CASE OF KLEIN v. AUSTRIA
Violation of P1-1;Just satisfaction reserved
Anatoly Kovler;Christos Rozakis;Ewald Wiederin;George Nicolaou;Khanlar Hajiyev;Peer Lorenzen
7. The applicant is a former lawyer who was born in 1932 and lives in Vienna. 8. On 24 March 1964 he was admitted to the bar and started to practice as a lawyer in Vienna. 9. On 15 November 1995 the Disciplinary Council (Disziplinarrat) of the Vienna Chamber of Lawyers (Rechtsanwaltskammer) provisionally suspended the applicant's right to practice and on 18 December 1995 bankruptcy proceedings were opened against him. Taking note of that fact, on 23 January 1996 the Executive Committee of the Chamber of Lawyers (Ausschuß der Rechtsanwaltskammer) decided that the applicant had lost his right to practise as a lawyer pursuant to section 34(1a) of the Practising Lawyers Act (Rechtsanwaltsordnung). This provision, as in force at that time, provided 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. It further appears that, in connection with the bankruptcy proceedings, the applicant was convicted of embezzlement by the Vienna Regional Court on 28 January 1997 and sentenced to four years imprisonment and on 28 October 1997 an additional sentence of one year was imposed on him. 10. On 31 March 1996 the applicant asked the Chamber of Lawyers to strike him out of the List of Lawyers (Rechtsanwaltsliste) for health reasons. On 30 April 1996 the Chamber of Lawyers informed the applicant that it had taken note of his request. However, the Government submitted that the plenary assembly of the Chamber of Lawyers had struck the applicant out of the List of Lawyers on 16 April 1996. The applicant though submitted that no such decision had been taken by the plenary assembly. 11. It appears that the Chamber of Lawyers continued to address invoices for membership fees (including contributions to the pension fund) to the applicant until August 1997. The Government submitted that those requests were based on a clerical error by the Chamber's administration and that the respective invoices were subsequently declared void. 12. On 4 August 1997 the applicant made an application to the Vienna Chamber of Lawyers asking it to grant him an old-age pension. In his request he referred to the fact that he had practised as a lawyer between 1964 and 1995. 13. On 16 June 1998 Division IV of the Executive Committee of the Chamber of Lawyers (Ausschuß der Rechtsanwaltskammer) dismissed the applicant's application. It found that, under the relevant provisions of the Statute of the Chamber of Lawyers Pension Fund, an old-age pension is granted to a lawyer when he or she reaches the retirement age, that is, sixtyfive years old. However, he or she must also have renounced his or her right to practise as a lawyer. Given that, before he reached the retirement age, the applicant had already lost his right to practice as a lawyer, he was not entitled to an old-age pension. 14. On 3 July 1998 the applicant filed an objection (Vorstellung). He submitted that the above-mentioned decision had been unlawful. If, however, the findings of Division IV were correct, the regulations on the entitlement to an old-age pension were unconstitutional because the decision to refuse him a pension after he had paid contributions to the pension fund for more than thirty-two years had been arbitrary. 15. On 14 July 1998 the Plenary of the Executive Committee rejected the objection. It observed that the bankruptcy proceedings which had been opened against the applicant were still pending and the applicant could not claim a pecuniary right without the consent of the receiver. Given that the applicant's objections had been filed without the consent of the receiver, the objection had had to be rejected. 16. On 4 September 1998 the applicant lodged a complaint with the Administrative Court against the above-mentioned decision. 17. On 15 February 1999 the Administrative Court quashed the Plenary decision of 14 July 1998. It found that a pension claim was not one of the claims falling entirely under the list of assets which were subject to bankruptcy proceedings. Accordingly, the applicant himself had had the right to file an objection. 18. On 23 March 1999 the Plenary of the Executive Committee decided again on the applicant's objection. It found that, under the relevant provisions of the Statute of the Chamber of Lawyers Pension Fund, the person applying for the pension must, when reaching the retirement age, still be a member of the Chamber. Given that, before reaching the retirement age, the applicant had lost his membership of the Chamber because he had also lost his right to exercise his profession, he was not entitled to a pension. 19. On 25 May 1999 the applicant lodged a complaint with the Constitutional Court in which he argued that the decision of the Chamber of Lawyers had violated the principle of equality and his right to peaceful enjoyment of his possessions. At the same time he also lodged a complaint with the Administrative Court. 20. On 6 July 1999 the Administrative Court dismissed the applicant's complaint. It found that the applicant would have had a right to an old-age pension only if 1) he had reached the retirement age and 2) he had still been enrolled in the List of Lawyers of the Austrian Chamber of Lawyers at that time. While the applicant had met the first condition, he had not met the second condition because bankruptcy proceedings had been opened against him which had led ex lege to the applicant loosing his right to practice and, thereby, loosing his membership of the Chamber of Lawyers. 21. On 6 October 1999 the Constitutional Court refused to deal with the applicant's case because it would not have had any prospect of success. 22. The rules governing the exercise of the profession of a lawyer are set out in the Lawyer's Act (Rechtsanwaltsordnung). Section 50 of the Lawyer's Act, as amended in 1973 (Lawyer's Act Amendment Act), provided a lawyer with a right to an old-age pension, or, under certain conditions, for a pension for his or her surviving spouse or descendants. The main principles for pension schemes for lawyers are set out in section 50(2) of the Lawyer's Act. According to these principles, only someone who is inscribed in the List of Lawyers of a regional Chamber of Lawyers at the time that he or she reaches the retirement age is entitled to an old-age pension; he or she must have been inscribed on the List for a period of ten or fifteen years before reaching the retirement age; the retirement age is fixed at sixty-eight years and upon reaching that age, a lawyer must renounce his or her right to exercise the profession. Further conditions are set out for pensions on account of incapacity to exercise the profession, widows' or widowers' pension and pensions for descendants. Under section 50(3), the regional Chambers of Lawyers are free to fix more favourable conditions for their own pension scheme. 23. The detailed regulations, as set out in the statues of the pension schemes (Versorgungseinrichtungen) adopted by the plenary assembly of the Vienna Chamber of Lawyers, repeat the conditions under section 50(2) of the Lawyer's Act. The Vienna Chamber of Lawyers has not made use of the possibility under section 50(3) to fix more favourable rules with the exception of fixing the retirement age at sixty-five years. 24. The pension scheme is financed by compulsory contributions from the members of the pension fund, the amount of which is fixed by the plenary assembly of the Chamber of Lawyers and roughly calculated on the basis of the payments to beneficiaries out of the pension fund. 25. The fund has also another source of income. Under Austrian Law, lawyers do not receive individual payments for services rendered in the context of legal aid. However, as a compensation for the services rendered by all lawyers, the State pays an annual lump sum which is divided among the regional Chambers of Lawyers and put into the pension funds. 26. For 1998 the annual contribution to the pension scheme were fixed at 40,000 Austrian schillings (ATS, approximately EUR 2,900) per member and the old age pension at ATS 23,000 (approximately EUR 1,670) payable fourteen times per year. For 1999 the contributions were fixed at ATS 61,000 (approximately EUR 4,430), reduced contributions for members under 32 years at ATS 40,000 (approximately EUR 2,900) and increased contributions for lawyers who were older than 50 years when inscribed in the List of Lawyers for the first time at ATS 71,000 (approximately EUR 5,160). Pension payments for 1999 were fixed at ATS 24,000 (approximately EUR 1,745) payable fourteen times per year. Pension payments were regularly increased over the years and the amount fixed for 2006 was EUR 2,030. 27. By a federal act of 28 October 2003 (Federal Law Gazette I no. 93/2003), which entered into force on 1 January 2004, the pension regime of lawyers was amended. The new system of old-age pensions, as provided for in sections 49 and 50 of the Lawyer's Act, provides that being inscribed in the List of Lawyers at the time of reaching the retirement age is no longer a condition which must be met in order for an old-age pension to be granted. Old-age pensions are now also granted to persons formerly inscribed on the List of Lawyers and, provided that contributions have been made for a minimum time, they are calculated using a formula which takes into account the amount of contributions paid and the period during which they have been paid. 28. On 3 December 2003, in an extraordinary meeting, the plenary assembly of the Vienna Chamber of Lawyers amended the statutes of its pension scheme following the introduction of the above-mentioned rules. 29. Under the transitory provisions of section 18 of the Vienna statues of the pension scheme, the new provisions apply only to lawyers claiming an old-age pension whose right to exercise the profession had not been withdrawn before the amendment entered into force.