Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 10817/84

by Bruno MACHERHAMMER

against Austria

The European Commission of Human Rights sitting in private

on 4 May 1987, the following members being present:

MM. C. A. NØRGAARD, President

G. JÖRUNDSSON

S. TRECHSEL

B. KIERNAN

A. S. GÖZÜBÜYÜK

A. WEITZEL

J. C. SOYER

H. G. SCHERMERS

H. DANELIUS

G. BATLINER

Mrs G. H. THUNE

Sir Basil HALL

Mr. F. MARTINEZ

Mr J. RAYMOND, Deputy 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 August 1981

by Bruno Macherhammer against Austria and registered on

13 February 1984 under file No. 10817/84;

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

Rules of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant, an Austrian citizen born in 1931, is a retired

savings-bank employee resident in Linz. He considers himself one of

the disciples of Kirpal Singh, founder and leader of a religious sect.

In 1970, he was recruited by the Linz General Savings Bank

(Allgemeine Sparkasse). After having published an article in an

Austrian newspaper entitled "Our misery results from the banking

system" ("Die Banken sind unser Unglück") in July 1976, he was

dismissed by his employer in August 1976. Apparently his dismissal

became effective on 31 December 1976. It is unclear whether the

applicant instituted proceedings before the competent labour courts.

After his dismissal the applicant submitted petitions to

various public and private bodies. He also filed several complaints

with the Public Prosecutor's Office against the (then) Director of the

General Savings Bank and other persons.

In November 1979, the applicant instituted proceedings before

the Linz Regional Court (Landesgericht) against the Union of Private

Employees (Gewerkschaft der Privatangestellten) and the head of its

Legal Department, claiming damages for the losses suffered because of

the refusal by the Union to grant him security for legal expenses

in proceedings against his dismissal in 1976.

The Linz Regional Court found that the statement of claims was

confused. On that ground it ordered, on 17 December 1979, the

examination of the applicant's capacity to conduct proceedings

(Prozessfähigkeit) ex officio. The applicant's appeal (Rekurs)

against this decision was rejected by the Linz Court of Appeal

(Oberlandesgericht) on 7 July 1980.

Meanwhile, on 25 June 1980, the Linz District Court (Bezirks-

gericht) had ordered the opening of proceedings for placing the

applicant under guardianship (Einleitung des Entmündigungsverfahrens)

on the ground of mental disorder according to SS. 1 and 25 of the

Guardianship Act (Entmündigungsordnung). The applicant's appeal

(Rekurs) and his further appeal (Revisionsrekurs) were rejected by the

Linz Regional Court (Landesgericht) on 16 July 1981 and by the Supreme

Court (Oberster Gerichtshof) on 10 February 1982, respectively.

Thereupon, on 30 June 1982 the Linz District Court

(Bezirksgericht) decided to place the applicant under limited

guardianship (beschränkt entmündigt).

On 9 December 1983, the applicant lodged a petition with the

District Court for setting aside the Court's decision of 30 June 1982.

This petition was treated as an appeal (Rekurs) by the Linz Regional

Court and rejected on 18 July 1984 for having been lodged out of time.

In the meantime, the applicant had been arrested on

10 September 1982 and committed to a mental hospital (Anhaltung).

Apparently notice of the applicant's hospitalisation was given to the

Linz District Court, which, however, did not take any action.

Thereupon, the applicant was released on 29 October 1982.

Furthermore, a letter from the Commission's Secretariat sent

to the applicant's private address on 7 July 1983 was apparently

intercepted by the applicant's guardian, the Linz Welfare Office

(Wohlfahrtsamt) on 12 July 1983. No notice of this letter was given to

the applicant by the Welfare Office until on 4 November 1983 he was

provided with a copy after having learned, through further

correspondence with the Commission's Secretariat, about the existence

of this letter.

On 7 December 1984, the Linz District Court (Bezirksgericht)

declared that in view of an amendment to the Austrian Civil Code

(Allgemeines Bürgerliches Gesetzbuch - ABGB), which had entered into

force on 1 July 1984, the limited guardianship (beschränkte

Entmündigung) ordered on 30 June 1982 had been converted into a

curatorship (Sachwalterschaft) according to S. 273 para. 3 (3) ABGB.

At the same time the Court limited this curatorship to managing the

applicant's legal affairs and appointed Dr T., a lawyer practising in

Linz, as curator.

On 12 December 1984 the applicant apparently threatened the

head of the Regional Tax Office (Finanzlandesdirektion) for Upper

Austria. He was arrested on suspicion of attempt of aggravated

coercion (schwere Nötigung) under SS. 105 and 106 of the Austrian

Criminal Code (Strafgesetzbuch) and again committed to a mental

hospital. On 14 December 1984 a single judge of the Linz Regional

Court ordered the applicant's provisional hospitalisation. This

decision was confirmed by the Review Chamber (Ratskammer) of the

Regional Court on 20 March 1985 and upheld by the Linz Court of Appeal

(Oberlandesgericht) on 8 May 1985. After discontinuance of the

preliminary investigations, the Regional Court, on 21 June 1985, set

aside its order of 14 December 1984 and ordered the applicant's

immediate release.

By order of 22 December 1986 the Linz District Court

terminated the curatorship.

COMPLAINTS

The applicant complains about violations of the Convention in

general, invoking Articles 2 to 11 of the Convention. He considers

himself to be a victim of persecution for being a disciple of the sect

of Karpal Singh.

Additionally, invoking Article 6 of the Convention, he

complains that he was prevented from bringing an action against his

dismissal in 1976.

He also complains that his various informations lodged with

the Public Prosecutor's Office, hierarchical complaints, and other

protests were of no avail and that he was therefore deprived of

judicial protection.

The applicant further submits that he was illegally deprived

of his liberty as a result of his repeated hospitalisation at the

mental hospital, where he was forced to undergo medical treatment, in

violation of Articles 3 and 5 of the Convention.

He finally complains under Article 8 of the Convention of a

violation of his right to respect for his correspondence, as the

letter sent by the Commission's Secretariat on 7 July 1983 was not

handed over to him.

THE LAW

1. The Commission first observes that the applicant's capacity to

institute proceedings under Article 25 (Art. 25) of the Convention was not

affected by the decisions placing him under guardianship (cf. No.

1527/62, Dec. 4.10.62, Yearbook 5 pp. 238, 246).

The Commission has therefore examined the applicant's separate

complaints as they have been submitted by him.

2. The applicant claims to be a victim of persecution and

discrimination for being a member of a certain sect. However, he has

failed to show that there has been any interference by State

authorities with his right to freedom of religion as guaranteed by Article 9

(Art. 9) of the Convention, or any discrimination in the enjoyment of his

rights under the Convention, contrary to Article 14 (Art. 14) of the

Convention, on account of his affiliation to the Kirpal Singh sect. The

dismissal pronounced by a private savings bank on the ground of the expression

of ideas based on the applicant's religious convictions is not imputable to the

respondent State and cannot therefore be challenged before the Convention

organs.

Nor does it appear that the applicant was refused legal

protection by the courts against this dismissal. He did not pursue

the remedies available to him, apparently because his trade union

refused to provide him legal assistance for this purpose. However,

the union is again a private organisation whose actions do not engage

the State's responsibility under the Convention.

It follows that this part of the application, in so far as it

is not incompatible with the Convention ratione personæ, is manifestly

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

Convention.

3. The applicant's further complaint, concerning the proceedings

subsequently brought by him against the union concerned, raises the

question of the restriction of his right of access to court, as

guaranteed by Article 6 para. 1 (Art. 6-1) of the Convention, in view of doubts

as to his capacity to conduct proceedings. The Commission does not

find it necessary to determine this question. It notes that, in the

proceedings which led to the appointment of a guardian,

the applicant failed to appeal in time against that appointment.

He cannot therefore be considered as having exhausted the

domestic remedies in respect of this obstacle to the continuation of

the proceedings against the union. Consequently, the Commission is

also not required to decide whether the applicant's placement under

guardianship was in conformity with Article 8 (Art. 8) of the Convention or

whether the guardianship proceedings were conducted in conformity with

the requirements of Article 6 para. 1 (Art. 6-1) of the Convention.

It follows that this part of the application must be rejected under

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

Convention.

4. In so far as the applicant complains that he was twice

committed to a mental hospital, it appears that the domestic remedies

were effective each time and led to his eventual release. In these

circumstances the applicant can no longer claim to be a victim of a

violation of his Convention rights in this respect, and in particular

of his right under Article 5 (Art. 5) to liberty and security of person.

It follows that this part of the application is manifestly

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

5. In so far as the applicant further alleges that during

his hospitalisation he was subjected to inhuman treatment contrary to Article 3

(Art. 3) of the Convention, he has not shown that he exhausted any remedies.

This part of the application must accordingly be rejected under Article 27

para. 3 (Art. 27-3) in conjunction with Article 26 (Art. 26) of the Convention.

6. The applicant finally complains under Article 8 (Art. 8) of the

Convention that a letter addressed to him by the Secretariat was

withheld by his guardian. The Commission recalls that complaints

concerning interference with an applicant's correspondence with the Commission

must be considered under Article 25 para. 1 (Art. 25-1) in fine of the

Convention providing that a High Contracting Party who has recognised the right

of individual petition undertakes "not to hinder in any way the effective

exercise of this right". The Commission finds, however, that the applicant was

not in fact prejudiced, in the presentation of his case to the Commission, by

the withholding of the said letter.

For these reasons, the Commission

1. DECLARES THE APPLICATION INADMISSIBLE;

2. DECIDES TO TAKE NO FURTHER ACTION IN RESPECT OF THE

ALLEGED INTERFERENCE WITH THE EFFECTIVE EXERCISE OF

THE RIGHT OF INDIVIDUAL PETITION.

Deputy Secretary to the Commission President of the Commission

(J. RAYMOND) (C.A. NØRGAARD)

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MACHERHAMMER v. AUSTRIA

MACHERHAMMER v. AUSTRIA

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