CASE OF GRAZIANI-WEISS v. AUSTRIA
No violation of Art. 4;No violation of Art. 14+4
András Sajó;David Thór Björgvinsson;Elisabeth Steiner;Françoise Tulkens;Giorgio Malinverni;Guido Raimondi
5. The applicant was born in 1963 and lives in Linz. 6. The applicant is a practising lawyer. In July 2005 the applicant was informed by the Linz District Court that it planned to appoint him as legal guardian (Sachwalter) for K, who was suffering from a mental illness, and asked him to comment on the proposal. According to the document supplied by the court, there were no known relatives of K who could become guardians, and the association of guardians (Verein für Sachwalterschaft) had informed the court that it lacked the capacity to take over guardianship. 7. The applicant submitted comments, stating that his wife objected to the proposal, since K might call the applicant at weekends and disturb their family life. His professional and spare-time activities would also not allow him to take on another duty. He added that he was not trained to deal with persons with a mental illness such as K and was not interested in acquiring the necessary training either. Furthermore, he argued that his professional insurance would not cover the risks associated with being a legal guardian; therefore, he would have to enter into a separate insurance agreement. The costs would have to be borne by K, who – according to the court file which the applicant had received – did not appear to have the money to cover them. 8. By a decision of the Linz District Court of 15 September 2005 the applicant was appointed as legal guardian for K in matters of management of income and representation before the courts and other authorities. The court found that no other person, such as a relative, was suitable to be K’s legal guardian. The association of guardians did not have the capacity to appoint a legal guardian for K. The applicant was the next person on the list of possible legal guardians. This list, which is kept by the Linz District Court, contains the names of all lawyers and public notaries in the district. The court also found that the reasons submitted by the applicant were not sufficient to justify his refusal; it held that neither having two children, nor leading a church choir, nor being member of a supervisory board constituted a valid reason as to why he should be declared unsuitable for the task. The court also held that the duty for lawyers to act as legal guardians did not constitute forced labour, as helping weaker members of society was a civic duty and for practising lawyers, rendering help in legal matters was part of their core professional duties and was comparable to a normal civic obligation within the meaning of Article 4 § 2 of the Convention. 9. The applicant appealed against the decision to the Linz Regional Court, arguing that if the duty were to constitute a normal civic obligation, it was discriminatory to put only lawyers and public notaries on the list, as other persons also had knowledge of law, such as judges, public servants who had studied law or lawyers working in companies. He also alleged that the tasks he had been ordered to perform did not require special legal knowledge as any adult person could manage their income; he further claimed that no court proceedings in which K was a party were pending, and thus it was not necessary to appoint a practising lawyer as his guardian. 10. On 15 December 2005 the Linz Regional Court upheld the decision of the Linz District Court, holding that there was at least one trial involving K pending, and that any other tasks the applicant would have to perform in the present case were limited and did not place an excessive burden on him. 11. The applicant lodged an extraordinary appeal on points of law to the Supreme Court, alleging a violation of Article 14 in conjunction with Article 4 of the Convention, as only lawyers and their associates (Rechtsanwaltsanwärter) and public notaries and their associates (Notariatskandidaten), but no other persons who had studied law, were placed on the list of possible guardians. He also complained that lawyers were in principle entitled to remuneration for their services, but this applied only in so far as this would not endanger the fulfilment of the basic needs of the person placed under guardianship. By a decision of 7 March 2006 the Supreme Court refused to deal with the matter, finding that it did not raise an important question of law. 12. The rules on guardianship are contained in the Civil Code (Allgemeines Bürgerliches Gesetzbuch), the relevant part of which was recently amended, and the Non-Contentious Proceedings Act (Außerstreitgesetz). 13. The law in force at the relevant time provided that adult persons of unsound mind who could not handle all or some of their own affairs without the risk of disadvantages for them should be placed under guardianship (section 273 of the Civil Code). 14. There were varying degrees of guardianship, ranging from a duty to carry out one specific transaction or enforce or contest a specific claim, to the carrying out of certain types of duties, such as management of a person’s entire assets or parts thereof, or taking care of all the affairs of the person concerned (section 272 of the Civil Code). 15. Placement under guardianship was not permissible if and in so far as the person concerned could take care of his or her affairs to a sufficient degree with assistance, especially from the family or from institutions for people with disabilities (section 273 § 2 of the Civil Code). 16. Section 281 of the Civil Code provided that guardians should be persons close to the persons placed under guardianship, unless the wellbeing of the person concerned required otherwise (§ 1); if this was beneficial to the well-being of a person under guardianship, a person from a guardians’ association should be nominated as a guardian, where possible (§ 2). If taking care of the affairs of the person concerned required considerable knowledge of law, a practising lawyer (or lawyer’s associate) or public notary (or notary’s associate) was to be appointed as guardian (§ 3). 17. Section 282 § 2 of the Civil Code provided that the guardian should be in contact with the person under guardianship and should try to ensure that medical and social assistance was given to the person concerned. 18. A person whom the court planned to appoint as a guardian had to notify the court of any circumstances that might prevent him or her from carrying out the task. A particularly suitable person – according to the caselaw, a person belonging to the groups mentioned in section 281 § 3 of the Civil Code (see paragraph 16 above) – could refuse to carry out the task only if it was unacceptable to him or her (section 189 §§ 1 and 2 of the Civil Code). 19. The guardian was entitled to remuneration, fees and reimbursement of expenses. If the guardian used his special professional knowledge and skills for tasks for which the services of another person would otherwise have to be engaged, the guardian was entitled to adequate remuneration for these tasks. Remuneration could only be granted in so far as the basic needs of the person under guardianship could still be satisfied from the person’s income (sections 266 and 267 of the Civil Code). 20. Section 130 of the Non-Contentious Proceedings Act (Außerstreitgesetz) provided that a guardian had to report to the court about contacts with the person concerned, the life the person led and the person’s physical and mental state. The reports had to be drawn up at reasonable intervals, at least once every three years. The court could also require the guardian to draw up a report. Further duties listed in the Non-Contentious Proceedings Act concerned the keeping of accounts for the assets and income of the person under guardianship; the statements of account were subject to the court’s approval. 21. Rule 86 § 2 of the Rules of Procedure of Courts of First and Second Instance (Geschäftsordnung für die Gerichte I. und II. Instanz) provides that each court has to have a list of lawyers and public notaries acting in the appropriate district; courts have to ensure that there is a reasonable alternation in the persons appointed as guardians. 22. The Lawyers Act (Rechtsanwaltsordnung) contains the following provisions on the rights and duties of practising lawyers in Austria: “(1) The right of a lawyer to represent parties shall extend to all courts and authorities of the Republic of Austria and shall include the authority to represent parties in a professional capacity in all judicial and extrajudicial and in all public and private matters. ... (2) The authority to provide comprehensive professional representation to parties within the meaning of subsection (1) above shall be reserved for lawyers. This is without prejudice to the professional powers deriving from the Austrian regulations governing the professions of notaries, patent agents, chartered accountants and civil engineers.” “(1) Before being admitted to practise, all lawyers shall be required to furnish proof to the Executive Committee of the Bar Association that they have taken out civilliability insurance with an insurance company authorised to carry on business in Austria to cover any claims for damages that may be brought against them as a result of their professional activities. They shall maintain the insurance cover throughout the duration of their professional activities and shall furnish proof thereof to the Bar Association on request.”