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)
Full & Egal Universal Law Academy