THIRD SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 37075/97
by Heinz LUKSCH
against Austria
The European Court of Human Rights (Third Section), sitting on 21 November 2000 as a Chamber composed of
MrJ.-P. Costa, President,
MrW. Fuhrmann,
MrL. Loucaides,
MrsF. Tulkens,
SirNicolas Bratza,
MrK. Traja,
MrM. Ugrekhelidze, judges,
andMrsS. Dollé, Section Registrar,
Having regard to the above application introduced with the European Commission of Human Rights on 28 May 1997 and registered on 28 July 1997,
Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
The applicant is an Austrian national, born in 1938 and residing in Vienna. He is an accountant (Wirtschaftstreuhänder). In the proceedings before the Court he is represented by Mrs. Sieglinde Schubert, a lawyer practising in Vienna (Austria).
The facts as submitted by the parties may be summarised as follows.
On 2 April 1986 the Chamber of Accountants (Kammer der Wirtschaftstreuhänder) instituted disciplinary proceedings against the applicant.
On 14 April 1986 the applicant was convicted of aggravated fraud (schwerer Betrug) by the Vienna Regional Criminal Court (Landesgericht für Strafsachen), which conviction was confirmed by the Supreme Court (Oberster Gerichtshof) on 3 October 1988.
On 8 May 1992 the Disciplinary Court (Ehrengericht) of the Chamber of Accountants, having regard to the applicant’s conviction, found that he had infringed the profession’s reputation (Verletzung des Standesansehens), within the meaning of section 47 § 1 of the Accountants Act (Wirtschaftstreuhänder-Berufsordnung). Having regard to section 48 of the said Act (which provides as penalties a reprimand, a severe reprimand, a fine of up to Austrian Schillings (ATS) 10,000, a suspension of up to one year and the withdrawal of the right to exercise the profession), the Disciplinary Court ordered the applicant’s suspension for up to one year.
On 19 October 1992 the applicant appealed this decision. On 7 May 1993 the Appeals Board (Berufungssenat) dismissed the appeal stating that the suspension should last for one year. This decision was served on 30 January 1995.
On 15 March 1995 the Constitutional Court (Verfassungsgerichtshof) refused to deal with the applicant’s complaint and transferred the case to the Administrative Court (Verwaltungsgerichtshof).
On 30 March 1995 the Chamber of Accountants declared the suspension to be effective from 31 January 1995 to 30 January 1996.
On 17 May 1995 the Administrative Court granted the applicant’s complaint suspensive effect. On 28 February 1997 it dismissed the complaint and noted inter alia that the fact that the Appeals Board had altered the suspension-period from “up to one year” to “one year” was an acceptable clarification of the decision taken at first instance, as the Appeals Board had had due regard to the intention of the Disciplinary Court. In any case, the Appeals Board was entitled to replace the Disciplinary Court’s findings with its own view on the operative part of the decision, as well as the reasoning. The decision was served on 22 March 1997.
COMPLAINTS
The applicant complains under Article 6 of the Convention about the length of the civil proceedings.
The applicant further complains under Article 6 that the relevant disciplinary law for accountants does not contain rules on limitation and that the Appeals Board altered the suspension-period from “up to one year” to “one year”, which allegedly violated the principle of “reformatio in peius”. He furthermore complains under Article 4 of Protocol No. 7 about an alleged violation of the principle of “ne bis in idem”.
THE LAW
1. The applicant’s first complaint relates to the length of the proceedings, which began on 2 April 1986 and ended on 22 March 1997 when the Administrative Court’s decision was served. They therefore lasted almost eleven years.
As to the applicability of Article 6 § 1 of the Convention, the Court recalls that disciplinary proceedings in which the right to continue to exercise a profession is at stake give rise to a dispute over civil rights (see Philis v. Greece (no.2) judgment of 27 June 1997, Reports of judgments and decisions 1997-IV, p. 1085, § 45 with further references, and W. R. v. Austria, no. 26602/95, 21.12.1999, §§ 25 - 31).
According to the applicant, the length of the proceedings is in breach of the “reasonable time” requirement laid down in Article 6 § 1 of the Convention. The Government concede the admissibility of the application.
The Court considers, in the light of the criteria established in its case-law 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 an examination of the merits of this complaint is required.
2. The applicant further complains under Article 6 that the relevant disciplinary law for accountants does not contain rules on limitation and that the Appeals Board altered the suspension-period from “up to one year” to “one year”, which allegedly violated the principle of “reformatio in peius”.
The Court, having particular regard to the findings of the Administrative Court on the suspension period, finds that these complaints do not disclose any appearance of a violation of Article 6. It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.
3. The applicant also complains of a violation of the principle of “ne bis in idem” under Article 4 of Protocol No. 7.
Applying the criteria established by the Court’s case-law (see the Ravnsborg v. Sweden judgment of 23 March 1994, Series A no. 238-B, §§ 47-63), the Court finds that section 47 of the Accountants Act does not fall within the sphere of criminal law; the offence at issue infringement of the profession’s reputation is disciplinary in nature, as are the penalties the applicant risked incurring under section 48 of that Act. Thus, the disciplinary proceedings did not involve the determination of a “criminal charge”. Consequently, the applicant was not tried or charged again in criminal proceedings for an offence on which he had already been convicted.
It follows that this part of the application must also be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court, unanimously,
DECLARES ADMISSIBLE, without prejudging the merits of the case, the applicant’s complaint relating to the length of the disciplinary proceedings against him;
DECLARES INADMISSIBLE the remainder of the application.
S. DolléJ.-P. Costa
RegistrarPresident
Full & Egal Universal Law Academy