CEDH · CASELAW;REPORTS;ENG — 22 octobre 1997

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The respondent Government were represented by Mr. F. Cede, Agent of the Austrian Federal Government.   4.   The case concerns the length of criminal proceedings and the right of access to court following the applicant's disbarment.   B.   The proceedings   5.   The application was introduced on 15 August 1990 and registered on 13 February 1991.   6.   On 31 August 1994 the Commission (First Chamber) decided, pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to give notice of the application to the respondent Government and to invite the parties to submit written observations on the admissibility and merits of the applicant's complaints under Article 6 par. 1 of the Convention with regard to the length of the criminal proceedings and the applicant's right to access to court. It declared the remainder of the application inadmissible.   7.   The Government's observations were submitted on 28 December 1994, after an extension of the time-limit fixed for that purpose. The applicant replied on 13 February 1995. On 4 July 1995 the Commission decided to grant the applicant legal aid for the representation of her case.   8.   On 28 February 1996 the Commission declared the remainder of the application admissible.   9.   The text of the Commission's decision on admissibility was sent to the parties on 18 March 1996 and they were invited to submit such further information or observations on the merits as they wished.   The Government submitted observations on 24 April 1996 to which the applicant replied on 31 May 1996.   10.   After declaring the case admissible, the Commission, acting in accordance with Article 28 para. 1 (b) of the Convention, also placed itself at the disposal of the parties with a view to securing a friendly settlement. Active consultations with the parties took place between 18 March 1996 and 20 July 1996. In the light of the parties' reaction, the Commission now finds that there is no basis on which such a settlement can be effected.   C.   The present Report   11.   The present Report has been drawn up by the Commission (First Chamber) in pursuance of Article 31 of the Convention and after deliberations and votes, the following members being present:       Mrs   J. LIDDY, President     MM   M.P. PELLONPÄÄ       E. BUSUTTIL       A. WEITZEL       L. LOUCAIDES       B. MARXER       B. CONFORTI       N. BRATZA       I. BÉKÉS       G. RESS       A. PERENIC       C. BÎRSAN       K. HERNDL       M. VILA AMIGÓ     Mrs   M. HION     Mr   R. NICOLINI   12.   The text of this Report was adopted on 22 October 1997 by the Commission and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.   13.   The purpose of the Report, pursuant to Article 31 of the Convention, is:     (i)   to establish the facts, and     (ii)   to state an opinion as to whether the facts found disclose a breach by the State concerned of its obligations under the Convention.   14.   The Commission's decisions on the admissibility of the application is annexed hereto.   15.   The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.   II.   ESTABLISHMENT OF THE FACTS   A.   Particular circumstances of the case     The criminal proceedings instituted against the applicant   16.   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.   17.   On 15 February 1980 the Vienna Regional Court (Landesgericht) issued a warrant 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.   18.   On 17 September 1980 the applicant and her former husband were arrested in Italy. On 24 September and 10 October 1980 the Vienna Regional Court issued two further warrants of arrest. On 20 November 1981 the applicant was extradited to Austria where she was remanded in custody until 29 November 1983.   19.   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.   20.   On 5 September 1985 the Vienna Regional Court informed the applicant that part of the proceedings had been discontinued on 28 March 1985.       21.   By a decision of 5 August 1986, the Vienna Regional Court admitted a request of the Public Prosecutor of 21 July 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.   22.   In these proceedings the Vienna Regional Court appointed an expert on 16 October 1986. In July 1987 this expert was replaced by another expert who after several extensions of time-limits submitted his expert opinion on 22 June 1988.   23.   On 30 August 1988 the main criminal proceedings were discontinued.   24.   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 events 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.   25.   The Public Prosecutor lodged a plea of nullity against this judgment which he later withdrew.   26.   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.     The applicant's disbarment     27.   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.   28.   On 28 May 1985 the Bar Committee declared the applicant's appeal (Vorstellung) against the decision to strike her off the roll inadmissible.   29.   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).   30.   On 8 July 1985 the Disciplinary Appeals Board declared the appeal inadmissible for lack of jurisdiction.   31.   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.   32.   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 following the final opening of bankruptcy proceedings until their final termination. 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 provided that the Bar Committee also exercised 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.   33.   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.   B.   Relevant domestic law   34.   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 ... following the final opening of bankruptcy proceedings until their final termination; ... (Die Berechtigung zur Ausübung der Rechtsanwaltschaft erlischt: ... durch die rechtskräftige Eröffnung des Konkurses bis zu seiner rechtskräftigen Aufhebung; ...).   35.   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 ... following 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; ...).     III.   OPINION OF THE COMMISSION   A.   Complaints declared admissible   36.   The Commission has declared admissible the applicant's complaints under article 6 para. 1 of the Convention that the criminal proceedings against her were not determined within a reasonable time and that the decision to strike her off the roll was not subject to a court review.   B.   Points at issue   37.   The points at issue in the present case are:     - whether the length of the proceedings complained of exceeded the "reasonable time" requirement referred to in Article 6 para. 1 (Art. 6-1) of the Convention, and     - whether the applicant was denied access to court in relation to the question of her disbarment contrary to Article 6 para. 1 (Art. 6-1) of the Convention.   C.   As regards the length of the criminal proceedings and its compliance with article 6 para. 1 (Art. 6-1) of the Convention   38.   Article 6 para. 1 (Art. 6-1) of the Convention,   insofar 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 ..."   39.   The applicant submits that the criminal proceedings against her have lasted for more than ten years and cannot be regarded as "reasonable" within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention. The applicant points out that the criminal proceedings instituted against her were subsequently split up into three separate sets of proceedings of which two sets were discontinued in 1985 and 1988 respectively. However, according to her,   the three sets of proceedings were inextricably linked to each other and cannot be considered separately.   40.   The delays which occurred in the proceedings had to be attributed to the authorities. The facts were clear and the relevant documents had been at the disposal of the judicial authorities. As to delays which occurred in relation to the establishment of an expert opinion, she submits that she did not contribute in any way to this delay, since the expert opinion did not concern the charges brought against her, but against her husband.   41.   The Government submit that the proceedings instituted against the applicant consisted of three separate sets of criminal proceedings. Only the proceedings in which the applicant was acquitted, are at issue. 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 had to be heard, some of them 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 substantial delays were imputable to them, whereas important delays had 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. 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.   42.   The Commission agrees with the applicant that the three sets of proceedings complained of were indissociable. The proceedings which began on 5 August 1986 with the decision of the Vienna Regional Court to extend the indictment to another offence committed between 1975 and 1979, must be regarded as the third stage of the proceedings which began   on 4 January 1978, when preliminary investigations were instituted against the applicant. This view is confirmed by the judgment of the Vienna Regional Court of 28 September 1989 covering events which had occurred between 1975 and 1979.   43.   The Commission recalls that the right, in criminal matters, to a hearing within a reasonable time covers the initial period of investigations starting at the moment the person was "charged" irrespective of whether his case has come before a trial court or not (Eur. Court HR, Deweer v. Belgium judgment of 27 February 1980, Series A no. 35, pp. 21 et seq., paras. 41-47).   44.   The period to be taken into consideration thus started on 4 January 1978, when preliminary investigations were instituted against the applicant. The proceedings terminated on 20 March 1990 when the judgment by which she was acquitted became final. The proceedings thus lasted for approximately twelve years.   45.   The reasonableness of the length of proceedings is to be determined with reference to the criteria laid down in the Court's case-law and in the light of the circumstances of the case, which in this instance call for an overall assessment (Eur. Court HR, Messina v. Italy judgment of 26 February 1993, Series A no. 257-H, p. 103, para. 26).   46.   The Commission finds that the matter must be regarded as rather complex, taking into account that the proceedings were first instituted against various other persons including the applicant's husband. Further, it appears that the applicant undoubtedly contributed to the length of the proceedings by fleeing to Italy. Taken separately, the different phases of the proceedings were, in addition, conducted at a regular pace, apart from some periods of delay attributable to the authorities, in particular with regard to the submission of an expert opinion, which took approximately one year and eight months (from 16 October 1986 to 22 June 1988) in the proceedings which ended with the applicant's acquittal. If the case is examined as a whole however, the Commission considers that a period of approximately twelve years for the conclusion of the criminal proceedings against the applicant is excessive (see also Eur. Court HR, Ferrantelli and Santangelo v. Italy judgment of 7 August 1996, Reports of Judgments and Decisions 1996-III, pp. 948-949, para. 42).   47.   In the light of the criteria established by case-law and having regard to the circumstances of the present case, the Commission finds that the length of the proceedings failed to meet the "reasonable time" requirement.     CONCLUSION   48.   The Commission concludes, unanimously that in the present case there has been a violation of Article 6 para. 1 (Art. 6-1) of the Convention on account of the length of the criminal proceedings.   D.   As regards the question of access to court, as secured by Article 6 para. 1 (Art. 6-1) of the Convention, following the applicant's disbarment   49.   Article 6 para. 1 (Art. 6-1) of the Convention, insofar as relevant, reads as follows:     "In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing ... by (a) ... tribunal ..."   50.   The applicant submits that she was denied access to court as the decision of the bar to strike her off the roll was not subject to judicial review. She points out that Section 34 para. 1 (a) 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, however, not contained in Section 34 of the Practising Lawyers Act then in force. 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.   51.   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 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 practise 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.   52.   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 practise terminates automatically in accordance with the law, namely by virtue of Section 34 of the Practising Lawyers Act.   53.   The decision of the bar therefore was of a purely declaratory 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.   54.   The Commission recalls that Article 6 para. 1 (Art. 6-1) secures to everyone the right to have any claim relating to his civil rights and obligations brought before a court or tribunal (Eur. Court HR, Golder v. the United Kingdom judgment of 21 February 1975, Series A no. 18, p. 18, para. 36).   55.   The Commission further recalls that the expression "civil rights and obligations" in Article 6 para. 1 (Art. 6-1) of the Convention has been interpreted by the European Court of Human Rights to mean, first that the evidence must disclose the existence of a "contestation" or dispute, secondly, that the dispute must relate to civil rights and obligations or, in other words, that the result of the proceedings must be directly decisive for such rights and obligations which can be said, at least on arguable grounds, to be recognised under domestic law (Eur. Court HR, Le Compte, Van Leuven and De Meyere v. Belgium judgment of 23 June 1981, Series A no. 43, pp. 19-21, paras. 41-50; H. v. Belgium judgment of 30 November 1987, Series A no. 127-B, p. 31, para. 40).   56.   The first point which needs to be resolved concerns the question whether or not a "contestation" or dispute existed between the applicant and her professional organisation.   57.   The Commission notes that Section 34 para. 1 (a) of the Practising Lawyers Act then in force permitted the striking off of a practising lawyer following the final opening of bankruptcy proceedings against him until their final termination. The ground invoked for the applicant's disbarment, namely the lack of sufficient means to cover bankruptcy proceedings, was not expressly contained in Section 34 para. 1 (a) of the Practising Lawyers Act. This ground was subsequently included in that provision in the 1990 version of the Practising Lawyers Act.   58.   The Commission finds that in these circumstances a "contestation" or dispute existed between the applicant and her professional organisation as to whether Section 34 para. 1 (a) of the Practising Lawyers Act then in force could be extended to cover a case where the opening of bankruptcy proceedings had been refused for lack of sufficient means. The Bar Committee's decision resulted in the applicant's name being removed from the roll of barristers. There can be no doubt therefore that the applicant's right to practise as a barrister was directly in issue before the Bar Committee.   59.   As to the second element of whether the determination of the dispute in the present case was directly decisive for the applicant's civil rights and obligations, the Commission's refers to its established case-law according to which the right to continue to exercise the profession of a lawyer is a civil right (cf. No. 12502/86, Dec. 9.3.88, D.R. 55, p. 251; No. 12458/86, Dec. 18.1.89, D.R. 59, p. 113; see also Eur. Court HR, H. v. Belgium judgment, cited above, p. 34, para. 48 and de Moor v. Belgium judgment of 23 June 1994, Series A no. 292-A, p. 16, para. 47).   60.   Accordingly, the Commission considers that Article 6 para. 1 (Art. 6-1) of the Convention applies to the proceedings at issue.   61.   The Commission recalls that the decision of the Bar Committee for Vienna, Lower Austria and Burgenland of 30 April 1985, by which the applicant was struck off the roll, was not open to review as to its lawfulness by either ordinary or administrative courts, or by any other body which could be considered a "tribunal" for the purposes of article 6 para. 1 of the Convention. Consequently, the applicant did not have at her disposal a procedure satisfying this provision.     CONCLUSION   62.   The Commission concludes, unanimously, that there has been a violation of Article 6 para. 1 (Art. 6-1) of the Convention.   E.   Recapitulation   63.   The Commission concludes, unanimously, that there has been a violation of Article 6 para. 1 (Art. 6-1) of the Convention with regard to the length of the criminal proceedings brought against the applicant.   64.   The Commission concludes, unanimously, that there has been a violation of Article 6 para. 1 (Art. 6-1) of the Convention with regard to the absence of judicial review concerning the decision of the applicant's disbarment.     M.F. BUQUICCHIO             J. LIDDY      Secretary             President    to the First Chamber         of the First Chamber