Resolution CM/ ResDH (2010)154 [1]

Execution of the judgments of the European Court of Human Rights

Malek and Schmidt against Austria

(Application Nos. 60553/00 and 513/05, judgments of 12 June 2003 and 17 July 2008, final on 12 September 2003 and 17 October 2008)

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 judgments transmitted by the Court to the Committee once they had become final;

Recalling that the violation of the Convention found by the Court in these cases concerns the excessive length of proceedings concerning civil rights and obligations before certain disciplinary authorities and courts

(violation of Article 6, paragraph 1) (see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the mea s ures taken to comply with its obligation under Article 46, paragraph 1, of the Conve n tion to abide by the judgments;

Having examined the information provided by the government in accordance with the Committee ’ s Rules for the application of Article 46, paragraph 2, of the Convention;

Having satisfied itself that, within the time-limit set, the respondent state paid the a p plicants the just satisfaction provided in the judgments (see details in Appendix),

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded in the judgments, the adoption by the respondent state, where appropriate, of

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

- general measures preventing, similar violations;

DECLARES, having examined the measures taken by the respondent state (see Appendix) and considering the decision taken at the 906 th meeting of the Ministers ’ Deputies (22 December 2004), that it has exe r cised its functions under Article 46, paragraph 2, of the Convention in these cases and

DECIDES to close the examination of these cases.

Appendix to Resolution CM/ ResDH (2010)154

Information on the measures taken to comply with the judgments in the cases of

Malek and Schmidt against Austria

Introductory case summary

The cases concern the excessive length of disciplinary proceedings against the applicants, lawyers, before disciplinary authorities and courts in Lower Austria and Vienna respectively (violation of Article 6§1).

In t he Malek case the proceedings began on 16/09/1993 and ended on 06/04/2000. They thus lasted for 6 years and 7 months for three levels of jurisdiction.

In the Schmidt case, the period to be taken into consideration by the European Court began on 26/06/1996 and ended on 23/07/2004. The proceedings thus lasted for 8 years and 1 month for three levels of jurisdiction. In particular, the case was pending for almost three years before the Constitutional Court .

I. Payments of just satisfaction and individual measures

a) Details of just satisfaction

Name and application number

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

Malek (60553/00)

-

1 500 EUR

-

1 500 EUR

Paid on 9/12/2003

Schmidt (513/05)

-

4 000 EUR

3 568,32 EUR

7 568,32 EUR

Paid on 7/01/2009

b) Individual measures

The proceedings are closed. In addition, the European Court awarded just satisfaction in respect of non-pecuniary damages sustained by the applicants.

II. General measures

1) Length of proceedings before disciplinary authorities and courts : The cases present similarities to that of W.R. (see Final Resolution ResDH (2000)141, adopted on 18/12/2000), closed after the dissemination of the European Court ’ s judgment to the competent authorities.

After the judgment in the Malek case, on 29/01/2004, the Lower Austria Bar Chamber communicated new guidelines for accelerating disciplinary proceedings to all disciplinary counselors and indicating that compliance with these guidelines is supervised by the President and the Vice-President of the Disciplinary Council of the Lower Austria Bar Chamber. According to these guidelines, the disciplinary authorities may refrain from seeking evidence that is not attainable for legal or factual reasons for an unforeseeable or indefinite period, or whose production has been repeatedly and unsuccessfully sought, after the expiry of a certain deadline set down in each individual case. The Austrian authorities indicated that the disciplinary procedures of the Lower Austria Bar were usually handled swiftly and that the adoption of the new guidelines represented an additional safeguard against new violations similar to that found in the present cases.

2) Length of proceedings before the Constitutional Court : The Constitutional Court ’ s 2007 Activity Report (published on 09/04/2008, available online at http://www.vfgh.gv.at/cm s /vfgh-site/attachments/8/0/9/CH0011/CMS1207730706100/taetigkeitsbericht_2007.pdf ) provided statistics showing that the average length of proceedings between 1998 and 2007 was less than nine months. The duration of the proceedings in the Schmidt case therefore seems to constitute an isolated incident resulting from the particular circumstances of the case. Given the direct effect of the Convention in Austria , publication and dissemination of the judgment should be sufficient to raise the authorities ’ awareness of the Convention ’ s requirements.

3) Publication and dissemination: The judgment in the Schmidt case has been published in German in the Newsletter of the Austrian Institute for Human Rights (NL 2008, p. 219, NL 08/4/11, available online at http://www.menschenrechte.ac.at/docs/08_4/08_4_11 ). On 4/08/2008 it was sent out to the Constitutional Court , to the Vienna Bar Association, the Federation of the Austrian Bar Association, and the Ministry of Justice.

III. Conclusions of the respondent state

The government considers that the measures adopted will prevent similar violations and that Austria has thus complied with its obligations under Article 46, paragraph 1, of the Convention.

[1] Adopted by the Committee of Ministers on 2 December 2010 at the 1100th meeting of the Ministers’ Deputies