CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 6 avril 1967

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }  THE FACTS   Whereas the facts presented by the Applicant when lodging his Application may be summarised as follows:   The Applicant is an Austrian citizen born in 1910 in Vienna. He is a professor of international law and was teaching until 1962 at the University of Graz. Since 1967 he is living in Cologne/Germany.   On .. January, 1962, a German law student of the University of Graz, S, accused him of having an agreement with a crammer, Dr. K, under which he favoured in examinations those candidates who attended the courses of Dr. K. This allegation led both to criminal and disciplinary proceedings against the Applicant.   On .. January, 1962, the Rector of the University transmitted a statement of S's allegations to the Public Prosecutor (Staatsanwaltschaft beim Landesgericht für Strafsachen) of Graz and informed at the same time the Federal Minister of Education (Bundesminister für Unterricht).   On .. February, 1962, the Minister suspended the Applicant provisionally from his functions on the ground that the charges against him were liable to prejudice the reputation of the University. The suspension took immediate effect and was, according to its terms, not subject to any remedy.   On .. March, 1962, the Disciplinary Chamber (Disziplinarkammer) at the University of Vienna to which the case had been referred on .. January, 1962, opened disciplinary proceedings against the Applicant on the above-mentioned charge and on the charge of having made excessive debts in violation of the canons of professional ethics. By decision of .. April, 1962, notified to the Applicant on .. May, 1962, the Disciplinary Chamber confirmed the provisional suspension.   On .. June, 1962, the Applicant was heard on the charge of excessive debts by a commissioner charged with the preliminary investigation (Untersuchungskommissär).   According to the Applicant the Disciplinary Chamber was willing, in January, 1963, to set aside the suspension, but upon a personal intervention of the Minister of Education on .. February, 1963, the Disciplinary Prosecutor objected and thus prevented the setting aside of the suspension.   On .. May, 1963, the criminal proceedings against the Applicant were discontinued by the Regional Court of Graz under Article 90 of the Code of Criminal Procedure on the ground that the charges were ill-founded.   The student S himself had withdrawn his accusations already on .. February, 1962, and the Applicant states that in the course of criminal proceedings instituted against S at Stuttgart on the basis of a charge of defamation laid by him (the Applicant) on .. January, 1962, S had been declared by an expert to be a schizoid psychopath. Later the Applicant brought a civil action against S before the Regional Court (Landgericht) of Stuttgart. S first offered a compromise which was rejected by the Applicant on .. January, 1964. After S had been 10 days in hospital for danger of suicide, the Court ordered an examination of his mental health on .. February, 1964, when he did not bring any evidence within a time-limit fixed by the Court and when his own (fourth) lawyer questioned his sanity. In an intermediary order of .. October, 1965, the Court stated that it considered S's allegations to be false. As to his financial difficulties the Applicant submits that they were found in the criminal proceedings to be due to the sudden blocking of his possessions at East Berlin as a reaction to his breaking with the East German authorities in Autumn 1961.   On .. and .. May, 1963, after the dismissal of the criminal charges, the Applicant moved to discontinue the disciplinary proceedings and to set aside the suspension, but this motion was rejected by the Disciplinary Chamber by a decision of .. May, 1963, notified to the Applicant on .. July, 1963.   On .. July, 1963, the Applicant appealed to the Superior Disciplinary Chamber (Disziplinaroberkammer) and complained at the same time to the Minister about the tardiness of the proceedings. He further complained to the Minister, on .. October, 1963, about the failure of the Disciplinary Chamber to decide on a demand for access to the file which he had made already on .. May, 1963.   On .. December, 1963, the Superior Disciplinary Chamber rejected his appeal as being partly inadmissible, in so far as he attacked the refusal to discontinue the proceedings, and as being ill-founded in so far as the suspension was concerned. In its decision the Superior Disciplinary Chamber did not take into account the results of the criminal investigation but stated that the file concerning this investigation had not been available. In fact, this file had been transmitted to the Disciplinary Chamber on .. November, 1963.   On .. January, 1964, the Applicant lodged a constitutional appeal (Verfassungsbeschwerde) from the decision of the Superior Disciplinary Chamber and also complained on .. January, 1964, to the Minister, about the false statement as to the availability of the criminal file. The Minister replied, on .. February, 1964, that no further action could be taken at the moment, since because of the constitutional appeal lodged by the Applicant all the files had to be transmitted to the Constitutional Court (Verfassungsgerichtshof).   On .. February, 1964, after the constitutional appeal had been lodged, the Disciplinary Chamber included in the proceedings three new charges against the Applicant:   (1) going over from the catholic to the communist camp in 1950;   (2) irresponsible, non-objective, giving of an expert opinion on the Korean War (1952) and irresponsible disavowal of it (1961);   (3) action before the Regional Court of Düsseldorf for 10,000 DM for violation of his honour (1958), such an action being contrary to the canons of professional ethics.   On .. March, 1964, the Applicant replied to these new charges and pointed out inter alia that any punishment for the alleged change from the catholic to the communist camp would be contrary both to the Austrian Constitution and to the Treaty re-establishing Austrian sovereignty, that his activity during the Korean War had already been examined at previous disciplinary proceedings which were discontinued in 1953, that his action for damages at Düsseldorf was fully justified under German law and that, in fact, the Federal Court (Bundesgerichtshof) entered judgment in the amount of 8,000 DM against the firm which had, without his consent or knowledge, quoted him as an expert in advertising a certain medicinal draught ("Ginseng"). In reply to an undated memorial of the Disciplinary Prosecutor, which came to his knowledge when the Constitutional Court gave him access to the file received from the Disciplinary Chamber, the Applicant further elaborated these arguments in a counter-memorial of .. May, 1964. He had also moved on .. April, 1964, to discontinue the disciplinary proceedings at least as to the "non-political charges", i.e. the alleged abuse of office in the examination, the making of excessive debts and the suit for damages at Düsseldorf. But the Disciplinary Chamber took no action.   On .. June, 1964, the Constitutional Court, after having received written submissions both from the Applicant and from the Superior Disciplinary Chamber, set aside the decision of .. December, 1963, in so far as by this decision the Chamber had rejected, on appeal, the Applicant's motion to set aside the suspension after the discontinuance of the criminal proceedings. The Constitutional Court held that the Superior Disciplinary Chamber by failing to take into account the results of the criminal proceedings in reconsidering the Applicant's suspension had violated the law and thus infringed his constitutionally guaranteed rights as an independent academic teacher.   As after this decision the disciplinary authorities still took no further action the Applicant filed, on .. September, 1964, with the Constitutional Court a motion to enforce its decision by a demand to the Federal President pursuant to Article 146, paragraph 2, of the Constitution. The Court rejected this motion, on .. September, 1964, on the ground that its judgment needed no further execution as it had set aside itself the unconstitutional appeal decision with the result that the Applicant's first motion to set aside the suspension was pending again before the Superior Disciplinary Chamber.   On .. February, 1965, the Applicant lodged with the Superior Disciplinary Chamber a request to discontinue the proceedings as to the "non-political charges", as the Disciplinary Chamber of first instance had taken no decision on the analogous motion which he had filed with it on .. April, 1964. This request was rejected on .. February, 1965 on the ground that in disciplinary proceedings no appeal for tardiness (Säumnisbeschwerde) is provided for by law. A new constitutional appeal lodged by the Applicant from this decision on .. April, 1965 was rejected by a judgment of the Constitutional Court of .. October, 1965, delivered to the Applicant on .. January, 1966.   In the meanwhile, on .. February and .. March, 1965 the Disciplinary Prosecutor had laid new criminal charges against the Applicant accusing him of having committed perjury by concealing in an oath of disclosure (Offenbarungseid) the possession of a car. Investigations were also conducted in view of new charges of fraud. On .. April, 1965 the Disciplinary Prosecutor had further laid criminal charges of abuse of office alleging that the Applicant had given certificates on the performance of students in his courses (Kolloquienzeugnisse) without having examined them properly. However, the Regional Court of Graz had dismissed the charges on .. May and .. June, 1965.   As the disciplinary proceedings did not progress, the Applicant filed on .. June, 1965 with the Regional Court of Vienna an action in public tort liability (Amtshaftungsklage) for damages in the amount of 60,000 Austrian Schillings caused to him by improper and tardy proceedings on the part of the disciplinary authorities. The Office of the Attorney of the Treasury (Finanzprokuratur), to which he had previously presented the claim, on .. February, 1965, in accordance with Article 8 of the Public Tort Liability Act (Amtshaftungsgesetz) and which had rejected this claim on .. April, 1965, replied to the complaint on .. September, 1965. After a further memorial of the Applicant filed on .. October, 1965, a hearing took place on .. November, 1965. In this hearing a motion of the Attorney of the Treasury to stay the proceedings pending the decision in the disciplinary proceedings was rejected. But later, after the presiding judge had been replaced upon his own demand on .. November, 1965, on the ground that he was a close friend of one of the members of the Superior Disciplinary Chamber and therefore could be considered as challengeable, the Regional Court decided with a new judge presiding in a new hearing on .. March, 1966, to stay the proceedings pending the decision in the disciplinary proceedings.   In the meanwhile, by decision of .. September, 1965, notified to the Applicant on .. October, 1965, the Superior Disciplinary Chamber had quashed the decision of the Disciplinary Chamber of first instance of .. June, 1963, in so far as it refused to set aside the suspension, and had sent the case back to the first instance for a new decision. However, in spite of a further memorial of the Applicant filed with the Disciplinary Chamber on .. November, 1965, in which he summarised his submissions and moved again for a speedy setting aside of his suspension, no decision was taken.   Instead, the Disciplinary Prosecutor approached the Applicant by the intermediary of another Professor on .. January, 1966, and proposed that the Applicant should withdraw both his Application lodged with the Commission and his civil action pending before the Regional Court of Vienna and demand his retirement in exchange against a discontinuance of the disciplinary proceedings. The Applicant rejected this offer and informed both the Commission and the Regional Court of Vienna of it.   Whereas the allegations made by the Applicant when lodging his Application may be summarised as follows:   The Applicant alleged a violation of Article 6, paragraph (1), first sentence, of the Convention. He submitted that in the disciplinary proceedings pending for almost 5 years he had not been granted a hearing "within a reasonable time" within the meaning of Article 6, paragraph (1). He considered this provision as applicable also to disciplinary proceedings if they were directed against a professor in Austria. He submitted that such proceedings could and should be distinguished from disciplinary proceedings in general which according to the Commission's decision concerning Application 734/60 (published in the Collection of Decisions, Volume 6, page 29, 31 et seq.) do not come under this provision. He argued that proceedings in which the constitutionally guaranteed right of an Austrian professor to a free exercise of his function and the financial rights connected with it are at stake, concern in substance a civil liberty which must be considered at the same time as a "civil right" within the meaning of Article 6 of the Convention. He stressed that the substantive character of a right is decisive for the purpose of Article 6 and quoted in support the treatise of Wiebringhaus (Die Rom-Konvention für Menschenrechte in der Praxis der Strassburger Menschenrechtskommission, Saarbrücken 1959, page 82) and an Article of Velu (Le problème de l'application aux juridictions administratives des règles de la Convention Européenne des Droits de l'Homme relatives à la publicité des audiences et des jugements, published in Revue de Droit international et de Droit Comparé, Volume 38, Brussels 1961, page 129, 170).   The Applicant argued that his complaint against the tardiness of the disciplinary proceedings could not be subjected to the conditions of Article 26 of the Convention. In support he referred to the Commission's decision concerning Application 27/55 (published in Yearbook, Volume I, page 138). At the same time he stated that he had, in any case, made all efforts to speed up the proceedings by addressing himself to the highest competent organs, without, however, obtaining a decision. He submitted that, therefore, also the six-months rule of Article 26 could not apply in his case.   Whereas shortly before the examination of the Application by the Commission the following new facts were brought to its attention:   By a letter dated 24th February, 1967, the Federal Ministry of Education transmitted a declaration of the Applicant dated 10th June, 1966, in which he declared that he wished to withdraw his Application.   The Applicant himself, who is now living at Cologne in Germany, when asked for a further explanation regarding this declaration, informed the Secretary to the Commission by a letter dated 20th March, 1967, that after long negotiations he had agreed, on 16th February, 1967, to a compromise with the Ministry of Education on the basis of the following terms: He would withdraw his Application to the Commission and his action for damages before the Regional Court of Vienna and would request his temporary retirement. The Austrian authorities, on the other hand, would grant him the maximum pension and cease the disciplinary proceedings.     THE LAW   Whereas the Applicant has declared that he wishes to withdraw his Application because of a settlement of the case reached with the Austrian Government.   Whereas there appear to be no reasons of a general character affecting the observance of the Convention and in particular of Article 6, paragraph (1) (Art. 6-1), which would necessitate a further examination of the Application.   Now therefore the Commission STRIKES THIS APPLICATION OFF THE LIST.