AS TO THE ADMISSIBILITY OF
Application No. 24397/94
by Wilfried Ludwig WEH
against Austria
The European Commission of Human Rights (First Chamber) sitting
in private on 16 January 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. CONFORTI
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 6 June 1994 by
Wilfried Ludwig WEH against Austria and registered on 15 June 1994
under file No. 24397/94;
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 they have been submitted by the
applicant may be summarised as follows.
The applicant, born in 1952, is an Austrian national. He is a
lawyer practising in Bregenz/Vorarlberg.
A. Particular circumstances of the case
On 5 July 1991 the applicant requested the Vorarlberg Bar
Association (Rechtsanwaltskammer) to issue a formal decision on his
membership contributions in 1991, indicating that he intended to lodge
an appeal with regard to the question of his obligatory membership.
On 8 October 1991 the Bar Association sent him a reminder
(Rückstandsausweis) according to which both his annual membership fee
of AS 8,000 and his contribution to the Practising Lawyers Pension Fund
of AS 20,000, as fixed by the general assembly of the Bar, were
outstanding. He paid on 10 October 1991.
On 29 July 1992 the applicant requested the Supreme Appeal and
Disciplinary Commission for Lawyers (Oberste Berufungs- und
Disziplinarkommission) to decide on his request of 5 July 1991. He
argued that, in the absence of a formal decision by the Bar
Association, the Commission as superior authority had acquired
competence.
On 16 November 1992 the Commission for Lawyers dismissed his
request on the ground that the Code of General Administrative Procedure
(Allgemeines Verwaltungsverfahrensgesetz), providing for a transfer of
competence in case of belated decisions, did not apply to proceedings
before the Bar.
On 28 September 1993 the Constitutional Court (Verfassungs-
gerichtshof) dismissed the applicant's complaint. It found that the
decision of 16 November 1992 did not violate his right of access to
court, as the Commission for Lawyers had correctly denied its
competence, the provisions of the Code of General Administrative
Procedure being inapplicable to proceedings before public law
professional institutions such as the Bar Association. Moreover, the
contributions could be challenged in the enforcement proceedings.
B. Relevant domestic law
The Practising Lawyers Act (Rechtsanwaltsordnung, Imp. Law
Gazette No. 96/1868 as amended) regulates in particular the conditions
for practising as a lawyer, the rights and duties of practising
lawyers, the Bar Association (Rechtsanwaltskammer) and its Committee
(Ausschuß), the suspension of the right to practise as a lawyer, the
Federation of the Austrian Bar Association (Österreichischer
Rechtsanwaltskammertag), the appointment of official defence counsel,
the lump sum payment by the Austrian Government for services in legal
aid cases and the Practising Lawyers Pension Fund.
SS. 1 and 5 of the Practising Lawyers Act provides that in order
to practise as a lawyer in Austria, a lawyer must be entered on the
register of the Committee of the Bar Association competent for the area
in which the lawyer concerned intends to practise.
According to S. 22 of the Practising Lawyers Act, the Bar
Associations are composed of all practising lawyers entered on the
register who have their law offices in the area of the Bar Association
concerned. The Bar Associations are public law institutions
(Körperschaften des öffentlichen Rechtes). The Bar Associations fulfil
their functions on the occasions of general assemblies
(Plenarversammlungen) or by their Committee.
The Plenary Assembly is competent to fix the annual contributions
of the members of the Bar Association for administrative and
humanitarian purposes (S. 27 of the Practising Lawyers Act), as well
as the contributions to, and pension rights under, the Lawyers Pension
Fund (Versorgungseinrichtung) which have to be established by each Bar
Association (SS. 49-54 of the Practising Lawyers Act).
S. 33 of the Practising Lawyers Act provides that the lawyers
profession (Rechtsanwaltsstand) is independent of the judiciary and
that disciplinary powers in respect of lawyers are to be exercised by
organs of the profession in proceedings laid down by the Austrian
legislature in the Disciplinary Code for Lawyers (Disziplinarstatut).
According to Article II para. 2 of the Introductory Law of the
Administrative Procedure Laws (Einführungsgesetz zu den
Verwaltungsverfahrensgesetzen) the Code of General Administrative
Procedure does not apply, inter alia, to proceedings before public law
professional institutions.
S. 1 of the Enforcement Regulations (Exekutionsordnung) lists
among the titles for execution (Exekutionstitel) for the purposes of
the Enforcement Regulations reminders on outstanding taxes or fees
(Rückstandsausweise), including reminders issued inter alia by Bar
Associations.
COMPLAINTS
The applicant complains that he had no possibility to obtain -
within a reasonable time - a decision of the Constitutional Court on
the issues of his obligatory membership in the Bar, the obligatory
contributions and their amount as well as the pension rights. He
invokes Articles 6 and 13 of the Convention.
THE LAW
The applicant complains under Articles 6 and 13 (Art. 6, 13) of
the Convention about the absence of a court review regarding the issues
of his obligatory membership in the Bar, the obligatory contributions
and their amount as well as the pension rights.
Article 6 (Art. 6), as far as relevant, provides as follows:
"1. In the determination of his civil rights and obligations
..., everyone is entitled to a fair and public hearing within a
reasonable time by an independent and impartial tribunal
established by law."
a. The Commission recalls that Article 6 para. 1 (Art. 6-1)
guarantees to everyone the right to submit any dispute relating to his
"civil rights and obligations" to a tribunal meeting the requirements
of Article 6 para. 1 (Art. 6-1) (Eur. Court H.R., Golder judgment of
21 January 1975, Series A no. 18, p. 18, para. 36; Le Compte, Van
Leuven and De Meyere judgment of 23 June 1981, p. 22, para. 50; Fayed
judgment of 21 September 1994, Series A no. 294-B, pp. 49-50, para.
65).
b. In the present case, the applicant mainly argues that he had no
access to the Austrian Constitutional Court with a view to a general
constitutional review of the system of obligatory membership in the Bar
and the related matters.
The Commission recalls that the task of the Convention organs is
not to review the relevant legislation in the abstract, but to
determine whether the manner in which they were applied to or affected
the applicant gave rise to a violation of Article 6 para. 1 (Art. 6-1)
(cf. Eur. Court H.R., Padovani judgment of 26 February 1993, Series A
no. 257-B, p. 20, para. 24).
The Commission considers that the general constitutional review
proceedings before the Constitutional Court, as envisaged by the
applicant, go beyond the determination of a dispute regarding the
applicant's "rights and obligations" under the Austrian legislation.
This part of the application is therefore incompatible with the
provisions of the Convention within the meaning of Article 27 para. 2
(Art. 27-2).
c. As regards the applicant's contributions to the Vorarlberg Bar
in 1991, the Commission, assuming that these contributions constituted
a "civil obligation" within the meaning of Article 6 para. 1
(Art. 6-1), finds that no dispute arose between the applicant and the
Vorarlberg Bar regarding the payment of the amounts in question. In
this respect, the Commission notes that the applicant paid the
outstanding contributions following an informal reminder by the Bar.
In any event, the complaint about a lack of access to a tribunal
regarding the payment of the contributions to the Bar in 1991 was not
lodged with the Commission within a period of six months, as required
under Article 26 (Art. 26). The Commission considers that the period
of six months started to run in October 1991, when the applicant was
informed about, and paid, the outstanding amounts. The application was
however only introduced on 6 June 1994.
The proceedings subsequently instituted by the applicant before
the Commission for Lawyers and the Constitutional Court did not affect
the running of this period, as they cannot be regarded as effective
remedies for the purposes of Article 26 (Art. 26). The applicant,
pursuing his request for a formal decision on his obligation to pay
contributions in 1991, claimed that the Commission for Lawyers had
acquired competence in the matter. However, this remedy eventually
failed on the ground that the Code of Administrative Procedure was not
applicable to matters before the Bar. The applicant, a practising
lawyer, was in a position to comprehend that this course of action,
under the prevailing legislation, had no prospect of success. He was,
therefore, not absolved from complying with the period of six months.
It follows that this aspect of the application is also
inadmissible under Article 27 (Art. 27) of the Convention.
d. Moreover, the Commission notes that the proceedings before the
Commission for Lawyers and the Constitutional Court related to the
applicant's request of 5 July 1991 for a formal decision on his
contributions to the Vorarlberg Bar, which he paid following an
informal reminder in October 1991. In 1992 the applicant pursued his
request for a formal decision, claiming that the Commission for Lawyers
had acquired competence in the matter. The Commission observes that
the Lawyers Regulations do not provide for a formal decision on the
individual contributions to be paid by its members. Moreover, the
Commission, referring to its above findings that these proceedings were
limited to a procedural question, considers that they did not as such
involve a determination of the applicant's "civil rights and
obligations" within the meaning of Article 6 para. 1 (Art. 6-1).
The applicant's complaints under Article 6 para. 1
(Art. 6-1) regarding these proceedings are, therefore, incompatible
ratione materiae with the provisions of the Convention within the
meaning of Article 27 para. 2 (Art. 27-2).
e. Finally, the Commission considers that the applicant's
submissions do not raise any separate issue under Article 13
(Art. 13) of the Convention. Consequently, this aspect of the
application is likewise inadmissible under Article 27 (Art. 27) 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) (C.L. ROZAKIS)
Full & Egal Universal Law Academy