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AS TO THE ADMISSIBILITY OF

Application No. 32052/96

by Otto SCHATZMAYR

against Austria

The European Commission of Human Rights (First Chamber) sitting

in private on 21 May 1998, the following members being present:

MM M.P. PELLONPÄÄ, President

N. BRATZA

E. BUSUTTIL

A. WEITZEL

C.L. ROZAKIS

Mrs J. LIDDY

MM L. LOUCAIDES

B. MARXER

B. CONFORTI

I. BÉKÉS

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

M. VILA AMIGÓ

Mrs M. HION

Mr R. NICOLINI

Mrs M.F. BUQUICCHIO, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 28 March 1996 by

Otto SCHATZMAYR against Austria and registered on 27 June 1996 under

file No. 32052/96;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant, born in 1945, is an Austrian national residing in

Feldkirchen. Before the Commission the applicant is represented by

Mr Kapsch, a lawyer practising in Graz.

The facts, as they have been submitted by the applicant, may be

summarised as follows.

On 20 March 1995 the Disciplinary Board for Teachers at the

Office of the Carinthian Regional Government (Disziplinarkommission für

Landeslehrer beim Amt der Kärntner Landesregierung), referring to the

relevant provision of the Teacher's Act (Landeslehrer-

Dienstrechtsgesetz), pronounced the dismissal on disciplinary grounds

of the applicant, a teacher at an extended elementary school

(Polytechnischer Lehrgang).

In its decision, the Disciplinary Board had regard to the

judgment of 29 April 1994 by the Regional Court (Landesgericht) of

Klagenfurt. In this judgment, the Court had convicted the applicant of

having obstructed the exercise of official authority by using violence

against a police officer, in charge of dispersing an unlawful right-

extremist demonstration. He had also been convicted of aggravated

serious bodily harm against this policeman. Moreover the Court had

acquitted the applicant of the charge concerning offences under the

Nationalsocialist Prohibition Act (Verbotsgesetz).

After further investigations, the Disciplinary Board found that,

in addition to his conviction, the applicant's presence at an unlawful,

clearly right-extremist demonstration and his attitude towards the

officers of public safety and order were contrary to the model role he

had to assume as a teacher.

On 18 September 1995, upon the applicant's appeal (Berufung), the

Senior Disciplinary Board for Teachers (Disziplinaroberkommission für

Landeslehrer) reduced the disciplinary sanction to a fine amounting to

five monthly salaries. The Authority pointed out that a teacher had to

bear a high responsibility even in his private conduct. In this

respect, the Authority considered the applicant's duty to ensure his

pupil's political formation as members of a democratic society. In

participating at the unlawful demonstration, the applicant had failed

in his duty of loyalty to an extent that would even justify his

dismissal. The decision was served on 29 September 1995.

COMPLAINTS

1. The applicant, invoking Article 6 of the Convention, raises

various complaints about the disciplinary proceedings against him. He

argues that these proceedings involved the determination of a "criminal

charge" against him. He submits that the disciplinary authorities did

not fulfil the requirements of a "tribunal". He complains in particular

that the members of these disciplinary authorities could not be

regarded as independent judges. He also considers that the Senior

Disciplinary Board lacked impartiality.

2. The applicant further complains under Article 4 of Protocol No. 7

that he was twice convicted of the same offence.

THE LAW

1. The applicant raises various complaints under Article 6 (Art. 6)

of the Convention about the disciplinary proceedings against him.

Article 6 para. 1 (Art. 6-1) of the Convention, so far as

relevant, reads as follows.

"In the determination of his civil rights and obligations or of

any criminal charge against him, everyone is entitled to a fair

and public hearing within a reasonable time by an independent and

impartial tribunal established by law. ... "

The applicant mainly claims that the disciplinary proceedings

against him involved the determination of a "criminal charge", having

regard to the severity of the penalties provided for in the Teacher's

Act. The Commission will, therefore, first examine whether the

"criminal head" of Article 6 (Art. 6) applies.

The Commission recalls that the question whether disciplinary

proceedings against a civil servant involve the determination of a

criminal charge depends on the qualification of the act in domestic

law, the nature of the offence and the nature and severity of the

penalty the accused risked to incur (cf. No. 13877/88, Dec. 17.5.90,

D.R. 65, p. 279; Eur. Court HR, Ravnsborg v. Sweden judgment of

23 March 1994, Series A no. 283-B, pp. 28-31, paras. 30-35).

In the present case, the contested proceedings were classified

as disciplinary under Austrian law and related to the breach of

professional duties. The sanctions the applicant risked to incur ranged

from a reprimand to the infliction of a fine (the sanction which was

actually imposed on him) or dismissal. In this context, the Commission

recalls that, in the case of Kremzow v. Austria, concerning

disciplinary proceedings against a judge following his criminal

conviction (No. 16417/90, Dec. 7.11.90, D.R. 67, p. 307 at p. 309), it

has held that even the withdrawal of rights connected with the

professional status of a civil servant including the loss of pension

rights was a typical sanction of disciplinary law. Thus, the penalties

at stake in the present case were of a purely disciplinary nature (see

also No. 26601/95, Dec. 20.1.97, D.R. 88, p. 85 at p. 93; No. 29764/96,

Dec. 20.10.97 and No. 31117/96, Dec. 20.10.97, both unpublished).

Consequently, the disciplinary proceedings at issue did not

involve the determination of a "criminal charge" against the applicant.

It remains to be examined whether the "civil head" of Article 6

(Art. 6) is applicable to the disciplinary proceedings at issue.

The Commission recalls that disputes relating to the recruitment,

career and termination of service of civil servants are as a general

rule outside the scope of Article 6 para. 1 (Art. 6-1) of the

Convention (Eur. Court HR, Neigel v. France judgment of 17 March 1997

Reports 1997-II, no. 32, pp. 410-411, paras. 43 and 44; see also Gallo

v. Italy judgment of 2 September 1997, Reports 1997-V no. 46, paras.

16-20, where the Court found that judicial review proceedings

concerning a dispute over a disciplinary penalty imposed on a civil

servant, namely one month's suspension, related to his career and did

not concern "civil rights" within the meaning of Article 6 (Art. 6);

see also the Commission's recent decisions No. 29764/96, Dec. 20.10.97

and No. 31117/96, Dec. 20.10.97, both unpublished, in which it held

that Article 6 (Art. 6) does not apply to disciplinary proceedings

resulting in the dismissal of a civil servant).

In the present case, the dispute concerned the question whether

the applicant had committed a disciplinary offence. The Disciplinary

Board and the Senior Disciplinary Board found that he had indeed

committed a serious breach of his professional duties and imposed the

penalty of a fine amounting to five monthly salaries.

In these circumstances the Commission finds that the dispute

related to the applicant's carreer and did not concern a "civil" right

within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention.

It follows that Article 6 (Art. 6) of the Convention is not

applicable in the present case, and that this part of the application

must be rejected under Article 27 para. 2 (Art. 27-2) of the

Convention, as being incompatible ratione materiae with the provisions

of the Convention.

2. The applicant further complains under Article 4 of Protocol No. 7

(P7-4) that he was twice convicted of the same offence.

Article 4 Protocol No. 7 (P7-4), insofar as relevant, reads as

follows:

"1. 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 Commission has found that the disciplinary proceedings

against the applicant did not involve the determination of a "criminal

charge" within the meaning of Article 6 para. 1 (Art. 6-1) of the

Convention. Therefore, it cannot be said that, in these disciplinary

proceedings, the applicant had been, within the meaning of Article 4

of Protocol No. 7 (P7-4), tried or punished again in criminal

proceedings for an offence for which he had already been finally

convicted. Consequently, this provision does not apply to the

disciplinary proceedings at issue.

It follows that this part of the application is also incompatible

ratione materiae with the provisions of the Convention and must be

rejected in accordance with its Article 27 para. 2 (Art. 27-2).

For these reasons, the Commission, by a majority,

DECLARES THE APPLICATION INADMISSIBLE.

M.F. BUQUICCHIO M.P. PELLONPÄÄ

Secretary President

to the First Chamber of the First Chamber

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SCHATZMAYR v. AUSTRIA

SCHATZMAYR v. AUSTRIA

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