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HEIN v. AUSTRIA

Doc ref: 20831/92 • ECHR ID: 001-2554

Document date: March 2, 1994

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Cited paragraphs: 0
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HEIN v. AUSTRIA

Doc ref: 20831/92 • ECHR ID: 001-2554

Document date: March 2, 1994

Cited paragraphs only

AS TO THE ADMISSIBILITY OF

Application No. 20831/92

by Günther HEIN

against Austria

The European Commission of Human Rights sitting in private on

2 March 1994, the following members being present:

MM. A. WEITZEL, President

C.L. ROZAKIS

F. ERMACORA

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

Mrs. J. LIDDY

MM. M.P. PELLONPÄÄ

B. MARXER

G.B. REFFI

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 7 October 1992 by

Günther HEIN against Austria and registered on 22 October 1992 under

file No. 20831/92;

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

of Procedure of the Commission;

THE FACTS

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

applicant, may be summarised as follows:

The applicant, a judge of the Spittal/Drau District Court

(Bezirksgericht), was requested by his superiors to submit a note on

the stage of proceedings in several cases assigned to him, in which,

apparently, no action had been taken since two years. The applicant,

in his reply, expressed his bewilderment about this interference with

his independence as a judge, and the hope that no further requests of

this kind, which unnecessarily delayed his real work, would be filed.

On 24 May 1991 the President of the Graz Court of Appeal (Ober-

landesgericht) brought a disciplinary charge against the applicant on

the ground of the backlog in the applicant's work and of a violation

of the rules on professional conduct (Dienst- und Standespflichten),

required of a judge.

On 27 January 1992 the President of the Graz Court of Appeal

filed an additional disciplinary charge, as the applicant had refused

to comply with a request for mutual assistance (Rechtshilfeersuchen)

filed by the Klagenfurt Regional Court (Landesgericht).

On 29 January 1992 the Supreme Court (Oberster Gerichtshof)

rejected the applicant's request, according to Section 91 of the

Organization of Courts Act, to fix a time limit in the disciplinary

proceedings, as Section 91 did not apply to such proceedings.

On 8 April 1992 the Graz Court of Appeal found the applicant

guilty of having violated the rules of professional conduct required

of a judge and issued a warning (Ermahnung). The Graz Court of Appeal

referred to the applicant's refusal to comply with the request for

mutual assistance and his provocative reply to his superiors. He had

thereby acted in a way likely to impair the authority of the judiciary.

The judgment was served upon the applicant on 27 May 1992.

COMPLAINTS

1. The applicant complains under Article 6 paras. 1 and 3 (c) of the

Convention about the length and alleged unfairness of the disciplinary

proceedings against him. He considers that in these proceedings his

civil rights and obligations as an employee were determined. He submits

that he had no opportunity to defend himself. He complains that the

Supreme Court refused to set a time-limit. He also invokes Article 13.

2. He further complains under Article 10 of the Convention that the

Court of Appeal's judgment sanctioned his comments that requests for

notes on the state of proceedings unduly interfered with a judge's

independence. He also invokes Article 4 para. 2 in this respect.

THE LAW

1. The applicant complains under Articles 6 and 13 (Art. 6, 13) of

the Convention about the length and alleged unfairness of the

disciplinary proceedings.

The Commission notes that, in the course of disciplinary

proceedings under Austrian law, the Graz Court of Appeal issued a

warning against the applicant for breach of the rules on the

professional conduct required of a judge.

The Commission finds that, according to the criteria laid down

in the case law of the Convention organs (see Eur. Court H.R., Engel

and Others judgment of 8 June 1976, Series A no. 22, p. 34 et seq.,

para. 82), these proceedings concerned offences of a disciplinary

nature and resulted in a typically disciplinary sanction, and did not,

therefore, involve the determination of a criminal offence.

Moreover, even assuming that the applicant's employment in the

Austrian civil service could be considered as a civil right, this right

was not the subject of the disciplinary proceedings in question and was

not affected by the decision to issue a warning against him (cf.,

No. 8249/78, Dec. 5.5.80, D.R. 20 p. 40).

Accordingly, the proceedings in question fall outside the scope

of Article 6 (Art. 6) of the Convention. No issue arises under Article

13 (Art. 13) of the Convention.

It follows that this part of the application is incompatible

ratione materiae with the provisions of the Convention within the

meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

2. The applicant also complains that the warning issued against him

amounted to a violation of his right to freedom of expression, as

guaranteed under Article 10 (Art. 10) of the Convention. He also

invokes Article 4 para. 2 (Art. 4-2) in this respect.

The Commission notes that the Graz Court of Appeal found that the

applicant had breached the rules of professional conduct as a judge in

that, inter alia, he had addressed his superiors in a provocative and

unsuitable manner.

The Commission finds that the warning issued against the

applicant as a disciplinary sanction can reasonably be considered as

necessary in a democratic society within the meaning of Article 10

para. 2 (Art. 10-2) of the Convention "for maintaining the authority

and impartiality of the judiciary".

There is no appearance of a violation of other Convention rights,

as invoked by the applicant.

It follows that this part of the application is manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

For these reasons, the Commission by a majority

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the First Chamber President of the First Chamber

(M.F. BUQUICCHIO) (A. WEITZEL)

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