AS TO THE ADMISSIBILITY OF
Application No. 14217/88
by A. A.
against Austria
The European Commission of Human Rights sitting in private
on 2 April 1990, the following members being present:
MM. C.A. NØRGAARD, President
S. TRECHSEL
E. BUSUTTIL
G. SPERDUTI
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
G. BATLINER
J. CAMPINOS
H. VANDENBERGHE
Mrs. G.H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
L. LOUCAIDES
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 15 July 1988 by
A. A. against Austria and registered on 14 September 1988 under
file No. 14217/88;
Having regard to the report provided for in Rule 40 of the
Rules of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is an Austrian citizen born in 1944. He is a
lawyer and lives in N., Lower Austria.
Disciplinary proceedings were instituted against the applicant
by the Disciplinary Committee of the Bar Association for Vienna, Lower
Austria and Burgenland (Disziplinarrat der Rechtsanwaltskammer für
Wien, Niederösterreich und Burgenland) at the request of A. junior.
The charges related to having put pressure on A. junior by writing to
him a letter in which, in order to persuade A. junior to settle a
family dispute with his father, the applicant threatened to bring the
case to the attention of the public and, in particular, the upper
echelons of the conservative party (Volkspartei) (Section 2 of the
Guidelines on the Exercise of the Profession of Lawyer (Richtlinien
für die Ausübung des Rechtsanwaltsberufes)). At the time A. junior
was standing as a candidate in local elections. The applicant was
also accused, notwithstanding a settlement to the dispute, of having
published the content of the dispute in the local journal of the Pan
European Union, referring to the father's suicidal intentions as a
result of his son's behaviour (Section 9 of the Lawyers Act
(Rechtsanwaltsordnung)).
Criminal proceedings under Article 105 of the Criminal Code
(Strafgesetzbuch; putting pressure on a person with threats) were
discontinued on the applicant's written statement, and a private action
under Article 111 of the Criminal Code (defamation) was withdrawn.
The Disciplinary Committee found the allegations against the
applicant made out and, on 20 June 1986, fined him AS 10,000 for
having breached professional obligations and having prejudiced the
standing of his profession. The Committee noted that the applicant
had not previously been sanctioned for disciplinary matters, and took
into account his financial position, including maintenance obligations.
An appeal to the Supreme Appeals and Disciplinary Committee
(Oberste Berufungs- und Disziplinarkommission) was unsuccessful.
The Constitutional Court (Verfassungsgerichthof), in its
decision of 7 October 1987 (received by the applicant on 29 January
1988), found no violation of the applicant's constitutional rights and
right to freedom of expression. The court found that threats to
disclose a private dispute to the public at a time when the applicant
knew that A. junior was involved in local elections could, at the very
least, reasonably be seen (by the body at first instance) as breaching
professional obligations. The subsequent publication of the story,
at a time when A junior was standing as candidate for mayor of the
district, could likewise tenably be regarded as bringing the
profession into disrepute.
COMPLAINTS
The applicant alleges violations of Articles 6 and 7 of the
Convention in that, although the form of the proceedings was
disciplinary, in reality he was accused of criminal offences under
Articles 105 and 111 of the Criminal Code. He states that the facts
of the case had nothing to do with his profession.
The applicant also alleges a violation of Article 10 of the
Convention in that he was punished for having published his version of
the events at issue, even though the publication was completely
unrelated with his professional life.
THE LAW
1. The applicant alleges that the charges against him were
disciplinary in form but criminal in nature, and that Article 6
(Art. 6) and Article 7 (Art. 7) of the Convention have been violated.
The Commission must first consider whether the proceedings
against the applicant determined "criminal charges" within the meaning
of Article 6 para. 1 (Art. 6-1) of the Convention.
The Commission notes that criminal proceedings under Articles
105 and 111 of the Criminal Code (Strafgesetzbuch) were in fact begun,
but both sets of proceedings were discontinued or withdrawn.
The Commission also notes that the proceedings were brought by
the Disciplinary Committee of the Bar Association, and that the
charges, of breaching professional obligations and prejudicing the
standing of the profession, were of their nature, disciplinary rather
than criminal.
The Commission observes that the exercise of a profession may
require individuals to regulate their private affairs in a way
compatible with the standing of the profession. It may well be that,
as in the present case, events not exclusively falling within an
individual's professional life are of sufficient concern to the
professional body to fall within the scope of disciplinary
proceedings. In any event, the initial letter written by the applicant
to A. junior was written both in a personal context and in the
applicant's capacity as A. senior's professional adviser.
Finally, the Commission notes that the fine imposed took into
consideration the fact that this was the applicant's first appearance
before the disciplinary organs, and his ability to pay. The fine, of
AS 10.000 (which could not be converted to a prison sentence), cannot
be said, bearing in mind the nature of the charges and the applicant's
position, to bring the charges within the criminal sphere.
It follows that the proceedings against the applicant did not
determine a criminal charge, and that his complaints under both
Article 6 (Art. 6) and Article 7 (Art. 7) of the Convention are
incompatible ratione materiae with the provisions of the Convention
within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
2. The applicant also alleges a violation of Article 10 (Art. 10)
of the Convention in that he was punished by the disciplinary organs
for having published his view of the events at issue.
The Commission accepts that the sanction in the present
circumstances constitutes an interference with the applicant's right
to freedom of expression under Article 10 para. 1 (Art. 10-1).
The requirement of Article 10 (Art. 10) of the Convention that
restrictions must be "prescribed by law" does not require that every
fact which can attract a sanction be exhaustively enumerated.
Particularly in the case of disciplinary offences, it is sufficient
for a type of behaviour to be referred to and for the decision as to
whether a specific activity falls within that type of behaviour to be
left to domestic organs (cf. Eur. Court H.R., Barthold judgment of 25
March 1985, Series A no. 90, p. 21, para. 44 et seq). The Commission
considers that Section 9 of the Lawyers Act (Rechtsanwaltsordnung) and
Section 2 of the Guidelines cover the facts alleged and are clear
enough to be understood by the applicant. The restriction was,
therefore, "prescribed by law" within the meaning of Article 10
para. 2 (Art. 10-2).
The sanction of a fine was imposed on the applicant for having
behaved in an unprofessional manner in the way in which he wrote to A.
junior and for subsequently revealing the story in the press.
As mentioned above, a sanction for mixed "professional" and
"private" behaviour may well fall within the scope of matters which
professional organs are entitled to regulate. Such was the situation
in the present case. Moreover, the restriction in the present case
was clearly aimed at protecting the reputation and rights of others,
an aim which has to be regarded as legitimate under Article 10
para. 2 (Art. 10-2).
As to whether the interference was "necessary in a democratic
society", the Commission recalls that "necessary" does not mean
"indispensable", neither has it the flexibility of expressions such as
"useful" or "desirable"; rather it implies a "pressing social need"
(cf. Eur. Court H.R., Barthold judgment, loc. cit, p. 22, para. 55).
In assessing the margin of appreciation enjoyed by contracting states,
the Commission must consider whether the interference was
proportionate to the legitimate aim pursued and whether the reasons
for it were relevant and sufficient (cf. Eur. Court H.R., Müller and
others judgment of 24 May 1988, Series A no. 133, p. 21, para. 32).
The Commission notes in this respect that the appplicant's
behaviour was regarded by the domestic authorities as particularly
reprehensible. In the context of disciplinary proceedings against a
lawyer, a fine of AS 10.000 with no question of restriction on
practice, cannot be regarded as disproportionate to the aim of
protecting the reputation of the legal profession. The reasons given
for the imposition of the sanction were set out in the decision of the
Disciplinary Committee, and nothing indicates that this reasoning may
not have been sufficient.
This part of the application must therefore be rejected as being
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
For these reasons, the Commission
DECLARES THE APPLICATION INADMISSIBLE
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
Full & Egal Universal Law Academy