CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 30 mai 1968

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }  THE FACTS   Whereas the facts presented by the Applicant may be summarised as follows:   The Applicant is an Austrian citizen, born in 1916 and residing in Vienna.   From his statements and from documents submitted by him it appears that, on .. April, 1966, he was arrested on suspicion of having committed fraud (Betrug) and defamation (Verleumdung) and remanded in custody in accordance with Articles 175, paragraph (1) No. 4, and 180, paragraph (1), of the Code of Criminal Procedure (Strafprozessordnung).   He states that on .. April, 1966, he was taken before the competent investigating judge (Untersuchungsrichter). Subsequently, he made an application to the Regional Court (Landesgericht) at Klagenfurt for his release pending trial. This application was dismissed on .. May; 1966, on the ground that there existed a danger of his absconding and committing further offences (Fluchtgefahr und Wiederholungsgefahr). The Applicant states that he lodged an appeal (Beschwerde) against this decision with the Judges' Chamber (Ratskammer) of the Regional Court at Klagenfurt which was dismissed on .. May, 1966, and that he lodged with the Court of Appeal (Oberlandesgericht) of Graz a further appeal (weitere Beschwerde) against the Judges' Chamber's decision. According to the Applicant, his further appeal was dismissed on .. June, 1966, the Court of Appeal deciding that although there existed no danger of his absconding, the danger of his committing further offences persisted. The Applicant then apparently made an appeal against this decision to the Supreme Court (Oberster Gerichtshof), which was rejected by the Court of Appeal of Graz on the ground that such appeal to the Supreme Court did not lie under Austrian law. The Applicant further states that he also complained to the Minister of Justice and the President of the Regional Court about his detention on remand and that the latter promised to examine his complaint.   It appears that, on .. September, 1966, the office of the Public Prosecutor (Staatsanwaltschaft) at Klagenfurt served on the Applicant the bill of indictment (Anklageschrift). He states that he submitted a list of witnesses whom he wished to have summoned to give evidence at the trial. This list was later supplemented by the names of further witnesses for the defence.   On .. November, 1966, the Applicant was brought to trial before the Regional Court of Klagenfurt sitting at Spittal/Drau. He states that only three of the witnesses named by him appeared in court. He also alleges that he was hindered in his defence. He explains that he had been in contact with a lawyer in Vienna who had invited him to send a statement concerning his case. However, the investigating judge at Klagenfurt had refused his permission to transmit this statement on the ground that the Applicant was not allowed to write any letter relating to the proceedings against him. The Applicant further explains that shortly before the trial he had been informed that another lawyer from Spittal had been appointed to represent him at the trial. This lawyer had then informed the Applicant that he was not able properly to defend him because he himself had just learned of his appointment. Consequently, the Applicant had prepared a seventeen page statement which he intended to deliver at the trial, but the presiding judge prohibited him from delivering this document and defending himself in person.   The Applicant states that, on .. November, 1966, the Regional Court decided to adjourn the case.   It appears that the matter was heard again on .. January, 1967. On that day the Regional Court of Klagenfurt convicted the Applicant for defamation an fraud and sentenced him to ten months' severe imprisonment with the additional penalty of "sleeping hard" (hartes Lager) once a month. The Applicant lodged with the Supreme Court a plea of nullity (Nichtigkeitsbeschwerde) alleging only that he was wrongly convicted (Article 281, No. 9a of the Code of Criminal Procedure). The Public Prosecutor's office, in turn, appealed (Berufung) against the sentence imposed by the Regional Court. On .. June, 1967, the Supreme Court rejected both the appeal and the plea of nullity.   The Applicant now complains that   -   his arrest and detention on remand violated the Convention. He alleges that insofar as the Court of Appeal had held that there was no danger of his absconding but only of his committing a further offence of defamation, his arrest and detention were unlawful as the Austrian Code of Criminal Procedure did not provide for detention on that ground. He further alleges that, by .. December, 1966, he had been in detention for eight months;   -   he was wrongly convicted and sentenced;   -   the Convention was violated in the court proceedings concerned in that he was hindered in his defence and his witnesses were not summoned and examined by the Regional Court.   He alleges violations of Articles 5, paragraphs (2) and (3), and 6, paragraph (3) of the Convention.   THE LAW   Whereas, insofar as the Applicant complains of his arrest and detention on remand, the Commission has had regard to Article 5, paragraph (1) (c) (Art. 5-1-c), of the Convention which permits 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";   Whereas it appears that the competent Austrian court made an order for the Applicant's arrest and detention on remand under the provisions of Articles 175, paragraph (1), No. 2 and 180, paragraph (1) of the Code of Criminal Procedure;   whereas the Commission is not competent to examine the question whether during those proceedings the domestic law was correctly interpreted and applied but is only concerned to satisfy itself that the Applicant's detention was not the consequence of some arbitrary action by the authorities;   whereas the Applicant has not produced any evidence indicating the existence of such arbitrary action;   whereas, therefore, the Commission finds that his detention was "lawful" within the meaning of Article 5, paragraph (1) (c), (Art. 5-1-c), of the Convention;   Whereas it follows that, in this respect, the Application is manifestly ill-founded and must be rejected in accordance with Article 27, paragraph (2) (Art. 27-2), of the Convention.   Whereas, in regard to the Applicant's complaints as regards the length of his detention on remand; the Commission had regard to his allegation that he was so detained for a period of eight months; whereas the Commission finds that an examination of the case as it has been submitted, including an examination made ex officio, does not disclose any appearance of a violation of the rights and freedoms set forth in the Convention and in particular in Article 5 (Art. 5); whereas it follows that this part of the Application is also manifestly ill-founded within the meaning of Article 27, paragraph (2)(Art. 27-2), of the Convention.   Whereas, in regard to the Applicant's complaints relating to his conviction and sentence an examination of the case as it has been submitted, including an examination made ex officio, does again not disclose any appearance of a violation of the rights and freedoms set forth in the Convention and especially in the Articles invoked by the Applicant;   whereas, in respect of the judicial decisions complained of, the Commission has frequently stated that in accordance with Article 19 (Art. 19) of the Convention its only task is to ensure observance of the obligations undertaken by the Parties in the Convention;   whereas, 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 the Commission considers that such errors might have involved a possible violation of any of the right and freedoms limitatively listed in the Convention;   whereas, in this respect, the Commission refers to its decisions Nos. 458/59 (X v. Belgium - Yearbook III, p. 233) and 1140/61 (X v. Austria - Collection of Decisions, Vol. 8, p. 57); and whereas there is no appearance of a violation in the proceedings complained of; whereas it follows that this part of the Application is again manifestly ill-founded within the meaning of Article 27, paragraph (2) (Art. 27-2), of the Convention;   Whereas, in regard to the Applicant's complaint that the Convention was violated in the court proceedings concerned, it is to be observed that, under Article 26 (Art. 26) of the Convention, the Commission may only deal with a matter after all domestic remedies have been exhausted according to the generally recognised rules of international law;   Whereas the mere fact that the Applicant has, in pursuance of Article 26 (Art. 26), submitted his case to the various competent courts does not constitute compliance with this rule;   whereas it is also required that any complaint made before the Commission and relating to lower courts or authorities should have been substantially raised before the competent higher court or authority;   whereas in this respect the Commission refers to its constant jurisprudence, e.g. decisions No. 263/57 (K v. Federal Republic of Germany - Yearbook I, p. 147), 788/60 (Austria v. Italy, ibid IV, p. 116) and 1103/61 (N. v. Belgium - ibid V. p. 168);   Whereas the Applicant had the possibility in his plea of nullity and appeal to the Supreme Court to invoke his right to a fair hearing and, in this connection, to rely upon the relevant provisions in domestic law including possibly Article 6 (Art. 6) of the Convention;   Whereas it appears that he has not availed himself of this possibility;   Whereas , furthermore, an examination of the case as it has been submitted, including an examination made ex officio does not disclose the existence of any special circumstances, such as a legal or factual impossibility or a justified impediment which might have absolved the Applicant according to the generally recognised rules of international law, from raising his complaints before the Supreme Court;   Whereas, therefore, the condition as to the exhaustion of domestic remedies laid down in Articles 26 and 27, paragraph (3) (Art. 26, 27-3), of the Convention has not been complied with by the Applicant.   Now therefore the Commission declares this application INADMISSIBLE