# أحكام المحاكم الأجنبية Decisions of Foreign Courts > أحكام المحكمة الأوروبية لحقوق الإنسان > Decisions of The European Court of Human Rights >  X. v. AUSTRIA - 2339/64 [1967] ECHR 10 (06 April 1967)

## هيثم الفقى

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X. v. AUSTRIA - 2339/64 [1967] ECHR 10 (06 April 1967) 
THE FACTSWhereas the facts presented by the Applicant when lodging hisApplication may be summarised as follows:The Applicant is an Austrian citizen born in 1910 in Vienna. He is aprofessor of international law and was teaching until 1962 at theUniversity of Graz. Since 1967 he is living in Cologne/Germany.On .. January, 1962, a German law student of the University of Graz,S, accused him of having an agreement with a crammer, Dr. K, underwhich he favoured in examinations those candidates who attended thecourses of Dr. K. This allegation led both to criminal and disciplinaryproceedings against the Applicant.On .. January, 1962, the Rector of the University transmitted astatement of S's allegations to the Public Prosecutor(Staatsanwaltschaft beim Landesgericht f&Atilde;¼r Strafsachen) of Graz andinformed at the same time the Federal Minister of Education(Bundesminister f&Atilde;¼r Unterricht).On .. February, 1962, the Minister suspended the Applicantprovisionally from his functions on the ground that the charges againsthim were liable to prejudice the reputation of the University. Thesuspension took immediate effect and was, according to its terms, notsubject to any remedy.On .. March, 1962, the Disciplinary Chamber (Disziplinarkammer) at theUniversity of Vienna to which the case had been referred on .. January,1962, opened disciplinary proceedings against the Applicant on theabove-mentioned charge and on the charge of having made excessive debtsin violation of the canons of professional ethics. By decision of ..April, 1962, notified to the Applicant on .. May, 1962, theDisciplinary Chamber confirmed the provisional suspension.On .. June, 1962, the Applicant was heard on the charge of excessivedebts by a commissioner charged with the preliminary investigation(Untersuchungskommiss&Atilde;¤r).Acco  rding to the Applicant the Disciplinary Chamber was willing, inJanuary, 1963, to set aside the suspension, but upon a personalintervention of the Minister of Education on .. February, 1963, theDisciplinary Prosecutor objected and thus prevented the setting asideof the suspension.On .. May, 1963, the criminal proceedings against the Applicant werediscontinued by the Regional Court of Graz under Article 90 of the Codeof Criminal Procedure on the ground that the charges were ill-founded.The student S himself had withdrawn his accusations already on ..February, 1962, and the Applicant states that in the course of criminalproceedings instituted against S at Stuttgart on the basis of a chargeof defamation laid by him (the Applicant) on .. January, 1962, S hadbeen declared by an expert to be a schizoid psychopath. Later theApplicant brought a civil action against S before the Regional Court(Landgericht) of Stuttgart. S first offered a compromise which wasrejected by the Applicant on .. January, 1964. After S had been 10 daysin hospital for danger of suicide, the Court ordered an examination ofhis mental health on .. February, 1964, when he did not bring anyevidence within a time-limit fixed by the Court and when his own(fourth) lawyer questioned his sanity. In an intermediary order of ..October, 1965, the Court stated that it considered S's allegations tobe false. As to his financial difficulties the Applicant submits thatthey were found in the criminal proceedings to be due to the suddenblocking of his possessions at East Berlin as a reaction to hisbreaking with the East German authorities in Autumn 1961.On .. and .. May, 1963, after the dismissal of the criminal charges,the Applicant moved to discontinue the disciplinary proceedings and toset aside the suspension, but this motion was rejected by theDisciplinary Chamber by a decision of .. May, 1963, notified to theApplicant on .. July, 1963.On .. July, 1963, the Applicant appealed to the Superior DisciplinaryChamber (Disziplinaroberkammer) and complained at the same time to theMinister about the tardiness of the proceedings. He further complainedto the Minister, on .. October, 1963, about the failure of theDisciplinary Chamber to decide on a demand for access to the file whichhe had made already on .. May, 1963.On .. December, 1963, the Superior Disciplinary Chamber rejected hisappeal as being partly inadmissible, in so far as he attacked therefusal to discontinue the proceedings, and as being ill-founded in sofar as the suspension was concerned. In its decision the SuperiorDisciplinary Chamber did not take into account the results of thecriminal investigation but stated that the file concerning thisinvestigation had not been available. In fact, this file had beentransmitted to the Disciplinary Chamber on .. November, 1963.On .. January, 1964, the Applicant lodged a constitutional appeal(Verfassungsbeschwerde) from the decision of the Superior DisciplinaryChamber and also complained on .. January, 1964, to the Minister, aboutthe false statement as to the availability of the criminal file. TheMinister replied, on .. February, 1964, that no further action couldbe taken at the moment, since because of the constitutional appeallodged by the Applicant all the files had to be transmitted to theConstitutional Court (Verfassungsgerichtshof).On .. February, 1964, after the constitutional appeal had been lodged,the Disciplinary Chamber included in the proceedings three new chargesagainst the Applicant :Frown: 1) going over from the catholic to the communist camp in 1950;(2) irresponsible, non-objective, giving of an expert opinion on theKorean War (1952) and irresponsible disavowal of it (1961);(3) action before the Regional Court of D&Atilde;¼sseldorf for 10,000 DM forviolation of his honour (1958), such an action being contrary to thecanons of professional ethics.On .. March, 1964, the Applicant replied to these new charges andpointed out inter alia that any punishment for the alleged change fromthe catholic to the communist camp would be contrary both to theAustrian Constitution and to the Treaty re-establishing Austriansovereignty, that his activity during the Korean War had already beenexamined at previous disciplinary proceedings which were discontinuedin 1953, that his action for damages at D&Atilde;¼sseldorf was fully justifiedunder German law and that, in fact, the Federal Court(Bundesgerichtshof) entered judgment in the amount of 8,000 DM againstthe firm which had, without his consent or knowledge, quoted him as anexpert in advertising a certain medicinal draught ("Ginseng"). In replyto an undated memorial of the Disciplinary Prosecutor, which came tohis knowledge when the Constitutional Court gave him access to the filereceived from the Disciplinary Chamber, the Applicant furtherelaborated these arguments in a counter-memorial of .. May, 1964. Hehad also moved on .. April, 1964, to discontinue the disciplinaryproceedings at least as to the "non-political charges", i.e. thealleged abuse of office in the examination, the making of excessivedebts and the suit for damages at D&Atilde;¼sseldorf. But the DisciplinaryChamber took no action.On .. June, 1964, the Constitutional Court, after having receivedwritten submissions both from the Applicant and from the SuperiorDisciplinary Chamber, set aside the decision of .. December, 1963, inso far as by this decision the Chamber had rejected, on appeal, theApplicant's motion to set aside the suspension after the discontinuanceof the criminal proceedings. The Constitutional Court held that theSuperior Disciplinary Chamber by failing to take into account theresults of the criminal proceedings in reconsidering the Applicant'ssuspension had violated the law and thus infringed his constitutionallyguaranteed rights as an independent academic teacher.As after this decision the disciplinary authorities still took nofurther action the Applicant filed, on .. September, 1964, with theConstitutional Court a motion to enforce its decision by a demand tothe Federal President pursuant to Article 146, paragraph 2, of theConstitution. The Court rejected this motion, on .. September, 1964,on the ground that its judgment needed no further execution as it hadset aside itself the unconstitutional appeal decision with the resultthat the Applicant's first motion to set aside the suspension waspending again before the Superior Disciplinary Chamber.On .. February, 1965, the Applicant lodged with the SuperiorDisciplinary Chamber a request to discontinue the proceedings as to the"non-political charges", as the Disciplinary Chamber of first instancehad taken no decision on the analogous motion which he had filed withit on .. April, 1964. This request was rejected on .. February, 1965on the ground that in disciplinary proceedings no appeal for tardiness(S&Atilde;¤umnisbeschwerde) is provided for by law. A new constitutional appeallodged by the Applicant from this decision on .. April, 1965 wasrejected by a judgment of the Constitutional Court of .. October, 1965,delivered to the Applicant on .. January, 1966.In the meanwhile, on .. February and .. March, 1965 the DisciplinaryProsecutor had laid new criminal charges against the Applicant accusinghim of having committed perjury by concealing in an oath of disclosure(Offenbarungseid) the possession of a car. Investigations were alsoconducted in view of new charges of fraud. On .. April, 1965 theDisciplinary Prosecutor had further laid criminal charges of abuse ofoffice alleging that the Applicant had given certificates on theperformance of students in his courses (Kolloquienzeugnisse) withouthaving examined them properly. However, the Regional Court of Graz haddismissed the charges on .. May and .. June, 1965.As the disciplinary proceedings did not progress, the Applicant filedon .. June, 1965 with the Regional Court of Vienna an action in publictort liability (Amtshaftungsklage) for damages in the amount of 60,000Austrian Schillings caused to him by improper and tardy proceedings onthe part of the disciplinary authorities. The Office of the Attorneyof the Treasury (Finanzprokuratur), to which he had previouslypresented the claim, on .. February, 1965, in accordance with Article8 of the Public Tort Liability Act (Amtshaftungsgesetz) and which hadrejected this claim on .. April, 1965, replied to the complaint on ..September, 1965. After a further memorial of the Applicant filed on ..October, 1965, a hearing took place on .. November, 1965. In thishearing a motion of the Attorney of the Treasury to stay theproceedings pending the decision in the disciplinary proceedings wasrejected. But later, after the presiding judge had been replaced uponhis own demand on .. November, 1965, on the ground that he was a closefriend of one of the members of the Superior Disciplinary Chamber andtherefore could be considered as challengeable, the Regional Courtdecided with a new judge presiding in a new hearing on .. March, 1966,to stay the proceedings pending the decision in the disciplinaryproceedings.In the meanwhile, by decision of .. September, 1965, notified to theApplicant on .. October, 1965, the Superior Disciplinary Chamber hadquashed the decision of the Disciplinary Chamber of first instance of.. June, 1963, in so far as it refused to set aside the suspension, andhad sent the case back to the first instance for a new decision.However, in spite of a further memorial of the Applicant filed with theDisciplinary Chamber on .. November, 1965, in which he summarised hissubmissions and moved again for a speedy setting aside of hissuspension, no decision was taken.Instead, the Disciplinary Prosecutor approached the Applicant by theintermediary of another Professor on .. January, 1966, and proposedthat the Applicant should withdraw both his Application lodged with theCommission and his civil action pending before the Regional Court ofVienna and demand his retirement in exchange against a discontinuanceof the disciplinary proceedings. The Applicant rejected this offer andinformed both the Commission and the Regional Court of Vienna of it.Whereas the allegations made by the Applicant when lodging hisApplication may be summarised as follows:The Applicant alleged a violation of Article 6, paragraph (1), firstsentence, of the Convention. He submitted that in the disciplinaryproceedings pending for almost 5 years he had not been granted ahearing "within a reasonable time" within the meaning of Article 6,paragraph (1).He considered this provision as applicable also to disciplinaryproceedings if they were directed against a professor in Austria. Hesubmitted that such proceedings could and should be distinguished fromdisciplinary proceedings in general which according to the Commission'sdecision concerning Application 734/60 (published in the Collection ofDecisions, Volume 6, page 29, 31 et seq.) do not come under thisprovision. He argued that proceedings in which the constitutionallyguaranteed right of an Austrian professor to a free exercise of hisfunction and the financial rights connected with it are at stake,concern in substance a civil liberty which must be considered at thesame time as a "civil right" within the meaning of Article 6 of theConvention. He stressed that the substantive character of a right isdecisive for the purpose of Article 6 and quoted in support thetreatise of Wiebringhaus (Die Rom-Konvention f&Atilde;¼r Menschenrechte in derPraxis der Strassburger Menschenrechtskommission, Saarbr&Atilde;¼cken 1959,page 82) and an Article of Velu (Le probl&Atilde;¨me de l'application auxjuridictions administratives des r&Atilde;¨gles de la Convention Europ&Atilde;©enne desDroits de l'Homme relatives &Atilde;  la publicit&Atilde;© des audiences et desjugements, published in Revue de Droit international et de DroitCompar&Atilde;©, Volume 38, Brussels 1961, page 129, 170).The Applicant argued that his complaint against the tardiness of thedisciplinary proceedings could not be subjected to the conditions ofArticle 26 of the Convention. In support he referred to theCommission's decision concerning Application 27/55 (published inYearbook, Volume I, page 138). At the same time he stated that he had,in any case, made all efforts to speed up the proceedings by addressinghimself to the highest competent organs, without, however, obtaininga decision. He submitted that, therefore, also the six-months rule ofArticle 26 could not apply in his case.Whereas shortly before the examination of the Application by theCommission the following new facts were brought to its attention:By a letter dated 24th February, 1967, the Federal Ministry ofEducation transmitted a declaration of the Applicant dated 10th June,1966, in which he declared that he wished to withdraw his Application.The Applicant himself, who is now living at Cologne in Germany, whenasked for a further explanation regarding this declaration, informedthe Secretary to the Commission by a letter dated 20th March, 1967,that after long negotiations he had agreed, on 16th February, 1967, toa compromise with the Ministry of Education on the basis of thefollowing terms: He would withdraw his Application to the Commissionand his action for damages before the Regional Court of Vienna andwould request his temporary retirement. The Austrian authorities, onthe other hand, would grant him the maximum pension and cease thedisciplinary proceedings.THE LAWWhereas the Applicant has declared that he wishes to withdraw hisApplication because of a settlement of the case reached with theAustrian Government.Whereas there appear to be no reasons of a general character affectingthe observance of the Convention and in particular of Article 6,paragraph (1) (Art. 6-1), which would necessitate a further examinationof the Application.Now therefore the Commission STRIKES THIS APPLICATION OFF THE LIST.[/align]

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