AS TO THE ADMISSIBILITY OF
Application No. 20871/92
by Theodor STROHAL
against Austria
The European Commission of Human Rights (First Chamber),
sitting in private on 7 April 1994, the following members being
present:
MM. A. WEITZEL, President
C.L. ROZAKIS
F. ERMACORA
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
Mrs. J. LIDDY
MM. M.P. PELLONPÄÄ
B. MARXER
B. CONFORTI
N. BRATZA
I. BÉKÉS
E. KONSTANTINOV
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 31 July 1992
by Theodor STROHAL against Austria and registered on 30 October
1992 under file No. 20871/92;
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 facts of the case, as submitted by the applicant, may
be summarised as follows.
The applicant, an Austrian national born in 1949 and
residing in Vienna, is a lawyer (Rechtsanwalt) and real estate
administrator (Hausverwalter) by profession. The applicant,
inter alia, acted as agent for the administration of an apartment
building owned by Mr. K.
In 1992 a tenant of an apartment owned by Mr. K. introduced
a civil law action for recovery of a premium (Ablöse) against the
S. company, which had acted as real estate agent
(Realitätenvermittler) for Mr. K.
On 2 April 1992 the Vienna District Court (Bezirksgericht)
summoned the applicant as a witness in these proceedings. The
defendant had requested the applicant to be heard as a witness
to give evidence as to whether he had, in his capacity as real
estate administrator of Mr. K.'s apartment building, received
payment of 100,000 AS from the plaintiff.
In a hearing before the District Court on 27 August 1992 the
applicant refused to give evidence, relying on Section 321 para.
1 (4) of the Code of Civil Procedure according to which a witness
has the right to refuse to give evidence with regard to what has
been confided to him by a client in his capacity as a lawyer. He
considered the issue as to whether he had received payment from
the tenant or not as confidential information received in his
capacity as a lawyer. The District Court did not accept the
applicant's refusal.
On 19 December 1991, after he had again refused to give
evidence, the District Court pursuant to Section 325 of the Code
of Civil Procedure, imposed on him a fine of AS 10.000 as a
coercive measure (Beugestrafe). The District Court found that
the question as to whether the applicant had received a payment
in his capacity as real estate administrator could not be
considered as covered by the duty of professional secrecy as a
lawyer.
On 3 March 1992 the applicant's appeal was dismissed by the
Vienna Regional Court (Landesgericht). It found that the
applicant could only rely on his right not to give evidence as
regards confidential information confided to him by a client in
his capacity as lawyer. The question whether he, in his capacity
as real estate administrator, had actually received a payment
from a third person, the contract partner of Mr. K, could not be
considered as such information.
COMPLAINTS
The applicant complains under Article 6 of the Convention
about the imposition of the coercive measure for having refused
to give evidence. Such a measure was contrary to the principle
of a fair trial because it would compel him to give evidence on
confidential information received from a client.
THE LAW
1. The applicant complains under Article 6 (Art. 6) of the
Convention about the unfairness of the main civil law suit
against the S. company, as a result of the courts not accepting
his refusal to give evidence.
The Commission observes that these proceedings concerned a
dispute between a tenant of Mr. K. and the S. company to which
the applicant was not a party. Consequently, the applicant
cannot, in this respect, claim to be a victim of an alleged
violation of Article 6
(Art. 6) of the Convection within the meaning of Article 25 para.
1
(Art. 25-1) of the Convention.
It follows that, in this respect, the application is
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
2. The applicant's complaint concerning the District Court's
decision of 19 December 1991 could also be understood as a
complaint under Article 10 (Art. 10) of he Convention. In this
respect, the Commission recalls that the right to freedom of
expression by implication also guarantees a "negative right" not
to be compelled to express oneself, i.e. to remain silent (see
K. v. Austria, Comm. Report 13.10.92, para. 45, loc. cit.).
The Commission, having regard to Section 325 of the Code of
Civil Procedure, notes that the coercive fine imposed on the
applicant was in accordance with Austrian law. Moreover, the
coercive measure imposed on the applicant served a legitimate aim
under paragraph 2 of Article 10 (Art. 10-2), namely the
protection of the right of the defendant in the civil law
proceedings. Furthermore the coercive measure imposed on the
applicant cannot be regarded as disproportionate to the aim
pursued.
It follows that the interference with the applicant's
rights under Article 10 para. 1 (Art. 10-1) is justified under
paragraph 2 of this provision and that the application in this
respect is 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 First Chamber President of the First
Chamber
(M.F. BUQUICCHIO) (A. WEITZEL)
Full & Egal Universal Law Academy