CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 15 décembre 1969

.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   A. Whereas the facts originally presented by the applicant may be summarised as follows:   The applicant is an Austrian citizen, born in 1923, and at present detained in the Stein prison.   The applicant was arrested on 7th April, 1966, on suspicion of fraud. It appears, however, that by then the trial had already been opened before the Regional Court (Kreisgericht) of Wiener Neustadt on five occasions, the first time in June 1965, but had been repeatedly adjourned. The applicant claimed that during the following hearing which took place on 15th April, 1966, the Presiding Judge, Landgerichtsrat Dr. A., showed a hostile attitude towards him. The applicant then requested that A. should be replaced by another judge, but his request was refused by the President of the Regional Court on 10th June, 1966.   The applicant renewed his challenge, however, on the grounds that A. had, inter alia, threatened to impose the maximum penalty if the applicant did not make a confession. The applicant also alleged that A. had tried to influence the lay assessors (Schöffen) in their search for the truth, made defamatory remarks about the applicant and his family and committed several other irregularities. The applicant's challenge was dismissed as unfounded on 8th July, 1966.   The trial finally took place on 30th July, 1966, and the applicant complained that A gave repeated proof of his hostility against the applicant and his determination to convict him. He accused A. of having, together with a senior police officer, forged evidence against him. In particular, he alleged that a certain jacket and a shooting club badge belonging to him, were falsely presented as a "uniform" worn by him on one occasion in order to create the impression of a forester, although he had never worn them together.   The applicant also complained of the refusal to call a number of witnesses requested by him, some of whom had given evidence during the previous hearings. He maintained that several witnesses made false statements in the witness-box.   The Court convicted the applicant on nine counts of fraud and attempted fraud and sentenced him to eight years' severe imprisonment (schwerer Kerker).   The applicant lodged both a plea of nullity (Nichtigkeitsbeschwerde) and an appeal (Berufung) against his conviction and sentence. He submitted that his appointed counsel, contrary to his explicit instructions, failed to raise certain grounds in his plea of nullity and thus the Supreme Court (Oberster Gerichtshof)   was prevented from considering these grounds which, in the applicant's opinion, should have led to a quashing of the conviction.   On 24th January, 1967, the Supreme Court rejected the applicant's plea of nullity. In particular, the Court found that the lower court had been justified in not admitting the three witnesses referred to in the plea of nullity as either they were irrelevant or the statements recorded at previous hearings showed that the failure to call these witnesses had not interfered with the applicant's facilities to defend himself. The Court reduced the term of imprisonment, however, to five years and six months.   The applicant laid criminal charges against A. and the senior police officer concerned for having forged evidence and against two witnesses for perjury. According to the applicant,   these charges were rejected by the Public Prosecutor and a subsequent application for a judicial decision under Article 48 of the Austrian Code of Criminal Procedure (Strafprozessordnung) was to no avail. The applicant claimed that although he had offered sufficient evidence, these charges were not proceeded with in order to conceal that he had been wrongly convicted.   In February, 1967, the applicant made an application for retrial (Wiederaufnahme) which was refused by the Regional Court. His appeal against this decision was dismissed by the Court of Appeal (Oberlandesgericht) of Vienna on 26th September, 1967. The applicant submitted that by refusing his application the Courts violated the relevant provisions of Austrian law as he had clearly established grounds that would entitle him to a retrial.   The applicant renewed his request to the Regional Court in October, 1967. According to him, he asked at the same time that his case should be referred to another court as he considered that the Wiener Neustadt Court was not impartial.   Furthermore, he requested that none of the judges who had previously dealt with his case should be allowed to handle his application for retrial. He maintained that he was assured by the President that this would not happen. The applicant complained that in spite of this assurance, the case was subsequently assigned to Dr. C., a judge whom the applicant had previously challenged. Dr. C.'s own request that the case should be assigned to somebody else was to not avail. On 28th June, 1968, the applicant's application for retrial was dismissed.   The applicant appealed to the Court of Appeal on the grounds that his application had wrongly been refused and that Dr. C. had not been competent to handle it. His appeal was rejected, however, on 29th October, 1968.   The applicant complained of the proceedings in connection with his application and alleges that the officials of the Regional Court intentionally suppressed all his attempts to obtain justice, knowing that their decisions would always be upheld by the Court of Appeal.   The applicant stated that already in January 1967, he applied to the President of the Regional Court for writing paper in order to lodge an application with the Commission. His repeated requests were, however, refused by the President on the ground that such application could only be made if all domestic remedies had been exhausted, including an application for retrial. The applicant maintained that, as a result, he had been unable to lodge his application with the Commission at an earlier date. He had furthermore been unaware of the time-limit laid down in Article 26 of the Convention and had relied on the information given by the President.   The applicant alleged violations of Articles 3, 5, paragraph (1), 6, paragraphs (1), (2) and (3) (a) - (d), and 13 of the Convention, and claimed compensation.   B. Whereas the proceedings before the Commission may be summarised as follows:   On 16th July, 1969, the Commission examined the application and noted, in particular, the applicant's allegation that he was refused writing paper for the purpose of lodging an application with the Commission on the ground that such application could only be made if all domestic remedies had been exhausted, including an application for retrial. The Commission considered that this situation raised an issue of interference with the right of petition guaranteed under Article 25, paragraph (1) in fine, of the Convention and it accordingly decided to invite the respondent Government to submit its comments in writing on this point.   The respondent Government submitted its written comments on the issue concerned on 26th September, 1969, and the applicant was then invited to make submissions in reply.   This reply was given in a letter of 9th October, 1969, comprising 23 handwritten pages and a number of annexes. However, the larger part of the applicant's submissions relates to the criminal proceedings and he repeats, in great detail, his previous allegations that Dr. A., the judge presiding at his trial, and the police committed numerous irregularities and that his conviction was entirely based on false evidence.   C. Whereas the submissions of the parties as regards the issue under Article 25, paragraph (1) in fine, of the Convention may be summarised as follows:   I. As to the facts   1. The respondent Government submits that pending trial and appeal the applicant was in detention on remand in the Regional Court Prison of Wiener Neustadt between 7th April, 1966 and 27th January, 1967. During that time, the applicant addressed more than 30 applications, some of them over ten pages long, to various authorities. Nevertheless, he complained on 19th August, 1966, that no writing paper was being put at his disposal to enable him to write applications to judicial authorities, although by that time he had already written at least 16 applications. On 23rd August, 1966, Dr. A. ruled that the applicant was to receive on request up to ten sheets of paper at a time, in order to enable him to make written submissions, to lodge complaints and lay criminal charges, but on condition that the purpose stated by the applicant should be noted down on each sheet before handing it over to him.   According to a statement of the President of the Wiener Neustadt Regional Court, that court during the period of X's detention at Wiener Neustadt was headed by Dr. D., who died on 3rd June, 1967. As the alleged refusal of writing paper by the President of the Court, which the latter allegedly justified by incorrect assertions as to the prerequisites for lodging an application to the Commission of Human Rights, was never embodied in writing - not, in any case, in the available files - it was impossible in view of Dr. D's death to directly ascertain whether or not this allegation is true.   However, from the fact that the applicant entered into a voluminous correspondence with various authorities, it is evident that he was certainly not refused writing paper to compose an application to the Commission. Rather, the applicant's querulous personality, which is apparent from his many applications and complaints, suggests that he is only using the above allegation as an excuse for the belated submission of his application. It may be mentioned in this context that all the applications, complaints against his detention (Haftbeschwerden), complaints alleging neglect of their duties by officials (Aufsichtsbeschwerden), criminal charges, and petitions for retrial filed by the applicant - who since his transfer to the Stein Prison has continued to write lengthy applications - have been dismissed even though all the legal remedies were exhausted in each instance. This shows the untenability of the applicant's assertion that because of the incorrect legal advice he alleges he was given, he failed to lodge his application to the Commission within the prescribed period of time. As neither the fact that his applications and petitions were dismissed nor the written and oral legal information given him on these occasions have discouraged the applicant from repeating his demands again and again, it is not likely that the alleged incorrect legal advice would have discouraged him from lodging an application under the Convention within the time-limit prescribed.   2. In his reply, the applicant has supplemented his previous submissions regarding the facts. He states that he was obliged to lodge a number of appeals and complaints in order to protect himself against injustice. Judge A. allegedly tried to prevent him from this by denying him paper, but on appeal, the applicant obtained permission to receive up to ten sheets at a time in order to lodge domestic appeals. In January 1967, he applied for fifteen sheets of paper in order to lodge a complaint with the Commission. When no decision was taken on this request, the applicant appealed to the President of the Regional Court, Dr. D.   According to the applicant, the President then informed him on 26th January, 1967,   that it lay within A.'s discretion to leave without consideration his request for paper in order to write to the Commission. The President also informed him that his request could not be granted unless all domestic remedies had been exhausted according to the provisions quoted by the President. This condition would only be satisfied if the applicant applied for a retrial and, if such application was refused, he also appealed against the refusal. Allegedly the President had meanwhile become aware of "manipulations" by A. and the applicant was made to believe that this would be sufficient basis for a retrial.   Relying on the legal advice given by the President, the applicant therefore immediately applied for twenty sheets of paper in order to lodge an application for retrial which he was granted. However, on the following day, i.e. on 27th January, 1967, the applicant was transferred to Stein without having received the sheets concerned. The applicant alleges that he later realised that he had intentionally been misled by the President in order to forfeit the possibility to appeal to the Commission, one of the many swindles whereby justice was denied and the true facts were distorted.   Accordingly, the applicant lodged an application for retrial on 16th February, 1967, and requested that it should not be dealt with by A. against whom he had, in the meanwhile, laid criminal charges.   His application was nevertheless rejected by A. on 13th April, 1967, in violation of the relevant provisions of the Code of Criminal Procedure. In the decision, the applicant was falsely accused of defamation by A. who, also knowing it to be untrue, stated that the conditions for a retrial were not satisfied.   The applicant's appeal was rejected on false grounds by the Court of Appeal in Vienna on 26th September, 1967, again showing the intention of the Republic of Austria to conceal the truth and the crimes committed against the applicant and to cover its own criminal activities.   In the circumstances, the applicant must therefore be considered to have complied with the six months' rule.   The applicant alleges repeatedly that the observations made by the Austrian Government are obviously intended to deceive the Commission and to cover up the irregularities committed against him.   II. Arguments as to the legal issue concerned   1. The respondent Government has made the following submissions in this respect.   (a)   According to the information available to the Government, it was in his letter of 1st April, 1968 - received by the Commission on 16th April, 1968 -   that the applicant for the first time made the allegation that he had been refused writing paper for an application to the Commission.   Taking this date as a starting point, the question must be considered whether or not the complaint to the effect that Article 25, paragraph 1, in fine, of the Convention was violated to the detriment of the applicant satisfies the conditions of Article 26 of the Convention. Under this clause of the Convention, an applicant can only lodge an application after all domestic remedies have been exhausted, and within a period of six months. According to the constant practice of the Commission, it is immaterial in this context whether or not these stipulations were known to the applicant (see Fawcett, The Application of the European Convention on Human Rights, p. 303).   The refusal of writing paper for an application to the Commission alleged by the applicant occurred, according to the information available, early in 1967. No legal remedy was used against this alleged refusal. Therefore, the application does not satisfy the conditions laid down in Article 26 of the Convention,   both because the domestic remedies were not exhausted and because the time-limit of six months was exceeded, and it should therefore be rejected under Article 27, paragraph (3), of the Convention.   (b)   Apart from the fact that the application does not meet the conditions laid down in Article 26 of the Convention, it is also inadmissible ratione materiae under Article 27, paragraph 2, of the Convention.   The subject of the application   is an alleged violation of Article 25, paragraph 1, in fine, of the Convention. Under this provision, the Contracting Parties undertake not to hinder in any way the effective exercise of the right to lodge individual petitions. This undertaking by the Contracting Parties is to be found in Section III of the Convention, which contains all provisions concerning the European Commission of Human Rights. The rights and freedoms which individuals have under the Convention, on the other hand, are contained in Section I of the Convention, as its Article 1 states explicitly.   Given the general principles underlying the Convention, and the clear wording of Article 1, it is impossible to derive from Article 25, paragraph 1, last sentence, any individual right that might be the subject of an individual petition under Article 25. In this context, it is appropriate to emphasise the fact that under Article 25 of the Convention, an individual petition may only be lodged on the ground of "a violation .... of the rights set forth in this Convention", whereas under Article 24, a State may complain against "any alleged breach of the provisions of the Convention".   Besides, another reason why this provision in Article 25 of the Convention has to be interpreted restrictively is that the establishment of the European Commission of Human Rights as a supranational body designed to look into the activities of the national authorities represents an almost revolutionary act in international law.   In this connection, the Government refers to statements by several writers in order to support its view that the obligation arising from Article 25, paragraph (1), in fine, cannot be equated to that of the rights laid down in Section I of the Convention.   (c)   In any event, it must be emphasised that Article 25, paragraph (1), in fine, cannot constitute a fundamental human right, but rather, at best, a right comparable to Article 13 of the Convention. With regard to Article 13 of the Convention the Commission has taken the view that a violation of this provision of the Convention presupposes a violation of the fundamental rights safeguarded in Articles 2 to 12 of the Convention (see e.g. the Commission's decisions No. 472/59 Volume III, p. 206 and No. 1092/69, Yearbook, Vol. V, p. 210).   In an argumentum a majori ad minus, it must be concluded from these decisions of the Commission that a violation of Article 5, paragraph (1), in fine, too, may not be regarded as having occurred unless it is connected with an actual violation of Articles 2 to 12 of the Convention. This is so because, logically, it would certainly not be defensible to accord more significance to Article 25, paragraph 1, in fine, which is not included in Section I of the Convention, than to Article 13, and hence, under Article 1 of the Convention, contains one of the rights and freedoms safeguarded by the Convention.   (d)   In view of the fact that the Commission in a decision of 6th July, 1959, No. 369/58 (Yearbook, Vol. II, p. 377) found that the undertaking contained had not been broken because the applicant in fact approached the Commission, and was able to present his complaint fully and in detail, it would, in any event, be worthwhile to examine the question whether it may not be true also for the present case in spite of the alleged refusal of writing paper the applicant did have the opportunity to approach the Commission.   In conclusion, the respondent Government asks the Commission:   to declare the present application inadmissible by virtue of Article 27, paragraph 2, of the Convention, for being incompatible with the provisions of the Convention; in eventu   to reject the application by virtue of Article 27, paragraph 3, as being inadmissible under Article 26 of the Convention; in eventu   to declare the application inadmissible by virtue of Article 27, paragraph (2), of the Convention, for being manifestly ill-founded.   2. The applicant has not, in his reply, entered into a discussion of the points raised by the Government with the exception that he argues that he cannot be held responsible for his failure to exhaust any remedies in respect of the refusal to provide him with writing paper. The reason for this failure was that the refusal was "cunningly based on intentionally false legal advice". In any event, no remedy was available to him in this respect, and all his previous complaints had been dealt with in a way typical of the Republic of Austria, i.e. rejected on the false ground that he was a querulant.   THE LAW   Whereas the Commission has first considered the issue under Article 25, paragraph (1) (Art. 25-1), in fine, of the Convention on which the parties have been invited to submit their comments in writing; whereas, in accordance with the said provision of Article 25 (Art. 25), those Contracting Parties, such as Austria, which have recognised the right of individual petition to the Commission under Article 25 (Art. 25) "undertake not to hinder in any way the effective exercise of this right"; whereas the Commission has both the competence and, indeed, the duty to examine, either ex officio or at the request of the applicant concerned, a situation which gives rise to a question of undue interference with the effective exercise of the right of petition;   Whereas it is, however, to be observed that this issue raises a question exclusively under Article 25, paragraph (1) (Art. 25-1), in fine, of the Convention and does not concern one of the rights and freedoms guaranteed under Section I of the Convention; whereas the Commission has previously held that it is not called upon to decide whether an application, insofar as it raises such a complaint, is admissible or not;   Whereas the general rules of admissibility and, in particular, the provisions concerning the exhaustion of domestic remedies and the six months' time-limit as set out in Article 26 (Art. 26), are not therefore applicable (see e.g. the decision of 16th February, 1965, on Application No. 1765/63, G. v. Austria);   Whereas, the applicant has complained that he was originally refused writing paper for the purpose of lodging an application with the Commission on the ground that, before he could have recourse to the Commission, he must first exhaust all domestic remedies available to him, including an application for retrial;   Whereas the Commission has considered the substance of the applicant's allegations in this respect; whereas, however, even assuming that these allegations were true, it is to be observed that the applicant has, in fact, made substantial submissions and presented his case in a completely adequate manner; whereas in these circumstances the Commission has come to the conclusion that the applicant has not been hindered in the effective exercise of the right to lodge an application as guaranteed in Article 25, paragraph (1) (Art. 25-1), in fine, of the Convention;   Whereas, with regard to the applicant's complaint concerning his conviction and sentence, it is to be observed that Article 26 (Art. 26) of the Convention provides that the Commission may only deal with a matter "within a period of six months from the date on which the final decision was taken"; whereas the Commission has already held in a number of previous cases that the "final decision" within the meaning of Article 26 (Art. 26) refers solely to the final decision involved in the exhaustion of all domestic remedies according to the generally recognised rules of international law (see e.g. Application No. 918/60, N. v. Federal Republic of Germany - Collection of Decisions, Vol. 7, p. 108);   Whereas, in the circumstances of the present case, the applicant's petitions for a retrial of his case were not an effective and sufficient remedy and does not, therefore, constitute a domestic remedy under the generally recognised rules of international law; whereas it follows that the decisions regarding these petitions cannot be taken into consideration in determining the final decision for the purpose of applying the six months' time-limit laid down in Article 26 (Art. 26); whereas, therefore, the final decision regarding the applicant's conviction and sentence is the decision of the Supreme Court which was given on 24th January, 1967;   Whereas the present application was not submitted to the Commission until 12th November, 1967, that is, more than six months after the date of this decision;   Whereas, however, the applicant contends that he was prevented from introducing his application within the said time-limit as a result of the refusal to provide him with writing paper and also because he relied on a statement by the President of the Regional Court to the effect that he was obliged to make an application for retrial before he could seize the Commission; whereas, again on the assumption that the applicant's allegations are true, this gives rise to a question as to whether, in the special circumstances of the present case, the running of the six months' period should be regarded as having been interrupted or suspended;   Whereas the Commission does not find it necessary to rule on this question as, in any event, 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 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 rights and freedoms limitatively listed in the Convention; whereas, in this respect, the Commission refers to its decisions Nos. 458/59 (X. v. Belgium - Yearbook, Vol. III, p. 233) and 1140/61 (X. v. Austria - Collection of Decisions, Vol. 8, p. 57); and whereas there is not appearance of a violation in the proceedings complained of; whereas it follows that this part of the application is 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 claim for a retrial and the court proceedings concerned, it is to be observed that the Convention, under the terms of Article 1 (Art. 1), guarantees only the rights and freedoms set forth in Section I of the Convention; and whereas, under Article 25, paragraph (1) (Art. 25-1), only the alleged violation of one of those rights and freedoms by a Contracting Party can be the subject of an application presented by a person, non-governmental organisation or group of individuals; whereas otherwise its examination is outside the competence of the Commission ratione materiae;   Whereas the right to a retrial is not, as such, included among the rights and freedoms guaranteed by the Convention; and whereas, in accordance with the Commission's constant jurisprudence, proceedings concerning applications for retrial fall outside the scope of Article 6 (Art. 6) of the Convention (see Applications Nos. 864/60, X. v. Austria - Collection of Decisions, Vol. 9, p. 17 and 1237/61, X. v. Austria - Yearbook, Vol. V, p. 96); whereas it follows that this part of the application is incompatible with the provisions of the Convention within the meaning of Article 27, paragraph (2) (Art. 27-2), of the Convention;   Now therefore the Commission   1. DECLARES THIS 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