CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 31 mai 1967

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }  THE FACTS   Whereas the facts presented by the Applicant may be summarised as follows:   The Applicant is an Austrian citizen born in 1919 and at present resident in Graz.   In 1961 and 1963 disciplinary proceedings were brought against the Applicant, who is a lawyer, before the Disciplinary Committee of the Bar Association for the Steiermark (Disziplinarrat der Steiermärkischen Rechtsanwaltskammer) for overcharging in a number of cases. The Applicant was of the opinion that the Disciplinary Committee was not impartial and that a number of irregularities had been committed in the intermediate (interlocutory) proceedings in these cases. He therefore applied under paragraph 27 of the Disciplinary Code (Disziplinarstatut) for the cases to be transferred to a different Disciplinary Committee.   The Disciplinary Committee referred this application to the Supreme Appeals and Disciplinary Commission for Lawyers and Legal Pupils (Oberste Berufungs- und Disziplinarkommission für Rechtsanwälte und Rechtsanwaltsanwärter).   On ..., 1962, the Supreme Appeals and Disciplinary Commission rejected the applications as being out of time.   On appeal the Constitutional Court (Verfassungsgerichtshof) set aside this decision on the ground that the decision on the question of whether an application was made in time did not lie within the competence of the Supreme Appeals and Disciplinary Commission but in that of the Disciplinary Committee.   The Disciplinary Committee then informed the Supreme Appeals and Disciplinary Commission that it did not consider that the applications were out of time and again referred the applications together with a subsequent application relating to a case arising in 1963, to the Supreme Commission.   On ..., 1964, the Supreme Commission rejected the applications for transfer on the ground that the facts alleged by the Applicant did not establish any lack of impartiality in the Disciplinary Committee and the other alleged irregularities were not such as to justify a transfer to another Disciplinary Committee.   The Applicant appealed to the Constitutional Court which rejected his appeal on ..., 1965. The decision was served on the Applicant on ..., 1965.   The Court rejected the Applicant's contention that he had not been judged by a proper court, because the Supreme Commission had proceeded with complete lack of logic in its application of paragraph 27 of the Disciplinary Code (denkunmöglich angewendet) and thus did not constitute a court at all. The Court held that the decision had been lawfully made by a competent court. Furthermore, contrary to what appeared to the Applicant's opinion, it did not contain any decision on the question of whether the Disciplinary Committee had been properly constituted at the time it made a number of intermediate (interlocutory) decisions. Nor did it in any way forejudge the future composition of the Disciplinary Commission in the hearing of the case against the Applicant.   In respect of the Applicant's contention that the principle of equality of treatment had been violated with regard to the Applicant by the decision, the Court decided that the Supreme Commission had not acted arbitrarily in deciding that the Disciplinary Committee had not shown a lack of impartiality and that there were not other weighty reasons requiring the case to be transferred to another Disciplinary Committee because:   - in 16 cases mentioned by the Applicant various persons had allegedly improperly taken part in intermediate decisions of the Disciplinary Committee;   - the Disciplinary Committee had not dealt with one matter relating to the Applicant according to the relevant provisions;   - the Disciplinary Committee had not dealt with the Applicant in the same manner as it had dealt with other lawyers in similar cases;   - the Disciplinary Committee had allegedly in certain cases given the Supreme Commission incorrect information in its report and had committed certain other irregularities;   - the representative of the Bar Association (Kammeranwalt) had allegedly committed certain irregularities;   - the Court rejected the Applicant's contention that the decision of the Supreme Commission constituted a violation of Article 6 of the Convention on Human Rights and maintained its former jurisprudence according to which Article 6 does not apply to disciplinary as opposed to criminal or civil proceedings.   The Applicant maintains that Article 6 of the Convention, properly interpreted, applies to disciplinary proceedings as these are, on a substantive (as opposed to a merely procedural) classification, criminal proceedings since they imply punishment and the punishments which can be imposed are as far-reaching in their effects as many of those imposed by the criminal law. Furthermore, it is not a valid objection that disciplinary proceedings only to a limited class of persons as this is true of certain crimes.   Presuming that Article 6 applies, the Applicant maintains that it is violated by the fact that the Supreme Appeals and Disciplinary Commission for Lawyers is not a court but an administrative authority and so does not constitute a tribunal within the meaning of Article 6.   He submits that the right to a fair trial is further violated as the Supreme Commission took its decision after hearing the Attorney-General (Generalprokuratur) in the absence of the Applicant at a hearing which was not open to the public.   The Applicant further maintains that by refusing his applications for transfer the Supreme Commission deprived him of his right to trial by an impartial court contrary to Article 6.   The Applicant also complains that an effective remedy was not available for the alleged violation of Article 6 and invokes Article 13 of the Convention.   THE LAW   Whereas, in so far as the Applicant's complaints concern alleged violations of Article 6 (Art. 6) of the Convention, it is to be observed that Article specifically relates only to the determination of civil rights and obligations or of a criminal charge; whereas in the case of the Applicant the proceedings concerned his alleged misconduct as a member of the legal profession and took place before disciplinary authorities; whereas it is clear that these proceedings were not concerned with a determination of the Applicant's civil rights or obligations within the meaning of paragraph (1) of Article 6 (Art. 6-1); whereas it is equally clear that the Applicant was not charged with a criminal offense within that paragraph; whereas, therefore, Article 6 (Art. 6) of the Convention is not applicable to the proceedings instituted against the Applicant before the disciplinary authorities; whereas it follows that this part of the Application is incompatible with the provisions of the Convention; whereas in this connection the Commission refers to its decision in Application No. 734/60 S. v. the Federal Republic of Germany (Collection of Decisions No. 6, page 28); whereas the Applicant's complaint of a violation of Article 13 (Art. 13) is based on the fact that no effective remedy is provided under Austrian law for alleged breaches of Article 6 (Art. 6) in connection with disciplinary proceedings;   Whereas the Commission has already found that the Applicant's complaint of a violation of Article 6 (Art. 6) is incompatible with the Convention;   Whereas it follows that his complaint of a violation of Article 13 (Art. 13) is likewise incompatible with the Convention; whereas the Application must accordingly be rejected in accordance with Article 27, paragraph (2) (Art. 27-2), of the Convention.   Now therefore the Commission declares this Application inadmissible.