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
Full & Egal Universal Law Academy