EIT: Asianajajalla oli oikeus suulliseen kuulemiseen kurinpitoasiassa

5.4.2016 | Oikeusuutiset

Markku Fredman

Euroopan ihmisoikeustuomioistuin (EIT) on tänään antamassaan tuomiossa katsonut, että kurinpitolautakunnan olisi tullut järjestää suullinen kuulemistilaisuus ennen kuin hänen oikeutensa toimia avustajana tuomioiostuimessa peruutettiin.

EIT:n tuomion perusteluista:

71. The Court further
notes that it is in the nature of proceedings for interim measures that
decisions in general have to be taken immediately. In a case of urgency,
if public or private interests are at stake, an oral hearing could lead
to delays and thereby frustrate the effort to seek protection, thus
justifying provisional measures.

In the present case, the Court observes that the applicant’s testimony
had already been heard on the disciplinary charges in a hearing on 24
September 2007 conducted during the disciplinary proceedings.
Nonetheless, in order to take the decision on the interim measure, the
Disciplinary Council had not only to examine the nature and seriousness
of the disciplinary charges but also if there had been a risk of serious
damage to, in particular, the interests of the public or the standing
of the profession which made it necessary to issue an interim measure.
Moreover, the Disciplinary Council had to decide which one of the
interim measures mentioned in section 19(3) of the Disciplinary Act
would constitute a fair balance to the interests involved. In choosing
interim measures from the catalogue outlined in section 19(3), and in
particular in considering the question of whether representation before
which authorities should be restricted, discretion was granted to the
Disciplinary Council. Therefore, the Court considers that not only legal
or highly technical questions had to be taken into consideration when
deciding upon the interim measure.

The Court further notes that the Linz Regional Court had already
instituted a preliminary criminal investigation against the applicant on
11 July 2007; the Disciplinary Council called a hearing for 24
September 2007. There, the applicant gave evidence, but interim measures
as well as their necessity had not been an issue. Only on 25 September
2007, based on the results of the hearing, did the Disciplinary
Prosecutor apply for the interim measure. The applicant was invited to
submit comments, which the latter did on 4 and 30 October 2007; the
Disciplinary Council took the decision on 17 December 2007. From this
conduct of the authorities, no urgency can be established. The
Government has neither shown reasons why there was no need for interim
measures before 25 September 2007 nor that the circumstances changed
afterwards making an interim measure so urgent that the Disciplinary
Council had to refrain from holding an oral hearing. Consequently, it
has not been shown that the effectiveness of the interim measure imposed
on the applicant depended on a rapid decision-making process.

In conclusion, the applicant’s right to an oral hearing was violated
when the Disciplinary Council granted an interim measure and ignored his
request for an oral hearing.

75. Accordingly, there has been a violation of Article 6 § 1 concerning the lack of an oral hearing.

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