CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 2 décembre 1992

.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. 17917/91                       by J.P.C.                       against Austria           The European Commission of Human Rights (Second Chamber) sitting in private on 2 December 1992, the following members being present:                MM.   S. TRECHSEL, President of the Second Chamber                   G. JÖRUNDSSON                   A. WEITZEL                   J.-C. SOYER                   H. G. SCHERMERS                   H. DANELIUS              Mrs. G. H. THUNE              MM.   F. MARTINEZ                   L. LOUCAIDES                   J.-C. GEUS                Mr.   K. ROGGE, Secretary to the Second 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 17 January 1991 by J.P.C. against Austria and registered on 14 March 1991 under file No. 17917/91;         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, born in 1928, is an Austrian national resident in Innsbruck. He is a lawyer by profession.   Particular circumstances of the case         On 13 June 1986 the Disciplinary Council (Disziplinarrat) of the Tyrol Lawyers' Association (Rechtsanwaltskammer) imposed a fine of AS 8,000 upon the applicant for having impaired the honour and reputation of the lawyers' profession (Beeinträchtigung von Ehre und Ansehen des Standes). The Disciplinary Council found that the applicant had failed to comply with a client's request to provide her with detailed information about his bill amounting to almost AS 160,000, and about payments of the opposing party. Furthermore, in a letter, he had urged her not to insist on her request for information. The Council considered that a lawyer had to be particularly correct with regard to his fee claims. A lawyer had to give detailed information as to his claims and thus avoid any impression of lacking transparency. The applicant was acquitted of the reproach of having charged the client concerned excessive fees.         On 19 December 1986 the Disciplinary Council of the Tyrol Bar Association imposed a fine of AS 5,000 upon the applicant for having breached his professional obligations and having impaired the honour and reputation of the lawyers' profession. The Council found that he had requested persons who intended to conduct negotiations with his clients in his office to sign a declaration that they had to reimburse any legal expenses incurred by the applicant in case of failure of the negotiations. The applicant had failed to clarify his intention that reimbursement of such expenses would only be requested in case of negligence on the part of the third persons concerned. The Council considered that the applicant had thereby contravened his professional duty duly to inform and advise third persons entering into contractual negotiations with his clients on the premises of his office.         The applicant lodged appeals against both decisions. As regards the decision of 13 June 1986 he submitted inter alia that he had not been promptly informed about the reproach of having breached his duty of proper accounting, and thus had not been able properly to defend himself.         On 6 July 1987 the High Appeals and Disciplinary Board (Oberste Berufungs- und Disziplinarkommission) dismissed the applicant's appeals. The Board, referring to its constant case-law, considered that, in matters concerning fees and expenses, a lawyer ought to be scrupulously correct. The Board also found that the examination of disciplinary reproaches could be extended at the hearing before the Disciplinary Council; moreover, the applicant had not objected thereto at the hearing and had presented extensive arguments on this point.         On 30 June 1988 the Austrian Constitutional Court (Verfassungs- gerichtshof), upon the applicant's complaint, quashed the decisions against the applicant. The Constitutional Court found that the disciplinary sanctions had been based on S. 2 of the Disciplinary Code (Disziplinarstatut) which referred to professional duties as a general notion (unbestimmter Rechtsbegriff) the contents of which was sufficiently defined in the context of the general opinion and the constant practice of the profession concerned. Disciplinary sanctions imposed under this provision were in conformity with Article 7 of the Convention, if they concerned a breach of professional duties or an impairment of the honour or reputation of the profession which resulted with sufficient clarity from legal provisions or the previous case-law on disciplinary matters. The disciplinary decisions against the applicant had not sufficiently qualified the professional obligations breached by the applicant.         On 17 April 1989 the High Appeals and Disciplinary Board, with regard to the applicant's appeal against the decision of 13 June 1986, acquitted him to the extent that he had been reproached with having urged a client not to insist on a detailed bill, and reduced the fine in this respect to AS 5,000. The remainder of the appeals was dismissed. The Board, referring in particular to S. 2 of the Disciplinary Code and its constant case-law as well as S. 9 of the Lawyers' Code (Rechtsanwaltsordnung), considered that a lawyer had the duty to draft legal documents, especially standard forms, with sufficient clarity and precisely so that third persons not assisted by counsel would not be in doubt about their contractual obligations and thus placed at a disadvantage. Moreover, in accordance with S. 2 of the Disciplinary Act and the Board's constant case-law as well as the general duty to account under S. 1012 of the Civil Code (Allgemeines Bürgerliches Gesetzbuch), a lawyer was obliged to be particularly accurate in matters concerning his claims for fees.         On 26 November 1990 the Constitutional Court dismissed the applicant's further complaint. The Constitutional Court considered in particular that the High Appeals and Disciplinary Board, in its decision of 17 April 1989, had defined the professional obligations in question with sufficient precision. The decision was served upon the applicant on 15 January 1991.   Domestic law         The Austrian Lawyers' Code (Rechtsanwaltsordnung) regulates the professional duties of lawyers in SS. 9 et seq., inter alia his duty to practise with care, faithfully and conscientiously, to keep professional secrecy, to show honesty and integrity and thus secure the honour and dignity of his profession. S. 33 provides that the lawyers' profession   (Rechtsanwaltsstand) is independent of the judiciary, and that disciplinary powers in respect of lawyers and trainee lawyers are to be exercised by organs of the profession. The proceedings are laid down by the legislature in the Disciplinary Code for Lawyers and Trainee Lawyers (Disziplinarstatut).         S. 1 of this Disciplinary Code provides that a lawyer who negligently or intentionally breaches his professional duties or, whether in pursuit of his profession or otherwise, behaves in such a manner as to impair the honour or reputation of the profession of lawyers, commits a disciplinary offence (Disziplinarvergehen), which is dealt with by the Disciplinary Council (Disziplinarrat). Under S. 16 of this Code, disciplinary penalties (Disziplinarstrafen) are the written admonition, a fine not exceeding AS 500,000, the suspension of the right to practise for a period not exceeding one year, or the exclusion from the Bar.     COMPLAINTS   1.     The applicant complains under Article 7 of the Convention that the disciplinary sanctions imposed on him were not based upon a clear legal provision.   2.     The applicant complains under Article 6 para. 3 of the Convention that he was not promptly informed about one of the charges against him, and thus could not properly prepare his defence.     THE LAW   1.     The applicant complains that the disciplinary decisions against him under S. 2 of the Disciplinary Code were not based upon a clear legal provision within the meaning of Article 7 (Art. 7) of the Convention.         Article 7 para. 1 (Art. 7-1), first sentence, reads as follows:         "No one shall be held guilty of any criminal offence on account       of any act or omission which did not constitute a criminal       offence under national or international law at the time when it       was committed."         The Commission, assuming that the disciplinary sanctions complained of fall into the criminal sphere, observes that Article 7 para. 1 (Art. 7-1) confirms the general principle that legal provisions interfering with individual rights must be adequately accessible, and formulated with sufficient precision to enable the citizen to regulate his conduct. However, many laws are inevitably couched in terms which, to a greater or lesser extent, are vague and whose interpretation and application are questions of practice (cf. Eur. Court H.R., Sunday Times judgment of 26 April 1979, Series A No. 30, p. 31, para. 49; No. 8710/79, Dec. 7.5.82, D.R. 28 p. 77).         The Commission notes that the decisions of the Disciplinary Board of the Tyrol Lawyers' Association of 13 June and 19 December 1986, as confirmed by the High Appeals and Disciplinary Council on 17 April 1989, were based on S. 2 of the Disciplinary Code for Lawyers which defines as a disciplinary offence the breach of professional duties or impairment of the honour or reputation of the profession. The applicant was found guilty of having breached his professional duties of proper accounting and of precise drafting of legal documents in the interest of persons entering into contractual obligations at his law office. The High Appeals and Disciplinary Council, in its decision of 17 April 1989, set out in detail the applicant's professional misconduct within the meaning of this provision, as applied in its constant case-law, and the general duties of lawyers as laid down in the Lawyers' Code. The Constitutional Court found that disciplinary sanctions imposed under S. 2 of the Disciplinary Code were in conformity with Article 7 (Art. 7) of the Convention, if they concerned a breach of professional duties or an impairment of the honour or reputation of the profession which resulted with sufficient clarity from legal provisions or the previous case-law on disciplinary matters. The decision of 17 April 1989 clearly established the professional rules and standards applied in the applicant's case.         The Commission considers that the elements of the disciplinary offence under S. 2 of the Disciplinary Code for Lawyers were established in the relevant provisions of the Lawyers' Code and in particular in the case-law of the disciplinary bodies concerned. In the present case, the High Appeals and Disciplinary Council has not exceeded the limits of a reasonable interpretation of S. 2 of the Disciplinary Code.         Consequently, the Commission finds no appearance of a violation of Article 7 para. 1 (Art. 7-1) of the Convention.         It follows that this part of the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.     The applicant also complains under Article 6 para. 3 (b) (Art. 6-3-b) of the Convention that in the course of the disciplinary proceedings against him he was not promptly informed about one of the charges against him, and thus could not properly prepare his defence.         The Commission, assuming the applicability of Article 6 (Art. 6), notes that at the hearing before the Disciplinary Council on 13 June 1986, the proceedings against the applicant were extended to the question of his failure to comply with his client's request for accounting. This matter was one element of two further reproaches as regards his fee claims against this client. The High Appeals and Disciplinary Council, in its decision of 6 July 1987, noted that the applicant had not objected to the extension of the proceedings and had presented extensive arguments on this point.         In these circumstances, the Commission finds that the applicant, a lawyer, failed to show that he could not duly prepare and present his defence in the disciplinary proceedings against him, or that these proceedings were otherwise not fair within the meaning of Article 6 (Art. 6).         It follows that this part of the application is also manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.           For these reasons, the Commission, unanimously,         DECLARES THE APPLICATION INADMISSIBLE.     Secretary to the Second Chamber        President of the Second Chamber           (K. ROGGE)                            (S. TRECHSEL)