CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 2 mars 1994

.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. 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)