CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 9 octobre 1991

.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 }                               PARTIAL                        AS TO THE ADMISSIBILITY OF                        Application No. 12976/87                      by H.G.                      against Austria             The European Commission of Human Rights sitting in private on 9 October 1991, the following members being present:                MM.   C.A. NØRGAARD, President                   J.A. FROWEIN                   S. TRECHSEL                   F. ERMACORA                   G. SPERDUTI                   E. BUSUTTIL                   G. JÖRUNDSSON                   A. WEITZEL                   J.C. SOYER                   H.G. SCHERMERS                   H. DANELIUS              Mrs.   G.H. THUNE              Sir   Basil HALL              MM.   F. MARTINEZ                   C.L. ROZAKIS              Mrs.   J. LIDDY              MM.   L. LOUCAIDES                   J.-C. GEUS                   M.P. PELLONPÄÄ                   B. MARXER                Mr.   H.C. KRÜGER, 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 5 December 1986 by H.G. against Austria and registered on 20 May 1987 under file No. 12976/87;           Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;           Having deliberated;           Decides as follows:   THE FACTS           The facts of the case, as they have been submitted by the parties, may be summarised as follows.           The applicant, born in 1944, is an Austrian citizen and resident in Vienna.   Since 23 August 1990 the applicant has been represented by Mr.   R. Proksch, a lawyer practising in Vienna.           The applicant's earlier application No. 9561/81 was declared inadmissible on 4 October 1982.     A.       The particular circumstances of the case           On 15 November 1985 the Salzburg Regional Court (Landes- gericht) issued a warrant of arrest against the applicant.   The Regional Court found that there was a strong suspicion that on 25 October 1985 in Salzburg the applicant had committed a grave theft, namely broken into a car and stolen leather bags.   The Regional Court referred to oral information given by the Salzburg Federal Police Department (Bundespolizeidirektion).   It also noted that the applicant had been seen and been recognised on a photograph.   As the applicant's whereabouts were unknown and he risked a considerable punishment, the Regional Court assumed a danger of absconding.           On 14 May 1986 the Salzburg Regional Court amended the above warrant of arrest against the applicant, who had meanwhile been arrested in the Federal Republic of Germany and was detained on remand at a Munich prison.   The Regional Court found that there was a strong suspicion that on 25 October 1985 in Golling the applicant had committed a further grave theft by having broken into a car and stolen various objects.   It referred to the investigations of the Salzburg Federal Police Department as well as the Golling Police Station (Gendarmerieposten), in particular the statements of witnesses who had recognised the type of car used on the occasion of both offences as well as the applicant when they were shown criminal identification photographs.   The Regional Court, referring to S. 175 para. 1 of the Austrian Code of Criminal Procedure (Strafprozeßordnung), confirmed the danger of absconding as the applicant had no residence in Austria and was detained on remand in the Federal Republic of Germany.   Having regard to the record of the applicant's previous convictions and his recidivism, it also assumed a danger of repetition.           On 24 June 1986 the applicant was extradited to Austria and taken into detention on remand in the Prison at the Salzburg Regional Court on 25 June 1986.           On 2 July 1986 the Salzburg Regional Court dismissed the applicant's request to be released from detention on remand.   Referring to S. 180 of the Code of Criminal Procedure, the Regional Court confirmed the strong suspicion against the applicant that he had committed theft on two counts, and the danger of repetition.   A danger of absconding could, however, no longer be assumed.   The applicant's appeal against the Regional Court's decision was dismissed by the Linz Court of Appeal (Oberlandesgericht) on 16 July 1986.           On 13 August 1986 the Salzburg Regional Court dismissed the applicant's renewed request for release from detention on remand. Referring to the earlier review proceedings, the Regional Court found that the applicant had not made any new relevant submissions.           On 27 August 1986 the Linz Court of Appeal dismissed the applicant's appeal.   As regards the applicant's complaints about his extradition, the Court of Appeal noted that, in the Federal Republic of Germany, the applicant had been detained after a conviction until 24 June 1986.   He had then been extradited without formal extradition proceedings.           Meanwhile, on 12 August 1986, Mr.   W., a lawyer practising in Salzburg, was appointed as the applicant's official defence counsel.           On 18 August 1986 the applicant wrote a letter to his defence counsel and gave it in a sealed envelope to a prison officer for delivery.   According to the applicant, he had sealed the letter in presence of the prison officer.   On the same day the officer returned the letter to the applicant on the ground that, until the indictment had been served upon him (Zustellung der Anklageschrift), also letters to defence counsel had to be passed on unsealed.   He referred, in this respect, to a prison instruction (Dienstverfügung) of 1983.           Thereupon, on the same day, the applicant lodged a complaint with the President of the Salzburg Regional Court, and also laid charges against the Director of the Salzburg Prison.           On 26 September 1986 the Salzburg Public Prosecutor's Office (Staatsanwaltschaft) preferred the indictment (Anklageschrift) against the applicant concerning theft on two counts in October 1985, on one count in April 1986 and an attempted theft also in April 1986.   The bill of indictment was served upon the applicant on 30 September 1986.           On 30 October 1986 the trial was opened before the Salzburg Regional Court.   The applicant contended inter alia that the criminal proceedings against him were unlawful on the ground that his extradition from the Federal Republic of Germany had been based on an incorrect warrant of arrest.   He also complained about his detention on remand and in particular about the refusal of the prison authorities to deliver sealed letters to his defence counsel.   He considered that thus any correspondence with his defence counsel had been rendered impossible, and his defence rights considerably restricted.   In this respect, the Presiding Judge noted that he was competent for the control of the applicant's correspondence and had not seen any correspondence with counsel for some time.           Furthermore, the Regional Court, at the trial, ordered the applicant's detention on remand to continue.           On 10 November 1986 a visit of the applicant's life companion, a witness for the defence, was terminated when their conversation turned to questions of evidence at the trial.   Likewise, on 11 November 1986 the Presiding Judge stopped part of the applicant's letter of 31 October 1986 to his life companion and took it to the file on the ground that it referred to the criminal proceedings, in particular to the testimony to be given by her.           On 19 November 1986 the President of the Salzburg Regional Court, referring to the applicant's complaint of 18 August 1986, instructed the Director of the Salzburg Prison about the procedure concerning correspondence of remand prisoners with defence counsel, in particular S. 45 para. 4 of the Code of Criminal Procedure (Straf- prozeßordnung) in the version in force at that time (amendment in force as from 1 January 1988).   In the circumstances of the applicant's case, his correspondence with his defence counsel was not subject to any further control and could, after control for prohibited money or other objects, be sealed in the presence of a prison officer and then be delivered.   Any other correspondence had to be delivered unsealed.   The applicant should be informed that this procedure would be respected in future, as it had been respected in the past.   The applicant was so informed on 29 November 1986.           On 27 November 1986 the Salzburg Regional Court convicted the applicant of theft on two counts and attempted theft on a further count, and sentenced him to three years' imprisonment.   The Regional Court found that the applicant had broken into two cars at different places near Salzburg on 25 October 1985 and had attempted to steal objects from a car near Vienna on 25 April 1986.           The Regional Court proceeded from the evidence of several witnesses, the victims of the offences in question, who had first recognised the applicant on criminal identification photographs and then, at the trial, had described the car used by him.   The witnesses had appeared to be very reliable.   Some slight divergences between their statements in court and earlier statements before police authorities had been explained at the trial.   The Regional Court dismissed several requests by the defence to take further evidence.   It considered that thereby the applicant's defence rights were not affected as the applicant's guilt could be clearly established on the basis of the evidence obtained at the trial.   As regards the various requests, in particular the taking of technical and expert evidence, the inspection of a locality, the hearing of a police officer, the Regional Court gave detailed reasons that such evidence was unnecessary and irrelevant to the case.           After pronouncement of the judgment the applicant lodged a plea of nullity (Nichtigkeitsbeschwerde) and an appeal against sentence (Berufung).           It appears from records of the Salzburg Prison that the applicant further corresponded with his defence counsel in December 1986 and in the beginning of 1987.           On 28 January 1987 the Linz Court of Appeal dismissed various complaints of the applicant, insofar as they concerned alleged irregularities by the criminal courts.   The Court of Appeal found in particular that the Investigating Judge had not violated the applicant's rights of defence.   The applicant had not substantiated his claim that the Investigating Judge had impaired the applicant's correspondence with his official defence counsel: there were no such indications in the file, e.g. submissions of counsel.   The assessment of evidence, including alleged irregularities concerning the identification photographs, was the task of the trial court. Furthermore, there was nothing to indicate that the Presiding Judge     had hindered the defence in putting questions to the witnesses: it appeared from the record of the trial that at the end of a testimony no further questions had been put to the witness concerned.   Moreover, the Court of Appeal confirmed that the visit of the applicant's life companion had been lawfully terminated and that part of his letter to her had been lawfully stopped.           On 20 March 1987 the applicant filed the reasons for his plea of nullity and for his appeal.   Referring to S. 281 para. 1 (4) of the Code of Criminal Procedure, he submitted in particular that he had been refused to comment immediately upon the statement of one witness, and had subsequently not been invited to comment upon the statements of each witness.   Furthermore, the applicant's defence rights had been impaired in that during the period from 18 August until 27 November 1986 he could not correspond with his defence counsel.   He described the incident on 18 August and alleged that the contents of the envelope concerned had been controlled before he sealed it.   He also complained about the refusal to take further evidence.   The applicant's further submissions concerned the reasoning of the judgment.           On 5 May 1987 the Supreme Court (Oberster Gerichtshof) rejected the plea of nullity.   The Supreme Court considered that the applicant's rights of defence had not been unduly restricted.           The Supreme Court considered in particular that the applicant had been able to put questions to the witnesses and comment immediately upon their statements; only a further general comment upon the statement of a witness had been correctly refused.   The alleged problems concerning the applicant's correspondence with his defence counsel had not been subject of a request at the trial and could not therefore be raised under S. 281 para. 1 (4) of the Code of Criminal Procedure.   The Regional Court's taking of evidence and the reasoning of its judgment could not be objected to.           On 26 May 1987 the Supreme Court, upon the applicant's appeal, reduced his sentence to two years and nine months' imprisonment.           In the course of his detention on remand, twice disciplinary sanctions of fifteen and ten days' solitary confinement (strenger Hausarrest) respectively had been imposed on the applicant.   His complaints in this respect were dismissed by the President of the Salzburg Regional Court.   Furthermore, in May and June 1987 the President of the Salzburg Regional Court dismissed various complaints lodged by the applicant about the conditions of his detention, inter alia, about the delayed delivery of letters, several refusals of particular magazines as well as other material.   The applicant's complaint with the Constitutional Court (Verfassungsgerichtshof) concerning some of these matters was dismissed in summary proceedings. In June 1988 the Administrative Court (Verwaltungsgerichtshof) rejected the applicant's complaints in this respect on the ground that he was no longer a remand prisoner.           On 7 September 1988 the Federal Ministry of Justice (Bundesministerium der Justiz) dismissed complaints concerning the applicant's detention, inter alia, the prison food, the length of visits, and the delayed delivery of mail.   The applicant's constitutional complaint was dismissed in summary proceedings.   On 6 February 1989 the Administrative Court dismissed the applicant's request for free legal aid to pursue these complaints on the ground that they lacked any prospect of success.           On 16 September 1988 the Federal Ministry of Justice dismissed the applicant's complaint that on 29 November 1987 a letter to his mother had been stopped.   The Ministry found that the letter contained instructions to the applicant's mother to send various goods and money to several other prisoners.   The applicant had thus intended to trade in goods which would have contravened the prison order.   At the same date numerous other complaints of the applicant concerning other detention matters were also dismissed.           On 13 November 1988 the applicant addressed a complaint marked "private" to the Federal Minister of Justice, which was returned to him on 17 November 1988, acceptance having been refused. On 29 November 1988 a Member of Parliament, upon the applicant's request, transmitted the submissions in question to the Federal Minister of Justice, who passed them on for further action.   The letter in reply from the Member of Parliament to the applicant, dated 30 November 1988, was opened by a prison officer and controlled before delivery.           On 12 May 1989 the Krems Regional Court dismissed the applicant's request to institute criminal proceedings against the prison officer who had opened the above letter from the Member of Parliament.   The Regional Court found that under S. 90 of the Enforcement of Sentences Act (Strafvollzugsgesetz) only letters to privileged addressees, inter alia, Members of Parliament, were exempted from any control, whereas any incoming mail could be opened.           On 9 June 1989 the Federal Ministry of Justice dismissed the applicant's complaint that mail addressed to the applicant by the European Commission of Human Rights had been opened.   The Ministry, referring to S. 90 of the Enforcement of Sentences Act, considered that even correspondence from privileged addressees such as the Commission had to be opened in order to stop unlawful sending of money or other objects.           The applicant also unsuccessfully filed numerous applications to have criminal proceedings instituted against judges, prison and police officers and the witnesses involved in the criminal proceedings against him.           The applicant served his sentence until 24 March 1989.   His requests for conditional release at earlier dates had remained unsuccessful.   B.       Relevant domestic law and practice           S. 45 para. 4 of the Austrian Code of Criminal Procedure (Strafprozeßordnung) in the version in force until 1 January 1988 concerns correspondence of a remand prisoner with his defence counsel. It provides that the correspondence of the remand prisoner with his defence counsel is subject to control by the Investigating Judge (S. 187) only until communication of the bill of indictment, and only if he is detained inter alia or exclusively for danger of collusion.           S. 187 para. 1 of the Code of Criminal Procedure provides that, notwithstanding S. 45 of this Code and SS. 85 and 88 of the Enforcement of Sentences Act, remand prisoners may correspond with and receive visits from all persons who are not likely to prejudice the purpose of the detention on remand.   Paragraph 2 regulates limitations on correspondence of an exceptional volume, and also provides that letters likely to prejudice the purpose of detention or giving rise to the suspicion that through them an offence is being committed may be withheld, save SS. 88 and 90 para. 4 of the Enforcement of Sentences Act on correspondence with authorities and counsel, or letters to national bodies or the European Commission of Human Rights.           According to S. 188 of the Code of Criminal Procedure the Investigating Judge is in general competent for the control of correspondence and all other orders and decisions concerning the contact of remand prisoners with the outside world.           S. 90 of the Enforcement of Sentences Act (in the version in force until 1 January 1988), which also applies to remand prisoners (S. 183 of the Code of Criminal Procedure), provides in paragraph 1 that all correspondence of convicted prisoners may be controlled to the extent necessary to hold back unlawfully sent money or other objects.   According to paragraph 4 of this provision, correspondence with and from particular bodies and persons mentioned in S. 88 para. 1 (1), (2) and para. 2, for instance domestic public authorities, the European Commission of Human Rights, lawyers, defence counsel, should not be held back.           S. 119 et seq. of the Enforcement of Sentences Act govern the prisoners' right of complaint about conditions of their detention (S. 119) or acts of prison staff allegedly violating their rights (S. 120 para. 1).   Complaints have to be lodged with the competent officer of the prison concerned (S. 120 para. 2).   Such complaints are examined by the Director of the Prison, or by the Federal Ministry of Justice, if the complaint is directed against the Director of the Prison and he did not give redress (S. 121).   The decisions of first instance are subject to review by the Administrative Court and the Constitutional Court in accordance with SS. 130 and 144 of the Federal Constitution (Bundesverfassungsgesetz).           On 30 June 1983 the Director of the Prison at the Salzburg Regional Court issued an instruction (Dienstverfügung) according to which the inmates of that prison had to hand in their correspondence, without exception, unsealed to the division officer, and likewise all incoming correspondence would be handed to them opened.   Remand prisoners' correspondence with their defence counsel, provided they   have received the bill of indictment, could, after control of their contents for unlawful sendings of money or other objects, be sealed in the presence of a prison officer and handed over.   Correspondence from counsel would be opened in the presence of a prison officer and, after control for unlawful sendings of money or other objects, the prisoner concerned could keep it.   Prison officers had to control mail to the extent necessary to stop unlawful sendings of money or other objects. The instruction further stated that the contents of remand prisoners' correspondence could only be censored by the Investigating Judge; however, the prison officer had to control it in respect of unlawful enclosures.     COMPLAINTS   1.       The applicant complains under Article 5 of the Convention that he was unlawfully detained on remand following unlawful extradition proceedings.   He alleges that the warrant of arrest of May 1986 contained factual statements which were at variance with the results of the investigations.   2.       The applicant further complains under Article 6 paras. 1, 2 and 3 (b), (c) and (d) of the Convention about his conviction by the Salzburg Regional Court on 27 November 1986 and also about the conduct of the criminal proceedings concerned.           He submits that the presumption of innocence was violated during the investigation of the case.   Some formulations of the court decisions concerning his detention on remand showed that he was already considered guilty.           He claims that he did not have a fair trial by an impartial court and that his rights of defence were disregarded as the Salzburg Regional Court dismissed his request to take further evidence, and based its judgment on unproven and incorrect facts and assumptions. He also submits that he was not allowed to comment immediately on the statements of each witness.           He finally complains that the preparation of his defence was restricted by the refusal of uncontrolled correspondence with his defence counsel prior to the trial.   3.       The applicant complains under Article 8 of the Convention about the control and delays in prison of his correspondence with his defence counsel, his relatives, with public authorities and a Member of Parliament.   4.       The applicant considers that he did not have an effective remedy before a national authority, as required by Article 13 of the Convention, in respect of the control of his correspondence, and generally regarding complaints concerning the prison conditions.   5.       The applicant moreover complains under Article 25 para. 1 in fine of the Convention that the Austrian authorities hindered the effective exercise of his right to petition the Commission by withholding necessary documents, depriving him of the application form, and opening letters to him by the Commission.   PROCEEDINGS BEFORE THE COMMISSION           The application was introduced on 5 December 1986 and registered on 20 May 1987.           On 14 December 1989 the Commission decided to bring the application to the notice of the respondent Government and invite them to submit written observations on its admissibility and merits.           The Government's observations were submitted on 30 March 1990.           On 18 May 1990 the Commission decided to grant the applicant legal aid.           On 28 May 1990 the time-limit for submission of the applicant's observations in reply was suspended pending determination of his representative in the proceedings before the Commission.   His observations were submitted on 20 December 1990.     THE LAW   1.       The applicant complains that his extradition and subsequent detention on remand in Austria were unlawful.   This complaint relates to Article 5 para. 1 (c) (Art. 5-1-c) of the Convention which provides:   "1.      Everyone has the right to liberty and security of person.   No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: ...           (c)      the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; ..."           The Commission finds that according to the warrant of arrest issued by the Salzburg Regional Court in May 1986 as well as the Regional Court's subsequent decisions on the applicant's detention on remand, there was a strong suspicion that he had committed several criminal offences, in particular theft, and that there was a danger of repetition.   In its decisions the Regional Court, referring to the relevant provisions of the Austrian Code of Criminal Procedure, duly considered the results of the investigations and trial, respectively.           There is nothing in the applicant's submissions, in particular as regards the preceding extradition procedure, to suggest that his detention on remand was not lawful and not in accordance with a procedure prescribed by Austrian law, within the meaning of Article 5 para. 1 (c) (Art. 5-1-c) of the Convention.           It follows that this part of the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.       The applicant further complains under Article 6 paras. 1, 2 and 3 (b), (c) and (d) (Art. 6-1, 6-2, 6-3-b , 6-3-c, 6-3-d) of the Convention about his conviction by the Salzburg Regional Court on 27 November 1986 and also about the conduct of the criminal proceedings concerned.   a.       With regard to the judicial decision of which the applicant complains, the Commission recalls that, in accordance with Article 19 (Art. 19) of the Convention, its only task is to ensure the observance of the obligations undertaken by the Parties in the Convention.   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 it considers that such errors might have involved a possible violation of any of the rights and freedoms set out in the Convention (see e.g.   No. 458/59, Dec. 29.3.60, Yearbook 3 pp. 222, 236; No. 5258/71, Dec. 8.2.73, Collection 43 pp. 71, 77; No. 7987/77, Dec. 13.12.79, D.R. 18 pp. 31, 45).   b.       The applicant complains under Article 6 para. 2 (Art. 6-2) of the Convention that in the course of the investigation proceedings he was already treated as guilty.           The Commission, assuming that the applicant has exhausted domestic remedies in this respect, considers that the decisions and measures taken by the Austrian authorities against the applicant before his conviction do not disclose any disregard of the principle of the presumption of innocence.   In particular, the warrant of arrest of May 1986 as well as the Regional Court's decisions on the applicant's detention on remand give reasons for the strong suspicion against the applicant.   There is no formulation containing already a finding of guilt.   c.       The applicant further complains that he did not have a fair trial by an impartial court and that his rights of defence were disregarded on the grounds that the Salzburg Regional Court dismissed his request to take further evidence, and based its judgment on unproven and incorrect facts and assumptions.   He also submits that he was not allowed to comment immediately on the statements of each witness.           The Commission finds that the conduct of the criminal proceedings by the Salzburg Regional Court leading to the applicant's conviction do not disclose any appearance of lacking impartiality. The Regional Court's taking and assessment of evidence does not appear incorrect or arbitrary.   In particular, the refusal to take further evidence as requested by the applicant was based on the lack of relevance of the evidence concerned and cannot be objected to under Article 6 (Art. 6).           Furthermore, there is nothing to indicate that the defence rights of the applicant, who was represented by counsel, concerning the questioning of witnesses in court were restricted, or that he did not have a fair opportunity to put forward his arguments in respect of the statements of these witnesses.           It follows that these complaints are also manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   3.       The applicant complains under Article 8 (Art. 8) of the Convention about control and delays in prison of his correspondence with his relatives, with public authorities and a Member of Parliament. Article 8 (Art. 8) provides:   "1.       Everyone has the right to respect for his private and family life, his home and his correspondence.   2.       There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."           The Commission recalls that the control of prisoners' correspondence, while an interference with their right to respect for correspondence, is not in itself incompatible with the Convention (Eur.   Court H.R., Silver and Others judgment of 25 March 1983, Series A no. 61, p. 38, para. 98;   Campbell v. the United Kingdom, Comm. Report 12.7.90, paras. 41 - 48 with further references).           The Commission notes that on 11 November 1986 the Investigating Judge decided to stop the part of the applicant's letter to his life companion of 31 October 1986 which referred to the trial pending against the applicant, where his life companion was called as a witness for the defence.   The Commission finds that this interference could be regarded as necessary in a democratic society for the prevention of disorder and crime, and was thus justified under Article 8 para. 2 (Art. 8-2) of the Convention.           Furthermore, the Commission finds that, as the applicant's letter of 13 November 1988, submitting a complaint to the Minister of Justice marked "private", was returned in application of procedural rules governing complaints by prisoners, there is no indication of a violation of Article 8 (Art. 8) of the Convention.           As regards the opening of a letter from a Member of Parliament to the applicant, the Commission, assuming exhaustion of domestic remedies, notes that the letter in question was not stopped or delayed in any way.   In these circumstances and having regard to Article 8 para. 2 (Art. 8-2) there is no appearance of a violation of Article 8 (Art. 8) of the Convention.           Furthermore, the Commission, having considered the applicant's general complaints about delays and control of his other correspondence with relatives and public authorities, finds that his submissions in these respects do not disclose a violation of his right to respect for correspondence.           It follows that this part of the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   4.       The applicant considers that he did not have an effective remedy before a national authority, as required by Article 13 (Art. 13) of the Convention, in respect of the control of his correspondence with relatives, public authorities and a Member of Parliament, as well as generally regarding complaints concerning the prison conditions.           Article 13 (Art. 13) reads as follows:        "Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity."           The Commission recalls that Article 13 (Art. 13) secures an effective remedy before a national "authority" to anyone claiming on arguable grounds to be the victim of a violation of his rights and freedoms as protected in the Convention (cf.   Eur.   Court H.R., Plattform "Ärzte für das Leben" judgment of 21 June 1988, Series A no. 139, p. 11, paras. 25, 27).           In the circumstances of the present case, the applicant's complaints, insofar as they are related to Convention rights, do not show any appearance of a violation and cannot, therefore, be regarded as arguable claims within the meaning of Article 13 (Art. 13).           This part of the application is, therefore, also manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   5.       Moreover, the applicant complains that prior to the trial he was denied uncontrolled correspondence with his defence counsel, and that thereby the preparation of his defence was impaired.   He refers in particular to the stopping of a sealed letter to his defence counsel on 18 August 1986.   He invokes Articles 6 and 8 (Art. 6, 8) of the Convention.   Furthermore, he claims that he did not have an effective remedy in this respect, as required by Article 13 (Art. 13) of the Convention.           He also complains under Article 8 (Art. 8) of the Convention that correspondence from the Commission was opened by the prison authorities.   a.       As regards the applicant's complaint about the stopping of a sealed letter to his defence counsel on 18 August 1986, the Commission notes that the President of the Salzburg Regional Court did not take a formal decison upon the applicant's complaint about this incident.   On 19 November 1986 he sent instructions to the Director of the Salzburg Prison concerning the legal provisions on the control of correspondence from remand prisoners, and their application in the applicant's case.   He assumed that these rules would be correctly applied in the future, as in the past.   The applicant was informed about the letter on 29 November 1986.           In these circumstances, the Commission, taking in particular the delayed information of the applicant into account, considers that the action taken by the President of the Salzburg Regional Court upon the applicant's specific complaint did not give redress.   With regard to the control of his correspondence with defence counsel, the applicant may, therefore, still claim to be a victim of a violation of his Convention rights within the meaning of Article 25 para. 1 (Art. 25-1) of the Convention.   b.       The Government contend that the applicant failed to exhaust, as required under Article 26 (Art. 26) of the Convention, the remedies available to him under Austrian law with regard to his complaint about the control of his correspondence with his defence counsel.   The Supreme Court had not examined this complaint lodged in the applicant's plea of nullity on the ground that it had not been raised at the trial.           The Commission recalls that the burden of proving the existence of available and sufficient domestic remedies lies upon the State invoking the rule (cf.   Eur.   Court H.R., Deweer judgment of 27 February 1980, Series A no. 35, p. 15, para. 26).           The Commission notes that the applicant did not only lodge a complaint with the President of the Salzburg Regional Court about the stopping of the letter to his defence counsel.   He also raised the issue of correspondence with counsel and resulting restrictions of his defence rights at the trial on 30 October 1986.   The Government did not show to what extent the applicant could have made a further particular request at the trial, which could have been subject to review by the Supreme Court.           The Commission finds that in this respect the applicant has exhausted the domestic remedies available to him under Austrian law.   c.       The Commission considers that the applicant's complaints about the control of his correspondence with his defence counsel and with the Commission as well as the absence of an effective remedy in this respect raise difficult issues of fact and law which are of such complexity, that their determination should depend upon a full examination of the merits.   These complaints cannot, therefore, be declared manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   No other ground for declaring them inadmissible has been established.   6.       The Commission has further considered the applicant's (Art. complaint under Article 25 para. 1 (Art. 25-1) in fine of the Convention that the Austrian authorities hindered the effective exercise of his right to petition the Commission by withholding necessary documents, depriving him of the application form, and opening letters to him from the Commission.   Article 25 para. 1 provides: (Art. 25-1)   "The Commission may receive petitions addressed to the Secretary General of the Council of Europe from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in this Convention, provided that the High Contracting Party against which the complaint has been lodged has declared that it recognises the competence of the Commission to receive such petitions.   Those of the High Contracting Parties who have made such a declaration undertake not to hinder in any way the effective exercise of this right."           As the Commission has found that the matter of opening of its letter to the applicant by the prison authorities raised a prima facie issue under Article 8 (Art. of the Convention, it considers that the applicant's complaint under Article 25 para. 1 (Art. 25-1) should also be further examined.             For these reasons, the Commission, by a majority,           DECLARES ADMISSIBLE the applicant's complaints about         the control of his correspondence with his defence counsel and         resulting restrictions on his defence (Articles 6 and 8         (Art. 6, 8) of the Convention) and the absence of an         effective remedy in this respect (Article 13 (Art. 13) of         the Convention), as well as his complaint about the opening         of a letter from the Commission (Article 8 (Art. 8) of the         Convention), without prejudging the merits;           DECLARES INADMISSIBLE the remainder of the application;           DECIDES TO EXAMINE FURTHER whether the applicant was         hindered in the effective exercise of his right of petition         under Article 25 para. 1 (Art. 25-1) in fine of the Convention.     Secretary to the Commission                President of the Commission              (H.C. KRÜGER)                            (C.A. NØRGAARD)