AS TO THE ADMISSIBILITY OF
Application No. 17798/91
by Olga Renate DEIXLER
against Austria
The European Commission of Human Rights (First Chamber) sitting
in private on 28 February 1996, the following members being present:
Mr. C.L. ROZAKIS, President
Mrs. J. LIDDY
MM. E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
M.P. PELLONPÄÄ
B. MARXER
N. BRATZA
I. BÉKÉS
E. KONSTANTINOV
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
Mrs. M.F. BUQUICCHIO, Secretary to the Chamber
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 August 1990 by
Olga Renate DEIXLER against Austria and registered on 13 February 1991
under file No. 17798/91 ;
Having regard to:
- the reports provided for in Rule 47 of the Rules of Procedure of
the Commission;
- the Commission's decision of 31 August 1994 to declare the
application partly inadmissible and to communicate the remainder
of the application to the respondent Government for observations
on its admissibility and merits;
- the observations submitted by the respondent Government on 28
December 1994 and the observations in reply submitted by the
applicant on 13 February 1995;
Having deliberated;
Decides as follows:
THE FACTS
The applicant in an Austrian citizen, born in 1945 and residing
in Freistadt (Austria).
The facts of the case as submitted by the parties may be
summarised as follows.
A. The criminal proceedings instituted against the applicant
In 1975 inquiries were started against various persons, including
the applicant's former husband, on the suspicion of having committed
inter alia aggravated fraud and fraudulent conversion in relation to
real estate business. On 4 January 1978 preliminary investigations were
opened also against the applicant.
On 24 September 1980 and 10 October 1980 the Vienna Regional
Court (Landesgericht) issued two warrants of arrest against the
applicant and her former husband on charges of aggravated fraud,
fraudulent conversion, contravention of the Social Security Act and
forgery committed between 1971 and 1979.
On 17 September 1980 the applicant and her former husband were
arrested in Frascati (Italy).
On 20 November 1981 the applicant was extradited to Austria where
she was remanded in custody until 29 November 1983.
On 9 July 1982 the Vienna Public Prosecutor issued an indictment
against the applicant. This was served on her by the prison authorities
on 22 July 1982.
On 5 September 1985 the Vienna Regional Court informed the
applicant that part of the proceedings had been discontinued on
28 March 1985.
By a decision of 5 August 1986, the Vienna Regional Court
admitted a request of the Public Prosecutor of 11 April 1986 to extend
the indictment to another offence committed between 1975 and 1979 to
the detriment of two further persons and decided to deal with this
question in separate proceedings.
In these proceedings the Vienna Regional Court appointed an
expert on 16 October 1986. In July 1987 his expert was replaced by
another expert who after several extensions of time-limits submitted
his expert opinion on 22 June 1988.
On 30 August 1988 the main criminal proceedings were
discontinued.
By a judgment of 28 September 1989, the Vienna Regional Court
acquitted the applicant of the remainder of the charges brought against
her. In its judgment the Vienna regional Court referred to facts which
occurred between 1975 and 1979 and observed that the facts which were
subject of the remaining proceedings were, without any doubt, covered
by the extradition requests of the Austrian Government.
The Public Prosecutor lodged a plea of nullity against this
judgment which he later withdrew.
On 6 April 1990 the Vienna Regional Court informed the applicant
that the judgment of 28 September 1989 had become final on 20 March
1990. At the applicant's request this judgment was notified to her on
27 July 1990.
B. The applicant's disbarment
By a decision of the Bar Committee (Ausschuss der
Rechtsanwaltskammer) for Vienna, Lower Austria and Burgenland of 30
April 1985 the applicant was struck off the roll following a final
decision of 26 February 1985 by which the Vienna Commercial Court
(Handelsgericht) had dismissed a request to open bankruptcy proceedings
(Konkurs) against the applicant on the ground that her assets were
insufficient to cover the costs of such proceedings. The request to
open bankruptcy proceedings had been brought by a former employee of
the applicant's law firm. Her claim was finally settled by an
insolvency fund.
On 28 May 1985 the Bar Committee declared the applicant's appeal
(Vorstellung) against the decision to strike her off the roll
inadmissible.
The Bar Committee and the applicant referred the case for
decision to the Disciplinary Appeals Board for Practising Lawyers and
Prospective Practising Lawyers (Oberste Berufungs- und Disziplinar-
kommission für Rechtsanwälte und Rechtsanwaltsanwärter).
On 8 July 1985 the Disciplinary Appeals Board declared the appeal
inadmissible for lack of jurisdiction.
On 24 September 1990 the Constitutional Court (Verfassungs-
gerichtshof) dismissed a constitutional appeal lodged by the applicant
considering that the decision by which the applicant was struck off the
roll was not contrary to any of the rights guaranteed by the Federal
Constitution.
The Constitutional Court pointed out that, in accordance with
Section 34 para. 1 (a) of the Practising Lawyers Act
(Rechtsanwaltsordnung) the right to exercise the profession of a
practising lawyer should be revoked with the binding opening of
bankruptcy proceedings until their binding termination (Die
Berechtigung zur Ausübung der Rechtsanwaltschaft erlischt: ... durch
die rechtskräftige Eröffnung des Konkurses bis zu seiner
rechtskräftigen Aufhebung). The Constitutional Court recalled that a
request to open bankruptcy proceedings had been rejected for lack of
sufficient means to cover the costs of the bankruptcy proceedings.
Section 28 para. 1 of the Practising Lawyers Act enumerated the
functions exercised by the Bar Committee. Section 28 para. 2 of the
Practising Lawyers Act further provided that the Bar Committee
exercised also those functions which were not expressly referred by law
to any other body. The striking off the roll was not assigned to any
specified organ. In accordance with Section 28 para. 2 of the
Practising Lawyers Act, the Bar Committee was therefore entrusted with
this task. No appeal lay in this matter. Decisions could be appealed
against solely in cases expressly provided for by law.
The Constitutional Court concluded that the legal provisions had
been correctly applied when rejecting the applicant's appeal and that
her right of access to a court had thus not been violated. Referring
to its previous case-law, the Constitutional Court recalled that these
legal provisions were in accordance with the Constitution and that it
was therefore excluded that any other constitutional rights of the
applicant had been breached.
C. Relevant domestic law
Section 34 para. 1 (a) of the Practising Lawyers Act
(Rechtsanwaltsordnung) provided at the relevant time that the right to
exercise the profession of a practising lawyer should be revoked ...
with the binding opening of bankruptcy proceedings until their binding
termination; ... (Die Berechtigung zur Ausübung der Rechtsanwaltschaft
erlischt: ... durch die rechtskräftige Eröffnung des Konkurses bis zu
seiner rechtskräftigen Aufhebung; ...).
Section 34 para. 1 (a) of the Practising Lawyers Act (Imp. Law
Gazette No. 1990/474 as amended) now provides that the right to
exercise the profession of a practising lawyer shall be revoked ...
with the binding opening of bankruptcy proceedings until their binding
termination and the final dismissal of a request to open bankruptcy
proceedings for lack of sufficient means; ... (Die Berechtigung zur
Ausübung der Rechtsanwaltschaft erlischt: ... durch die rechtskräftige
Eröffnung des Konkurses bis zu seiner rechtskräftigen Aufhebung und die
rechtskräftige Abweisung eines Konkursantrags mangels kostendeckenden
Vermögens; ...).
COMPLAINTS
The applicant's remaining complaints under Article 6 para. 1 of
the Convention concern the length of the criminal proceedings
instituted against her and the decision of the Bar Committee of
30 April 1985 to strike her off the roll.
1. As to the length of the criminal proceedings, the applicant
submits that these proceedings have lasted for ten years. The facts
were clear and the relevant documents had been at the disposal of the
judicial authorities which, according to her, alone are responsible for
the length of the proceedings.
2. The applicant complains also that the decision to strike her off
the roll was not taken by a tribunal established by law with full
jurisdiction on questions of law and fact and had not been pronounced
publicly. Furthermore there lay no appeal against this decision.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 15 August 1990 and registered
on 13 February 1991.
On 31 August 1994 the Commission decided to communicate the
applicant's complaints relating to the length of the criminal
proceedings and to her disbarment and declared inadmissible the
remainder of the application.
The Government's written observations were submitted on
28 December 1994. The applicant replied on 13 February 1995.
On 4 July 1995 the Commission decided to grant the applicant
legal aid.
THE LAW
1. The applicant complains that the criminal proceedings instituted
against her on 4 January 1978 were not concluded within a reasonable
time as required by Article 6 para. 1 (Art. 6-1) of the Convention.
Article 6 para. 1 (Art. 6-1) of the Convention, as far as
relevant, reads as follows:
"In the determination ... of any criminal charge against
him, everyone is entitled to a ... hearing within a
reasonable time by (a) ... tribunal ..."
The Government submit that the proceedings instituted against the
applicant consist of three separate sets of criminal proceedings.
Solely with regard to the proceedings in which the applicant has been
acquitted, the application has been lodged within the six months' time
limit. These proceedings lasted from 5 August 1986, the date from which
the proceedings were dealt with separately, to 20 March 1990 when the
judgment of the Vienna Regional Court of 28 September 1989 became
final. The proceedings were extremely complex. Voluminous files had to
be examined and numerous witnesses to be heard, also abroad. It took
one year and nine months to prepare an expert opinion in the
proceedings which terminated with the applicant's acquittal. This delay
was due to the complexity of the case, but also to the lack of
cooperation of the applicant's former husband. The Austrian authorities
have done everything to streamline the proceedings and no considerable
delays were imputable to them, whereas important delays have to be
attributed to the applicant. The Government mention in this respect the
applicant's flight to Italy in 1980 and her extradition which did not
occur before November 1981. They also refer to the fact that the
applicant changed her defence counsel which delayed the trial for
almost four months. The Government conclude that the overall duration
of the proceedings lasting from 5 August 1986 to 20 March 1990 cannot
be considered as being unreasonable.
The applicant denies that she is responsible for the length of
the proceedings. Delays occurred in the proceedings had to be
attributed to the authorities. The expert opinions did not concern the
charges brought against her. As to the change in her defence counsel,
she submits that her former defence counsel had been arrested and that
therefore she was appointed another official defence counsel. She
finally submits that the facts of the proceedings, which were
terminated with her acquittal on 28 September 1989, concerned events
which had occurred between 1971 and 1979. The criminal proceedings have
therefore to be considered as a whole.
The Commission considers, in the light of the criteria
established by the case law of the Convention organs on the question
of "reasonable time" (the complexity of the case, the applicant's
conduct and that of the competent authorities), and having regard to
all the information in its possession, that a thorough examination of
this complaint is required, both as to the law and as to the facts.
2. The applicant complains also that the question of her being
struck off the roll was not determined by an impartial and independent
tribunal established by law as required by Article 6 para. 1 (Art. 6-1)
of the Convention.
Article 6 para. 1 (Art. 6-1) of the Convention, as far as
relevant, reads as follows:
"In the determination of his civil rights and obligations
..., everyone is entitled to a fair and public hearing ...
by an independent and impartial tribunal established by law
..."
The Government deny that Article 6 para. 1 (Art. 6-1) of the
Convention applies to the present case. They submit that according to
Section 1 of the Practising Lawyers Act (Rechtsanwaltsordnung) the
exercise of the profession of a lawyer requires "no appointment by a
public authority" (behördliche Ernennung). If the legal requirements
are met, the registration as a member of the bar is automatic. There
is a statutory duty of registration. Similarly, the right to practice
terminates where specified by law. There is no further measure required
to obtain this result. The disbarment is mandatory in character; the
Bar Committee must take such a decision if the requisite conditions are
met.
The Government further submit that Section 5 para. 2 of the
Practising Lawyers Act refers to the lawyer's trustworthiness
(Vertrauenswürdigkeit). If a lawyer fails to meet this requirement in
relation to financial matters, as in the present case, the right to
practice terminates automatically in accordance with the law, namely
by virtue of Section 34 of the Practising Lawyers Act.
The decision of the bar therefore was of a purely declarative
nature and did not determine the applicant's civil rights and
obligations. Those rights were determined by the proceedings related
to the applicant's insolvency which were conducted in accordance with
Article 6 (Art. 6) of the Convention.
This is contested by the applicant. She points out that Section
34 of the practising Lawyers Act applies when bankruptcy proceedings
have been opened against a lawyer. The ground invoked for her
disbarment, namely the lack of sufficient means to pay the costs of
bankruptcy proceedings, was not contained in Section 34 of the
Practising Lawyers Act. Nor did this provision refer to the question
of a lawyer's trustworthiness. A decision should therefore have been
given on the question of her disbarment in proceedings conducted in
accordance with Article 6 (Art. 6) of the Convention.
After an examination of these issue in the light of the parties'
submissions, the Commission considers that it raises questions of fact
and law which can only be determined by an examination of the merits.
It follows that this part of the application cannot, therefore, be
declared inadmissible as being manifestly ill-founded within the
meaning of Article 27 para. 2 (Art. 27-2) of the Convention. No other
grounds for inadmissibility have been established.
For these reasons, the Commission, unanimously,
DECLARES ADMISSIBLE the remainder of the application.
Secretary to the First Chamber President of the First Chamber
(M.F. BUQUICCHIO) (C.L. ROZAKIS)
Full & Egal Universal Law Academy