FOURTH SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 63916/00
by Hans-Olof KROKSTÄDE
against Sweden
The European Court of Human Rights (Fourth Section), sitting on 28 September 2004 as a Chamber composed of:
SirNicolas Bratza, President,
MrsV. Strážnická,
MrS. Pavlovschi,
MrL. Garlicki,
MrsE. Fura-Sandström,
MsL. Mijović,
MrD. Spielmann, judges,
and Mr M. O'Boyle, Section Registrar,
Having regard to the above application lodged on 19 June 2000,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Hans-Olof Krokstäde, is a Swedish national born in 1943 and living in Bunkeflostrand.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant had been a member of the Swedish Bar Association (Sveriges advokatsamfund, hereinafter “the Bar”) since 1975.
On 20 November 1997 the Disciplinary Board of the Bar (Sveriges advokatsamfunds disciplinnämnd), having previously received a number of complaints against the applicant, held a hearing at which the applicant was present.
On 25 November 1997 the applicant submitted to the Disciplinary Board that he had had a migraine attack during the hearing and had therefore not been able to answer the questions or argue in a satisfactory manner. He stated his views on a number of issues and also enquired whether he could submit further explanations with regard to those issues. This was however refused by the Board.
On 4 December 1997 the Disciplinary Board found that some of the applicant's actions amounted to misconduct and that others involved serious neglect of his duties as a lawyer (advokat). It decided to exclude him from the Bar with immediate effect.
The applicant appealed to the Supreme Court (Högsta domstolen) which held an oral hearing during which the applicant was heard anew. A chartered accountant was heard as a witness at the applicant's request. The applicant also invoked new written evidence, inter alia doctors' certificates stating that his working ability during the period in question had been poor due to migraine and apnoea.
On 22 December 1999 the Supreme Court rejected the applicant's appeal. It concluded that there was not much guidance as to the meaning of “misconduct” for the purposes of the provision in the Code of Procedure (Rättegångsbalken, 1942:740) entailing exclusion from the Bar. The preparatory works stated that the wording primarily aimed at actions pertaining to the relationship between the lawyer and his or her client but that the Bar could also focus on misconduct taking place outside the work as a lawyer. Furthermore, the action did not have to be punishable under criminal law in order to qualify as misconduct.
The Disciplinary Board had found that the applicant had neglected the creditors of his limited company. In this respect the Supreme Court concluded that it was clear that the applicant, without having informed himself of the company's financial situation, had sold the company's assets below cost to himself assuming only part of the company's debts. He had thereafter disposed of the company shares without considering the interests of the creditors. The Supreme Court also concluded that these actions entailed misconduct.
The Supreme Court further recalled that a lawyer must not promote wrong and that according to its case-law, a lawyer having participated in the creation of false documents or consciously having drafted false documents had acted in a way amounting to misconduct. It found to be established that the applicant in the fall of 1996 had issued a receipt dated 23 May 1996, in which he had stated that his law firm had received 100,000 Swedish kronor in cash as payment from a client. On 23 May 1996 the same amount had been deposited in the account of another limited company. The payment did not concern a consultation and the applicant had furthermore antedated the receipt. The Supreme Court concluded that a receipt regarding payment from a client was an important document in a lawyer's business, and consciously stating incorrect information could be considered as misconduct. Not being able to exclude that the applicant had been misled to sign the receipt, it however concluded that he had merely neglected his duties as a lawyer.
The Supreme Court finally determined that the organisation of the applicant's office and business, inter alia an incorrect book-keeping, amounted to neglect of his duties as a lawyer.
The Supreme Court concluded that the applicant's actions constituted misconduct and neglect of his duties as a lawyer. Even considering his state of health there were no mitigating circumstances as to his misconduct. The court found that he should therefore be disbarred.
B. Relevant domestic law and practice
The duties of the Bar are set out in the Code of Procedure and its Regulations are issued by the Government. The Bar is a private association with the duty to maintain ethical and professional standards within the legal profession. Only a member of the Bar can use the title advokat (as opposed to jurist). The Bar has also been entrusted with some public duties, such as its disciplinary powers.
Under chapter 8 section 6 of the Code of Procedure, the activities of the members of the Bar are supervised by the Board and the Disciplinary Board of the Bar.
Under chapter 8 section 7 of the Code of Procedure, a lawyer who in his or her work consciously does a wrong or otherwise acts in a manner amounting to misconduct, shall be excluded from the Bar. If there are mitigating circumstances the lawyer might receive a warning. A lawyer who otherwise neglects his or her duties may receive a warning or an admonition. If there are especially aggravating circumstances the lawyer may be excluded from the Bar.
Under chapter 8 section 8 of the Code of Procedure, anyone having been denied entry to the Bar or having been excluded from the Bar may appeal against the decision to the Supreme Court.
Under Swedish law there is no requirement that a lawyer has to be a member of the Bar in order to practise law. Only when the state appoints a defence counsel in criminal cases should that person according to the Code of Procedure be an advokat, but even in this case there are certain exceptions.
Under section 3 of the Regulations of the Bar, in order to be accepted as a member, the person in question must inter alia have worked in the legal field for at least five years out of which three years must have been spent working for another lawyer in a law firm (advokatbyrå) or in one's own law firm. Furthermore, the person must be working in either of the two in order to be granted membership. Lawyers working in companies, consultancy agencies, organisations or authorities can therefore not use the title advokat.
COMPLAINTS
1. The applicant complained under Article 6 § 1 of the Convention that the proceedings before the Disciplinary Board and the Supreme Court did not comply with the requirements of a fair trial. The Disciplinary Board proceeded with the hearing although the applicant suffered from an acute migraine attack. After the hearing but before the Board made its decision he submitted a request to further elaborate on his statements during the hearing, which was refused. Had he been able to argue properly, the Board would most likely have reached a different conclusion.
The applicant further complained that the ground for his exclusion from the Bar, i.e. having acted in a way amounting to misconduct, violated Article 6 § 2 of the Convention since this was tantamount to misconduct in the criminal sense and he was never charged with any criminal offence.
2. The applicant finally complained under Article 13 of the Convention that, in its previous case-law, the Supreme Court had stated that it would normally defer to the assessment of the Board when it came to a person's suitability to engage in the lawyer occupation. Thus, there was no effective remedy for a person having been found to be unsuitable to practise as a lawyer.
THE LAW
1. Article 6 §§ 1 and 2 of the Convention
The applicant complained that he was not given a fair trial during the proceedings before the Disciplinary Board and the Supreme Court. Moreover, he was excluded from the Bar based on the finding that he had acted in a manner amounting to misconduct although he was never charged with any criminal offence. The applicant relies on Article 6 §§ 1 and 2 of the Convention with respect to the above complaints.
The Court notes that he also stated that the Supreme Court would normally defer to the assessment of the Board. It finds that this complaint primarily falls to be examined under Article 6 § 1, as an issue of access to court.
The relevant parts of Article 6 provide:
“1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal...
2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”
As regards the applicability of Article 6 to the disciplinary proceedings in question, the Court recalls its case-law to the effect that disciplinary proceedings in which the right to continue to exercise a profession is at stake give rise to “contestations” (disputes) over civil rights and obligations (see among others Albert and Le Compte v. Belgium, judgment of 10 February 1983, Series A no. 58 §§ 25–29).
In the present case, the applicant was prevented from continuing to exercise his profession as a member of the Bar and the concrete outcome of the proceedings was hence directly decisive for his right to continue to exercise his profession having the title advokat. The Court therefore considers that Article 6 is applicable under its civil head.
As the applicant has made a complaint also under Article 6 § 2 of the Convention, the question arises whether Article 6 is applicable also under its criminal head. The Court finds however, that it is not necessary to determine this question as in any event the applicant's complaints under Article 6 are manifestly ill-founded for the following reasons.
As to the proceedings before the Disciplinary Board, the Court concludes that the Disciplinary Board is a professional body and not a tribunal for the purposes of Article 6. The applicant was however entitled to challenge the decision of the Board before the Supreme Court, a tribunal within the meaning of Article 6.
Turning to the procedure before the Supreme Court, the Court observes that an oral hearing was held during which both oral and written evidence was submitted. Both the applicant and a witness invoked by him were heard. The Supreme Court, which had full jurisdiction, examined the entirety of the case and gave adequate reasons for its decision. Furthermore, the Supreme Court did not simply defer to the conclusions of the Disciplinary Board but made its own assessment of the facts and drew its own conclusion as to the consequences which the applicant's conduct should entail. There is no indication that the Supreme Court had preconceived ideas about the applicant's conduct or that in any other way he was not presumed innocent by the court.
In view of the above, the Court finds that an examination of the applicant's submissions does not disclose any appearance of a violation of the Convention.
It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected pursuant to Article 35 § 4 of the Convention.
2. Article 13 of the Convention
The applicant complained that the Supreme Court normally defers to the assessment of the Board and that he therefore did not have an effective remedy. Article 13 provides:
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
The Court reiterates its above conclusion that there is no appearance of a violation under Article 6. It further finds that the requirements of Article 13 are less strict than, and are here absorbed by, those of Article 6. No separate issue therefore arises under Article 13 of the Convention.
It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected pursuant to Article 35 § 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Michael O'BoyleNicolas Bratza
RegistrarPresident
Full & Egal Universal Law Academy