CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 21 mai 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. 32052/96                       by Otto SCHATZMAYR                       against Austria          The European Commission of Human Rights (First Chamber) sitting in private on 21 May 1998, the following members being present:              MM     M.P. PELLONPÄÄ, President                  N. BRATZA                  E. BUSUTTIL                  A. WEITZEL                  C.L. ROZAKIS            Mrs    J. LIDDY            MM     L. LOUCAIDES                  B. MARXER                  B. CONFORTI                  I. BÉKÉS                  G. RESS                  A. PERENIC                  C. BÎRSAN                  K. HERNDL                  M. VILA AMIGÓ            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 28 March 1996 by Otto SCHATZMAYR against Austria and registered on 27 June 1996 under file No. 32052/96;        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 1945, is an Austrian national residing in Feldkirchen. Before the Commission the applicant is represented by Mr Kapsch, a lawyer practising in Graz.        The facts, as they have been submitted by the applicant, may be summarised as follows.        On 20 March 1995 the Disciplinary Board for Teachers at the Office of the Carinthian Regional Government (Disziplinarkommission für Landeslehrer beim Amt der Kärntner Landesregierung), referring to the relevant provision of the Teacher's Act (Landeslehrer- Dienstrechtsgesetz), pronounced the dismissal on disciplinary grounds of the applicant, a teacher at an extended elementary school (Polytechnischer Lehrgang).        In its decision, the Disciplinary Board had regard to the judgment of 29 April 1994 by the Regional Court (Landesgericht) of Klagenfurt. In this judgment, the Court had convicted the applicant of having obstructed the exercise of official authority by using violence against a police officer, in charge of dispersing an unlawful right- extremist demonstration. He had also been convicted of aggravated serious bodily harm against this policeman. Moreover the Court had acquitted the applicant of the charge concerning offences under the Nationalsocialist Prohibition Act (Verbotsgesetz).        After further investigations, the Disciplinary Board found that, in addition to his conviction, the applicant's presence at an unlawful, clearly right-extremist demonstration and his attitude towards the officers of public safety and order were contrary to the model role he had to assume as a teacher.        On 18 September 1995, upon the applicant's appeal (Berufung), the Senior Disciplinary Board for Teachers (Disziplinaroberkommission für Landeslehrer) reduced the disciplinary sanction to a fine amounting to five monthly salaries. The Authority pointed out that a teacher had to bear a high responsibility even in his private conduct. In this respect, the Authority considered the applicant's duty to ensure his pupil's political formation as members of a democratic society. In participating at the unlawful demonstration, the applicant had failed in his duty of loyalty to an extent that would even justify his dismissal. The decision was served on 29 September 1995.   COMPLAINTS   1.    The applicant, invoking Article 6 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. He submits that the disciplinary authorities did not fulfil the requirements of a "tribunal". He complains in particular that the members of these disciplinary authorities could not be regarded as independent judges. He also considers that the Senior Disciplinary Board lacked impartiality.   2.    The applicant further complains 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 Teacher's Act. 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 to 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 to incur ranged from a reprimand to the infliction of a fine (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 even 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 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 Board and the Senior Disciplinary Board found that he had indeed committed a serious breach of his professional duties and imposed the penalty of a fine amounting to five monthly salaries.        In these circumstances the Commission finds that the dispute related to the applicant's carreer and did not concern a "civil" right within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention.        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 4 of Protocol No. 7 (P7-4) that he was twice convicted of the same offence.        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 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, this provision does 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, by a majority,        DECLARES THE APPLICATION INADMISSIBLE.        M.F. BUQUICCHIO                             M.P. PELLONPÄÄ         Secretary                                  President    to the First Chamber                       of the First Chamber