CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 4 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   I. Original statement of facts based on the submissions of the applicant   The applicant is an Austrian citizen born in 1930 and at present detained in prison at W..   From his vague statements it appeared that in September 1967 he became involved in a fight with two other men resulting in a gunshot wound in his temple. After the fight he was arrested and sentenced to eight years' severe imprisonment, apparently for robbery.   The applicant mentioned that the Supreme Court (Oberster Gerichtshof) rejected his appeal or plea of nullity on .. November 1969, without giving him the opportunity of defending his case personally. Only a lawyer was appointed for his defence. The applicant has not submitted any documents relating to his case, nor has he given more detailed information as to the reason of his arrest and his conviction.   He complained that he was wrongly convicted on the basis of false evidence given against him. He stated that already in 1947 and in 1961 he had been wrongly convicted and sentenced.   The applicant mainly complained of ill-treatment given to him by the police after his arrest and by officers in prison.   He alleged:   -   that after his arrest, five policemen ill-treated him. They banged his head on the floor and kicked him. As a result of this ill-treatment, and not because of the injury caused by the gunshot wound, he practically lost his eyesight. The prison authorities, as well as the District Court (Kreisgericht) at W., refused to let him be examined and treated at an eye clinic. They kept him isolated without employment or pastimes in a cell where he is living in permanent darkness.   -   that the prisoners have to stand naked in the corridors when the cells are inspected and that after one of these inspections he found all his belongings on the floor of the cell and two packets of tobacco missing.   -   that the prison warders made four attempts to murder him. Once they handcuffed him and thereby cut the blood supply (Schlagader) in his right arm. Another time they pressed a handful of steel material (Stahlsplenden) into his mouth and afterwards he was not given any food for ten days. A third attempt at murder was made on .. November 1969, when he was forced to sleep in the arrest cell in the basement of the prison on a stone bed without a mattress and blankets. Finally, another attempt was made by throwing open the door of his cell unexpectedly which hit him on his temple.   Alleging a violation of most of the Article of the Convention, the applicant requests the Commission to help him.   II. Proceedings before the Commission   By decision of 4 October 1970 the Commission rejected, as being manifestly ill-founded, the applicant's complaint that he was wrongly convicted and sentenced.   With regard to his complaint that he was ill-treated in prison, the Commission decided to invite the Austrian Government to submit, before 10 December 1970, its observations in writing on the question of admissibility. The examination of this part of the application was consequently adjourned.   The respondent Government's observations were received on 15 December 1970. The applicant was then requested to submit his observations in reply before 15 January 1971 and on 22 January 1971 his written observations in reply were received.   III. Observations of the Austrian Government   1. "Concerning the factual allegations of the applicant   By judgement of .. January 1969 given by the Regional Court at W. (Kreisgericht W.), and which has become final, X was found guilty of attempted murder and a minor offence. He was sentenced to eight years' severe imprisonment (schwerer Kerker) aggravated by one day of fasting every quarter. The decision was based on the fact that on 14 September 1967 at L. the applicant had shot K. in the back and in the back of the head, and S. in the left side of the lower abdomen with intent to kill. Shortly before his arrest, X shot himself in the head, whereby he lost his eyesight.   Already at his trial, the applicant claimed that he had not been in possession of a gun at all, thus departing from his original statement that the only reason why he had shot the two men was that they had wanted to rob him;   at the time of that original statement he did not deny having shot himself in the head when being arrested on 17 September 1967.   At his trial, however, the applicant claimed that on 14 September 1967, K. and S. together with an unknown third person had robbed him of 55,000 Austrian schillings and had shot him while doing so. After being unconscious for some time, he had woken up in the forest, finding next ho him the gun with which his own bullet wound as well as K's and S's bullet wounds had been inflicted, together with 157 rounds of ammunition;   despite his impaired eyesight he had then wandered about the forest. On 16 September 1967, he had finally arrived at his sister's and brother-in-law's home at H.. where, however, his head injury had not been noticed. Having been given food and a raincoat, he had then walked on until he had been picked up by the gendarmerie on the following day, 17 September 1967. He had not inflicted a bullet wound on himself while being arrested, but had been shot in the head on 14 September 1967 by the robbers.   In order to disprove these assentations by the applicant, extensive enquiries were made, in the course of the criminal proceedings, in order to find out in which way the applicant's bullet wound and blindness had been caused. In these enquiries and the opinions of experts, it has been established beyond all doubt that the applicant himself on 17 September 1967, when facing the gendarmes who had stopped him, fired a gun at his head;   that since that time he has been totally blind owing to the fact that the optical nerves and the retinal arteries of both his eyes are severed;   and that at the present state of scientific knowledge it seems absolutely impossible to restore his vision. This was also stated in the judgment of the Court. According to a psychiatric report, the applicant is not subject to delusions. If he claims that the loss of his eyesight was due to a lack of medical care during his detention, although he is aware of the true facts, this can only be explained by his peculiar personality and his aggressiveness, which is noted in the psychiatric report.   During his detention at the prison of the Regional Court at W., the applicant swallowed two spoons and fell into rages which necessitated his temporary transfer to G. psychiatric hospital.   On .. July 1970 the applicant asked the Republic of Austria to recognise his claim for compensation to the amount of 600,000,000 Austrian schillings (i.e. six hundred million Austrian schillings) under the Liability of Officials Act (Amtschaftungsgesetz) on the grounds that his blindness was caused by a lack of medical care during his detention.   In this connection, the Republic of Austria submits the following documents:   1. A copy of a report of .. November 1970, by the administration of the   prison attached to the Wiener Neustadt Regional Court; 2. Copies of statements by the prison guards, Justizwachoberkontrollör    L., Justitzwachmann P., Justizwachmann H., and    Justizwachoberkontrollör S.; 3. A copy of a passage from the record of the trial of X containing the   opinion of the medical expert, Primarius Dr. E.;   4. A copy of the report of .. March, 1970 by Dr. H., lecturer in    ophthalmology; 5. A copy of the case history of X from the municipal hospital of the town of N.   From these documents it clearly emerges that the applicant's allegations are untenable.   In particular, it emerges from the documents that the applicant's blindness did not develop during his detention but was already existent at the time of his admission to the N. hospital on 17 September 1967 and that X's statements concerning alleged mistreatment during his detention are false."   2. The Austrian Government further states that the applicant has not exhausted the domestic remedies available to him. It requests the Commission to reject the remainder of the application for non-exhaustion of domestic remedies or in eventu, as being manifestly ill-founded.   IV. Summary of the observations in reply submitted by the applicant   The applicant only repeats his allegation that on four occasions the prison guards tried to murder him. He does not give any evidence in support of his allegation. He also repeats that his blindness was caused by the ill-treatment given to him in prison. He claims that the result of the medical examination carried out at G. proves that the gunshot which he received previously did not cause his blindness because the bullet did not hit a nerve.   THE LAW   Whereas, in regard to the applicant's remaining complaint that he was ill-treated by the police and prison guards, the Commission finds that the Austrian Government's observations and documents enclosed therewith give a reasonable explanation of the situation;   Whereas, indeed, the applicant only repeats, in his reply to the Government's observations, his prior allegations without giving any evidence to support them or to disprove the statements of the respondent Government;   Whereas consequently the Commission accepts the Government's explanation of the events concerned and finds that there is no appearance of any violation of the rights and freedoms set forth in the Convention and in particular in Article 3 (Art. 3); whereas it follows that the remaining part of the application is also manifestly ill-founded within the meaning of Article 27, paragraph (2) (Art. 27-2), of the Convention.   Now therefore the Commission DECLARES THIS APPLICATION INADMISSIBLE