AS TO THE ADMISSIBILITY OF

                      Application No. 10533/83

                      by Istvan HERCZEGFALVY

                      against Austria

        The European Commission of Human Rights sitting in private on

10 March 1988, the following members being present:

              MM. C.A. NØRGAARD, President

                  J.A. FROWEIN

                  S. TRECHSEL

                  E. BUSUTTIL

                  G. JÖRUNDSSON

                  A.S. GÖZÜBÜYÜK

                  A. WEITZEL

                  J.-C. SOYER

                  H.G. SCHERMERS

                  H. DANELIUS

                  G. BATLINER

                  J. CAMPINOS

                  H. VANDENBERGHE

             Mrs. G.H. THUNE

             Sir  Basil HALL

             MM.  F. MARTINEZ

                  C.L. ROZAKIS

             Mrs. J. LIDDY

             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 27 November 1978

by Istvan HERCZEGFALVY against Austria and registered on 22 August 1983

under file No. 10533/83;

        Having regard to the report provided for in Rule 40 of the

Rules of Procedure of the Commission;

        Having deliberated on 29 February and 10 March 1988;

        Decides as follows:

THE FACTS

I.        The applicant is a Hungarian refugee born in 1944 who came

to Austria in 1964.  He soon married an Austrian woman and established

himself as a self-employed businessman.  In particular, he ran a TV

repair-shop in Vienna.

        Criminal proceedings were instituted against the applicant in

connection with acts of physical aggression against his wife (who had

left him in December 1971) and certain of his clients. On 9 November

1972, the Regional Criminal Court (Landesgericht für Strafsachen) of

Vienna convicted him for several acts of extortion, deprivation of

liberty, dangerous threats, inflicting bodily injuries on his spouse

and ill-treating her.  In addition, the Court found him guilty of

calumny and raising false suspicions.  It pronounced a prison sentence

of two years.  This judgment was in substance confirmed by the Supreme

Court (Oberster Gerichtshof) on 28 June 1973. The applicant served his

sentence until 13 May 1974.  As he considered that he had been wrongly

convicted, he filed an application with the Commission (No. 6398/73)

which, however, was declared inadmissible on 12 December 1974.

        In the meantime, further criminal proceedings had been

instituted against the applicant, essentially for offences connected

with his business practices.  On 2 February 1973, the Regional Criminal

Court of Vienna found him guilty of numerous acts of aggravated fraud,

extortion, attempted theft, thwarting an enforcement procedure,

resistance against officials, and defamation.  It imposed a prison

sentence of five and a half years which, however, was subsequently

reduced to three years by a decision of the Supreme Court of 12

December 1973.  The applicant served this sentence immediately after

the first one, until 13 May 1977.

        During his detention in various prisons the applicant turned

out to be a difficult prisoner, mainly because of the numerous

petitions and complaints which he addressed to various authorities

concerning his allegedly wrongful convictions and his treatment in

prison.  Because of his querulous behaviour, civil proceedings were

eventually taken against him in 1975 by the prosecution authorities

with a view to establishing a partial lack of legal capacity to act

(beschränkte Entmündigung). After having heard psychiatric expert

evidence in this respect, the District Court of Vienna City

(Bezirksgericht Wien - Innere Stadt) by a decision of 23 December 1975

declared him to lack legal capacity, and appointed a guardian

(Beistand) for him.  This decision became final on 3 November 1977 when

it was confirmed by the Vienna Regional Court of Civil Affairs

(Landesgericht für Zivilrechtssachen).

        After completion of the above two sentences on 13 May 1977, the

applicant was not released, but remanded in custudy in connection with

charges of having committed further criminal offences while in

detention (assaults on prison wardens and fellow prisoners, uttering

dangerous threats in letters addressed to the presiding judge of the

first trial).   The warrant of arrest of 12 May 1977 was based on the

grounds that the applicant might abscond and carry out his threat to

commit further offences (Section 180 paras. 1(1) and (3) of the Code

of Criminal Procedure (Strafprozessordnung)).

        As the applicant's vexatious behaviour deteriorated during his

detention on remand and as he showed signs of increased aggressive-

ness, the President of the trial court in the new case decided on 9

January 1978 that the applicant should be provisionally detained

(vorläufige Unterbringung) in an institution for mentally deranged

offenders (Anstalt für geistig abnorme Rechtsbrecher) under Section 438

of the Code of Criminal Procedure.  This decision was based on the

advice of several experts. It was confirmed by the Review Chamber

(Ratskammer) of the Regional Court of Vienna on 6 March 1978, and by

the Vienna Court of Appeal (Oberlandesgericht) on 19 April 1978.

        A trial in the case had in the meantime been held on 4 April

1978 after the initial date set for this trial (2 November 1977) had

been cancelled due to the necessity of taking further evidence.  The

trial was interrupted due to the behaviour of the applicant.  The

applicant was then examined by a psychiatric expert who expressed the

view that the applicant suffered from paranoia querulans which could

be considered as being equivalent to a mental illness and that he was

therefore irresponsible for his acts.  In view of this expert opinion,

the prosecution abandoned the original indictment aiming at the

applicant's conviction and replaced it by a new one aiming at his

detention in an institution for mentally deranged offenders according

to Section 21 para. 1 of the Penal Code (Strafgesetzbuch).

        A new trial was held before the Vienna Regional Criminal Court

on 9 and 10 January 1979.  The applicant was initially present, but was

excluded in the course of the trial under Section 430 para. 5 of the

Code of Criminal Procedure.  The Court found the facts of three of the

charges established (threats against a prison director and a judge,

resistence against officials, and bodily injury of a prison warden).

It ordered the applicant's detention in an institution for mentally

deranged offenders under Section 21 para. 1 of the Penal Code, on the

ground that he was a dangerous person who was not responsible for his

acts under criminal law.

        As regards the question of criminal responsibility, the Court

took into account the expert opinions of three psychiatrists who all

considered that, although there were no signs of a mental illness in

the strict sense, the applicant nevertheless suffered from paranoia

querulans with strong tendencies to aggression.  In this state of mind

he had already committed the earlier criminal offences which had led

to his criminal convictions in 1972 and 1973, but the symptoms had

aggravated during the period of his subsequent detention.  At least

since 1975, the querulous behaviour had reached the level of a serious

mental instability equivalent to a mental illness, preventing the

applicant from realising the unlawfulness of his behaviour and from

acting lawfully.

        In its finding that the applicant was a dangerous person, the

Court again followed the opinion of the above three experts, confirmed

by its own impression, that the applicant was totally incapable of

realising his guilt and was ridden by the obsession that he must fight

against his "persecutors" not only by a flood of petitions and

complaints but also by threats and physical acts of aggression.

         The applicant's plea of nullity (Nichtigkeitsbeschwerde)

against this decision was in part successful.  By a decision of 3

October 1979, the Supreme Court confirmed the findings concerning the

first charge (dangerous threats) but quashed those relating to the

second and third charges on the ground that the trial court had failed

to hear certain witnesses.  The numerous other complaints alleging

grounds of nullity which the applicant had submitted were all rejected.

The order to detain the applicant in an institution for mentally

deranged offenders was nevertheless quashed, and the matter referred

back to the Regional Court for a new trial.

        This trial took place on 20 March and 9 April 1980.  It covered

the two charges in relation to which the Supreme Court had quashed the

earlier judgment, and a new charge of dangerous threats against the

same judge as before.  After the taking of voluminous evidence , the

facts of all three offences were found to be established. The Court

again ordered the applicant's detention in an institution for mentally

deranged offenders under Section 21 para. 1 of the Penal Code, on the

grounds stated in its earlier judgment of 10 January 1979.  It also

relied on new expert evidence showing that the situation had not

essentially changed despite some improvement which had been brought

about by the applicant's psychiatric treatment. In this connection,

reference was made in particular to a new offence committed since the

last judgment. The taking of further expert evidence was not considered

as necessary as the existing expert opinions did not contradict each

other and were conclusive.

        The applicant withdrew his plea of nullity against this

judgment which therefore has become final.

        However, he repeatedly challenged his continued detention in

the institution for mentally deranged offenders.

        After the Supreme Court's judgment of 3 October 1979 had been

served on the applicant, he requested his release, but this request was

rejected by the Review Chamber on 28 January 1980.

        The detention ordered by the Regional Court's judgment of

9 April 1980 was maintained by a decision of the same Court of

8 February 1982 on the ground that the applicant continued to be a

dangerous person as confirmed by a report of the psychiatric hospital.

        In July, September and October 1983, the applicant again

requested his release, observing that no decision ordering his

continued detention had been taken within the statutory time limit

(Section 25 para. 3 of the Penal Code), which had expired on 8 February

1983.  The Court of Appeal on 14 February 1984 referred the matter to

the Regional Court. Two days later, on 16 February 1984, the Regional

Court ordered the applicant's continued detention.  It found that,

according to the report of the psychiatric hospital, the applicant's

state of mental health had not essentially changed.  He still continued

to write vexatious complaints without the consent of his guardian whose

appointment he did not accept, and if released he would presumably

raise numerous claims.  At the same time, it could not be predicted

whether he would make true any of the threats previously uttered in

particular against the prison staff.  His paranoia querulans could not

be stopped even with modern medical treatment.  The treatment which he

actually received had a sedative effect which might end with his

release as he was opposed to this treatment, considering himself to be

sane.  As he would certainly refuse to undergo any treatment after his

release which, however, was absolutely necessary, the danger which was

at the basis of his detention continued to exist.

        The applicant's appeal (Beschwerde) against this decision was

rejected by the Vienna Court of Appeal on 4 April 1984.  It considered

that the Regional Court had arrived at the correct conclusions on the

basis of the very detailed expert opinion of the director of the

psychiatric hospital and a supplementary report by another

psychiatrist.

        The applicant was eventually released by a decision of the

Regional Court of 14 November 1984.  On the basis of the expert opinion

obtained it noted that there had been no essential improvement of the

applicant's state of health.  His paranoia querulans continued to

exist, it had even developed by acquiring  a political component after

the applicant's treatment with injections had been discontinued, and

he had still recently uttered serious threats. However, the querulous

behaviour was primarily concerned with the detention (Haftquerulanz)

and the vexatious litigation (Rechts- querulanz) was only a secondary

phenomenon.  The latter would probably continue to exist even after a

release, but vexatious complaints, petitions etc. did not constitute

a danger within the meaning of Section 21 of the Penal Code.  The

querulous behaviour concerning the detention on the other hand would

cease in the case of a conditional release.  A genuine aggressiveness

had been observed only on rare occasions since the commission of the

offences which had led to the applicant's detention.  It was to be

assumed that the applicant would seek to redress the wrong allegedly

or even really done to him first of all by querulous complaints.  While

it could not be excluded that he would become aggressive in the case

of frustration, there was from the psychiatric point of view no acute

danger that he would commit criminal offences with grave consequences

because of his abnormal personality.  A conditional release was

therefore now possible.  A further psychiatric treatment or treatment

by drugs was no longer considered necessary by the expert, although it

was recommended.

II.     By the date of his release on 14 November 1984, the applicant

had been detained without interruption under various legal titles since

15 May 1972, i.e. for 121/2 years.

        In particular, the applicant was detained in the following

institutions:

        - until 30 January 1974 in the prison of the Regional Criminal

          Court of Vienna;

        - until 3 February 1975 in the prison of Stein;

        - until 24 August 1975 in the special prison for mentally

          deranged offenders, Mittersteig;

        - until 30 October 1975 in the psychiatric hospital of Vienna

          (observation in connection with civil incapacitation

          proceedings);

        - until 7 January 1977 again in the special prison,

          Mittersteig;

        - until 12 May 1977 in the prison of Graz;

        - until 27 November 1980 in the prison of the Regional

          Criminal Court of Vienna (detention on remand, since

          January 1978 provisional detention as a mentally

          deranged offender, interrupted by lengthy periods in

          the psychiatric hospital of Vienna and the psychiatric

          university clinic of Vienna);

        - until his release on 14 November 1984 in a closed

          department of the psychiatric hospital of Vienna

          attached to the special prison of Mittersteig.

        Throughout his detention, the applicant was considered a

particularly difficult prisoner and was therefore subjected to very

close supervision.  The measures applied may be summarised as follows:

        Medical treatment

        Apart from his mental instability, which was the subject matter

of many psychiatric reports, the applicant also suffered from other

health problems.  In the prison of Stein he suffered from lumbago which

was allegedly due to the conditions of detention.  The applicant was

transferred to the prison hospital for lengthy periods.  He

subsequently complained to various authorities that he had not received

adequate medical treatment.  He further claimed that he was unfit for

detention, but his requests to be released for this reason were

rejected by the competent courts.  Apparently because of these

decisions the applicant went on hunger-strike from October until

December 1974.  During the hunger-strike he was detained in isolation

and examined by a medical officer about once a week.  Eventually it

became necessary to provide for more intensive care in the Krems civil

hospital.

        During his subsequent detention as a convicted prisoner in the

prisons of Mittersteig and Graz the applicant again complained of

inadequate medical treatment.

        In Mittersteig the diagnosis of lumbago was originally

confirmed and an ulcer was found in March 1975.  However, in August

1975 the prison doctor found no signs of any disease and this was

confirmed by a university clinic.  It was recorded that the applicant's

health troubles seemed to be simulated.  It appears that the applicant

was nevertheless given medicaments for stomach troubles, but no other

treatment.

        A prison doctor in Graz subsequently confirmed stomach and

spinal troubles which, however, did not make the applicant unfit for

detention.

        During the subsequent detention periods it was mainly the

applicant's mental troubles which led to medical or, more particularly,

psychiatric treatment.  Already in November 1976 the applicant's

guardian had suggested that the applicant should be subjected to

compulsory psychiatric treatment in order to prevent vexatious

complaints.  A psychiatric report of the special prison of Mittersteig

of December 1976 stated that the applicant suffered from a paranoid

complex with temporary fits of excitement.

        In December 1977 the applicant staged a second hunger-strike

in the prison of the Regional Court of Vienna.  A psychiatric

consultant of the prison thereupon recommended his provisional

detention in a psychiatric hospital as he considered the applicant

dangerous to the public and possibly also to himself.  The applicant

was transferred for a week to the psychiatric hospital of Vienna and

subsequently complained that he had been treated with sedatives against

his will.

        After a relatively calm period, the applicant showed increased

aggressiveness in June 1979.  On 20 June 1979 the Vienna Regional Court

ordered four weeks' detention in a security cot (Gitterbett) which was

carried out in the psychiatric hospital of Vienna from 18 June to 23

July 1979.  Upon his return to the Regional Court's prison, the

applicant began a third hunger-strike to protest against his continued

detention and deprivation of his files.  He had a complete breakdown

on 28 August 1979.

        On 29 August 1979 the Vienna Court of Appeal ordered the

Regional Court's Review Chamber to deal with a complaint of the

applicant against his detention in a security cot.  On 5 September 1979

the Review Chamber decided to replace that measure by provisional

detention in the psychiatric hospital of Vienna (Section 429 para. 4

of the Code of Criminal Procedure) subject to intensive medical, socio-

and psychotherapeutical treatment.  The Court of Appeal confirmed this

decision on 12 October 1979 in view of psychiatric reports confirming

that the applicant presented an acute danger to the public and to

himself, justifying his compulsory psychiatric detention under Section

50 of the Hospital Act (Krankenanstaltengesetz).

        The applicant subsequently requested the institution of

criminal proceedings against doctors and nurses because of his having

been kept with fetters in the security cot and having been compulsorily

treated with sedatives ("Niederspritzen"), alleging that these measures

amounted to an attempt of murder.  However, in view of the guardian's

consent to the compulsory treatment (14 December 1979) no charges seem

to have been laid by the prosecution.

        After these events the applicant remained most of the time in

the psychiatric clinic of Vienna where he continued to be treated with

sedatives until August 1984 on a regular basis (depot injections every

28 days).  It further appears that from 1979 until the summer of 1982

the applicant observed a hunger-strike, during which he was subject to

compulsory feeding.  Thereafter he underwent a work-therapy which he

stopped in the summer of 1984 after his guardian had seized the

applicant's remuneration (AS 3900.-) for the purpose of covering his

fees.

        Access to court

        In particular during the first period of his detention the

applicant was involved in numerous court (divorce, incapacitation,

business-related civil and enforcement proceedings) and administrative

proceedings (residence status, taxation, unauthorised use of title

etc.).  He was frequently brought to court hearings, but this became

more difficult when he was detained outside Vienna where most

proceedings took place.

        The prison administration in Stein initially allowed frequent

transports (Ausführungen) to Vienna, but later refused several

transports on the ground that the applicant was not prepared to bear

the costs.  The applicant complained that the costs were exaggerated

and that he was unable to bear them.  The prison administration

rejected these complaints, but did not issue a written decision as

requested by the applicant.  Upon the applicant's further complaint the

Federal Ministry of Justice eventually ruled in 1977 that the

withholding of a written decision had been unlawful.  It did not deal

with the question of whether the refusal of transport on the above

ground had been justified.

        During the applicant's hunger-strike in Stein a number of

transports were refused on the ground of the applicant being unfit for

transport.  A complaint to the Ministry in one of these cases was

eventually rejected in 1977 for lack of legal interest because, in that

case, the Vienna Commercial Court's judgment in default issued against

the applicant had subsequently been quashed for violation of his right

to be heard.

        The special prison of Mittersteig initially adopted a rather

liberal approach concerning transport to court hearings, hoping that

this would lead to an improvement of the applicant's state of mind.

However, after incidents in the summer of 1975 the prison governor

reported to the Ministry of Justice that this expectation had been

disappointed.  Subsequently the applicant was taken to court hearings

free of charge only when there was a court summons.

        After the institution of incapacitation proceedings in 1975,

the applicant was no longer able to bring court proceedings himself.

Proceedings were adjourned by the Commercial Court of Vienna and the

Administrative Court pending the conclusion of the incapacitation

proceedings.  As regards the institution of criminal proceedings, the

Supreme Court ruled on 10 March 1977 that the consent of the guardian

was required according to the circumstances of each case.  A

hierarchical appeal about a delay in the criminal proceedings concerned

was thereupon rejected.  Numerous other criminal proceedings brought

by the applicant were subsequently discontinued failing the consent of

his guardian.  However, there is no indication that the applicant's

plea of nullity against the judgment of 1980 (cf. p. 4 above) was

invalid, or that it was withdrawn in view of doubts as to its validity

(cf. p. 13 below).

        As regards complaints to the visiting judge relating to

detention and treatment in prison (Arrestvisite), it was clarified by

a ruling of the President of the Regional Criminal Court of Vienna in

July 1977 that each prisoner must have the possibility to speak to the

judge.  The applicant had not been given this possibility during

several consecutive visits in May and June 1977.

        It finally appears that, after the adoption of the procedure

whereby the applicant's mail was channelled through his guardian on a

systematic basis (see below), the applicant was in principle prevented

from instituting complaints and other proceedings.  This procedure was

apparently maintained from 1977 until the date of the applicant's

release in November 1984.

        Access to files

        In connection with the numerous proceedings in which he was

involved or which he tried to start, the applicant kept voluminous

files in his cell, but he was repeatedly deprived of these files.

        All files were removed from his cell in Mittersteig in August

1975 after a search had led to the discovery of unauthorised items. The

measure aimed at a close control of the applicant's papers by the

prison governor, and it was stated that this did not interfere with his

procedural rights.  The papers were subsequently kept with the

applicant's personal deposits until November 1975, the applicant being

told that he was entitled to request the return of any specific

documents.

        In October 1976 the applicant laid a criminal information

against his guardian who had not consented to his consulting the file

which then was refused by the authority.

        A report of January 1977 to the Ministry of Justice stated that

consultation of the file had been interrupted as the applicant had

crossed out certain passages.

        In July 1977 the applicant was allowed to consult the file for

a total of 35 hours under special supervision in the Regional Criminal

Court's prison.  The access to the file was interrupted on 9 September

on the ground that the applicant had abused this right.

        On 7 November 1977 his cell was controlled and thousands of

pages removed to the deposits.  The prison administration subsequently

reported this measure to the Ministry and to the applicant's guardian.

On 9 December the Ministry instructed the prison to grant the applicant

access to the files at any time, although it did not object to their

removal from the cell.

        In August 1979 the cell was searched and voluminous files

removed to the deposits.  They were returned to the applicant in the

psychiatric hospital of Vienna on 25 September 1979, despite doubts of

the prison administration and the Ministry, because it was thought that

possession of the files could contribute to the success of the

psychiatric treatment.  However, it appears that the files were removed

again and taken to the deposits after a short period.

        At the trials in 1979 and 1980 the applicant complained that

the deprivation of his files had hindered the preparation of his

defence.  His requests to adjourn the proceedings for this reason were

rejected.

        It appears that after the applicant's committal for detention

as a mentally deranged offender his voluminous files were not available

to him in the psychiatric hospital of Vienna, but were kept

in a special room to which the applicant was not granted access, not

even for the purpose of preparing his present petition to the

Commission.  According to the Government's submissions, the applicant

could, however, request the handing out of specific documents.  He did

not make such requests but insisted on access to the whole of the

files.  His attempts in 1982 to get permission for consultation of the

file by a (non-practising) lawyer with whom he was acquainted also

failed.

        Control of correspondence

        Throughout his detention the applicant conducted correspondence

on an extremely large scale, including private and business letters and

first of all letters, petitions and complaints addressed to various

authorities in connection with the numerous proceedings in which he was

involved and also concerning his treatment in prison, including the

handling of his correspondence.

        In their attempts to reduce the flood of correspondence the

authorities resorted to different measures, including temporary

restrictions on the use of writing material.

        Use of a typewriter and writing material were already refused

during the applicant's first detention in the Regional Criminal Court's

prison in Vienna.

        In Stein prison the applicant was refused prison paper,

envelopes and paper for making copies.  Business letters and letters

to his lawyer written on other than prison paper were not accepted for

delivery.

        In Mittersteig special prison it was ordered in August 1975

that paper and complaint forms should be handed out to him in each case

only following a specific request.  A petition on toilet paper was

forwarded to the Federal Ministry of Justice on 23 August 1975. On 8

September a request for 110 sheets of paper and 25 envelopes was

refused and unauthorised writing material removed.  The specific

request-requirement was apparently maintained during the subsequent

detention in the psychiatric hospital of Vienna.

        In October 1977 the applicant complained to the Ministry that

he was not given sufficient writing paper in the Regional Criminal

Court's prison.  The prison administration commented that he was given

sufficient prison paper, that he was also entitled to buy paper, and

that it was not therefore necessary to use wrapping paper as he had

done.  After a search of the cell in November the prison reported to

the Ministry that the applicant had sufficient writing paper.  The

applicant was reminded that one set of writing material was considered

sufficient and was told that petitions on wrapping paper etc. could not

be accepted.

        It appears that writing material was withheld from the

applicant also at later dates.  Thus a letter to the Commission of 27

November 1978 was written on brown paper bags and the applicant stated

that he had been refused other paper and had also complained of this

to the Ministry.  Most of the applicant's subsequent letters to the

Commission were according to him smuggled out under circumvention of

the prison rules because he did not get sufficient writing material or

permission to write.

        As regards delivery of correspondence, the applicant also

encountered difficulties on numerous occasions, both concerning the

incoming and outgoing mail.  The applicant was particularly aggrieved

by the fact that, during his detention in the prisons of Stein and

Mittersteig, official communications addressed to him by courts and

other authorities, including summonses to appear at court hearings,

court decisions etc., were not handed to him personally but only read

out to him and kept in the prison files.  He repeatedly refused to

acknowledge receipt of such letters by his signature on the special

return sheet provided for such official deliveries.  The letters in

question were then deposited in the Post Office or returned to the

sender.  The applicant was advised on 21 July 1975 that he must bear

the consequences.  His complaints to the Ministry of Justice and his

attempts to institute criminal proceedings for suppression of his mail

failed.

        As regards outgoing mail, the applicant was repeatedly advised

of the applicable provisions of the Criminal Law Enforcement Act

(Strafvollzugsgesetz), in particular that letters must be submitted in

unsealed envelopes, that they must be correctly addressed and that he

must pay the postage.  He was also advised repeatedly that it was

inadmissible to request an authority other than the prison, e.g. the

Ministry of Justice, to forward letters to other addresses on his

behalf.  Such letters were regularly returned to him.

        The payment of postage developed into a special issue of

confrontation with the authorities.  The applicant claimed that he was

unable to pay postage from the money available to him for this purpose

(Eigengeld), and that the postage must therefore be paid by the State.

However, the authorities did not accept this view and frequently

refused to forward letters without stamps.  On 27 January 1977 the

Ministry of Justice confirmed that the postage was, in principle, to

be paid by the applicant from his own money, and that letters without

postage should not be accepted for transmission.  Only letters

addressed to authorities competent for criminal matters were to be

forwarded through the official channels.

        It appears that in practice most letters addressed to

authorities and courts were in fact transmitted to them, despite the

applicant's failure to pay postage, while other letters without postage

were returned to the applicant, including letters to his lawyer, to the

Chamber of Medicine, and the Police Headquarters in Vienna.  The

applicant nevertheless consistently maintained his practice of

submitting letters without postage.  He continued to do so even after

his release and he has also posted letters to the Commission without

stamps on numerous occasions.  Some were returned and when the

applicant refused to pay additional postage they were retained by the

Post Office and not handed back to him.

        According to the provisions of the Criminal Law Enforcement

Act, the applicant's mail was subject to censorship by the prison

governor or his representative.  In the prison of Stein this censorship

was exercised systematically in each case and not only at random as is

usual practice.  This measure was based on Section 129 of the above Act

which allows the prison governor to order appropriate modifications of

the general prison regime in cases of mentally deranged persons.  The

same approach seems to have been taken subsequently in the special

prison of Mittersteig.

        Numerous letters were stopped, in particular on the ground of

abusive language or distortion of facts.  They included letters to the

applicant's (ex-)wife and her employer, to his relatives in Hungary

(which were first translated by the services of the Ministry of

Justice), to the Soviet Embassy, to newspapers and the Austrian radio

and even one letter addressed to the Commission on 25 July 1974 (on the

ground that it contained unjustified complaints about the prison).

        The applicant complained that also other letters to the

Commission had not been delivered, and this led to investigations by

the Ministry of Justice.  Eventually it was found that all letters to

the Commission had in fact been transmitted to the latter (note of 16

December 1974).  The practice followed with complaints to the

Commission (and also the UN High Commissioner for Refugees) was

apparently to submit the relevant letters, or copies thereof, to the

Ministry, sometimes with comments by the prison administration.

        Letters addressed to Austrian courts could not be stopped even

if they contained abusive language (Section 90/4 of the Criminal Law

Enforcement Act), but letters addressed to individual judges were

stopped on some occasions.  Such letters and letters to prison

officials also led to disciplinary sanctions and the institution of

criminal proceedings against the applicant.

        Letters to the Federal Ministry of Justice or prosecution

authorities were generally transmitted to them, often with comments by

the prison on the matters raised in the said letters.

        After the appointment of a guardian for the applicant, his

letters addressed to the various authorities were no longer directly

transmitted to them but collected and from time to time sent to the

guardian, who then decided whether they should be forwarded or not.

This practice was apparently maintained throughout the period between

February 1977 and February 1980.  During the time in which the

applicant was detained in the psychiatric hospital in 1979, the

transmission of his correspondence was nevertheless handled by the

prison administration.

        No details have been provided concerning the practice after

February 1980, but it appears that, in principle, the control of the

mail by the guardian was maintained until the applicant's release in

November 1984.

        Disciplinary sanctions

        The applicant was repeatedly subjected to disciplinary

sanctions, in particular periods of house arrest or segregation from

other prisoners.  Such measures were, in particular, taken during the

two periods of detention in the prison of the Vienna Regional Court,

and in the ordinary prisons of Stein and Graz, inter alia on the ground

that the applicant had written insulting letters to court and prison

officials.  The special prison of Mittersteig took the view that such

offences were due to his mental troubles and therefore did not impose

disciplinary sanctions.

COMPLAINTS

        In the application form submitted on 31 July 1983 the applicant

did not invoke any specific provision of the Convention.  In a

subsequent letter of 25 October 1984 he stated that at the relevant

time the text of the Convention had not been available to him, and he

added that he wished to submit complaints under Articles 1, 2, 3, 4

paras. 1 and 2, 5 paras. 1 - 5, 6 paras. 1 - 3, 8, 9, 10, 13, 14, 17,

18, 25 and 60 of the Convention as well as Articles 1 and 2 of Protocol

No. 1 and Article 2 para. 2 of Protocol No. 4 to the Convention.

        The applicant claims that he was wrongly convicted in 1972 and

1973, the charges against him having been fabricated by his wife and

lawyers acquainted with her.

        He further claims that the facts concerning the charges of

aggressive behaviour during his detention were also wrongly established

and that it had not been him but the prison staff who had been

aggressive.  He further challenges the relevant court proceedings on

various grounds under Article 6 of the Convention:  the judges and

experts were allegedly biased against him, he could not defend himself

properly, the indictment was not served upon him, he was unable to

appoint a lawyer of his own choice, he was deprived of his files and

excluded from the trial in January 1979, and his requests for further

expert evidence, including a faculty opinion, were rejected at the

trial in April 1980.  Finally he was led by false promises to withdraw

his plea of nullity against the judgment of 9 April 1980.

        Under Article 5 of the Convention the applicant submits that

he was unlawfully deprived of his liberty for 13 years.  He claims that

his convictions in 1972 and 1973 were not lawful (Article 5 para. 1

(a)) and that, in particular, his detention after completion of the

sentences resulting from these convictions lacked any justification.

Moreover, he was detained on remand from 13 May 1977 until 9 April

1980, but when this measure was ordered there was no reasonable

suspicion of his having committed any criminal offence nor any reason

to assume that he would abscond or commit further offences (Article 5

para. 1 (c)).  The warrant of arrest was not served upon him (Article

5 para. 2) and he was not promptly brought before a judge, nor released

or brought to trial within a reasonable time (Article 5 para. 3).

Because he was deprived of writing material he was prevented from

submitting written requests for release and was compelled to make such

requests orally to the visiting judge. However, all these requests were

either suppressed or disregarded and no decision was taken on them

(Article 5 para. 4).  The same applied to his requests for compensation

(Article 5 para. 5).

        Insofar as his detention in psychiatric hospitals is concerned,

the applicant contends that it was totally unjustified as he was never

a person of unsound mind.  His allegedly vexatious behaviour which was

considered equivalent to a mental illness was, in his opinion, no more

than the legitimate exercise of his right of defence against the

various unlawful measures taken against him.  The applicant finally

argues in this context that his incapacitation was unlawful as under

Section 13 of the Incapacitation Act (Entmündigungs- ordnung) such a

measure could not be taken against a foreign national.

        The applicant raises numerous complaints concerning the

conditions of his detention:

        He complains under Article 2 of the Convention that, due to

acts of physical ill-treatment and lack of appropriate medical care,

his life was put in danger on frequent occasions.

        He further complains under Article 3 of the Convention that he

was subjected to inhuman and degrading treatment or torture by the

conditions of his detention.  In this context he again complains of

physical and mental ill-treatment, isolated detention under appalling

conditions for lengthy periods, being kept with fetters in a security

cot for a considerable time, lack of appropriate medical care,

compulsory feeding during lengthy periods of hunger-strike (altogether

more than three years) and compulsory treatment with neuroleptic drugs

against his will during most of the time of his detention in the

psychiatric hospital of Vienna.

        The applicant considers that during his detention he was

without any rights and thus practically kept in slavery contrary to

Article 4 para. 1 of the Convention.  Between October 1982 and June

1984 he was subjected to a work therapy in the psychiatric hospital and

received a very low renumeration.  He stopped working when he learnt

that his guardian had seized the money (AS 3900.-) in order to cover

his fees. In the applicant's view this situation amounts to compulsory

labour contrary to Article 4 para. 2 of the Convention.

        The interference with his private life and correspondence

amounted in his view to a breach of Article 8 of the Convention which

was not justified by paragraph 2 of this provision.  He further submits

that the interference with his correspondence and the withholding of

his files also affected his rights under Article 6 of the Convention.

Insofar as the interference with correspondence concerned his

communications with the Commission he invokes Article 25 para. 1 of the

Convention.

        The applicant alleges that in prison he was not allowed to

participate in religious ceremonies and that therefore his right under

Article 9 was violated.

        He sees further interferences with his rights under Article 9

(freedom of thought and conscience) and Article 10 of the Convention

(freedom of expression) in the fact that his attempts to criticise the

various measures taken against him led to serious sanctions.  Article

10 (freedom of information) is also invoked insofar as he was kept for

lengthy periods in complete isolation, without radio, television, books

and journals.  By the same measures he was deprived of his right of

education under Article 2 of Protocol No. 1 of the Convention.

        He had no possibility to complain effectively of the various

measures taken against him and therefore alleges a breach of Article

13 of the Convention.

        The measures in question were allegedly taken against him

because of his race, national origin or language, and were thus

discriminatory contrary to Article 14 of the Convention.  He further

claims that they were abuses of the Austrian State contrary to Articles

17 and 18 of the Convention.

        Finally, the applicant complains under Article 1 of Protocol

No. 1 of the Convention that his business was unjustifiedly closed down

and declared bankrupt after his imprisonment, and under Article 2 para.

2 of Protocol No. 4 of the Convention that he was prevented from

leaving the Austrian territory.  From 1964 until 1970 he was refused

an alien's passport so that he could not travel abroad.  In 1979/1980

he tried to arrange his repatriation to Hungary, but this was made

impossible by the Austrian authorities who insisted that in Hungary he

should also be detained in a mental hospital.  The Hungarian

authorities refused to take him back under this condition.

PROCEEDINGS BEFORE THE COMMISSION

        The applicant's first letter concerning the present case dates

from 27 November 1978.  That letter was written on brown paper bags.

The applicant complained, inter alia, that in the prison of the

Regional Criminal Court of Vienna where he was detained at that time

he was refused writing material even for the purpose of addressing the

Commission.  He also referred to earlier letters written on wrapping

paper and stated that the prison authorities had probably failed to

forward these letters to the Commission as he had received no reply.

The letter of 27 November 1978 concluded by a postscriptum according

to which a prison warden had refused to accept the letter for delivery

in the morning of 28 November 1978.

        This letter was received by the Commission on 31 January 1979.

The Secretariat's reply of 9 February 1979 referred to the obligation

of the Contracting States under Article 25 para. 1 of the Convention

not to hinder in any way the effective exercise of the right of

individual petition.  The applicant was further reminded of the

requirement of exhaustion of domestic remedies under Article 26 of the

Convention and invited to submit documents showing that he had complied

with this requirement.

        The applicant wrote again to the Commission on 1 December 1979

and 24 April 1981, each time complaining of interferences with his

correspondence and the withholding of his files.  He was again invited

by the Secretariat to submit documents showing that he had exhausted

domestic remedies.

        On 2 June 1981 the applicant wrote that he was unable to submit

any decisions as his files continued to be withheld from him.  The

Commission's Secretary replied on 25 June 1981 that under Rule 38 of

the Commission's Rules of Procedure it was normally the applicant's

duty to submit the necessary documentation.  If the applicant could not

produce the documents himself, he should ask his defence counsel or

guardian.  Only if this was not possible either could a registration

of the case without any documents be considered. An application form

was sent to the applicant who was reminded of the authorities' duty not

to hinder the effective exercise of his right of individual petition.

        The applicant submitted the completed application form on 2

July 1981.  However, the case was not immediately registered because

the applicant had used abusive language.  On 31 July 1981 he was

warned that, for this reason, the Commission might consider the

application as abusive within the meaning of Article 27 para. 2 of the

Convention and a new application form was accordingly sent to the

applicant in order to give him an opportunity to set out his complaints

in proper form.

        On 3 February 1983 the applicant insisted on registration of

the case on the basis of the application form which he had already

submitted.  On 22 February 1983 he was again invited to complete the

form in good order.  On 2 March 1983 he complained of the continued

refusal to register his case stating that the second application form

had been taken away by the prison administration.

        The matter was then submitted to the Commission's President

who, on 14 July 1983, ruled that the applicant should be provided with

a new application form which he should complete in good order having

regard, in particular, to any further developments in the case. The

applicant was again reminded of the authorities' duty not to hinder the

effective exercise of his right of individual petition, a duty which

obliged the Austrian authorities to allow him to correspond with the

Commission and to grant him access to the necessary files.

        The applicant submitted the application form on 31 July 1983

without any documents, claiming that they were still being withheld

from him.  The form reached the Commission on 22 August 1983 and the

case was registered on the same day under file No. 10533/83.

        On 14 October 1983 a member of the Commission, acting as

Rapporteur, after carrying out a preliminary examination of the case,

decided to request information from the respondent Government in

accordance with Rule 40 para. 2 (a) of the Rules of Procedure.  In

particular, the Government were asked whether, and if so, for what

reasons, the applicant had at any time been restricted or otherwise

hindered in his correspondence with the Austrian authorities and/or the

Commission.  The Government were further requested to state whether it

was true that any documents which could be relevant to the applicant's

complaints before the Commission were not available to him, and if so,

on which legal basis they were being withheld.  In that case the

Government were requested to submit the said documents to the

Commission.

        The Government replied to the request for information on 13

December 1983, stating, inter alia, that during his detention in the

Regional Court's prison and in the special prison of Mittersteig the

applicant had not been hindered in exercising his right to file

applications by interfering with his correspondence or by retaining

relevant documents.  The alleged restriction of his right to lodge

applications and the alleged interference with his correspondence might

perhaps be felt by the applicant to arise from the fact that his

correspondence must first be shown to his guardian in view of his

partial incapacitation.  The applicant had repeatedly been reminded of

his duty under Section 92 para. 3 of the Criminal Law Enforcement Act

to pay the postal charges for his correspondence with the Commission.

As he had refused to bear these postal charges the correspondence

concerned could not be dispatched.  The documents kept

by the applicant were extremely voluminous (11 cardboard boxes, each

weighing between 25 and 30 kilogrammes) and therefore could not be

stored in his cell.  They were kept in a special locked store-room.

Specific documents could always be handed out to him at his request,

but he had insisted on having all 11 boxes.

        In his comments of 31 December 1983, the applicant maintained

that, contrary to the Government's assertions, he was still being

hindered in the exercise of his right of correspondence, including

correspondence with the Commission.  He further submitted that the

Government themselves had admitted that he had not been granted access

to his documents.

        In a letter of 21 April 1984, the applicant stated again that

the authorities continued to refuse him access to these documents.

        On 21 May 1984 the Commission's Rapporteur, noting that it

seemed impossible to obtain the relevant documents through the

applicant, made a second request for information to the respondent

Government, asking them under Rule 40 para. 2 (a) of the Commission's

Rules of Procedure to submit a full documentation of the case.

        The Government submitted this documentation which fills 13

Leitz files on 11 July 1984, and the applicant submitted certain

comments on 26 July and 25 October 1984.

        Thereafter, the applicant continued to write very frequently

to the Commission, raising various additional complaints even after his

release from prison.

THE LAW

1.      The applicant complains of various measures taken against him

by the Austrian authorities since May 1972 when he was arrested in

criminal proceedings which led to his first conviction in November

1972.  Those proceedings were the subject of his earlier application

No. 6398/73.  Insofar as he now again complains of those proceedings,

the matter is substantially the same as that which has already been

considered by the Commission in the previous case.  The applicant has

not submitted any new relevant information in this respect, and this

part of the application must accordingly be rejected under Article 27

para. 1 (b) (Art. 27-1-b) of the Convention.

2.      The applicant has further submitted complaints under various

provisions of the Convention which relate to facts which occurred

between 1972 and 1978: the second criminal proceedings taken against

the applicant in 1973, his detention as a convicted prisoner until 13

May 1977, the proceedings concerning his subsequent detention on remand

and his provisional detention in an institution for mentally deranged

offenders, the incapacitation proceedings taken in 1975 - 1977, the

bankruptcy of the applicant's firm following his imprisonment, and

finally the restrictions on the applicant's freedom to leave the

country in the period between 1964 and 1970.

        However, the Commission is not required to decide whether or

not the facts alleged by the applicant in these respects disclose any

appearance of violations of the Convention, as Article 26 (Art. 26) of

the Convention provides that the Commission "may only deal with the

matter ... within a period of six months from the date on which the

final decision was taken".  The final decisions concerning the above

matters were given at various dates which antedate the applicant's

first letter to the Commission of 27 November 1978 by more than six

months.  Furthermore, an examination of the case does not disclose the

existence of any special circumstances which might have interrupted or

suspended the running of the six-month period.

        It follows that these parts of the application have been

introduced out of time and must be rejected under Article 27 para. 3

(Art. 27-3) of the Convention.

3.      The applicant has also submitted a number of complaints which

relate to facts which occurred after 27 May 1978, i.e. less than six

months before the introduction of the application.  In particular he

has complained that the third criminal proceedings taken against him

which resulted in the Regional Court's judgment of 9 April 1980

violated Article 6 (Art. 6) of the Convention in several respects.

        However, the Commission is not required to decide whether or

not the facts alleged by the applicant in respect of those criminal

proceedings disclose any appearance of a violation of this provision

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 recognised rules of international law.

        In the present case the applicant withdrew his plea of nullity

against the Regional Court's judgment and has, therefore, not exhausted

the remedies available to him under Austrian law.  Moreover, an

examination of the case 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.  In particular there is no

indication that the applicant's plea of nullity against the above

judgment was invalid, or that it was withdrawn in view of doubts as to

its validity.  Nor is there any indication that the applicant, who in

the above proceedings was represented by counsel, was unable to pursue

his remedy against the Regional Court's judgment due to his

incapacitation.  His allegation that he was led by false promises to

withdraw his plea of nullity has not been substantiated.

        It follows that the applicant in this respect has not complied

with the condition as to the exhaustion of domestic remedies and this

part of the application must therefore be rejected under Article 27

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

4.      Finally, the applicant's remaining complaints - in particular

his complaints that his provisional and definitive detention as a

mentally deranged offender was unjustified and contravened Article 5

(Art. 5) of the Convention and that the conditions under which he was

detained violated various other provisions of the Convention, including

Articles 3, 6, 8, 10 and 13 (Art. 3, 6, 8, 10, 13) - cannot be rejected

as having been filed out of time insofar as the period after

27 May 1978 is concerned.  The Commission considers that further

information is required in this respect and accordingly reserves the

examination of the admissibility of this part of the application.

        For these reasons, the Commission

1.      DECLARES INADMISSIBLE THE APPLICANT'S COMPLAINTS

        a) INSOFAR AS THEY ARE ESSENTIALLY THE SAME AS

           THOSE CONSIDERED IN APPLICATION NO. 6398/73;

        b) INSOFAR AS THEY RELATE TO FACTS PRIOR TO

           27 MAY 1978;

        c) INSOFAR AS THEY CONCERN THE CRIMINAL PROCEEDINGS

           WHICH RESULTED IN THE REGIONAL COURT'S JUDGMENT

           OF 9 APRIL 1980 BY WHICH THE APPLICANT WAS

           COMMITTED TO AN INSTITUTION FOR MENTALLY DERANGED

           OFFENDERS;

2.      DECIDES TO ADJOURN THE EXAMINATION OF THE

        APPLICANT'S REMAINING COMPLAINTS RELATING TO

        FACTS AFTER 27 MAY 1978.

Secretary to the Commission               President of the Commission

   (H.C. KRÜGER)                               (C.A. NØRGAARD)