AS TO THE ADMISSIBILITY OF
Application No. 19363/92
by Gerhard HIRMANN
against Austria
The European Commission of Human Rights (First Chamber) sitting
in private on 6 April 1995, the following members being present:
Mr. C.L. ROZAKIS, President
Mrs. J. LIDDY
MM. E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
M.P. PELLONPÄÄ
B. MARXER
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 21 November 1991
by Gerhard Hirmann against Austria and registered on 16 January 1992
under file No. 19363/92;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having regard to the observations submitted by the respondent
Government on 6 May 1994 and the observations in reply submitted by the
applicant on 13 July 1994;
Having deliberated;
Decides as follows:
THE FACTS
The facts of the case, as they have been submitted by the
parties, may be summarised as follows:
The applicant is an Austrian citizen, born in 1928 and resides
in Ennsdorf. He is a civil engineer by profession, specialising in
agriculture and forestry matters.
A. Particular circumstances of the case
The applicant, having inspected court files concerning
expropriation cases in connection with his publishing of articles, sent
letters to various courts criticising several court experts.
On 4 December 1986 the Disciplinary Board (Disziplinarsenat) of
the Engineer Chamber (Ingenieurkammer) of Vienna, Lower Austria and
Burgundy, referring to the Engineers' Rules of Professional Conduct
(Standesregeln der Ziviltechniker) and S. 48 para. 1 of the Engineer
Chamber Act (Ingenieurkammergesetz) found the applicant guilty of
having disregarded the principle of loyalty towards his colleagues and
having criticised other engineers in a disparaging way. The
Disciplinary Board issued a reprimand (schriftlicher Verweis) against
him.
In its decision, the Disciplinary Board had regard to three
letters written by the applicant. In his letter of 14 March 1985,
addressed to the President of the Bad Ischl District Court (Bezirks-
gericht), the applicant had referred to "arithmetic tricks" and stated
in particular that "he quite understood that in administrative
proceedings only those experts were appointed by the court (in that
particular case a civil engineer specialising in forestry and the
timber industry) who gave, in a 'superficial and bungling manner'
('Husch-Pfusch-Verfahren'), obviously low estimates and deliberately
overlooked important factors". The applicant had further requested the
President of the Klagenfurt Regional Court (Landesgericht) to consider
the above letter of 14 March 1985 and to assess the qualifications of
expert M. Moreover, he had requested the President of the Klagenfurt
Regional Court to consider his submissions to the Feldkirchen District
Court of 4 January 1986, which contained criticism regarding the
experts G. and L., with a view to assessing their professional
qualifications. The Disciplinary Board considered that the applicant
had thereby overstepped the limits of a generally permissible criticism
amongst civil engineers, and that a prejudice to the professional
reputation of his colleagues whom he indicated with their names could
not be excluded.
On 15 June 1987 the Disciplinary Commission (Disziplinar-
kommission) of the Federal Engineer Chamber, following an oral hearing,
dismissed the applicant's appeal (Berufung).
The Disciplinary Commission considered in particular that, even
assuming that it was correct that in expropriation proceedings where
civil engineers were appointed as court experts the amounts awarded as
compensation were very moderate and to the disadvantage of the persons
expropriated, the applicant had no right to take recourse to undue
criticism and disregard the principle of loyalty under the Rules of
Professional Conduct. The Disciplinary Commission, having regard to the
wording of the applicant's statements in question, also found that he
had reproached the court experts concerned for having acted - partly
deliberately - contrary to their duties. Such criticism had not been
necessary in order to disclose alleged grievances. The applicant had
also acted disloyally in that he had requested various courts to assess
the professional qualifications of certain engineers and thus placed
them at the risk of professional disadvantages. He should have rather
informed the competent Engineer Chamber.
On 3 March 1989 the Constitutional Court (Verfassungsgerichts-
hof), upon the applicant's constitutional complaint, found that the
Disciplinary Commission's decision of 15 June 1987 violated his right
to freedom of expression. The decision in question was quashed, and the
case referred back to the Disciplinary Commission.
The Constitutional Court confirmed that the impugned decision was
prescribed by the relevant provisions of the Engineer Chamber Act. It
also considered that it was necessary, in a democratic society, to
protect the reputation and rights of others, here civil engineers,
against unfair criticism by their colleagues in the context of
disciplinary proceedings. However, civil engineers were not in general
exempt from criticism, and justified criticism by their colleagues
could not automatically be regarded as violation of the principle of
loyalty. In particular, such criticism could not be limited to
submissions addressed to the competent Engineer Chamber. In the light
of these considerations, the findings of the lower instances could not
be objected to, except for their assessment of the applicant's request
to the President of the Klagenfurt Regional Court to take note of a
letter addressed to the Feldkirchen District Court, which did not
contain unfair criticism.
On 19 July 1989 the Disciplinary Commission of the Federal
Engineer Chamber (Bundesingenieurskammer) acquitted the applicant of
having disregarded the Rules of Professional Conduct regarding the
statement on "arithmetic tricks" in his letter of 14 March 1985
addressed to the Bad Ischl District Court as well as his letter to the
President of the Klagenfurt Regional Court. It dismissed the remainder
of the applicant's appeal against the decision of 4 December 1986.
Rather, the Disciplinary Commission, referring to S. 48 paras. 1 and
2 and S. 49 of the Engineer Chamber Act and the Rules of Professional
Conduct of Civil Engineers, found the applicant guilty of having, in
two respects, committed a disciplinary offence and issued a reprimand
against him.
The Disciplinary Commission, having particularly regard to the
Constitutional Court's findings, considered that the wording
'superficial and bungling manner' ('Husch-Pfusch-Verfahren'), and his
assertion that some experts gave obviously low estimates and
deliberately overlooked important compensation factors, as well as his
request to the President of the Klagenfurt Regional Court to consider
the above submissions, constituted unfair and disparaging criticism and
were not covered by the right to freedom of expression.
On 1 October 1991 the Constitutional Court refused to entertain
the applicant's further constitutional complaint. The Constitutional
Court found that the challenged decision had been taken in the light
of its previous judgment of 12 December 1988 and could not be objected
to. The applicant's request to transfer the complaint to the
Administrative Court (Verwaltungsgerichtshof) was rejected on the
ground that the matter was excluded from its competence.
B. Relevant domestic law
The Federal Engineer Chamber Act, Federal Law Gazette 1969/71
(Ingenieur-Kammergesetz, BGBL 1969/71) established four Regional
Chambers (Landeskammern) and a Federal Chamber (Bundeskammer), which
are public law institutions. Membership in a Regional Chamber and the
Federal Chamber is compulsory for civil engineers who exercise their
profession (S. 5).
According to S. 48 para. 1, civil engineers are subjected to
disciplinary sanctions if (1) they disparage colleagues and/or
superiors, either publicly or in private, or (2) their conduct is not
in line within the meaning of the oath to which they are sworn as a
member of this profession. S. 49 para. 1 provides for disciplinary
measures, a reprimand being the lowest sanction.
Furthermore, the Engineer Chamber has issued Regulations on the
Professional Conduct (Standesregeln) of Civil Engineers, which lay down
inter alia the principle of loyalty between civil engineers and
prohibit unfair and disparaging criticism of other civil engineers.
COMPLAINTS
The applicant complains under Article 10 of the Convention that
the reprimand issued against him violated his right to freedom of
expression.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 21 November 1991 and registered
on 16 January 1992.
On 2 March 1994 the Commission decided to communicate the
applicant's complaint about the decision of the Disciplinary Commission
of the Federal Engineer Chamber of 19 July 1989 to the respondent
Government, pursuant to Rule 48 para. 2 (b) of the Rules of Procedure.
The remainder of the application was declared inadmissible.
The Government's written observations were submitted on
6 May 1994. The applicant replied on 13 July 1994.
THE LAW
The applicant complains under Article 10 (Art. 10) of the
Convention that the reprimand issued by the Disciplinary Commission of
the Federal Chamber on 19 July 1989 infringed his right to freedom of
expression.
Article 10 (Art. 10) of the Convention, as far as relevant,
provides:
"1. Everyone has the right to freedom of expression. This
right shall include freedom to hold opinions and to receive and
impart information and ideas without interference by public
authority ...
2. The exercise of these freedoms, since it carries with it
duties and responsibilities, may be subject to such formalities,
conditions, restrictions or penalties as are prescribed by law
and are necessary in a democratic society, ... for the protection
of the reputation or rights of others ..."
a. The respondent Government maintain that the applicant failed to
lodge his complaint within the six months' time-limit, as required by
Article 26 (Art. 26) of the Convention. They submit that the
Constitutional Court, in its decision of 3 March 1989, only objected
to the findings of the disciplinary bodies in regard to the applicant's
request to the President of the Klagenfurt Regional Court to take note
of a letter addressed to the Feldkirchen District Court, which did not
contain unfair criticism. Thus, as to the disciplinary punishment for
the remainder of statements made by him, this decision of 3 March 1989,
or at least the decision of the Disciplinary Commission of the Federal
Engineer Chamber of 19 July 1989, applying the principles established
by the Constitutional Court, constituted the final decisions for the
purposes of Article 26 (Art. 26). The applicant's second complaint to
the Constitutional Court could not be regarded as an effective remedy.
The applicant submits that the Constitutional Court, in the said
decision of 3 March 1989, quashed the Disciplinary Commission's
decision of 15 June 1987 in its entirety. At that time, he could not,
therefore, have complained of any decision to his detriment. Moreover,
the second set of proceedings comprised a full examination of all the
disciplinary charges against him. Thus his complaint to the
Constitutional Court regarding the Disciplinary Commission's decision
of 19 July 1989 could not be regarded as an ineffective remedy.
The Commission recalls that according to Article 26 (Art. 26) of
the Convention, "it may only deal with the matter ... within a period
of six months from the date on which the final decision was taken".
In the present case, the applicant's disciplinary conviction in
the first set of proceedings was quashed by the Constitutional Court
in March 1989, and subsequently, new proceedings were conducted against
the applicant before the Disciplinary Commission. In the light of the
Constitutional Court's reasoning, the applicant was again convicted of
part of the charges against him, and acquitted of the remainder. His
second complaint to the Constitutional Court was dismissed on
1 October 1991 as unfounded.
In these circumstances, the applicant, having lodged his
application on 21 November 1991, may be regarded as having complied
with the six months' rule under Article 26 (Art. 26). The application
cannot, therefore, be rejected under Article 27 para. 3 (Art. 27-3) of
the Convention.
b. As regards the merits of the applicant's complaint, the
Government submit that the interference with the applicant's right to
freedom of expression was justified under Article 10 para. 2
(Art. 10-2) of the Convention. According to the Government, the legal
basis of the interference concerned was S. 48 para. 1 of the Engineer
Chamber Act in conjunction with the Rules of Professional Conduct. It
pursued the legitimate aim of protecting the reputation of the
applicant's colleagues, and, having particular regard to the reasoning
of the Constitutional Court, was necessary in a democratic society.
The applicant maintains that his criticism of his colleagues was
justified, and that a disciplinary punishment for such criticism was
not necessary in a democratic society. He also raises doubts as to the
clarity of the legal basis for his punishment, as far as the Rules of
Conduct were concerned.
The Commission notes that on 19 July 1989 the Disciplinary
Commission of the Austrian Federal Engineer Chamber, following earlier
successful appeal proceedings, found that the applicant had disregarded
rules of professional conduct in that he had criticised his colleagues
in an unfair and disparaging manner, and issued a reprimand against
him.
The Commission finds that this measure constituted an
interference with the exercise of the applicant's freedom of
expression. Such interference is in breach of Article 10 (Art. 10),
unless it is justified under paragraph 2 of Article 10 (Art. 10-2),
i.e. it must be "prescribed by law", have an aim or aims that is or are
legitimate under Article 10 para. 2 (Art. 10-2) and be "necessary in
a democratic society".
The legal basis of the interference under consideration was S. 48
para. 1 and S. 49 of the Federal Engineer Chamber Act in combination
with the Rules of Professional Conduct. The Commission finds that
these provisions were accessible, and that the disciplinary measure
complained of was also foreseeable under the relevant legislation
(cf. mutatis mutandis, Eur. Court H.R., Barthold judgment of
25 March 1985, Series A no. 90, pp. 21-23, paras. 45-48). The
reprimand issued against the applicant can, therefore, be considered
as "prescribed by law" for the purposes of Article 10 para. 2
(Art. 10-2).
Moreover, the decisions complained of aimed to protect "the
reputation or rights of others", namely the civil engineers criticised
by the applicant, which is a legitimate aim under Article 10 para. 2
(Art. 10-2).
It remains to be determined whether the interference complained
of was "necessary in a democratic society" and proportionate to the
legitimate aim pursued.
The Commission recalls that the adjective "necessary" within the
meaning of Article 10 para. 2 (Art. 10-2) implies the existence of a
"pressing social need". The Contracting States have a certain margin
of appreciation in assessing whether such a need exists, but it goes
hand in hand with a European supervision (cf. European Court H.R.,
Observer and Guardian judgment of 26 November 1991, series A No. 216
pp. 29-30, para. 59).
The Commission notes that disciplinary proceedings were conducted
against the applicant for breach of the principle of loyalty and for
having criticised other civil engineers in an unfair and disparaging
manner, in accordance with the relevant provisions of the Rules of
Professional Conduct and the Federal Engineer Chamber Act.
The Commission has seen the interference complained of in
particular against the background of the decisions taken in the first
set of proceedings which were quashed by the Constitutional Court on
3 March 1989 on the ground that the Disciplinary Commission had, as
regards one of the letters, disregarded the applicant's right to
freedom of expression. In a detailed reasoning, the Constitutional
Court balanced the right to raise criticism against the necessity, in
a democratic society, to protect the reputation and rights of others,
here civil engineers, against unfair criticism by their colleagues in
the context of disciplinary proceedings.
In the second set of proceedings, the Disciplinary Chamber, in
the light of the Constitutional Court's considerations, confirmed the
finding of a breach of professional duties in respect of the unfair and
disparaging wording of two of the letters sent by the applicant. In the
first of these letters, he had stated that particular experts worked
in an 'superficial and bungling manner' ('Husch-Pfusch-Verfahren'), and
that they gave obviously low estimates and deliberately overlooked
important compensation factors. In the second letter, he had requested
the President of the Klagenfurt Regional Court to consider the above
submissions.
The Commission finds that, balancing the applicant's interest in
raising criticism in respect of the professional performance of some
of his colleagues, and the protection of the reputation and rights the
civil engineers concerned against unfair and disparaging statements,
there were relevant and sufficient reasons for a disciplinary measure
against the applicant.
Moreover, the sanction chosen, i.e. a reprimand, does not appear
disproportionate to the legitimate aim pursued.
In these circumstances, the interference complained of can,
therefore, be regarded as "necessary in a democratic society" within
the meaning of Article 10 para. 2 (Art. 10-2) of the Convention.
Accordingly, there is no appearance of a violation of the
applicant's right under Article 10 (Art. 10) of the Convention.
It follows that the remaining part of the application is
manifestly ill-founded with the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
For these reasons, the Commission, by a majority,
DECLARES THE REMAINDER OF THE APPLICATION INADMISSIBLE.
Secretary to the First Chamber President of the First Chamber
(M.F. BUQUICCHIO) (C.L. ROZAKIS)
Full & Egal Universal Law Academy