CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 2 février 1971

.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, insofar as they are apparently not disputed, may be summarised as follows:   The applicant is a German citizen, born in 1931 and resident in Munich. At the time of the introduction of his present application he was being kept in detention on remand in the prison of the Regional Court at Wels in Upper-Austria. The applicant, who is a publisher of books dealing with cultural matters, is represented in the proceedings before the Commission by Rechtsanwalt Willy Osthues, a lawyer practising in Munich.   On 30 July 1969, the applicant was arrested by the Austrian police on suspicion of fraud and, on 31 July 1969, the Regional Court (Kreisgericht) of Wels decided to open a preliminary investigation against the applicant under Article 197 of the Austrian Penal Code (Strafgesetz) for cheque fraud (Scheckbetrug). The applicant was charged with having issued a number of uncovered cheques on the account of his Austrian bank at St. Wolfgang and of having cashed these cheques in Germany. He was accused of having thereby caused his Austrian bank to suffer a financial loss of more than 1,700,000 Austrian Schillings. By decision of 31 July 1969, the above court remanded the applicant in custody and he was detained in the prison of the Regional Court at Wels. The Court considered that the danger existed that the applicant might abscond, that he might commit further offenses, and that there was a considerable risk of collusion between him and other persons involved.   Upon his arrest the applicant indicated that he was not fit for detention since, in 1961, he had suffered from poliomyelitis which had resulted in his left arm and shoulder as well as his left leg and his right arm being permanently disabled. Thereafter he had suffered from spinal and chest diseases and had been under permanent medical care since 1961; in particular, he had always to undergo regular orthopaedic gymnastics to prevent atrophy of his muscles. The applicant was examined on 4 August 1969 by the prison doctor, Mr. Müller, an expert in neurology and psychiatry, who was of the opinion that the applicant's state of health   was due to a chronic condition which was likely to worsen even under treatment. This opinion did not, however, expressly state whether or not the applicant was fit for detention.   On 29 August 1969 the applicant requested his release on bail and gave further particulars on 1 and 4 September 1969. At this time, however, he did not give his state of health as a reason for his request for release, but he argued that the reasons for detention on remand, as listed in the Austrian Code of Penal Procedure (Strafprozessordnung), did not exist. He offered bail of 150,000 Austrian Schillings.   On 8 September 1969 the Investigating Judge dismissed the applicant's request. The Judge stated that the applicant was a German citizen and that he must expect a heavy penalty and that, consequently, the danger of his absconding was obvious. Furthermore, there existed the risk of collusion since a co-accused person in Munich, who had also made out uncovered cheques, had not yet given evidence. The Investigating Judge further held that the applicant had previously issued uncovered cheques on several occasions and there was therefore danger of his continuing these practices.   The applicant appealed against this decision on the same day and again alleged that no reason for his detention on remand existed, but he did not invoke his alleged physical unfitness for detention as a ground for his release.   The Judges' Chamber (Ratskammer) of the Regional Court confirmed the Investigating Judge's decision on the same day, i.e. on 8 September 1969.   The Chamber stated that release on bail was only provided if the danger of absconding was the only ground for the detention on remand of the person concerned. As there also existed in the applicant's case the risk of collusion and the danger of his committing further offenses, his release on bail would not be granted. The Court declared that it was most probable that the applicant would abscond to the United States of America as he had relatives living there and as there was the possibility of his receiving a heavy penalty on the present charges. With respect to the risk of collusion it was stated that the investigation was not yet finished since the inquiries in Munich, where the applicant's commercial activities were concentrated, had not yet been carried out. The Judges' Chamber also confirmed the danger of the applicant committing further offenses since he was also accused of forging cheques in Germany and, consequently, it was to be expected that he would continue his practice of issuing uncovered cheques.   On 16 September 1969 the applicant appealed against this decision to the Linz Court of Appeal (Oberlandesgericht) which, by decision of 1 October 1969, confirmed the decision of the lower courts. The decision of the Court of Appeal did not deal with the applicant's state of health because the applicant had not mentioned it in his appeal.   In all these proceedings, the applicant was represented by Rechtsanwalt Viktor Straberger, a member of the Wels Bar.   On 24 October 1969 the applicant himself, without the assistance of his counsel, requested his release from detention. In a handwritten letter to the Investigating Judge the applicant indicated that reasons for his detention did not exist, and he offered bail of 100,000 Austrian Schillings. In this request the applicant, for the first time, referred to his bad state of health as a ground for his release and said that he urgently needed specialised medical treatment. At the end of this letter to the Investigating Judge the applicant included the following statement concerning his health:   "I know that the latter argument is not a fact which can be legally be taken into consideration by the Court ..."   (Ich weiß, daß mein letzteres Vorbringen zwar keine juristisch wägbare Tatsache darstellt ...")   Also on 24 October, the applicant challenged the Investigating Judge. He alleged that the latter was acting on the basis of political considerations and bias against the applicant and that he intended to endanger the applicant's family, who lived in the German Democratic Republic. The applicant also referred to his state of health and accused the Investigating Judge of not taking it into account. This challenge was rejected by the President of the Regional Court by decision of 28 October 1969. The President held that these reasons were ill-founded and that, in particular, the applicant was, according to the medical opinion of Dr. Müller of 4 August, fit to undergo detention.   At the request of the Investigating Judge, Dr. Schättinger, the medical officer of the Wels City Administration (Amtsarzt des Magistrates der Stadt Wels) on 27 October examined the applicant and gave his opinion on 30 October 1969. He found that the applicant's body was to a large extent paralysed and that there was visible damage to his spine. He said, however, that this was a permanent physical situation which could not be improved and he concluded that the applicant's detention in prison of the Regional Court was, for the time being, still possible if orthopaedic gymnastics could be done; such gymnastics were still possible in the Wels Hospital, according to the chief doctor Meissner. If the period of the detention were longer, a transfer must be ordered to another prison which had an infirmary.   ("Eine Haft ist derzeit noch im kreisgerichtlichen Gefangenenhaus möglich, wenn eine heilgymnastische Behandlung durchgeführt wird, die im Krankenhaus Wels nach Rücksprache mit Primarius Dr. Meissner noch möglich wäre. Bei längerer Haftdauer müßte aber eine Überstellung in ein Gefangenenhaus mit Krankenabteilung durchgeführt werden.")   On 5 November 1969 the Investigating Judge dismissed the applicant's request of 24 October 1969 for his release. He stated that the applicant could not be released since the danger of his absconding and committing further offenses continued. He indicated that release on bail was only possible, if the sole reason for detention was the existence of a danger of absconding. The Judge, however, did not deal at all with the applicant's argument, put before him in his request, that he was unfit for detention due to his physical condition. This decision was served upon the applicant on 6 November 1969 together with a notification that he could appeal against it within fourteen days. The applicant did not, however, appeal against this decision.   On 6 November 1969 the Investigating Judge requested the Administration of Wels Prison to transfer the applicant immediately to a prison hospital (Inquisitenspital). He indicated that, in view of the medical opinion of the above expert, Dr. Schättinger, such transfer was essential since the end of the applicant's detention wasnot within sight ("... so daß die Dauer der Untersuchungshaft nicht abzusehen ist.")   On 7 November 1969 the Prison Governor wrote a letter to the Federal Minister of Justice in Vienna and this was received in the Ministry on 10 November. The Prison Governor submitted copies of the expert opinion of Dr. Schättinger and of the request of the Investigating Judge. He asked the Minister to specify a prison hospital to which the applicant could be transferred. In this letter the Prison Governor also stated that at that time the applicant was being taken once a week to the Wels hospital for the prescribed orthopaedic gymnastics.   On 17 November 1969 the Federal Ministry of Justice informed the Regional Court of Wels that no prison hospitals were available where such orthopaedic gymnastics could be done as were necessary for the applicant's treatment and that, accordingly, the applicant should continue to do these gymnastics in the Wels hospital.   On 1 December 1969 the applicant wrote a letter to Dr. Schättinger and informed him that he had still not been able to see a specialist regarding his ailments and that, since 27 October, he had been taken to the Wels Hospital for gymnastics once a week and only for half an hour. He also stated that he had not been strong enough to support that weekly visit and had once fallen down; since then his left arm was entirely paralysed and had lost 3 cm in circumference.   On 3 December 1969 the Investigating Judge requested Dr. Schättinger to examine the applicant again. The doctor informed the Judge that this examination should be carried out in a special hospital at Linz, the Wagner-Jauregg Hospital. The chief doctor of that hospital, Dr. Steinhäusl, telephoned the Investigating Judge on 10 December 1969 to say that the examination would take several days and asked whether the applicant should be kept in the open or closed section of the hospital. After having consulted the President of the Regional Court, the Investigating Judge ordered that the applicant should be kept in a closed ward. (The closed ward of this hospital is situated at Niedernhart, about 15 miles from Linz). In Dr. Steinhäusl's medical opinion, dated 10 December 1969, it is stated that the applicant was examined as his left arm was recently paralysed as a consequence of a clumsy movement of a fellow prisoner who helped the applicant when he was in danger of falling. The doctor found, however, no recent paralysis but indicated that, in view of the past diseases of the applicant, permanent active and passive physiotherapy was necessary in order to keep in action the still active muscles and to prevent their becoming atrophied ("... bei dem stattgehabten Leiden des Patienten eine ständige aktive und passive Bewegungstherapie erforderlich ist, um die noch aktiven Muskeln weiterhin in Aktion zu halten und damit diese der Athrophie und Inaktivität nicht anheimfallen.")   On 23 December 1969, the applicant wrote a letter to the Investigating Judge informing him that he was still kept in the closed ward at Niedernhart in a room together with twenty violent, mentally sick persons, six of whom had died in the last ten days in his presence. He asked the Judge to transfer him to a proper hospital.   On 24 December 1969 the applicant returned, on the instructions of the Investigating Judge, to Wels Prison.   On 12 January 1970, Mr Osthues, the applicant's German counsel, wrote a letter to the Austrian Ministry of Justice, asking for an examination of the applicant in view of his bad state of health, and for him to be given adequate medical treatment.   On 14 January 1970, Dr. Schättinger again gave an opinion as to the physical state of the applicant and based this on the report of Dr. Steinhäusl, which he had apparently received only on 12 January 1970, and on his own examination of the applicant. Dr. Schättinger found that physiotherapy and orthopaedic gymnastics were permanently and continuously necessary, and that the attempts to treat the applicant in the Wels Hospital had failed since the applicant was thereby subjected to an additional physical effort, and since the treatment in the hospital was not adequate for the type of complaint of which the applicant suffered. Dr. Schättinger declared that the applicant needed permanent and continuous specialised medical treatment which he could not obtain in prison or in any other hospital in Upper Austria. He stated, furthermore, that the applicant's detention in the Wels Prison could not be justified any longer.   On 15 January 1970 the President of the Regional Court of Wels informed the Ministry of Justice of the opinions of Dr. Steinhäusl and Dr. Schättinger and requested urgently that the applicant should be taken to a special prison hospital.   On 22 January 1970, the President of the Regional Court released the Investigating Judge from the conduct of the case as the latter had informed him that, due to accusations made by the applicant against him in a letter of 20 January 1970, special circumstances existed which made it impossible for him, the Investigating Judge, to carry on the investigation against the applicant.   On 21 January 1970, the Ministry of Justice informed the President of the Regional Court that no appropriate prison hospital was available in Austria and, on 22 January, the Minister instructed the Public Prosecutor at Wels to request the Regional Court to release the applicant. On 23 January 1970 the applicant was released from prison.   Complaints of the applicant   1.    The applicant complains that he was treated as a criminal while being detained on remand. In this respect he submits that the Investigating Judge and the police officers had frequently called him a fraudulent person and a criminal. He alleges violations of Article 6 (2) of the Convention.   2.    The applicant further complains that he was beaten up and received physical injuries during his detention in the Regional Court's Prison at Wels. In this respect he submits that a police officer, Mr. Greiner, gave him upon arrest a severe punch on his left side and that he was kicked towards a washbasin and thereby injured. The same officer allegedly gave him later a slap in the face. The applicant invokes in this respect Article 3 of the Convention.   3.    The applicant finally alleges that his treatment during his detention in Wels amounted to inhuman and degrading treatment within the meaning of Article 3 of the Convention and also that his right to life, as guaranteed under Article 2, was violated. The applicant complains about the following facts:   (a)   that he was kept in detention on remand although he was physically not fit for detention. In this respect the applicant indicates that he was not given the medical treatment which was essential for him and which was prescribed by both Dr. Schättinger and Dr. Steinhäusl, and that he was not given the particular nutritious diet which he needed;   (b)   that his left arm was paralysed due to the negligence of the prison authorities during his transport to his weekly gymnastics at Wels Prison;   (c)   that he was taken to the closed ward of the Psychiatric Hospital of Linz at Neidenhart without having been informed beforehand that he had to stay there for a fortnight, so that he did not take with him his belongings, including his electric razor and his money for buying additional food;   (d)   that he was kept in the closed ward at Niedernhart in a room together with twenty violent lunatics, of whom six died in his presence and that, consequently, he could not sleep and recover from his illness;   (e)   that he was returned to Wels Prison on Christmas Eve 1969, without notification and, despite his state of health, at a temperature of -10o centigrade in an unheated van which was generally used for transporting food; and that, consequently he contracted a fever which finally ended in pneumonia;   (f)   that he did not get any adequate food upon his arrival at Wels on 24 December, since the prison administration was not informed about his return and he could only eat what other prisoners left;   (g)   that he received no medical care at all during the period from 24 December 1969 to 8 January 1970 although he suffered from fever which later turned into pneumonia and that, from 8 January until his release, he was not given the medical treatment prescribed in Dr. Steinhäusl's report of 10 December;   (h)   that, due to this treatment, he lost by atrophy of his muscles more than 16 kilograms, and almost lost his life as a consequence of this and of his pneumonia.   Proceedings before the Commission   On 8 January 1970 the President of the Commission, acting ex officio under Rule 38, 1 of the Commission's Rules of Procedure, gave priority to this application.   A group of three members of the Commission carried out, on 11 March 1970, a preliminary examination of the application, and suggested that the respondent Government should be invited to submit its written observations on the admissibility in accordance with Rule 45, 3 (b) of the Rules of Procedure.   On 20 March 1970, the Commission decided to give notice to the Austrian Government of this application and to invite the Government to submits its observations on the admissibility of the complaints under Articles 2 and 3 that the applicant was subjected to inhuman treatment whilst being in custody.   On 11 May 1970 the Austria Government submitted its written observations which were communicated to the applicant who submitted his observations in reply by letter of 8 June 1970.   On 13 July 1970, a second group of three members of the Commission examined the application and the observations of the parties and unanimously reported to the Commission that the application appeared to be admissible.   On 22 July 1970, the Commission decided, in accordance with Rule 46, 1 in fine of its Rules of Procedure, to invite the parties to make oral explanations on the admissibility of the application. The hearing of the parties was held in Strasbourg on 17 December 1970.   The applicant was present at the hearing and was represented by Rechtsanwalt Willy Osthues. The Austrian Government was represented by Sektionsrat W. Pahr, of the Federal Chancellery, deputy agent, and Ministerialsekretär P. Jann, of the Ministry of Justice, adviser.   On the same day after hearing the parties, the Commission decided to adjourn its decision on the admissibility of the application and to delegate three members to hear evidence (MM. Fawcett, Ermacora, de Gaay Fortman), in the presence of the parties, of Rechtsanwalt Dr. Viktor A. Straberger (the applicant's Austrian counsel) and Landesgerichtsrat Dr. Johann Gruber (the Investigating Judge up to 22 January 1970), on facts concerning the question of the exhaustion of domestic remedies by the applicant. The hearing of these witnesses took place on 23 January 1971, in Vienna, in the presence of the parties. The applicant was represented by Rechtsanwalt Willy Osthues. For the respondent Government there appeared:   Mr. E. Nettel, Minister Plenipotentiary at the Austrian Ministry of Foreign Affairs, Agent, Sektionsrat W. Pahr, of the Federal Chancellery, Deputy Agent, and Ministerialsekretär P. Jann, adviser.   SUBMISSIONS OF THE PARTIES   Whereas the submissions of the parties in their written observations and at the hearing may be summarised as follows:   I.    Under Article 26 of the Convention   In its written submissions the respondent Government pleaded that the applicant had not exhausted the domestic remedies with regard to his complaints under Article 3 of the Convention, namely that he had been beaten by police officers and that his treatment during his detention on remand amounted to inhuman and degrading treatment. The Government submitted in this respect that both the beating up and the refusal of medical assistance would in such circumstances amount to a punishable offence under Austrian law; that the applicant must, therefore, in order to comply with the rule laid down in Article 26 of the Convention, bring criminal proceedings against the persons responsible for these alleged offenses. The applicant, however, had only laid charges against the police officers concerned but had not used his further right of bringing a subsidiary prosecution (Subsidiäranklage) against them under Article 48 of the Code of Criminal Procedure. At the oral hearing the respondent Government submitted additional arguments as regards this question. With regard to the alleged insufficient medical attention during the applicant's detention on remand, it was submitted that the applicant, in requesting his release on bail, had not exhausted his remedies. The applicant had requested his release on 29 August 1969 and had given further particulars on 1 and 4 September 1969. However, he did not then rely on his unfitness for detention as a ground for requesting his release. The Investigating Judge, who had dismissed his request on 8 September 1969, did not therefore deal with this point in his decision. In his appeal to the Judges' Chamber (Ratskammer) of the same day, the applicant had failed to refer to his state of health with the result that the Chamber, in its decision of 8 September 1969, also did not deal with the alleged unfitness of the applicant. The same had happened with regard to the applicant's further appeal of 16 September to 1 October 1969. The Court, for the same reasons, had also not dealt with the applicant's state of health. It was submitted that, consequently, this part of the proceedings could not be considered as being relevant for the question of exhaustion since the applicant had failed to put his case fully before the courts.   On 24 October 1969 the applicant had again requested his release from detention and had expressly referred to his bad physical condition. The Investigating Judge, by decision of 5 November 1969, did not, however, grant his release. The respondent Government admitted that, in this decision, the Investigating Judge did not deal with the applicant's state of health.   According to the respondent Government, the applicant's request of 24 October 1969 for release was the only remedy of which the applicant had availed himself since only in this request had he put his case fully and formally before the Judge. Since the applicant had failed to appeal against this decision to the Judges' Chamber and further to the Court of Appeal, the Government concluded that he had not satisfied the provisions of Article 26 of the Convention. It was admitted that the Court and the Investigating Judge had been fully informed that the applicant was feeling ill, and the applicant's German counsel, Mr. Osthues, had also corresponded with the Court on this point and had asked for his release; but this situation had not been put before the Court by a formal request (prozessförmliche Anträge) and there had therefore been no formal decision in this respect. The applicant had also not made these requests through his Austrian counsel, Mr. Straberger, who had been the only person who could validly act on his behalf. Since the applicant had been represented by counsel it was submitted by the Government that the Court had not the duty to advise the applicant on remedies at his disposal. The Government submitted in this respect that the applicant had, moreover, been informed as to his remedies under the Austrian Code of Penal Procedure since his request of 24 October 1969, for release had been made by himself and not by his counsel. But even the applicant's ignorance as to these remedies would not have absolved him from the obligation to exhaust them.   It was further submitted that, in any case, the requests of the applicant and of his German lawyer, although made informally, had been considered by the Austrian authorities and had finally led to his release, at the Public Prosecutor's request, as soon as there was a medical opinion to the effect that the applicant was unfit for detention.   In conclusion, it was submitted that, with respect to this part of the application, the applicant himself had not taken all necessary steps to put his claim formally before the several Austrian courts which would have been competent to grant his release on the ground of his unfitness for detention, and that he consequently had failed to exhaust the remedies available under Austrian law.   With regard to the applicant's complaint that he was beaten up in prison by police officers, the respondent Government submitted that the applicant had laid charges against Mr. Greiner, the police officer concerned, and against the Investigating Judge, Mr. Gruber, on 29 October 1969 and on 20 April 1970, respectively, but these charges were not substantiated. The applicant had indicated that he would give more precise information but he had not yet done so. On the basis of these charges the authorities had heard witnesses but their statements had not corroborated the applicant's allegations. Consequently, the Public Prosecutor had discontinued these proceedings. The Government, accordingly, concluded that the applicant had not yet exhausted his domestic remedies since he had not substantiated his charges against the persons who had allegedly ill-treated him, and had not yet utilised his possibilities under Article 48 of the Code of Penal Procedure, that is to bring a subsidiary prosecution.   The applicant submitted that he had exhausted his remedies under Austrian law with regard to his detention in prison. He referred in this respect to his many formal and informal requests for release, his having challenged several times the Investigating Judge, and his complaints to the Ministry of Justice. He submitted that he did not lodge a further appeal against the Investigating Judge's decision of 5 November 1969 refusing his release on bail, because the Investigating Judge informed him that such an appeal would be useless. The applicant complained in this respect that the Austrian Court had not ex officio taken adequate action to prevent the deterioration of his health; that, therefore, he had requested his release from prison because of his state of health, in his formal complaint of 24 October 1969. This complaint had been drafted by himself and its contents had been influenced by the advice of the Investigating Judge. The latter had told him, according to the applicant, that his state of health would not be a factor which could be legally taken into consideration when deciding on release. The applicant further referred to the Investigating Judge's advice that an appeal would be useless and said that this had been corroborated by his Austrian counsel, Mr. Straberger. Both the Investigating Judge and Mr. Straberger had told him that the question of the applicant's health could not be taken into account when deciding on a request for release from detention. That was the reason, according to the applicant, for his statement in his request for release on 24 October 1969 that he knew "that his state of health could not legally be taken into consideration". It was further submitted by the applicant that he had not lodged an appeal against the decision of 5 November 1969 because Mr. Straberger had also advised him that, in view of the Court of Appeal's previous decision, any further appeals would be ineffective. The applicant finally submitted, with respect to this question that his lawyer, Mr. Straberger, had not been granted access to him, since the Investigating Judge had held that no reason existed for the applicant to see his counsel.   With regard to this last submission of the applicant, the respondent Government objected that it was certainly not true that Mr. Straberger was hindered from seeing the applicant or that the Investigating Judge refused visits of Mr. Straberger to the applicant. The Government, therefore, requested the hearing of Mr. Straberger both on this question and, generally, on the steps taken by the latter in order to have the applicant released. The respondent Government also stated that, even if it was true that applicant's counsel had no right to visit the applicant, it would have been possible for the applicant to send the Investigating Judge's decision of 5 November 1969 to Mr. Straberger and to request him to lodge an appeal against it or, alternatively, the applicant could have made this appeal himself. The respondent Government further submitted that an appeal against the decision of 5 November 1969 would have been an effective remedy, since for the first time the Judges' Chamber and the Court of Appeal would have been confronted with the applicant's allegation that he was unfit for detention in view of his state of health.   In respect of the applicant's complaint that he was beaten up by a police officer, the applicant submitted that he had not elaborated on the charges laid against the police officer and the Investigating Judge, Mr. Gruber, and had not yet given the additional information requested since, after his release from prison on 23 January 1970, his principal concern had been to recover his health and to get proper medical attention. On 2 January 1971, however, the applicant laid charges against Mr. Greiner and other unknown persons, and therein he substantiated his accusations.   II.   Under Articles 2 and 3 of the Convention   The respondent Government submitted in this respect that, as regards the physical condition of the applicant, the latter had been medically examined five days after his arrest, on 4 August 1969. The doctor had no objections then as regards the applicant's fitness for detention. On 14 October 1969 the Investigating Judge again requested a medical opinion on the applicant's state of health; this opinion was given on 30 October 1969 and the applicant was declared fit for detention but it was suggested that he should have orthopaedic training in the hospital. On 3 December 1969 the Investigating Judge again requested medical opinion which was given by the Chief Medical Officer of a neurological hospital at Linz. This medical officer examined the applicant on 10 December 1969 but his opinion was only received by the Court by 14 January 1970. On the same day, Dr. Schättinger gave his opinion stating that the applicant was not fit for detention in Wels Prison. According to the respondent Government, this was the first time it could be considered that the applicant was no longer fit for detention. On the basis of this opinion and at the Public Prosecutor's request, which the latter made ex officio, the applicant was released on 23 January 1970.   As regards the particular complaints of the applicant, the respondent Government submits that the applicant's allegations about his state of health were not corroborated by the evidence and the files in the hands of the Government. In particular, it did not appear from these documents that the applicant's life had, as alleged, been in danger. In this respect, the respondent Government referred to the medical opinions of Dr. Müller, Dr. Schättinger and Dr. Steinhäusl. With regard to the applicant's food it was submitted by the Government that he had regularly accepted the meals which he had been given in prison and that he had also regularly purchased such additional food, as was available in the prison. Furthermore, it was pointed out by the Government that the applicant did not follow the advice of the prison doctor as regards his treatment; in particular he had failed to do exercises whilst in his cell, or to do any gymnastics. With regard to the applicant's complaint about his being transported in an unheated van, the Government replied that this was especially equipped for the transport of prisoners.   The applicant submits that the medical opinion given by Dr. Müller on 4 August was superficial and incorrect, and was given on the basis of a cursory examination of the applicant without X-ray. Although he had continually asked the Investigating Judge, Dr. Gruber, to allow him to see a specialist and constantly complained of pains and emaciation, he had received no treatment. The treatment given by the prison doctor, Dr. Narbeshuber had been entirely insufficient and he had been given totally inappropriate medicine. For example, he had been given "Rheuma-Tropon-Salbe" and 5-10 Adolorin pain-killing pills per day, which had the result that the whole lining of his stomach had become inflamed and his state of emaciation had been accelerated. On his complaints to the Investigating Judge he had been told not to make a fuss. The applicant further submitted his complaints as indicated above and emphasised that, due to the negligence of the prison authorities, he also contracted pneumonia whilst detained in prison, and that he suffered from that illness until his release on 23 January 1970, when he had been taken by ambulance to a hospital in Munich, where his illness had been diagnosed.   III. Under Article 27 (2) of the Convention   The respondent Government submitted that the Commission might consider that the applicant had abused his right to petition under Article 25 of the Convention since, after his release in January 1970, he had refused to give any evidence with regard to the criminal proceedings opened against him in Austria although he had been requested to do so before the District Court (Amtsgericht) in Munich. The District Court had been asked by the Regional Court of Wels to hear the applicant on certain points at stake. The applicant had refused to answer the questions put to him, stating that he would not answer them as long as the "corrupted criminal Gruber" was active at the Regional Court at Wels. He had indicated that he would be ready to reply to these questions after the Regional Court of Wels had justified itself before the European Commission of Human Rights in Strasbourg as regards the prejudice which it had caused him. The respondent Government submitted in this respect that proceedings before the Commission could not justify the applicant's refusal to comply with a legal obligation. The respondent Government therefore requested the Commission to reject the application as being an abuse of the right of petition.   The applicant submitted in reply that, according to German law, nobody is obliged to make statements before a court. He pointed out that he had refused to reply to the questions put to him by the District Court of Munich since he did not want to prejudice his statements before the Commission and since he had been of the opinion that these questions, concerning the investigation of the charges laid against him in Austria could not be clarified by a hearing before the District Court in Munich.   THE COMMISSION'S FINDING OF THE FACT AS REGARDS THE ADMISSIBILITY OF THE APPLICATION   On 17 December 1971, after having heard the parties to the present application, the Commission decided to adjourn its decision on the admissibility of the application and to hear the evidence, in the presence of the parties, of Mr. Viktor A. Straberger, the applicant's Austrian lawyer at Wels and of Mr. Johann Gruber, the Judge who, until 22 January 1970, led the investigation of the charges laid against the applicant, on questions of fact connected with the issue as to whether the applicant had or had not exhausted his remedies under the Austria law. The hearing was held before three Delegates of the Commission in Vienna on 23 January 1971. The evidence given by both witnesses may be summarised as follows:   I.    As to the remedies available under Austrian law in the applicant's case, and the decisions taken   Mr. Gruber said that in his opinion Article 398 of the Austrian Code of Penal Procedure was not applicable to the applicant, since he had not been a convicted person and this Article provides that the execution of a sentence should be discontinued in the case of a serious illness of the convicted person. Mr. Gruber also denied that this provision could be applied to persons detained on remand by analogy, but he referred in this respect to Article 183 of the above Code. The latter Article provides that detention on remand should be executed in such a manner that the person as such and his reputation should as far as possible be taken into consideration. A person detained on remand could at any time request release from prison. The decision taken by the Investigating Judge and an appeal is available against this decision to the Judges' Chamber, and further to the Court of Appeal. Mr. Gruber said that, in his view, a person who is fit for detention must be held in detention if one of the reasons mentioned in the Code of Penal Procedure regarding detention on remand exists. If a person was unfit for detention, he should then be released. The Investigating Judge as such was not competent or authorised to make a finding himself about the person's state of health; this was the task of the medical officer (Amtsarzt). Mr. Gruber was not sure whether he could decide upon the state of health as such of a detained person, since the prison governor was responsible for the well-being of a detained person. Mr. Gruber pointed out that he had informed Mr. Osthues about this, namely that the question of the applicant's health   was a medical and not a legal question.   As regards the remedies brought by the applicant, Mr. Gruber submitted that the applicant's numerous complaints about his state of health were not to be considered as formal complaints under the Code of Penal Procedure. With respect to the applicant's formal request of 24 October 1969, Mr. Gruber said that, before reaching his decision thereupon, he had asked for the opinion of the Public Prosecutor who had advised that he would object to the applicant's release because of the danger of his absconding and the risk of collusion. Mr. Gruber himself had agreed with this opinion because he had considered, on the basis of Dr. Schättinger's opinion of 30 October 1969, that the applicant had been fit for detention, and that reasons for his detention continued to exist. Since the Public Prosecutor had not dealt with the question of the applicant's physical fitness for detention, Mr. Gruber had been of the opinion that he himself had also no need to deal with it but he confirmed that he had been of the opinion that the applicant was in fact fit for detention. On the basis of this, Mr. Gruber said that he had told the applicant, before the latter had drafted his complaint of 24 October 1969 that his state of health could legally not be taken into consideration and that, according to his, Mr. Gruber's opinion, release would not be granted on grounds of the applicant's health. In this respect Mr. Gruber denied that he had ever told Mr. Osthues, the applicant's German counsel, that unfitness for detention was no reason for release under Austrian law. Mr. Gruber stated that his decision of 5 November 1969, by which he had refused the applicant's release, had been served on the applicant only, since the request concerned had been introduced by the applicant and not by his counsel. Mr. Gruber said that he had given the applicant the advice that an appeal to the Judges' Chamber and to the Court of Appeal   would have no success, but he had also told the applicant that an appeal was available. Mr. Gruber confirmed that he had seen all the letters of the applicant to Mr. Osthues and other persons, in which the applicant had complained about his bad treatment in prison, including his allegation that he had not received medical attention, but submitted that this could not affect the situation, since the applicant had refused to accept the treatment prescribed by the prison doctor, whom he had called a charlatan.   Mr. Straberger submitted that he had been continuously informed as to the state of health of the applicant through Mr. Gruber and Dr. Schättinger. He stated that he had been fully aware of the contents of Dr. Schättinger's report of 30 October 1969 by which the applicant was found fit for detention provided that he underwent orthopaedic gymnastics regularly at Wels Hospital. On the basis of this report Mr. Straberger had found it unnecessary to lodge further formal requests for release of the applicant since they would have been ineffective as long as there was no medical opinion available to the effect that the applicant was really unfit for detention. Mr. Straberger, therefore, intervened many times with the President of the Regional Court, who at the same time was responsible for the prison administration, the Public Prosecutor, and the Investigating Judge, in order to have the applicant transferred to a prison hospital. Mr. Straberger emphasised that he had known that the President of the Regional Court had frequently requested the Ministry of Justice to allow the transfer of the applicant. He also submitted that he had been of the opinion that, in the circumstances of the case, informal intervention for the applicant was more expedient and had more chance of success than any formal complaint under the Code of Penal Procedure. That had been the reason why he had not lodged any further complaints or requests for release. Mr. Straberger said in this connection that he had not known until the day of the hearing before the Commission's Delegates that Mr. Simon-Herold had himself made a further formal request for release, on 24 October 1969. He had therefore not been given a copy of the decision of 5 November 1969 and had, accordingly, not advised the applicant as to the possibility of appeal. Mr. Straberger stated, however, that he had not known that the applicant, on 10 December 1969, had been examined by Dr. Steinhäusl, nor had he been informed of Dr. Schättinger's medical report of 14 January 1970 on the applicant's state of health. Mr. Straberger indicated that, in view of the applicant's fitness for detention as it appeared from the medical reports of 4 August 1969 and 30 October 1969, his main concern had always been to have the applicant receive better medical attention, but not release, since he had known that complete unfitness for detention was rare. He added that he knew of cases, in particular where the detained had suffered from tuberculosis, where the detained person had been released as being unfit for detention, but he thought that the applicant had not been unfit to this extent.   II.   As to Mr. Straberger's access to the applicant   Mr. Gruber submitted that Mr. Straberger had been very active as the applicant's defence counsel in the first period of the applicant's detention but that later Mr. Simon-Herold had on no occasion requested the visit of Mr. Straberger. He stressed that he had never refused Mr. Straberger permission to see the applicant and, as regards the correspondence between the applicant and Mr. Straberger, Mr. Gruber said that there had been only a few letters. As regards the days before and after 24 October 1969 no requests to see each other had been made either by Mr. Straberger or Mr. Simon-Herold.   Mr. Straberger submitted in this respect that he had always had the possibility of seeing his client and that he had never been refused access to him. He could also correspond with his freely, and he had at no time been hindered in carrying out his professional obligations with regard to the applicant.   THE LAW   Whereas first, the respondent Government submitted that the applicant had abused his right to petition under Article 25 (Art. 25) of the Convention and that, therefore, the application should be considered inadmissible under Article 27, paragraph (2) (Art. 27-2), of the Convention; Whereas the Government submits in this respect that the applicant, when requested to give evidence before the German District Court in Munich with regard to the criminal proceedings opened against him in Austria, stated that he would "only reply to these questions after the Regional Court of Wels had justified itself before the European Commission of Human Rights in Strasbourg as regards the prejudice which it had caused him";   Whereas the applicant submitted that, according to German law, nobody was obliged to make statements before a court and that he did not want to prejudice his application before the Commission;   Whereas the Commission finds that the proceedings before the German and Austrian courts are not linked with the proceedings instituted by the applicant before the Commission; that, therefore, the applicant had made the above remarks in proceedings which are not connected with the present application; that, consequently these remarks are not relevant in the present proceedings before the Commission; whereas, consequently, the Commission cannot consider this application to be inadmissible under Article 27, paragraph (2) (Art. 27-2), of the Convention;   Whereas the applicant complains that he was treated as a criminal while being detained on remand and that such treatment amounts to a breach of Article 6 (2) (Art. 6-2) of the Convention which provides that "everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law"; whereas he submits, in this respect, that the Investigating Judge and police officers had frequently called him a fraudulent person and a criminal; whereas the Commission finds, however, that this allegation is not corroborated by any evidence submitted to it by the applicant; whereas, therefore, the Commission finds that there is no appearance of a violation of the provisions of Article 6 (2) (Art. 6-2) of the Convention in the present case;   Whereas, consequently, this part of the application is manifestly ill-founded and must be rejected in accordance with Article 27 (2) (Art. 27-2) thereof;   Whereas the applicant further complains that he was beaten up and received physical injuries during his detention in the Regional Court's Prison at Wels; in particular, that a police officer upon his arrest injured him by giving him a severe punch and later slapped him in the face; whereas the applicant invokes in this respect Article 3 (Art. 3) of the Convention which provides "No one shall be subjected to torture or to inhuman or degrading treatment or punishment";   Whereas the respondent Government submitted, having regard to Article 26 (Art. 26) of the Convention, that the applicant had not exhausted his remedies under Austrian law with regard to this complaint since he merely laid charges against the police officers concerned and against the Investigating Judge, without substantiating them;   Whereas the Government, in particular, objects that the applicant had also not used the possibilities under Article 48 of the Code of Penal Procedure to bring a subsidiary prosecution against the persons concerned; whereas the Government concludes that, therefore, the applicant has not availed himself of any of the remedies provided for in Austrian law;   Whereas the applicant submits that he had not yet elaborated the charges laid by him against the Investigating Judge and the police officer and had not given the additional information requested since, after his release from prison on 23 January 1970, his principal concern had been to recover his health and to get proper medical attention; Whereas, on 2 January 1971 the applicant laid charges against the above officials and other unknown persons and substantiated his accusations therein; whereas, therefore, proceedings before the Austrian authorities are still pending with regard to the applicant's present complaint;   Whereas 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; and whereas the Commission finds that the applicant has not yet exhausted the possibilities offered to him under Article 48 of the Code of Penal Procedure, that is to bring a private prosecution against the above officials; whereas, therefore, he has not exhausted the remedies available to him under Austrian law; whereas, moreover, an examination of the complaint as it has been submitted, including an examination made ex officio, does not disclose the existence of any special circumstances which might have absolved the applicant according to the generally recognised