Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 30993/96

by Karlheinz DEMEL

against Austria

The European Commission of Human Rights (First Chamber) sitting

in private on 16 April 1998, the following members being present:

MM M.P. PELLONPÄÄ, President

N. BRATZA

A. WEITZEL

C.L. ROZAKIS

Mrs J. LIDDY

MM L. LOUCAIDES

B. MARXER

I. BÉKÉS

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

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 15 December 1995

by Karlheinz DEMEL against Austria and registered on 12 April 1996

under file No. 30993/96;

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 1937, is an Austrian national residing in

Vienna. Before the Commission the applicant is represented by

MM. Strigl and Horak, lawyers practising in Vienna.

The applicant's previous applications Nos. 14610/90 and 17670/91

related to the secret surveillance of his telephone conversations in

the course of criminal proceedings against him and were declared

inadmissible on 31 August 1992 and 7 April 1994, respectively. His

application No. 17850/91 concerning his suspension from office as a

judge in the course of disciplinary proceedings against him was

declared inadmissible as being incompatible ratione materiae on

11 February 1993. His application No. 24208/94 relating to the

unfairness of criminal proceedings against him was declared

inadmissible on 18 October 1995.

A. Particular circumstances of the case

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

summarised as follows.

In February 1989 criminal and disciplinary proceedings were

instituted against the applicant, who was at that time a judge at and

President of the Vienna Labour and Social Court (Arbeits- und

Sozialgericht), on suspicion of being an accessory after the fact

(Begünstigung) in connection with the "Lucona case" (high profile

criminal proceedings concerning charges of murder and of fraud in

connection with the sinking of the ship "Lucona"). Later, the

investigations were extended to include suspicion of abuse of authority

(Amtsmißbrauch). In accordance with S. 144 of the Law on the Judiciary

(Richterdienstgesetz) the disciplinary proceedings were suspended

pending the outcome of the criminal proceedings.

On 2 May 1989 the Austrian Supreme Court (Oberster Gerichtshof),

sitting as a Disciplinary Court, suspended the applicant from office.

The Court reserved its decision as to whether or not the applicant's

salary ought to be reduced. Following the Constitutional Court's

(Verfassungsgerichtshof) judgment, setting aside the provision of the

Law on the Judiciary which left the reduction of a suspended judge's

salary to the discretion of the disciplinary court, an amendment

providing for an automatic reduction of one third of the salary during

a judge's suspension entered into force on 1 June 1990. As of that

date, the applicant's salary was reduced accordingly. His complaints

to the Constitutional Court and to the Administrative Court

(Verwaltungsgerichtshof) remained unsuccessful.

On 29 April 1992 the Vienna Regional Criminal Court

(Landesgericht für Strafsachen) convicted the applicant of abuse of

authority and of having given false testimony (falsche Beweisaussage).

It sentenced him to five months' imprisonment suspended on probation

and imposed a fine and 120 days' imprisonment in case of default.

The Regional Court found that the applicant had committed abuse

of authority in that, between April 1987 and May 1989, he had

continually instructed a secretary employed at the President's Office

of the Vienna Labour and Social Court to perform typing work for his

private purposes, during her working hours and using the technical

equipment of the court. Furthermore, he had given false testimony when

being heard as a witness by the parliamentary investigation committee

relating to the "Lucona case".

On 28 September 1993 the Supreme Court dismissed the applicant's

plea of nullity and his appeal (Nichtigkeitsbeschwerde und Berufung).

On 24 November 1994 the Supreme Court, sitting as a Disciplinary

Court, held an oral hearing relating to the disciplinary charges

against the applicant. After the applicant had been questioned, the

hearing was adjourned, since the applicant felt unable to follow the

hearing due to his state of health. Subsequently, the court decided to

obtain an expert opinion on the question whether the applicant was

capable of pleading (verhandlungsfähig). On 23 May 1995 the expert

confirmed the applicant's capability of pleading.

On 3 July 1995 the Supreme Court resumed the hearing and found

the applicant guilty of having violated his professional duties under

S. 57 paras. 1 and 3 of the Law on the Judiciary, by having abused his

authority and by having given false testimony, offences for which he

had been convicted by the Vienna Regional Court. Having regard to the

seriousness of the applicant's misconduct, it imposed the penalty of

permanent retirement with a pension reduced by 25 percent.

The Supreme Court found that it was bound by the final decision

of the criminal courts and, therefore, did not have to re-examine

whether the applicant had committed the criminal offences of which he

had been convicted by the Vienna Regional Criminal Court, but only

whether the applicant had thereby committed a disciplinary offence

(Dienstvergehen). Consequently, the court refused various requests for

the taking of evidence by which the applicant intended to show that the

had not committed the criminal offences.

As to the applicant's argument that the hearing should have been

in public, the Supreme Court stated that according to S. 133 para. 1

of the Law on the Judiciary the oral disciplinary hearing was not in

public. However, the applicant had the right, of which he had availed

himself, to request that three persons in whom he had confidence were

admitted to the hearing. The Supreme Court pointed out that, even

assuming that Article 6 of the Convention applied to the disciplinary

proceedings at issue, S. 133 para. 1 of the Law on the Judiciary was

in conformity with the Convention. It found in particular that, in the

case of disciplinary proceedings against judges, not only the interests

of public order and justice, but also the protection of the accused

justified the general exclusion of the public. Moreover, it recalled

that Austria had made a reservation with regard to Article 6 of the

Convention. The Supreme Court also rejected the applicant's further

arguments relating inter alia to Article 2 of Protocol No. 7.

B. Relevant domestic law

S. 57 of the Law on the Judiciary (Richterdienstgesetz) deals

with a judge's professional duties. It provides inter alia that a judge

has to serve the Republic and to abide by the Federal Constitution and

any other law (paragraph 1). Further, a judge has to behave in a manner

beyond reproach, whether or not he is acting in an official capacity,

and must refrain from any act which might diminish confidence in

judicial acts or the esteem of the judiciary (paragraph 3).

Section 104 para. 1 of the Law on the Judiciary enumerates the

following disciplinary penalties: reprimand, exclusion from promotion,

reduction of salary, transfer to another duty-station without removal

allowance, retirement with a reduced pension and dismissal.

According to S. 108 para. 1 retirement with a reduced pension can

be ordered temporarily or permanently, with a reduction of the pension

of up to 25 percent.

COMPLAINTS

1. The applicant, invoking Article 6 paras. 1, 2 and 3 (d) 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, having regard to the

severity of the penalties provided for in the Law on the Judiciary. He

further argues that the proceedings affected his pension claims and

thus determined "civils right and obligations". The applicant complains

in particular that the proceedings lasted unreasonably long, that the

Supreme Court, sitting as a Disciplinary Court, did not fulfil the

requirements of a "tribunal" as it was bound by the decisions of the

criminal courts and, thus, rejected his requests for the taking of

evidence and that the Supreme Court did not hold a public hearing.

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

that his disciplinary conviction was not reviewed by a higher court,

and 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 Law on the

Judiciary. 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 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 incurring

ranged from a reprimand to his retirement with a reduced pension (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 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

applicant argues that these proceedings affected his pension claims and

were, thus, civil in nature.

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

Court found that he had indeed committed a serious breach of his

professional duties and imposed the penalty of permanent retirement

with a reduced pension.

In these circumstances the Commission finds that the dispute

related to the termination of the applicant's service and did not

concern a "civil" right within the meaning of Article 6 para. 1

(Art. 6-1) of the Convention. As to the reduction of his pension claim,

the Commission notes that it was directly dependent on the court's

finding on the main issue (see mutatis mutandis, Neigel v. France

judgment, loc. cit.)

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 2 of Protocol

No. 7 (P7-2) that his disciplinary conviction was not reviewed by a

higher court, and under Article 4 of Protocol No. 7 (P7-4) that he was

twice convicted of the same offence.

Article 2 Protocol No. 7 (P7-2), insofar as relevant, reads as

follows:

"1. Everyone convicted of a criminal offence by a tribunal

shall have the right to have his conviction or sentence reviewed

by a higher tribunal. ..."

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 was convicted of a "criminal offence" within

the meaning of Article 2 of Protocol No. 7 (P7-2) (cf. No. 17571/90,

Dec. 2.9.93, D.R. 75, p. 139 at p. 152), nor that he 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, these provisions do 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, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

M.F. BUQUICCHIO M.P. PELLONPÄÄ

Secretary President

to the First Chamber of the First Chamber

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DEMEL v. AUSTRIA

DEMEL v. AUSTRIA

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