THE FACTS

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(1) A partial decision given by the Commission on 14th February 1966

has not been published.

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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 a German citizen, born in 1929 and at present living

at Lübeck.

He states that on .. November 1964, it came to his knowledge that two

South Tyrolese were planning to place a suitcase containing a bomb in

an express train (Brenner Express) bound for Italy, where the bomb was

to explode during the night between .. and .. November. The two men

were acting from political motives, and the direct reason was that

certain elections were to take place on .. November 1964 in the

province of Bolzano.

He further states that he tried to persuade the two men to refrain from

their action, and when this attempt failed, he was anxious to prevent

in some other way the very serious consequences which would be the

result of the explosion. He decided, however, not to inform the

Austrian authorities, since he considered that certain Austrian

officials might not be willing, for political reasons, to prevent the

explosion; he chose to go to Italy in the same train as the bomb and

to inform the Italian authorities as soon as he had crossed the

frontier. He managed to inform the Italian authorities one hour before

the explosion was to take place and serious damage was thereby avoided;

nevertheless, the authorities did not manage to prevent damage to a

railway carriage, although, in the Applicant's opinion, this could also

have been avoided.

The Applicant submits that, on .. December 1964, he was arrested in

Italy by the Austrian police and that the Italian authorities were

unaware of his arrest. This action taken by the Austrian authorities

outside Austrian territory amounts, in his opinion, to kidnapping. He

states about this incident that he travelled in a train to the Brenner

railway station in Italy, that he was there taken out of the train and

kept about twenty minutes in the office of the Austrian passport

authorities; that, shortly before the train left, he was obliged to

return to the train with an Austrian police officer and to go into a

service compartment of the police; that the Austrian officials drew the

curtains of the compartment in order to search the Applicant; that no

Italian official was aware of these events, although they all took

place on Italian territory; and that he was taken in the train to

Austria.

In Austria, he was kept in detention on remand (Untersuchungshaft)

under suspicion of having violated the Austrian Explosives Act

(Sprengstoffgesetz). Although he declared that he had not been involved

in the plans to blow up the train, he was not released and he states

that he was told that nothing would have happened to him if he had

informed the Austrian, and not the Italian, authorities of the plans

of the two South Tyrolese.

His appeal regarding his detention was rejected on .. December 1964,

by the Judges' Chamber of the Regional Court (Ratskammer des

Landesgerichts) of Innsbruck and, on appeal, on .. January 1965, by the

Court of Appeal (Oberlandesgericht) of Innsbruck. Subsequent requests

for release were rejected by the Regional Court of Innsbruck on ..

April and .. July 1965. He also asked the Supreme Court (Oberster

Gerichtshof) that his case should be dealt with in another

"Bundesland", where the authorities would be more impartial in regard

to the political issue which formed the background of his case. This

petition as well as another petition to the Minister of Justice was,

however, unsuccessful.

The Applicant states that subsequently he was charged with an offence

against the Explosives Act and that the trial against him took place

at Graz on .. November 1965. On the same day, he was sentenced to 18

months severe imprisonment, although the jury was not unanimous. He

further states that as he had not sufficient money to oppose the

political interests which were involved in the case and also in view

of the fact that he had already spent 12 months in detention on remand,

he declared himself ready to accept the judgment without, however,

admitting his guilt.

He adds that during the trial, a certain Polizei-Oberrat Dr. A admitted

that X. had been arrested on Italian territory and that the arrest had

taken place on Dr. A's initiative.

The Applicant served his sentence in a prison at Graz and was released

in June 1966.

The Applicant alleges

- that he was unlawfully arrested by Austrian police on Italian

territory,

- that, as a result of the circumstances of his arrest, his subsequent

detention in Austria was also unlawful.

He invokes Article 5, paragraphs (1) (c), (4) and (5), of the

Convention and emphasises that, according to Article 5, paragraph (1)

(c), arrest and detention must be lawful.

Proceedings before the Commission

Whereas, on 14th February 1966, the Commission, while declaring certain

other complaints inadmissible, decided in accordance with Rule 45,

paragraph (3) (b), of its Rules of Procedure, to give notice of the

allegations set out above to the Austrian Government and to invite it

to submit its observations on admissibility;

Whereas the Government submitted its observations on 14th April 1966;

Whereas the Applicant's observations in reply which are dated 22nd

April 1966, were received on 5th May 1966.

Submissions of the Parties

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

The Government submitted that, on the morning of .. November 1964, an

explosion, which caused considerable damage to property, occurred in

the railway station area at Brixen, South Tyrol, in the luggage van of

the Brenner Express train which had come in from Austria. It appeared

that explosives had been contained in a suitcase which an unknown man

had registered at Innsbruck for delivery in Italy. It was also found

out that four people, among them the Applicant, had been involved in

the making of the explosive. At that time, the Applicant's whereabouts

were not known, but on .. December 1964, the Austrian border police

officer on duty at Brenner station, in the course of his routine check

of the Alpen Express, noticed the Applicant whom he knew to be wanted

by the authorities and who intended to go to Innsbruck in the same

train. He asked the Applicant to accompany him to the office of the

Austrian border police for an examination of his passport. Shortly

before the train was due to leave, the Applicant was given permission

to travel on to Austria. In the train, between Brennersee and Gries,

i.e. on Austrian territory, the Applicant was told that he was under

arrest. Consequently, his arrest took place in Austria, and not in

Italy. As regards the exercise by Austrian border police and customs

authorities of official functions at the Austro-Italian border in the

Brenner area, the Government referred to the agreement signed by

Austria and Italy on 22nd October 1947. This agreement, described as

a "modus vivendi", authorises Austria to provide border control

services at Brenner station. For that purpose, premises are at the

disposal of the Austrian authorities, including the police, and,

according to the agreement, Austria is expressly authorised to maintain

police services at the station.

The Government further submitted that the Applicant had not exhausted

the domestic remedies within the meaning of Article 26 of the

Convention. It is true that in December 1964 and January 1965, he

appealed against his detention, but in these proceedings he did not

argue that he had been arrested unlawfully in Italy. Even if he had

asserted the illegality of his arrest at a later date, namely, in his

applications which were rejected by the Regional Court in April and

July 1965, the requirements of Article 26 would not be satisfied, since

an appeal from the decisions of the Regional Court could have been

lodged with the Court of Appeal. Moreover, the decision of .. July

1965, is irrelevant to the question whether or not Article 26 has been

satisfied, since that decision was given after the Applicant had lodged

his Application with the Commission.

By way of conclusion, the Government requested that the Application

should be declared inadmissible for non-exhaustion of domestic remedies

or, alternatively, as being manifestly ill-founded. The Applicant

maintained, in his reply, that he had been arrested at Brenner station,

and not in the train between Brennersee and Gries.

In support of his statement in this regard, he stated that he was

compelled by Austrian police officers to continue in the train to

Austria and he also referred to the reply given at the trial by the

witness Polizei-Oberrat Dr. A to a question put to him by the

Applicant's lawyer. The lawyer asked the following question: "Supposing

that the accused X was an Italian agent as you believed or still

believe, Dr. A, how can you explain that he let your people arrest him

at Brenner station, that is on Italian territory?" Dr. A replied: "The

accused had no possibility of escaping at the station, as we had taken

appropriate measures and watched him carefully".

As regards exhaustion of domestic remedies, the Applicant stated that

he had not studied Austrian law and had no one to inform or advise him.

He tried, however, to appeal to the Investigating Judge and

subsequently to the Regional Court and the Court of Appeal. He also

approached the Supreme Court in Vienna but received the reply that only

the Courts of Innsbruck were competent. Finally, he wrote to the

Commission, hoping to find justice before an international court where

there is no prejudice based on national or provincial feelings.

THE LAW

Whereas the Applicant alleges that his arrest was unlawful as it took

place on Italian territory, and that, as a result, his subsequent

detention on remand was also unlawful;

Whereas Article 26 (Art. 26) of the Convention provides that 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, in so far as the Applicant alleges that his arrest was

unlawful, the Commission has taken into consideration, although it was

not submitted by the Respondent Government, the fact that, according

to Article 144 of the Austrian Federal Constitutional Act

(Bundes-Verfassungsgesetz), the Constitutional Court

(Verfassungsgerichtshof) is competent to decide on appeals from

decisions (Bescheide) by the administrative authorities in regard to

alleged violations of constitutional rights;

Whereas, according to a constant jurisprudence in Austria, the

Constitutional Court is also competent to decide on appeals regarding

'factual' official acts (faktische Amtshandlungen) by the authorities,

in so far as these acts have allegedly violated constitutional rights;

Whereas the Austrian Act on the Protection of Personal Freedom (Gesetz

zum Schutze der persÖnlichen Freiheit) which has the status of a

constitutional Act contains provisions regarding the conditions on

which a person may be arrested; add whereas the physical arrest of a

person is, according to Austrian jurisprudence, apparently to be

considered as a 'factual' official act;

Whereas it follows that the Constitutional Court would have been

competent to examine whether or not the Applicant had been lawfully

arrested by the Austrian authorities;

Whereas, by failing to appeal to the Constitutional Court, the

Applicant has not, in regard to his arrest, exhausted the domestic

remedies within the meaning of Article 26 (Art. 26);

Whereas, in so far as the Applicant alleges that his subsequent

detention on remand was unlawful as a result of his unlawful arrest,

it appears that the Applicant lodged an appeal (Haftbeschwerde)

regarding his detention which, on .. December 1964, was rejected by the

Judges' Chamber of the Regional Court and that his appeal from that

decision was rejected on .. January 1965, by the Court of Appeal at

Innsbruck;

Whereas the Government has stated that in these proceedings the

Applicant did not argue that he had been unlawfully arrested in Italy;

whereas the Applicant has not contested this statement by the

Government;

Whereas the Applicant subsequently submitted two requests for his

release from detention which were rejected on .. April and .. July

1965, by the Regional Court of Innsbruck; whereas it appears from these

decisions that, according to Article 194, paragraph 2, of the Code of

Criminal Procedure, no appeal to the Court of Appeal was available;

Whereas, however, it remains to be examined whether in these two

requests for release the Applicant invoked the alleged fact that he had

been arrested on Italian territory; whereas neither the Government nor

the Applicant himself has made any clear statement in this regard;

whereas the decisions of .. April and .. July 1965, contain no

indication that this point had been raised by the Applicant in the

proceedings concerned;

Whereas, consequently, the Applicant has not shown that, in his appeals

or applications relating to his detention, he made the particular

allegation which he subsequently raised before the Commission; whereas

the Commission concludes that the Applicant has not, in regard to his

detention, exhausted the domestic remedies within the meaning of

Article 26 (Art. 26).

Now therefore the Commission declares this Application INADMISSIBLE.