هيثم الفقى
07-15-2009, 12:21 AM
THE FACTS
Whereas the facts presented by the Applicant may be summarised as
follows:
The Applicant is an Austrian citizen, born in and at present detained
in prison at A.
From his lengthy statements and from the documents submitted by him,
it appears that, in 1959, he was convicted by the Regional Court
(Kreisgericht)at B on charges of theft and homo***ual offences and
sentenced to six years' severe imprisonment (schwerer Kerker), with the
additional penalty of "sleeping hard" (hartes Lager) and a fasting day
once every three months. He lodged a joint appeal (Berufung) and plea
of nullity (Nichtigkeitsbeschwerde) and the Office of the Public
Prosecutor lodged an appeal from this judgment.
The Supreme Court (Oberster Gerichtshof) examined the Applicant's plea
of nullity in a public session in 1960 in the presence both of counsel
for the defence and of a representative of the Office of the
Attorney-General (Generalprokurator). The Court dismissed the plea of
nullity.
The Supreme Court then examined the appeals in camera and, after
hearing the representative of the Attorney-General, it dismissed the
Applicant's appeal but allowed the appeal lodged by the Public
Prosecutor and ordered that the Applicant should be committed to a
labour institution (Arbeitshaus) after the expiration of his term of
imprisonment.
In 1962, the Applicant addressed himself to the Constitutional Court
(Verfassungsgerichtshof) but, by letter of 1962 from the Constitutional
Court, he was informed that this Court was not competent to deal with
his case.
The Applicant now complains that he was wrongly convicted in 1959/1960.
He states in particular:
1. that certain witnesses were influenced by the police authorities to
give evidence against him;
2. that he was not properly confronted with those witnesses at the
trial.
3. that, in the record of the trial, his own statements were reproduced
incorrectly;
4. that, at the trial, he was slandered by the presiding judge;
5. that the Supreme Court did not hear him in person;
6. that, between January and February and in August 1962, he was
subjected to disciplinary measures in connection with his present
Application to the Commission;
7. that, between March 1959 and March 1960, his letters to his wife,
parents and relatives were seized;
8. that living conditions in the prison are inadequate;
9. that he became ill when he was put into solitary confinement in a
basement cell for having violated prison rules.
The Applicant alleges violations of Articles 1 and 2, paragraph (1),
Articles 3 and 5, paragraph (1), sub-paragraphs (a) to (c), Article 6,
paragraph (3), sub-paragraphs (c) and (d), Article 7, paragraph (1),
and Articles 8 and 14 of the Convention. He claims compensation for the
damage suffered by him.
Proceedings before the Commission
On 23rd July 1963 the Commission decided:
1. to declare inadmissible parts of the Application which related to
the Applicant's conviction and sentence, to the alleged seizure of
letters from him to his family, to the living conditions in the prison
and to his detention in solitary confinement;
2. to invite the Respondent Government to submit its observations on
the Applicant's remaining allegation that the authorities interfered
with the submission of his complaint to the Commission to the extent
that he was subjected to disciplinary measures in connection with his
present Application.
Under cover of a letter dated 26th August 1963, the Respondent
Government submitted the following observations:
"It is untrue that the prisoner X was subjected to disciplinary
measures in 1962 for lodging an application with the European
Commission of Human Rights. Disciplinary action was taken against him
because, over a period of time and in addition to the stationery issued
to him, he unlawfully appropriated (stole) and hoarded specific types
of stationery for other purposes. In the interests of the maintenance
of prison order and discipline, such behaviour could clearly not be
tolerated, the more so since prisoners who wish to lodge an application
with the European Commission of Human Rights are immediately given
the necessary stationery.
It is true that, in January 1962, the prisoner was deprived of
privileges for a month as a disciplinary measure for the insults
levelled at Austrian justice in general and prison administrations in
particular, in an application addressed to the Commission in which he
used such expressions as: murderers of justice, murderers of the
people, court terror, robbers of freedom, double-dealing, Nazi
hierarchy, etc.
It is obvious that such slander cannot be tolerated by the judicial
authorities and calls for disciplinary measures.
The Federal Ministry of Justice consequently considers that the
Commission should declare this part of the Application inadmissible
also."
THE LAW
Whereas the Commission considers that, by its partial decision of 23rd
July 1963, the Application was declared inadmissible;
Whereas the Commission has now examined the Applicant's further
complaint under Article 25 (Art. 25) of the Convention that the
authorities interfered with the submission of his complaints to the
Commission to the extent that he was subjected to disciplinary measures
in connection with his present Application;
Whereas the Commission has carefully considered, in the light of the
last sentence of Article 25, paragraph (1) (Art. 25-1) of the
Convention, the punishment by prison or judicial authorities of an
Applicant to the Commission, on account of particular statements, made
by him in his Application, or of the terms in which they were
expressed;
Whereas the Commission considers that it would be more in accord with
the spirit of the Convention that letters addressed to the Secretary
should not first be submitted unsealed to the prison authorities;
Whereas, nevertheless, it recognises that Governments may have
reasonable grounds for making this requirement; whereas the Commission
believes, however, that the right of individual petition could be
seriously impaired if an Applicant were deterred by punishment from
proceeding further with his Application, or if others were deterred by
the threat of punishment from making statements in their Application
which they believed to be justified;
Whereas, nevertheless, the Commission also recognises that it is no
part of the effective exercise of the right of petition to make
unnecessary or irrelevant offensive statements in an Application;
Whereas the Commission believes that in the case of X the punishment
imposed might be considered as a violation of Article 25, paragraph (1)
(Art. 25-1), because of its general deterrent effects as indicated
above;
Whereas, however, it does not consider that X's Application was in fact
frustrated and therefore decides in this case to take no further steps.
Whereas the facts presented by the Applicant may be summarised as
follows:
The Applicant is an Austrian citizen, born in and at present detained
in prison at A.
From his lengthy statements and from the documents submitted by him,
it appears that, in 1959, he was convicted by the Regional Court
(Kreisgericht)at B on charges of theft and homo***ual offences and
sentenced to six years' severe imprisonment (schwerer Kerker), with the
additional penalty of "sleeping hard" (hartes Lager) and a fasting day
once every three months. He lodged a joint appeal (Berufung) and plea
of nullity (Nichtigkeitsbeschwerde) and the Office of the Public
Prosecutor lodged an appeal from this judgment.
The Supreme Court (Oberster Gerichtshof) examined the Applicant's plea
of nullity in a public session in 1960 in the presence both of counsel
for the defence and of a representative of the Office of the
Attorney-General (Generalprokurator). The Court dismissed the plea of
nullity.
The Supreme Court then examined the appeals in camera and, after
hearing the representative of the Attorney-General, it dismissed the
Applicant's appeal but allowed the appeal lodged by the Public
Prosecutor and ordered that the Applicant should be committed to a
labour institution (Arbeitshaus) after the expiration of his term of
imprisonment.
In 1962, the Applicant addressed himself to the Constitutional Court
(Verfassungsgerichtshof) but, by letter of 1962 from the Constitutional
Court, he was informed that this Court was not competent to deal with
his case.
The Applicant now complains that he was wrongly convicted in 1959/1960.
He states in particular:
1. that certain witnesses were influenced by the police authorities to
give evidence against him;
2. that he was not properly confronted with those witnesses at the
trial.
3. that, in the record of the trial, his own statements were reproduced
incorrectly;
4. that, at the trial, he was slandered by the presiding judge;
5. that the Supreme Court did not hear him in person;
6. that, between January and February and in August 1962, he was
subjected to disciplinary measures in connection with his present
Application to the Commission;
7. that, between March 1959 and March 1960, his letters to his wife,
parents and relatives were seized;
8. that living conditions in the prison are inadequate;
9. that he became ill when he was put into solitary confinement in a
basement cell for having violated prison rules.
The Applicant alleges violations of Articles 1 and 2, paragraph (1),
Articles 3 and 5, paragraph (1), sub-paragraphs (a) to (c), Article 6,
paragraph (3), sub-paragraphs (c) and (d), Article 7, paragraph (1),
and Articles 8 and 14 of the Convention. He claims compensation for the
damage suffered by him.
Proceedings before the Commission
On 23rd July 1963 the Commission decided:
1. to declare inadmissible parts of the Application which related to
the Applicant's conviction and sentence, to the alleged seizure of
letters from him to his family, to the living conditions in the prison
and to his detention in solitary confinement;
2. to invite the Respondent Government to submit its observations on
the Applicant's remaining allegation that the authorities interfered
with the submission of his complaint to the Commission to the extent
that he was subjected to disciplinary measures in connection with his
present Application.
Under cover of a letter dated 26th August 1963, the Respondent
Government submitted the following observations:
"It is untrue that the prisoner X was subjected to disciplinary
measures in 1962 for lodging an application with the European
Commission of Human Rights. Disciplinary action was taken against him
because, over a period of time and in addition to the stationery issued
to him, he unlawfully appropriated (stole) and hoarded specific types
of stationery for other purposes. In the interests of the maintenance
of prison order and discipline, such behaviour could clearly not be
tolerated, the more so since prisoners who wish to lodge an application
with the European Commission of Human Rights are immediately given
the necessary stationery.
It is true that, in January 1962, the prisoner was deprived of
privileges for a month as a disciplinary measure for the insults
levelled at Austrian justice in general and prison administrations in
particular, in an application addressed to the Commission in which he
used such expressions as: murderers of justice, murderers of the
people, court terror, robbers of freedom, double-dealing, Nazi
hierarchy, etc.
It is obvious that such slander cannot be tolerated by the judicial
authorities and calls for disciplinary measures.
The Federal Ministry of Justice consequently considers that the
Commission should declare this part of the Application inadmissible
also."
THE LAW
Whereas the Commission considers that, by its partial decision of 23rd
July 1963, the Application was declared inadmissible;
Whereas the Commission has now examined the Applicant's further
complaint under Article 25 (Art. 25) of the Convention that the
authorities interfered with the submission of his complaints to the
Commission to the extent that he was subjected to disciplinary measures
in connection with his present Application;
Whereas the Commission has carefully considered, in the light of the
last sentence of Article 25, paragraph (1) (Art. 25-1) of the
Convention, the punishment by prison or judicial authorities of an
Applicant to the Commission, on account of particular statements, made
by him in his Application, or of the terms in which they were
expressed;
Whereas the Commission considers that it would be more in accord with
the spirit of the Convention that letters addressed to the Secretary
should not first be submitted unsealed to the prison authorities;
Whereas, nevertheless, it recognises that Governments may have
reasonable grounds for making this requirement; whereas the Commission
believes, however, that the right of individual petition could be
seriously impaired if an Applicant were deterred by punishment from
proceeding further with his Application, or if others were deterred by
the threat of punishment from making statements in their Application
which they believed to be justified;
Whereas, nevertheless, the Commission also recognises that it is no
part of the effective exercise of the right of petition to make
unnecessary or irrelevant offensive statements in an Application;
Whereas the Commission believes that in the case of X the punishment
imposed might be considered as a violation of Article 25, paragraph (1)
(Art. 25-1), because of its general deterrent effects as indicated
above;
Whereas, however, it does not consider that X's Application was in fact
frustrated and therefore decides in this case to take no further steps.