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AS TO THE ADMISSIBILITY OF

Application No. 22048/93

by M.S.

against Austria

The European Commission of Human Rights (First Chamber) sitting

in private on 11 January 1995, the following members being present:

Mr. C.L. ROZAKIS, President

Mrs. J. LIDDY

MM. F. ERMACORA

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

M.P. PELLONPÄÄ

B. MARXER

B. CONFORTI

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

G. RESS

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 31 January 1993

by M.S. against Austria and registered on 1 June 1993 under file

No. 22048/93;

Having regard to:

- the report provided for in Rule 47 of the Rules of Procedure of

the Commission;

- the observations submitted by the respondent Government on

17 June 1994 and the observations in reply submitted by the

applicant on 17 July 1994;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is an Austrian citizen born in 1938. He is

detained at Garsten prison, where he is serving several prison

sentences. He has been represented by Mr. J. Lindlbauer, lawyer, of

Enns, since October 1994. The facts of the case may be summarised as

follows.

The particular circumstances of the case

The applicant wanted to correspond with a former prisoner, a Mr.

Hammerer. He requested permission, pursuant to Section 86 of the

Execution of Sentences Act (Strafvollzuggesetz) for such

correspondence. The prison Governor refused to give permission on

12 March 1992. The applicant's complaint to the Minister of Justice

was refused on 14 September 1992. The applicant made a constitutional

complaint to the Constitutional Court (Verfassungsgerichtshof) and an

administrative complaint to the Administrative Court

(Verwaltungsgerichtshof).

The Constitutional Court refused legal aid and declined to deal

with the applicant's constitutional complaint on 30 November 1992. It

held that, to the extent that questions of constitutional law were

involved, the complaint had no sufficient prospect of success. As the

issue was not one which was excluded from the jurisdiction of the

Administrative Court, the Court was able to decline to deal with the

case pursuant to Article 144 para. 2 of the Federal Constitutional Law

(Bundes-Verfassungsgesetz). The Court expressly stated that, as it had

declined to deal with the matter, it was not required to consider a

complaint the applicant had made concerning the requirement that a

lawyer must sign constitutional complaints.

On 9 September 1993 the Administrative Court, which had granted

legal aid on 29 September 1992, dismissed the applicant's

administrative complaint. It recalled the wording of Section 86 (3)

of the Execution of Sentences Act, and noted that the administrative

authorities had not assumed any danger to the security or order of the

institution. If the administrative authorities were therefore right

to see no expectation of a positive influence on the applicant from the

correspondence with Mr. Hammerer, the fact that security and order were

not at risk was irrelevant.

The Administrative Court rejected the applicant's argument that

he should be allowed to correspond unless there were reasons to the

contrary, as not complying with the wording of Section 86 (3). The

Administrative Court found that the administrative authorities had been

right not to permit the correspondence with Mr. Hammerer. The

Administrative Court also refused the applicant's request for a

hearing.

Relevant domestic law

Section 86 (3) of the Execution of Sentences Act provided at the

relevant time:

"Notwithstanding the provisions of Sections 88 and 96, written

correspondence with persons other than those set out in sub-

section 2 [which relates to correspondence with relatives and

guardians] shall only be permitted on the request of the prisoner

and only to the extent that it can be expected that the

correspondence will have a positive influence on the prisoner,

will further his subsequent development or otherwise be of

use for him, and that there is no fear that the security

and order of the institution will be endangered by the

correspondence".

An amendment to Section 86 came into force on 1 January 1994.

The section now provides:

"(1) Subject to the provisions of this Act, prisoners are

allowed to be visited by and have written correspondence with and

telephone calls from other persons and agencies ...

(2) However, written correspondence, telephone calls and visits

shall be denied if there is reason to fear that the security and

order of the institution will be endangered or that they will

have a negative influence on the prisoner ..."

COMPLAINTS

The applicant alleges a violation of Articles 6, 8 and 10 of the

Convention.

In connection with Article 6, the applicant alleges that the

requirement the a lawyer sign constitutional complaints, or in the

alternative the refusal of legal aid for his constitutional complaint,

violates the provision, in particular as he is, himself, a former

lawyer and the complaint he submitted complied with all the

requirements for a valid complaint save that it did not bear the

signature of an enrolled lawyer. He also refers to Articles 13 and 14

in this respect.

In connection with Articles 8 and 10 of the Convention, the

applicant considers that the interference with his correspondence was

not justified.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 31 January 1993 and registered

on 1 June 1993.

On 3 March 1994 the Commission decided to bring the application

to the notice of the respondent Government and to request observations

on the admissibility and merits of the complaint made under Article 8

of the Convention.

The Government submitted their observations on 17 June 1994 and

the applicant submitted his observations in reply on 17 July 1994.

On 6 September 1994 the Commission decided to grant legal aid to

the applicant.

THE LAW

1. The applicant alleges a violation of Article 6 (Art. 6) of the

Convention in connection with the rule of Austrian law that

constitutional and administrative complaints must be signed by a

lawyer. He also alleges violation of Articles 13 and 14

(Art. 13, 14) in this respect.

Article 6 (Art. 6) of the Convention provides, so far as

relevant, as follows:

"1. In the determination of his civil rights and obligations

..., everyone is entitled to a fair and public hearing ... by an

independent and impartial tribunal established by law."

Even assuming that Article 6 (Art. 6) applies to the proceedings

brought by the applicant, the Commission notes that the Constitutional

Court declined to deal with the case and expressly stated that it was

not required to consider the question of who was allowed to sign such

complaints. The Administrative Court in turn dealt with the substance

of his complaint, even though it is not clear whether it had been

signed by a lawyer entitled to practice.

It follows that the applicant has not been affected by the rule

he complains of, such that this part of the application is manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

2. The applicant also alleges violation of Articles 8 and 10

(Art. 8, 10) of the Convention in connection with the interference with

his correspondence.

Article 8 (Art. 8) of the Convention provides, so far as

relevant, as follows:

"1. Everyone has the right to respect for...his correspondence.

2. There shall be no interference by a public authority with

the exercise of this right except such as is in accordance with

the law and is necessary in a democratic society in the interests

of national security, public safety or the economic well-being

of the country, for the prevention of disorder or crime, for the

protection of health or morals, or for the protection of the

rights and freedoms of others."

Article 10 (Art. 10) of the Convention provides, so far as

relevant, as follows:

"1. Everyone has the right to freedom of expression. This

right shall include freedom to hold opinions and to receive and

impart information and ideas without interference by public

authority and regardless of frontiers ...

2. The exercise of these freedoms, since it carries with it

duties and responsibilities, may be subject to such formalities,

conditions, restrictions or penalties as are prescribed by law

and are necessary in a democratic society, in the interests of

national security, territorial integrity or public safety, for

the prevention of disorder or crime, for the protection of health

or morals, for the protection of the reputation or rights of

others, for preventing the disclosure of information received in

confidence, or for maintaining the authority and impartiality of

the judiciary."

The Government submit that the interference with the applicant's

correspondence was in accordance with the law in that it was prescribed

by Section 86 (3) of the Execution of Sentences Act, and that it served

the purpose of preventing disorder or crime. They further submit that

restrictions on prisoners' correspondence are necessary in the interest

of the protection of society and the prevention of crime. They point

out that the applicant had been convicted twice of inciting a person

to give false evidence, and that other proceedings were pending in

connection with incitement to give false evidence. They see a risk

that the applicant would induce Mr. Hammerer to give such evidence.

They consider that further contact with Mr. Hammerer would not

necessarily further the applicant's rehabilitation, and conclude that

the interference was necessary for the protection of society at large

as well as proportionate to the aim pursued.

The applicant considers that there was no reason to restrict his

correspondence with Mr. Hammerer.

The Commission finds that this part of the application raises

serious issues of fact and law which can only be resolved by an

examination of the merits. It cannot therefore be declared manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention. No other grounds for inadmissibility have been

established.

For these reasons, the Commission by a majority

DECLARES INADMISSIBLE the complaint relating to the proceedings

in the case;

DECLARES ADMISSIBLE the remainder of the application, without

prejudging the merits of the case.

Secretary to the First Chamber President of the First Chamber

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

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