CASE OF MÜLLER-HARTBURG v. AUSTRIA

FIRST SECTION

CASE OF MÜLLER-HARTBURG v. AUSTRIA

(Application no. 47195/06)

JUDGMENT

STRASBOURG

19 February 2013

FINAL

19/05/2013

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Müller-Hartburg v. Austria,

The European Court of Human Rights (First Section), sitting as a Chamber composed of:

Isabelle Berro-Lefèvre, President,
Elisabeth Steiner,
Khanlar Hajiyev,
Mirjana Lazarova Trajkovska,
Julia Laffranque,
Linos-Alexandre Sicilianos,
Erik Møse, judges,
and Søren Nielsen, Section Registrar,

Having deliberated in private on 29 January 2013,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 47195/06) against the Republic of Austria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Austrian national, Mr Christoph Müller-Hartburg (“the applicant”), on 28 October 2006.

2. The applicant was represented by Mr S. Petzer, a lawyer practising in Vienna. The Austrian Government (“the Government”) were represented by their Agent, Ambassador H. Tichy, Head of the International Law Department at the Federal Ministry for European and International Affairs.

3. The applicant alleged in particular that the disciplinary proceedings against him had lasted an unreasonably long time and that he had been tried and punished twice for the same offence, first in criminal proceedings and subsequently in disciplinary proceedings.

4. On 27 November 2008 the application was communicated to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1956 and lives in Vienna.

A. The criminal proceedings against the applicant

6. The applicant started practising as a lawyer in 1984. In 1995 he and an Austrian bank (hereinafter “the bank”) entered into a trusteeship agreement in connection with real estate transactions.

7. One of the applicant’s tasks was to transfer 20,000,000 Austrian schillings (ATS, approximately 1,450,000 euros (EUR)), which he held as a trustee, to company X in exchange for a loan guarantee.

8. In a report dated 10 May 1996 the bank complained to the Vienna Bar Association (Rechtsanwaltskammer) that the applicant had transferred ATS 20,000,000 to company X, but had not handed over the guarantee, as was stipulated in the trusteeship agreement that he should do.

9. On 26 August 1996 the Vienna Regional Criminal Court opened preliminary investigations against the applicant on suspicion of embezzlement (Veruntreuung) as regards a breach of the trusteeship agreement with the bank.

10. On 21 October 1998 the applicant was formally charged with embezzlement for abusing his power under another trusteeship agreement. He was accused of paying out ATS 6,000,000 (approximately EUR 436,000) to a creditor of his clients without being instructed to do so, and of diverting ATS 8,500,000 (approximately EUR 618,000). These proceedings ended with the applicant’s acquittal on 12 January 2000.

11. During the trial and before the acquittal was pronounced, the public prosecutor had stated that he intended to reserve the applicant’s prosecution for breach of the trusteeship agreement with the bank regarding the transfer of ATS 20,000,000 in exchange for a loan guarantee.

12. On 7 July 2000 the applicant was charged with fraudulent conversion (Untreue) under Article 153 of the Criminal Code (Strafgesetz­buch) in respect of the transfer of ATS 20,000,000. On 12 April 2002 the Vienna Regional Criminal Court convicted the applicant of fraudulent conversion and sentenced him to three years’ imprisonment. The Supreme Court quashed the conviction for nullity on 16 October 2002.

13. On 5 February 2003 the Vienna Regional Criminal Court convicted the applicant again of fraudulent conversion under Article 153 of the Criminal Code and sentenced him to six years’ imprisonment. It found that the applicant and the bank had concluded a trusteeship agreement on 31 August 1995 under which the bank was to provide a loan of ATS 20,000,000 to the applicant’s client, X, while the applicant was to provide the bank with a loan guarantee in the same amount. The General Conditions for Real Estate Transactions by Trustees applied to that agreement. The bank had transferred the money to the applicant’s account on 5 September 1995. Only two days later the applicant had transferred the entire amount to a savings account. In breach of the trusteeship agreement including the above-mentioned General Conditions, the applicant had transferred part of the sum to his client without obtaining a loan guarantee, and had invested the remainder abroad in the hope of achieving considerable profits. He had told the bank, which had set 31 December 1995 as the deadline for submitting the guarantee, that he would be able to obtain it by 15 February 1996. Although the bank had repeatedly requested the fulfilment of the trusteeship agreement or the reimbursement of the loan, and the applicant knew by then that his investments had been unsuccessful and that he no longer disposed of the entire amount, he continued to use the remaining money, for instance to pay his own fees of ATS 840,000 (approximately EUR 61,000).

14. On 3 September 2003 the Supreme Court dismissed the applicant’s plea of nullity and referred the case to the Vienna Court of Appeal to decide on the appeal against sentence. On 18 February 2004 the Court of Appeal reduced the sentence to three years’ imprisonment.

15. The applicant served his prison sentence from December 2004 to December 2005 and was released after receiving a pardon from the President of Austria. Before the pardon, the applicant had lodged an application with the European Court of Human Rights (application no. 10185/04), complaining of unfairness of the criminal proceedings. The applicant states that the presidential pardon had been subject to the condition that he withdraw the application with the Court, which he did.

B. The disciplinary proceedings

16. On 24 May 1996 the Vienna Bar Association received the bank’s complaint of 10 May that the applicant had breached the trusteeship agreement (see paragraph 8 above). On 29 May 1996 the Disciplinary Lawyer (Kammeranwalt) appointed an Investigating Commissioner. The applicant made submissions on 5 June and 16 September 1996.

17. On 25 September 1996 the Disciplinary Council of the Vienna Bar Association (“the Disciplinary Council”, Disziplinarrat der Rechtsanwalts­kammer), issued an interim measure prohibiting the applicant from representing clients before the Vienna Regional Criminal Court, and before the prosecution authorities working at the Vienna Regional Criminal Court, as criminal proceedings against the applicant were pending before that court.

18. On 15 November 1996 the Disciplinary Council extended the interim measure, imposing on the applicant a temporary ban on practising as a lawyer.

19. On 20 December 1996 the applicant appealed to the Appeals Board (Oberste Berufungs- und Disziplinarkommission für Rechtsanwälte und Rechts­anwaltsanwärter), which dismissed the appeal on 14 April 1997.

20. As interim measures are only valid for a period of six months, the measures were extended every six months. The reason given was that criminal proceedings were pending against the applicant. No hearings were held.

21. On 26 January 2000 the Disciplinary Council lifted the temporary ban on practising as a lawyer, since the applicant had informed it that he had been acquitted (see paragraph 10 above).

22. On 4 May 2000 the Disciplinary Council again issued an interim decision imposing a temporary ban on practising as a lawyer. It noted that criminal proceedings against the applicant were still pending at the Vienna Regional Criminal Court concerning charges of fraudulent conversion to the detriment of the bank. On 2 October 2000 the Appeals Board dismissed the applicant’s appeal.

23. The final judgment of the Vienna Court of Appeal of 18 February 2004 (see paragraph 14 above) reached the Disciplinary Council on 24 May 2004. The Disciplinary Council scheduled a hearing on 12 October 2004. The applicant did not receive a summons. Subsequently, a new hearing was scheduled for 15 February 2005.

24. After holding a hearing at which the applicant and his counsel were present, the Disciplinary Council found on 15 February 2005 that the applicant had breached his professional duties and had infringed the profession’s honour and reputation (section 1 (1) of the Disciplinary Act for Lawyers and Trainee Lawyers (Disziplinarstatut für Rechtsanwälte und Rechts­anwaltsanwärter – the Disciplinary Act) and ordered that he be struck off the register pursuant to section 16 (1) subparagraph (4) of the said Act. Furthermore, it held in favour of him in respect of a number of other alleged disciplinary offences.

25. The Disciplinary Council held that the applicant had failed

(1) to provide the bank with a loan guarantee in exchange for the amount of ATS 20,000,000, as required under the trusteeship agreement of 31 August 1995;

(2) to reply to repeated requests from the bank for assurances that the said amount was still in his possession;

(3) to transfer the amount to a separate trustee account (Anderkonto); and

(4) finally, to fulfil the trusteeship agreement as a whole.

It referred to the establishment of facts contained in the Vienna Regional Court’s judgment of 5 February 2003 (see paragraph 13 above) and noted that this was confirmed by its own establishment of the facts. Moreover, the Disciplinary Council referred to the Appeals Board’s established case-law, in accordance with which the disciplinary authorities were bound by the establishment of facts contained in a judgment of a criminal court convicting a lawyer alleged to have committed a disciplinary offence. It noted that disposing of such a large amount of money in breach of the trusteeship agreement amounted to serious professional misconduct and a severe infringement of the profession’s honour and reputation within the meaning of section 1 (1) of the Disciplinary Act. Given the circumstances of the case, which had also become publicly known and had caused serious damage to the legal profession, it was not sufficient to impose a ban on practising of up to one year but it was necessary to order that the applicant be struck off the register. It would be unacceptable that the applicant, who was at that time serving his prison sentence, could resume practising immediately after his release. Moreover, no client would entrust his affairs to a lawyer who had diverted such a large amount of money in breach of his duties as a trustee.

26. The applicant appealed to the Appeals Board, inter alia on the ground that his conviction by the criminal court excluded disciplinary proceedings, which were based on the same facts. In the alternative, he argued that the sanction was disproportionate, having particular regard to the fact that he had already been banned from practising as a lawyer while the proceedings were pending.

27. On 25 July 2005 the Appeals Board upheld the Disciplinary Council’s decision in respect of points (1) to (3), but amended it in respect of point (4), finding that the applicant had failed to fulfil the trusteeship agreement only in respect of part of the sum. It also confirmed the sanction.

28. In so far as the applicant relied implicitly on Article 4 of Protocol No. 7, the Appeals Board referred to the Constitutional Court’s established case-law according to which conduct of a lawyer qualifying as a criminal offence and also infringing the profession’s honour and reputation contained an element, the “disciplinary-law surplus” (“disziplinärer Überhang”) which justified a disciplinary sanction. The Constitutional Court’s case-law relied on the explanatory report to Protocol No. 7, according to which Article 4 of Protocol No. 7 did not protect a person against conviction for the same act in criminal proceedings and in a different set of proceedings, such as disciplinary proceedings against a civil servant. It thus appeared that disciplinary proceedings did not qualify as criminal proceedings. Moreover, the Disciplinary Council had not merely relied on the matters which constituted the criminal offence, but had had particular regard to the ensuing damage to the profession’s honour and reputation. The commission of a serious criminal offence which had a direct link with the exercise of a lawyer’s professional activity served to undermine the trustworthiness of the profession as a whole. This was all the more so where the violation of duties concerned the core activities of a practising lawyer, such as fulfilling a trusteeship agreement.

29. Regarding the sanction, the Appeals Board noted in particular that meticulous observance of the duties attached to the core activities of a practising lawyer, such as acting as a trustee, was an indispensable condition for maintaining the confidence the general public placed in the legal profession. In the event of a very serious breach of these duties the Bar Association had to show that it was ready to dissociate itself from such misconduct in an unequivocal manner. It had therefore been necessary to impose the maximum sanction, namely striking the applicant off the register.

30. The applicant lodged a complaint with the Constitutional Court alleging, inter alia, that he had been tried twice for the same conduct. He also repeated that the imposition of the severest sanction possible, namely striking him off the register, was not justified in the circumstances.

31. On 28 February 2006 the Constitutional Court dismissed the applicant’s complaint. It found that the disciplinary decisions were properly reasoned, and that the legal basis on which they had been taken was transparent and clear. As regards the applicant’s complaint that he had been punished twice for the same conduct, the Constitutional Court repeated that the applicant’s actions amounted to a criminal offence, but that they also contained a “disciplinary-law surplus” which could be subject to disciplinary sanctions without violating either Article 6 of the Convention or Article 4 of Protocol No. 7.

32. The Constitutional Court’s judgment was served on the applicant’s counsel on 27 April 2006.

II. RELEVANT DOMESTIC LAW

A. The Criminal Code

Article 153 of the Criminal Code (Strafgesetzbuch), in the version in force at the material time, read as follows:

“(1) Any person who abuses the power conferred on him or her by statute, by order of a public authority or by a legal transaction to dispose of the assets of others or to enter into commitments on their behalf, and who thereby causes them pecuniary damage, shall be liable to up to six months’ imprisonment or to a day-fine payable for up to 360 days.

(2) Where the damage caused exceeds 25,000 schillings, the person responsible shall be liable to up to three years’ imprisonment; where it exceeds 500,000 schillings, he or she shall be liable to between one and ten years’ imprisonment.”

B. The Disciplinary Act

33. Section 1(1) of the Disciplinary Act (Disziplinarstatut für Rechtsanwälte und Rechtsanwaltsanwärter), provides as follows:

“A lawyer who negligently or intentionally breaches his or her professional duties or whose professional or private conduct adversely affects the reputation or standing of the profession shall be deemed to have committed a disciplinary offence.”

34. The other relevant Sections of the Disciplinary Act in force at the material time read as follows:

“16(1) Disciplinary sanctions shall take the form of:

1. a written reprimand;

2. a fine of up to 500,000 schillings;

3. a ban on practising as a lawyer of up to one year or, in the case of trainee lawyers, extension of the period of practical work experience by a maximum of one year;

4. striking off the register ...

(6) In imposing the sanction, particular account should be taken of the degree of culpability and the resulting damage, particularly to members of the public; when determining the amount of the fine, the person’s income and financial situation should also be taken into consideration.

(18) A lawyer who has been struck off the register as a disciplinary sanction may be re‑registered with a Bar Association only if he or she has not practised as a lawyer for a total of three years since being struck off. A Bar Association may refuse to re-register a lawyer even after this period has expired on grounds of untrustworthiness (section 5(2) of the Practising Lawyers Act).

19(1) The Disciplinary Council may adopt interim measures in respect of a lawyer where:

1. criminal proceedings are pending against him or her;

2. the lawyer has been finally convicted of a punishable offence by a court or

3. the lawyer has been struck off the register as a disciplinary sanction

and the interim measure is necessary in view of the nature and seriousness of the disciplinary proceedings against the lawyer concerned, on account of the potential for serious damage, in particular to the interests of the public or the standing of the profession.

(2) Before a decision is taken to adopt an interim measure the lawyer concerned must have been afforded an opportunity to comment on the accusations against him or her and on the conditions required for ordering an interim measure. Derogation may be made from this requirement if a delay would entail danger; however, in this case the lawyer must be given an opportunity to comment immediately after the decision is adopted.

(3) Interim measures shall take the form of:

1. in the case of lawyers ...

(b) withdrawal of the right to act as representatives before certain courts or administrative authorities, or before all courts and administrative authorities ...

(d) a temporary ban on practising as a lawyer ...

(4) Interim measures shall be lifted, amended or replaced where it transpires that the conditions required for ordering them do not apply or no longer apply, or the circumstances have altered substantially. An interim measure ordered in respect of a lawyer entailing a temporary ban on practising on account of pending criminal proceedings against him or her shall cease to apply after six months at the latest. However, it may be extended by a decision of the Disciplinary Council where it is essential in order to prevent serious damage to the interests of the public; each extension shall also cease to apply after a maximum of six months.

(5) When the disciplinary proceedings are finally terminated any interim measures adopted shall in any event cease to apply, without prejudice to § 72 (3)...

(7) Where a disciplinary sanction is imposed, any interim measures shall be taken into account in the appropriate manner. The period of a temporary ban on practising as a lawyer shall count towards the length of a ban on practising imposed as a disciplinary sanction; the period for which trainee lawyers are temporarily barred from admittance to practical work experience shall count towards the period of any ban on admittance imposed as the result of a disciplinary sanction.

23(2) If criminal proceedings are conducted relating to the same facts as those underlying the disciplinary offence, no disciplinary decision must be issued prior to the final conclusion of the proceedings conducted because of that offence ...”

Several provisions of the Disciplinary Act also refer to the Code of Criminal Procedure (Strafprozeßordnung), and declare them applicable in disciplinary proceedings.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

35. The applicant complained about the length of the disciplinary proceedings. He relied on Article 6 of the Convention which, in so far as is material to the case, reads as follows:

“In the determination of his civil rights and obligations or of any criminal charge against him everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”

36. The Government contested that argument.

A. Admissibility

1. Applicability of Article 6

37. The Government accepted that Article 6 applied under its civil head to the disciplinary proceedings at issue, but contested that it applied under its criminal head. Referring to the criteria established by the Court’s case-law for classifying an offence as “criminal”, the Government submitted, firstly, that disciplinary law was not part of criminal law in the Austrian legal system. Disciplinary offences were not dealt with by the criminal courts and the Supreme Court as last instance, but by specialised disciplinary authorities under the supervision of the Constitutional Court. Secondly, the Government noted that unlike criminal law, which applied generally, disciplinary law applied to members of specific professional groups, such as lawyers, notaries, doctors, judges or other civil servants, and was aimed at maintaining the confidence of the public in certain professions which were of importance for the functioning of public life. The Appeals Board’s considerations when setting the sanction in the present case emphasised the specific character of disciplinary law, in that it focused on the damage which the applicant’s conduct had caused to the general public’s confidence in the legal profession. Thirdly, turning to the nature and severity of the penalties at stake, the Government noted that although the sanction imposed had a decisive impact on the applicant it was not primarily deterrent in nature, but was aimed at restoring the confidence of the general public. In addition they noted that striking a lawyer off the register did not necessarily have a permanent effect, as it was possible to re-apply for admission after three years.

38. For his part, the applicant maintained that Article 6 § 1 also applied under its criminal head to the disciplinary proceedings against him. He submitted in particular that numerous provisions of the Disciplinary Act referred to provisions of the Code of Criminal Procedure, and declared them to be applicable in the disciplinary proceedings.

39. The Court has consistently held that disciplinary proceedings in which the right to continue to exercise a profession is at stake give rise to “contestations” (disputes) over civil rights within the meaning of Article 6 § 1 (see, in particular, König v. Germany, 28 June 1978, §§ 87-95, Series A no. 27; Diennet v. France, 26 September 1995, § 27, Series A no. 325‑A; Philis v. Greece (no. 2), 27 June 1997, § 45, Reports of Judgments and Decisions 1997‑IV; Gautrin and Others v. France, 20 May 1998, § 33, Reports 1998‑III; W.R. v. Austria, no. 26602/95, §§ 28-30, 21 December 1999; and Goriany v. Austria, no. 31356/04, § 21, 10 December 2009).

40. In the present case, the disciplinary authorities ordered that the applicant be struck off the register. Moreover, a temporary ban on practising as a lawyer had been imposed on the applicant as an interim measure while the disciplinary proceedings were pending. There can thus be no doubt that the applicant’s right to continue to practise as a lawyer was at stake in the disciplinary proceedings. Consequently, Article 6 § 1 applies under its civil head.

41. Given that the applicant raises a further complaint under Article 4 of Protocol No. 7, the Court will examine whether Article 6 § 1 also applies under its criminal head to the disciplinary proceedings at issue.

42. First, the Court reiterates that the concept of a “criminal charge” within the meaning of Article 6 § 1 is an autonomous one. The Court’s established case-law sets out three criteria, commonly known as the “Engel criteria” (see Engel and Others v. the Netherlands, 8 June 1976, § 82, Series A no. 22), to be considered in determining whether or not there was a “criminal charge” within the meaning of Article 6 § 1 of the Convention. The first criterion is the legal classification of the offence under national law, the second is the very nature of the offence, and the third is the nature and degree of severity of the penalty that the person concerned risks incurring. The second and third criteria are alternative, and not necessarily cumulative. This, however, does not exclude a cumulative approach where separate analysis of each criterion does not make it possible to reach a clear conclusion as to the existence of a criminal charge (see, in particular, Jussila v. Finland [GC], no. 73053/01, §§ 30-31, ECHR 2006‑XIII, and Ezeh and Connors v. the United Kingdom [GC], nos. 39665/98 and 40086/98, § 82, ECHR 2003‑X).

43. In domestic law the offence of professional misconduct under section 1 (1) of the Disciplinary Act belongs to the sphere of disciplinary law. Disciplinary proceedings are not conducted by the public prosecutor’s offices and the criminal courts, but by disciplinary authorities under the supervision of the Constitutional Court. The matter to which the applicant refers, namely that several provisions of the Criminal Code are applicable in proceedings under the Disciplinary Act, does not suffice to alter their classification as disciplinary proceedings.’

44. Regarding the nature of the offence, the Court observes that section 1 (1) of the Disciplinary Act is not addressed to the general public but to the members of a professional group possessing a special status, namely practising lawyers and trainee lawyers (see Brown v. the United Kingdom (dec.), no. 38644/97, 24 November 1998, concerning disciplinary proceedings against a solicitor). Although the facts which gave rise to the disciplinary proceedings also constituted a criminal offence, the offences brought against the applicant in the disciplinary proceedings related solely to professional misconduct. The fact that an act which can lead to a disciplinary sanction also constitutes a criminal offence is not sufficient to consider a person responsible under disciplinary law as being “charged” with a crime (see Moullet v. France (dec.), no. 27521/04, 13 September 2007, concerning disciplinary proceedings against a civil servant; see also Vagenas v. Greece (dec.), no. 53372/07, 23 August 2011).

45. The Court notes that section 1 (1) of the Disciplinary Act is designed to ensure that members of the bar comply with the specific rules governing their professional conduct. At the same time that provision aims at protecting the profession’s honour and reputation and at maintaining the trust the public places in the legal profession. As the Government pointed out, this is underlined by the sanction rules contained in the Disciplinary Act. Section 16 (6) of the Disciplinary Act required the disciplinary authorities to have particular regard not only to the degree of culpability but to the damage resulting from the commission of the offence, in particular to members of the public. Having regard to all these elements the Court finds that the offence under section 1(1) of the Disciplinary Act is not criminal but disciplinary in nature (see, mutatis mutandis, Brown, cited above).

46. Turning to the nature and degree of severity of the sanction the applicant risked incurring, the Court reiterates that this criterion is to be determined by reference to the maximum potential penalty for which the relevant law provides. The actual penalty imposed is relevant to the determination, but cannot diminish the importance of what was initially at stake (see Ezeh and Connors, cited above, § 120, with further references).

47. The Court notes that pursuant to section 16(1) of the Disciplinary Act in the version in force at the material time the applicable sanctions included a written reprimand, a fine of up to ATS 500,000 (approximately EUR 36,000), temporary suspension of the right to practise, or striking off the register. With the exception of the fine, these sanctions are typical disciplinary sanctions (see, mutatis mutandis, Moullet, cited above). As regards the fine, the Court notes that in contrast to fines in criminal proceedings fines under the Disciplinary Act do not attract a prison term in the event of default, as the disciplinary authorities have no power to impose deprivation of liberty. Although the size of the potential fine is such that it must be regarded as having a punitive effect, the severity of this sanction in itself does not bring the charges into the criminal sphere (see Brown, cited above).

48. The Court notes that in the present case the disciplinary authorities’ considerations when setting the sanction concentrated on the question whether a temporary ban on practising might suffice, or whether striking the applicant off the register was required in view of the damage which the reputation of the profession had suffered as a result of the applicant’s serious misconduct. The sanction eventually imposed on him was being struck off the register. Although this is a severe sanction it affects first and foremost a lawyer’s civil right to continue exercising his or her profession (see paragraphs 39-40 above). As the Appeals Board pointed out, its aim is to restore the confidence of the public by showing that in cases of serious professional misconduct the Bar Association will prohibit the lawyer concerned from practising (see paragraph 29 above). Finally, the Court notes that being struck off the register does not necessarily have permanent effect. Pursuant to section 18 of the Disciplinary Act, a lawyer who has been struck off the register may apply to be re-registered after three years. In sum, the nature and severity of the sanctions the applicant risked incurring and the sanction actually imposed were not such as to render the charges “criminal” in nature. Consequently, the disciplinary proceedings against the applicant did not involve the determination of a “criminal charge” within the meaning of Article 6 § 1 of the Convention.

49. Having regard to the considerations set out above, the Court concludes that Article 6 § 1 of the Convention applies under its civil head to the disciplinary proceedings at issue, while it does not apply to these proceedings under its criminal head.

2. Non-exhaustion of domestic remedies

50. The Government asserted that the applicant had failed to exhaust domestic remedies, as he had not raised his complaint about the length of the proceedings at the domestic level. In particular he should have raised the issue in his complaint to the Constitutional Court, which could have established a violation of Article 6 § 1 of the Convention on account of the unreasonable length of the proceedings. The applicant has not made submissions on this point.

51. The Court reiterates its case-law that effective remedies in respect of the length of proceedings may either be remedies designed to expedite the proceedings, thus preventing them from becoming excessively lengthy, or remedies affording compensation for undue delays (see Scordino v. Italy (no. 1) [GC], no. 36813/97, §§ 183-187, ECHR 2006‑V). The Court has already held that a decision by the Constitutional Court which constitutes a finding that the proceedings have lasted an unreasonably long time has neither a preventive nor a compensatory effect in respect of the length of the proceedings, but has a merely declaratory effect. Such a remedy cannot be considered effective under the principles established by the Court’s case-law (see VR‑Bank Stuttgart v. Austria, no. 28571/06, § 31, 20 May 2010).

52. In short, the Government have failed to show that the applicant had an effective remedy against the length of the proceedings at his disposal. The Court therefore dismisses the Government’s objection.

3. Conclusion

53. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

54. The applicant submitted that the disciplinary proceedings were of no particular complexity. However, they had been pending for almost nine years when the Disciplinary Council held a hearing in February 2005. In his view the disciplinary authorities should have proceeded with the case diligently, without waiting for the outcome of the criminal proceedings against him. The applicant also underlined that the proceedings were of particular importance for him, as the temporary ban on practising as a lawyer remained in force throughout almost the entire period.

55. The Government referred to section 23 (2) of the Disciplinary Act, which states 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. They argued that the disciplinary proceedings de facto only started on 24 May 2004, when the Vienna Court of Appeal’s final judgment in the criminal proceedings was served on the Disciplinary Council. The proceedings were then conducted with reasonable speed and were terminated by the Constitutional Court’s decision of 28 February 2006.

56. The Court considers that the proceedings started on 29 May 1996, when an Investigating Commissioner was appointed (see Goriany, cited above, § 25). The proceedings were terminated by the Constitutional Court’s decision of 28 February 2006, which was served on the applicant’s counsel on 27 April 2006. The proceedings, before three levels of jurisdiction, have thus lasted nine years and eleven months.

57. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and of the relevant authorities, and what was at stake for the applicant in the dispute (see Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000‑VII).

58. The Court has frequently found violations of Article 6 § 1 in cases raising issues similar to the one in the present case (see, in particular, Goriany, cited above, §§ 27-30, concerning various sets of disciplinary proceedings against a practising lawyer which had lasted between three years and one month and five years and seven months at one level of jurisdiction, and W.R. v. Austria, cited above, § 34, which concerned disciplinary proceedings against a practising lawyer which had lasted seven years and four months at three levels of jurisdiction).

59. Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case, in which the disciplinary proceedings lasted nine years and eleven months at three levels of jurisdiction. Moreover, the Court notes that what was at stake in the proceedings, namely his right to continue to exercise his profession, was of particular importance for the applicant. Having regard to its case-law on the subject, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement.

There has accordingly been a breach of Article 6 § 1 of the Convention.

II. ALLEGED VIOLATION OF ARTICLE 4 OF PROTOCOL No. 7

60. The applicant complained that he had been tried and punished twice for the same offence, first in the criminal proceedings and then in the disciplinary proceedings against him. He relied on Article 4 of Protocol No. 7, which provides as follows:

“1. No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State.

2. The provisions of the preceding paragraph shall not prevent the reopening of the case in accordance with the law and penal procedure of the State concerned, if there is evidence of new or newly discovered facts, or if there has been a fundamental defect in the previous proceedings, which could affect the outcome of the case.

3. No derogation from this Article shall be made under Article 15 of the Convention.”

Admissibility

61. The Government maintained that the disciplinary proceedings did not qualify as “criminal proceedings”, and that consequently Article 4 of Protocol No. 7 did not apply. Alternatively, should the Court find Article 4 of Protocol No. 7 to be applicable, the Government argued that the applicant had not been tried again for the same offence in the disciplinary proceedings.

62. The applicant contested this view.

63. The Court reiterates that the aim of Article 4 of Protocol No. 7 is to prohibit the repetition of criminal proceedings that have been concluded by a final decision. The Court has already held that the notions of “criminal proceedings” and “penal procedure” in the text of Article 4 of Protocol No. 7 must be interpreted in the light of the general principles concerning the corresponding words of “criminal charge” and “penalty” in Articles 6 and 7 of the Convention respectively (see Sergey Zolotukhin v. Russia [GC], no. 14939/03, § 52, ECHR 2009, and Ruotsalainen v. Finland, no. 13079/03, § 42, 16 June 2009, with further references). Consequently, the Court applies the same set of criteria when establishing whether proceedings are criminal proceedings for the purpose of Article 4 of Protocol No. 7 as for determining whether proceedings relate to a “criminal charge” within the meaning of Article 6 § 1 (see Sergey Zolotukhin, cited above, § 53, and Ruotsalainen, cited above, § 43). Having regard to its finding that the disciplinary proceedings against the applicant did not involve the determination of a “criminal charge” (see paragraph 49 above), the Court concludes that Article 4 of Protocol No. 7 does not apply in the present case.

64. It follows that this complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected in accordance with Article 35 § 4.

III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

65. The applicant further complained under Article 6 § 1 of Convention that the disciplinary proceedings against him had been conducted unfairly. He submitted that the Disciplinary Council’s decision was based on the facts established in the criminal proceedings, and that those proceedings had also been unfair. In particular, he complained that the Disciplinary Council had failed to hear his secretary, who had allegedly erroneously transferred ATS 20,000,000, which sum was the subject of the trusteeship agreement. She had not been heard as a witness in the second set of criminal proceedings for fraudulent conversion. The applicant, relying on Article 4 of Protocol No. 7, also complains that the sanction imposed on him, namely being struck off the register, was excessive.

 66. However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.

67. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION

68. Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A. Damage

69. The applicant claimed compensation for pecuniary damage of EUR 45,000 per month for a period of up to 132 months (eleven years) for loss of earnings caused by the length of the proceedings, during which a temporary ban on practising remained in force against him. Furthermore, he claimed EUR 15,000 per month for excessive length of the proceedings in respect of non-pecuniary damage.

70. In respect of pecuniary damage, the Government commented firstly that the applicant had failed to show that there was a causal link between the alleged violations and the damage claimed. In their view the causal link remained speculative, as the criminal proceedings against the applicant, which were not the subject of the present application, and his conviction in 2004 must already have had an impact on his income. Secondly, the applicant had failed to substantiate his claim. In particular, he had not made any detailed submissions to explain how he had calculated the monthly sum claimed, or as to whether he had previously derived his income exclusively from his activities as a lawyer. Nor had the applicant disclosed his income after the institution of the disciplinary proceedings; this would have allowed it to be established whether and to what extent he had actually suffered financial damage.

71. In respect of non-pecuniary damage, the Government argued that the applicant’s claim was excessive.

72. The Court considers that the applicant has not sufficiently substantiated his claim in respect of pecuniary damage. The Court therefore rejects the claim.

73. On the other hand, having regard to its case-law and making an assessment on an equitable basis, it awards the applicant EUR 8,000 in respect of non-pecuniary damage.

B. Costs and expenses

74. The applicant also claimed EUR 9,600 for costs and expenses incurred in the proceedings before the Court. This sum includes value-added tax (VAT).

75. The Government asserted that the amount claimed was excessive. With regard to the fees applicable under domestic law they argued that an amount of EUR 2,655.36 including VAT for lodging the application and an amount of EUR 448.02 including VAT for the observations would be appropriate, thus a total amount of EUR 3,103.38 including VAT.

76. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 3,103.38, including VAT, for the proceedings before the Court.

C. Default interest

77. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1. Declares the complaint concerning the length of the disciplinary proceedings against the applicant admissible and the remainder of the application inadmissible;

2. Holds that there has been a violation of Article 6 § 1 of the Convention;

3. Holds

(a) that the respondent State is to pay the applicant, within three months of the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts:

(i) EUR 8,000 (eight thousand euros) plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 3,103.38 (three thousand one hundred and three euros thirty-eight cents) in respect of costs and expenses;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

4. Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 19 February 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Søren NielsenIsabelle Berro-Lefèvre
RegistrarPresident

Full & Egal Universal Law Academy