Search
document

Document text Analytics

OVIAWE v. AUSTRIA

Doc ref: 23829/94 • ECHR ID: 001-2180

Document date: May 17, 1995

Inbound citations: 1
•
Cited paragraphs: 0
•
Outbound citations: 3

OVIAWE v. AUSTRIA

Doc ref: 23829/94 • ECHR ID: 001-2180

Document date: May 17, 1995

Cited paragraphs only

AS TO THE ADMISSIBILITY OF

Application No. 23829/94

by Nosa Dickson OVIAWE

against Austria

The European Commission of Human Rights (First Chamber) sitting

in private on 17 May 1995, the following members being present:

Mr. C.L. ROZAKIS, President

Mrs. J. LIDDY

MM. E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

M.P. PELLONPÄÄ

B. MARXER

G.B. REFFI

B. CONFORTI

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

G. RESS

A. PERENIC

C. BÎRSAN

Mrs. M.F. BUQUICCHIO, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 24 March 1994 by

Nosa Dickson OVIAWE against Austria and registered on 11 April 1994

under file No. 23829/94;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The facts of the case, as submitted by the applicant may be

summarised as follows.

The applicant, a Nigerian national born in 1962, was, at the

relevant time, remanded in detention with a view to his expulsion by

the Vienna Federal Police Department. Before the Commission he is

represented by Mr. W. Rainer, a lawyer practising in Vienna.

On 28 April 1993 at 9.00 hours Mr. Lengauer, a member of Amnesty

International who assisted the applicant in his asylum case, visited

the applicant at the Police Prison.

According to the applicant a prison warden woke him while he was

still sleeping in his cell. He was naked. The prison warden did not

leave him enough time to get properly dressed but rushed the applicant

to accompany him to the visitor's room. The applicant could only put

on his shirt and his shoes but neither underwear nor trousers. The

prison warden pushed the applicant and shouted "gemma gemma, Neger"

("move on move on, negro"). The applicant appeared in the visitors

room half naked and had to meet his representative in this state.

On 18 July 1993 the applicant through his representative filed

a disciplinary complaint (Dienstaufsichtsbeschwerde) in which he

complained about the events of 28 April 1993. He requested that

disciplinary measures be taken against the responsible prison warden

and that he be granted compensation of 5,000 AS.

On 22 September 1993 the Federal Ministry for Internal Affairs

(Bundesministerium für Inneres) replied to the disciplinary complaint.

It expressed regret for the incident occurred and for the fact that the

responsible prison warden could not be traced. It stated further that

prison wardens had no competence to check whether in-mates were

properly dressed. The requested compensation could not be granted

because compensation for non-pecuniary damage was not provided for in

the relevant law. As regards the alleged use of the expression

"negro", this expression as such was not objectionable since it was a

word to be found in common dictionaries.

COMPLAINTS

The applicant complains that the events on the morning of

28 ,April 1993 constituted inhuman and degrading treatment contrary to

Article 3 of the Convention. The applicant submits that he did not

file a compensation claim in official liability proceedings regarding

the events on 28 April 1993 as such proceedings had no prospect of

success given that his detention had been lawful and no compensation

could be awarded for non-pecuniary damage resulting from the treatment

he had suffered.

THE LAW

The applicant complains that the events on the morning of

28 April 1993 constituted inhuman and degrading treatment contrary to

Article 3 (Art. 3) of the Convention.

Article 3 (Art. 3) of the Convention reads as follows:

"No one shall be subject to torture or inhuman or degrading

treatment or punishment."

However, the Commission is not required to decide whether or not

the facts alleged by the applicant disclose any appearance of a

violation of Article 3 (Art. 3) of the Convention as, under Article 26

(Art. 26) of the Convention, it may only deal with a matter after all

domestic remedies have been exhausted according to the generally

recognized rules of international law, and within a period of six

months from the date on which the final decision was taken.

The Commission recalls that Article 26 (Art. 26) of the

Convention requires the exhaustion of remedies which relate to the

breaches of the Convention alleged and at the same time can provide

effective and sufficient redress (No. 11660/85, Dec. 19.1.89, D.R. 59

p. 85).

The Commission recalls further that in a previous case it has

found that with regard to the allegation of treatment contrary to

Article 3 (Art. 3) of the Convention, a complaint to the Independent

Administrative Senate (Unabhängiger Verwaltungssenat) concerning the

exercise of direct administrative authority and coercion constituted

a sufficient and effective remedy within the meaning of Article 26

(Art. 26) of the Convention, while compliance with Article 26 (Art. 26)

did not require the filing of an official liability action (see No.

18896/91, Dec. 20.10.93).

The Commission notes that the applicant did not lodge a complaint

with the Independent Administrative Senate but, on 18 July 1993, merely

filed a disciplinary complaint. However, a disciplinary complaint does

not constitute an effective remedy within the meaning of Article 26

(Art. 26) of the Convention (see No. 6701/74, Dec. 8.3.76, D.R. 5 p.

69; No. 7987/77, Dec. 13.12.79, D.R. 18 p. 31).

It follows that the applicant did not comply with the requirement

of exhaustion of domestic remedies stipulated by Article 26 (Art. 26)

of the Convention. The application must, therefore, be rejected under

Article 27 para. 3 (Art. 27-3) of the Convention.

For these reasons, the Commission, unanimously

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the First Chamber President of the First Chamber

(M.F. BUQUICCHIO) (C.L. ROZAKIS)

LEXI

Lexploria AI Legal Assistant