CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 16 avril 1998

.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 }                          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