BAUER v. GERMANY
Inadmissible
Ganna Yudkivska;Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Renate Jaeger
The applicant, Mr Heinz-Peter Bauer, is a German national who was born in 1953 and lives in Herzlake. He is represented before the Court by Mr M. Kleine-Cosack, a lawyer practising in Freiburg. The German Government (“the Government”) are represented by their Agent, Mrs A. Wittling-Vogel, Ministerialdirigentin, of the Federal Ministry of Justice. The applicant had been practising as a lawyer since 1982 and as a notary since 1986. On 14 May 2001 the President of the Oldenburg Court of Appeal (Oberlandesgericht) opened formal disciplinary proceedings against him on suspicion of official misconduct involving a large number of failures to honour his notarial duties between January 1997 and April 1999. Consequently, on 3 July 2001 the President of the Oldenburg Court of Appeal provisionally removed the applicant from the office of notary. Given the nature and seriousness of the alleged misconduct, the President considered that there was a risk that the interests of individuals in need of legal advice would be adversely affected if the applicant continued to pursue his notarial activities. On 6 August 2001 the applicant challenged that decision before the Celle Court of Appeal. On 1 November 2001 that court confirmed his provisional removal from office. On 18 March 2002 the Federal Court of Justice (Bundesgerichtshof) dismissed the applicant's appeal against this decision. Between 12 September 2001 and 20 November 2002 the President of the Oldenburg Court of Appeal heard twenty-five witnesses. On 20 November 2002 the applicant was informed that the taking of evidence was terminated and granted a four-weeks' time-limit to submit comments, which was later extended on the applicant's request until 20 January 2003. On 3 February 2003 the report on the preliminary investigations was finalised. On 18 March 2003 the President of the Oldenburg Court of Appeal finalised the charges and accused the applicant of two hundred thirty four violations of his professional duties, inter alia, of falsely certifying contracts, of creating an appearance of partiality and dependence in certifying a great number of contracts and of assisting in activities with clearly dishonest aims. On 19 May 2003 the applicant suggested that the disciplinary proceedings be suspended pending criminal investigations. On 22 May 2003 the President of the Oldenburg Court of Appeal requested the court to decline to suspend the proceedings. On 24 June 2003 the Celle Court of Appeal stayed the disciplinary proceedings in accordance with Article 17 § 2 of the Lower Saxony Disciplinary Code (see “Relevant domestic law” below) with respect to the then ongoing criminal proceedings concerning the same facts. In criminal proceedings, on 12 December 2003, the prosecution filed the bill of indictment with the Lübeck District Court (Amtsgericht). On 11 April 2005 the President of the Oldenburg Court of Appeal requested the Celle Court of Appeal to resume the disciplinary proceedings, arguing that the applicant's ongoing provisional removal from office since 3 July 2001 could infringe the principle of proportionality. On 12 May 2005 the applicant requested the Celle Court of Appeal to annul its decision regarding his provisional removal from office. He further requested the court not to resume the suspended proceedings. On 19 May 2005 the Celle Court of Appeal rejected the President's request to resume the proceedings. On 6 June 2005 the Celle Court of Appeal found for the applicant. It held that, in view of the length of the proceedings (three years and eleven months so far) and the unlikelihood that permanent removal from office would be imposed as a disciplinary penalty, the ongoing provisional removal from office was disproportionate. On 8 August 2005 the Lübeck District Court convicted the applicant of two counts of abetment to fraud and imposed a fine of 25 euros (EUR) per day for 220 days, taking into account as a mitigating factor that the applicant had lost his office as a notary and hence his source of income. The applicant continued to practise as a notary until 20 March 2006 when the Federal Court of Justice quashed the Court of Appeal's decision of 6 June 2005. The Federal Court of Justice found that the disciplinary proceedings had not been protracted. The fact that the proceedings came to a standstill on 24 June 2003 had been the result of the Court of Appeal's obligation under Article 17 § 2 of the Lower Saxony Disciplinary Code to suspend the disciplinary proceedings while the criminal proceedings were pending. Even taking into account the considerable duration of the still pending criminal proceedings, the Court of Appeal's refusal to resume the suspended disciplinary proceedings did not yet overstep that court's margin of appreciation. The duration of the proceedings, which had been pending for more than four years and eight months, did not justify as such the conclusion that the continuation of the provisional removal was disproportionate. Given the gravity of his alleged misconduct and the great number of accusations, the applicant's conduct had severely endangered the sound administration of justice. The applicant, who had admitted the facts, continued to maintain that his behaviour had been compatible with his notarial duties. Therefore, it could not be ruled out that he would continue to breach his duties if he was allowed to pursue his official functions as a notary. Finally, the court considered that it was very likely that the disciplinary proceedings would end with the applicant's permanent removal from office. By way of a separate decision, also issued on 20 March 2006, the Federal Court of Justice rejected the President of the Court of Appeal's complaint against the refusal to resume the disciplinary proceedings as inadmissible. The court considered, however, that the length of the proceedings obliged the Court of Appeal to observe special diligence. It considered that the disciplinary proceedings had to be resumed without awaiting the outcome of the criminal proceedings if the latter proceedings on the applicant's appeal were not terminated by the end of May 2006. On 22 May 2006 the Federal Constitutional Court (Bundesverfassungsgericht) refused to admit the applicant's constitutional complaint against the Federal Court of Justice's decision on his provisional removal from office as there had been no appearance of a violation of the applicant's fundamental rights. On 30 June 2006 the Celle Court of Appeal ordered the continuation of the disciplinary proceedings. On 9 July 2007 following a hearing, the Celle Court of Appeal decided to permanently remove the applicant from office as he had been found guilty of misconduct, partly through negligence and partly intentional, which involved numerous failures to comply with his professional obligations between January 1997 and January 2000. The reasoned judgment with a volume of 153 pages was submitted to the court's registry on 26 July 2007. On 25 September 2007 the Lübeck Regional Court (Landgericht), in the criminal proceedings, upon the applicant's appeal, modified the criminal sentence imposed by the Lübeck District Court, and issued a formal admonishment (Verwarnung) to the applicant while reserving its right to impose a fine. The court considered as mitigating factors that the delays in the criminal proceedings – even taking into account the thorough examination of the facts and the necessity to hear extensive evidence in the first instance proceedings – fell within the judiciary's responsibility. On 16 September 2008 the applicant, in order to avoid losing his license to practice as a lawyer, filed a request that he be permanently removed from notary office; the request was granted on 31 December 2008. Therefore, on 23 March 2009 the Federal Court of Justice discontinued the proceedings in accordance with Articles 64, 76 and 85 of the Federal Disciplinary Code as in force at the material time (see “Relevant domestic law” below). Section 96 of the Federal Notaries Act in conjunction with Article 17 § 2 of the Lower Saxony Disciplinary Code provides that if criminal proceedings are brought against a notary, disciplinary proceedings instituted on account of the same facts shall be suspended until such time as the criminal proceedings have been concluded. The factual finding of a final judgment in criminal proceedings is binding on the disciplinary panel (Article 18 § 2). Section 96 of the Federal Notaries Act in conjunction with Article 91 of the Lower Saxony Disciplinary Code provides that the authority which institutes disciplinary proceedings against a notary can provisionally remove the latter from office as soon as formal disciplinary proceedings are opened. According to section 108 of the Federal Notaries Act in conjunction with Articles 64, 76 and 85 of the Federal Disciplinary Code, as in force at the material time, the Federal Court of Justice discontinues the disciplinary proceedings if the notary has resigned or has been dismissed.