FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 57028/00 
by Anton and Claudia KLEIN 
against Austria

The European Court of Human Rights (First Section), sitting on 4 May 2006 as a Chamber composed of:

Mr C.L. Rozakis, President
 Mrs N. Vajić
 Mr A. Kovler
 Mr K. Hajiyev
 Mr D. Spielmann
 Mr S.E. Jebens, judges, 
 Mr.  H. Schäffer, ad hoc judge,

and Mr S. Nielsen, Section Registrar,

Having regard to the above application lodged on 25 January 2000,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having deliberated, decides as follows:

THE FACTS

The applicants, Anton and Claudia Klein, are Austrian nationals, who were born in 1932 and 1941 respectively and live in Vienna. The first applicant is a former lawyer. The second applicant is the wife of the first applicant. The applicants are represented before the Court by Mrs. M. Klein, a lawyer practising in Vienna. The respondent Government are represented by their Agent, Ambassador F. Trauttmansdorff, Head of the International Law Department at the Federal Ministry for Foreign Affairs.

A.  The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

On 24 March 1964 the first applicant was admitted to the bar and started to practice as a lawyer in Vienna.

On 15 November 1995 the Disciplinary Council (Disziplinarrat) of the Vienna Lawyers’ Chamber (Rechtsanwaltskammer) provisionally suspended the first applicant’s right to practice and on 18 December 1995 bankruptcy proceedings were opened against him. Taking note of that fact the Executive Committee of the Lawyers’ Chamber (Ausschuß der Rechtsanwaltskammer), on 23 January 1996, decided that the first applicant had lost his right to practise as a lawyer pursuant to Section 34 § 1 a) of the Practising Lawyers Act (Rechtsanwaltsordnung). This provision, as in force at that time, provided that the right to exercise the profession of a practising lawyer shall be revoked following the binding opening of bankruptcy proceedings until their binding termination and the final dismissal of a request to open bankruptcy proceedings for lack of sufficient means. It further appears that in connection with the bankruptcy proceedings the first applicant was charged with and eventually convicted of embezzlement .

On 31 March 1996 the first applicant requested the Lawyers’ Chamber to strike him out of the List of Lawyers (Rechtsanwaltsliste) for health reasons. The Government submitted that the plenary assembly of the Chamber of Lawyers, on 16 April 1996, struck the first applicant out of the List of Lawyers. The applicants submitted that no such decision was taken by the plenary assembly. On 30 April 1996 the Chamber of Lawyers informed the first applicant that it had taken note of his request.

It appears that until August 1997 the Chamber of Lawyers addressed invoices for membership fees (including contributions to the pension fund) to the first applicant. The Government submit that these request were based on a clerical mistake of the Chamber’s administration and that the respective invoices were declared void subsequently.

On 4 August 1997 the first applicant applied to the Vienna Lawyers’ Chamber for the granting of an old age pension. In his request he referred to the fact that he had exercised the profession of a lawyer between 1964 and 1995.

On 16 June 1998 Division IV of the Executive Committee of the Lawyers’ Chamber (Ausschuß der Rechtsanwaltskammer) dismissed the first applicant’s application. It found that under the relevant provisions of the Statute of the Pension Fund of the Lawyers’ Chamber an old age pension is granted to those lawyers who have reached the age of retirement of 65 years if and as long as they renounced their right to practise as a lawyer. Since the first applicant had lost his right to practice as a lawyer before having reached the age of retirement he was not entitled to an old age pension.

On 3 July 1998 the first applicant filed an objection (Vorstellung). He submitted that the above decision was unlawful. If, however, the findings of Division IV were correct, the regulations on the entitlement to an old age pension was unconstitutional as it was arbitrary to refuse him a pension after he had paid contributions to the Lawyers’ Chamber pension fund for more than 32 years.

On 14 July 1998 the Plenary of the Executive Committee rejected the objection. It observed that the bankruptcy proceedings which had been opened against the first applicant were still pending and the applicant could not claim a pecuniary right without the consent of the receiver. Since the applicant’s objections had been filed without the consent of the receiver the objection had to be rejected.

On 4 September 1998 the first applicant filed a complaint with the Administrative Court against the above decision.

On 15 February 1999 the Administrative Court quashed the Plenary’s decision of 16 June 1998. It found that a pension claim was not a claim which falls entirely under the assets subject to the bankruptcy proceedings. Accordingly, the first applicant himself had had the right to file an objection.

On 23 March 1999 the Plenary of the Executive Committee decided again on the first applicant’s objection. It found that under the relevant provisions of the Statute of the Lawyers’ Chamber’s pension fund the person applying for the pension must, when reaching the age of retirement, still be a member of the Chamber. Since the first applicant before reaching the age of retirement had lost his membership in the Chamber because he had also lost his right to exercise his profession, he was not entitled to a pension.

On 25 May 1999 the first applicant filed a complaint with the Constitutional Court in which he argued that the decision of the Lawyers’ Chamber violated the principle of equality and his right to peaceful enjoyment of his possessions. At the same time he filed also a complaint with the Administrative Court.

On 6 July 1999 the Administrative Court dismissed the first applicant’s complaint. It found that the first applicant only had a right to an old age pension if he had reached the age of retirement and if at that time he was still enrolled in the list of lawyers of the Austrian Lawyers’ Chamber. While the first applicant met the first condition he did not meet the second condition because bankruptcy proceedings had been opened against him which led ex lege to the first applicant loosing his right to practice and, thereby, loosing his membership in the Lawyers’ Chamber.

On 6 October 1999 the Constitutional Court declined to deal with the first applicant’s case for lack of prospect of success.

B.  Relevant domestic law

The rules governing the exercise of the profession of a lawyer are set out in the Lawyer’s Act (Rechtsanwaltsordnung). Section 50 of the Lawyer’s Act, as amended in 1973 (Lawyer’s Act Amendment Act), provided for a right of a lawyer to an old age pension, or, under certain conditions, for a pension for his or her surviving spouses or descendants. The main principles for the pension schemes for lawyers are set out in Section 50 § 2 of the Lawyer’s Act. According to these principles, only persons who are inscribed in the List of Lawyers of a regional Chamber of Lawyers at the time when the age of retirement is reached are entitled to an old age pension; they must have been inscribed for a period of 10 or 15 years on the list before reaching age of retirement; the age of retirement is fixed at 68 years and upon reaching that age, a lawyer must renounce to his or her right to exercise the profession. Further conditions are set out for pensions on account of incapacity to exercise the profession, widows’ or widowers’ pension and pensions for descendants. Under Section 50 § 3 the regional Chambers of Lawyers are free to fix conditions for their pension scheme which are more favourable.

The detailed regulations, as set out in the statues of the pension schemes (Versorgungseinrichtungen) adopted by the plenary assembly of the Vienna Chamber of Lawyers, repeat the conditions under Section 50 § 2 of the Lawyer’s Act. The Vienna Chamber of Lawyers has not made use of the possibility under Section 50 § 3 to fix more favourable rules with the exception of fixing the age of retirement at 65 years.

The pension scheme is financed by compulsory contributions from the members of the Chamber of Lawyers to the pension fund, the amount of which is fixed by the plenary assembly of the Lawyer’s Chamber and roughly calculated on the basis of the payments to beneficiaries out of the pension fund.

The fund has another source of income. Under Austrian law, lawyers do not receive individual payments for services rendered in the context of legal aid. However, as a compensation for the services rendered by all lawyers, the state pays annually a lump sum which is divided among the regional Chamber of Lawyers and put into the pension funds.

By a federal act of 28 October 2003 (Federal Law Gazette I no. 93/2003), which entered into force on 1 January 2004, the pension regime of lawyers was amended. The new system of old age pensions, as provided for in Section 49 and 50 of the Lawyer’s Act, provides that being inscribed in the Lawyers’ List at the time of reaching age of retirement is no longer a condition for the granting of an old age pension. Old age pensions are now also granted to persons formerly inscribed on the Lawyers’ List, and, provided there has been a minimum time of contribution, they are calculated using a formula which takes into account the amount of contributions paid and the period during which they have been paid.

On 3 December 2003 the plenary assembly of the Vienna Chamber of Lawyers amended, in an extraordinary meeting, the statutes of its pension scheme following the above rules.

Under the transitory provisions of Section 18 of the Vienna statues of the pension scheme, the new provisions only apply to lawyers claiming an old age pension, whose right to exercise the profession has not become extinct before the entry into force of the amendment.

COMPLAINTS

1. The applicants complained under Article 1 Protocol No. 1, alone and in conjunction with Article 14 of the Convention, that the refusal to grant the first applicant an old age pension from the Vienna Lawyers’ Chamber’s pension fund, although he had paid contributions to that fund throughout his career as a lawyer, violated their property rights and was arbitrary.

2. The applicants further complained under Article 4 of Protocol No. 7 that the refusal of the Vienna Lawyers’ Chamber to grant the first applicant an old age pension must be considered a second punishment after the first applicant had already been convicted previously in criminal proceedings.

3. In their observations of 21 July 2003 the applicants also complained that since no formal written decision by the Chamber of Lawyers to strike out the first applicant from the list of lawyers had been taken which the first applicant could then have challenged in court his right to a court as guaranteed by Article 6 of the Convention had been breached.

THE LAW

1. The applicants complained under Article 1 Protocol No. 1, alone and in conjunction with Article 14 of the Convention, that the refusal to grant the first applicant an old age pension from the Vienna Lawyers’ Chamber’s pension fund, although he had paid contributions to that fund throughout his career as a lawyer, violated their property rights and was arbitrary.

Article 1 of Protocol No. 1, insofar as relevant, reads as follows:

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.”

Article 14 of the Convention reads as follows:

“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

a) As regards the second applicant, the Government submitted that she cannot claim to be a victim of an alleged breach of the Convention, because she was not directly affected by the impugned decisions concerning the first applicant’s old-age pension.

This is disputed by the applicants. They submitted that, in any event, the second applicant is adversely affected by the refusal of a pension to the first applicant and must therefore be considered a victim of a breach of Article 1 Protocol No. 1 alone and in conjunction with Article 14 of the Convention.

The Court finds that the second applicant was not a party to the proceedings on the first applicant’s pension claim, which moreover did not concern a right which she could exercise herself. Therefore, she cannot claim to be a victim of an alleged breach of the Convention or the Protocols thereto.

It follows that this complaint, in respect of the second applicant, is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.

b) As regards the first applicant the Government submitted that Article 1 of Protocol No. 1 did not apply to the proceedings at issue. While, according to the Court’s relevant case-law, payments into a pension scheme could create a right to benefits from that scheme, the Court, nevertheless, emphasised at the same time that this was only the case if the conditions laid down by the law were met. In the present case, the first applicant was clearly excluded from that lawyer’s pension scheme. The lawyers’ old age pension scheme did not correspond to the “conventional” model of a social insurance scheme in Austria, but was a system of benefits sui generis. Besides having elements of a social insurance scheme it also contained elements of a contractual and, in particular, damage insurance scheme. This was evident from the fact that it was a condition for granting an old age pension under the lawyers’ old age pension scheme, that the person concerned should be registered on the Lawyers’ List at the time the pension was granted, which corresponds to the requirement under a damage insurance scheme of a valid contractual relationship at the time the damage occurs. Because of this particularity it was inadmissible to directly compare the lawyers’ pension scheme to the general social insurance scheme.

The Government also pointed out that the Chamber of Lawyers, which represented the interests of lawyers, was established as a self-governing body with compulsory membership, and a democratic organisation in which the individual members had the opportunity to exert influence on the attitude of this group and, thus, also on the statutes of the pension scheme. The state cannot, therefore, be held responsible for the ensuing regulations to the same extent as in “classical” social insurance cases.

The Government submitted further that even if one considered Article 1 of Protocol No. 1 applicable, any alleged interference with the first applicant’s property rights was justified. Since lawyers, as compared to other professions, were subject to different occupational requirements and had different rights and duties, it was justified that their pension scheme was different from those of other professions. Lawyers were self employed and highly qualified members of a profession who had the necessary legal knowledge and freedom of decision making, that enabled them to make their own arrangements regarding pension benefits.

The system, about which the first applicant now complained, already existed when he took up his profession and he must have been aware of the conditions for granting pension payments. He had also benefited from that system, because funding the pension payments to retired members of the profession on a pay-as-you-go-basis (Umlagesystem) allowed for relatively low amounts of contributions. If the condition, the first applicant now complained about - being inscribed in the lawyers’ list at the crucial moment - would not exist, the first applicant would certainly have had to pay considerably higher contributions to the pension scheme. The first applicant had been free to join the general social insurance scheme on a voluntary basis.

As regards the first applicant’s submission that he must be considered as still being inscribed on the lawyer’s list, since no formal written decision had been taken, the Government submit that he had been deleted from the list at latest on 16 April 1996 by a decision taken by the plenary of the Chamber of Lawyers. In any event, the Administrative Court, in its decision of 6 July 1999, had clarified that for the purposes of the pension the decisive element was that bankruptcy proceedings had been opened against him and that he had lost, therefore, his right to practise as a lawyer before having reached the age of retirement. Insofar as the first applicant argued that under the 2004 pension regulations he would be entitled to an old age pension, the Government referred to the transitory provisions of the amendment, according to which the new system would not be applicable to him.

Concerning the applicability of Article 1 Protocol No. 1, the first applicant submitted that this provision was only inapplicable if the entitlement to a pension was based on transfer payments from the state and not on contributions made by the person claiming the pension. Also the fact that the Chamber of Lawyers was a self-governing body did not mean that they were not subject at all or to a lesser extent to the laws of the state or the rights set forth in the Convention.

Referring to the merits, the first applicant pointed out that he had made throughout many years financial contributions (and performed unpaid legal aid services) to the pension fund, but, because of the lack of a formal requirement at the time he had reached retirement age, his pension claim was refused. This constituted an unjustified enrichment of the pension fund.

The first applicant claimed also that the formal requirement of being inscribed on the Lawyers’ List at the time of his retirement was fulfilled by him. When bankruptcy proceedings were opened against him, on 18 December 1995, he lost the right to practice as a lawyer, but was not formally struck out of the Lawyers’ List. Until August 1997 he received invoices for membership fees to the Chamber of Lawyers which shows that the Chamber itself considered the applicant still as its member. In his view only by taking a formal written decision the first applicant could have been struck out of the lawyers list. Since this had not occurred he must be considered as still being on the list.

The pension system of lawyers was in general based on the principle of solidarity, just as the social insurance pension scheme. The comparison with a damage insurance scheme was therefore improper and misleading, as arriving at the age of retirement could not be considered an incident causing damage. It was rather a typical feature of a pension insurance that the obligation to provide benefits to the insured person arrived when the period of contribution ends. It was not realistic to require an insured person to take out another insurance just in case he or she would in the future loose the right to practice the profession. But even if so, this was no justification to forfeit pension contributions made during a considerable period. The first applicant also pointed to a recent amendment of the rules on old age or survivor pensions of lawyers, according to which it was no longer a condition for granting a pension that the interested person was still inscribed on the List of Lawyers. If these rules had been in force at the time of the events, the first applicant would have been entitled to an old age pension.

The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

2. The applicants further complained under Article 4 of Protocol No. 7 that the refusal of the Vienna Lawyers’ Chamber to grant the first applicant an old age pension must be considered a second punishment after the first applicant had already been convicted previously in criminal proceedings.

Article 4 of Protocol No. 7, insofar as relevant, reads as follows:

“No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State.”

The Court observes that, according to the Administrative Court’s decision of 6 July 1999, the first applicant lost his right to practice as a lawyer, because of the opening of bankruptcy proceedings against him. Thus, this measure cannot be considered a punishment within the meaning of this provision.

It follows that this complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.

3. In their observations of 21 July 2003 the applicants also complained that since no formal written decision by the Chamber of Lawyers to strike out the first applicant from the list of lawyers had been taken, which the first applicant could then have challenged in court, his right to a court, as guaranteed by Article 6 of the Convention, has been breached.

However, the Court observes that in the present case the last decision by a domestic authority has been given by the Administrative Court on 6 July 1999, while the above complaint has only been lodged with the Court on 21 July 2003, which his more than six months after.

It follows that this complaint has been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

For these reasons, the Court unanimously

Declares admissible, without prejudging the merits, the first applicant’s complaint under Article 1 Protocol No. 1 alone and in conjunction with Article 14 of the Convention about the refusal to grant him an old age pension from the Vienna Lawyers’ Chamber’s pension fund although he had paid contributions to that fund throughout his career as a lawyer;

Declares inadmissible the remainder of the application.

Søren Nielsen Christos Rozakis 
 Registrar President

KLEIN v. AUSTRIA DECISION


KLEIN v. AUSTRIA DECISION