European Court of Human Rights

 

 

 

FOURTH SECTION

 

 

 

 

 

 

 

CASE OF JEANNEE v. AUSTRIA

 

(Application no. 56672/12)

 

 

 

 

 

 

 

 

 

 

JUDGMENT

 

 

STRASBOURG

 

11 April 2017

 

 

 

 

 

This judgment is final but it may be subject to editorial revision.

 




In the case of Jeannée v. Austria,

The European Court of Human Rights (Fourth Section), sitting as a Committee composed of:

          Vincent A. De Gaetano, President,
          Egidijus Kūris,
          Gabriele Kucsko-Stadlmayer, judges,

and Andrea Tamietti, Deputy Section Registrar,

Having deliberated in private on 21 March 2017,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1.  The case originated in an application (no. 56672/12) against the Republic of Austria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Austrian national, Mr Wolfgang Jeannée, on 22 August 2012. He was represented before the Court by Ms M. Iro, a lawyer practising in Vienna.

2.  The Austrian Government (“the Government”) were represented by their Agent, Ambassador H. Tichy, Head of the International Law Department at the Federal Ministry for Europe, Integration and Foreign Affairs.

3.  On 9 December 2015 the complaint concerning the length of the proceedings was communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.

THE FACTS

4.  The applicant was born in 1939 and lives in Vienna. He is a former lawyer who was admitted to the bar in 1969.

5.  On 26 January 1999 the applicant renounced his right to practise as a lawyer because he had, as a result of his gambling addiction, committed criminal offences. On 28 June 1999 the applicant was convicted of aggravated fraud and embezzlement and sentenced to seven and a half years’ imprisonment.

I.  THE FIRST ROUND OF THE PROCEEDINGS

6.  On 4 November 1999 the applicant applied to the Committee of the Vienna Bar Association (Ausschuss der Rechtsanwaltskammer; hereinafter, “the Committee”) for an invalidity pension. He argued that due to his gambling addiction - a recognised mental illness - he was no longer capable of practising as a lawyer.

7.  On 7 March 2001 the applicant requested the Committee to inform him why it had still not decided on his application, despite his repeated requests. On 22 June 2001 the applicant was interviewed by a medical expert, who submitted his report on 20 July 2001.

8.  On 5 February 2002 the competent division of the Committee (hereinafter, “the Committee’s division”) partly rejected as being lodged out of time and partly dismissed on the merits the applicant’s application for an invalidity pension.

9.  On 8 March 2002 the applicant filed an objection (Vorstellung) against that decision.  On 30 April 2002 the Plenary of the Committee (hereinafter, “the Plenary”) dismissed the objection.

10.  On 17 June 2002 the applicant complained to the Administrative Court about the Plenary’s decision. On 20 October 2005 the Administrative Court quashed the Plenary’s decision as unlawful.

II.  THE SECOND ROUND OF THE PROCEEDINGS

11.  On 14 June 2007, under Article 132 of the Federal Constitution (Bundes-Verfassungsgesetz), the applicant complained to the Administrative Court about the Plenary’s failure to decide (Säumnisbeschwerde). The applicant claimed that he had submitted a privately commissioned expert report on 30 March 2006 and requested a decision, but that the Plenary still had not taken any procedural steps.

12.  On 4 July 2007 the Administrative Court requested the Plenary, within three months, either to issue a decision or explain why it had not yet done so. On 13 October 2007 an expert appointed by the Plenary submitted a report. On 16 October 2007 the Administrative Court, at the Plenary’s request, extended the time-limit for a decision until 20 January 2008.

13.  On 18 January 2008 the applicant requested the Administrative Court to decide on the merits, claiming that the Plenary still had not issued a decision. In addition, it had appointed another expert only at the end of the extended time-limit. Subsequently, the Administrative Court was informed by the head of the Bar Association that the expert opinion had arrived but that it required supplementation, and that a decision would be issued within one month. On 25 January 2008 the expert submitted his report and on 11 February 2008 he submitted a supplementary report.

14.  On 8 April 2008 the Committee’s division dismissed the applicant’s application for an invalidity pension. Consequently, on 26 June 2008 the Administrative Court closed the proceedings regarding the applicant’s complaint of 14 June 2007 about the Plenary’s failure to decide (see paragraph 11 above), and awarded costs to the applicant.

15.  On 21 April 2008 the applicant filed an objection against the Committee’s division’s decision of 8 April 2008. On 15 July 2008 the Plenary granted the objection and referred the case back to the Committee’s division.

16.  On 20 October 2008 the applicant complained to the Administrative Court about the Plenary’s decision.  On 17 December 2009 the Administrative Court quashed the Plenary’s decision, holding that the Committee’s division had not been competent to issue its decision of 8 April 2008 (see paragraph 14 above), as the case had been pending before the Plenary after the Administrative Court had quashed the latter’s decision of 30 April 2002 (see paragraph 10 above). Therefore, the Plenary should have quashed the Committee’s division’s decision of 8 April 2008 and decided on the merits itself.

III.  THE THIRD ROUND OF THE PROCEEDINGS

17.  On 15 July 2010, under Article 132 of the Federal Constitution, the applicant complained to the Administrative Court about the Plenary’s failure to decide. Two days earlier, on 13 July 2010, in a decision received by the applicant on 20 July 2010, the Plenary quashed the Committee’s division’s decision of 8 April 2008 (see paragraph 14 above) and dismissed the applicant’s objection against the Committee’s division’s decision of 5 February 2002 (see paragraph 9 above), confirming that the applicant was not entitled to an invalidity pension. Consequently, on 22 February 2012 the Administrative Court closed the proceedings regarding the applicant’s complaint of 15 July 2010 about the Plenary’s failure to decide, and awarded costs to the applicant.

18.  On 24 August 2010 the applicant complained to the Administrative Court about the Plenary’s decision of 13 July 2010. On 22 February 2012 the Administrative Court dismissed the complaint as unfounded.

19.  That decision was served on the applicant on 5 March 2012.

THE LAW

I.  ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

20.  The applicant complained that the length of the proceedings had been incompatible with the “reasonable time” requirement, laid down in Article 6 § 1 of the Convention, which, in so far as relevant, reads as follows:

“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”

21.  The period to be taken into consideration began on 5 February 2002, when the Committee’s division partly rejected and partly dismissed the applicant’s application for an invalidity pension (see paragraph 8 above; see, mutatis mutandis, König v. Germany, 28 June 1978, § 98, Series A no. 27; Morscher v. Austria, no. 54039/00, § 38, 5 February 2004; and Gassner v. Austria, no. 38314/06, § 35, 11 December 2012), and ended on 5 March 2012, when the Administrative Court’s decision of 22 February 2012 was served on the applicant (see paragraphs 18 and 19 above). It thus lasted ten years and one month for three levels of jurisdiction, during which the case was remitted to the lower instances several times.

A.  Admissibility

22.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B.  Merits

23. The applicant submitted that the duration of the proceedings had been excessive. In particular, he pointed out that he had been 73 years old when the final decision was issued by the Administrative Court, and that his subsistence had depended on the outcome of the proceedings relating to his invalidity pension.

24.  The Government submitted that the proceedings had been complex, as several expert opinions concerning the applicant’s ability to practise as a lawyer had to be obtained.

25.  The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII).

26.  The Court finds that the case was not particularly complex and that there were no delays which could be attributed to the applicant. Indeed, the Court notes that the applicant took a number of steps to accelerate the proceedings, including two complaints to the Administrative Court about the Plenary’s failure to decide (see paragraphs 11 and 17 above) and informal requests to the Plenary and the Administrative Court (see paragraphs 11 and 13 above).

27.  As regards the conduct of the authorities, the Court observes that several periods of inactivity occurred during the proceedings. In particular, the Court notes that the Plenary twice failed to decide within the statutory time-limit (see paragraphs 11, 13 and 17 above). Moreover, the case was pending before the Administrative Court for more than three years and four months during the first round of the proceedings (see paragraph 10 above). These delays were solely attributable to the authorities. Finally, the Court observes that the present case concerns the applicant’s request for an invalidity pension, which calls, as a matter of principle, for a swift termination of the proceedings (see, mutatis mutandis, Otto v. Austria, no. 12702/08, § 22, 22 October 2009).

28.  The Court has frequently found violations of Article 6 § 1 of the Convention in cases raising issues similar to the one in the present case (see, among other authorities, Riepl v. Austria, no. 37040/02, §§ 39-42, 3 February 2005; Strobel v. Austria, no. 25929/05, §§ 27-28, 4 June 2009; Otto v. Austria, cited above, §§ 23-25; and Hackel v. Austria, no. 43463/09, §§ 18-21, 21 June 2016).

29.  Having examined all the material submitted to it and having regard to its case-law on the subject, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement.

There has accordingly been a breach of Article 6 § 1 of the Convention.

II.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

30.  Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A.  Damage

31.  The applicant claimed 24,000 euros (EUR) in respect of non-pecuniary damage.

32.  The Government contested this claim.

33.  The Court considers that the applicant must have sustained non-pecuniary damage. Ruling on an equitable basis, it awards him EUR 10,400 under that head.

B.  Costs and expenses

34.  The applicant also claimed EUR 12,120 for the costs and expenses incurred before the domestic courts and the Court.

35.  The Government contested these claims.

36.  According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. The Court observes that the documents at its disposal indicate that those costs claimed by the applicant which were aimed at preventing or putting right the violation of the “reasonable time” requirement have already been reimbursed by the domestic courts (see paragraphs 14 and 17 above). The remainder of the costs incurred in the domestic proceedings were not related to the violation of Article 6 § 1 of the Convention. Therefore, the Court rejects the claim for costs and expenses concerning the domestic proceedings. In turn, it considers it reasonable to award the sum of EUR 2,000 for the proceedings before the Court.

C.  Default interest

37.  The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1.  Declares the application admissible;

 

2.  Holds that there has been a violation of Article 6 § 1 of the Convention;

 

3.  Holds

(a)  that the respondent State is to pay the applicant, within three months, the following amounts:

(i)  EUR 10,400 (ten thousand four hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii)  EUR 2,000 (two thousand euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

 

4.  Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 11 April 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Andrea Tamietti                                                            Vincent A. De Gaetano
Deputy Registrar                                                                       President