Lexploria

THE FACTS

I. Original statement of facts based on the submissions of the

applicant

The applicant is an Austrian citizen born in 1930 and at present

detained in prison at W..

From his vague statements it appeared that in September 1967 he became

involved in a fight with two other men resulting in a gunshot wound in

his temple. After the fight he was arrested and sentenced to eight

years' severe imprisonment, apparently for robbery.

The applicant mentioned that the Supreme Court (Oberster Gerichtshof)

rejected his appeal or plea of nullity on .. November 1969, without

giving him the opportunity of defending his case personally. Only a

lawyer was appointed for his defence. The applicant has not submitted

any documents relating to his case, nor has he given more detailed

information as to the reason of his arrest and his conviction.

He complained that he was wrongly convicted on the basis of false

evidence given against him. He stated that already in 1947 and in 1961

he had been wrongly convicted and sentenced.

The applicant mainly complained of ill-treatment given to him by the

police after his arrest and by officers in prison.

He alleged:

- that after his arrest, five policemen ill-treated him. They banged

his head on the floor and kicked him. As a result of this

ill-treatment, and not because of the injury caused by the gunshot

wound, he practically lost his eyesight. The prison authorities, as

well as the District Court (Kreisgericht) at W., refused to let him be

examined and treated at an eye clinic. They kept him isolated without

employment or pastimes in a cell where he is living in permanent

darkness.

- that the prisoners have to stand naked in the corridors when the

cells are inspected and that after one of these inspections he found

all his belongings on the floor of the cell and two packets of tobacco

missing.

- that the prison warders made four attempts to murder him. Once they

handcuffed him and thereby cut the blood supply (Schlagader) in his

right arm. Another time they pressed a handful of steel material

(Stahlsplenden) into his mouth and afterwards he was not given any food

for ten days. A third attempt at murder was made on .. November 1969,

when he was forced to sleep in the arrest cell in the basement of the

prison on a stone bed without a mattress and blankets. Finally, another

attempt was made by throwing open the door of his cell unexpectedly

which hit him on his temple.

Alleging a violation of most of the Article of the Convention, the

applicant requests the Commission to help him.

II. Proceedings before the Commission

By decision of 4 October 1970 the Commission rejected, as being

manifestly ill-founded, the applicant's complaint that he was wrongly

convicted and sentenced.

With regard to his complaint that he was ill-treated in prison, the

Commission decided to invite the Austrian Government to submit, before

10 December 1970, its observations in writing on the question of

admissibility. The examination of this part of the application was

consequently adjourned.

The respondent Government's observations were received on 15 December

1970. The applicant was then requested to submit his observations in

reply before 15 January 1971 and on 22 January 1971 his written

observations in reply were received.

III. Observations of the Austrian Government

1. "Concerning the factual allegations of the applicant

By judgement of .. January 1969 given by the Regional Court at W.

(Kreisgericht W.), and which has become final, X was found guilty of

attempted murder and a minor offence. He was sentenced to eight years'

severe imprisonment (schwerer Kerker) aggravated by one day of fasting

every quarter. The decision was based on the fact that on 14 September

1967 at L. the applicant had shot K. in the back and in the back of the

head, and S. in the left side of the lower abdomen with intent to kill.

Shortly before his arrest, X shot himself in the head, whereby he lost

his eyesight.

Already at his trial, the applicant claimed that he had not been in

possession of a gun at all, thus departing from his original statement

that the only reason why he had shot the two men was that they had

wanted to rob him; at the time of that original statement he did not

deny having shot himself in the head when being arrested on 17

September 1967.

At his trial, however, the applicant claimed that on 14 September 1967,

K. and S. together with an unknown third person had robbed him of

55,000 Austrian schillings and had shot him while doing so. After being

unconscious for some time, he had woken up in the forest, finding next

ho him the gun with which his own bullet wound as well as K's and S's

bullet wounds had been inflicted, together with 157 rounds of

ammunition; despite his impaired eyesight he had then wandered about

the forest. On 16 September 1967, he had finally arrived at his

sister's and brother-in-law's home at H.. where, however, his head

injury had not been noticed. Having been given food and a raincoat, he

had then walked on until he had been picked up by the gendarmerie on

the following day, 17 September 1967. He had not inflicted a bullet

wound on himself while being arrested, but had been shot in the head

on 14 September 1967 by the robbers.

In order to disprove these assentations by the applicant, extensive

enquiries were made, in the course of the criminal proceedings, in

order to find out in which way the applicant's bullet wound and

blindness had been caused. In these enquiries and the opinions of

experts, it has been established beyond all doubt that the applicant

himself on 17 September 1967, when facing the gendarmes who had stopped

him, fired a gun at his head; that since that time he has been totally

blind owing to the fact that the optical nerves and the retinal

arteries of both his eyes are severed; and that at the present state

of scientific knowledge it seems absolutely impossible to restore his

vision. This was also stated in the judgment of the Court. According

to a psychiatric report, the applicant is not subject to delusions. If

he claims that the loss of his eyesight was due to a lack of medical

care during his detention, although he is aware of the true facts, this

can only be explained by his peculiar personality and his

aggressiveness, which is noted in the psychiatric report.

During his detention at the prison of the Regional Court at W., the

applicant swallowed two spoons and fell into rages which necessitated

his temporary transfer to G. psychiatric hospital.

On .. July 1970 the applicant asked the Republic of Austria to

recognise his claim for compensation to the amount of 600,000,000

Austrian schillings (i.e. six hundred million Austrian schillings)

under the Liability of Officials Act (Amtschaftungsgesetz) on the

grounds that his blindness was caused by a lack of medical care during

his detention.

In this connection, the Republic of Austria submits the following

documents:

1. A copy of a report of .. November 1970, by the administration of the

prison attached to the Wiener Neustadt Regional Court;

2. Copies of statements by the prison guards, Justizwachoberkontrollör

L., Justitzwachmann P., Justizwachmann H., and

Justizwachoberkontrollör S.;

3. A copy of a passage from the record of the trial of X containing the

opinion of the medical expert, Primarius Dr. E.;

4. A copy of the report of .. March, 1970 by Dr. H., lecturer in

ophthalmology;

5. A copy of the case history of X from the municipal hospital of the

town of N.

From these documents it clearly emerges that the applicant's

allegations are untenable.

In particular, it emerges from the documents that the applicant's

blindness did not develop during his detention but was already existent

at the time of his admission to the N. hospital on 17 September 1967

and that X's statements concerning alleged mistreatment during his

detention are false."

2. The Austrian Government further states that the applicant has not

exhausted the domestic remedies available to him. It requests the

Commission to reject the remainder of the application for

non-exhaustion of domestic remedies or in eventu, as being manifestly

ill-founded.

IV. Summary of the observations in reply submitted by the applicant

The applicant only repeats his allegation that on four occasions the

prison guards tried to murder him. He does not give any evidence in

support of his allegation. He also repeats that his blindness was

caused by the ill-treatment given to him in prison. He claims that the

result of the medical examination carried out at G. proves that the

gunshot which he received previously did not cause his blindness

because the bullet did not hit a nerve.

THE LAW

Whereas, in regard to the applicant's remaining complaint that he was

ill-treated by the police and prison guards, the Commission finds that

the Austrian Government's observations and documents enclosed therewith

give a reasonable explanation of the situation;

Whereas, indeed, the applicant only repeats, in his reply to the

Government's observations, his prior allegations without giving any

evidence to support them or to disprove the statements of the

respondent Government;

Whereas consequently the Commission accepts the Government's

explanation of the events concerned and finds that there is no

appearance of any violation of the rights and freedoms set forth in the

Convention and in particular in Article 3 (Art. 3); whereas it follows

that the remaining part of the application is also manifestly

ill-founded within the meaning of Article 27, paragraph (2)

(Art. 27-2), of the Convention.

Now therefore the Commission DECLARES THIS APPLICATION INADMISSIBLE

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X. v. AUSTRIA

X. v. AUSTRIA

LEXI