CASE OF MALEK v. AUSTRIA
Violation of Art. 6-1 with regard to the length of the proceedings;Inadmissible under Art. 6-1 with regard to the other complaints;Non-pecuniary damage - financial award;Costs and expenses (Convention proceedings) - claim dismissed
Christos Rozakis
4. The applicant was born in 1963 and lives in Krems (Austria). He is a practising lawyer by profession. 5. On 18 June 1993 a colleague, Mr P., laid a disciplinary information against the applicant alleging that he had infringed the profession’s honour and reputation in the context of administrative criminal proceedings relating to traffic offences. He was suspected of having misbehaved towards intervening police officers during a traffic control by threatening them with job-related troubles in case they charged him with traffic offences. Subsequently, on 10 September 1993 the Disciplinary Council of the Lower Austrian Bar Chamber (Disziplinarrat der Niederösterreichischen Rechtsanwaltskammer), upon request of the Bar Chamber’s Prosecutor (Kammeranwalt), appointed an Investigating Commissioner (Untersuchungskommissär). 6. On 16 September 1993 the Investigating Commissioner informed the applicant that disciplinary proceedings against him were opened and requested him to file observations as regards the charges against him. 7. On 4 October 1993 the applicant complied with this request. 8. On 13 June 1994 the Investigating Commissioner submitted a report to the Disciplinary Council. 9. On 7 October 1994 the Disciplinary Council discontinued the proceedings against the applicant. The Bar Chamber’s Prosecutor filed an appeal against this decision. 10. On 15 December 1994 the applicant submitted his observations on the appeal. 11. On 20 February 1995 the Appeals Board (Oberste Berufungs- und Disziplinarkommission) allowed the Bar Chamber’s Prosecutor’s appeal and remitted the case to the Disciplinary Council. 12. In August 1995, after the case had been taken over by another Investigating Commissioner, the latter agreed with the Vienna Federal Police Directorate (Bundespolizeidirektion) to question the police officers involved in the traffic control at issue by way of letters rogatory. On 3 November 1995 he filed letters rogatory with the Donaustadt District Court (Bezirksgericht) which were subsequently transferred to the Josefstadt District Court. 13. On 13 December 1995 the two police officers were questioned by the Josefstadt District Court. 14. On 8 February 1996 the Investigating Commissioner submitted his report to the Disciplinary Council. 15. On 3 June 1996 the Disciplinary Council, upon the Investigating Commissioner’s report, decided to open the main proceedings. This decision was served on the applicant on 31 July 1996. 16. On 30 August 1996 the applicant filed his observations. 17. On 20 September 1996 the Disciplinary Council fixed a hearing for 14 October 1996 and summoned the applicant, his spouse and the two police officers. As the applicant’s spouse and one police officers submitted that they could not appear at that date, the hearing was cancelled. 18. On 24 February 1997 the Constitutional Court, in proceedings unrelated to the present one’s, issued a decision concerning the composition of the Disciplinary Council. On 15 May 1997, after an internal discussion of the consequences of the Constitutional Court’s decision for the proceedings at issue, Mr F was appointed as new chairman of the Disciplinary Council. 19. On 17 September 1997 the Disciplinary Council fixed a hearing for 6 October 1997. The applicant’s spouse and the two police officers submitted that they could not appear at that date. 20. On 19 September 1997 the applicant filed observations and challenged the chairman and another member of the Disciplinary Council for bias. 21. On 23 September 1997 a new chairman was appointed. 22. On 6 October 1997 the Disciplinary Council held a hearing. The applicant requested to summon his spouse for the next hearing. The Disciplinary Council adjourned the case and decided to obtain the file concerning the administrative criminal proceedings against the applicant. 23. On 9 February 1998 the Disciplinary Council requested the Vienna Federal Police Directorate to submit the file concerning the administrative criminal proceedings against the applicant. 24. On 5 August 1998, since the file at issue had meanwhile been transmitted to an other administrative authority, the Disciplinary Council filed a new request to submit the file. 25. On 6 August 1998 the Disciplinary Council fixed a hearing for 14 September 1998. The applicant again challenged a member of the Disciplinary Council for bias. 26. On 14 September 1998 the Disciplinary Council held a hearing. The only witness heard was one of the two police officers, the other witnesses and the applicant submitted that they were not able to appear. 27. On 14 October 1998 the Disciplinary Council fixed another hearing for 9 November 1998. The applicant again challenged two members of the Disciplinary Council for bias and submitted that he was prevented from appearing. 28. On 9 November 1998 the Disciplinary Council held a hearing and convicted the applicant under section 10 § 2 of the Lawyers Act. It found that he had misbehaved towards intervening police officers during a traffic control by threatening them with job-related troubles in case they charged him with traffic offences. The applicant had thereby infringed the profession’s honour and reputation. The Disciplinary Council ordered him to pay an additional fine of ATS 10,000 as he had already been ordered to pay ATS 25,000 in four other sets of disciplinary proceedings. 29. On 15 December 1998 the applicant filed an appeal against this decision and on 11 January 1999 the Bar Chamber’s Prosecutor submitted his observations in reply. 30. On 14 June 1999 the Appeals Board dismissed the applicant’s appeal.  31. On 30 September 1999 the applicant lodged a complaint with the Constitutional Court (Verfassungsgerichtshof). He complained, inter alia, about the length of the proceedings and claimed that the disciplinary authorities had failed to take the excessive length of the proceedings into account as a mitigating circumstance. 32. On 29 February 2000 the Constitutional Court dismissed the applicant’s complaint. This decision was served on the applicant on 6 April 2000. 33. Section 10 § 2 of the Lawyers Act (Rechtsanwaltsordung) provides that a practising lawyer is obliged to preserve the honour and reputation of the profession by his honest and sincere conduct. 34. Section 16 § 1 of the Disciplinary Act (Disziplinarstatut), in the version applicable at the material time, provided for the following disciplinary penalties: a written reprimand, a fine of up to ATS 500,000, a prohibition on practising as a lawyer for a period not exceeding one year and being struck off the bar roll.