Lexploria

THE FACTS

Whereas the facts presented by the Applicant may be summarised as

follows:

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

in prison at A.

From his lengthy statements and from the documents submitted by him,

it appears that, in 1959, he was convicted by the Regional Court

(Kreisgericht)at B on charges of theft and homosexual offences and

sentenced to six years' severe imprisonment (schwerer Kerker), with the

additional penalty of "sleeping hard" (hartes Lager) and a fasting day

once every three months. He lodged a joint appeal (Berufung) and plea

of nullity (Nichtigkeitsbeschwerde) and the Office of the Public

Prosecutor lodged an appeal from this judgment.

The Supreme Court (Oberster Gerichtshof) examined the Applicant's plea

of nullity in a public session in 1960 in the presence both of counsel

for the defence and of a representative of the Office of the

Attorney-General (Generalprokurator). The Court dismissed the plea of

nullity.

The Supreme Court then examined the appeals in camera and, after

hearing the representative of the Attorney-General, it dismissed the

Applicant's appeal but allowed the appeal lodged by the Public

Prosecutor and ordered that the Applicant should be committed to a

labour institution (Arbeitshaus) after the expiration of his term of

imprisonment.

In 1962, the Applicant addressed himself to the Constitutional Court

(Verfassungsgerichtshof) but, by letter of 1962 from the Constitutional

Court, he was informed that this Court was not competent to deal with

his case.

The Applicant now complains that he was wrongly convicted in 1959/1960.

He states in particular:

1. that certain witnesses were influenced by the police authorities to

give evidence against him;

2. that he was not properly confronted with those witnesses at the

trial.

3. that, in the record of the trial, his own statements were reproduced

incorrectly;

4. that, at the trial, he was slandered by the presiding judge;

5. that the Supreme Court did not hear him in person;

6. that, between January and February and in August 1962, he was

subjected to disciplinary measures in connection with his present

Application to the Commission;

7. that, between March 1959 and March 1960, his letters to his wife,

parents and relatives were seized;

8. that living conditions in the prison are inadequate;

9. that he became ill when he was put into solitary confinement in a

basement cell for having violated prison rules.

The Applicant alleges violations of Articles 1 and 2, paragraph (1),

Articles 3 and 5, paragraph (1), sub-paragraphs (a) to (c), Article 6,

paragraph (3), sub-paragraphs (c) and (d), Article 7, paragraph (1),

and Articles 8 and 14 of the Convention. He claims compensation for the

damage suffered by him.

Proceedings before the Commission

On 23rd July 1963 the Commission decided:

1. to declare inadmissible parts of the Application which related to

the Applicant's conviction and sentence, to the alleged seizure of

letters from him to his family, to the living conditions in the prison

and to his detention in solitary confinement;

2. to invite the Respondent Government to submit its observations on

the Applicant's remaining allegation that the authorities interfered

with the submission of his complaint to the Commission to the extent

that he was subjected to disciplinary measures in connection with his

present Application.

Under cover of a letter dated 26th August 1963, the Respondent

Government submitted the following observations:

"It is untrue that the prisoner X was subjected to disciplinary

measures in 1962 for lodging an application with the European

Commission of Human Rights. Disciplinary action was taken against him

because, over a period of time and in addition to the stationery issued

to him, he unlawfully appropriated (stole) and hoarded specific types

of stationery for other purposes. In the interests of the maintenance

of prison order and discipline, such behaviour could clearly not be

tolerated, the more so since prisoners who wish to lodge an application

with the European Commission of Human Rights are immediately given

the necessary stationery.

It is true that, in January 1962, the prisoner was deprived of

privileges for a month as a disciplinary measure for the insults

levelled at Austrian justice in general and prison administrations in

particular, in an application addressed to the Commission in which he

used such expressions as: murderers of justice, murderers of the

people, court terror, robbers of freedom, double-dealing, Nazi

hierarchy, etc.

It is obvious that such slander cannot be tolerated by the judicial

authorities and calls for disciplinary measures.

The Federal Ministry of Justice consequently considers that the

Commission should declare this part of the Application inadmissible

also."

THE LAW

Whereas the Commission considers that, by its partial decision of 23rd

July 1963, the Application was declared inadmissible;

Whereas the Commission has now examined the Applicant's further

complaint under Article 25 (Art. 25) of the Convention that the

authorities interfered with the submission of his complaints to the

Commission to the extent that he was subjected to disciplinary measures

in connection with his present Application;

Whereas the Commission has carefully considered, in the light of the

last sentence of Article 25, paragraph (1) (Art. 25-1) of the

Convention, the punishment by prison or judicial authorities of an

Applicant to the Commission, on account of particular statements, made

by him in his Application, or of the terms in which they were

expressed;

Whereas the Commission considers that it would be more in accord with

the spirit of the Convention that letters addressed to the Secretary

should not first be submitted unsealed to the prison authorities;

Whereas, nevertheless, it recognises that Governments may have

reasonable grounds for making this requirement; whereas the Commission

believes, however, that the right of individual petition could be

seriously impaired if an Applicant were deterred by punishment from

proceeding further with his Application, or if others were deterred by

the threat of punishment from making statements in their Application

which they believed to be justified;

Whereas, nevertheless, the Commission also recognises that it is no

part of the effective exercise of the right of petition to make

unnecessary or irrelevant offensive statements in an Application;

Whereas the Commission believes that in the case of X the punishment

imposed might be considered as a violation of Article 25, paragraph (1)

(Art. 25-1), because of its general deterrent effects as indicated

above;

Whereas, however, it does not consider that X's Application was in fact

frustrated and therefore decides in this case to take no further steps.

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X. v. AUSTRIA

X. v. AUSTRIA

LEXI