THE FACTS

Whereas the facts presented by the Applicant may be summarised as

follows:

The Applicant is an Austrian citizen, born in 1916 and residing in

Vienna.

From his statements and from documents submitted by him it appears

that, on .. April, 1966, he was arrested on suspicion of having

committed fraud (Betrug) and defamation (Verleumdung) and remanded in

custody in accordance with Articles 175, paragraph (1) No. 4, and 180,

paragraph (1), of the Code of Criminal Procedure (Strafprozessordnung).

He states that on .. April, 1966, he was taken before the competent

investigating judge (Untersuchungsrichter). Subsequently, he made an

application to the Regional Court (Landesgericht) at Klagenfurt for his

release pending trial. This application was dismissed on .. May; 1966,

on the ground that there existed a danger of his absconding and

committing further offences (Fluchtgefahr und Wiederholungsgefahr). The

Applicant states that he lodged an appeal (Beschwerde) against this

decision with the Judges' Chamber (Ratskammer) of the Regional Court

at Klagenfurt which was dismissed on .. May, 1966, and that he lodged

with the Court of Appeal (Oberlandesgericht) of Graz a further appeal

(weitere Beschwerde) against the Judges' Chamber's decision. According

to the Applicant, his further appeal was dismissed on .. June, 1966,

the Court of Appeal deciding that although there existed no danger of

his absconding, the danger of his committing further offences

persisted. The Applicant then apparently made an appeal against this

decision to the Supreme Court (Oberster Gerichtshof), which was

rejected by the Court of Appeal of Graz on the ground that such appeal

to the Supreme Court did not lie under Austrian law. The Applicant

further states that he also complained to the Minister of Justice and

the President of the Regional Court about his detention on remand and

that the latter promised to examine his complaint.

It appears that, on .. September, 1966, the office of the Public

Prosecutor (Staatsanwaltschaft) at Klagenfurt served on the Applicant

the bill of indictment (Anklageschrift). He states that he submitted

a list of witnesses whom he wished to have summoned to give evidence

at the trial. This list was later supplemented by the names of further

witnesses for the defence.

On .. November, 1966, the Applicant was brought to trial before the

Regional Court of Klagenfurt sitting at Spittal/Drau. He states that

only three of the witnesses named by him appeared in court. He also

alleges that he was hindered in his defence. He explains that he had

been in contact with a lawyer in Vienna who had invited him to send a

statement concerning his case. However, the investigating judge at

Klagenfurt had refused his permission to transmit this statement on the

ground that the Applicant was not allowed to write any letter relating

to the proceedings against him. The Applicant further explains that

shortly before the trial he had been informed that another lawyer from

Spittal had been appointed to represent him at the trial. This lawyer

had then informed the Applicant that he was not able properly to defend

him because he himself had just learned of his appointment.

Consequently, the Applicant had prepared a seventeen page statement

which he intended to deliver at the trial, but the presiding judge

prohibited him from delivering this document and defending himself in

person.

The Applicant states that, on .. November, 1966, the Regional Court

decided to adjourn the case.

It appears that the matter was heard again on .. January, 1967. On that

day the Regional Court of Klagenfurt convicted the Applicant for

defamation an fraud and sentenced him to ten months' severe

imprisonment with the additional penalty of "sleeping hard" (hartes

Lager) once a month. The Applicant lodged with the Supreme Court a plea

of nullity (Nichtigkeitsbeschwerde) alleging only that he was wrongly

convicted (Article 281, No. 9a of the Code of Criminal Procedure). The

Public Prosecutor's office, in turn, appealed (Berufung) against the

sentence imposed by the Regional Court. On .. June, 1967, the Supreme

Court rejected both the appeal and the plea of nullity.

The Applicant now complains that

-  his arrest and detention on remand violated the Convention. He

alleges that insofar as the Court of Appeal had held that there was no

danger of his absconding but only of his committing a further offence

of defamation, his arrest and detention were unlawful as the Austrian

Code of Criminal Procedure did not provide for detention on that

ground. He further alleges that, by .. December, 1966, he had been in

detention for eight months;

-  he was wrongly convicted and sentenced;

-  the Convention was violated in the court proceedings concerned in

that he was hindered in his defence and his witnesses were not summoned

and examined by the Regional Court.

He alleges violations of Articles 5, paragraphs (2) and (3), and 6,

paragraph (3) of the Convention.

THE LAW

Whereas, insofar as the Applicant complains of his arrest and detention

on remand, the Commission has had regard to Article 5, paragraph (1)

(c) (Art. 5-1-c), of the Convention which permits the "lawful arrest

or detention of a person effected for the purpose of bringing him

before the competent legal authority on reasonable suspicion of having

committed an offence or when it is reasonably considered necessary to

prevent his committing an offence or fleeing after having done so";

Whereas it appears that the competent Austrian court made an order for

the Applicant's arrest and detention on remand under the provisions of

Articles 175, paragraph (1), No. 2 and 180, paragraph (1) of the Code

of Criminal Procedure;  whereas the Commission is not competent to

examine the question whether during those proceedings the domestic law

was correctly interpreted and applied but is only concerned to satisfy

itself that the Applicant's detention was not the consequence of some

arbitrary action by the authorities;  whereas the Applicant has not

produced any evidence indicating the existence of such arbitrary

action;  whereas, therefore, the Commission finds that his detention

was "lawful" within the meaning of Article 5, paragraph (1) (c),

(Art. 5-1-c), of the Convention;

Whereas it follows that, in this respect, the Application is manifestly

ill-founded and must be rejected in accordance with Article 27,

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

Whereas, in regard to the Applicant's complaints as regards the length

of his detention on remand; the Commission had regard to his allegation

that he was so detained for a period of eight months; whereas the

Commission finds that an examination of the case as it has been

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

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

the Convention and in particular in Article 5 (Art. 5); whereas it

follows that this part of the Application is also manifestly

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

of the Convention.

Whereas, in regard to the Applicant's complaints relating to his

conviction and sentence an examination of the case as it has been

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

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

forth in the Convention and especially in the Articles invoked by the

Applicant;  whereas, in respect of the judicial decisions complained

of, the Commission has frequently stated that in accordance with

Article 19 (Art. 19) of the Convention its only task is to ensure

observance of the obligations undertaken by the Parties in the

Convention;  whereas, in particular, it is not competent to deal with

an application alleging that errors of law or fact have been committed

by domestic courts except where the Commission considers that such

errors might have involved a possible violation of any of the right and

freedoms limitatively listed in the Convention;  whereas, in this

respect, the Commission refers to its decisions Nos. 458/59 (X v.

Belgium - Yearbook III, p. 233) and 1140/61 (X v. Austria - Collection

of Decisions, Vol. 8, p. 57); and whereas there is no appearance of a

violation in the proceedings complained of; whereas it follows that

this part of the Application is again manifestly ill-founded within the

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

Whereas, in regard to the Applicant's complaint that the Convention was

violated in the court proceedings concerned, it is to be observed that,

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;

Whereas the mere fact that the Applicant has, in pursuance of Article

26 (Art. 26), submitted his case to the various competent courts does

not constitute compliance with this rule;  whereas it is also required

that any complaint made before the Commission and relating to lower

courts or authorities should have been substantially raised before the

competent higher court or authority;  whereas in this respect the

Commission refers to its constant jurisprudence, e.g. decisions No.

263/57 (K v. Federal Republic of Germany - Yearbook I, p. 147), 788/60

(Austria v. Italy, ibid IV, p. 116) and 1103/61 (N. v. Belgium - ibid

V. p. 168);

Whereas the Applicant had the possibility in his plea of nullity and

appeal to the Supreme Court to invoke his right to a fair hearing and,

in this connection, to rely upon the relevant provisions in domestic

law including possibly Article 6 (Art. 6) of the Convention;

Whereas it appears that he has not availed himself of this possibility;

Whereas , furthermore, 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, such as a legal or factual

impossibility or a justified impediment which might have absolved the

Applicant according to the generally recognised rules of international

law, from raising his complaints before the Supreme Court;

Whereas, therefore, the condition as to the exhaustion of domestic

remedies laid down in Articles 26 and 27, paragraph (3)

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

Applicant.

Now therefore the Commission declares this application INADMISSIBLE