CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 12 avril 1991

.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. 16153/90 by P. against Austria             The European Commission of Human Rights sitting in private on 12 April 1991, the following members being present:                   MM.   C.A. NØRGAARD, President                      S. TRECHSEL                      F. ERMACORA                      G. SPERDUTI                      G. JÖRUNDSSON                      A.S. GÖZÜBÜYÜK                      A. WEITZEL                      J.C. SOYER                      H.G. SCHERMERS                      H. DANELIUS                 Mrs.   G.H. THUNE                 Sir   Basil HALL                 MM.   F. MARTINEZ                      C.L. ROZAKIS                 Mrs.   J. LIDDY                 MM.   J.C. GEUS                      A.V. ALMEIDA RIBEIRO                      M.P. PELLONPÄÄ                      B. MARXER                   Mr.   H.C. KRÜGER, Secretary to the Commission           Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;           Having regard to the application introduced on 11 January 1990 by P. against Austria and registered on 12 February 1990 under file No. 16153/90;           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 applicant is an Austrian lawyer practising in St.   Pölten.           He complains of a disciplinary sanction for having violated the professional rule not to impair the honour and reputation of the legal profession.           The facts submitted may be summarised as follows.           On 15 January 1985 the Disciplinary Council (Disziplinarrat) of the applicant's Bar Association ordered a two months' suspension of the applicant's right to practise.   He was found guilty of having impaired the honour and reputation of the profession by having stated:   -        in a motion of challenge submitted to the District Court (Bezirksgericht) in St.   Pölten:           (German)           "Bei der Behandlung der von mir erstatteten Strafanzeige....         ist es nämlich zu Unkorrektheiten gekommen, die eindeutig         als kriminell anzusehen sind.   Das eben beschriebene         kriminelle Verhalten im Bereich der Bundespolizeidirektion...."           (English translation)           "The charges I have laid have been dealt with in an incorrect         manner which is clearly criminal.   This criminal behaviour in         the sphere of the Federal Police...."   -        in a letter to the executive committee of his Bar Association:           (German)           "Der Verdacht einer willkürlichen Vorgangsweise (§ 302 StGB)         scheint nicht völlig denkunmöglich."           (English translation)           "The suspicion of an arbitrary action (S. 302 of the Criminal         Code) cannot be excluded."   -        in a letter to the Disciplinary Council:           (German)           "... der Ausschuss, der das genannte Schreiben von Dr.   S.         offenbar ohne förmliche Beschlussfassung dem Disziplinarrat         ... gleichsam unter der Hand zugespielt haben dürfte ..."           (English translation)           "The executive council, which has apparently transmitted         Mr.   S.'s letter to the Disciplinary Council ... in a         somewhat clandestine manner without taking a formal decision         ..."   -        in a letter laying disciplinary charges against a colleague: that the colleague           (German)       i.   "...in nicht mehr zu überbietender Unverfrorenheit meint          er ...";      ii.   "... versucht hat, meine Mandantschaft durch ein plumpes         Überrumpelungs- und Einschüchterungsmanöver zur         Befriedigung einer nicht anerkannten Forderung zu bringen ..."           (English translation)       i.   "... with an unequalled impertinence he states..."      ii.   "... has made a crude attempt to intimidate my client         and to take him by surprise in order to make him comply         with an unrecognised claim..."           The applicant was furthermore found guilty of having failed to submit a declaration relating to his obligation to pay contributions for the years 1980, 1982 and 1983 to the Bar Association.           The applicant's appeal (Berufung) was rejected by the Supreme Appeals and Disciplinary Board for Lawyers (Oberste Berufungs- und Disziplinarkommission für Rechtsanwälte und Rechtsanwaltsanwärter) on 20 January 1986.           On 2 July 1987 the Constitutional Court (Verfassungsgerichtshof) partly quashed the decision as logically unfounded (denkunmöglich) insofar as the applicant had been found guilty of having impaired the honour and reputation of the profession by not having submitted reports relating to his duty to pay contributions.   This finding and the sanction therefore imposed constituted an unjustified interference with the applicant's right freely to exercise a profession (freie Erwerbsausübung).   The Constitutional Court found no violation of constitutional rights, insofar as the applicant was found guilty of further violations of his professional obligations.   In particular there was no violation of Articles 7 and 10 of the Convention.           On 1 February 1988 the Supreme Appeals and Disciplinary Board for Lawyers acquitted the applicant in compliance with the Constitutional Court's judgment with regard to the charge of not having paid contributions.   The applicant's appeal as to the remainder was rejected.   In respect of the offences previously established and not put in question by the Constitutional Court the applicant was now fined 50,000 AS.           The applicant again lodged a constitutional complaint which was rejected on 12 June 1989 (received by the applicant on 20 July 1989).   Insofar as the applicant had repeated the argument that his disciplinary punishment violated Article 7 para. 1 of the Convention as being based on vague and imprecise professional rules, the Constitutional Court referred to its earlier decision of 2 July 1987 in the applicant's case and to a decision of 30 June 1988.   Insofar as the applicant had raised a new argument, namely that the professional rules violated the principle of equality as guaranteed by Article 7 of the Austrian Constitution (B-VG), the Court pointed out that this provision did not exclude differential treatment based on objective criteria.     COMPLAINTS           The applicant maintains that his disciplinary punishment violates Articles 7 para. 1 and 10 para. 1 of the Convention.     THE LAW           The Commission first notes that the applicant's complaints under Articles 7 and 10 (Art. 7, 10) of the Convention were already held to be unfounded in the Constitutional Court's decision of 2 July 1987. It is true that on 2 July 1987 the Constitutional Court quashed the whole decision complained of, i.e. the judgment given on 20 January 1986 by the Supreme Appeals and Disciplinary Board for Lawyers.   The Constitutional Court made it clear, however, that insofar as the applicant had been found guilty of having made objectionable statements, his constitutional complaint was unfounded. Nevertheless the whole of the Appellate Court's decision had to be quashed as it did not follow from this decision to which extent the disciplinary sanction imposed on the applicant related to the part of his conviction which the Constitutional Court found to be in violation of constitutional rights.   The applicant was then, on 1 February 1988, again found guilty of having made objectionable statements.           In these circumstances it was obvious that a repeated constitutional complaint did no longer constitute an effective remedy as it had to be rejected by the Constitutional Court for the reasons already stated in its earlier decision given in the applicant's case.           A new argument raised by the applicant in his second constitutional complaint was rejected as being clearly ill-founded and the Commission finds that the applicant as a lawyer could not have expected that the new argument, namely an alleged violation of the principle of equality, offered any prospects of success.   In these particular circumstances the Commission considers that the judgment of 1 February 1988 given by the Supreme Appeals and Disciplinary Board for Lawyers was the final decision in the applicant's case, while the present application was lodged on 11 January 1990, that is, more than six months later.   The application has therefore been lodged out of time and must be rejected in accordance with Articles 26 and 27 para. 3 (Art. 26, 27-3) of the Convention.           For these reasons, the Commission by a majority           DECLARES THE APPLICATION INADMISSIBLE.     Secretary to the Commission                President of the Commission               (H.C. KRÜGER)                              (C.A. NØRGAARD)