CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 28 février 1996

.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 }                          AS TO THE ADMISSIBILITY OF                         Application No. 17798/91                       by Olga Renate DEIXLER                       against Austria         The European Commission of Human Rights (First Chamber) sitting in private on 28 February 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. MARXER                  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 15 August 1990 by Olga Renate DEIXLER against Austria and registered on 13 February 1991 under file No. 17798/91 ;         Having regard to:   -      the reports provided for in Rule 47 of the Rules of Procedure of       the Commission;   -      the Commission's decision of 31 August 1994 to declare the       application partly inadmissible and to communicate the remainder       of the application to the respondent Government for observations       on its admissibility and merits;   -      the observations submitted by the respondent Government on 28       December 1994 and the observations in reply submitted by the       applicant on 13 February 1995;         Having deliberated;         Decides as follows:   THE FACTS         The applicant in an Austrian citizen, born in 1945 and residing in Freistadt (Austria).         The facts of the case as submitted by the parties may be summarised as follows.   A.     The criminal proceedings instituted against the applicant         In 1975 inquiries were started against various persons, including the applicant's former husband, on the suspicion of having committed inter alia aggravated fraud and fraudulent conversion in relation to real estate business. On 4 January 1978 preliminary investigations were opened also against the applicant.         On 24 September 1980 and 10 October 1980 the Vienna Regional Court (Landesgericht) issued two warrants of arrest against the applicant and her former husband on charges of aggravated fraud, fraudulent conversion, contravention of the Social Security Act and forgery committed between 1971 and 1979.         On 17 September 1980 the applicant and her former husband were arrested in Frascati (Italy).         On 20 November 1981 the applicant was extradited to Austria where she was remanded in custody until 29 November 1983.         On 9 July 1982 the Vienna Public Prosecutor issued an indictment against the applicant. This was served on her by the prison authorities on 22 July 1982.         On 5 September 1985 the Vienna Regional Court informed the applicant that part of the proceedings had been discontinued on 28 March 1985.         By a decision of 5 August 1986, the Vienna Regional Court admitted a request of the Public Prosecutor of 11 April 1986 to extend the indictment to another offence committed between 1975 and 1979 to the detriment of two further persons and decided to deal with this question in separate proceedings.         In these proceedings the Vienna Regional Court appointed an expert on 16 October 1986. In July 1987 his expert was replaced by another expert who after several extensions of time-limits submitted his expert opinion on 22 June 1988.         On 30 August 1988 the main criminal proceedings were discontinued.         By a judgment of 28 September 1989, the Vienna Regional Court acquitted the applicant of the remainder of the charges brought against her. In its judgment the Vienna regional Court referred to facts which occurred between 1975 and 1979 and observed that the facts which were subject of the remaining proceedings were, without any doubt, covered by the extradition requests of the Austrian Government.         The Public Prosecutor lodged a plea of nullity against this judgment which he later withdrew.         On 6 April 1990 the Vienna Regional Court informed the applicant that the judgment of 28 September 1989 had become final on 20 March 1990. At the applicant's request this judgment was notified to her on 27 July 1990.   B.     The applicant's disbarment          By a decision of the Bar Committee (Ausschuss der Rechtsanwaltskammer) for Vienna, Lower Austria and Burgenland of 30 April 1985 the applicant was struck off the roll following a final decision of 26 February 1985 by which the Vienna Commercial Court (Handelsgericht) had dismissed a request to open bankruptcy proceedings (Konkurs) against the applicant on the ground that her assets were insufficient to cover the costs of such proceedings. The request to open bankruptcy proceedings had been brought by a former employee of the applicant's law firm. Her claim was finally settled by an insolvency fund.         On 28 May 1985 the Bar Committee declared the applicant's appeal (Vorstellung) against the decision to strike her off the roll inadmissible.         The Bar Committee and the applicant referred the case for decision to the Disciplinary Appeals Board for Practising Lawyers and Prospective Practising Lawyers (Oberste Berufungs- und Disziplinar- kommission für Rechtsanwälte und Rechtsanwaltsanwärter).         On 8 July 1985 the Disciplinary Appeals Board declared the appeal inadmissible for lack of jurisdiction.         On 24 September 1990 the Constitutional Court (Verfassungs- gerichtshof) dismissed a constitutional appeal lodged by the applicant considering that the decision by which the applicant was struck off the roll was not contrary to any of the rights guaranteed by the Federal Constitution.         The Constitutional Court pointed out that, in accordance with Section 34 para. 1 (a) of the Practising Lawyers Act (Rechtsanwaltsordnung) the right to exercise the profession of a practising lawyer should be revoked with the binding opening of bankruptcy proceedings until their binding termination (Die Berechtigung zur Ausübung der Rechtsanwaltschaft erlischt: ... durch die rechtskräftige Eröffnung des Konkurses bis zu seiner rechtskräftigen Aufhebung). The Constitutional Court recalled that a request to open bankruptcy proceedings had been rejected for lack of sufficient means to cover the costs of the bankruptcy proceedings. Section 28 para. 1 of the Practising Lawyers Act enumerated the functions exercised by the Bar Committee. Section 28 para. 2 of the Practising Lawyers Act further provided that the Bar Committee exercised also those functions which were not expressly referred by law to any other body. The striking off the roll was not assigned to any specified organ. In accordance with Section 28 para. 2 of the Practising Lawyers Act, the Bar Committee was therefore entrusted with this task. No appeal lay in this matter. Decisions could be appealed against solely in cases expressly provided for by law.         The Constitutional Court concluded that the legal provisions had been correctly applied when rejecting the applicant's appeal and that her right of access to a court had thus not been violated. Referring to its previous case-law, the Constitutional Court recalled that these legal provisions were in accordance with the Constitution and that it was therefore excluded that any other constitutional rights of the applicant had been breached.   C.     Relevant domestic law         Section 34 para. 1 (a) of the Practising Lawyers Act (Rechtsanwaltsordnung) provided at the relevant time that the right to exercise the profession of a practising lawyer should be revoked ... with the binding opening of bankruptcy proceedings until their binding termination; ...   (Die Berechtigung zur Ausübung der Rechtsanwaltschaft erlischt: ... durch die rechtskräftige Eröffnung des Konkurses bis zu seiner rechtskräftigen Aufhebung; ...).         Section 34 para. 1 (a) of the Practising Lawyers Act (Imp. Law Gazette No. 1990/474 as amended) now provides that the right to exercise the profession of a practising lawyer shall be revoked ... with the binding opening of bankruptcy proceedings until their binding termination and the final dismissal of a request to open bankruptcy proceedings for lack of sufficient means; ... (Die Berechtigung zur Ausübung der Rechtsanwaltschaft erlischt: ... durch die rechtskräftige Eröffnung des Konkurses bis zu seiner rechtskräftigen Aufhebung und die rechtskräftige Abweisung eines Konkursantrags mangels kostendeckenden Vermögens; ...).   COMPLAINTS         The applicant's remaining complaints under Article 6 para. 1 of the Convention concern the length of the criminal proceedings instituted against her and the decision of the Bar Committee of 30 April 1985 to strike her off the roll.   1.     As to the length of the criminal proceedings, the applicant submits that these proceedings have lasted for ten years. The facts were clear and the relevant documents had been at the disposal of the judicial authorities which, according to her, alone are responsible for the length of the proceedings.   2.      The applicant complains also that the decision to strike her off the roll was not taken by a tribunal established by law with full jurisdiction on questions of law and fact and had not been pronounced publicly. Furthermore there lay no appeal against this decision.   PROCEEDINGS BEFORE THE COMMISSION         The application was introduced on 15 August 1990 and registered on 13 February 1991.         On 31 August 1994 the Commission decided to communicate the applicant's complaints relating to the length of the criminal proceedings and to her disbarment and declared inadmissible the remainder of the application.         The Government's written observations were submitted on 28 December 1994. The applicant replied on 13 February 1995.         On 4 July 1995 the Commission decided to grant the applicant legal aid.   THE LAW   1.     The applicant complains that the criminal proceedings instituted against her on 4 January 1978 were not concluded within a reasonable time as required by Article 6 para. 1 (Art. 6-1) of the Convention.         Article 6 para. 1 (Art. 6-1) of the Convention, as far as relevant, reads as follows:         "In the determination ... of any criminal charge against       him, everyone is entitled to a ... hearing within a       reasonable time by (a) ... tribunal ..."         The Government submit that the proceedings instituted against the applicant consist of three separate sets of criminal proceedings. Solely with regard to the proceedings in which the applicant has been acquitted, the application has been lodged within the six months' time limit. These proceedings lasted from 5 August 1986, the date from which the proceedings were dealt with separately, to 20 March 1990 when the judgment of the Vienna Regional Court of 28 September 1989 became final. The proceedings were extremely complex. Voluminous files had to be examined and numerous witnesses to be heard, also abroad. It took one year and nine months to prepare an expert opinion in the proceedings which terminated with the applicant's acquittal. This delay was due to the complexity of the case, but also to the lack of cooperation of the applicant's former husband. The Austrian authorities have done everything to streamline the proceedings and no considerable delays were imputable to them, whereas important delays have to be attributed to the applicant. The Government mention in this respect the applicant's flight to Italy in 1980 and her extradition which did not occur before November 1981. They also refer to the fact that the applicant changed her defence counsel which delayed the trial for almost four months. The Government conclude that the overall duration of the proceedings lasting from 5 August 1986 to 20 March 1990 cannot be considered as being unreasonable.         The applicant denies that she is responsible for the length of the proceedings. Delays occurred in the proceedings had to be attributed to the authorities. The expert opinions did not concern the charges brought against her. As to the change in her defence counsel, she submits that   her former defence counsel had been arrested and that therefore she was appointed another official defence counsel. She finally submits that the facts of the proceedings, which were terminated with her acquittal on 28 September 1989, concerned events which had occurred between 1971 and 1979. The criminal proceedings have therefore to be considered as a whole.         The Commission considers, in the light of the criteria established by the case law of the Convention organs 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 a thorough examination of this complaint is required, both as to the law and as to the facts.   2.     The applicant complains also that the question of her being struck off the roll was not determined by an impartial and independent tribunal established by law as required by Article 6 para. 1 (Art. 6-1) of the Convention.         Article 6 para. 1 (Art. 6-1) of the Convention, as far as relevant, reads as follows:         "In the determination of his civil rights and obligations       ..., everyone is entitled to a fair and public hearing ...       by an independent and impartial tribunal established by law       ..."         The Government deny that Article 6 para. 1 (Art. 6-1) of the Convention applies to the present case. They submit that according to Section 1 of the Practising Lawyers Act (Rechtsanwaltsordnung) the exercise of the profession of a lawyer requires "no appointment by a public authority" (behördliche Ernennung). If the legal requirements are met, the registration as a member of the bar is automatic. There is a statutory duty of registration. Similarly, the right to practice terminates where specified by law. There is no further measure required to obtain this result. The disbarment is mandatory in character; the Bar Committee must take such a decision if the requisite conditions are met.         The Government further submit that Section 5 para. 2 of the Practising Lawyers Act refers to the lawyer's trustworthiness (Vertrauenswürdigkeit). If a lawyer fails to meet this requirement in relation to financial matters, as in the present case, the right to practice terminates automatically in accordance with the law, namely by virtue of Section 34 of the Practising Lawyers Act.         The decision of the bar therefore was of a purely declarative nature and did not determine the applicant's civil rights and obligations. Those rights were determined by the proceedings related to the applicant's insolvency which were conducted in accordance with Article 6 (Art. 6) of the Convention.         This is contested by the applicant. She points out that Section 34 of the practising Lawyers Act applies when bankruptcy proceedings have been opened against a lawyer. The ground invoked for her disbarment, namely the lack of sufficient means to pay the costs of bankruptcy proceedings, was not contained in Section 34 of the Practising Lawyers Act. Nor did this provision refer to the question of a lawyer's trustworthiness. A decision should therefore have been given on the question of her disbarment in proceedings conducted in accordance with Article 6 (Art. 6) of the Convention.         After an examination of these issue in the light of the parties' submissions, the Commission considers that it raises questions of fact and law which can only be determined by an examination of the merits. It follows that this part of the application cannot, therefore, be declared inadmissible as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. No other grounds for inadmissibility   have been established.         For these reasons, the Commission, unanimously,         DECLARES ADMISSIBLE the remainder of the application.   Secretary to the First Chamber         President of the First Chamber        (M.F. BUQUICCHIO)                        (C.L. ROZAKIS)