CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 4 mai 1987

.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 }  AS TO THE ADMISSIBILITY OF   Application No. 10817/84 by Bruno MACHERHAMMER against Austria             The European Commission of Human Rights sitting in private on 4 May 1987, the following members being present:                 MM. C. A. NØRGAARD, President                   G. JÖRUNDSSON                   S. TRECHSEL                   B. KIERNAN                   A. S. GÖZÜBÜYÜK                   A. WEITZEL                   J. C. SOYER                   H. G. SCHERMERS                   H. DANELIUS                   G. BATLINER               Mrs G. H. THUNE               Sir Basil HALL               Mr.   F. MARTINEZ                  Mr J. RAYMOND, Deputy Secretary to the Commission           Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;           Having regard to the application introduced on 23 August 1981 by Bruno Macherhammer against Austria and registered on 13 February 1984 under file No. 10817/84;           Having regard to the report provided for in Rule 40 of the Rules of Procedure of the Commission;           Having deliberated;           Decides as follows:   THE FACTS           The applicant, an Austrian citizen born in 1931, is a retired savings-bank employee resident in Linz.   He considers himself one of the disciples of Kirpal Singh, founder and leader of a religious sect.           In 1970, he was recruited by the Linz General Savings Bank (Allgemeine Sparkasse).   After having published an article in an Austrian newspaper entitled "Our misery results from the banking system" ("Die Banken sind unser Unglück") in July 1976, he was dismissed by his employer in August 1976.   Apparently his dismissal became effective on 31 December 1976.   It is unclear whether the applicant instituted proceedings before the competent labour courts.           After his dismissal the applicant submitted petitions to various public and private bodies.   He also filed several complaints with the Public Prosecutor's Office against the (then) Director of the General Savings Bank and other persons.           In November 1979, the applicant instituted proceedings before the Linz Regional Court (Landesgericht) against the Union of Private Employees (Gewerkschaft der Privatangestellten) and the head of its Legal Department, claiming damages for the losses suffered because of the refusal by the Union to grant him security for legal expenses in proceedings against his dismissal in 1976.           The Linz Regional Court found that the statement of claims was confused.   On that ground it ordered, on 17 December 1979, the examination of the applicant's capacity to conduct proceedings (Prozessfähigkeit) ex officio.   The applicant's appeal (Rekurs) against this decision was rejected by the Linz Court of Appeal (Oberlandesgericht) on 7 July 1980.           Meanwhile, on 25 June 1980, the Linz District Court (Bezirks- gericht) had ordered the opening of proceedings for placing the applicant under guardianship (Einleitung des Entmündigungsverfahrens) on the ground of mental disorder according to SS. 1 and 25 of the Guardianship Act (Entmündigungsordnung).   The applicant's appeal (Rekurs) and his further appeal (Revisionsrekurs) were rejected by the Linz Regional Court (Landesgericht) on 16 July 1981 and by the Supreme Court (Oberster Gerichtshof) on 10 February 1982, respectively.           Thereupon, on 30 June 1982 the Linz District Court (Bezirksgericht) decided to place the applicant under limited guardianship (beschränkt entmündigt).           On 9 December 1983, the applicant lodged a petition with the District Court for setting aside the Court's decision of 30 June 1982. This petition was treated as an appeal (Rekurs) by the Linz Regional Court and rejected on 18 July 1984 for having been lodged out of time.           In the meantime, the applicant had been arrested on 10 September 1982 and committed to a mental hospital (Anhaltung). Apparently notice of the applicant's hospitalisation was given to the Linz District Court, which, however, did not take any action. Thereupon, the applicant was released on 29 October 1982.           Furthermore, a letter from the Commission's Secretariat sent to the applicant's private address on 7 July 1983 was apparently intercepted by the applicant's guardian, the Linz Welfare Office (Wohlfahrtsamt) on 12 July 1983.   No notice of this letter was given to the applicant by the Welfare Office until on 4 November 1983 he was provided with a copy after having learned, through further correspondence with the Commission's Secretariat, about the existence of this letter.           On 7 December 1984, the Linz District Court (Bezirksgericht) declared that in view of an amendment to the Austrian Civil Code (Allgemeines Bürgerliches Gesetzbuch - ABGB), which had entered into force on 1 July 1984, the   limited guardianship (beschränkte Entmündigung) ordered on 30 June 1982 had been converted into a curatorship (Sachwalterschaft) according to S. 273 para. 3 (3) ABGB. At the same time the Court limited this curatorship to managing the applicant's legal affairs and appointed Dr T., a lawyer practising in Linz, as curator.           On 12 December 1984 the applicant apparently threatened the head of the Regional Tax Office (Finanzlandesdirektion) for Upper Austria.   He was arrested on suspicion of attempt of aggravated coercion (schwere Nötigung) under SS. 105 and 106 of the Austrian Criminal Code (Strafgesetzbuch) and again committed to a mental hospital.   On 14 December 1984 a single judge of the Linz Regional Court ordered the applicant's provisional hospitalisation.   This decision was confirmed by the Review Chamber (Ratskammer) of the Regional Court on 20 March 1985 and upheld by the Linz Court of Appeal (Oberlandesgericht) on 8 May 1985.   After discontinuance of the preliminary investigations, the Regional Court, on 21 June 1985, set aside its order of 14 December 1984 and ordered the applicant's immediate release.           By order of 22 December 1986 the Linz District Court terminated the curatorship.     COMPLAINTS           The applicant complains about violations of the Convention in general, invoking Articles 2 to 11 of the Convention.   He considers himself to be a victim of persecution for being a disciple of the sect of Karpal Singh.           Additionally, invoking Article 6 of the Convention, he complains that he was prevented from bringing an action against his dismissal in 1976.           He also complains that his various informations lodged with the Public Prosecutor's Office, hierarchical complaints, and other protests were of no avail and that he was therefore deprived of judicial protection.           The applicant further submits that he was illegally deprived of his liberty as a result of his repeated hospitalisation at the mental hospital, where he was forced to undergo medical treatment, in violation of Articles 3 and 5 of the Convention.           He finally complains under Article 8 of the Convention of a violation of his right to respect for his correspondence, as the letter sent by the Commission's Secretariat on 7 July 1983 was not handed over to him.   THE LAW   1.       The Commission first observes that the applicant's capacity to institute proceedings under Article 25 (Art. 25) of the Convention was not affected by the decisions placing him under guardianship (cf.   No. 1527/62, Dec. 4.10.62, Yearbook 5 pp. 238, 246).           The Commission has therefore examined the applicant's separate complaints as they have been submitted by him.   2.       The applicant claims to be a victim of persecution and discrimination for being a member of a certain sect.   However, he has failed to show that there has been any interference by State authorities with his right to freedom of religion as guaranteed by Article 9 (Art. 9) of the Convention, or any discrimination in the enjoyment of his rights under the Convention, contrary to Article 14 (Art. 14) of the Convention, on account of his affiliation to the Kirpal Singh sect. The dismissal pronounced by a private savings bank on the ground of the expression of ideas based on the applicant's religious convictions is not imputable to the respondent State and cannot therefore be challenged before the Convention organs.           Nor does it appear that the applicant was refused legal protection by the courts against this dismissal.   He did not pursue the remedies available to him, apparently because his trade union refused to provide him legal assistance for this purpose.   However, the union is again a private organisation whose actions do not engage the State's responsibility under the Convention.           It follows that this part of the application, in so far as it is not incompatible with the Convention ratione personæ, is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   3.       The applicant's further complaint, concerning the proceedings subsequently brought by him against the union concerned, raises the question of the restriction of his right of access to court, as guaranteed by Article 6 para. 1 (Art. 6-1) of the Convention, in view of doubts as to his capacity to conduct proceedings.   The Commission does not find it necessary to determine this question.   It notes that, in the proceedings which led to the appointment of a guardian, the applicant failed to appeal in time against that appointment. He cannot therefore be considered as having exhausted the domestic remedies in respect of this obstacle to the continuation of the proceedings against the union.   Consequently, the Commission is also not required to decide whether the applicant's placement under guardianship was in conformity with Article 8 (Art. 8) of the Convention or whether the guardianship proceedings were conducted in conformity with the requirements of Article 6 para. 1 (Art. 6-1) of the Convention.           It follows that this part of the application must be rejected under Article 27 para. 3 (Art. 27-3) in conjunction with Article 26 (Art. 26) of the Convention.   4.       In so far as the applicant complains that he was twice committed to a mental hospital, it appears that the domestic remedies were effective each time and led to his eventual release.   In these circumstances the applicant can no longer claim to be a victim of a violation of his Convention rights in this respect, and in particular of his right under Article 5 (Art. 5) to liberty and security of person.           It follows that this part of the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2).   5.       In so far as the applicant further alleges that during his hospitalisation he was subjected to inhuman treatment contrary to Article 3 (Art. 3) of the Convention, he has not shown that he exhausted any remedies. This part of the application must accordingly be rejected under Article 27 para. 3 (Art. 27-3) in conjunction with Article 26 (Art. 26) of the Convention.   6.       The applicant finally complains under Article 8 (Art. 8) of the Convention that a letter addressed to him by the Secretariat was withheld by his guardian.   The Commission recalls that complaints concerning interference with an applicant's correspondence with the Commission must be considered under Article 25 para. 1 (Art. 25-1) in fine of the Convention providing that a High Contracting Party who has recognised the right of individual petition undertakes "not to hinder in any way the effective exercise of this right".   The Commission finds, however, that the applicant was not in fact prejudiced, in the presentation of his case to the Commission, by the withholding of the said letter.           For these reasons, the Commission           1.   DECLARES THE APPLICATION INADMISSIBLE;           2.   DECIDES TO TAKE NO FURTHER ACTION IN RESPECT OF THE             ALLEGED INTERFERENCE WITH THE EFFECTIVE EXERCISE OF             THE RIGHT OF INDIVIDUAL PETITION.     Deputy Secretary to the Commission      President of the Commission               (J. RAYMOND)                             (C.A. NØRGAARD)