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AS TO THE ADMISSIBILITY

Application No. 16417/90

by Friedrich Wilhelm KREMZOW

against Austria

The European Commission of Human Rights sitting in private on

7 November 1990, the following members being present :

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

F. ERMACORA

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.C. SOYER

H.G. SCHERMERS

H. DANELIUS

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.C. GEUS

A.V. ALMEIDA RIBEIRO

M.P. PELLONPÄÄ

Mr. H.C. KRÜGER, Secretary to the Commission

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 1990

by friedrich Wilhelm KREMZOW against Austria and registerd on 9 April

1990 under file No. 16417/90 ;

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 is an Austrian citizen born in 1938 who is

serving a life sentence for murder and unlawful possession of a

firearm. The criminal proceedings which led to his conviction and

sentence are the subject of Application No. 12350/86, which was

declared admissible by the Commission on 5 september 1990.

The facts submitted in the present case may be summarised as

follows.

The applicant complains of disciplinary proceedings taken

against him, as a retired judge, in relation to the same facts which

had led to his criminal conviction. they were found also to

constitute a disciplinary offence and the applicant was sentenced to

the loss of all rights connected with his former position as a retired

judge including loss of his pension rights.

In first instance the proceedings took place before the Vienna

Court of Appeal acting as Disciplinary Court (Oberlandesgericht als

Disziplinargericht). After the admission of the indictment by this

Court the case was to be heard by the same Court. The applicant

challenged the judges, arguing that by admitting the indictment they

had already expressed an opinion on the case. The challenge was first

rejected by the Court, but after a successful appeal to the Supreme

Court different judges were called upon to rule on the challenge. It

was again rejected following which the Court in its original

composition convicted the applicant on 22 June 1988. The Court

essentially found that it was bound by the final decision of the

criminal courts which revealed a behaviour by the applicant that also

constituted a disciplinary offence.

The appeal proceedings took place before the Supreme Court

acting as Disciplinary Court of Appeal (Oberster Gerichtshof als

Disziplinarberufungsgericht). The applicant invoked in particular

Article 6 of the Convention. Before the Supreme Court's hearing the

Attorney General's office (Generalprokuratur) was invited to comment

on the file and in this context was told the name of the Supreme

Court's Rapporteur. Contrary to the criminal proceedings, the

applicant was allowed to participate personally in the Supreme Court's

hearing. Three judges of the Supreme Court, including its President

and Vice-President, declared themselves disqualified. The applicant's

challenge of a further judge was rejected although that judge stated

that he had been the Judge Rapporteur in the criminal case and that he

had prepared a draft decision for the Supreme Court which had been

discussed several times in the competent Chamber before the hearing of

the applicant's criminal appeal. On 3 October 1989 the Supreme Court

rejected the applicant's appeal, holding inter alia that Article 6 of

the Convention was not applicable to the disciplinary proceedings in

question. The decision was served on the applicant on 15 November

1988.COMPLAINTS

The applicant claims that in the above disciplinary

proceedings the Courts in substance determined a "criminal charge"

against him and that Article 6 of the Convention is therefore

applicable ; he does not claim that the proceedings determined his

"civil rights and obligations".

In his submission there has been a violation of Article 6

para. 1 in that the Courts were not "impartial" and in that he did not

enjoy a "fair hearing" ; of Article 6 para. 2 because the Courts

considered themselves bound by his criminal conviction ; of Article 6

para. 3 (d) because evidence in his favour (an admission by his

deceased mother in her will that she had killed the victim) was not

accepted ; and finally of Article 4 of Protocol No. 7 to the

Convention ("ne bis in idem") because he was twice convicted of the

same offence. the applicant considers the Austrian reservation

concerning the latter provision as invalid under Article 64 of the

Convention in that it is of a general charcter and does not contain a

brief statement of the law concerned.

THE LAW

1. The applicant complains of disciplinary proceedings taken

against him as a retired judge following his criminal conviction of

murder and unlawful possession of a firearm. He claims that the

disciplinary proceedings concerned the determination of the same

criminal charges, that Article 6 (Art. 6) therefore applied to them,

and that requirements of this provision were disregarded in several

respects.

The Commission recalls the case law based on the Engel

judgment of the Court according to which disciplinary proceedings must

in certain circumstances be qualified as "criminal" for the purposes

of the Convention in order to make sure that the Contracting States,

when choosing to prosecute certain acts as disciplinary offences, do

not allow the disciplinary to "improperly encroach upon the criminal"

and thereby avoid the applicability of Article (Art. 6) (cf. Eur.

Court H.R. judgment of 8 June 19876, Series A no. 22, p. 34 para.

81). it is true that in this context the Court also referred to

"mixed offences" and the fact of "cumulating criminal proceedings and

disciplinary proceedings" (ibid. para. 86) such as it occurred in the

present case.

However, the Commission notes that in the applicant's case the

criminal and the disciplinary consequences of the applicant's acts

were strictly distinguished. In fact, the Disciplinary Court did not

itself "convict" the applicant of the criminal offences concerned ; it

based itself on the conviction pronounced by the competent criminal

court which it considered as binding. The Disciplinary Court's task

was in essence limited to an examination of the quetion whether in the

case of the applicant being a retired judge the commission of the

serious criminal offences of which he had been found guilty also

constituted a disciplinary offence. This was confirmed and the

applicant was consequently subjected to the additional sanctions of

the disciplinary law. In the Commission's opinion they were the

typical sanctions which many Contracting States' disciplinary statutes

for civil servants provide in such cases : withdrawal of rights

connected with the professional status of a civil servant, including

loss of pension rights.

It follows that Article 6 (Art. 6) is not applicable in the

present case, and the applicant's complaints under his provision must

accordingly be rejected under Article 27 para. 2 (Art. 27-2) as being

incompatible with the provisions of the Convention, ratione materiae.

2. As regards the applicant's further complaint under Article 4

of Protocol No. 7 (P7-4) to the Convention, the Commission considers

that it is not required to examine the applicant's arguments

concerning the validity of the Austrian reservation to this

provision. It has just found that the disciplinary proceedings

complained of cannot be qualified as further criminal proceedings

against the applicant.

The conduct of criminal and subsequent genuine disciplinary

proceedings is a normal phenomenon in many Contracting States to which

Article 4 of Protocol No. 7 (P7-4) does not apply. Accordingly, this

part of the application must also be rejected as being incompatible

with the provisions of the Convention, ratione materiae.

For these reasons, the Commission, by a majority,

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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KREMZOW v. AUSTRIA

KREMZOW v. AUSTRIA

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