F I N A L

                      AS TO THE ADMISSIBILITY OF

                      Application No. 10802/84

                      by P. and P.

                      against Austria

        The European Commission of Human Rights sitting in private

on 8 May 1989, the following members being present:

              MM. S. TRECHSEL, Acting President

                  F. ERMACORA

                  E. BUSUTTIL

                  G. JÖRUNDSSON

                  J.-C. SOYER

                  H.G. SCHERMERS

                  H. DANELIUS

                  G. BATLINER

                  H. VANDENBERGHE

             Mrs.  G.H. THUNE

             Sir  Basil HALL

             Mr.  C.L. ROZAKIS

             Mrs.  J. LIDDY

             Mr.  L. LOUCAIDES

             Mr.  H.C. KRÜGER Secretary to the Commission

        Having regard to Article 25 of the Convention for the

Protection of Human Rights and Fundamental Freedoms;

        Having regard to the application introduced on

23 September 1983 by P. and P. against Austria and registered on 31

January 1984 under file No. 10802/84;

__________________________

* Taking into account proposed amendments of Mr.  Trechsel to the text

as distributed during the May session.  These amendments are marked in

the margin.

        Having regard to:

        -  the Commission's partial decisions of 13 May 1987

           and 15 December 1988;

        -  the Government's observations of 27 July 1987 and

           the applicants' observations in reply of 23 September 1987;

        -  the information submitted by the Government on

           16 December 1987 and the applicants' comments thereon

           of 3 February 1988;

        -  the parties' submissions at the hearing on 8 May 1988;

        Having deliberated;

        Decides as follows:

THE FACTS

        The applicants are Austrian citizens born in 1945 and 1952

respectively.  Both are represented by Mr.  Reinhard Peters, a German

citizen residing in Munich, Federal Republic of Germany.

        Certain complaints of the applicants were rejected by the

Commission's partial decisions of 13 May 1987 and 15 December 1988.

As regards the remaining parts of the application, the facts agreed

between the parties may be summarised as follows:

I.      The criminal proceedings against the first applicant

        On the basis of a warrant of arrest issued by the Regional

Court (Landesgericht) of Klagenfurt on 12 November 1982, the first

applicant was arrested in Klagenfurt on 20 November 1982.  The warrant

was based on the suspicion of his having committed various criminal

offences (aggravated fraud, professional burglary, forgery and

suppression of documents, professional receiving of stolen goods, and

illegal possession of firearms) and it referred to a danger of

absconding, of collusion and of repetition under Section 175 para. 1,

sub-paras. 2-4 of the Code of Criminal Procedure (Strafprozessordnung).

        On 21 November 1982 the first applicant was brought before an

investigating judge in accordance with Section 179 para. 1 of the Code

of Criminal Procedure, i.e. the judge on duty (Journalrichter) Dr.  A.

He informed the first applicant of the reasons for the arrest.  The

first applicant denied having committed the above criminal offences,

except the offence of illegal possession of firearms.  The merits of

the case were not discussed.

        Also on 21 November 1982 the investigating judge competent for

the first applicant's case, Dr.  K, ordered the transfer of the first

applicant to the Vienna Regional Court for Criminal Affairs

(Landesgericht für Strafsachen) which had issued a warrant of arrest

against this applicant on 20 November 1982, on the suspicion of his

having participated in an armed robbery in Vienna.   The Klagenfurt

proceedings were joined to those of the Regional Court of Vienna.

However, on 20 January 1983 they were severed again and referred back

to the Regional Court of Klagenfurt.  The first applicant was detained

on remand in the prison of the Vienna Regional Court from 22 November 1982

until 24 February 1983.

        On 25 February 1983, the investigating judge of the Regional

Court of Klagenfurt who was now competent, Dr.  St, ordered the opening

of a judicial investigation (Voruntersuchung) against the first

applicant, and his detention on remand in the prison of this Court.

The warrant of arrest based on Section 180, para. 1 and para. 2

sub-paras. 1 - 3 (danger of absconding, collusion and repetition) was

brought to his knowledge by judge Dr.  St on the same day.

        On 23 May 1983 the first applicant challenged judge Dr.  St

on the ground of bias.  However, on 26 May 1983 the President of

the Regional Court of Klagenfurt rejected this challenge as being

unsubstantiated.

        On 10 June 1983 the investigating judge made a request under

Section 193 para. 2 of the Code of Criminal Procedure for the

prolongation of the first applicant's detention on remand beyond the

statutory time-limit of six months.  On 16 June 1983 the Graz Court of

Appeal (Oberlandesgericht) acceded to the request, authorising

detention for a maximum period of nine months, having regard to the

volume and complexity of the judicial investigation.  On 7 July 1983

the Review Chamber (Ratskammer) of the Regional Court of Klagenfurt

ordered the first applicant's continued detention, on the grounds of

danger of absconding and repetition.  The first applicant lodged an

appeal against this decision.

        On 19 July 1983 the competent public prosecutor submitted an

indictment charging the first applicant with the offences of receiving

stolen goods and illegal possession of firearms.  He requested that

the remaining charges be severed as the investigation had not been

concluded in this respect (two of the charges concerned - suppression

of documents and one case of fraud - were subsequently dropped).  The

first applicant raised an objection (Einspruch) against the indictment.

        Pending the decision on this objection, the investigating

judge requested a further prolongation of the first applicant's

detention on remand.  The Graz Court of Appeal decided on 18 August 1983

to authorise his detention on remand for a maximum period of ten months

and to reject his appeal against his continued detention and his

objection against the indictment.

        The trial was to be opened on 14 September 1983 before the

Regional Court of Klagenfurt, sitting with two professional judges

(Drs.  K and A) and two lay assessors (Schöffengericht).  The fact that

the two professional judges had earlier acted as investigating judges

(Dr.  K had been the competent investigating judge until 31 December 1982,

Dr.  A had been the judge on duty at the applicant's first hearing on

21 November 1982), was raised with the first applicant by the

presiding judge, Dr.  K, on 31 August and 1 September 1983.  He

informed this applicant that the two judges were disqualified from

participating in the trial by virtue of Section 68 para. 2 under

sanction of nullity as provided for in Section 281 para. 1 No. 1 of

the Code of Criminal Procedure.  However, the first applicant declared

that he would not lodge a plea of nullity on this account; he further

observed that he did not consider it necessary to consult his defence

counsel on this question.  The trial was held with the participation

of the above two professional judges on 14 September and 7 October 1983.

        The defence did not raise any objection to the composition of

the Court.  In particular, it did not invoke Section 68 para. 2 of the

Code of Criminal Procedure on the ground that the judges, Drs.  K and A,

had previously acted as investigating judges.

        Nor did the defence draw the Court's attention to the fact

that the first applicant had in the meantime instituted criminal

proceedings against the investigating judge, Dr.  St, who, according

to the first applicant, had committed an abuse of public powers in

connection with the investigation.  In those proceedings against the

investigating judge the applicant had, on 23 September 1983,

challenged all judges of the Regional Court as being biased, but at

the trial on 7 October 1983 the defence did not refer to this

circumstance and to the fact that the challenge, which also concerned

Drs.  K and A, had not yet been determined.  (A decision on this matter

was only taken on 10 November 1983 by the Graz Court of Appeal.  As

all judges of the Regional Court of Klagenfurt, being colleagues of

Dr.  St, had declared themselves to be biased in the proceedings

against the latter judge, the challenge was allowed and the case

referred to the Regional Court of Leoben.  The proceedings in question

were later discontinued by a decision of the Review Chamber of that

Court.)

        On 7 October 1983, the Regional Court of Klagenfurt convicted

the first applicant of qualified receiving of stolen goods under

Section 164 para. 3 of the Penal Code (Strafgesetzbuch) and of illegal

possession of firearms under Section 36 of the Firearms Act

(Waffengesetz).  It sentenced him to three years' imprisonment.  The

periods of the first applicant's detention on remand in Vienna and

Klagenfurt and of an earlier detention in Innsbruck (17 July -

10 September 1982) were deducted from the sentence.  Two further

periods of detention, however, were not taken into account because the

relevant criminal proceedings were still pending before the Regional

Court of Salzburg.

        The first applicant lodged a plea of nullity (Nichtigkeits-

beschwerde) against his conviction and appealed from the sentence

(Berufung).  However, these remedies were rejected by the Supreme

Court (Oberster Gerichtshof) on 29 February 1984.

        The Supreme Court, dismissing the plea of nullity, held in

particular that the judgment was not attended with nullity because of

the participation of biased judges.  Insofar as the first applicant had

referred to his undetermined challenge of all judges of the Regional

Court prior to the trial, the Supreme Court observed that he had not

requested a decision at the trial in which case the Regional Court

would have been obliged to take an interim decision.  The fact that

the challenge of the whole Regional Court of Klagenfurt was

subsequently allowed in the criminal proceedings against the

investigating judge, Dr.  St, did not justify the conclusion that the

judges of the Regional Court were also biased in the criminal

proceedings against the applicant.  The fact that the two professional

judges, Drs.  K and A, should, in principle, have been excluded from

the trial by virtue of Section 68 para. 2 of the Code of Criminal

Procedure because they had been involved in the investigation could

not be invoked by the applicant because he had prior to the trial

expressly renounced challenging these judges.

        The Supreme Court further rejected the first applicant's

complaints concerning alleged inconsistencies of the judgment

regarding his income, his co-operation with Italian criminals, and

his knowledge that the goods received stemmed from a robbery.   The

Supreme Court also confirmed the first applicant's sentence, rejecting

his appeal (Berufung).

        The above criminal proceedings pending before the Regional

Court of Salzburg were discontinued on 24 May 1984 in view of the

first applicant's conviction in the above proceedings before the

Regional Court of Klagenfurt.  The first applicant then applied for a

deduction of the earlier periods of detention on remand (in Innsbruck

from 19 September 1979 to 23 May 1980, and in Klagenfurt from 28 March

to 26 May 1981) from his sentence.  The Regional Court of Klagenfurt

rejected this request by a decision of 24 January 1985 finding that

the conditions of Section 38 of the Penal Code were not fulfilled as

the relevant detention periods were neither directly related to the

case at issue nor imposed subsequently to the acts of which the first

applicant was convicted.  However, at the same time it applied to the

Graz Court of Appeal for a supplementary mitigation of the applicant's

penalty (nachträgliche Strafmilderung) under Section 410 of the Code

of Criminal Procedure.  By a decision of 14 February 1985 the Court of

Appeal acceded to the request and reduced the first applicant's

sentence from three years' to two years and nine months'

imprisonment.

II.    Censorship of correspondence between the two applicants

        During their detention on remand the applicants corresponded

with each other.  At some time in the early summer of 1983 the

investigating judge censored a letter addressed by the second

applicant to the first applicant by crossing out and making illegible

certain passages.  These passages were not reconstrued in the

subsequent proceedings, but according to the applicants they contained

critical remarks on prison officers in the following terms:

(German)

        "Ich frage mich, ob in diesem Affenhaus noch jemand

        normal ist ....  Im Leben sind es Würstchen, hier sind

        sie, glauben sie, Götter.  Einige von den Beamten sind

        ja Gäste wie wir.  Dauernd wird hier spioniert bei den

        Frauen, züchtige Spanner, dieses Affenpack!  Ich hasse

        es so!"

(Translation)

        "I ask myself whether there is anybody left in this

        ape house who is still normal ...  In normal life they

        are miserable creatures, here they think they are gods.

        Some of the officers are guests like us.  They are for

        ever spying on the women, these apes are proper peeping

        toms!  I hate it!"

        The second applicant complained to the Review Chamber of the

Regional Court.  She claimed that the form of censorship was unlawful as

Section 187 para. 2 of the Code of Criminal Procedure provided only

for the stopping of letters but not for making them illegible.  She

further submitted that censorship was permissible only in respect of

letters likely to endanger the aim of the detention, or letters

suspected of involving a criminal offence except an offence liable to

prosecution only at the request of the injured person.  In the

applicant's view the relevant passages in the letter neither

endangered the aim of her detention nor did they constitute a public

prosecution offence.

        The Review Chamber, after having heard the prosecution and

having obtained a report of the investigating judge, rejected the

second applicant's complaint on 26 July 1983.  It observed that the

crossing out of certain passages in the letter was a less severe

measure than its stopping to which the investigating judge was

entitled by virtue of Section 187 para. 2 of the Code of Criminal

Procedure.  This measure was therefore implied in the investigating

judge's powers and did not infringe the applicant's rights.  The

censorship had been justified as the passages in question, being

described by the investigating judge in her report on the incident as

"jokes of an insulting nature against prison officers", had

constituted the offence of defamation of officials on duty (Section

111 para. 1 in conjunction with Section 117 para. 2 of the Penal

Code), an offence which could be taken as the basis for a measure

under Section 187 para. 2 of the Code of Criminal Procedure.

        Following the communication of the present application to the

respondent Government, the Attorney General's office (Generalprokuratur)

lodged a plea of nullity for safeguarding the law (Nichtigkeits-

beschwerde zur Wahrung des Gesetzes) in respect of the above decision

of the Review Chamber of the Regional Court of Klagenfurt.  It was

claimed that the decision was unlawful because the applicant's remarks

could not possibly have constituted an offence against the honour of

prison officers "on duty" ("während der Ausübung seines Amtes oder

Dienstes"), i.e. a public prosecution offence to be prosecuted with

the consent of the officials concerned (Section 117 para. 2 of the

Code of Criminal Procedure), because such an offence could only be

committed "from person to person" and not in a letter.  If there was

an offence against the honour of prison officers, it was liable to

prosecution only at the request of the injured persons and thus did

not justify a measure of censorship under Section 187 para. 2 of the

Code of Criminal Procedure.  Unlawfulness of the measure was further

claimed on the ground that the latter provision merely authorised the

stopping of a letter, but not the crossing out of certain passages

therein.

        On 20 October 1987 the Supreme Court, after having held a

public hearing in the presence of a representative of the Attorney

General's office, but in the absence of the second applicant, rejected

the argument that there was no public prosecution offence, but found a

violation of the law as to the form of censorship.  Assuming that the

crossed-out passages actually contained "jokes of an insulting nature

against prison officers" as found by the investigating judge, it was

justified to suspect the second applicant of an offence, namely the

offence of insult (Beleidigung) under Section 115 of the Penal Code

(rather than defamation under Section 111).  If committed against an

official on duty this offence was to be prosecuted ex officio (with

the consent of the official in question) under Section 117 para. 2 of

the Penal Code.  In the present case the possible offence would have

been committed against prison officers "on duty" because the offence

would have been completed by handing the letter to a prison officer

for the purpose of submitting it to the investigating judge and this

forwarding procedure would necessarily have created the possibility

that the insulting contents of the letter became known to several

prison or court officers on duty.  This implied that Section 117

para. 2 of the Penal Code was applicable and the measure therefore

was covered by Section 187 para. 2 of the Code of Criminal Procedure.

However, this provision only authorised the investigating judge to

stop a letter, but not to cross out passages.  In this latter respect

the investigating judge and the Review Chamber had adopted an unlawful

approach contrary to the ratio legis.  The investigating judge had not

taken a "less severe measure" implied in her powers under Section 187

para. 2, but a different measure which interfered with the interests

of the prosecution authorities and of the officials concerned to have

criminal proceedings instituted against the second applicant on

account of her remarks in the letter.  It was therefore sufficient to

state that the law had been violated.  The second applicant was not

aggrieved and therefore could not complain of the rejection of her

appeal by the Review Chamber.

COMPLAINTS

1.      The first applicant complains that the criminal proceedings

against him in Klagenfurt were not conducted by an impartial court and

therefore infringed Article 6 para. 1 of the Convention.  He observes

that he had challenged all judges of the Regional Court prior to the

trial which nevertheless took place before the challenge was decided

upon.  Moreover, the professional judges sitting at the trial had been

involved in the investigation and he had not validly renounced a trial

by an impartial tribunal.

        The first applicant also alleges that the trial was unfair

insofar as it was based on an investigation by a judge who

subsequently declared himself to be biased.  He submits that the

acts of the investigating judge should have been considered as void.

The Regional Court further acted unfairly and violated the presumption

of innocence in that it drew certain conclusions from unproven

assumptions regarding in particular the sources of the applicant's

income, his contacts with Italian criminals, and finally his knowledge

of the origin of the goods received.  Thus his conviction for

qualified receiving of stolen goods lacked a legal basis.  The

judgment contained no statements regarding the form of his guilt and

the professional character of his actions.  In this respect he invokes

Article 7 of the Convention.

        The first applicant further complains that certain detention

periods were not counted as part of his sentence.  He notes that the

sentence was subsequently reduced by three months in view of the

detention periods in question, but submits that these periods had in

fact been much longer and that Section 38 of the Penal Code which

requires that all previous detention periods should be counted towards

the sentence was thus violated.  For this reason he considers his

detention as contrary to Article 5 of the Convention.

2.      Both applicants complain that the censorship of their

correspondence during their detention on remand infringed Article 8 of

the Convention both as regards the object pursued and the method

applied.  The law allows censorship only in respect of a letter which

constitutes a public prosecution offence, but not merely a private

prosecution offence such as insulting an official.  Also it is

allegedly unlawful and contrary to Article 8 that the letter was read

by prison officers, as assumed by the Supreme Court.  The law

furthermore only allows the stopping of letters, but not the deletion

of passages.  This made it impossible to examine the reasons for the

censorship, and therefore the applicants were allegedly deprived of an

effective remedy contrary to Article 13 of the Convention.

PROCEEDINGS

        The application was introduced on 23 September 1983 and

registered on 31 January 1984.

        On 13 May 1987 the Commission rejected certain complaints of

the first applicant by a partial decision.  As regards the applicants'

remaining complaints, the Commission decided to give notice of the

application to the respondent Government and to invite them, in

accordance with Rule 42 para. 2 (b) of the Rules of Procedure, to

submit observations in writing on the admissibility and merits, inter

alia, concerning the first applicant's complaint that two professional

judges had taken part in his trial who previously had acted as

investigating judges as well as the complaint of both applicants

relating to the censorship of their correspondence.

        The Government submitted their observations on 27 July 1987.

The applicants submitted observations in reply on 23 September 1987.

        On 16 December 1987 the Government submitted further

information concerning the Supreme Court's decision of 20 October 1987

on the Attorney General's plea of nullity for safeguarding the law.

On 3 February 1988 the applicant submitted comments on this decision.

        On 15 December 1988 the Commission rejected certain further

complaints of both applicants by a partial decision while reserving

the decision concerning the first applicant's complaints relating to

the criminal proceedings against him and his subsequent detention, and

the complaints of both applicants concerning the censorship of a

letter.  In this respect the Commission decided to invite the parties,

in accordance with Rule 42 para. 3 (b) of its Rules of Procedure, to

submit further observations orally at a hearing on admissibility and

merits.

        The hearing took place on 8 May 1989.  The parties were

represented as follows:

        For the Government

        Ambassador Helmut Türk, Legal Adviser of the Ministry

        for Foreign Affairs, Vienna

        Mr.  Wolf Okresek, Adviser, Federal Chancellery, Vienna

        Ms.  Irene Gartner, Adviser, Federal Ministry of Justice, Vienna

        For the applicants

        Mr.  Reinhard Peters, Munich

        Ms.  Anne Marie Schwarz, Adviser

THE LAW

        a) As to the complaints of the first applicant

           regarding his trial and detention

1.      The first applicant alleges violations of Article 6 para. 1

(Art. 6-1) of the Convention in several respects.  Insofar as

relevant, this provision reads as follows:

"1.   In the determination of ... any criminal charge against

him, everyone is entitled to a fair ... hearing ... by an

independent and impartial tribunal established by law. ..."

        The first applicant complains that two professional judges

of the Regional Court, before which he was tried, had earlier acted

as investigating judges and that for this reason the Court was not

"impartial".  He further observes that by virtue of Section 68 para. 2

of the Austrian Code of Criminal Procedure the judges were

disqualified to sit and that therefore the Court was not a "tribunal

established by law".

        The Government claim that the first applicant has not

exhausted the domestic remedies because he failed to challenge the

judges at the trial and to lodge a plea of nullity on the ground that

they had previously acted as investigating judges.  However, the

Commission notes the Supreme Court's finding that the taking of these

remedies would not have been of any use as the first applicant

previously waived his right to challenge the judges on this ground.

The Commission considers that in these circumstances the remedies

indicated by the Government would not have been effective, and that

for this reason the first applicant must be absolved from using them.

It follows that this complaint cannot be declared inadmissible, under

Article 27 para. 3 in conjunction with Article 26 (Art. 27-3+26)

of the Convention, for non-exhaustion of domestic remedies.

        The question nevertheless arises whether the first applicant

can claim to be a victim, in the sense of Article 25 (Art. 25), of a

violation of his rights under Article 6 (Art. 6) of the Convention

having waived objections against the participation of the disqualified

judges.  In this respect the Commission recalls that a person may

validly waive invoking the guarantees under Article 6 (Art. 6) of the

Convention (cf. No. 1197/61, Dec. 5.3.62, Collection 8 pp. 68, 73; No.

6903/75, Deweer v.  Belgium, Comm.  Report 5.10.78, paras. 55 et seq.,

confirmed by Eur.  Court H.R., Deweer judgment of 27 February 1980,

Series A no. 35, p. 25, paras. 49 et seq.; No. 9177/80, Dec. 6.10.81.,

D.R. 26 pp. 255, 258).  However, the Commission also notes the first

applicant's submission that his waiver was obtained in an unlawful

procedure and was therefore invalid.  The Commission does not consider

it appropriate to examine the validity of the waiver at the present

stage of the proceedings.

        As regards the participation of two judges in the first

applicant's trial who had earlier acted as investigating judges, the

Commission recalls that such participation may raise an issue

concerning the impartiality of the court (cf. in particular Eur.

Court H.R., De Cubber judgment of 26 October 1984, Series A no. 86;

No. 9976/82, Ben Yaacoub v.  Belgium, Comm.  Report 7.5.86; and e

contrario, No. 10486/83, Hauschildt v.  Denmark, Comm.  Report 16.7.87).

The Government submit in the present case that the functions exercised

by the two professional judges of the Regional Court in their previous

capacity as investigating judges were of a limited nature.  This is

contested by the first applicant who refers to the wide powers conferred

upon investigating judges in Austria and who argues that the presiding

judge, Dr.  K., had a profound knowledge of his case.

        The Comission has considered these arguments, but finds that

the first applicant's above complaints cannot be rejected at this

stage as being manifestly ill-founded within the meaning of Article 27

para. 2 (Art. 27-2) of the Convention.  Having regard to the Court's

De Cubber judgment of 26 October 1984 (Eur.  Court H.R., Series A no.

86), it finds that these complaints raise complex issues of fact and

law regarding the application of Article 6 para. 1 (Art. 6-1) of the

Convention which require a determination on the merits.

        The applicant has also complained that the Regional Court was

not impartial as required by Article 6 para. 1 (Art. 6-1) of the Convention

because the trial took place although he had previously challenged the

judges of the Court and this challenge had not yet been determined.

The Commission notes, however,  that the challenge was made in criminal

proceedings instituted by the applicant against the investigating

judge, Dr.  St., and that in the present case the applicant's plea of

nullity based on this ground was rejected because the applicant had

not referred to that challenge at the trial.  The Government conclude

from this that the applicant has not exhausted the domestic remedies

in this respect as required by Article 26 (Art. 26) of the Convention.

The applicant objects that at the trial he did not know that the

judges concerned had declared themselves to be biased in the case of

Dr.  St.

        The Commission considers that the whole issue is so closely

related to the above complaint concerning the disqualification of the

same judges because they had previously acted as investigating judges

that it cannot be separated.  This part of the application must

therefore also be considered on the merits.

2.      The first applicant submits that the trial was unfair because

the investigating judge, Dr.  St., had admitted to have been biased.

The investigation should therefore have been considered as void.

        However, Dr.  St. had not declared himself to be biased in

relation to the investigation in the applicant's case, but in the

context of the above criminal proceedings instituted against him by

the first applicant.  The Commission finds that this does not justify

the conclusion that he was also biased in the criminal proceedings

against the applicant at the time when he conducted the investigation

against him.  A challenge for bias was in fact rejected by the

President of the Regional Court of Klagenfurt on 26 May 1983.  The fact

that the applicant later instituted criminal proceedings against

Dr.  St. equally does not show that the investigation was carried out

improperly or that Dr.  St. was biased.  It follows that the trial court

did not act unfairly when using the result of the investigation.

        There is thus no appearance of unfairness of the proceedings

in this respect, and this part of the application must therefore be

rejected as being manifestly ill-founded within the meaning of

Article 27 para. 2 (Art. 27-2) of the Convention.

4.      The first applicant further complains that the Regional Court

acted unfairly and violated the presumption of innocence in that it

drew certain conclusions from allegedly unproven assumptions.  Insofar

as the judgment did not contain statements regarding the form of his

guilt and the professional character of his actions the judgment

allegedly lacked a legal basis and violated Article 7 (Art. 7) of the

Convention.

        With regard to the judicial decisions complained of, the

Commission recalls that, in accordance with Article 19 (Art. 19) of the

Convention, its only task is to ensure the observance of the

obligations undertaken by the Parties to the Convention.  In

particular, it is not competent to deal with an application alleging

that errors of law or fact have been committed by domestic courts,

except where it considers that such errors might have involved a

possible violation of any of the rights and freedoms set out in the

Convention.  The Commission refers, on this point, to its constant

case-law (see e.g.  No. 458/59, Dec. 29.3.60, Yearbook 3 pp. 222/236;

No. 5258/71, Dec. 8.2.73, Collection 43 pp. 71, 77; No. 7987/77, Dec.

13.12.79, D.R. 18 pp. 31, 45).  In the present case the Commission

finds that the first applicant's above complaints under Article 6

paras. 1 and 2 (Art. 6-1-2) and Article 7 para. 1 (Art. 7-1) of the

Convention have not been substantiated.  These complaints are

therefore manifestly ill-founded within the meaning of Article 27

para. 2 (Art. 27-2) of the Convention.

5.      The first applicant finally complains that certain periods of

detention on remand were not fully counted towards his sentence, and

he alleges a breach of Article 5 (Art. 5) of the Convention in this respect.

Insofar as relevant this provision reads as follows:

"1.     Everyone has the right to liberty and security of

person.  No one shall be deprived of his liberty save in

the following cases and in accordance with a procedure

prescribed by law:

        (a)     the lawful detention of a person after

conviction by a competent court;

        ...

        (c)     the lawful arrest or detention of a person

effected for the purpose of bringing him before the

competent legal authority on reasonable suspicion of having

committed an offence or when it is reasonably considered

necessary to prevent his committing an offence or fleeing

after having done so;

        ..."

        The Commission observes that the prison sentence which the

first applicant had to serve constituted a lawful detention after

conviction by a competent court and was thus covered by Article 5

para. 1 (a) (Art. 5-1-a) of the Convention.  This holds true both as

regards the original sentence imposing a prison term of three years

and as regards the subsequent reduced sentence of two years and nine

months.

        The Convention does not require that periods of remand custody

should be counted towards the sentence.  As regards the two detention

periods which were not fully taken into account in the first

applicant's revised sentence, the Regional Court found that Section 38

of the Penal Code did not apply as these detention periods were

neither directly related to the case at issue nor imposed subsequently

to the acts of which the first applicant was convicted.

        In these circumstances there is no appearance that the first

applicant's detention following his conviction was unlawful.  This

part of the application is therefore manifestly ill-founded.

        b) As to the complaints of both applicants regarding

           the censorship of a letter

6.      Both applicants complain of the censorship of a letter

which the second applicant addressed to the first applicant.  In this

respect they invoke Article 8 (Art. 8) of the Convention which reads

as follows:

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

and family life, his home and 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."

        The Commission notes that only the second applicant, being the

author of the letter,  exhausted the domestic remedies, but the first

applicant was affected as well, being the addressee.  The Commission

finds that, in the circumstances, he was absolved from exhausting the

domestic remedies which would have been identical to those taken by

the second applicant.

        The Commission next notes the Supreme Court's judgment

of 20 October 1987 according to which the censorship was as such

justified although the form in which it was carried out was unlawful.

It further notes the Supreme Court's finding that the applicants

suffered no disadvantage as it would in any event have been possible

to stop the letter.  This raises the question whether the applicants

can still claim to be victims, within the meaning of Article 25 of

the Convention, of the measure of censorship in question.  The

Government deny this.

        The Commission accepts that, by the Supreme Court's above

judgment, the applicants obtained redress in respect of their

complaint that the form of censorship had been unlawful because

Section 187 para. 2 of the Code of Criminal Procedure allows only the

stopping of letters, but not the crossing out of passages.  However,

the applicants did not obtain redress insofar as they claimed that the

measure of censorship was in substance unjustified.  In this respect

the applicants still can claim to be victims of their rights under the

Convention.

        The Government submit that the measure of censorship in

question was justified under Article 8 para. 2 (Art. 8-2) of the

Convention as being lawful and necessary in a democratic society for

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

rights of others. The applicants deny this, stressing in particular

that the actual contents of the letter did not justify the censorship

and that the forwarding procedure as described by the Supreme Court

involved a further violation of Article 8 (Art. 8) in that it was

unlawful and unjustified to allow the mail of remand prisoners to be

read by prison officers.

        The Commission has considered these arguments and finds that

the applicants' above complaints cannot be rejected at this stage as

being manifestly ill-founded.  Having regard to the Court's Silver and

Others judgment of 25 March 1983 (Eur.  Court H.R., Series A no. 61) it

finds that these complaints raise complex issues of fact and law

regarding the application of Article 8 (Art. 8) of the Convention

which require a determination on the merits.

7.      The applicants finally complain that because of the particular

form of censorship the actual content of the letter in question could

not be established in the complaints procedure before the Review

Chamber in which they could not take part and that, for this reason,

their right under Article 13 (Art. 13) of the Convention to an

effective remedy before an national authority was violated.  Article

13 (Art. 13) reads as follows:

"Everyone whose rights and freedoms as set forth in

this Convention are violated shall have an effective

remedy before a national authority notwithstanding that

the violation has been committed by persons acting in an

official capacity."

        The Commission notes, however, that in its decision of

20 October 1987 the Supreme Court declared the particular form of

censorship applied in this case as having been unlawful.  As the

applicants obtained redress in this respect, they can no longer claim

to be victims of a violation of Article 13 (Art. 13) based essentially

on the particular form of censorship applied.  It is clear that apart

from this there existed a remedy whereby the justification of the

censorship could be reviewed.  The fact that this remedy was

unsuccessful in the present case cannot be seen as a violation of

Article 13 (Art. 13).  The applicants' complaint in this respect is

therefore manifestly ill-founded.

        For these reasons, the Commission

1.      DECLARES ADMISSIBLE, without prejudging the merits of the case,

        a) the complaint of the first applicant that the Regional

           Court which tried his case was not an "impartial tribunal

           established by law";

        b) the complaint of both applicants that the censorship of the

           letter addressed by the second applicant to the first

           applicant and its reading by prison officers were unjustified;

2.      DECLARES INADMISSIBLE the remainder of the application.

Secretary to the Commission        Acting President of the Commission

      (H.C. KRÜGER)                           (S. TRECHSEL)