Resolution CM/ ResDH ( 2016)334 Execution of the judgments of the European Court of Human Rights in Two cases against Austria

Application No.

Case

Judgment of

Final on

31356/04

Goriany

10/12/2009

10/05/2010

47195/06

Müller- Hartburg

19/02/2013

19/05/2013

(Adopted by the Committee of Ministers on 8 December 2016 at the 1273 rd meeting of the Ministers ’ Deputies)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”),

Having regard to the final judgments transmitted by the Court to the Committee in these cases and to the violations established;

Recalling the respondent State ’ s obligation, under Article 46, paragraph 1, of the Convention, to abide by all final judgments in cases to which it has been a party and that this obligation entails, over and above the payment of any sums awarded by the Court, the adoption by the authorities of the respondent State, where required:

- of individual measures to put an end to violations established and erase their consequences so as to achieve as far as possible restitutio in integrum ; and

- of general measures preventing similar violations;

Having invited the government of the respondent State to inform the Committee of the measures taken to comply with the above-mentioned obligation;

Having examined the information provided by the government indicating the measures adopted in order to give effect to the judgments including the information provided regarding the payment of the just satisfaction awarded by the Court (see Appendix);

Having satisfied itself that all the measures required by Article 46, paragraph 1, have been adopted,

DECLARES that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case and

DECIDES to close the examination thereof.

Appendix to Resolution CM/ ResDH ( 2016)334

Information about the measures to comply with the judgments in the cases of Goriany and Müller- Hartburg against Austria

Introductory case summary

Th e s e cases concern the excessive length of disciplinary proceedings against practising lawyers (violations of Article 6 § 1).

The case of Goriany concerned six different sets of disciplinary proceedings against the applicant before the Disciplinary Council of the Vienna Bar Chamber ( Disziplinarrat der Wiener Rechtsanwaltskammer ) which took place between July 1998 and March 2004 and lasted from three years and one month to five years and seven months.

In the case of Müller- Hartburg the disciplinary proceedings before the Disciplinary Council of the Vienna Bar Chamber and the Appeals Board ( Oberste Berufungs - und Disziplinarkommission für Rechtsanwälte und Rechtsanwaltsanwärter ) started in May 1996 and ended in February 2006. They thus lasted nine years and 11 months.

I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

Name and application number

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

Goriany (31356/04)

-

8,000 euros

-

8,000 euros

Paid on 02/08/2010

Müller- Hartburg (47195/06)

-

8,000 euros

3,103.38 euros

11,103.38 euros

Paid on 02/08/2013 and 21/08/2013

b) Individual measures

The disciplinary proceedings in both cases were terminated (see above). In these circumstances, no other individual measures were considered necessary.

II. General measures

a) Length of disciplinary proceedings

As regards the case of Goriany , the authorities submitted that the Disciplinary Council of the Vienna Bar Chamber does not keep official statistics on length of proceedings, since the complaints lodged differ too widely to make them comparable in this regard. The following indications however provide guidance on the average length of proceedings:

Proceedings with non-complex circumstances resulting in a discontinuation of the disciplinary proceeding, usually take eight to 12 months for a legally binding final decision to be reached. Proceedings with non-complex circumstances resulting in decisions on the merits (against which no appeal is lodged), usually take 12-18 months for a legally binding final decision to be reached.

Usually an appeal prolongs the proceeding s by eight to 12 months. It should be noted however that there are four-week deadlines for both parties to submit their comments (so that at least two months are foreseen for an appeal).

In complex cases, especially with burdensome investigations (such as hearings of witnesses from abroad, use of official documents from courts and authorities) the length of proceedings will reflect this. Similarly, any pending criminal proceeding s regarding the same matter will prolong proceedings as it is legally impossible to proceed until the criminal proceedings are closed. Section 23(2) of the Disciplinary Act stipulates that no disciplinary decision may be issued before the termination of criminal proceedings relating to the same facts as those which gave rise to the disciplinary offence (see also § 55 and § 34 of the judgment in the case of Müller- Hartburg ).

In this context, it is recalled that measures were taken in the context of the group of cases of Donner in order to shorten the length of criminal proceedings (see Final Resolution CM/ ResDH ( 2016)212 , adopted on 14/09/2016).

In the case of civil proceedings regarding the same matter, it is often in the accused ’ s interest to wait for the end of civil proceedings – or at least the hearing of witnesses – before continuing with the disciplinary proceedings.

An application for an extraordinary remedy or a preliminary ruling of the Court of Justice of the European Union also might prolong the proceeding by months or even years.

It should also be noted that disciplinary proceedings do not include the possibility for the Disciplinary Council to use coercive measures, available to a court, such as forced attendance of witnesses or the accused. Furthermore, the disciplinary court is administered by persons working in an honorary capacity, which makes it impossible to compare disciplinary proceedings with proceedings in court. It is also in the interest s of the accused lawyer to guarantee a thorough investigation and to allow for a comprehensive defence at each stage of the proceedings, which in individual cases also can have an impact on length.

Lastly, as the se cases present similarities to those of W.R. (see Final Resolution ResDH (2000)141 , adopted on 18/12/2000), Luksch (see Final Resolution ResDH (2005)69 , adopted on 18/07/2005) as well as Malek and Schmidt (see Final Resolution CM/ ResDH (2010)154 , adopted on 02/12/2010), the Austrian authorities also recalled the measures already taken in the context of these cases.

b) Training measures, publication and dissemination of the judgments

The judgment in the case of Goriany was disseminated to the Vienna Bar Chamber on 16 December 2009 and included in the Federal Chancellery ’ s Circular Note of 22 December 2010.

The judgment in the case of Müller- Hartburg was discussed in training courses for lawyers and has been disseminated to the Federal Chancellery, the Federal Ministry of Justice, the Federal Ministry of European and International Affairs, the Constitutional Court, the Austrian Bar Association and the Vienna Bar Association. The case was analysed in the Circular Note of the Federal Chancellery 2013 ( Jüngere Entscheidungen in Fällen gegen Österreich 2013) which is sent to all Federal Ministries, the Constitutional Court, the Administrative Court, the Supreme Court, the Asylum Court, Parliament, the governments of all nine Austrian Länder , the Liaison Office of the Länder with the federal a uthorities, all human rights co ‑ ordinators at the federal ministries, all independent administrative panels of the Länder , as well as all directorates general of the Federal Chancellery. A summary translation of the case was published in the Newsletter Menschenrechte 1/2013 (pp. 43 et seq.).

Both cases were also published on the homepage of the Prime Minister ’ s Office (Federal Chancellery): http://www.bka.gv.at/site/3465/default.aspx .

The Austrian authorities submitted that the se cases should be considered to be isolated incidents and that , given the direct effect of the European Convention in Austria, publication and dissemination of the European Court ’ s judgments, their discussion in training seminars for lawyers as well as the measures already taken in similar previous cases should be sufficient to guarantee that the requirements of the Convention and the case-law of the European Court will be taken into account to prevent new, similar violations.

III. Conclusions of the respondent S tate

The government considers that no individual measure is required, apart from the payment of the just satisfaction, and that the general measures adopted will prevent similar violations and that Austria has thus complied with its obligations under Article 46, paragraph 1, of the Convention.