AS TO THE ADMISSIBILITY OF

                      Application No. 19363/92

                      by Gerhard HIRMANN

                      against Austria

     The European Commission of Human Rights (First Chamber) sitting

in private on 6 April 1995, the following members being present:

           Mr.   C.L. ROZAKIS, President

           Mrs.  J. LIDDY

           MM.   E. BUSUTTIL

                 A.S. GÖZÜBÜYÜK

                 A. WEITZEL

                 M.P. PELLONPÄÄ

                 B. MARXER

                 B. CONFORTI

                 N. BRATZA

                 I. BÉKÉS

                 E. KONSTANTINOV

           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 21 November 1991

by Gerhard Hirmann against Austria and registered on 16 January 1992

under file No. 19363/92;

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

of Procedure of the Commission;

     Having regard to the observations submitted by the respondent

Government on 6 May 1994 and the observations in reply submitted by the

applicant on 13 July 1994;

     Having deliberated;

     Decides as follows:

THE FACTS

     The facts of the case, as they have been submitted by the

parties, may be summarised as follows:

     The applicant is an Austrian citizen, born in 1928 and resides

in Ennsdorf. He is a civil engineer by profession, specialising in

agriculture and forestry matters.

A.   Particular circumstances of the case

     The applicant, having inspected court files concerning

expropriation cases in connection with his publishing of articles, sent

letters to various courts criticising several court experts.

     On 4 December 1986 the Disciplinary Board (Disziplinarsenat) of

the Engineer Chamber (Ingenieurkammer) of Vienna, Lower Austria and

Burgundy, referring to the Engineers' Rules of Professional Conduct

(Standesregeln der Ziviltechniker) and S. 48 para. 1 of the Engineer

Chamber Act (Ingenieurkammergesetz) found the applicant guilty of

having disregarded the principle of loyalty towards his colleagues and

having criticised other engineers in a disparaging way. The

Disciplinary Board issued a reprimand (schriftlicher Verweis) against

him.

     In its decision, the Disciplinary Board had regard to three

letters written by the applicant. In his letter of 14 March 1985,

addressed to the President of the Bad Ischl District Court (Bezirks-

gericht), the applicant had referred to "arithmetic tricks" and stated

in particular that "he quite understood that in administrative

proceedings only those experts were appointed by the court (in that

particular case a civil engineer specialising in forestry and the

timber industry) who gave, in a 'superficial and bungling manner'

('Husch-Pfusch-Verfahren'), obviously low estimates and deliberately

overlooked important factors". The applicant had further requested the

President of the Klagenfurt Regional Court (Landesgericht) to consider

the above letter of 14 March 1985 and to assess the qualifications of

expert M. Moreover, he had requested the President of the Klagenfurt

Regional Court to consider his submissions to the Feldkirchen District

Court of 4 January 1986, which contained criticism regarding the

experts G. and L., with a view to assessing their professional

qualifications. The Disciplinary Board considered that the applicant

had thereby overstepped the limits of a generally permissible criticism

amongst civil engineers, and that a prejudice to the professional

reputation of his colleagues whom he indicated with their names could

not be excluded.

     On 15 June 1987 the Disciplinary Commission (Disziplinar-

kommission) of the Federal Engineer Chamber, following an oral hearing,

dismissed the applicant's appeal (Berufung).

     The Disciplinary Commission considered in particular that, even

assuming that it was correct that in expropriation proceedings where

civil engineers were appointed as court experts the amounts awarded as

compensation were very moderate and to the disadvantage of the persons

expropriated, the applicant had no right to take recourse to undue

criticism and disregard the principle of loyalty under the Rules of

Professional Conduct. The Disciplinary Commission, having regard to the

wording of the applicant's statements in question, also found that he

had reproached the court experts concerned for having acted - partly

deliberately - contrary to their duties. Such criticism had not been

necessary in order to disclose alleged grievances. The applicant had

also acted disloyally in that he had requested various courts to assess

the professional qualifications of certain engineers and thus placed

them at the risk of professional disadvantages. He should have rather

informed the competent Engineer Chamber.

     On 3 March 1989 the Constitutional Court (Verfassungsgerichts-

hof), upon the applicant's constitutional complaint, found that the

Disciplinary Commission's decision of 15 June 1987 violated his right

to freedom of expression. The decision in question was quashed, and the

case referred back to the Disciplinary Commission.

     The Constitutional Court confirmed that the impugned decision was

prescribed by the relevant provisions of the Engineer Chamber Act. It

also considered that it was necessary, in a democratic society, to

protect the reputation and rights of others, here civil engineers,

against unfair criticism by their colleagues in the context of

disciplinary proceedings. However, civil engineers were not in general

exempt from criticism, and justified criticism by their colleagues

could not automatically be regarded as violation of the principle of

loyalty. In particular, such criticism could not be limited to

submissions addressed to the competent Engineer Chamber. In the light

of these considerations, the findings of the lower instances could not

be objected to, except for their assessment of the applicant's request

to the President of the Klagenfurt Regional Court to take note of a

letter addressed to the Feldkirchen District Court, which did not

contain unfair criticism.

     On 19 July 1989 the Disciplinary Commission of the Federal

Engineer Chamber (Bundesingenieurskammer) acquitted the applicant of

having disregarded the Rules of Professional Conduct regarding the

statement on "arithmetic tricks" in his letter of 14 March 1985

addressed to the Bad Ischl District Court as well as his letter to the

President of the Klagenfurt Regional Court. It dismissed the remainder

of the applicant's appeal against the decision of 4 December 1986.

Rather, the Disciplinary Commission, referring to S. 48 paras. 1 and

2 and S. 49 of the Engineer Chamber Act and the Rules of Professional

Conduct of Civil Engineers, found the applicant guilty of having, in

two respects, committed a disciplinary offence and issued a reprimand

against him.

     The Disciplinary Commission, having particularly regard to the

Constitutional Court's findings, considered that the wording

'superficial and bungling manner' ('Husch-Pfusch-Verfahren'), and his

assertion that some experts gave obviously low estimates and

deliberately overlooked important compensation factors, as well as his

request to the President of the Klagenfurt Regional Court to consider

the above submissions, constituted unfair and disparaging criticism and

were not covered by the right to freedom of expression.

     On 1 October 1991 the Constitutional Court refused to entertain

the applicant's further constitutional complaint. The Constitutional

Court found that the challenged decision had been taken in the light

of its previous judgment of 12 December 1988 and could not be objected

to. The applicant's request to transfer the complaint to the

Administrative Court (Verwaltungsgerichtshof) was rejected on the

ground that the matter was excluded from its competence.

B.   Relevant domestic law

     The Federal Engineer Chamber Act, Federal Law Gazette 1969/71

(Ingenieur-Kammergesetz, BGBL 1969/71) established four Regional

Chambers (Landeskammern) and a Federal Chamber (Bundeskammer), which

are public law institutions. Membership in a Regional Chamber and the

Federal Chamber is compulsory for civil engineers who exercise their

profession (S. 5).

     According to S. 48 para. 1, civil engineers are subjected to

disciplinary sanctions if (1) they disparage colleagues and/or

superiors, either publicly or in private, or (2) their conduct is not

in line within the meaning of the oath to which they are sworn as a

member of this profession. S. 49 para. 1 provides for disciplinary

measures, a reprimand being the lowest sanction.

     Furthermore, the Engineer Chamber has issued Regulations on the

Professional Conduct (Standesregeln) of Civil Engineers, which lay down

inter alia the principle of loyalty between civil engineers and

prohibit unfair and disparaging criticism of other civil engineers.

COMPLAINTS

     The applicant complains under Article 10 of the Convention that

the reprimand issued against him violated his right to freedom of

expression.

PROCEEDINGS BEFORE THE COMMISSION

     The application was introduced on 21 November 1991 and registered

on 16 January 1992.

     On 2 March 1994 the Commission decided to communicate the

applicant's complaint about the decision of the Disciplinary Commission

of the Federal Engineer Chamber of 19 July 1989 to the respondent

Government, pursuant to Rule 48 para. 2 (b) of the Rules of Procedure.

The remainder of the application was declared inadmissible.

     The Government's written observations were submitted on

6 May 1994. The applicant replied on 13 July 1994.

THE LAW

     The applicant complains under Article 10 (Art. 10) of the

Convention that the reprimand issued by the Disciplinary Commission of

the Federal Chamber on 19 July 1989 infringed his right to freedom of

expression.

     Article 10 (Art. 10) of the Convention, as far as relevant,

provides:

     "1.   Everyone has the right to freedom of expression.  This

     right shall include freedom to hold opinions and to receive and

     impart information and ideas without interference by public

     authority ...

     2.    The exercise of these freedoms, since it carries with it

     duties and responsibilities, may be subject to such formalities,

     conditions, restrictions or penalties as are prescribed by law

     and are necessary in a democratic society, ... for the protection

     of the reputation or rights of others ..."

a.   The respondent Government maintain that the applicant failed to

lodge his complaint within the six months' time-limit, as required by

Article 26 (Art. 26) of the Convention.  They submit that the

Constitutional Court, in its decision of 3 March 1989, only objected

to the findings of the disciplinary bodies in regard to the applicant's

request to the President of the Klagenfurt Regional Court to take note

of a letter addressed to the Feldkirchen District Court, which did not

contain unfair criticism.  Thus, as to the disciplinary punishment for

the remainder of statements made by him, this decision of 3 March 1989,

or at least the decision of the Disciplinary Commission of the Federal

Engineer Chamber of 19 July 1989, applying the principles established

by the Constitutional Court, constituted the final decisions for the

purposes of Article 26 (Art. 26).  The applicant's second complaint to

the Constitutional Court could not be regarded as an effective remedy.

     The applicant submits that the Constitutional Court, in the said

decision of 3 March 1989, quashed the Disciplinary Commission's

decision of 15 June 1987 in its entirety.  At that time, he could not,

therefore, have complained of any decision to his detriment.  Moreover,

the second set of proceedings comprised a full examination of all the

disciplinary charges against him.  Thus his complaint to the

Constitutional Court regarding the Disciplinary Commission's decision

of 19 July 1989 could not be regarded as an ineffective remedy.

     The Commission recalls that according to Article 26 (Art. 26) of

the Convention, "it may only deal with the matter ... within a period

of six months from the date on which the final decision was taken".

     In the present case, the applicant's disciplinary conviction in

the first set of proceedings was quashed by the Constitutional Court

in March 1989, and subsequently, new proceedings were conducted against

the applicant before the Disciplinary Commission.  In the light of the

Constitutional Court's reasoning, the applicant was again convicted of

part of the charges against him, and acquitted of the remainder.  His

second complaint to the Constitutional Court was dismissed on

1 October 1991 as unfounded.

     In these circumstances, the applicant, having lodged his

application on 21 November 1991, may be regarded as having complied

with the six months' rule under Article 26 (Art. 26). The application

cannot, therefore, be rejected under Article 27 para. 3 (Art. 27-3) of

the Convention.

b.   As regards the merits of the applicant's complaint, the

Government submit that the interference with the applicant's right to

freedom of expression was justified under Article 10 para. 2

(Art. 10-2) of the Convention.  According to the Government, the legal

basis of the interference concerned was S. 48 para. 1 of the Engineer

Chamber Act in conjunction with the Rules of Professional Conduct.  It

pursued the legitimate aim of protecting the reputation of the

applicant's colleagues, and, having particular regard to the reasoning

of the Constitutional Court, was necessary in a democratic society.

     The applicant maintains that his criticism of his colleagues was

justified, and that a disciplinary punishment for such criticism was

not necessary in a democratic society.  He also raises doubts as to the

clarity of the legal basis for his punishment, as far as the Rules of

Conduct were concerned.

     The Commission notes that on 19 July 1989 the Disciplinary

Commission of the Austrian Federal Engineer Chamber, following earlier

successful appeal proceedings, found that the applicant had disregarded

rules of professional conduct in that he had criticised his colleagues

in an unfair and disparaging manner, and issued a reprimand against

him.

     The Commission finds that this measure constituted an

interference with the exercise of the applicant's freedom of

expression. Such interference is in breach of Article 10 (Art. 10),

unless it is justified under paragraph 2 of Article 10 (Art. 10-2),

i.e. it must be "prescribed by law", have an aim or aims that is or are

legitimate under Article 10 para. 2 (Art. 10-2) and be "necessary in

a democratic society".

     The legal basis of the interference under consideration was S. 48

para. 1 and S. 49 of the Federal Engineer Chamber Act in combination

with the Rules of Professional Conduct.  The Commission finds that

these provisions were accessible, and that the disciplinary measure

complained of was also foreseeable under the relevant legislation

(cf. mutatis mutandis, Eur. Court H.R., Barthold judgment of

25 March 1985, Series A no. 90, pp. 21-23, paras. 45-48).  The

reprimand issued against the applicant can, therefore, be considered

as "prescribed by law" for the purposes of Article 10 para. 2

(Art. 10-2).

     Moreover, the decisions complained of aimed to protect "the

reputation or rights of others", namely the civil engineers criticised

by the applicant, which is a legitimate aim under Article 10 para. 2

(Art. 10-2).

     It remains to be determined whether the interference complained

of was "necessary in a democratic society" and proportionate to the

legitimate aim pursued.

     The Commission recalls that the adjective "necessary" within the

meaning of Article 10 para. 2 (Art. 10-2) implies the existence of a

"pressing social need". The Contracting States have a certain margin

of appreciation in assessing whether such a need exists, but it goes

hand in hand with a European supervision (cf. European Court H.R.,

Observer and Guardian judgment of 26 November 1991, series A No. 216

pp. 29-30, para. 59).

     The Commission notes that disciplinary proceedings were conducted

against the applicant for breach of the principle of loyalty and for

having criticised other civil engineers in an unfair and disparaging

manner, in accordance with the relevant provisions of the Rules of

Professional Conduct and the Federal Engineer Chamber Act.

     The Commission has seen the interference complained of in

particular against the background of the decisions taken in the first

set of proceedings which were quashed by the Constitutional Court on

3 March 1989 on the ground that the Disciplinary Commission had, as

regards one of the letters, disregarded the applicant's right to

freedom of expression.  In a detailed reasoning, the Constitutional

Court balanced the right to raise criticism against the necessity, in

a democratic society, to protect the reputation and rights of others,

here civil engineers, against unfair criticism by their colleagues in

the context of disciplinary proceedings.

     In the second set of proceedings, the Disciplinary Chamber, in

the light of the Constitutional Court's considerations, confirmed the

finding of a breach of professional duties in respect of the unfair and

disparaging wording of two of the letters sent by the applicant. In the

first of these letters, he had stated that particular experts worked

in an 'superficial and bungling manner' ('Husch-Pfusch-Verfahren'), and

that they gave obviously low estimates and deliberately overlooked

important compensation factors. In the second letter, he had requested

the President of the Klagenfurt Regional Court to consider the above

submissions.

     The Commission finds that, balancing the applicant's interest in

raising criticism in respect of the professional performance of some

of his colleagues, and the protection of the reputation and rights the

civil engineers concerned against unfair and disparaging statements,

there were relevant and sufficient reasons for a disciplinary measure

against the applicant.

     Moreover, the sanction chosen, i.e. a reprimand, does not appear

disproportionate to the legitimate aim pursued.

     In these circumstances, the interference complained of can,

therefore, be regarded as "necessary in a democratic society" within

the meaning of Article 10 para. 2 (Art. 10-2) of the Convention.

     Accordingly, there is no appearance of a violation of the

applicant's right under Article 10 (Art. 10) of the Convention.

     It follows that the remaining part of the application is

manifestly ill-founded with the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

     For these reasons, the Commission, by a majority,

     DECLARES THE REMAINDER OF THE APPLICATION INADMISSIBLE.

Secretary to the First Chamber        President of the First Chamber

     (M.F. BUQUICCHIO)                        (C.L. ROZAKIS)