CEDH · CASELAW;CLIN;ENG — 18 octobre 2011

.s3ABFC313 { font-size:10pt } .sEB86A30B { margin-top:0pt; margin-bottom:14pt; page-break-after:avoid } .sBB9EE52A { font-family:Arial } .sA241FE93 { margin-top:0pt; margin-bottom:18pt; text-align:justify; page-break-after:avoid; border-bottom:0.75pt solid #000000; padding-bottom:1pt } .s2EF62ED2 { margin-top:0pt; margin-bottom:0pt; font-size:12pt } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s29100277 { font-family:Arial; font-weight:bold } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s8F2B0B1B { margin-top:12pt; margin-bottom:12pt; page-break-after:avoid; font-size:12pt } .s9FF10068 { margin-top:0pt; margin-bottom:12pt } .sA36B60A1 { font-family:Arial; font-style:italic } .s5F48796F { margin-top:12pt; margin-bottom:0pt; text-align:justify } .s5CB9E8AB { margin-top:12pt; margin-bottom:0pt; text-align:justify; border-bottom:1pt solid #000000; padding-bottom:1pt } .sDF790F1E { margin-top:12pt; margin-bottom:0pt; text-align:center } .s7ED160F0 { text-decoration:none } .s3DC36BA9 { font-family:Arial; text-decoration:underline; color:#0069d6 } Information Note on the Court’s case-law No. 145 October 2011 Graziani-Weiss v. Austria - 31950/06 Judgment 18.10.2011 [Section II] Article 4 Article 4-2 Forced labour Obligation for lawyer to act as unpaid guardian to a mentally ill person: no violation   Article 14 Discrimination Obligation for lawyer to act as unpaid guardian to a mentally ill person: no violation   Facts – A district court held a list of possible legal guardians containing the names of all practising lawyers and public notaries in the district. Since the local association of guardians did not have the capacity to appoint a legal guardian for a mentally ill person who had no close relatives, the court appointed the applicant, whose name had been the next on the list, as her guardian in matters of management of income and representation before the courts and other authorities. The applicant complained that his professional and free-time activities did not allow him to take on such a task and that listing only lawyers and public notaries and excluding other persons who possessed knowledge of law from the list of potential guardians had been discriminatory. His appeals were dismissed. Law – Article 4: Given that Article   4 offered no definition of “forced or compulsory labour”, the Court took as a starting point the definition from the International Labour Organization Convention No.   29 which defines this term as “all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily”. In the applicant’s case it had not been disputed that the refusal to act as a guardian could give rise to disciplinary sanctions and that there existed the element of the “menace of a penalty”. However, representation of a person before courts and other administrative authorities was not outside the ambit of the normal activities of a practising lawyer and the applicant must have been aware that he might in the future be called upon to act as somebody’s guardian. There had therefore been an element of prior consent to such tasks. The applicant had not alleged that there were a significant number of cases in which he had to act as a guardian or that acting as the mentally ill person’s guardian was particularly time-consuming or complex. The burden placed on the applicant had, therefore, not been disproportionate and the service the applicant had been required to perform did not constitute forced or compulsory labour. Conclusion : no violation (unanimously). Article 14 in conjunction with Article   4: The main activities of practising lawyers consisted of representing clients before the courts and various other authorities, for which they had received special training and passed appropriate examination. Other persons who had studied law, but who were not practising lawyers, were not allowed to represent parties before the courts in cases where representation was mandatory. It was also possible that they did not work in a law-related field. Even though there had undeniably been a difference in treatment between practising lawyers and notaries on the one hand, and other legally trained persons on the other, for the purposes of their appointment as a guardian in cases where legal representation was necessary, members of these two groups were not in relevantly similar situations. Conclusion : no violation (unanimously).   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes