but only restricted his right to represent his clients before specific courts and authorities, before which proceedings against him were pending. Moreover, the decision imposing an interlocutory measure is not disclosed to the public.

The applicant maintains that Article 8 of the Convention applies to the present case. He particularly contests the Government’s view that a practising lawyer’s activities can be divided into two categories, only one of which falls within the scope of Article 8.

Further, the applicant emphasises that the measure withdrawing his right of representation before certain courts and administrative authorities was only imposed more than a year and a half after the introduction of the criminal proceedings against him. The said measure might have been justified when the criminal proceedings were started, as in general the imposition of an interlocutory measure is justified by the need to protect the interests of others before extensive taking of evidence is possible. In his case, the disciplinary bodies acted arbitrarily in that they imposed the measure at a very late stage.

As to the applicability of Article 8 of the Convention, the Court recalls that in the Niemietz case, relating to the search of a lawyer’s office, it found that there are no reasons of principle why the notion of “private life” should be taken to exclude activities of a professional or business nature. More generally, the Court stated that to interpret the words “private life” and “home” as including certain professional and business activities or premises would be consonant with the essential object and purpose of Article 8, namely to protect the individual against arbitrary interference by public authorities ( Niemietz v. Germany judgment of 16 December 1992, Series A no. 251-B, pp. 33-34, §§ 29 and 31).

The present case concerns the applicant’s right to represent his clients as a lawyer before certain courts and other authorities. The Court considers that, although the notion of “private life” includes certain professional and business activities, it appears open to doubt whether a lawyer’s right to exercise his profession in itself falls within the scope of Article 8 of the Convention. However, the Court is not called upon to decide this issue in the present case. Even assuming that the contested decisions of the disciplinary authorities constituted an interference with the applicant’s right to respect for his “private life”, the Court finds that the interference was justified under the second paragraph or Article 8 for the following reasons.

Firstly, the Court finds that the interlocutory measure complained of was in accordance with the law, being based on section 19 of the Disciplinary Act 1990. Further, it served a legitimate aim, namely the protection of the interests of others, in particular the applicant’s clients.

In determining whether the impugned measure was “necessary in a democratic society” for achieving the above-mentioned aim, the Court has to consider whether, in the light of the circumstances of the case as a whole, the reasons adduced to justify it were relevant and sufficient, as well as proportionate to the legitimate aims pursued. It also has to take into account that a margin of appreciation is left to the Contracting States which may be broader where professional or business activities are involved ( Niemietz judgment, cited above, pp. 34-35, §§ 31 and 37).

The Court notes that the disciplinary authorities had particular regard to the seriousness of the accusations against the applicant and to the prejudice which might occur to the interests of clients, or the reputation of the profession, if the applicant appeared as counsel before the very courts and authorities which were conducting the criminal and tax assessment proceedings against him. As to the applicant’s complaint that the interlocutory measure was imposed belatedly, they noted that the Bar had only been informed about the criminal proceedings a considerable time after they had been opened. However, the Disciplinary Act did not specify a time-limit for the imposition of an interlocutory measure, and there were no circumstances indicating that the said prejudice was no longer to be feared. In these circumstances, the Court finds that the reasons given by the disciplinary authorities were relevant and sufficient.

Moreover, the Court observes that the interlocutory measure withdrew the applicant’s right of representation before a small number of courts and other authorities, namely those which were conducting the proceedings against him. Thus, it concerned only a limited part of the applicant’s professional activities. In fact the applicant has not claimed that the contested measure had a negative impact on his business. In these circumstances, the Court finds that the interference complained of was also proportionate to the legitimate aim pursued.

In conclusion, the Court finds that the interference of which the applicant complains can be regarded as “necessary in a democratic society” within the meaning of Article 8 § 2. Accordingly, there is no appearance of a violation of Article 8 of the Convention. It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

2. The applicant complains under Article 6 of the Convention that the disciplinary authorities started the proceedings against him belatedly and that these proceedings lasted unreasonably long.

Article 6, so far as relevant, reads as follows:

“1. In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”

As regards the disciplinary proceedings instituted in 1996, the Government submit that the applicant has not exhausted domestic remedies as he did not file an application against the administration’s failure to decide under Article 132 of the Federal Constitution. The applicant contests this view.

The Court notes that the applicant’s complaint relates to the length of the proceedings concerning the imposition of an interlocutory measure by the disciplinary bodies, which were started in 1994. In this respect the Government do not claim that the applicant failed to exhaust domestic remedies as required by Article 35 § 1 of the Convention.

The Government do not dispute the applicability of Article 6 of the Convention to the proceedings at issue. As to their duration, the Government argue that the proceedings started on 26 January 1994, when the applicant was requested to file his observations as regards the possible imposition of an interlocutory measure, and ended on 5 July 1996, when the measure was lifted, having been examined at three instances, including the Constitutional Court. They were conducted in an expedient manner without any delays. In sum, the proceedings were concluded within a reasonable time.

The applicant contests the Government’s view. He maintains that the proceedings, were introduced belatedly when the interlocutory measure was no longer justified.

As regards the applicability of Article 6 of the Convention, the Court recalls that disciplinary proceedings in which the right to continue to exercise a profession is at stake give rise to “ contestations ” (disputes) over civil rights and obligations (see as a recent authority the Gautrin v. France judgment of 20 May 1998, Reports 1998-III, p. 1022, § 33). In the present case, an interlocutory measure was imposed on the applicant, withdrawing the right of representation before specific courts and other authorities. He was, thus, subjected to a temporary suspension of part of his right to exercise his profession. Consequently, Article 6 applies.

As to the applicant’s complaint about the belated introduction of the proceedings the Court finds that it does not disclose any appearance of a violation of Article 6 of the Convention.

As to the duration of the proceedings, the Court, like the Government, considers that they started on 26 January 1994, when the applicant was requested to file his observations as regards the possible imposition of an interlocutory measure. However, the Court finds that they terminated on 19 June 1995 when the Constitutional Court gave judgment. They lasted, thus, one year and a little less than five months. The proceedings were conducted at three levels of jurisdiction and there are no delays attributable to the authorities. In these circumstances, the Court finds that they did not exceed a “reasonable time” within the meaning of Article 6 § 1.

It follows that this part of the application must also be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court, unanimously,

DECLARES THE APPLICATION INADMISSIBLE .

S. Dollé N. Bratza Registrar              President