THE FACTS

Whereas the facts, insofar as they are apparently not disputed, may be

summarised as follows:

The applicant is a German citizen, born in 1931 and resident in Munich.

At the time of the introduction of his present application he was being

kept in detention on remand in the prison of the Regional Court at Wels

in Upper-Austria. The applicant, who is a publisher of books dealing

with cultural matters, is represented in the proceedings before the

Commission by Rechtsanwalt Willy Osthues, a lawyer practising in

Munich.

On 30 July 1969, the applicant was arrested by the Austrian police on

suspicion of fraud and, on 31 July 1969, the Regional Court

(Kreisgericht) of Wels decided to open a preliminary investigation

against the applicant under Article 197 of the Austrian Penal Code

(Strafgesetz) for cheque fraud (Scheckbetrug). The applicant was

charged with having issued a number of uncovered cheques on the account

of his Austrian bank at St. Wolfgang and of having cashed these cheques

in Germany. He was accused of having thereby caused his Austrian bank

to suffer a financial loss of more than 1,700,000 Austrian Schillings.

By decision of 31 July 1969, the above court remanded the applicant in

custody and he was detained in the prison of the Regional Court at

Wels. The Court considered that the danger existed that the applicant

might abscond, that he might commit further offenses, and that there

was a considerable risk of collusion between him and other persons

involved.

Upon his arrest the applicant indicated that he was not fit for

detention since, in 1961, he had suffered from poliomyelitis which had

resulted in his left arm and shoulder as well as his left leg and his

right arm being permanently disabled. Thereafter he had suffered from

spinal and chest diseases and had been under permanent medical care

since 1961; in particular, he had always to undergo regular orthopaedic

gymnastics to prevent atrophy of his muscles. The applicant was

examined on 4 August 1969 by the prison doctor, Mr. Müller, an expert

in neurology and psychiatry, who was of the opinion that the

applicant's state of health  was due to a chronic condition which was

likely to worsen even under treatment. This opinion did not, however,

expressly state whether or not the applicant was fit for detention.

On 29 August 1969 the applicant requested his release on bail and gave

further particulars on 1 and 4 September 1969. At this time, however,

he did not give his state of health as a reason for his request for

release, but he argued that the reasons for detention on remand, as

listed in the Austrian Code of Penal Procedure (Strafprozessordnung),

did not exist. He offered bail of 150,000 Austrian Schillings.

On 8 September 1969 the Investigating Judge dismissed the applicant's

request. The Judge stated that the applicant was a German citizen and

that he must expect a heavy penalty and that, consequently, the danger

of his absconding was obvious. Furthermore, there existed the risk of

collusion since a co-accused person in Munich, who had also made out

uncovered cheques, had not yet given evidence. The Investigating Judge

further held that the applicant had previously issued uncovered cheques

on several occasions and there was therefore danger of his continuing

these practices.

The applicant appealed against this decision on the same day and again

alleged that no reason for his detention on remand existed, but he did

not invoke his alleged physical unfitness for detention as a ground for

his release.

The Judges' Chamber (Ratskammer) of the Regional Court confirmed the

Investigating Judge's decision on the same day, i.e. on 8 September

1969.The Chamber stated that release on bail was only provided if the danger

of absconding was the only ground for the detention on remand of the

person concerned. As there also existed in the applicant's case the

risk of collusion and the danger of his committing further offenses,

his release on bail would not be granted. The Court declared that it

was most probable that the applicant would abscond to the United States

of America as he had relatives living there and as there was the

possibility of his receiving a heavy penalty on the present charges.

With respect to the risk of collusion it was stated that the

investigation was not yet finished since the inquiries in Munich, where

the applicant's commercial activities were concentrated, had not yet

been carried out. The Judges' Chamber also confirmed the danger of the

applicant committing further offenses since he was also accused of

forging cheques in Germany and, consequently, it was to be expected

that he would continue his practice of issuing uncovered cheques.

On 16 September 1969 the applicant appealed against this decision to

the Linz Court of Appeal (Oberlandesgericht) which, by decision of 1

October 1969, confirmed the decision of the lower courts. The decision

of the Court of Appeal did not deal with the applicant's state of

health because the applicant had not mentioned it in his appeal.

In all these proceedings, the applicant was represented by Rechtsanwalt

Viktor Straberger, a member of the Wels Bar.

On 24 October 1969 the applicant himself, without the assistance of his

counsel, requested his release from detention. In a handwritten letter

to the Investigating Judge the applicant indicated that reasons

for his detention did not exist, and he offered bail of 100,000

Austrian Schillings. In this request the applicant, for the first time,

referred to his bad state of health as a ground for his release and

said that he urgently needed specialised medical treatment. At the end

of this letter to the Investigating Judge the applicant included the

following statement concerning his health:

"I know that the latter argument is not a fact which can be legally be

taken into consideration by the Court ..."  (Ich weiß, daß mein

letzteres Vorbringen zwar keine juristisch wägbare Tatsache darstellt

...")

Also on 24 October, the applicant challenged the Investigating Judge.

He alleged that the latter was acting on the basis of political

considerations and bias against the applicant and that he intended to

endanger the applicant's family, who lived in the German Democratic

Republic. The applicant also referred to his state of health and

accused the Investigating Judge of not taking it into account. This

challenge was rejected by the President of the Regional Court by

decision of 28 October 1969. The President held that these reasons were

ill-founded and that, in particular, the applicant was, according to

the medical opinion of Dr. Müller of 4 August, fit to undergo

detention.

At the request of the Investigating Judge, Dr. Schättinger, the medical

officer of the Wels City Administration (Amtsarzt des Magistrates der

Stadt Wels) on 27 October examined the applicant and gave his opinion

on 30 October 1969. He found that the applicant's body was to a large

extent paralysed and that there was visible damage to his spine. He

said, however, that this was a permanent physical situation which could

not be improved and he concluded that the applicant's detention in

prison of the Regional Court was, for the time being, still possible

if orthopaedic gymnastics could be done; such gymnastics were still

possible in the Wels Hospital, according to the chief doctor Meissner.

If the period of the detention were longer, a transfer must be ordered

to another prison which had an infirmary.

("Eine Haft ist derzeit noch im kreisgerichtlichen Gefangenenhaus

möglich, wenn eine heilgymnastische Behandlung durchgeführt wird, die

im Krankenhaus Wels nach Rücksprache mit Primarius Dr. Meissner noch

möglich wäre. Bei längerer Haftdauer müßte aber eine Überstellung in

ein Gefangenenhaus mit Krankenabteilung durchgeführt werden.")

On 5 November 1969 the Investigating Judge dismissed the applicant's

request of 24 October 1969 for his release. He stated that the

applicant could not be released since the danger of his absconding and

committing further offenses continued. He indicated that release on

bail was only possible, if the sole reason for detention was the

existence of a danger of absconding. The Judge, however, did not deal

at all with the applicant's argument, put before him in his request,

that he was unfit for detention due to his physical condition. This

decision was served upon the applicant on 6 November 1969 together with

a notification that he could appeal against it within fourteen days.

The applicant did not, however, appeal against this decision.

On 6 November 1969 the Investigating Judge requested the Administration

of Wels Prison to transfer the applicant immediately to a prison

hospital (Inquisitenspital). He indicated that, in view of the medical

opinion of the above expert, Dr. Schättinger, such transfer was

essential since the end of the applicant's detention wasnot within

sight ("... so daß die Dauer der Untersuchungshaft nicht abzusehen

ist.")

On 7 November 1969 the Prison Governor wrote a letter to the Federal

Minister of Justice in Vienna and this was received in the Ministry on

10 November. The Prison Governor submitted copies of the expert opinion

of Dr. Schättinger and of the request of the Investigating Judge. He

asked the Minister to specify a prison hospital to which the applicant

could be transferred. In this letter the Prison Governor also stated

that at that time the applicant was being taken once a week to the Wels

hospital for the prescribed orthopaedic gymnastics.

On 17 November 1969 the Federal Ministry of Justice informed the

Regional Court of Wels that no prison hospitals were available where

such orthopaedic gymnastics could be done as were necessary for the

applicant's treatment and that, accordingly, the applicant should

continue to do these gymnastics in the Wels hospital.

On 1 December 1969 the applicant wrote a letter to Dr. Schättinger and

informed him that he had still not been able to see a specialist

regarding his ailments and that, since 27 October, he had been taken

to the Wels Hospital for gymnastics once a week and only for half an

hour. He also stated that he had not been strong enough to support that

weekly visit and had once fallen down; since then his left arm was

entirely paralysed and had lost 3 cm in circumference.

On 3 December 1969 the Investigating Judge requested Dr. Schättinger

to examine the applicant again. The doctor informed the Judge that this

examination should be carried out in a special hospital at Linz, the

Wagner-Jauregg Hospital. The chief doctor of that hospital, Dr.

Steinhäusl, telephoned the Investigating Judge on 10 December 1969 to

say that the examination would take several days and asked whether the

applicant should be kept in the open or closed section of the hospital.

After having consulted the President of the Regional Court, the

Investigating Judge ordered that the applicant should be kept in a

closed ward. (The closed ward of this hospital is situated at

Niedernhart, about 15 miles from Linz). In Dr. Steinhäusl's medical

opinion, dated 10 December 1969, it is stated that the applicant was

examined as his left arm was recently paralysed as a consequence of a

clumsy movement of a fellow prisoner who helped the applicant when he

was in danger of falling. The doctor found, however, no recent

paralysis but indicated that, in view of the past diseases of the

applicant, permanent active and passive physiotherapy was necessary in

order to keep in action the still active muscles and to prevent their

becoming atrophied ("... bei dem stattgehabten Leiden des Patienten

eine ständige aktive und passive Bewegungstherapie erforderlich ist,

um die noch aktiven Muskeln weiterhin in Aktion zu halten und damit

diese der Athrophie und Inaktivität nicht anheimfallen.")

On 23 December 1969, the applicant wrote a letter to the Investigating

Judge informing him that he was still kept in the closed ward at

Niedernhart in a room together with twenty violent, mentally sick

persons, six of whom had died in the last ten days in his presence. He

asked the Judge to transfer him to a proper hospital.

On 24 December 1969 the applicant returned, on the instructions of the

Investigating Judge, to Wels Prison.

On 12 January 1970, Mr Osthues, the applicant's German counsel, wrote

a letter to the Austrian Ministry of Justice, asking for an examination

of the applicant in view of his bad state of health, and for him to be

given adequate medical treatment.

On 14 January 1970, Dr. Schättinger again gave an opinion as to the

physical state of the applicant and based this on the report of Dr.

Steinhäusl, which he had apparently received only on 12 January 1970,

and on his own examination of the applicant. Dr. Schättinger found that

physiotherapy and orthopaedic gymnastics were permanently and

continuously necessary, and that the attempts to treat the applicant

in the Wels Hospital had failed since the applicant was thereby

subjected to an additional physical effort, and since the treatment in

the hospital was not adequate for the type of complaint of which the

applicant suffered. Dr. Schättinger declared that the applicant needed

permanent and continuous specialised medical treatment which he could

not obtain in prison or in any other hospital in Upper Austria. He

stated, furthermore, that the applicant's detention in the Wels Prison

could not be justified any longer.

On 15 January 1970 the President of the Regional Court of Wels informed

the Ministry of Justice of the opinions of Dr. Steinhäusl and Dr.

Schättinger and requested urgently that the applicant should be taken

to a special prison hospital.

On 22 January 1970, the President of the Regional Court released the

Investigating Judge from the conduct of the case as the latter had

informed him that, due to accusations made by the applicant against him

in a letter of 20 January 1970, special circumstances existed which

made it impossible for him, the Investigating Judge, to carry on the

investigation against the applicant.

On 21 January 1970, the Ministry of Justice informed the President of

the Regional Court that no appropriate prison hospital was available

in Austria and, on 22 January, the Minister instructed the Public

Prosecutor at Wels to request the Regional Court to release the

applicant. On 23 January 1970 the applicant was released from prison.

Complaints of the applicant

1.   The applicant complains that he was treated as a criminal while

being detained on remand. In this respect he submits that the

Investigating Judge and the police officers had frequently called him

a fraudulent person and a criminal. He alleges violations of Article

6 (2) of the Convention.

2.   The applicant further complains that he was beaten up and

received physical injuries during his detention in the Regional Court's

Prison at Wels. In this respect he submits that a police officer, Mr.

Greiner, gave him upon arrest a severe punch on his left side and that

he was kicked towards a washbasin and thereby injured. The same officer

allegedly gave him later a slap in the face. The applicant invokes in

this respect Article 3 of the Convention.

3.   The applicant finally alleges that his treatment during his

detention in Wels amounted to inhuman and degrading treatment within

the meaning of Article 3 of the Convention and also that his right to

life, as guaranteed under Article 2, was violated. The applicant

complains about the following facts:

(a)  that he was kept in detention on remand although he was

physically not fit for detention. In this respect the applicant

indicates that he was not given the medical treatment which was

essential for him and which was prescribed by both Dr. Schättinger and

Dr. Steinhäusl, and that he was not given the particular nutritious

diet which he needed;

(b)  that his left arm was paralysed due to the negligence of the

prison authorities during his transport to his weekly gymnastics at

Wels Prison;

(c)  that he was taken to the closed ward of the Psychiatric Hospital

of Linz at Neidenhart without having been informed beforehand that he

had to stay there for a fortnight, so that he did not take with him his

belongings, including his electric razor and his money for buying

additional food;

(d)  that he was kept in the closed ward at Niedernhart in a room

together with twenty violent lunatics, of whom six died in his presence

and that, consequently, he could not sleep and recover from his

illness;

(e)  that he was returned to Wels Prison on Christmas Eve 1969,

without notification and, despite his state of health, at a temperature

of -10o centigrade in an unheated van which was generally used for

transporting food; and that, consequently he contracted a fever which

finally ended in pneumonia;

(f)  that he did not get any adequate food upon his arrival at Wels

on 24 December, since the prison administration was not informed about

his return and he could only eat what other prisoners left;

(g)  that he received no medical care at all during the period from

24 December 1969 to 8 January 1970 although he suffered from fever

which later turned into pneumonia and that, from 8 January until his

release, he was not given the medical treatment prescribed in Dr.

Steinhäusl's report of 10 December;

(h)  that, due to this treatment, he lost by atrophy of his muscles

more than 16 kilograms, and almost lost his life as a consequence of

this and of his pneumonia.

Proceedings before the Commission

On 8 January 1970 the President of the Commission, acting ex officio

under Rule 38, 1 of the Commission's Rules of Procedure, gave priority

to this application.

A group of three members of the Commission carried out, on 11 March

1970, a preliminary examination of the application, and suggested that

the respondent Government should be invited to submit its written

observations on the admissibility in accordance with Rule 45, 3 (b) of

the Rules of Procedure.

On 20 March 1970, the Commission decided to give notice to the Austrian

Government of this application and to invite the Government to submits

its observations on the admissibility of the complaints under Articles

2 and 3 that the applicant was subjected to inhuman treatment whilst

being in custody.

On 11 May 1970 the Austria Government submitted its written

observations which were communicated to the applicant who submitted his

observations in reply by letter of 8 June 1970.

On 13 July 1970, a second group of three members of the Commission

examined the application and the observations of the parties and

unanimously reported to the Commission that the application appeared

to be admissible.

On 22 July 1970, the Commission decided, in accordance with Rule 46,

1 in fine of its Rules of Procedure, to invite the parties to make oral

explanations on the admissibility of the application. The hearing of

the parties was held in Strasbourg on 17 December 1970.

The applicant was present at the hearing and was represented by

Rechtsanwalt Willy Osthues. The Austrian Government was represented by

Sektionsrat W. Pahr, of the Federal Chancellery, deputy agent, and

Ministerialsekretär P. Jann, of the Ministry of Justice, adviser.

On the same day after hearing the parties, the Commission decided to

adjourn its decision on the admissibility of the application and to

delegate three members to hear evidence (MM. Fawcett, Ermacora, de Gaay

Fortman), in the presence of the parties, of Rechtsanwalt Dr. Viktor

A. Straberger (the applicant's Austrian counsel) and Landesgerichtsrat

Dr. Johann Gruber (the Investigating Judge up to 22 January 1970), on

facts concerning the question of the exhaustion of domestic remedies

by the applicant. The hearing of these witnesses took place on 23

January 1971, in Vienna, in the presence of the parties. The applicant

was represented by Rechtsanwalt Willy Osthues. For the respondent

Government there appeared:  Mr. E. Nettel, Minister Plenipotentiary at

the Austrian Ministry of Foreign Affairs, Agent, Sektionsrat W. Pahr,

of the Federal Chancellery, Deputy Agent, and Ministerialsekretär P.

Jann, adviser.

SUBMISSIONS OF THE PARTIES

Whereas the submissions of the parties in their written observations

and at the hearing may be summarised as follows:

I.   Under Article 26 of the Convention

In its written submissions the respondent Government pleaded that the

applicant had not exhausted the domestic remedies with regard to his

complaints under Article 3 of the Convention, namely that he had been

beaten by police officers and that his treatment during his detention

on remand amounted to inhuman and degrading treatment. The Government

submitted in this respect that both the beating up and the refusal of

medical assistance would in such circumstances amount to a punishable

offence under Austrian law; that the applicant must, therefore, in

order to comply with the rule laid down in Article 26 of the

Convention, bring criminal proceedings against the persons responsible

for these alleged offenses. The applicant, however, had only laid

charges against the police officers concerned but had not used his

further right of bringing a subsidiary prosecution (Subsidiäranklage)

against them under Article 48 of the Code of Criminal Procedure. At the

oral hearing the respondent Government submitted additional arguments

as regards this question. With regard to the alleged insufficient

medical attention during the applicant's detention on remand, it was

submitted that the applicant, in requesting his release on bail, had

not exhausted his remedies. The applicant had requested his release on

29 August 1969 and had given further particulars on 1 and 4 September

1969. However, he did not then rely on his unfitness for detention as

a ground for requesting his release. The Investigating Judge, who had

dismissed his request on 8 September 1969, did not therefore deal with

this point in his decision. In his appeal to the Judges' Chamber

(Ratskammer) of the same day, the applicant had failed to refer to his

state of health with the result that the Chamber, in its decision of

8 September 1969, also did not deal with the alleged unfitness of the

applicant. The same had happened with regard to the applicant's further

appeal of 16 September to 1 October 1969. The Court, for the same

reasons, had also not dealt with the applicant's state of health. It

was submitted that, consequently, this part of the proceedings could

not be considered as being relevant for the question of exhaustion

since the applicant had failed to put his case fully before the courts.

On 24 October 1969 the applicant had again requested his release from

detention and had expressly referred to his bad physical condition. The

Investigating Judge, by decision of 5 November 1969, did not, however,

grant his release. The respondent Government admitted that, in this

decision, the Investigating Judge did not deal with the applicant's

state of health.

According to the respondent Government, the applicant's request of 24

October 1969 for release was the only remedy of which the applicant had

availed himself since only in this request had he put his case fully

and formally before the Judge. Since the applicant had failed to appeal

against this decision to the Judges' Chamber and further to the Court

of Appeal, the Government concluded that he had not satisfied the

provisions of Article 26 of the Convention. It was admitted that the

Court and the Investigating Judge had been fully informed that the

applicant was feeling ill, and the applicant's German counsel, Mr.

Osthues, had also corresponded with the Court on this point and had

asked for his release; but this situation had not been put before the

Court by a formal request (prozessförmliche Anträge) and there had

therefore been no formal decision in this respect. The applicant had

also not made these requests through his Austrian counsel, Mr.

Straberger, who had been the only person who could validly act on his

behalf. Since the applicant had been represented by counsel it was

submitted by the Government that the Court had not the duty to advise

the applicant on remedies at his disposal. The Government submitted in

this respect that the applicant had, moreover, been informed as to his

remedies under the Austrian Code of Penal Procedure since his request

of 24 October 1969, for release had been made by himself and not by his

counsel. But even the applicant's ignorance as to these remedies would

not have absolved him from the obligation to exhaust them.

It was further submitted that, in any case, the requests of the

applicant and of his German lawyer, although made informally, had been

considered by the Austrian authorities and had finally led to his

release, at the Public Prosecutor's request, as soon as there was a

medical opinion to the effect that the applicant was unfit for

detention.

In conclusion, it was submitted that, with respect to this part of the

application, the applicant himself had not taken all necessary steps

to put his claim formally before the several Austrian courts which

would have been competent to grant his release on the ground of his

unfitness for detention, and that he consequently had failed to exhaust

the remedies available under Austrian law.

With regard to the applicant's complaint that he was beaten up in

prison by police officers, the respondent Government submitted that the

applicant had laid charges against Mr. Greiner, the police officer

concerned, and against the Investigating Judge, Mr. Gruber, on 29

October 1969 and on 20 April 1970, respectively, but these charges were

not substantiated. The applicant had indicated that he would give more

precise information but he had not yet done so. On the basis of these

charges the authorities had heard witnesses but their statements had

not corroborated the applicant's allegations. Consequently, the Public

Prosecutor had discontinued these proceedings. The Government,

accordingly, concluded that the applicant had not yet exhausted his

domestic remedies since he had not substantiated his charges against

the persons who had allegedly ill-treated him, and had not yet utilised

his possibilities under Article 48 of the Code of Penal Procedure, that

is to bring a subsidiary prosecution.

The applicant submitted that he had exhausted his remedies under

Austrian law with regard to his detention in prison. He referred in

this respect to his many formal and informal requests for release, his

having challenged several times the Investigating Judge, and his

complaints to the Ministry of Justice. He submitted that he did not

lodge a further appeal against the Investigating Judge's decision of

5 November 1969 refusing his release on bail, because the Investigating

Judge informed him that such an appeal would be useless. The applicant

complained in this respect that the Austrian Court had not ex officio

taken adequate action to prevent the deterioration of his health; that,

therefore, he had requested his release from prison because of his

state of health, in his formal complaint of 24 October 1969. This

complaint had been drafted by himself and its contents had been

influenced by the advice of the Investigating Judge. The latter had

told him, according to the applicant, that his state of health would

not be a factor which could be legally taken into consideration when

deciding on release. The applicant further referred to the

Investigating Judge's advice that an appeal would be useless and said

that this had been corroborated by his Austrian counsel, Mr.

Straberger. Both the Investigating Judge and Mr. Straberger had told

him that the question of the applicant's health could not be taken into

account when deciding on a request for release from detention. That was

the reason, according to the applicant, for his statement in his

request for release on 24 October 1969 that he knew "that his state of

health could not legally be taken into consideration". It was further

submitted by the applicant that he had not lodged an appeal against the

decision of 5 November 1969 because Mr. Straberger had also advised him

that, in view of the Court of Appeal's previous decision, any further

appeals would be ineffective. The applicant finally submitted, with

respect to this question that his lawyer, Mr. Straberger, had not been

granted access to him, since the Investigating Judge had held that no

reason existed for the applicant to see his counsel.

With regard to this last submission of the applicant, the respondent

Government objected that it was certainly not true that Mr. Straberger

was hindered from seeing the applicant or that the Investigating Judge

refused visits of Mr. Straberger to the applicant. The Government,

therefore, requested the hearing of Mr. Straberger both on this

question and, generally, on the steps taken by the latter in order to

have the applicant released. The respondent Government also stated

that, even if it was true that applicant's counsel had no right to

visit the applicant, it would have been possible for the applicant to

send the Investigating Judge's decision of 5 November 1969 to Mr.

Straberger and to request him to lodge an appeal against it or,

alternatively, the applicant could have made this appeal himself. The

respondent Government further submitted that an appeal against the

decision of 5 November 1969 would have been an effective remedy, since

for the first time the Judges' Chamber and the Court of Appeal would

have been confronted with the applicant's allegation that he was unfit

for detention in view of his state of health.

In respect of the applicant's complaint that he was beaten up by a

police officer, the applicant submitted that he had not elaborated on

the charges laid against the police officer and the Investigating

Judge, Mr. Gruber, and had not yet given the additional information

requested since, after his release from prison on 23 January 1970, his

principal concern had been to recover his health and to get proper

medical attention. On 2 January 1971, however, the applicant laid

charges against Mr. Greiner and other unknown persons, and therein he

substantiated his accusations.

II.  Under Articles 2 and 3 of the Convention

The respondent Government submitted in this respect that, as regards

the physical condition of the applicant, the latter had been medically

examined five days after his arrest, on 4 August 1969. The doctor had

no objections then as regards the applicant's fitness for detention.

On 14 October 1969 the Investigating Judge again requested a medical

opinion on the applicant's state of health; this opinion was given on

30 October 1969 and the applicant was declared fit for detention but

it was suggested that he should have orthopaedic training in the

hospital. On 3 December 1969 the Investigating Judge again requested

medical opinion which was given by the Chief Medical Officer of a

neurological hospital at Linz. This medical officer examined the

applicant on 10 December 1969 but his opinion was only received by the

Court by 14 January 1970. On the same day, Dr. Schättinger gave his

opinion stating that the applicant was not fit for detention in Wels

Prison. According to the respondent Government, this was the first time

it could be considered that the applicant was no longer fit for

detention. On the basis of this opinion and at the Public Prosecutor's

request, which the latter made ex officio, the applicant was released

on 23 January 1970.

As regards the particular complaints of the applicant, the respondent

Government submits that the applicant's allegations about his state of

health were not corroborated by the evidence and the files in the hands

of the Government. In particular, it did not appear from these

documents that the applicant's life had, as alleged, been in danger.

In this respect, the respondent Government referred to the medical

opinions of Dr. Müller, Dr. Schättinger and Dr. Steinhäusl. With regard

to the applicant's food it was submitted by the Government that he had

regularly accepted the meals which he had been given in prison and that

he had also regularly purchased such additional food, as was available

in the prison. Furthermore, it was pointed out by the Government that

the applicant did not follow the advice of the prison doctor as regards

his treatment; in particular he had failed to do exercises whilst in

his cell, or to do any gymnastics. With regard to the applicant's

complaint about his being transported in an unheated van, the

Government replied that this was especially equipped for the transport

of prisoners.

The applicant submits that the medical opinion given by Dr. Müller on

4 August was superficial and incorrect, and was given on the basis of

a cursory examination of the applicant without X-ray. Although he had

continually asked the Investigating Judge, Dr. Gruber, to allow him to

see a specialist and constantly complained of pains and emaciation, he

had received no treatment. The treatment given by the prison doctor,

Dr. Narbeshuber had been entirely insufficient and he had been given

totally inappropriate medicine. For example, he had been given

"Rheuma-Tropon-Salbe" and 5-10 Adolorin pain-killing pills per day,

which had the result that the whole lining of his stomach had become

inflamed and his state of emaciation had been accelerated. On his

complaints to the Investigating Judge he had been told not to make a

fuss. The applicant further submitted his complaints as indicated above

and emphasised that, due to the negligence of the prison authorities,

he also contracted pneumonia whilst detained in prison, and that he

suffered from that illness until his release on 23 January 1970, when

he had been taken by ambulance to a hospital in Munich, where his

illness had been diagnosed.

III. Under Article 27 (2) of the Convention

The respondent Government submitted that the Commission might consider

that the applicant had abused his right to petition under Article 25

of the Convention since, after his release in January 1970, he had

refused to give any evidence with regard to the criminal proceedings

opened against him in Austria although he had been requested to do so

before the District Court (Amtsgericht) in Munich. The District Court

had been asked by the Regional Court of Wels to hear the applicant on

certain points at stake. The applicant had refused to answer the

questions put to him, stating that he would not answer them as long as

the "corrupted criminal Gruber" was active at the Regional Court at

Wels. He had indicated that he would be ready to reply to these

questions after the Regional Court of Wels had justified itself before

the European Commission of Human Rights in Strasbourg as regards the

prejudice which it had caused him. The respondent Government submitted

in this respect that proceedings before the Commission could not

justify the applicant's refusal to comply with a legal obligation. The

respondent Government therefore requested the Commission to reject the

application as being an abuse of the right of petition.

The applicant submitted in reply that, according to German law, nobody

is obliged to make statements before a court. He pointed out that he

had refused to reply to the questions put to him by the District Court

of Munich since he did not want to prejudice his statements before the

Commission and since he had been of the opinion that these questions,

concerning the investigation of the charges laid against him in Austria

could not be clarified by a hearing before the District Court in

Munich.

THE COMMISSION'S FINDING OF THE FACT AS REGARDS THE ADMISSIBILITY OF

THE APPLICATION

On 17 December 1971, after having heard the parties to the present

application, the Commission decided to adjourn its decision on the

admissibility of the application and to hear the evidence, in the

presence of the parties, of Mr. Viktor A. Straberger, the applicant's

Austrian lawyer at Wels and of Mr. Johann Gruber, the Judge who, until

22 January 1970, led the investigation of the charges laid against the

applicant, on questions of fact connected with the issue as to whether

the applicant had or had not exhausted his remedies under the Austria

law. The hearing was held before three Delegates of the Commission in

Vienna on 23 January 1971. The evidence given by both witnesses may be

summarised as follows:

I.   As to the remedies available under Austrian law in the

applicant's case, and the decisions taken

Mr. Gruber said that in his opinion Article 398 of the Austrian Code

of Penal Procedure was not applicable to the applicant, since he had

not been a convicted person and this Article provides that the

execution of a sentence should be discontinued in the case of a serious

illness of the convicted person. Mr. Gruber also denied that this

provision could be applied to persons detained on remand by analogy,

but he referred in this respect to Article 183 of the above Code. The

latter Article provides that detention on remand should be executed in

such a manner that the person as such and his reputation should as far

as possible be taken into consideration. A person detained on remand

could at any time request release from prison. The decision taken by

the Investigating Judge and an appeal is available against this

decision to the Judges' Chamber, and further to the Court of Appeal.

Mr. Gruber said that, in his view, a person who is fit for detention

must be held in detention if one of the reasons mentioned in the Code

of Penal Procedure regarding detention on remand exists. If a person

was unfit for detention, he should then be released. The Investigating

Judge as such was not competent or authorised to make a finding himself

about the person's state of health; this was the task of the medical

officer (Amtsarzt). Mr. Gruber was not sure whether he could decide

upon the state of health as such of a detained person, since the prison

governor was responsible for the well-being of a detained person. Mr.

Gruber pointed out that he had informed Mr. Osthues about this, namely

that the question of the applicant's health  was a medical and not a

legal question.

As regards the remedies brought by the applicant, Mr. Gruber submitted

that the applicant's numerous complaints about his state of health were

not to be considered as formal complaints under the Code of Penal

Procedure. With respect to the applicant's formal request of 24 October

1969, Mr. Gruber said that, before reaching his decision thereupon, he

had asked for the opinion of the Public Prosecutor who had advised that

he would object to the applicant's release because of the danger of his

absconding and the risk of collusion. Mr. Gruber himself had agreed

with this opinion because he had considered, on the basis of Dr.

Schättinger's opinion of 30 October 1969, that the applicant had been

fit for detention, and that reasons for his detention continued to

exist. Since the Public Prosecutor had not dealt with the question of

the applicant's physical fitness for detention, Mr. Gruber had been of

the opinion that he himself had also no need to deal with it but he

confirmed that he had been of the opinion that the applicant was in

fact fit for detention. On the basis of this, Mr. Gruber said that he

had told the applicant, before the latter had drafted his complaint of

24 October 1969 that his state of health could legally not be taken

into consideration and that, according to his, Mr. Gruber's opinion,

release would not be granted on grounds of the applicant's health. In

this respect Mr. Gruber denied that he had ever told Mr. Osthues, the

applicant's German counsel, that unfitness for detention was no reason

for release under Austrian law. Mr. Gruber stated that his decision of

5 November 1969, by which he had refused the applicant's release, had

been served on the applicant only, since the request concerned had been

introduced by the applicant and not by his counsel. Mr. Gruber said

that he had given the applicant the advice that an appeal to the

Judges' Chamber and to the Court of Appeal  would have no success, but

he had also told the applicant that an appeal was available. Mr. Gruber

confirmed that he had seen all the letters of the applicant to Mr.

Osthues and other persons, in which the applicant had complained about

his bad treatment in prison, including his allegation that he had not

received medical attention, but submitted that this could not affect

the situation, since the applicant had refused to accept the treatment

prescribed by the prison doctor, whom he had called a charlatan.

Mr. Straberger submitted that he had been continuously informed as to

the state of health of the applicant through Mr. Gruber and Dr.

Schättinger. He stated that he had been fully aware of the contents of

Dr. Schättinger's report of 30 October 1969 by which the applicant was

found fit for detention provided that he underwent orthopaedic

gymnastics regularly at Wels Hospital. On the basis of this report Mr.

Straberger had found it unnecessary to lodge further formal requests

for release of the applicant since they would have been ineffective as

long as there was no medical opinion available to the effect that the

applicant was really unfit for detention. Mr. Straberger, therefore,

intervened many times with the President of the Regional Court, who at

the same time was responsible for the prison administration, the Public

Prosecutor, and the Investigating Judge, in order to have the applicant

transferred to a prison hospital. Mr. Straberger emphasised that he had

known that the President of the Regional Court had frequently requested

the Ministry of Justice to allow the transfer of the applicant. He also

submitted that he had been of the opinion that, in the circumstances

of the case, informal intervention for the applicant was more expedient

and had more chance of success than any formal complaint under the Code

of Penal Procedure. That had been the reason why he had not lodged any

further complaints or requests for release. Mr. Straberger said in this

connection that he had not known until the day of the hearing before

the Commission's Delegates that Mr. Simon-Herold had himself made a

further formal request for release, on 24 October 1969. He had

therefore not been given a copy of the decision of 5 November 1969 and

had, accordingly, not advised the applicant as to the possibility of

appeal. Mr. Straberger stated, however, that he had not known that the

applicant, on 10 December 1969, had been examined by Dr. Steinhäusl,

nor had he been informed of Dr. Schättinger's medical report of 14

January 1970 on the applicant's state of health. Mr. Straberger

indicated that, in view of the applicant's fitness for detention as it

appeared from the medical reports of 4 August 1969 and 30 October 1969,

his main concern had always been to have the applicant receive better

medical attention, but not release, since he had known that complete

unfitness for detention was rare. He added that he knew of cases, in

particular where the detained had suffered from tuberculosis, where the

detained person had been released as being unfit for detention, but he

thought that the applicant had not been unfit to this extent.

II.  As to Mr. Straberger's access to the applicant

Mr. Gruber submitted that Mr. Straberger had been very active as the

applicant's defence counsel in the first period of the applicant's

detention but that later Mr. Simon-Herold had on no occasion requested

the visit of Mr. Straberger. He stressed that he had never refused Mr.

Straberger permission to see the applicant and, as regards the

correspondence between the applicant and Mr. Straberger, Mr. Gruber

said that there had been only a few letters. As regards the days before

and after 24 October 1969 no requests to see each other had been made

either by Mr. Straberger or Mr. Simon-Herold.

Mr. Straberger submitted in this respect that he had always had the

possibility of seeing his client and that he had never been refused

access to him. He could also correspond with his freely, and he had at

no time been hindered in carrying out his professional obligations with

regard to the applicant.

THE LAW

Whereas first, the respondent Government submitted that the applicant

had abused his right to petition under Article 25 (Art. 25) of the

Convention and that, therefore, the application should be considered

inadmissible under Article 27, paragraph (2) (Art. 27-2), of the

Convention;

Whereas the Government submits in this respect that the applicant, when

requested to give evidence before the German District Court in Munich

with regard to the criminal proceedings opened against him in Austria,

stated that he would "only reply to these questions after the Regional

Court of Wels had justified itself before the European Commission of

Human Rights in Strasbourg as regards the prejudice which it had caused

him";

Whereas the applicant submitted that, according to German law, nobody

was obliged to make statements before a court and that he did not want

to prejudice his application before the Commission;

Whereas the Commission finds that the proceedings before the German and

Austrian courts are not linked with the proceedings instituted by the

applicant before the Commission; that, therefore, the applicant had

made the above remarks in proceedings which are not connected with the

present application; that, consequently these remarks are not relevant

in the present proceedings before the Commission; whereas,

consequently, the Commission cannot consider this application to be

inadmissible under Article 27, paragraph (2) (Art. 27-2), of the

Convention;

Whereas the applicant complains that he was treated as a criminal while

being detained on remand and that such treatment amounts to a breach

of Article 6 (2) (Art. 6-2) of the Convention which provides that

"everyone charged with a criminal offence shall be presumed innocent

until proved guilty according to law"; whereas he submits, in this

respect, that the Investigating Judge and police officers had

frequently called him a fraudulent person and a criminal; whereas the

Commission finds, however, that this allegation is not corroborated by

any evidence submitted to it by the applicant; whereas, therefore, the

Commission finds that there is no appearance of a violation of the

provisions of Article 6 (2) (Art. 6-2) of the Convention in the present

case;

Whereas, consequently, this part of the application is manifestly

ill-founded and must be rejected in accordance with Article 27 (2)

(Art. 27-2) thereof;

Whereas the applicant further complains that he was beaten up and

received physical injuries during his detention in the Regional Court's

Prison at Wels; in particular, that a police officer upon his arrest

injured him by giving him a severe punch and later slapped him in the

face; whereas the applicant invokes in this respect Article 3 (Art. 3)

of the Convention which provides "No one shall be subjected to torture

or to inhuman or degrading treatment or punishment";

Whereas the respondent Government submitted, having regard to Article

26 (Art. 26) of the Convention, that the applicant had not exhausted

his remedies under Austrian law with regard to this complaint since he

merely laid charges against the police officers concerned and against

the Investigating Judge, without substantiating them;

Whereas the Government, in particular, objects that the applicant had

also not used the possibilities under Article 48 of the Code of Penal

Procedure to bring a subsidiary prosecution against the persons

concerned; whereas the Government concludes that, therefore, the

applicant has not availed himself of any of the remedies provided for

in Austrian law;

Whereas the applicant submits that he had not yet elaborated the

charges laid by him against the Investigating Judge and the police

officer and had not given the additional information requested since,

after his release from prison on 23 January 1970, his principal concern

had been to recover his health and to get proper medical attention;

Whereas, on 2 January 1971 the applicant laid charges against the above

officials and other unknown persons and substantiated his accusations

therein; whereas, therefore, proceedings before the Austrian

authorities are still pending with regard to the applicant's present

complaint;

Whereas 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; and

whereas the Commission finds that the applicant has not yet exhausted

the possibilities offered to him under Article 48 of the Code of Penal

Procedure, that is to bring a private prosecution against the above

officials; whereas, therefore, he has not exhausted the remedies

available to him under Austrian law; whereas, moreover, an examination

of the complaint 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; whereas, therefore, as regards the

applicant's above complaint, the condition as to the exhaustion of

domestic remedies laid down in Articles 26 and 27 (3) (Art. 26, 27-3)

of the Convention has not been complied with by the applicant;

Whereas the applicant finally alleges that his treatment during his

detention on remand in Wels Prison from 31 July 1969 until 23 January

1970 amounted to inhuman treatment and degrading treatment within the

meaning of Article 3 (Art. 3) of the Convention and also that his right

to life, as guaranteed under Article 2 (Art. 2), was violated;

Whereas the applicant's complaints in this respect are set out under

paragraph 3 above;

Whereas the Commission has first considered the respondent Government's

objection that the applicant had not exhausted his remedies available

to him under Austrian law; whereas the Government in particular submits

that the applicant's request for release of 29 August 1969, as well as

the appeals against the decision given as regards this request, could

not be considered in this connection since the applicant did not then

rely on his unfitness for detention as a ground for his request for

release; whereas the Government further submits that the applicant also

failed to appeal against the decision of the Investigating Judge of 5

November 1969 and that this was the only decision which was given on

a formal request by the applicant to be released on the ground of his

bad state of health; whereas the Government also submits that the

applicant had been formally advised by the Investigating Judge as to

his possibilities to appeal to the Judges' Chamber against the above

decision; further that the applicant's numerous complaints, which he

had made in letters to the President of the Court or in other letters,

could not be considered in respect of the question of the exhaustion

of domestic remedies, since they were not made in a request formally

put to the Court; whereas the respondent Government concludes that the

applicant had thus not taken all necessary steps to put his claim

formally before the several Austrian courts which would have been

competent to grant his release on the ground of his unfitness for

detention; whereas, consequently, the applicant had, according to the

Government failed to exhaust his domestic remedies within the meaning

of Article 26 (Art. 26) of the Convention.

Whereas in this connection the applicant submitted that he had

exhausted these remedies by virtue of his numerous judicial and

extra-judicial complaints lodged against his detention; whereas, in

particular, he refers to his request for release of 24 October 1969,

which he was refused by the Investigating Judge on 5 November 1969;

Whereas, in this respect, the applicant states that he did not make a

further appeal against this decision because the Investigating Judge

had informed him that any appeal, although provided for under the Code

of Penal Procedure, would be useless and unsuccessful; whereas he

alleged that this information was confirmed, in general by his Austrian

counsel, Mr. Straberger, who had previously told him that any further

requests for release or appeals against the decisions of the

Investigating Judge would be useless in view of the decision of the

Court of Appeal of 1 October 1969; whereas the applicant furthermore

submits that he could not consult his counsel on this question after

5 November 1969, when the essential decision of the Investigating Judge

was given, since the latter had refused to allow Mr. Straberger to see

him;

Whereas the Commission first had regard to the complaint of the

applicant with respect to his treatment in Wels Prison during the

period from 31 July 1969 until 24 October 1969; whereas it appears from

the facts before it that the applicant, during that period, complained

against his detention and on 29 August requested his release from

prison; this request was refused by decision of 8 September, and the

applicant on the same day appealed to the Judges' Chamber which also

refused to release him; the applicant's further appeal against this

decision was dismissed on 1 October 1969 by the Linz Court of Appeal;

Whereas the Commission notes that no other formal request for release

was made by the applicant during this period and whereas it is of

essential importance that, in the requests mentioned above, the

applicant failed to invoke his bad state of health as a ground for

release;

Whereas, therefore, the applicant did not put his case fully before the

several Austrian courts which would have been competent to deal with

it;

Whereas, therefore, the applicant has not exhausted the remedies

available to him under Austrian law;

Whereas the Commission, in this respect, refers to its previous

decision No. 1661/62, YB VI p. 366, where it held that, "for the

purposes of applying Article 26 (Art. 26) of the Convention, any

complaint made to it in respect of a lower national court must first

have been brought, at least in substance, before the appropriate higher

court ...; whereas an application ... may thus prove to be inadmissible

if the victim of the alleged violation has not given his judges an

opportunity to remedy that violation because the Convention was not

invoked or no other arguments to the same effect were raised ...";

Whereas this applies, a fortiori, to the present complaint since the

applicant, during this first period of his detention, had not put his

complaint at all before any of the competent Austria courts;

Whereas, therefore, as regards this period the condition as to the

exhaustion of domestic remedies laid down in Articles 26 and 27 (3)

(Art. 26, 27-3) of the Convention has not been complied with by the

applicant;

Whereas as regards the second period of the applicant's detention the

Commission notes that the applicant in a formal complaint to the

Investigating Judge on 24 October 1969 requested his release from

prison in view of his physical unfitness for detention;

Whereas, the Commission again, however, had regard to the question

whether or not the applicant had complied with the rule regarding the

exhaustion of domestic remedies in spite of the fact that he failed to

appeal against the Investigating Judge's decision of 5 November 1969;

Whereas the applicant alleged that he had been advised by both the

Investigating Judge and his counsel that such an appeal would be

useless and further that his counsel was refused access to him by the

Investigating Judge;

Whereas, therefore, the issue put before the Commission whether or not

special circumstances existed which, according to the rules of

international law within the meaning of Article 26 (Art. 26) of the

Convention, absolved the applicant from exhausting the remedy available

to him namely the lodging of the above appeal [see the Commission's

decisions No. 181/63, Yearbook, Vol. I, p. 140; 27/55, Yearbook, Vol.

I, 139; 1918/63, Yearbook, Vol. VI, p. 492; 1404/62 (Wiechert v.

Federal Republic of Germany), Yearbook, Vol. VII, 134];

Whereas in this respect the Commission first had regard to the evidence

before it, and in particular the statements of the two witnesses heard

by its Delegates; whereas it finds that the applicant had indeed been

advised by the Investigating Judge that any further appeal against the

decision of 5 November 1969 would be useless and had no chance of

success; whereas at the same time the Commission noted that the

Investigating Judge expressly informed the applicant in writing that

such an appeal was, in principle, open to him; whereas it also finds

that the applicant's counsel, Mr. Straberger, was generally of the same

opinion, although he had not been consulted by the applicant as to the

lodging of a further appeal against the said decision;

Whereas the Commission further finds that the applicant's allegations

that the Investigating Judge had refused the applicant permission to

see his counsel were not corroborated by the evidence before the

Commission; whereas, on the contrary, the Commission finds that the

applicant's counsel was, in principle, always free to see the

applicant;

Whereas, having regard to the other circumstances of this case as

mentioned above, the Commission does not consider that the applicant,

simply by reason of the Investigating Judge's advice that a further

appeal would most likely be unsuccessful, was absolved from lodging

such an appeal; whereas the Commission, in this respect, refers to its

above decisions, and especially to its decision in application No.

1488/62 (Collection of Decisions, Vol. 13, p. 96) where it held that

the advice of the lawyers of the applicant that a further remedy would

be useless does not constitute a "special circumstance", which, under

the rules of international law within the meaning of Article 26

(Art. 26) of the Convention, absolved the applicant from exhausting

that remedy; whereas the same consideration applies in the present

case, where similar advice had been given by both applicant's counsel

and the Judge whose decision was concerned;

Whereas, however, the Commission had regard to the above rules of

international law in another context, namely "the rule of local redress

confines itself in imposing the 'normal use' of remedies 'likely to be

effective and adequate'" [see decision of the Commission No. 788/60

(Austria v. Italy), Yearbook, Vol. VII, p. 172];

Whereas, in this respect it further refers to its previous decisions

[No. 299/57 (Greece v. United Kingdom) Yearbook, Vol. II, p. 192; No.

332/57 (Lawless v. Ireland), Yearbook, Vol. II, p. 318; No. 788/60

(Austria v. Italy) p. 169],  where the Commission has held that the

exhaustion of a given domestic remedies ceases to be necessary,

according to the generally recognised rules of international law, if

the applicant can show that, in the particular circumstances, this

remedy was unlikely to be effective and adequate in regard to the

grievances in question;

Whereas, in the present case, the Commission had regard to the fact

that the Investigating Judge's decision, whether or not to release the

applicant on the ground of his unfitness for detention, depended on the

medical report before him and also to the fact that he could only grant

this release in circumstances where the medical officer had reported

to him that the person concerned was unfit for detention;

Whereas the Judge could not himself find that the person was unfit for

detention and thereby release him; whereas, in the present case, the

Investigating Judge reached his decision of 5 November 1969, on the

basis of a medical report of the medical officer, dated 30 October 1969

in which it was stated that the applicant was not unfit for detention

in the Wels Prison; whereas, consequently the Investigating Judge was

obliged to decide not to release the applicant;

Whereas, in these particular circumstances, it appears that an appeal

against the decision of the Investigating Judge would almost certainly

have been ineffective, since both the Judge's Chamber and the Court of

Appeal must also have decided on the basis of the above medical report;

Whereas, accordingly, the Commission finds that the applicant, in the

particular circumstances of his case, was absolved from appealing

against the decision of 5 November 1969 since such appeal was not an

effective remedy within the meaning of Article 26 (Art. 26); whereas,

accordingly, the applicant cannot be said not to have complied, as from

24 October 1969, with the rule laid down in Article 26 (Art. 26) of the

Convention;

Whereas, consequently, his complaints regarding his treatment while

being detained on remand during the period of 24 October 1969 until 23

January 1970 cannot be rejected under Article 26 (Art. 26) of the

Convention for non-exhaustion of domestic remedies;

Whereas, the Commission next had regard to the substance of the

applicant's complaints under Articles 2 and 3 (Art. 2, 3) as to his

ill-treatment in Wels Prison during his detention on remand, as from

24 October 1969 until 23 January 1970; whereas the Commission finds

that, in the light of the submissions of the parties, these complaints

raise important issues concerning the application and interpretation

of the Convention whose determination should depend upon an examination

of the merits of the application;

Whereas, therefore, these complaints cannot be considered as being

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

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

Now therefore the Commission

1.   Declares admissible the part of the application that relates to

the applicant's treatment in Wels Prison during the period from 24

October 1969 until 23 January 1970;

2.   Declares the remainder of the application inadmissible.