Final resolution DH (99) 247
HUMAN RIGHTS
APPLICATION No. 17798/91
Deixler AGAINST Austria
(Adopted by the Committee of Ministers on 15 April 1999
at the 666th meeting of the Ministers’ Deputies)
The Committee of Ministers, under the terms of Article 32 of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter referred to as “the Convention”),
Having regard to Interim Resolution DH (98) 151, adopted on 11 June 1998 in the case of Deixler against Austria, in which the Committee of Ministers decided that there had been in this case a violation of Article 6, paragraph 1, of the Convention with regard to the length of the criminal proceedings brought against the applicant and there had also been a violation of Article 6, paragraph 1, of the Convention with regard to the absence of judicial review concerning the decision by which the applicant was disbarred, and to make public the report of the European Commission of Human Rights;
Whereas the Committee of Ministers examined the proposals made by the Commission when transmitting its report as regards just satisfaction to be awarded to the applicant, proposals supplemented by a letter of the President of the Commission dated 18 May 1998;
Whereas at the 637th meeting of the Ministers’ Deputies, the Committee of Ministers, agreeing with the Commission’s proposals, held by a decision adopted on 10 July 1998, in accordance with Article 32, paragraph 2, of the Convention, that the Government of the respondent State was to pay the applicant as just satisfaction, within three months, 162 000 Austrian schillings in respect of non-pecuniary damage and 10 000 Austrian schillings in respect of costs and expenses, namely a total sum of 172 000 Austrian schillings, and that interest should be payable on any unpaid sum, calculated on the basis of each full elapsed month of delay at the statutory rate applicable on the date of this decision, it being understood that the interest would accrue from the expiry of the time-limit until full payment was placed at the disposal of the applicant;
Whereas the Committee of Ministers invited the Government of the respondent State to inform it of the measures taken following its decisions of 11 June 1998 and 10 July 1998, having regard to Austria’s obligation under Article 32, paragraph 4, of the Convention to abide by them;
Whereas during the examination of the case by the Committee of Ministers, the Government of the respondent State accordingly gave the Committee information about the measures taken in consequence of the Committee’s decisions; this information appears in the appendix to this resolution;
Considering that there is no indication, in the circumstances of the present case, that the procedure mentioned by the Government of the respondent State according to which the sum awarded to the applicant as just satisfaction has been set off against debts owed by the applicant to the State, constitutes an interference with any of the applicant's rights under the Convention,
Declares, after having taken note of the measures taken by the Government of Austria, that it has exercised its functions under Article 32 of the Convention in this case.
Appendix to Final Resolution DH (99) 247
Information provided by the Government of Austria
during the examination of the Deixler case
by the Committee of Ministers
Following the facts at the origin of Deixler case, Section 34, paragraph 1(a) of the Barristers Act (Federal Law Gazette No. 474/1990) was amended to the effect that it now contains an explicit provision that final dismissal of a bankruptcy petition for lack of cost-covering assets is a further legal ground for the expiry of the right to exercise the profession of a barrister. The previous text did not cover such a situation and "disputes" could arise. Today, striking somebody's name off the roll of barristers is a mere consequence of a judicial decision concerning the opening of bankruptcy proceedings and no "disputes" can arise any more at this stage.
In addition, the report of the European Commission of Human Rights, as well as the Committee of Ministers' decisions adopted in the present case, have been transmitted to the authorities directly concerned in order to point out their obligations under the Convention.
With reference to the sum of 172 000 Austrian schillings awarded as just satisfaction (162 000 Austrian schillings for non-pecuniary damage and 10 000 Austrian schillings for costs and expenses), the accounts department of the Vienna Regional Court (Oberlandesgericht Wien) notified the applicant, on 14 August 1998, that it had set off the amount of just satisfaction against the State's tax claims. The setting off has been carried out in conformity with Austrian Law (Section 71, paragraph 5 of the Federal budget Law; section 50 of the Federal budget ordinance; Section 1438 of the civil code). In the circumstances of the case, there is no link between the State's claims and the violations found.
The Government of Austria is of the opinion that the measures adopted prevent violations similar to those found in this case and that, therefore, Austria has complied with its obligations under Article 32 of the Convention.
Full & Egal Universal Law Academy