THE FACTS

The facts presented by the Parties and apparently not in dispute

between them may be summarised as follows:

The applicant is an Austrian citizen, born in 1938 and at present

detained in prison in Krems.

On .. May 1968 the applicant was convicted by the Vienna Regional Court

(Landesgericht) of robbery, attempted theft and causing damage to

public property. The Court of Appeal amended the sentence to one of 12

years' and 6 months' severe imprisonment (schwerer Kerker). The

applicant's term of imprisonment will end on .. April 1980.

On .. December 1967 the Regional Court granted a divorce at the request

of the applicant's wife. The applicant is, according to this decision,

the guilty party.

The applicant's daughter has, since her birth in 1966, been educated

and brought up by her mother.

The mother's request to deprive the applicant of his parental power

(väterliche Gewalt) was rejected by the District Court (Bezirksgericht)

of Central Vienna. However, on .. June 1969 the mother was appointed,

with the applicant's approval, as the child's tutor (Vormünderin) for

the duration of the applicant's imprisonment. In September 1969 the

applicant's divorced wife remarried and no longer wrote to the

applicant who consequently received no more news of his daughter. The

applicant therefore requested the District Court in Vienna to order his

divorced wife or the Youth Officer (Fürsorgebehörde) to send him

regular reports concerning the education of his daughter. The mother

opposed this request. The Court rejected the request on .. August 1970

stating that only the mother was entitled to educate

(erziehungsberechtigt) the girl and the father therefore had no right

to interfere. He only had the right to visit his daughter

(Besuchsrecht) which, however, he could not exercise because he was in

prison. The Court further transferred to the District Court in

Floridsdorf the handling of the guardianship matters (Pflegschaft)

because both mother and child had moved and were living in the district

of the latter Court.

The applicant appealed (Rekurs) against the Vienna District Court's

decision insofar as it rejected his request. On .. September 1970 the

Vienna Regional Court decided that the appeal was unfounded. The Court

stated that, according to Article 176 of the Civil Code (ABGB), a

father's right of custody (väterliche Gewalt) is inoperative (außer

Wirksamkeit) if he is sentenced to imprisonment for more than one year.

Therefore, the applicant could not, in fact, exercise his right of

custody and there was no obligation on the part of the tutor to send

him reports on his child.

The applicant then requested the District Court at Floridsdorf to give

him every six months a report on the welfare and living conditions of

his child. He stated that he was well aware that he had no right to

interfere with his daughter's education but at least he wanted to know

what was happening to her.

On .. May 1971 the District Court at Floridsdorf refused to give the

applicant any information concerning his daughter. The Court stated

that the applicant had no right to such information because his right

of custody was inoperative while he was in prison. The Court further

stated that it saw no reason to take any measures in its capacity as

guardian of the applicant's daughter (pflegschaftsbehördliche

Maßnahmen) because, according to a report from the Youth Office (BJA),

the child's step-father was taking good care of the applicant's

daughter and treated her as if she were his own child.

The applicant's appeal (Rekurs) against this decision was rejected by

the Vienna Regional Court on .. August 1971. The Court confirmed the

District Court's finding that the applicant had no right to claim

information concerning his child. Against this decision the applicant

lodged an appeal (Revisionsrekurs) to the Supreme Court (Oberster

Gerichtshof). The appeal was rejected on .. November 1971 as being

inadmissible. The Supreme Court stated that, according to Article 16

(1) of the Act on Non-contentious Proceedings (AussStrG) the appeal

would only have been admissible if the decision appealed against was

clearly in violation of the law (offenbare Gesetzeswidrigkeit).

However, in the opinion of the Supreme Court the lower courts were

correct in finding that there were no statutory provisions, including

Article 8 of the Convention on Human Rights, from which the applicant

could derive a right to be kept informed on the life of his child.

The applicant also complained to the Constitutional Court

(Verfassungsgerichtshof) of the decision given by the Vienna Regional

Court on .. August 1971. At the same time he applied for legal aid

(Armenrecht). On ..December 1971 the Constitutional Court rejected the

application stating that it had no competence to examine court

decisions.

COMPLAINTS

The applicant stated that after some delay and difficulty he finally

was given leave to examine the court files concerning his daughter. It

was on that occasion only that he allegedly found out that the husband

of his divorced wife had, nearly one year before, made an application

to adopt the applicant's daughter.

He further alleged that his handcuffs were not taken off when he was

taken before the District Court judge in order to examine the files and

to state whether he had any objection to the adoption.

He alleged that the refusal of the authorities to give him information

concerning his child violates Articles 3 and 8 of the Convention.

Furthermore, he was of the opinion that he was subjected to degrading

treatment because his handcuffs were not taken off when he was being

questioned by the judge as to whether he had any objection to the

adoption of his daughter.

Proceedings before the Commission

The Commission decided on 6 April 1973 to communicate the application

to the Austrian Government for their observations on the admissibility.

After receipt of these observations (15 June 1973) and the applicant's

reply (2 July 1973) a Rapporteur was appointed to examine the legal

situation under Austrian law.

The Rapporteur instructed the Commission's Secretary in accordance with

Rule 45, 2 b) of the Commission's Rules of Procedure to ask the

respondent Government for information concerning the applicant's

allegation that he was not informed of the adoption proceedings. This

information was received on 22 November 1973. The applicant was invited

to reply. He informed the Commission's Secretary by letter of 2

December 1973 that he had arranged himself with "the adverse party" and

no longer saw any reason to pursue his application. However, in a

further letter of 2 February 1974 he again requested the Commission to

examine his case.

Summary of the Government's submissions

1)   On .. February 1971 the District Court in Florisdorf sent the

files concerning the applicant's daughter to the District Court in

Krems so that the applicant should have the opportunity of examining

them. This was done on .. March 1971.

Following a further petition made by the applicant the District Court

in Florisdorf requested the Youth Officer to give a report. On .. May

1971 the Youth Officer reported that in the present circumstances there

was no necessity for the authorities to take any measures. It was also

mentioned that the child did not even know that the second husband of

the applicant's ex-wife was not her father.

2)   The applicant's allegation that he was not informed of the

adoption proceedings concerning his daughter conducted before the

Florisdorf District Court is incorrect.

On .. May 1971, S., the step-father of the applicant's daughter, filed

with the Florisdorf Guardianship Court (Pflegschaftsgericht) an

application for authorization of the adoption contract concluded on ..

April 1971. The Florisdorf District Court, on .. May 1972, forwarded

to the District Court of Krems the guardianship files together with a

request to allow the applicant to inspect the files and "to ask him,

on rogatory commission, whether he agreed to an adoption of the minor

girl by S. ... as to the adoptive father ... in accordance with Article

181, paragraph 1, sub-paragraph 1, of the Civil Code, or to state any

justified reasons he had to put forward for his refusal.

On .. June 1972 the applicant was again allowed to inspect the files,

and he was asked whether he agreed to the envisaged adoption. He

emphatically refused to do so. Thereupon he was given a warning of his

rights by informing him of the relevant rules of the Civil Code, and

he said that he would state in writing the reasons for his refusal to

consent.

In an extensive submission to the District Court in Florisdorf of ..

June 1972, the applicant stated his reasons which, in his view, were

telling against an authorization of the adoption contract by the Court.

Pursuant to Article 181, paragraph 3, of the Civil Code this Court will

have to examine, among other things, whether those reasons justify the

applicant's refusal to consent to the adoption. So far no decision has

been rendered concerning an authorization of the adoption contract.

3)   The impossibility of living with his child or obtaining

information about her is a necessary consequence of the applicant's

lawful detention and does not violate Articles 8 or 3 of the

Convention.

4)   The Convention gives protection against certain interventions by

the State (staatliche Eingriffe) but it does not guarantee a right of

an individual to ask the State to take certain action in his interest

(positive Tun).

The child's mother is herself not obliged to give the applicant the

reports requested by him. Such an obligation cannot be derived from the

Convention which only imposes obligations on the States.

If Articles 3 and 8 of the Convention were interpreted in the sense

that these provisions oblige States to interfere actively and change

situations which are inhuman or contemplated adversely to affect family

life this would have far reaching consequences. The State would then

be obliged to arrange for adequate housing for all who live in inhuman

conditions in flats which are in a state of disrepair or which are too

small for a family.

5)   Apart from that the District Court has sufficiently informed the

applicant about his daughter as he was repeatedly given the opportunity

to examine the court files concerning his daughter especially the

reports of the Youth Officer which were in those files. He also had the

opportunity to copy these documents. The applicant therefore has no

reason to complain as there is no right to request information in the

form of periodical reports concerning his daughter.

6)   Each violation of any of the rights guaranteed by the Convention

is an inhuman treatment. Article 3 therefore only applies when there

is no violation of any other article of the Convention. In the present

case the alleged inhuman treatment allegedly violates Article 8.

Article 3 consequently does not apply.

7)   Even if it were to be assumed that the State has to reserve

family life by active measures there is no violation of Article 8 in

the present case because the applicant's situation is the normal

consequence of his lawful conviction and sentence. The execution of the

sentence is justified under Article 8 (2) even if it infringes the

applicant's right to family life.

8)   Insofar as the applicant complains that he was taken handcuffed

before the District Court judge he did not exhaust domestic remedies

as he could have lodged a complaint (Beschwerde) against this measure

(Articles 103 and 120 of the Austrian Code of Criminal Procedure).

Summary of the applicant's reply

The Government have only mentioned those facts which make him appear

to be a dangerous criminal. They did not mention that in the first

instance he was sentenced to five years' severe imprisonment only. The

applicant considers unjust and too sever the decision of the Court of

Appeal which amended his sentence to one of twelve years' and six

months' imprisonment.

The applicant states that during his divorce proceedings he had a

nervous breakdown and was therefore not in a position to defend his

case. His requests for a rehearing were rejected.

He alleges that he was only given permission to examine the court files

concerning his daughter after he had made various requests and

petitions.

He fears that he will lose his daughter completely if the new husband

of his ex-wife is given leave to adopt her.

As regards his complaint that he was taken handcuffed to the court the

applicant alleges that this was only done after he had made repeated

requests to be informed about his daughter.

He further alleges that he complained to the Public Prosecutor and was

then no longer handcuffed.

THE LAW

1)   The applicant has complained that the Austrian authorities refuse

either to order his wife, or themselves to arrange to give him

information concerning his child and in this context he also alleged

that he was not promptly informed of the adoption proceedings.

It is true that Article 8 (Art. 8) of the Convention secures to

everyone the right to respect for his family life. However, this

provision is primarily negative in the sense that it gives protection

against unjustified interference with family life by public

authorities, but does not oblige the State positively to re-establish

conditions of family life already impaired, as in the present case, by

divorce and the suspension of the rights of custody of the father.

The applicant's complaint that the judicial authorities neither ordered

his wife, nor themselves arranged, to provide him with reports on his

child can therefore not be regarded as a violation of Article 8

(Art. 8) of the Convention.

As regards the adoption proceedings, the Government have submitted

copies of the records of the court hearings which show the applicant

had, in accordance with Article 181 of the Austrian Civil Code, been

requested to consent to the adoption. He was also informed that

according to Article 181 (3) of the Civil Code, the competent court

could give its consent to the adoption if he gave no valid reasons for

refusing his own consent. He was then given the opportunity to submit

in writing his objections against the adoption. It is clear therefore

that the applicant had full knowledge of the impending adoption

proceedings.

An examination by the Commission of these complaints as they have been

submitted, including an examination made ex officio, does not therefore

disclose any appearance of a violation of the rights and freedoms set

out in the Convention and in particular in the above Article.

2)   The applicant has further complained that he was taken handcuffed

to the court when he was first given the opportunity to examine the

files concerning his daughter. However, under Article 26 (Art. 26) of

the Convention, the Commission may only deal with a matter after all

domestic remedies have been exhausted according to the generally

recognised rules of international law.

In the present case the applicant failed to lodge an appeal against the

security measures in question and has, therefore, not exhausted the

remedies to him under Austrian law. Moreover, an examination of the

case as it has been submitted, including an examination made ex

officio, does not disclose the existence of any special circumstances

which might have absolved the applicant, according to the generally

recognised rules of international law, from exhausting the domestic

remedies at his disposal.

It follows that the applicant has not complied with the condition as

to the exhaustion of domestic remedies and his application must in this

respect be rejected under Article 27 (2) (Art. 27-2), of the

Convention.

For these reasons, the Commission declares this application

INADMISSIBLE