THE FACTS

Whereas the facts presented by the applicant may be summarised as

follows:

The applicant is a German citizen born in 1941 at S., Yugoslavia.

When last heard of he was detained in prison at Stein/Danube (Austria)

serving a sentence of five years' severe imprisonment (schwerer Kerker)

for fraud; his term was due to end in October 1968.

He has lodged two previous applications (Nos. 2370/64 and 3011/67)

which were declared inadmissible by the Commission's decisions

of 11th February (1) and 20th December, 1967 (2).

The applicant generally attacks the Commission's decisions on his

previous applications and alleges that the Commission violated all

the articles of the Convention ("ihre eigenen Artikel auf der ganzen

Linie verletzt"). In particular he complains of the fact that the

Commission decided too early and did not wait until domestic

proceedingshad come to an end.

He raises a number of new complaints which are, however, largely

connected with facts forming already the subject of the previous

applications.

A. Complaints against Austria

I. One part of the applicant's present application relates to certain

facts already presented in Application No. 2370/64 against Austria

which were summarised as follows in the Commission's decision

of 11th February, 1967;

------------------------------

(1)  Published in Collection of Decisions, Vol. 22, p. 96

(2)  Published in Collection of Decisions, Vol. 25, p. 70

------------------------------

"After the hearing of his appeal in Vienna on .. July, 1964, the

applicant jumped off the train on his way back to the prison at

Wiener-Neustadt allegedly with the intention of committing suicide

after his conviction. A disciplinary punishment (Hausstrafe) of 10 days

solitary confinement ('Keller') and of 4 days fasting and sleeping hard

was imposed by the prison authority of Wiener-Neustadt which found that

he had tried to escape. The punishment was executed at Stein where the

applicant had been taken in the meanwhile. On .. December, 1964, the

applicant complained of this fact in a letter to the Minister of

Justice, but apparently without success. He also required compensation

for the injuries he had suffered when he jumped off the train.

...

With regard to these injuries ... suffered on .. July, 1964, when he

jumped off the train between Vienna and Wiener-Neustadt ... he filed

in 1965 with the Regional Court (Landesgericht für Zivilsachen) of

Vienna an action for damages against the State, which according to him

has not yet been determined by Court.

The Court assigned a lawyer of Krems to represent him in these

proceedings. This lawyer informed him, on .. March, 1966, that he had

presented the claim first to the Office of the Attorney of the Treasury

and that he would have to wait 3 months for its decision. In reply, the

applicant demanded a copy of the request lodged on his behalf with the

Attorney of the Treasury, but without success. Instead he was informed

on .. May, 1966, that the lawyer had asked the Court's permission to

resign from this case (Enthebung beantragt). On .. June, 1966, the

lawyer himself wrote to the applicant that he could not act for him

because the claims were exaggerated. On .. June, 1966, the applicant

was heard by the Court but no decision was taken. Subsequent letters

to the Court remained without reply.

The applicant states, without giving further details, that he has now

brought an action on the ground of tardiness and a claim for damages

(Säumnisklage verbunden mit einem Schadensersatzanspruch) against the

lawyer.

Insofar as the applicant's complaints were directed against his lawyer

who represented him in subsequent civil proceedings for damages, the

Commission rejected his previous application as being incompatible with

the Convention ratione personae and added that there was no appearance

of a violation of the Convention. Insofar as the above complaint gives

rise to the question whether the Regional Court failed to ensure that

the applicant's defence was properly carried out with the consequence

that he was not given a fair hearing within the meaning of Article 6

of the Convention.

Although the applicant, in a letter to the Commission dated 3rd

October, 1964, and concerning his previous application, had stated

expressly that he deliberately jumped off the train ("Ich wollte

sterben und sprang kurzerhand aus dem fahrenden Zug ..."), he now

alleges that he did not intend to commit suicide but fell off the

train. When reminded of the previous statement, he explains that he had

made those in a state of confusion ("Sinnverwirrung"). He now affirms

that, because of the hot weather on the day in question he did not feel

well and had to go to the lavatory. While he did so the prison officer

who accompanied him, sat in a corner of the compartment sleeping or

otherwise not paying attention. On his way back from the lavatory the

applicant - according to his present allegations - broke down tried to

find hold but did not succeed. So he fell through the door which he

might have opened while on the platform between two wagons and off the

train because the grid was not closed. The applicant alleges that the

prison officer according to the Rules on the escorting of prisoners by

prison officers (Vorschriften über die Eskortierung von Gefangenen

durch Justizwachbeamte) should have accompanied him to and waited at

the lavatory door.

With regard to the applicant's subsequent action for compensation - in

the amount of 700,000 Austrian Schillings - it appears from his present

allegations that, by decision from .. April, 1967, the Regional Court

released the lawyer from the case and withdrew the legal aid which had

been granted to the applicant. After having consulted the file kept in

the prison the Court held that his action had no chance of success as

there was nothing to show that the applicant had in fact fallen from

the train as a result of any negligence of the prison guard or the

railway administration.

The applicant's appeal was rejected by the Court of Appeal

(Oberlandesgericht) of Vienna on .. September, 1967, on the ground that

under Austrian law the applicant, as a foreigner, could not bring an

action for damages against the State, since no reciprocity is

guaranteed in relation to his home country; i.e. the Federal Republic

of Germany.

A further appeal lodged by the applicant was rejected as being

inadmissible by the Regional Court on .. November and by the Court of

Appeal on .. December. 1967.

The applicant complains both of the court's and his lawyer's conduct

in the case. He further complains that the Court of Appeal did not

transmit his appeal to the Constitutional Court

(Verfassungsgerichtshof) as requested by him. On .. February, 1968, he

applied directly to the Constitutional Court but apparently without

success.

The applicant also laid criminal charges against the persons who were

responsible that, according to his allegations, the grid of the

platform was not closed. The Public Prosecutor's Office

(Staatsanwaltschaft) of Wiener-Neustadt discontinued the proceedings

on .. May, 1967, on the ground that there was no sign of negligence and

this was confirmed on .. October, 1967, by the Judges' Chamber of the

Regional Court (Ratskammer des Kreisgerichts).

II. The applicant further complains about another incident during his

detention in Austria. He states that on .. April, 1967, he had

undergone an operation in a hospital in Krems. In the night from .. to

.. April, 1967, he received some medicine because he had pains. In the

morning he was apparently given a purgative. One hour later he had to

go to the lavatory but he could not get up because after having got so

much medicine he was too weak. When he tried to get up he allegedly

fell and hurt himself. Finally he had to relieve himself in the bed

while two prison officers stood in the room laughing and insulting him.

The applicant complains that the prison officers watched the whole

indigent without helping or assisting him in any way. He lodged against

the officers charges of having endangered his personal safety

(Gefährdung der Sicherheit des Lebens). The charges were dismissed on

.. August, 1967, and this decision was confirmed on .. October, 1967,

by the Judges' Chamber of the Regional Court at Krems.

III. The applicant further complains that during this medical treatment

in the hospital in Krems he had for 7 days to stay in a bed for which

the bedclothes of a fellow prisoner who had died were used without

being cleaned.

IV. As in his first application (No. 2370/64) he complains of the fact

that during his detention in Stein prison his health was ruined and as

a result of the work which he had to perform he now suffers from an

anginal hernia.

The applicant alleges violations of Articles 3, 6, paragraphs (1) and

(3) (a), (c) and (d), 7, paragraph (1), 8. paragraph (2), 9, paragraph

(2), 11, paragraph (2), 13 and 14 of the Convention. He also invokes

Articles 25, 26, 27, paragraph (1) (b), 28, paragraph (b), 31,

paragraphs (1) and (3), 44, 47, 49 and 50 of the Convention.

B. Complaints against the Federal Republic of Germany

The complaints made by the applicant against the Federal Republic of

Germany relate to certain facts already presented in Application No.

3011/67 which were summarised as follows in the Commission's decision

of 20th December, 1967:

"From his statements and from documents submitted by him in support of

his present application against the Federal Republic of Germany it

appears that, since September, 1954, his mother had rented a flat at

Magstadt which he also inhabited and where he kept his belongings.

Owing to the applicant's frequent absence, his mother let part of the

flat to a subtenant. On .. October, 1964, upon the initiative taken by

the authorities at Magstadt, the applicant's mother was first committed

to an institution for aged people and later to a mental institution.

Subsequently, the lessor gave notice to the applicant to vacate the

flat in view of the fact that his mother was unlikely to return and he

himself was faced with a long-term imprisonment imposed upon him in

Austria.

The applicant, whose furniture, household and other goods were still

in this flat, objected to the notice to both the authorities at

Magstadt and the lessor. It appears that he also addressed himself

repeatedly to the District Court (Amtsgericht) at Böblingen asking for

protection. By letters from the District Court, dated .. February, 1965

and .. April, 1965, and from the authorities at Magstadt, dated ..

January, 1965, he was informed that, in the circumstances, no action

could be taken on his behalf. He apparently did not listen, however,

to the advice given to him by the authorities at Magstadt and the

District Court at Böblingen to the effect that he should apply for a

guardian (Pfleger) who would attend to his affairs. In any event, the

lessor took possession of the flat on .. July, 1965, after having

evicted the subtenants.

It appears that, in the meanwhile, the applicant's brother had come

over from America to take possession of the applicant's belongings. He

sold them and obtained a purchase price of DM 1065.- which he took with

him to America.

The applicant maintained that the goods stored away in the flat had a

much higher value than the price realised by his brother. He concluded

that the subtenant had taken them in his possession when his mother was

committed to the mental institution. He held the authorities at

Magstadt and the lessor responsible for the damage done to him owing

to their failure to protect his mother from the subtenants and to the

fact that they had allowed them (the subtenants) to remain in the flat

after his mother had left it.

Thus he intended to bring an action for damages in the courts and, for

this purpose, lodged an application for free legal aid

(Armenrechtsgesuch) with the Regional Court (Landgericht) at Stuttgart.

This Court refused the application by decision (Beschluss) of ..

August, 1966, on the ground that the proceedings proposed did not offer

any reasonable prospects of success. The applicant appealed

(Beschwerde) against this decision to the Court of Appeal

(Oberlandesgericht) at Stuttgart which dismissed the appeal on ..

January, 1967. The Court held that insofar as the claim was directed

against the lessor, there was no cause of action, because the lessor

owed no duty to the lessee in respect of the lessee's belongings. The

Court continued that there was also no cause of action against the

authorities of Magstadt; even if it were assumed that a duty existed

owing to the fact that this defendant caused the mother to be committed

to an institution for aged people, there was no breach of this duty

(Amtspflichtverletzung) because she herself had taken steps to

safeguard her own and the applicant's belongings.

The applicant made a further appeal (weitere Beschwerde) against this

decision to the Federal Court (Bundesgerichtshof) which was declared

inadmissible on .. September, 1967, on the ground that a further appeal

did not lie in these cases."

These complaints were declared inadmissible by the Commission's

decision of 20th December, 1967, both as regards the alleged

deprivation of property and the subsequent court proceedings.

The applicant now alleges that during these Court proceedings he was

insulted and defamed in a letter submitted by the lessor to the

Regional Court on .. June, 1966. In this letter it was stated that the

applicant served a long term of imprisonment, that the applicant's

mother had let part of the flat to a subtenant without the lessor's

permission and that one could not expect from the lessor to let the

flat to the applicant and his mother any longer because they would not

be able to pay the rent.

The applicant requested legal aid in order to institute private

criminal prosecution ("Privatklage") against the lessor to the District

Court of Stuttgart. The District Court refused the request by decision

of .. September, 1967, on the grounds that the intended private

criminal prosecution had no reasonable chance of success. This decision

was confirmed on appeal by the Regional Court on .. September, 1967.

It appears that the applicant also lodged two constitutional appeals

which were rejected as being inadmissible by decisions of the Federal

Constitutional Court (Bundesverfassungsgericht) of .. January and ..

February, 1968. The applicant gives no clear details in this respect.

The applicant complains that he did not really want to apply for

private criminal prosecution but wanted to bring a civil action.

Although speaking of a "Privatklage" he apparently wished to bring a

civil action for damages and for a statement that he was still tenant

of the flat. He complains that no decision was given in this respect.

Furthermore the applicant complains of the fact that the Court had put

the expenses at his charge. He alleges - as he did in his previous

application (No. 3011/67) - that the authorities at Magstadt and the

lessor are responsible for the damage done to him and now complains

that he has even to pay the court's expenses resulting from this case.

The applicant alleges violations of Articles 6, paragraphs (1) and (3),

(c) and (d), 8, 13 and 14 of the Convention and Article 1 of the First

Protocol. He also invokes Articles 25, 26, 31, paragraph (1), 44, 47,

49 and 50 of the Convention.

THE LAW

Whereas Article 27, paragraph (2) (Art. 27-2), of the Convention

provides that "the Commission shall consider inadmissible any petition

submitted under Article 25 (Art. 25), which it considers ... an abuse

of the right of petition";

Whereas in this respect it is first to be observed that the applicant

has already seized the Commission twice with applications generally

concerning the same facts as his present complaints; whereas both those

previous applications were found to be inadmissible; whereas the

applicant nevertheless repeats in part his previous complaints although

adding certain new elements; whereas therefore the Commission, in

examining the present application, has taken into account that this

application constitutes to a certain extent a repetition of the

previous ones, even if it cannot strictly be said to be "substantially

the same" within the meaning of Article 27, paragraph (1) (b)

(Art. 27-1-b) of the Convention;

Whereas in his submission on one of those facts already raised in his

first application (No. 2370/53), the applicant has made deliberately

false statements and tried to mislead the Commission with regard to the

incident on the train between Vienna and Wiener-Neustadt, in that he

claimed in his first application that he jumped off the train to commit

suicide and - obviously no longer being aware of that statement - now

claims that he fell off the train as a result of a sudden fainting and

contributory negligence on the part of the escorting officer;

Whereas the Commission has already held in the past in similar cases

that such conduct of an applicant constitutes an abuse of the right of

petition; whereas reference is made to the decisions on the

admissibility of Applications Nos. 2169/64, 2204/64, 2326/64;

Collection of Decisions, Vol. 14, p. 76, and Nos. 2364/64, 2584/65,

2662/65 and 2748/66, Collection of Decisions, Vol. 22, p. 103; whereas

also in the present case the Commission finds in view of all

circumstances that the applicant's new application amounts to an abuse

of the right to petition within the meaning of Article 27, paragraph

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

Now therefore the Commission DECLARES THIS APPLICATION INADMISSIBLE