THE FACTS

Whereas the facts presented by the Applicant - excluding those which

relate to the complaints already rejected by the Commission (1) - may

be summarised as follows:

The Applicant is a Hungarian citizen, born in 1941. His present

whereabouts are unknown; a letter sent to him under his previous

address in Vienna was returned to the Commission's Secretariat with the

note "addressee has removed abroad to Canada, therefore return"

(Empfänger ins Ausland nach Canada verzogen, daher zurück).

On ... 1962, he was convicted of certain offenses and sentenced by the

Regional Court (Landesgericht) of Vienna to two years' imprisonment.

While serving his sentence, he went on hunger strike on ... 1963. He

states that on the following day he was placed in a dark isolated cell

and for four days refused any liquid. After abandoning his strike on

... 1963, he was served 1/2 litre of strongly salted milk.

He states that again, from ... until ... 1963 he refused to eat and

that similar measures were again applied.

He alleges violations of Article 3 of the Convention.

Whereas, by its partial decision of 24th April 1965, the Commission

decided to invite the respondent Government, in accordance with Rule

45, paragraph 3 (b), of the Rules of Procedure, to submit its

observations on the admissibility of the complaints regarding such

alleged violations of Article 3 of the Convention.

Whereas the Government has stated that the Applicant went on hunger

strike in Stein prison on ... and ... 1963, and subsequently, on ...

1963.As to the treatment of prisoners on hunger strike and particularly, of

the Applicant, the Government stated:

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(1) Certain complaints were declared inadmissible on 24th April, 1965.

This partial decision of the Commission has not been published.

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"Whenever a prisoner declares that he intends to go on hunger-strike,

he is separated from the other prisoners and transferred into a

corrective cell. At the same time, the potable water supply and the

flushing of the water closet are turned off. To permit the prisoner to

relieve nature, the flushing is turned on for a short time on his

demand. By denying drinking water to the prisoner, he shall be induced

to end his hunger-strike, the more so since every hunger-strike causes

disturbances in the operation of a penitentiary. Only in a corrective

cell is it possible to turn off the flushing of the WC.

During the hunger-strike, the prisoner is supplied with one litre of

whole milk per day; it is left to his discretion to drink that milk or

refuse it. At that time, a small amount of salt - namely 0.5 grammes

per litre whole milk - was added to the milk in order to render the

milk sugar ineffective; this method had meanwhile been abandoned, and

milk is now supplied without any addition of salt. Such salt addition

was to make milk less tasty and increase the prisoner's thirst. This

measure, too, served the only purpose to cause the prisoner to end his

hunger-strike.

Whenever a hunger-strike endangers the prisoner's life, he is forcibly

nourished, i.e. under the control by a physician, he is given one litre

of whole milk containing sugar and one egg.

To permit a prisoner on hunger-strike to clean his body, he gets every

day a hand-basin of water with an addition of 20 grammes of washing

soda and is expressly told about the soda addition. Such soda addition,

which is exactly dosed by a physician, shall prevent the prisoner from

drinking the water. As stated clearly by the physician employed at the

penitentiary, any burns are impossible with such a small addition of

washing soda. Soda solutions of this kind are even used for rinsing

eyes in the case of certain burns. Such soda solutions, therefore,

cannot cause any damage to eyes.

The Applicant's allegation that severe damage was caused to his health

by the treatment given to him during his hunger-strikes, is entirely

unjustified. According to the report of the penitentiary's physician,

the prisoner, who is 178 centimetres tall, weighed 73.50 kilograms when

handed in to the Stein penitentiary and his weight was 72.00 kilograms

at the date of his release. The prisoner was in good state of health

when he was released from prison.

The truth is that the corrective cells are equipped with special safety

devices. They contain, as a rule, a second grid designed to protect the

guards entering the cell against vicious or obstinate prisoners. In

contrast to ordinary cells, they do not contain a sitting WC but a

so-called 'French standing WC' sunk into the floor and consisting of

a solid and flat basin with treads and a hole between."

The Government concluded that in the present case there was no question

of a violation of the Convention and added that the criminal

proceedings which the Applicant had wished to institute against the

prison governor and another prison officer had in fact been

discontinued, as the Applicant's allegations had been found to be

entirely unfounded.

Moreover, the Applicant had not, in the Government's submission,

exhausted the domestic remedies available to him. In fact, two lines

of action were open to him under Austrian law:

(1) Under the Prison Rules, he could have lodged a complaint regarding

his treatment in prison. Such a complaint may finally be decided upon

by the Federal Ministry of Justice. Against the Ministry's decision,

proceedings may be instituted before the Administrative Court

(Verwaltungsgerichtshof);

(2) According to Article 48 of the Code of Criminal Procedure, the

Applicant could have instituted proceedings by way of a

"Subsidiaranklage" against the officials concerned, even if the public

prosecutor had himself refused to take any action.

Whereas the Government's observations have not been communicated to the

Applicant as his present address is unknown to the Commission.

THE LAW

Whereas 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; and whereas the Applicant failed

to exhaust the remedies referred to by the Austrian Government;

whereas, therefore, he has not exhausted the remedies available to him

under Austrian law; whereas, moreover, 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 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, 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.

Whereas, as regards the methods which were previously used during

prisoners' hunger strikes and to which the Applicant was subjected, the

Commission has had regard to the facts that the present Applicant did

not exhaust the remedies at his disposal, and that it appears from the

Government's observations that the practice of adding salt to milk

before consumption has now been abandoned.

Now therefore the Commission declares this Application INADMISSIBLE.