THE FACTS

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A partial decision of 1st April, 1966, has been published in Collection

of Decisions, Volume 19, page 95.

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Whereas the facts presented by the Applicant - excluding those which

relate to the complaints already rejected by the Commission - may be

summarised as follows:

The Applicant is an Austrian citizen, born in 1932 and at present

detained in the Stein prison.

On 8th October, 1965, the Regional Court for Criminal Cases

(Landesgericht für Strafsachen) in Vienna convicted the Applicant for

theft and sentenced him to six years' severe imprisonment. The Court

also ordered his subsequent internment in a labour institution

(Arbeitshaus).

On 11th October, 1965, the Applicant first wrote to the Commission,

complaining of his committal to a labour institution. The Commission's

Secretary replied to this letter on 18th October, 1965.

The Applicant complains that the authorities controlling his

correspondence forwarded to the press information about the contents

of these two letters of 11th and 18th October, 1965 and that articles

concerning this correspondence appeared in several Austrian newspapers

which also published his name.

He states that he complained of this to the Minister of Justice and

that his complaint was rejected on .. January, 1966.

He alleges a violation of Article 8, paragraph (2), of the Convention.

In support of his allegation, the Applicant has submitted a printed

article which, according to his information, had appeared in the

Austrian newspaper "Express" of 26th - 27th October, 1965. In this

article, it is stated:

"There is no forced labour in a labour institution. This was

established by the Commission of Human Rights in a letter to the Vienna

prisoner X who, in respect of his committal to an Austrian labour

institution, had invoked the provisions of the Convention on Human

Rights according to which, in his opinion, forced labour is forbidden.

In the information given to the prisoner, it is expressly stated that

the labour institution only serves the purpose of reforming the

prisoner. He should be brought back in this manner to a hard-working,

regular life. Consequently, the labour institution is not covered by

the provisions of the Convention which forbid forced labour."

The Applicant states that similar articles appeared in two other

newspapers, "Wiener Kurier" and "Kronen Zeitung".

A further newspaper article is available to the Commission (received

from the Information Service of the Council of Europe). In this

article, which appeared in the "Arbeiter-Zeitung" on 14th October,

1965, it is indicated that X had alleged before the Commission of Human

Rights that detention in a labour institution implied forced labour and

was therefore illegal. Indications were given about the offenses of

which X had been convicted and in regard to his complaint to the

Commission the following information was added:

"I am not in possession of the necessary means to pay a lawyer ...",

wrote X, in a manner calling for pity, in his latter of complaint to

Strasbourg. Then he got upset at the thought of being punished, in case

of refusal to work in the labour institution, with solitary

confinement, sleeping hard, and deprival of privileges. Moreover, the

prisoner only receives 25 Groschen an hour for his work. "Even if I

have had my shortcomings, I do wish to obtain my right", he concluded

his letter.

It was asserted at the Regional Court of Vienna that this letter will

be forwarded to the Commission of Human Rights although it contains

defamatory and incorrect statements ..."

Proceedings before the Commission

Whereas the proceedings before the Commission may be summarised as

follows:

By its partial decision of 1st April, 1966, the Commission declared

certain parts of the Application inadmissible and decided to invite the

Respondent Government, in accordance with Rule 45, paragraph 3 (b), of

the Commission's Rules of Procedure, to submit its observations on the

admissibility of the Applicant's complaint that the Austrian

authorities had violated his right to respect for his correspondence

within the meaning of Article 8 of the Convention.

The Government submitted its observations on 31st May, 1966, and the

Applicant replied by letter of 8th June, 1966.

The Commission resumed its examination of the case on 14th, 15th and

19th July, 1966, and decided to ask the Government to submit further

comments in regard to a number of specific points.

The Respondent Government submitted, on 27th September, 1966, the

comments requested by the Commission, and the Applicant replied by

letter of 9th October, 1966. The Applicant also made certain further

submissions dated 14th November, 1966.

The Commission continued its examination of the Application on 14th

December, 1966. On this occasion, the Commission considered it

essential to obtain certain further documents regarding the case and

instructed its Secretary to ask the Applicant to submit these documents

or, if necessary, to obtain them from the Government.

The Applicant subsequently informed the Commission that he was unable

to produce the documents concerned, but these were submitted on 1st

March, 1967, by the Respondent Government.

Submissions of the Parties

Whereas the submissions of the Parties may be summarised as follows:

I. Exhaustion of domestic remedies

The Government submitted that the Application was inadmissible on the

ground that the domestic remedies had not been exhausted within the

meaning of Article 26 of the Convention. In the Government's opinion,

there were two remedies which the Applicant ought to have exhausted,

namely, (a) appeal to the Constitutional Court (Verfassungsgerichtshof)

and (b) criminal charge (Strafanzeige).

(a) Appeal to the Constitutional Court

The Government submitted that the Applicant could have lodged a

constitutional appeal in accordance with Article 144 of the Federal

Constitutional Act (Bundes-Verfassungsgesetz). It was true that this

provision only provided for appeals from formal decisions (Bescheide)

of administrative authorities but, according to the consistent practice

of the Constitutional Court, not only decisions but also factual

official acts (faktische Amtshandlungen) could be challenged under

Article 144 of the Federal Constitutional Act. According to the

Government, the fact of communicating the contents of letters which had

become known to officials while performing their task of controlling

the correspondence of prisoners could, in accordance with the

consistent practice of the Constitutional Court, certainly be qualified

as a factual official act.

The Government further pointed out that the Convention was an integral

part of Austria's domestic legislation and had the status of a Federal

constitutional act. The Constitutional Court, it was true, had decided

that Articles 5, 6, 11 and 13 of the Convention were not

self-executing. Such a decision of the Constitutional Court did not

exist in regard to Article 8 of the Convention. The fact that the

Constitutional Court had not yet had to deal with this provision of the

Convention did not make any difference. Consequently, everybody could

be expected to institute, in accordance with Article 144 of the Federal

Constitutional Act, proceedings with the Constitutional Court for a

violation of Article 8 of the Convention and such proceedings could not

in advance be said to the hopeless. Consequently, before appealing to

the Commission, the Applicant ought to have submitted his complaint to

the Constitutional Court.

The Commission, on 19th July, 1966, decided to ask the Government for

further information as to whether a constitutional appeal had been

available to the Applicant in the circumstances of the present case.

Information was requested on two specific points. First, the Commission

had observed that, according to the Applicant, he did not know which

public authority he should consider responsible for the alleged

transmission of information to the press. The Commission therefore

wished to be informed whether in these circumstances it would have been

possible to lodge a constitutional appeal or whether there would have

been an obstacle by reason of the fact that the Applicant could not

bring proceedings against any particular authority. Secondly, the

Commission pointed out that the Applicant's correspondence had

apparently been censored by an official at the Regional Court for

Criminal Cases. Consequently, the Commission wished to know whether the

Applicant, if he considered that information had been given to the

press by an official at this Court, could have raised this allegation

before the Constitutional Court; or whether that Court would not have

been competent to deal with the allegation on the ground that it

concerned a court and not an administrative authority (see the wording

of Article 144 of the Federal Constitutional Act: "appeals against

decisions of the administrative authorities").

The Government, in its reply, pointed out that as a matter of

principle, the legal questions raised by the Commission could only be

finally answered by the Austrian courts themselves. The Government,

however, referred to a decision (Slg. 3062) in which the Constitutional

Court had pointed out that the administrative decision which an

Applicant alleged to have violated one of his constitutional rights

formed the subject of a complaint under Article 144 of the Federal

Constitutional Act. In the same decision the Constitutional Court had

added that it was immaterial if the complainant in his complaint named

the wrong authority. In such a case the Constitutional Court could ex

officio cite the authority which was in fact responsible for the

decision forming the subject of the complaint.

In proceedings under Article 144 of the Federal Constitutional Act a

factual official act was equivalent to a written administrative

decision (see Decision Slg. 1542 of the Constitutional Court). The

alleged transmission by a State official of the Applicant's

correspondence with the Commission could be regarded as a factual

official act within the meaning of the jurisprudence of the

Constitutional Court. In this context mention could be made of Decision

Slg. 2694, in which the Constitutional Court had ruled that the

publication by a press release of a specific measure taken by an

authority was a factual official act where the press release was not

ordered by written administrative decision, and that a complaint under

Article 144 of the Federal Constitutional Act could be lodged in such

a case.

Arguing from these decisions of the Constitutional Court, which were

in complete accord with the wording of Article 144 of the Federal

Constitutional Act, and of Article 82 of the Constitutional Court Act

of 1953, where it was not stipulated that the authority should

expressly be named, the Applicant could have resorted to the

Constitutional Court on the ground of the alleged violation of Article

8 of the Convention. In his complaint to the Constitutional Court, the

Applicant would have been obliged to name the official act which in his

view violated one of his constitutional rights. But it would not have

been absolutely necessary to name the State official or agency

responsible for the act in question. It would only have been necessary

- as, incidentally, in the present proceedings before the Commission

- to prove that the act concerned was a specific official act. In

compliance with its own Decision Slg. 3062, the Constitutional Court

would ex officio have cited the authority responsible for this act.

The Government further submitted that a complaint to the Constitutional

Court within the framework of proceedings under Article 144 of the

Federal Constitutional Act was not a priori excluded by the fact that

it was an official of the Regional Court who was alleged to have

violated Article 8 of the Convention. From the competence of the

Constitutional Court under Article 144 of the Federal Constitutional

Act acts of "jurisdiction" were excepted. But courts were active not

only in the field of jurisdiction but also in the field of

administration ("judicial administration" as provided by Article 87 of

the Federal Constitutional Act). To this extent the acts of a court did

come under constitutional jurisdiction and were subject to the

proceedings provided by Article 144 of the Federal Constitutional Act

(see for example Decision Slg. 3701 of the Constitutional Court).

The Applicant first maintained that under Austrian law he must, if an

appeal of his was dismissed, be informed orally or in writing to which

authority he could apply for the further protection of his rights. This

had not been done in the present case and he had therefore not been

aware of the possibility of appealing to the Constitutional Court.

Subsequently, he also contested that an appeal to the Constitutional

Court had been available and referred to a letter which he had received

from the President of the Constitutional Court. In this letter, dated

.. October, 1966, the President had stated as follows:

"Under Article 144 of the Federal Constitutional Act, the

Constitutional Court may decide on appeals against decisions

(Bescheide) of the administrative authorities. Since your letter does

not refer to any such decision, it cannot be treated as an appeal

within the meaning of Article 144 of the Federal Constitutional Act."

The Commission found it necessary also to have the text of the letter

which the Applicant had sent to the Constitutional Court and to which

the President of the Court had replied as indicated above. The letter

is dated .. October, 1966, and concerned complaints regarding the

Applicant's internment in a labour institution and the lawfulness of

labour institutions in general. In respect of the publication of the

Applicant's correspondence in the press, the letter contains the

following statement by the Applicant:

"I do not wish to deal, in this connection, with the publication of my

letters in the press, since the High Commission has already been

dealing with this question since 18th February, 1966, under file No.

2742/66, according to Articles 6 and 8."

(b) Criminal charge

The Respondent Government also submitted that there was a further

remedy which the Applicant should have exhausted. The act of which he

complained was punishable according to Article 102, paragraph (c), of

the Austrian Penal Code which subjects to punishment "whoever in a

dangerous manner divulges an official secret entrusted to him; whoever

destroys a document (Urkunde) entrusted to him in his official function

or, contrary to his duty, discloses it to somebody". Consequently, the

Applicant would have had the possibility to lodge a criminal charge

(Strafanzeige) and, if necessary, to bring a "subsidiary charge"

(Subsidiarantrag) according to Article 48 of the Code of Criminal

Procedure (Strafprozessordnung). However, by not using these remedies

he had failed to comply with Article 26 of the Convention.

The Commission, on 19th July, 1966, decided to ask the Government for

further information as to whether the alleged act constituted a

criminal offence under Austrian law since otherwise the remedies

concerned would not be applicable. First, the Commission wished to be

informed of the exact provision of Article 102, paragraph (c), of the

Penal Code which was considered by the Government to cover the

circumstances of the present case and, in particular, as to whether the

letters concerned were to be considered as "documents" (Urkunden)

within the meaning of Article 102, paragraph (c). Secondly, the

Commission drew the Government's attention to Article 1 of the 1870 Act

for the Protection of the Secrecy of Letters and Documents (Gesetz zum

Schutze des Brief- und Schriftengeheimnisses) which gives protection

against "unlawful opening or suppression" of letters and documents.

The Commission asked the Government to indicate whether it considered

this provision to be applicable to the present case.

The Government, in its reply, emphasised that the authoritative

interpretation of the provisions concerned was a matter for the

Austrian courts.

It pointed out, however, that Article 101 of the Penal Code gave a

general description of the crime of abuse of official powers and then

indicated who was to be regarded as an official in this context; the

following Article 102 added some "particular cases" of abuse of

official powers. The provisions of Articles 101 and 102 of the Penal

Code in its present version were the following:

"Article 101: Any official of the State or a municipality who in his

official position in whatever manner it may be abuses the powers

entrusted him with intent to cause detriment to somebody, whether it

be the State, a municipality or some other person, shall be guilty of

a felony; regardless whether he be induced by self-interest or any

other passion or intention.

Whoever by force of a direct or indirect public appointment is engaged

to transact government business, regardless whether or not he has taken

an oath of office, shall be regarded as an official.

Article 102: Under such circumstances this felony is in particular

committed by:

(a) a judge, public prosecutor or other government official, and

generally any official on active duty, who refrains from fulfilling his

official duties;

(b) any official, including notaries public, drawing up or executing

legal instruments, who in an official matter testifies to untrue facts;

(c) whoever in a dangerous manner divulges an official secret entrusted

to him; whoever destroys a document entrusted to him in his official

function or, contrary to his duty, discloses it to somebody;

(d) a lawyer or other sworn attorney who, to the detriment of his

party, assists the opponent in the drawing up of legal papers or in

some other manner advises or aids him.

Furthermore, any official who in the exercise of his official duties

or services trespasses on the privacy of a person's home or on a

person's freedom by illegally restricting his personal freedom or

depriving him thereof shall also be guilty of the felony of abuse of

official powers."

The Government further stated that Article 1 of the Act of 6th April,

1870, RGBl. No. 42. for the Protection of the Secrecy of Letters and

Documents read as follows:

"The wilful violation of the secrecy of letters of other sealed papers

by unlawful opening or suppression of them shall be punished as a

misdemeanour, unless a severer provision of general criminal law is

applicable to such a violation. When committed by an official or public

servant or some other person entrusted with public business in the

exercise of his duties or services, such a misdemeanour shall be

punishable by a term of imprisonment not exceeding six months and, in

other cases, by a fine not exceeding 25,000 Schillings or a term of

imprisonment not exceeding three months.

In the latter case a criminal prosecution shall not be instituted

unless this is requested by the person whose right has been violated."

Under Article 102, paragraph (c), of the Penal Code the felony of abuse

of official powers was committed by:

1. an official who in a dangerous manner divulges an official secret

   entrusted to him;

2. an official who destroys a document entrusted to him in his official

  function;

3. an official who, contrary to his duty, discloses to some other

   person a document entrusted to him in his official function.

It was, according to the Government, the first and the third offence

which must be discussed in the present connection.

Matters entrusted to an official in his official function were all

matters of which he was informed only because of his official position,

i.e. any information he obtained in the performance of his official

duties (Supreme Court Decisions of 3rd January, 1936, SSt XVI/1, and

of 20th April, 1956, SSt XXVII/20; cf. Rittler, Lehrbuch des

österreichischen Strafrechts, 1962, Volume II, page 407). An official

secret was any fact of which an official only learned in the

performance of his official duties and whose secrecy was necessary in

the interest of an authority or of the parties involved (Article 20 of

the Federal Constitutional Act; Article 23 of the Civil Service

Regulations of 25th January, 1914, RGBl. No. 15; Article 58 of the

Judiciary Act, BGBl. No. 305/1961; Article 5 of the Contract Officers

Act, BGBl. No. 86/1948). An official secret was not necessarily a State

secret. It might just as well relate to private affairs. Facts which

had been discussed in public proceedings lost their secret character

(Rittler, Volume II, page 408). "In a dangerous manner" as used in this

passage of the Act meant that an official secret had been disclosed in

circumstances in which a damage or loss might be caused to somebody

(Supreme Court Decisions of 3rd January, 1936, SSt XVI/1, of 12th

December, 1952, SSt XXIII/101 and of 20th April, 1956, XXVII/20). The

intention to violate the State's right to secrecy did not suffice to

make the betrayal of a secret a punishable act; rather, the intent of

the offender must also have been influenced by the possibility of

causing some other loss or damage in addition (Supreme Court Decision

of 6th March, 1950, Evidenzblatt No. 285/1950). The intention to

violate the right to privacy of correspondence was not sufficient in

this context; rather, the intent must have been to cause some concrete

damage or loss, though this need not be of a material nature.

Divulging an official secret meant disclosing it (Supreme Court

Decision of 3rd January, 1936, SSt XVI/1). A document was any statement

which was embodied in a readable form, provided that it constituted

evidence (Rittler, Volume II, page 438 et seq.). The protection of

Article 102, paragraph (c), of the Penal Code was extended to public

and private documents. It could be assumed that the application dated

11th October, 1965, and the reply of the Secretary to the Commission

dated 18th October, 1965, were documents within the meaning of this

legal provision. A document was entrusted to an official if he received

it through official channels (Supreme Court Decision of 28th October,

1948, Evidenzblatt No. 232/1949). "Disclose" meant any act by which a

third party was given access to the document, regardless whether that

party only inspected it or was allowed to copy it or make use of it in

some other manner (Supreme Court Decision of 16th May, 1898, KH 2212).

According to Article 1 of the Act for the Protection of the Secrecy of

Letters and Documents, one of the cases in which an infraction of this

Act was committed was, in the Government's opinion, the case of an

official who wilfully violated the privacy of sealed letters (or

papers) by unlawfully opening or suppressing them. The applicability

of this penal provision depended on the condition that the unlawful

opening or suppression was not subject to a severer provision of

general criminal law (Supreme Court Decision of 29th January, 1934, SSt

XIV/7; Rittler, Volume II, page 89 et seq. and page 409). The criminal

offence defined in Article 1 of the Act for the Protection of the

Secrecy of Letters and Documents was perpetrated by the mere opening

of the sealed letter (or paper), i.e. by tearing or cutting it open or

by using chemical methods, etc., or by its suppression. It was not

required that a third party by acquainting himself with the contents

of the letter (or paper) trespassed on the privacy existing between the

writer of the letter (or paper) and the addressee (Supreme Court

Decision of 24th October, 1949, Evidenzblatt No. 107/1950; Rittler,

loc. cit.). It was only after the sealed letter or paper had unlawfully

been opened that making accessible its contents to a third party became

an offence punishable under Article 1 of the Act.

In summary the Government submitted that Article 102, paragraph (c),

of the Penal Code could be cited if an official given all the other

prerequisites, had betrayed a secret with intent to cause the party

concerned a concrete damage or loss, beyond the State's right to

secrecy and the right to privacy of correspondence.

Article 1 of the Act for the Protection of the Secrecy of Letters and

Documents could be applicable if an official other than a judge (i.e.

a prison officer, or an official in the "Einlaufstelle",

"Vollzugsabteilung" or "Geschäftsstelle" departments of the Vienna

Regional Court) had unlawfully opened the letters concerned at a time

when they were sealed. Since there were no facts which might give rise

to such a suspicion no reference had so far been made to this

provision.

The Applicant pointed out, in particular, that the Public Prosecutor

had the duty to institute criminal proceedings ex officio irrespective

of whether the victim of the offence submitted a complaint to him. In

the present case, the Applicant had complained to the authorities, even

to the Ministry of Justice which was the supervising authority in

respect of the Public Prosecutor, and it would therefore have been the

task of the Public Prosecutor to institute proceedings ex officio, on

the basis of these complaints. Consequently, the Applicant did not

consider that his failure to lodge a criminal charge could be held to

constitute a failure to satisfy the requirements of Article 26 of the

Convention.

II. The question as to whether the Application is manifestly

ill-founded

The Respondent Government informed the Commission that extensive

enquiries had been made by the Austrian authorities but that it had not

been possible to clarify how the newspapers had obtained information

about the correspondence concerned. In any case, there was no reason

to assume that any official had forwarded information to the press.

On the basis of the enquiries made, the Government submitted that on

11th October, 1965, S, a court guard, had taken over from the Applicant

a letter in a closed envelope which was addressed to the Commission.

Mr. S had passed that letter, whose contents were unknown to him, on

to the incoming-mail-bureau of the Regional Court for Criminal Cases

of Vienna, which had submitted it to Dr. F, the competent judge.

The latter had stated that the Application addressed by the prisoner

to the Commission as well as the Commission's reply to the Applicant

had been submitted to him for censoring. He had not informed any third

person, in particular any press reporter, of that letter. However, the

Applicant, in a great number of letters to third persons, had notified

the contents of his petitions to the Commission as well as the contents

of the latter's replies. This had been admitted by the Applicant, who

had been heard on this matter on .. May, 1966; but he had held that

this could not have resulted in the contents of his respective letter

to the Commission having been published in part literally in newspapers

already two days after dispatch of the letter. For, he said, he had

neither literally repeated in his letters to third persons the contents

of his Application nor had he written to any person whom he could

assume to be connected with the press.

The court officers and guards who, within their sphere of duty, had had

to do with the Applicant's correspondence had stated concordantly that

they had not known the contents of these letters and that for this

reason they could not have furnished any information to daily papers.

In an application, dated .. December, 1965, the Applicant had

complained to the Federal Ministry of Justice that his correspondence

with the Commission had been published in daily papers.

Dr. F had pointed out in his observations to that application on ..

December, 1965, that the Applicant himself had declared in the court

room at the end of the final hearing that he intended to lodge an

application with the Commission for being sent to a labour institution

and he had written this in nearly all of his letters.

By its decree of .. January, 1966, the Federal Ministry of Justice had

informed the Applicant that it had not found any reason for issuing an

order in its capacity of supervising authority.

The Commission, on 19th July, 1966, decided to ask the Government for

further information on certain points. First, the Government was asked

to comment on the following passage in the article in the

Arbeiter-Zeitung: "It was asserted at the Regional Court of Vienna that

this letter will be forwarded to the Commission of Human Rights

although it contains defamatory and incorrect statements". Secondly,

the Government was asked to indicate whether the Applicant had himself

had the possibility of communicating with the press during the relevant

time and, in this connection, to submit information from the prison

records as regards any letters sent by him and any visits received by

him in the periods of 11th-14th October and 18th-26th October, 1965.

The Government replied that investigations had shown that the author

of the article in the Arbeiter-Zeitung refused to disclose his source

of information, invoking the journalists' code of ethics. He had

stated, however, that the only purpose of the passage in question had

been to inform the readers that applications of prisoners to the

Commission are passed on in all circumstances, even if they contains

insults and false allegations. This had not been based on any piece of

information which had led to the writing of the article in question but

was a widely known fact.

The Government further stated that Dr. F, when heard again on ..

August, 1966, had referred to his previous statements. He had then

declared that, as far as he remembered, it was not after the sentence

had been read and the Applicant had asked to be given time to consider

an appeal that the Applicant in conversation with a person in the court

room had made a remark concerning an application under the Convention,

but after the end of the trial. At that time the public had been

leaving the court room. The Applicant had been calm and composed at the

end of the trial.

In the present matter, besides the competent judge and the Applicant,

all officials had been closely questioned who were responsible for the

receipt of the letters in question, for their submission to the judge,

and for their dispatch. All of the officials questioned as well as the

competence judge had made convincing statements to the effect that they

had not informed the press of the contents of the two letters.

With reference to the records of the prison department concerned, the

Director of the Prison had reported that the Applicant on 11th October,

1965 had written a letter to the Commission and on 21st October, 1965,

a letter to a certain K. These letters had been dispatched without a

special permit. On 26th October, 1965, the Applicant had asked the

competent judge for special dispatch of a letter, on the ground of

"urgent family affairs".

As regards visitors, the Applicant had seen his defence counsel, Dr.

M, on 11th October, 1965.

The Applicant contested that he had forwarded any information to the

press and submitted that he had not even had the opportunity of doing

so during the relevant periods. He stated that he had not received the

Secretary's letter of 18th October, 1965 until 25th October, 1965 and,

in support of this statement, he produced in evidence the envelope of

that letter which bears the official stamp of the Regional Court dated

25th October, 1965. He also indicated that the article about this

letter appeared in the newspaper Express of 26th - 27th October, 1965.

The Applicant submitted that he had no opportunity of communicating

with the press between the receipt of the letter and the publicity

about it in the press, in particular as, having sent a letter to a

friend on 21st October, he had not been allowed, according to the

prison rules, to send another private letter until 4th November. He

pointed out that on 26th October he had not sent any letter but only

asked for permission to send one.

He maintained that the only possibility was that the newspapers had

been informed by the authorities and he pointed out that the article

in the Arbeiter-Zeitung contained a reference to information given by

the Regional Court. He had not, in connection with the court hearing,

made any declaration regarding his Application to the Commission and

in any event a statement made on 8th October, 1965 could not be the

source of information regarding his letter of 11th October, 1965.

THE LAW

Whereas Article 26 (Art. 26) of the Convention provides that "the

Commission may only deal with the matter after all domestic remedies

have been exhausted, according to the generally recognised rules of

international law";

Whereas the Respondent Government has submitted that, in regard to the

alleged violation of Article 8 (Art. 8) of the Convention, there were

two remedies which the Applicant should have exhausted, namely, an

appeal to the Constitutional Court and a criminal charge

(Strafanzeige);

Whereas, as indicated above, the Commission found it necessary to ask

the Government for further information as to the applicability of these

remedies in the circumstances of the present case;

Whereas, on the basis of the further information provided by the

Government, the Commission is satisfied that, having regard to the

jurisprudence of the Austrian Constitutional Court regarding "factual

official acts" (faktische Amtshandlungen) the Applicant could have

lodged a constitutional appeal in respect of the alleged disclosure by

the authorities of the contents of his correspondence;

Whereas the Applicant has objected that, in a letter which he had

received from the Constitutional Court, it was indicated that Court was

only competent to deal with appeals against formal administrative

decisions; whereas the question therefore arises as to whether the

Applicant was justified, in view of this information received from the

Court itself, in assuming that no appeal was available in his case;

Whereas it appears that the letter concerned was written in reply to

a letter by the Applicant, in which he raised certain complaints;

Whereas the terms of this letter show clearly that these complaints did

not relate to the alleged disclosure of the contents of his

correspondence;

Whereas, indeed, the Applicant expressly stated in his letter to the

Constitutional Court that he did not wish to raise before the Court the

question of the publication of his correspondence;

Whereas, consequently, the reply which was given by the President of

the Constitutional Court did not concern the present complaint and can

in no way be considered to have absolved the Applicant, according to

the generally recognised rules of international law, from submitting

this complaint to the Constitutional Court;

Whereas it follows that, by failing to lodge a constitutional appeal,

the Applicant has not satisfied the condition as to the exhaustion of

domestic remedies laid down in Article 26 (Art. 26) of the Convention;

Whereas, in these circumstances, it is not necessary to examine the

question whether the Applicant should also have exhausted any further

remedy in order to comply with Article 26 (Art. 26) of the Convention;

Whereas similarly the Commission has not found it necessary to examine

whether the Applicant's complaint was inadmissible on any other ground;

Now therefore the Commission,

Having regard to its partial decision of 1st April, 1966, declares the

remainder of the Application inadmissible.