AS TO THE ADMISSIBILITY OF
Application No. 17917/91
by J.P.C.
against Austria
The European Commission of Human Rights (Second Chamber) sitting
in private on 2 December 1992, the following members being present:
MM. S. TRECHSEL, President of the Second Chamber
G. JÖRUNDSSON
A. WEITZEL
J.-C. SOYER
H. G. SCHERMERS
H. DANELIUS
Mrs. G. H. THUNE
MM. F. MARTINEZ
L. LOUCAIDES
J.-C. GEUS
Mr. K. ROGGE, Secretary to the Second 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 17 January 1991
by J.P.C. against Austria and registered on 14 March 1991 under file
No. 17917/91;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant, born in 1928, is an Austrian national resident in
Innsbruck. He is a lawyer by profession.
Particular circumstances of the case
On 13 June 1986 the Disciplinary Council (Disziplinarrat) of the
Tyrol Lawyers' Association (Rechtsanwaltskammer) imposed a fine of
AS 8,000 upon the applicant for having impaired the honour and
reputation of the lawyers' profession (Beeinträchtigung von Ehre und
Ansehen des Standes). The Disciplinary Council found that the applicant
had failed to comply with a client's request to provide her with
detailed information about his bill amounting to almost AS 160,000, and
about payments of the opposing party. Furthermore, in a letter, he had
urged her not to insist on her request for information. The Council
considered that a lawyer had to be particularly correct with regard to
his fee claims. A lawyer had to give detailed information as to his
claims and thus avoid any impression of lacking transparency. The
applicant was acquitted of the reproach of having charged the client
concerned excessive fees.
On 19 December 1986 the Disciplinary Council of the Tyrol Bar
Association imposed a fine of AS 5,000 upon the applicant for having
breached his professional obligations and having impaired the honour
and reputation of the lawyers' profession. The Council found that he
had requested persons who intended to conduct negotiations with his
clients in his office to sign a declaration that they had to reimburse
any legal expenses incurred by the applicant in case of failure of the
negotiations. The applicant had failed to clarify his intention that
reimbursement of such expenses would only be requested in case of
negligence on the part of the third persons concerned. The Council
considered that the applicant had thereby contravened his professional
duty duly to inform and advise third persons entering into contractual
negotiations with his clients on the premises of his office.
The applicant lodged appeals against both decisions. As regards
the decision of 13 June 1986 he submitted inter alia that he had not
been promptly informed about the reproach of having breached his duty
of proper accounting, and thus had not been able properly to defend
himself.
On 6 July 1987 the High Appeals and Disciplinary Board (Oberste
Berufungs- und Disziplinarkommission) dismissed the applicant's
appeals. The Board, referring to its constant case-law, considered
that, in matters concerning fees and expenses, a lawyer ought to be
scrupulously correct. The Board also found that the examination of
disciplinary reproaches could be extended at the hearing before the
Disciplinary Council; moreover, the applicant had not objected thereto
at the hearing and had presented extensive arguments on this point.
On 30 June 1988 the Austrian Constitutional Court (Verfassungs-
gerichtshof), upon the applicant's complaint, quashed the decisions
against the applicant. The Constitutional Court found that the
disciplinary sanctions had been based on S. 2 of the Disciplinary Code
(Disziplinarstatut) which referred to professional duties as a general
notion (unbestimmter Rechtsbegriff) the contents of which was
sufficiently defined in the context of the general opinion and the
constant practice of the profession concerned. Disciplinary sanctions
imposed under this provision were in conformity with Article 7 of the
Convention, if they concerned a breach of professional duties or an
impairment of the honour or reputation of the profession which resulted
with sufficient clarity from legal provisions or the previous case-law
on disciplinary matters. The disciplinary decisions against the
applicant had not sufficiently qualified the professional obligations
breached by the applicant.
On 17 April 1989 the High Appeals and Disciplinary Board, with
regard to the applicant's appeal against the decision of 13 June 1986,
acquitted him to the extent that he had been reproached with having
urged a client not to insist on a detailed bill, and reduced the fine
in this respect to AS 5,000. The remainder of the appeals was
dismissed. The Board, referring in particular to S. 2 of the
Disciplinary Code and its constant case-law as well as S. 9 of the
Lawyers' Code (Rechtsanwaltsordnung), considered that a lawyer had the
duty to draft legal documents, especially standard forms, with
sufficient clarity and precisely so that third persons not assisted by
counsel would not be in doubt about their contractual obligations and
thus placed at a disadvantage. Moreover, in accordance with S. 2 of the
Disciplinary Act and the Board's constant case-law as well as the
general duty to account under S. 1012 of the Civil Code (Allgemeines
Bürgerliches Gesetzbuch), a lawyer was obliged to be particularly
accurate in matters concerning his claims for fees.
On 26 November 1990 the Constitutional Court dismissed the
applicant's further complaint. The Constitutional Court considered in
particular that the High Appeals and Disciplinary Board, in its
decision of 17 April 1989, had defined the professional obligations in
question with sufficient precision. The decision was served upon the
applicant on 15 January 1991.
Domestic law
The Austrian Lawyers' Code (Rechtsanwaltsordnung) regulates the
professional duties of lawyers in SS. 9 et seq., inter alia his duty
to practise with care, faithfully and conscientiously, to keep
professional secrecy, to show honesty and integrity and thus secure the
honour and dignity of his profession. S. 33 provides that the lawyers'
profession (Rechtsanwaltsstand) is independent of the judiciary, and
that disciplinary powers in respect of lawyers and trainee lawyers are
to be exercised by organs of the profession. The proceedings are laid
down by the legislature in the Disciplinary Code for Lawyers and
Trainee Lawyers (Disziplinarstatut).
S. 1 of this Disciplinary Code provides that a lawyer who
negligently or intentionally breaches his professional duties or,
whether in pursuit of his profession or otherwise, behaves in such a
manner as to impair the honour or reputation of the profession of
lawyers, commits a disciplinary offence (Disziplinarvergehen), which
is dealt with by the Disciplinary Council (Disziplinarrat). Under S. 16
of this Code, disciplinary penalties (Disziplinarstrafen) are the
written admonition, a fine not exceeding AS 500,000, the suspension of
the right to practise for a period not exceeding one year, or the
exclusion from the Bar.
COMPLAINTS
1. The applicant complains under Article 7 of the Convention that
the disciplinary sanctions imposed on him were not based upon a clear
legal provision.
2. The applicant complains under Article 6 para. 3 of the Convention
that he was not promptly informed about one of the charges against him,
and thus could not properly prepare his defence.
THE LAW
1. The applicant complains that the disciplinary decisions against
him under S. 2 of the Disciplinary Code were not based upon a clear
legal provision within the meaning of Article 7 (Art. 7) of the
Convention.
Article 7 para. 1 (Art. 7-1), first sentence, reads as follows:
"No one shall be held guilty of any criminal offence on account
of any act or omission which did not constitute a criminal
offence under national or international law at the time when it
was committed."
The Commission, assuming that the disciplinary sanctions
complained of fall into the criminal sphere, observes that Article 7
para. 1 (Art. 7-1) confirms the general principle that legal provisions
interfering with individual rights must be adequately accessible, and
formulated with sufficient precision to enable the citizen to regulate
his conduct. However, many laws are inevitably couched in terms which,
to a greater or lesser extent, are vague and whose interpretation and
application are questions of practice (cf. Eur. Court H.R., Sunday
Times judgment of 26 April 1979, Series A No. 30, p. 31, para. 49;
No. 8710/79, Dec. 7.5.82, D.R. 28 p. 77).
The Commission notes that the decisions of the Disciplinary Board
of the Tyrol Lawyers' Association of 13 June and 19 December 1986, as
confirmed by the High Appeals and Disciplinary Council on 17 April
1989, were based on S. 2 of the Disciplinary Code for Lawyers which
defines as a disciplinary offence the breach of professional duties or
impairment of the honour or reputation of the profession. The applicant
was found guilty of having breached his professional duties of proper
accounting and of precise drafting of legal documents in the interest
of persons entering into contractual obligations at his law office. The
High Appeals and Disciplinary Council, in its decision of 17 April
1989, set out in detail the applicant's professional misconduct within
the meaning of this provision, as applied in its constant case-law, and
the general duties of lawyers as laid down in the Lawyers' Code. The
Constitutional Court found that disciplinary sanctions imposed under
S. 2 of the Disciplinary Code were in conformity with Article 7
(Art. 7) of the Convention, if they concerned a breach of professional
duties or an impairment of the honour or reputation of the profession
which resulted with sufficient clarity from legal provisions or the
previous case-law on disciplinary matters. The decision of 17 April
1989 clearly established the professional rules and standards applied
in the applicant's case.
The Commission considers that the elements of the disciplinary
offence under S. 2 of the Disciplinary Code for Lawyers were
established in the relevant provisions of the Lawyers' Code and in
particular in the case-law of the disciplinary bodies concerned. In the
present case, the High Appeals and Disciplinary Council has not
exceeded the limits of a reasonable interpretation of S. 2 of the
Disciplinary Code.
Consequently, the Commission finds no appearance of a violation
of Article 7 para. 1 (Art. 7-1) of the Convention.
It follows that this part of the application is manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
2. The applicant also complains under Article 6 para. 3 (b)
(Art. 6-3-b) of the Convention that in the course of the disciplinary
proceedings against him he was not promptly informed about one of the
charges against him, and thus could not properly prepare his defence.
The Commission, assuming the applicability of Article 6 (Art. 6),
notes that at the hearing before the Disciplinary Council on 13 June
1986, the proceedings against the applicant were extended to the
question of his failure to comply with his client's request for
accounting. This matter was one element of two further reproaches as
regards his fee claims against this client. The High Appeals and
Disciplinary Council, in its decision of 6 July 1987, noted that the
applicant had not objected to the extension of the proceedings and had
presented extensive arguments on this point.
In these circumstances, the Commission finds that the applicant,
a lawyer, failed to show that he could not duly prepare and present his
defence in the disciplinary proceedings against him, or that these
proceedings were otherwise not fair within the meaning of
Article 6 (Art. 6).
It follows that this part of the application is also manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Second Chamber President of the Second Chamber
(K. ROGGE) (S. TRECHSEL)
Full & Egal Universal Law Academy