CASE OF HELMUT BLUM v. AUSTRIA
Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6 - Disciplinary proceedings;Article 6-1 - Civil rights and obligations;Public hearing);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - finding of violation sufficient (Article 41 - Non-pecuniary damage;Just satisfaction)
András Sajó;Egidijus Kūris;Krzysztof Wojtyczek;Nona Tsotsoria;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer
6. The applicant was born in 1959 and lives in Linz. He has been a lawyer since 1986 and he practises in Linz. 7. In 2006 criminal investigation proceedings were pending before the Linz Regional Court against O.G., a regional politician from Upper Austria, and a Moldovan citizen, T.S., who was in detention pending trial. Both were suspected of human trafficking. O.G. was also suspected of fraud. During the investigation proceedings, T.S. accused O.G. of having accepted money for facilitating the illegal entry or transit of nineteen nationals from Moldova to Austria or through Austria to Italy. 8. E.W., an association of which O.G. was president, commissioned the applicant to represent T.S. in the criminal proceedings. The applicant’s fees were covered by this association. Having accepted the mandate the applicant remained in close contact with O.G. and transmitted to him information concerning the criminal investigation proceedings against T.S. He did not represent O.G. in the proceedings. 9. On 17 August 2006 the applicant visited T.S. in prison in order to prepare for the trial on that day. During this visit an affidavit (Eidesstättige Erklärung), prepared in advance by the applicant, was signed by T.S. in which she submitted that her former allegations against O.G. had been untrue. 10. On the same day, the Linz Regional Court convicted T.S. of the crimes as charged and sentenced her to fifteen months’ imprisonment. T.S. did not retract the statements she had made to the investigating authorities, nor was the affidavit submitted to the court. Instead, the applicant transferred it to the lawyers of O.G. 11. On 21 August 2006 the lawyers of O.G. transferred T.S.’s affidavit to the public prosecutor to be taken into consideration in the proceedings against O.G. 12. On 31 October 2006 and 4 December 2006, in the course of the criminal proceedings against O.G., the judge of the Linz Regional Court reported to the Upper Austrian Bar Association (Rechtsanwaltskammer, hereinafter “the Bar Association”) that he suspected the applicant of double representation. The judge stated that the applicant had kept close contact with O.G. and had transferred to him information concerning the investigation proceedings regarding T.S. The judge further stated that the applicant had asked T.S. to submit the affidavit, whose contents were untrue but in favour of O.G., to the court. 13. On 11 July 2007, upon a request by the Linz public prosecutor, the Linz Regional Court instituted a preliminary investigation into allegations of attempting to aid the perpetrator (versuchte Begünstigung), false testimony (Falsche Beweisaussage) and falsifying evidence (Fälschung eines Beweismittels) against the applicant, and informed the Bar Association. 14. On 17 July 2007, 17 August 2007 and 6 September 2007 the Linz public prosecutor requested that the court conduct further preliminary investigations in the case, in particular the questioning of several witnesses and to put the applicant on the stand. The Linz Regional Court took the requested evidence and heard evidence from the applicant. 15. On 24 September 2007, the Linz public prosecutor requested the inclusion of a further file regarding the falsification of evidence in a case not related to that of O.G. The file was included in the preliminary investigation against the applicant and the requested evidence was gathered. 16. Because of the reform of the Code of Criminal Procedure, which entered into force on 1 January 2008, the investigating judge transmitted the file to the Linz public prosecutor, who took charge of the case. 17. On an unspecified date the Linz public prosecutor decided not to file a formal indictment (Anklageschrift, Strafantrag) against the applicant until a final court decision in the case against O.G. had been taken. There is no indication that a formal decision on the postponement was taken on this matter or sent to the applicant. 18. On 4 February 2009 the Linz public prosecutor ordered the suspension of the criminal proceedings against the applicant since the criminal proceedings against O.G. were still pending. Again, it appears that no formal decision was sent to the applicant in this regard. 19. On 5 May 2009 the applicant lodged a request with the Linz public prosecutor for the discontinuation of the investigation proceedings. 20. On 6 July 2009 the criminal proceedings against the applicant were resumed and he was charged with the offence of attempted aiding of the perpetrator and falsifying evidence. 21. The Linz Regional Court summoned the applicant on 17 July 2009 for trial on 22 September 2009. The applicant lodged a request to have more witnesses questioned on 10 September 2009 and submitted a statement. 22. On 22 September 2009 the first hearing in the criminal proceedings against the applicant was held before the Linz Regional Court. 23. The next hearing was held on 24 November 2009. The hearing was adjourned until the final decision in the case of O.G. had been taken. 24. As the criminal proceedings against O.G. were still pending, the Linz Regional Court continued criminal proceedings against the applicant and a further hearing was held on 27 April 2011, with a new judge presiding. 25. On 17 June 2011 the Linz Regional Court acquitted the applicant on all counts. 26. On 8 November 2011 the Linz Court of Appeal dismissed an appeal by the public prosecutor. This judgment was served on the applicant on 30 November 2011. 27. Following the notice of the investigating judge of 31 October 2006 the Disciplinary Prosecutor (Disziplinaranwalt) on 13 December 2006 applied to introduce disciplinary proceedings against the applicant on charges of double representation and falsification of evidence. 28. Accordingly, on an unspecified date, the Disciplinary Council of the Bar Association (Disziplinarrat der Oberösterreichischen Rechtsanwaltskammer, hereinafter “the Disciplinary Council”) initiated disciplinary proceedings against the applicant. 29. On 24 September 2007 the Disciplinary Council held an oral hearing and adjourned the disciplinary proceedings until the criminal proceedings at the Linz Regional Court had become final. 30. On 25 September 2007 the Disciplinary Prosecutor applied for the withdrawal of the applicant’s right to represent clients before the Linz courts in criminal cases as an interim measure. 31. The applicant was informed of this application and submitted his written comments on 4 October 2007 and 30 October 2007 in which he opposed the measure. 32. On 17 December 2007 the Disciplinary Council, without holding a hearing, withdrew the applicant’s right to represent before the Linz District Court, the Linz Regional Court and the Linz Court of Appeal in criminal law cases as an interim measure by virtue of section 19 of the Disciplinary Act (Disziplinarstatut für Rechtsanwälte und Rechtsanwaltsanwärter). It held that because of the accusations against the applicant the imposed interim measure was proportionate. 33. The applicant appealed on 5 February 2008 against this interim measure and complained that the preconditions for it had not been met, that the Disciplinary Council had failed to hear evidence and that it had not held an oral hearing. Furthermore the measure had not been proportionate to the accusations. 34. On 28 August 2008 the Appeals Board (Oberste Berufungs- und Disziplinarkommission) dismissed the applicant’s appeal without having held an oral hearing. It found that it was the task of the criminal courts to hear evidence. The applicant had submitted his comments and had therefore been able to sufficiently present his arguments. Moreover, the measure imposed upon the applicant had been proportionate. 35. On 28 October 2008 the applicant lodged a complaint with the Constitutional Court (Verfassungsgerichtshof) and again complained about the lack of an oral hearing and that the measure was disproportionate. 36. On 25 November 2008 the applicant lodged a request for information (Auskunftsbegehren) with the Disciplinary Board and asked if the interim measure of 17 December 2007 would automatically expire after six months. If not, he asked to have the interim measure withdrawn as the criminal proceedings were still pending. He claimed that it was disproportionate to sustain the interim measure over such a long period of time. 37. On 2 December 2008 the Disciplinary Board replied to the request of 25 November 2008 and informed the applicant, that the interim measure would not expire automatically but would remain in force. 38. On 1 December 2009 the Constitutional Court dismissed the applicant’s complaint and held that the reasoning of the authorities had been sufficient and therefore the imposed measure was not arbitrary. Furthermore it found that the proceedings had overall been fair. As the preliminary measure imposed on the applicant had not been a “criminal charge” in the sense of Article 6 of the Convention, an oral hearing had not been compulsory. 39. On 9 December 2010 the Bar Association asked for information about the state of the criminal proceedings. A written reply was sent on 14 January 2011. 40. On 17 June 2011, after the applicant had been acquitted on all counts by the Linz Regional Court, he lodged another request with the Bar Association to have the interim measure withdrawn referring to the court’s decision. 41. This request was dismissed by the Bar Association as the public prosecutor had appealed against the decision of the Linz Regional Court. 42. The applicant appealed on 18 July 2011 against this decision and complained about the length of time the imposed measure had already been in force. 43. On 14 November 2011 the interim measure imposed on the applicant, prohibiting him from representing clients before the Linz courts in criminal cases was lifted by the Bar Association. 44. On 30 January 2012 he was summoned to a hearing by the Disciplinary Council on 27 February 2012. 45. The applicant filed statements in preparation of the hearing on 8 and 22 February 2012 denying that there was a case of double representation and referring to the decision of the Linz Court of Appeal of 8 November 2011. 46. On 11 March 2013 the Disciplinary Council of the Bar Association found that the applicant had not knowingly organised for T.S. to submit an affidavit that was untrue. However, he had acted in double representation within the meaning of section 10 of the Lawyers Act (Rechtanwaltsordnung) in criminal proceedings, as he had acted in the interests of O.G. and the association E.W. as well as in those of T.S., whom he had represented. The Disciplinary Council stated that the fact that the disciplinary proceedings had lasted almost seven years and the fact that the right of the applicant to represent before certain courts in criminal cases had been withdrawn for about four years had to be taken into account. Therefore it found it reasonable to impose a fine of 1,000 euros (EUR) in addition to another disciplinary fine he already had been ordered to pay for another case of violation of the Lawyers Act. 47. The applicant lodged an appeal on points of law and an appeal against the fine. 48. The Supreme Court, acting as the highest court in disciplinary proceedings against lawyers, held a hearing on 20 May 2014 and dismissed the applicant’s appeal on points of law, but reduced the additional disciplinary fine to EUR 500. It explicitly mentioned the length of disciplinary proceedings as a violation of the applicant’s rights under Article 6 of the Convention and took account of the fact that the applicant’s right to represent before the Linz Courts in criminal cases had been withdrawn for four years. The Supreme Court found that a different set of disciplinary proceedings had been already pending when the present incident occurred. Therefore, the applicant should have acted with special caution. A total waiver of the fine would not be adequate in this situation. 49. The Supreme Court’s judgment was served on 11 August 2014 on the applicant.