In the case of Müller-Hartburg v. Austria,
The European Court of Human Rights (First Section), sitting as
a Chamber composed of:
Isabelle Berro-Lefèvre, President,
Elisabeth Steiner,
Khanlar Hajiyev,
Mirjana Lazarova Trajkovska,
Julia Laffranque,
Linos-Alexandre Sicilianos,
Erik Møse, judges,
and Søren Nielsen, Section Registrar,
Having deliberated in private on 29 January 2013,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
47195/06) against the Republic of Austria lodged with the Court under Article
34 of the Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by an Austrian national, Mr Christoph
Müller-Hartburg (“the applicant”), on 28 October 2006.
The applicant was represented by Mr S. Petzer, a
lawyer practising in Vienna. The Austrian Government (“the Government”) were represented
by their Agent, Ambassador H. Tichy, Head of the International Law Department
at the Federal Ministry for European and International Affairs.
The applicant alleged in particular that the
disciplinary proceedings against him had lasted an unreasonably long time and
that he had been tried and punished twice for the same offence, first in
criminal proceedings and subsequently in disciplinary proceedings.
On 27 November 2008 the application was
communicated to the Government. It was also decided to rule on the
admissibility and merits of the application at the same time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was
born in 1956 and lives in Vienna.
A. The criminal proceedings against the applicant
The applicant started
practising as a lawyer in 1984. In 1995 he and an Austrian bank (hereinafter
“the bank”) entered into a trusteeship agreement in connection with real estate
transactions.
One of the applicant’s
tasks was to transfer 20,000,000 Austrian schillings (ATS, approximately 1,450,000
euros (EUR)), which he held as a trustee, to company X in exchange for a loan
guarantee.
In a report dated 10 May 1996 the bank complained to the Vienna Bar
Association (Rechtsanwaltskammer) that the applicant had transferred
ATS 20,000,000 to company X, but had not handed over the guarantee, as was
stipulated in the trusteeship agreement that he should do.
On 26 August 1996 the Vienna Regional Criminal
Court opened preliminary investigations against the applicant on suspicion of
embezzlement (Veruntreuung) as regards a breach of the trusteeship
agreement with the bank.
On 21 October 1998 the
applicant was formally charged with embezzlement for abusing his power under
another trusteeship agreement. He was accused of paying out ATS 6,000,000
(approximately EUR 436,000) to a creditor of his clients without being
instructed to do so, and of diverting ATS 8,500,000 (approximately EUR
618,000). These proceedings ended with the applicant’s acquittal on 12 January
2000.
During the trial and before the acquittal was pronounced,
the public prosecutor had stated that he intended to reserve the applicant’s
prosecution for breach of the trusteeship agreement with the bank regarding the
transfer of ATS 20,000,000 in exchange for a loan guarantee.
On 7 July 2000 the applicant was charged with
fraudulent conversion (Untreue) under Article 153 of the Criminal Code (Strafgesetzbuch)
in respect of the transfer of ATS 20,000,000. On 12 April 2002 the Vienna
Regional Criminal Court convicted the applicant of fraudulent conversion and sentenced
him to three years’ imprisonment. The Supreme Court quashed the conviction for
nullity on 16 October 2002.
On 5 February 2003 the Vienna
Regional Criminal Court convicted the applicant again of fraudulent conversion under
Article 153 of the Criminal Code and sentenced him to six years’ imprisonment. It
found that the applicant and the bank had concluded a trusteeship agreement on
31 August 1995 under which the bank was to provide a loan of ATS 20,000,000
to the applicant’s client, X, while the applicant was to provide the bank with
a loan guarantee in the same amount. The General Conditions for Real Estate Transactions
by Trustees applied to that agreement. The bank had transferred the money to
the applicant’s account on 5 September 1995. Only two days later the applicant had
transferred the entire amount to a savings account. In breach of the
trusteeship agreement including the above-mentioned General Conditions, the
applicant had transferred part of the sum to his client without obtaining a loan
guarantee, and had invested the remainder abroad in the hope of achieving
considerable profits. He had told the bank, which had set 31 December 1995
as the deadline for submitting the guarantee, that he would be able to obtain
it by 15 February 1996. Although the bank had repeatedly requested the
fulfilment of the trusteeship agreement or the reimbursement of the loan, and the
applicant knew by then that his investments had been unsuccessful and that he
no longer disposed of the entire amount, he continued to use the remaining
money, for instance to pay his own fees of ATS 840,000 (approximately EUR
61,000).
On 3 September 2003 the
Supreme Court dismissed the applicant’s plea of nullity and referred the case
to the Vienna Court of Appeal to decide on the appeal against sentence. On 18
February 2004 the Court of Appeal reduced the sentence to three years’
imprisonment.
The applicant served his prison sentence from
December 2004 to December 2005 and was released after receiving a pardon from
the President of Austria. Before the pardon, the applicant had lodged an
application with the European Court of Human Rights (application
no. 10185/04), complaining of unfairness of the criminal proceedings. The
applicant states that the presidential pardon had been subject to the condition
that he withdraw the application with the Court, which he did.
B. The disciplinary proceedings
On 24 May 1996 the Vienna Bar Association
received the bank’s complaint of 10 May that the applicant had breached the
trusteeship agreement (see paragraph 8 above). On 29 May 1996 the Disciplinary
Lawyer (Kammeranwalt) appointed an Investigating Commissioner. The
applicant made submissions on 5 June and 16 September 1996.
On 25 September 1996 the Disciplinary Council of
the Vienna Bar Association (“the Disciplinary Council”, Disziplinarrat der
Rechtsanwaltskammer), issued an interim measure prohibiting the applicant
from representing clients before the Vienna Regional Criminal Court, and before
the prosecution authorities working at the Vienna Regional Criminal Court, as criminal
proceedings against the applicant were pending before that court.
On 15 November 1996 the Disciplinary Council extended
the interim measure, imposing on the applicant a temporary ban on practising as
a lawyer.
On 20 December 1996 the applicant appealed to
the Appeals Board (Oberste Berufungs- und Disziplinarkommission für
Rechtsanwälte und Rechtsanwaltsanwärter), which dismissed the appeal on 14
April 1997.
As interim measures are only valid for a period
of six months, the measures were extended every six months. The reason given
was that criminal proceedings were pending against the applicant. No hearings
were held.
On 26 January 2000 the Disciplinary Council
lifted the temporary ban on practising as a lawyer, since the applicant had
informed it that he had been acquitted (see paragraph 10 above).
On 4 May 2000 the Disciplinary Council again
issued an interim decision imposing a temporary ban on practising as a lawyer.
It noted that criminal proceedings against the applicant were still pending at
the Vienna Regional Criminal Court concerning charges of fraudulent conversion
to the detriment of the bank. On 2 October 2000 the Appeals Board dismissed the
applicant’s appeal.
The final judgment of the Vienna Court of Appeal
of 18 February 2004 (see paragraph 14 above) reached the Disciplinary
Council on 24 May 2004. The Disciplinary Council scheduled a hearing on
12 October 2004. The applicant did not receive a summons. Subsequently, a
new hearing was scheduled for 15 February 2005.
After holding a hearing at which the applicant
and his counsel were present, the Disciplinary Council found on 15 February
2005 that the applicant had breached his professional duties and had infringed
the profession’s honour and reputation (section 1 (1) of the Disciplinary Act for
Lawyers and Trainee Lawyers (Disziplinarstatut für Rechtsanwälte und Rechtsanwaltsanwärter
- the Disciplinary Act) and ordered that he be struck off the register
pursuant to section 16 (1) subparagraph (4) of the said Act. Furthermore, it held
in favour of him in respect of a number of other alleged disciplinary offences.
The Disciplinary Council held that the applicant
had failed
(1) to provide the bank with a loan guarantee in
exchange for the amount of ATS 20,000,000, as required under the trusteeship
agreement of 31 August 1995;
(2) to reply to repeated requests from the bank for
assurances that the said amount was still in his possession;
(3) to transfer the amount to a separate trustee
account (Anderkonto); and
(4) finally, to fulfil the trusteeship agreement as
a whole.
It referred to the establishment of facts contained in the
Vienna Regional Court’s judgment of 5 February 2003 (see paragraph 13 above) and noted that this was confirmed by its own establishment of the facts. Moreover,
the Disciplinary Council referred to the Appeals Board’s established case-law, in
accordance with which the disciplinary authorities were bound by the
establishment of facts contained in a judgment of a criminal court convicting a
lawyer alleged to have committed a disciplinary offence. It noted that
disposing of such a large amount of money in breach of the trusteeship
agreement amounted to serious professional misconduct and a severe infringement
of the profession’s honour and reputation within the meaning of section 1 (1)
of the Disciplinary Act. Given the circumstances of the case, which had also become
publicly known and had caused serious damage to the legal profession, it was not
sufficient to impose a ban on practising of up to one year but it was necessary
to order that the applicant be struck off the register. It would be unacceptable
that the applicant, who was at that time serving his prison sentence, could resume
practising immediately after his release. Moreover, no client would entrust his
affairs to a lawyer who had diverted such a large amount of money in breach of
his duties as a trustee.
The applicant appealed to the Appeals Board, inter
alia on the ground that his conviction by the criminal court excluded
disciplinary proceedings, which were based on the same facts. In the alternative,
he argued that the sanction was disproportionate, having particular regard to
the fact that he had already been banned from practising as a lawyer while the
proceedings were pending.
On 25 July 2005 the Appeals Board upheld the
Disciplinary Council’s decision in respect of points (1) to (3), but amended it
in respect of point (4), finding that the applicant had failed to fulfil the
trusteeship agreement only in respect of part of the sum. It also confirmed the
sanction.
In so far as the applicant relied implicitly on
Article 4 of Protocol No. 7, the Appeals Board referred to the
Constitutional Court’s established case-law according to which conduct of a
lawyer qualifying as a criminal offence and also infringing the profession’s
honour and reputation contained an element, the “disciplinary-law surplus” (“disziplinärer
Überhang”) which justified a disciplinary sanction. The Constitutional
Court’s case-law relied on the explanatory report to Protocol No. 7, according
to which Article 4 of Protocol No. 7 did not protect a person against
conviction for the same act in criminal proceedings and in a different set of
proceedings, such as disciplinary proceedings against a civil servant. It thus
appeared that disciplinary proceedings did not qualify as criminal proceedings.
Moreover, the Disciplinary Council had not merely relied on the matters which
constituted the criminal offence, but had had particular regard to the ensuing
damage to the profession’s honour and reputation. The commission of a serious
criminal offence which had a direct link with the exercise of a lawyer’s
professional activity served to undermine the trustworthiness of the profession
as a whole. This was all the more so where the violation of duties concerned the
core activities of a practising lawyer, such as fulfilling a trusteeship
agreement.
Regarding the sanction, the
Appeals Board noted in particular that meticulous observance of the duties attached
to the core activities of a practising lawyer, such as acting as a trustee, was
an indispensable condition for maintaining the confidence the general public placed
in the legal profession. In the event of a very serious breach of these duties
the Bar Association had to show that it was ready to dissociate itself from
such misconduct in an unequivocal manner. It had therefore been necessary to
impose the maximum sanction, namely striking the applicant off the register.
The applicant lodged a complaint with the Constitutional Court alleging, inter alia, that he had been tried twice for the same
conduct. He also repeated that the imposition of the severest sanction possible,
namely striking him off the register, was not justified in the circumstances.
On 28 February 2006 the Constitutional Court dismissed
the applicant’s complaint. It found that the disciplinary decisions were properly
reasoned, and that the legal basis on which they had been taken was transparent
and clear. As regards the applicant’s complaint that he had been punished twice
for the same conduct, the Constitutional Court repeated that the applicant’s
actions amounted to a criminal offence, but that they also contained a “disciplinary-law
surplus” which could be subject to disciplinary sanctions without violating
either Article 6 of the Convention or Article 4 of Protocol No. 7.
The Constitutional Court’s judgment was served
on the applicant’s counsel on 27 April 2006.
II. RELEVANT DOMESTIC LAW
A. The Criminal Code
Article 153 of the Criminal Code (Strafgesetzbuch),
in the version in force at the material time, read as follows:
“(1) Any person who abuses the power conferred on
him or her by statute, by order of a public authority or by a legal transaction
to dispose of the assets of others or to enter into commitments on their behalf,
and who thereby causes them pecuniary damage, shall be liable to up to six
months’ imprisonment or to a day-fine payable for up to 360 days.
(2) Where the damage caused exceeds 25,000
schillings, the person responsible shall be liable to up to three years’
imprisonment; where it exceeds 500,000 schillings, he or she shall be liable to
between one and ten years’ imprisonment.”
B. The Disciplinary Act
Section 1(1) of the Disciplinary Act (Disziplinarstatut für Rechtsanwälte und
Rechtsanwaltsanwärter), provides as follows:
“A lawyer who negligently or intentionally breaches his or her
professional duties or whose professional or private conduct adversely affects
the reputation or standing of the profession shall be deemed to have committed
a disciplinary offence.”
. The
other relevant Sections of the Disciplinary Act in force at the material time
read as follows:
“16(1) Disciplinary sanctions shall take the form
of:
1. a written reprimand;
2. a fine of up to 500,000 schillings;
3. a ban on practising as a lawyer of up to one year
or, in the case of trainee lawyers, extension of the period of practical work
experience by a maximum of one year;
4. striking off the register ...
(6) In imposing the sanction, particular account
should be taken of the degree of culpability and the resulting damage,
particularly to members of the public; when determining the amount of the fine,
the person’s income and financial situation should also be taken into consideration.
(18) A lawyer who has been struck off the register
as a disciplinary sanction may be re-registered with a Bar Association only if he or she has not practised as a lawyer for a total of three years since
being struck off. A Bar Association may refuse to re-register a lawyer even
after this period has expired on grounds of untrustworthiness (section 5(2) of
the Practising Lawyers Act).
19(1) The Disciplinary Council may adopt interim measures
in respect of a lawyer where:
1. criminal proceedings are pending against him or
her;
2. the lawyer has been finally convicted of a
punishable offence by a court or
3. the lawyer has been struck off the register as a
disciplinary sanction
and the interim measure is necessary in view of the nature and
seriousness of the disciplinary proceedings against the lawyer concerned, on
account of the potential for serious damage, in particular to the interests of
the public or the standing of the profession.
(2) Before a decision is taken to adopt an interim
measure the lawyer concerned must have been afforded an opportunity to comment
on the accusations against him or her and on the conditions required for
ordering an interim measure. Derogation may be made from this requirement if a
delay would entail danger; however, in this case the lawyer must be given an
opportunity to comment immediately after the decision is adopted.
(3) Interim measures shall take the form of:
1. in the case of lawyers ...
(b) withdrawal of the right to act as
representatives before certain courts or administrative authorities, or before
all courts and administrative authorities ...
(d) a temporary ban on practising as a lawyer ...
(4) Interim measures shall be lifted, amended or
replaced where it transpires that the conditions required for ordering them do
not apply or no longer apply, or the circumstances have altered substantially.
An interim measure ordered in respect of a lawyer entailing a temporary ban on
practising on account of pending criminal proceedings against him or her shall
cease to apply after six months at the latest. However, it may be extended by a
decision of the Disciplinary Council where it is essential in order to prevent
serious damage to the interests of the public; each extension shall also cease
to apply after a maximum of six months.
(5) When the disciplinary proceedings are finally
terminated any interim measures adopted shall in any event cease to apply,
without prejudice to § 72 (3)...
(7) Where a disciplinary sanction is imposed, any
interim measures shall be taken into account in the appropriate manner. The
period of a temporary ban on practising as a lawyer shall count towards the
length of a ban on practising imposed as a disciplinary sanction; the period
for which trainee lawyers are temporarily barred from admittance to practical
work experience shall count towards the period of any ban on admittance imposed
as the result of a disciplinary sanction.
23(2) If
criminal proceedings are conducted relating to the same facts as those
underlying the disciplinary offence, no disciplinary decision must be issued
prior to the final conclusion of the proceedings conducted because of that
offence ...”
Several provisions of the Disciplinary Act also refer to the Code
of Criminal Procedure (Strafprozeßordnung), and declare them applicable
in disciplinary proceedings.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
The applicant complained about the length of the
disciplinary proceedings. He relied on Article 6 of the Convention which, in so
far as is material to the case, reads as follows:
“In the determination of his civil rights and obligations or of
any criminal charge against him everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal ...”
The Government contested that argument.
A. Admissibility
1. Applicability of Article 6
The Government accepted that Article 6 applied
under its civil head to the disciplinary proceedings at issue, but contested
that it applied under its criminal head. Referring to the criteria established
by the Court’s case-law for classifying an offence as “criminal”, the
Government submitted, firstly, that disciplinary law was not part of criminal
law in the Austrian legal system. Disciplinary offences were not dealt with by
the criminal courts and the Supreme Court as last instance, but by specialised
disciplinary authorities under the supervision of the Constitutional Court. Secondly,
the Government noted that unlike criminal law, which applied generally,
disciplinary law applied to members of specific professional groups, such as
lawyers, notaries, doctors, judges or other civil servants, and was aimed at
maintaining the confidence of the public in certain professions which were of
importance for the functioning of public life. The Appeals Board’s
considerations when setting the sanction in the present case emphasised the specific
character of disciplinary law, in that it focused on the damage which the
applicant’s conduct had caused to the general public’s confidence in the legal profession.
Thirdly, turning to the nature and severity of the penalties at stake, the
Government noted that although the sanction imposed had a decisive impact on the
applicant it was not primarily deterrent in nature, but was aimed at restoring
the confidence of the general public. In addition they noted that striking a
lawyer off the register did not necessarily have a permanent effect, as it was
possible to re-apply for admission after three years.
For his part, the applicant maintained that
Article 6 § 1 also applied under its criminal head to the disciplinary proceedings
against him. He submitted in particular that numerous provisions of the
Disciplinary Act referred to provisions of the Code of Criminal Procedure, and
declared them to be applicable in the disciplinary proceedings.
The Court has consistently
held that disciplinary proceedings in which the right to continue to exercise a
profession is at stake give rise to “contestations” (disputes) over
civil rights within the meaning of Article 6 § 1 (see, in
particular, König v. Germany, 28 June 1978, §§ 87-95, Series A no.
27; Diennet v. France, 26 September 1995, § 27, Series A no. 325-A;
Philis v. Greece (no. 2), 27 June 1997, § 45, Reports of Judgments and
Decisions 1997-IV; Gautrin and Others v. France,
20 May 1998, § 33, Reports 1998-III; W.R. v. Austria, no. 26602/95, §§ 28-30, 21 December 1999; and Goriany v. Austria, no. 31356/04, § 21, 10 December 2009).
In the present case, the
disciplinary authorities ordered that the applicant be struck off the register.
Moreover, a temporary ban on practising as a lawyer had been imposed on the
applicant as an interim measure while the disciplinary proceedings were
pending. There can thus be no doubt that the applicant’s right to continue to
practise as a lawyer was at stake in the disciplinary proceedings. Consequently,
Article 6 § 1 applies under its civil head.
Given that the applicant raises a further
complaint under Article 4 of Protocol No. 7, the Court will examine
whether Article 6 § 1 also applies under its criminal head to the disciplinary
proceedings at issue.
First, the Court reiterates that the concept of
a “criminal charge” within the meaning of Article 6 § 1 is an autonomous one. The
Court’s established case-law sets out three criteria, commonly known as the “Engel criteria” (see Engel and Others v. the Netherlands,
8 June 1976, § 82, Series A no. 22), to be considered in determining
whether or not there was a “criminal charge” within the meaning of Article 6 § 1
of the Convention. The first criterion is the legal classification of the offence
under national law, the second is the very nature of the offence, and the third
is the nature and degree of severity of the penalty that the person concerned
risks incurring. The second and third criteria are alternative, and not
necessarily cumulative. This, however, does not exclude a cumulative approach
where separate analysis of each criterion does not make it possible to reach a
clear conclusion as to the existence of a criminal charge (see, in particular, Jussila v.
Finland [GC], no. 73053/01, §§ 30-31, ECHR 2006-XIII, and Ezeh and
Connors v. the United Kingdom [GC], nos. 39665/98 and 40086/98,
§ 82, ECHR 2003-X).
In domestic law the offence of professional
misconduct under section 1 (1) of the Disciplinary Act belongs to the sphere of
disciplinary law. Disciplinary proceedings are not conducted by the public
prosecutor’s offices and the criminal courts, but by disciplinary authorities
under the supervision of the Constitutional Court. The matter to which the applicant
refers, namely that several provisions of the Criminal Code are applicable in
proceedings under the Disciplinary Act, does not suffice to alter their
classification as disciplinary proceedings.’
Regarding the nature of the offence, the Court
observes that section 1 (1) of the Disciplinary Act is not addressed to the
general public but to the members of a professional group possessing a special
status, namely practising lawyers and trainee lawyers (see Brown v. the
United Kingdom (dec.), no. 38644/97, 24 November 1998, concerning
disciplinary proceedings against a solicitor). Although the facts which gave
rise to the disciplinary proceedings also constituted a criminal offence, the offences
brought against the applicant in the disciplinary proceedings related solely to
professional misconduct. The fact that an act which can lead to a disciplinary
sanction also constitutes a criminal offence is not sufficient to consider a
person responsible under disciplinary law as being “charged” with a crime (see Moullet
v. France (dec.), no. 27521/04, 13 September 2007, concerning
disciplinary proceedings against a civil servant; see also Vagenas v.
Greece (dec.), no. 53372/07, 23 August 2011).
The Court notes that section 1 (1) of the
Disciplinary Act is designed to ensure that members of the bar comply with the
specific rules governing their professional conduct. At the same time that
provision aims at protecting the profession’s honour and reputation and at
maintaining the trust the public places in the legal profession. As the
Government pointed out, this is underlined by the sanction rules contained in
the Disciplinary Act. Section 16 (6) of the Disciplinary Act required the
disciplinary authorities to have particular regard not only to the degree of
culpability but to the damage resulting from the commission of the offence, in
particular to members of the public. Having regard to all these elements the
Court finds that the offence under section 1(1) of the Disciplinary Act is not
criminal but disciplinary in nature (see, mutatis mutandis, Brown, cited
above).
Turning to the nature and degree of severity of
the sanction the applicant risked incurring, the Court reiterates that this
criterion is to be determined by reference to the maximum potential penalty for
which the relevant law provides. The actual penalty imposed is relevant to the
determination, but cannot diminish the importance of what was initially at stake
(see Ezeh and Connors, cited above, § 120, with further references).
The Court notes that pursuant
to section 16(1) of the Disciplinary Act in the version in force at the
material time the applicable sanctions included a written reprimand, a fine of
up to ATS 500,000 (approximately EUR 36,000), temporary suspension of the
right to practise, or striking off the register. With the exception of the fine,
these sanctions are typical disciplinary sanctions (see, mutatis mutandis,
Moullet, cited above). As regards the fine, the Court notes that in contrast
to fines in criminal proceedings fines under the Disciplinary Act do not
attract a prison term in the event of default, as the disciplinary authorities have
no power to impose deprivation of liberty. Although the size of the potential
fine is such that it must be regarded as having a punitive effect, the severity
of this sanction in itself does not bring the charges into the criminal sphere
(see Brown, cited above).
The Court notes that in the present case the
disciplinary authorities’ considerations when setting the sanction concentrated
on the question whether a temporary ban on practising might suffice, or whether
striking the applicant off the register was required in view of the damage
which the reputation of the profession had suffered as a result of the
applicant’s serious misconduct. The sanction eventually imposed on him was
being struck off the register. Although this is a severe sanction it affects
first and foremost a lawyer’s civil right to continue exercising his or her
profession (see paragraphs 39-40 above). As the Appeals Board pointed out, its
aim is to restore the confidence of the public by showing that in cases of
serious professional misconduct the Bar Association will prohibit the lawyer concerned
from practising (see paragraph 29 above). Finally, the Court notes that being
struck off the register does not necessarily have permanent effect. Pursuant to
section 18 of the Disciplinary Act, a lawyer who has been struck off the
register may apply to be re-registered after three years. In sum, the nature
and severity of the sanctions the applicant risked incurring and the sanction actually
imposed were not such as to render the charges “criminal” in nature.
Consequently, the disciplinary proceedings against the applicant did not
involve the determination of a “criminal charge” within the meaning of Article
6 § 1 of the Convention.
Having regard to the considerations set out
above, the Court concludes that Article 6 § 1 of the Convention applies under
its civil head to the disciplinary proceedings at issue, while it does not
apply to these proceedings under its criminal head.
2. Non-exhaustion of domestic remedies
The Government asserted that the applicant had
failed to exhaust domestic remedies, as he had not raised his complaint about
the length of the proceedings at the domestic level. In particular he should
have raised the issue in his complaint to the Constitutional Court, which could
have established a violation of Article 6 § 1 of the Convention on account of
the unreasonable length of the proceedings. The applicant has not made submissions
on this point.
The Court reiterates its case-law that effective
remedies in respect of the length of proceedings may either be remedies
designed to expedite the proceedings, thus preventing them from becoming
excessively lengthy, or remedies affording compensation for undue delays (see Scordino
v. Italy (no. 1) [GC], no.
36813/97, §§ 183-187, ECHR 2006-V). The Court has already held that a decision
by the Constitutional Court which constitutes a finding that the proceedings have
lasted an unreasonably long time has neither a preventive nor a compensatory
effect in respect of the length of the proceedings, but has a merely declaratory
effect. Such a remedy cannot be considered effective under the principles established
by the Court’s case-law (see VR-Bank Stuttgart v. Austria, no. 28571/06,
§ 31, 20 May 2010).
In short, the Government have failed to show
that the applicant had an effective remedy against the length of the
proceedings at his disposal. The Court therefore dismisses the Government’s
objection.
3. Conclusion
The Court notes that this complaint is not
manifestly ill-founded within the meaning of Article 35 § 3 (a) of the
Convention. It further notes that it is not inadmissible on any other grounds.
It must therefore be declared admissible.
B. Merits
The applicant submitted that the disciplinary
proceedings were of no particular complexity. However, they had been pending
for almost nine years when the Disciplinary Council held a hearing in February
2005. In his view the disciplinary authorities should have proceeded with the
case diligently, without waiting for the outcome of the criminal proceedings
against him. The applicant also underlined that the proceedings were of
particular importance for him, as the temporary ban on practising as a lawyer
remained in force throughout almost the entire period.
The Government referred to section 23 (2) of the
Disciplinary Act, which states that no disciplinary decision may be issued
before the termination of criminal proceedings relating to the same facts as
those which gave rise to the disciplinary offence. They argued that the
disciplinary proceedings de facto only started on 24 May 2004, when the
Vienna Court of Appeal’s final judgment in the criminal proceedings was served
on the Disciplinary Council. The proceedings were then conducted with
reasonable speed and were terminated by the Constitutional Court’s decision of
28 February 2006.
The Court considers that the proceedings started
on 29 May 1996, when an Investigating Commissioner was appointed (see Goriany,
cited above, § 25). The proceedings were terminated by the Constitutional Court’s
decision of 28 February 2006, which was served on the applicant’s counsel on 27
April 2006. The proceedings, before three levels of jurisdiction, have thus
lasted nine years and eleven months.
The Court reiterates that the reasonableness of
the length of proceedings must be assessed in the light of the circumstances of
the case and with reference to the following criteria: the complexity of the
case, the conduct of the applicant and of the relevant authorities, and what
was at stake for the applicant in the dispute (see Frydlender v. France
[GC], no. 30979/96, § 43, ECHR 2000-VII).
The Court has frequently found violations of
Article 6 § 1 in cases raising issues similar to the one in the present case (see,
in particular, Goriany, cited above, §§ 27-30, concerning various sets
of disciplinary proceedings against a practising lawyer which had lasted between
three years and one month and five years and seven months at one level of
jurisdiction, and W.R. v. Austria, cited above, § 34, which concerned
disciplinary proceedings against a practising lawyer which had lasted seven
years and four months at three levels of jurisdiction).
Having examined all the material submitted to
it, the Court considers that the Government have not put forward any fact or
argument capable of persuading it to reach a different conclusion in the
present case, in which the disciplinary proceedings lasted nine years and eleven
months at three levels of jurisdiction. Moreover, the Court notes that what was
at stake in the proceedings, namely his right to continue to exercise his
profession, was of particular importance for the applicant. Having regard to
its case-law on the subject, the Court considers that in the instant case the
length of the proceedings was excessive and failed to meet the “reasonable
time” requirement.
There has accordingly been a breach of Article 6 § 1 of the
Convention.
II. ALLEGED VIOLATION OF ARTICLE 4 OF PROTOCOL No.
7
The applicant complained that he had been tried
and punished twice for the same offence, first in the criminal proceedings and
then in the disciplinary proceedings against him. He relied on Article 4 of
Protocol No. 7, which provides as follows:
“1. No one shall be liable to be tried or punished
again in criminal proceedings under the jurisdiction of the same State for an
offence for which he has already been finally acquitted or convicted in
accordance with the law and penal procedure of that State.
2. The provisions of the preceding paragraph shall
not prevent the reopening of the case in accordance with the law and penal
procedure of the State concerned, if there is evidence of new or newly
discovered facts, or if there has been a fundamental defect in the previous
proceedings, which could affect the outcome of the case.
3. No derogation from this Article shall be made
under Article 15 of the Convention.”
Admissibility
The Government maintained that the disciplinary
proceedings did not qualify as “criminal proceedings”, and that consequently
Article 4 of Protocol No. 7 did not apply. Alternatively, should the Court
find Article 4 of Protocol No. 7 to be applicable, the Government argued that
the applicant had not been tried again for the same offence in the disciplinary
proceedings.
The applicant contested this view.
The Court reiterates that the aim of Article 4
of Protocol No. 7 is to prohibit the repetition of criminal proceedings that
have been concluded by a final decision. The Court has already held that the
notions of “criminal proceedings” and “penal procedure” in the text of Article
4 of Protocol No. 7 must be interpreted in the light of the general
principles concerning the corresponding words of “criminal charge” and
“penalty” in Articles 6 and 7 of the Convention respectively (see Sergey
Zolotukhin v. Russia [GC], no. 14939/03, § 52, ECHR 2009, and Ruotsalainen
v. Finland, no. 13079/03, §
42, 16 June 2009, with further references). Consequently, the Court
applies the same set of criteria when establishing whether proceedings are
criminal proceedings for the purpose of Article 4 of Protocol No. 7 as for
determining whether proceedings relate to a “criminal charge” within the
meaning of Article 6 § 1 (see Sergey Zolotukhin, cited above, § 53, and Ruotsalainen,
cited above, § 43). Having regard to its finding that the disciplinary
proceedings against the applicant did not involve the determination of a “criminal
charge” (see paragraph 49 above), the Court concludes that Article 4 of
Protocol No. 7 does not apply in the present case.
It follows that this complaint is incompatible ratione
materiae with the provisions of the Convention within the meaning of Article
35 § 3 (a) and must be rejected in accordance with Article
35 § 4.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
The applicant further complained under Article 6
§ 1 of Convention that the disciplinary proceedings against him had been
conducted unfairly. He submitted that the Disciplinary Council’s decision was
based on the facts established in the criminal proceedings, and that those
proceedings had also been unfair. In particular, he complained that the
Disciplinary Council had failed to hear his secretary, who had allegedly
erroneously transferred ATS 20,000,000, which sum was the subject of the
trusteeship agreement. She had not been heard as a witness in the second set of
criminal proceedings for fraudulent conversion. The applicant, relying on
Article 4 of Protocol No. 7, also complains that the sanction imposed on
him, namely being struck off the register, was excessive.
66. However, in the light of all the material in
its possession, and in so far as the matters complained of are within its
competence, the Court finds that they do not disclose any appearance of a
violation of the rights and freedoms set out in the Convention or its
Protocols.
It follows that this part of the application is
manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3
(a) and 4 of the Convention.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of the
Convention provides:
“If the Court finds that there
has been a violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only partial
reparation to be made, the Court shall, if necessary, afford just satisfaction
to the injured party.”
A. Damage
The applicant claimed compensation for pecuniary
damage of EUR 45,000 per month for a period of up to 132 months (eleven
years) for loss of earnings caused by the length of the proceedings, during
which a temporary ban on practising remained in force against him. Furthermore,
he claimed EUR 15,000 per month for excessive length of the proceedings in
respect of non-pecuniary damage.
In respect of pecuniary damage, the Government commented
firstly that the applicant had failed to show that there was a causal link between
the alleged violations and the damage claimed. In their view the causal link
remained speculative, as the criminal proceedings against the applicant, which
were not the subject of the present application, and his conviction in 2004
must already have had an impact on his income. Secondly, the applicant had
failed to substantiate his claim. In particular, he had not made any detailed
submissions to explain how he had calculated the monthly sum claimed, or as to whether
he had previously derived his income exclusively from his activities as a
lawyer. Nor had the applicant disclosed his income after the institution of the
disciplinary proceedings; this would have allowed it to be established whether
and to what extent he had actually suffered financial damage.
In respect of non-pecuniary damage, the Government
argued that the applicant’s claim was excessive.
The Court considers that the applicant has not
sufficiently substantiated his claim in respect of pecuniary damage. The Court
therefore rejects the claim.
On the other hand, having regard to its case-law and
making an assessment on an equitable basis, it awards the applicant EUR 8,000
in respect of non-pecuniary damage.
B. Costs and expenses
The applicant also claimed EUR 9,600 for costs
and expenses incurred in the proceedings before the Court. This sum includes
value-added tax (VAT).
The Government asserted that the amount claimed
was excessive. With regard to the fees applicable under domestic law they
argued that an amount of EUR 2,655.36 including VAT for lodging the application
and an amount of EUR 448.02 including VAT for the observations would be appropriate,
thus a total amount of EUR 3,103.38 including VAT.
According to the Court’s case-law, an applicant
is entitled to the reimbursement of costs and expenses only in so far as it has
been shown that these have been actually and necessarily incurred and are
reasonable as to quantum. In the present case, regard being had to the
documents in its possession and the above criteria, the Court considers it
reasonable to award the sum of EUR 3,103.38, including VAT, for the proceedings
before the Court.
C. Default interest
The Court considers it appropriate that the
default interest rate should be based on the marginal lending rate of the
European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Declares the complaint concerning the
length of the disciplinary proceedings against the applicant admissible and the
remainder of the application inadmissible;
2. Holds that there has been a violation of
Article 6 § 1 of the Convention;
3. Holds
(a) that the respondent State is to pay the applicant, within three months of the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following amounts:
(i) EUR 8,000 (eight thousand euros) plus any tax
that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 3,103.38 (three thousand one hundred and
three euros thirty-eight cents) in respect of costs and expenses;
(b) that from the expiry of the above-mentioned
three months until settlement simple interest shall be payable on the above
amounts at a rate equal to the marginal lending rate of the European Central
Bank during the default period plus three percentage points;
4. Dismisses
the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 19 February
2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Isabelle
Berro-Lefèvre
Registrar President
