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07-15-2009, 12:38 AM
L.R. v. AUSTRIA - 2424/65 [1966] ECHR 3 (24 May 1966)
THE FACTSWhereas the facts of the case as presented by the Applicant may besummarised as follows:The Applicant is an Austrian citizen, born in 1911 and at presentliving in Vienna. He is represented before the Commission by Dr.Herbert Schaller, a lawyer practising in Vienna.----------------------(1) The Commission's partial decisions of 1 June and 24 September 1965have not been published.----------------------At the request of the Austrian authorities, he was arrested in Germanyon 22 June 1961 and was detained there pending extradition(Auslieferungshaft) until 21 December 1961, when he was extradited toAustria.Following his extradition, he was held in detention on remand(Untersuchungshaft) in Austria. On 31 October and 6 November 1962, helodged requests for his release (Haftbeschwerden) which were rejectedon 21 December 1962 by the Judges' Chamber (Ratskammer) of the RegionalCourt for Criminal Cases (Landesgericht für Strafsachen) in Vienna. Hisappeal from that decision was rejected on 19 February 1963 by the Courtof Appeal (Oberlandesgericht) in Vienna.In November 1963, the preliminary investigation was completed and thefile was transferred to the Public Prosecutor who, on 17 March 1964,issued the indictment (Anklageschrift) against the Applicant. In thisindictment, he was charged with a number of offenses of fraud.On 9 November 1964, the trial opened before the Regional Court but, on18 June 1965, the proceedings were adjourned sine die pending furtherinvestigations by the investigating judge. On the same day, a requestby the Applicant for his release was rejected by the Regional Court.On his appeal from that decision, the Court of Appeal decided, however,that the Applicant should be released on parole (Gelöbnis) and bail(Kaution oder Bürgschaft) to be determined by the Regional Court. InJuly 1965, the Applicant was released on bail of 20,000 Schillings.The Applicant made a number of allegations which were directed againstthe German and Austrian Governments and which mostly concerned hisdetention and the proceedings against him. He invoked a great manyprovisions of the Convention including Articles 5, paragraph (3), and6, paragraphs (1) and (2).Proceedings before the CommissionWhereas the proceedings before the Commission may be summarised asfollows;On 17 February 1965, the President of the Commission decided to giveprecedence to this Application under Rule 38 of the Commission's Rulesof Procedure.On the same day, the Application was examined by a group of threemembers of the Commission pursuant to Rule 45, paragraph 1, of theRules of Procedure. The group reported unanimously that the Applicationappeared admissible in so far as it was directed against Austria andconcerned the alleged violations of Articles 5, paragraph (3), and 6,paragraphs (1) and (2), of the Convention. Consequently, the Presidentof the Commission, acting in accordance with Rule 45, paragraph 2, ofthe Rules of Procedure, gave notice of these parts of the Applicationto the Austrian Government and invited it to submit its observationsin writing on the admissibility.In its observations submitted on 26 April 1965, the Austrian Governmentmaintained that the Application, in so far as it had been communicatedto the Government, was inadmissible as being manifestly ill-founded.The Applicant's reply to the Austrian Government's observations wassubmitted on 12 May 1965.On 1 June 1965, the Commission decided:(a) to declare the Application inadmissible in regard to the allegedviolations of the Convention by the German Government and certain ofthe alleged violations by the Austrian Government;(b) to invite the Parties to make oral explanations on theadmissibility of those parts of the Application which had already beencommunicated to the Austrian Government;(c) to ask the German Government for information as to the Applicant'sallegation that, during his detention in Germany, his right tocommunicate with the Commission had been violated.As regards the question of interference with the Applicant'scorrespondence with the Commission, the German Government submitted itscomments on 6 August, 1965 and the Commission decided, on 24 September1965, in the light of these comments, not to take any further actionin this regard.As regards the remaining complaints directed against Austria, an oralhearing was fixed for 12 July 1965. The Applicant informed theCommission that he would be represented by a certain lawyer in Vienna,but on 8 July 1965, the Secretary to the Commission was informed bythat lawyer that he would not appear at the hearing and that theApplicant had asked for an adjournment.On 12 July 1965, the Commission rejected the application foradjournment and the hearing was held in the absence of the Applicant'srepresentative.During the hearing, the Government's representative objected to certainparts of the Applicant's written submissions in the case which, in theGovernment's opinion, were insulting and provocative. Without makingany specific request, the Government's representative suggested thatthe Commission should take measures to protect the Republic of Austriaagainst such defamatory remarks as had been made by the Applicant. Inview of the Government's objections, the Commission decided to invitethe Applicant to withdraw or amend certain parts of his submissionswhich the Commission found objectionable.By letter received on 13 August 1965, the Applicant informed theCommission that he was not willing to withdraw or amend the passagesconcerned. In view of the contents of this letter, the Commissiondecided, on 24 September 1965, to state to the Applicant that, unlesshe informed the Commission within a certain time-limit that he waswilling to withdraw or amend the relevant parts of his submissions, theCommission would consider whether or not it should declare theApplication to be inadmissible on the ground of its being an abuse ofthe right of petition within the meaning of Article 27, paragraph (2),of the Convention. In reply, the Applicant informed the Commission, bya letter of 16 October 1965 from his newly-appointed lawyer, Dr.Schaller, that he was prepared to withdraw the passages concerned.In the meanwhile, the Austrian Government had submitted two letters tothe Commission in which it drew the Commission's attention to thelanguage used by the Applicant and to his general attitude to theproceedings before the Commission. Together with his letter of 16 July1965, the Government's representative submitted a press cuttingreproducing certain statements by the Applicant, and the Government'srepresentative suggested that these statements reflected theApplicant's attitude in regard to the proceedings before theCommission. In his subsequent letter of 19 August 1965, theGovernment's representative stated that certain statements by theApplicant, other than those which he had been invited to withdraw oramend, were also insulting and provocative and that the Governmentreserved the right to object to these parts of his pleadings. TheGovernment's representative maintained this position in his letter of17 November 1965.On 13 December 1965, the Commission decided that the Applicant'swithdrawal of defamatory passages in his pleadings was adequate at thatstage of the proceedings but it left open the possibility of requiringthe withdrawal of any other passages in the memorials which mightappear abusive in the light of a further examination of the case. TheCommission also decided to inform the Parties that "the Commissionwould be prepared to treat the whole Application as abusive in thesense of Article 27, paragraph (2), of the Convention if the Applicantmade any further defamatory statements of the kind now withdrawn".The Parties were informed accordingly by letters of 22 December 1965.On 13 December 1965, the Commission also decided to invite theApplicant to submit in writing his reply to the oral submissions madeby the Government's representative at the hearing on 12 July 1965;after receiving this reply, the Commission would consider whether tohold a further oral hearing, as had been requested by the Applicant.After receiving the Applicant's reply dated 17 January 1966, theCommission decided, on 14 February 1966,(a) not to grant the Applicant's request for a further oral hearing onthe issue of admissibility;(b) to invite the Austrian Government to submit any observations itmight wish to make in reply to the Applicant's submissions of 17January 1966;(b) on receipt of these observations to regard the pleadings of theParties on the issue of admissibility as closed.The Government's further observations were submitted on 8 April 1966.On 27 April 1966, the Commission's Secretary received from theApplicant a further pleading of 11 April 1966, signed by himself andnot by his lawyer. In this pleading, he referred, inter alia, tocertain statements made by the representatives of the AustrianGovernment at the hearing on 12 July 1965 and he commented on thesestatements in the following manner:(a) "In reply, I can only state that the gentleman representing theGovernment has either no idea of the contents of the files or hedeliberately misinforms the High Commission of Human Rights in orderto disguise the real legal situation in Austria" ("Ich habe daraufhinnur zu erwidern, dass der Herr Behördenvertreter entweder keine Ahnungvon der Aktenlage hat, oder dass er die Hohe Menschenrechtskommissionbewusst falsch unterrichtet, um die wahren Rechtsverhältnisse inÖsterreich zu verschleiern").(b) "When, on page 17 of the verbatim record, the gentlemanrepresenting the Government speaks of contempt of court, I am quitewilling to agree with his statement, but this only relates to theconduct of the Government representatives and not at all to my ownconduct, since I would never dare to misinform such a high institutionas the High Council of Europe" ("Wenn der Herr BehÖrdenvertreter aufSeite 17 des Verhandlungsprotokolles von einem Contempt of Courtspricht, dann stimme ich auch dieser Ausführung vollinhaltlich bei, nurliegt diese Tatsache auf Seite der BehÖrdenvertreter und keinesfallsauf meiner Seite, da ich es niemals wagen würde, ein so Hohes Forum wieeinen Hohen Europarat, falsch zu unterrichten").THE LAWWhereas Article 27, paragraph (2) (Art. 27-2), of the Conventionprovides that "the Commission shall consider inadmissible any petitionsubmitted under Article 25 (Art. 25), which it considers an abuse ofthe right of petition";Whereas, in the present case, the Applicant's pleadings which had beensubmitted before the oral hearing on 12 July 1965 contained a numberof passages which were provocative and insulting to the AustrianGovernment; whereas, therefore, the Commission invited the Applicantto withdraw or amend these passages; whereas the Commission alsoinformed him that, unless he withdrew or amended these passages, theCommission would consider whether or not it should declare theApplication to be inadmissible on the ground of being an abuse of theright of petition within the meaning of Article 27, paragraph (2)(Art. 27-2), of the Convention.Whereas, on 13 December 1965, after the Applicant had withdrawn hisprevious defamatory submissions, the Commission decided to inform theParties that it would be prepared to treat the whole Application as anabuse of the right of petition within the meaning of Article 27,paragraph (2) (Art. 27-2), if the Applicant made any further defamatorystatements of the same character; whereas the Parties were informed ofthis decision by letters of 22 December 1965;Whereas, in spite of this clear warning the Applicant, in his pleadingof 11th April 1966, made the statements which are quoted above andwhich the Commission considers clearly defamatory in regard to theAustrian Government; whereas the Commission observes, in particular,that the Applicant's remarks are directed against persons who representthe Government in the present proceedings before the Commission and whoshould enjoy a special protection against defamatory statementsconcerning the manner in which they exercise these functions;Whereas, consequently, the Commission finds that the Applicant hasabused the right of petition and decides, in so far as the Applicationhas not been finally dealt with in the Commission's partial decisionsof 1st June and 24th September 1965 and without further examining thesubstance of the case, to declare the Application inadmissibleaccording to Article 27, paragraph (2) (Art. 27-2), of the Convention.Now therefore the Commission, having regard to its partial decisionsof 1st June and 24th September 1965, declares the remaining parts ofthe Application INADMISSIBLE.
THE FACTSWhereas the facts of the case as presented by the Applicant may besummarised as follows:The Applicant is an Austrian citizen, born in 1911 and at presentliving in Vienna. He is represented before the Commission by Dr.Herbert Schaller, a lawyer practising in Vienna.----------------------(1) The Commission's partial decisions of 1 June and 24 September 1965have not been published.----------------------At the request of the Austrian authorities, he was arrested in Germanyon 22 June 1961 and was detained there pending extradition(Auslieferungshaft) until 21 December 1961, when he was extradited toAustria.Following his extradition, he was held in detention on remand(Untersuchungshaft) in Austria. On 31 October and 6 November 1962, helodged requests for his release (Haftbeschwerden) which were rejectedon 21 December 1962 by the Judges' Chamber (Ratskammer) of the RegionalCourt for Criminal Cases (Landesgericht für Strafsachen) in Vienna. Hisappeal from that decision was rejected on 19 February 1963 by the Courtof Appeal (Oberlandesgericht) in Vienna.In November 1963, the preliminary investigation was completed and thefile was transferred to the Public Prosecutor who, on 17 March 1964,issued the indictment (Anklageschrift) against the Applicant. In thisindictment, he was charged with a number of offenses of fraud.On 9 November 1964, the trial opened before the Regional Court but, on18 June 1965, the proceedings were adjourned sine die pending furtherinvestigations by the investigating judge. On the same day, a requestby the Applicant for his release was rejected by the Regional Court.On his appeal from that decision, the Court of Appeal decided, however,that the Applicant should be released on parole (Gelöbnis) and bail(Kaution oder Bürgschaft) to be determined by the Regional Court. InJuly 1965, the Applicant was released on bail of 20,000 Schillings.The Applicant made a number of allegations which were directed againstthe German and Austrian Governments and which mostly concerned hisdetention and the proceedings against him. He invoked a great manyprovisions of the Convention including Articles 5, paragraph (3), and6, paragraphs (1) and (2).Proceedings before the CommissionWhereas the proceedings before the Commission may be summarised asfollows;On 17 February 1965, the President of the Commission decided to giveprecedence to this Application under Rule 38 of the Commission's Rulesof Procedure.On the same day, the Application was examined by a group of threemembers of the Commission pursuant to Rule 45, paragraph 1, of theRules of Procedure. The group reported unanimously that the Applicationappeared admissible in so far as it was directed against Austria andconcerned the alleged violations of Articles 5, paragraph (3), and 6,paragraphs (1) and (2), of the Convention. Consequently, the Presidentof the Commission, acting in accordance with Rule 45, paragraph 2, ofthe Rules of Procedure, gave notice of these parts of the Applicationto the Austrian Government and invited it to submit its observationsin writing on the admissibility.In its observations submitted on 26 April 1965, the Austrian Governmentmaintained that the Application, in so far as it had been communicatedto the Government, was inadmissible as being manifestly ill-founded.The Applicant's reply to the Austrian Government's observations wassubmitted on 12 May 1965.On 1 June 1965, the Commission decided:(a) to declare the Application inadmissible in regard to the allegedviolations of the Convention by the German Government and certain ofthe alleged violations by the Austrian Government;(b) to invite the Parties to make oral explanations on theadmissibility of those parts of the Application which had already beencommunicated to the Austrian Government;(c) to ask the German Government for information as to the Applicant'sallegation that, during his detention in Germany, his right tocommunicate with the Commission had been violated.As regards the question of interference with the Applicant'scorrespondence with the Commission, the German Government submitted itscomments on 6 August, 1965 and the Commission decided, on 24 September1965, in the light of these comments, not to take any further actionin this regard.As regards the remaining complaints directed against Austria, an oralhearing was fixed for 12 July 1965. The Applicant informed theCommission that he would be represented by a certain lawyer in Vienna,but on 8 July 1965, the Secretary to the Commission was informed bythat lawyer that he would not appear at the hearing and that theApplicant had asked for an adjournment.On 12 July 1965, the Commission rejected the application foradjournment and the hearing was held in the absence of the Applicant'srepresentative.During the hearing, the Government's representative objected to certainparts of the Applicant's written submissions in the case which, in theGovernment's opinion, were insulting and provocative. Without makingany specific request, the Government's representative suggested thatthe Commission should take measures to protect the Republic of Austriaagainst such defamatory remarks as had been made by the Applicant. Inview of the Government's objections, the Commission decided to invitethe Applicant to withdraw or amend certain parts of his submissionswhich the Commission found objectionable.By letter received on 13 August 1965, the Applicant informed theCommission that he was not willing to withdraw or amend the passagesconcerned. In view of the contents of this letter, the Commissiondecided, on 24 September 1965, to state to the Applicant that, unlesshe informed the Commission within a certain time-limit that he waswilling to withdraw or amend the relevant parts of his submissions, theCommission would consider whether or not it should declare theApplication to be inadmissible on the ground of its being an abuse ofthe right of petition within the meaning of Article 27, paragraph (2),of the Convention. In reply, the Applicant informed the Commission, bya letter of 16 October 1965 from his newly-appointed lawyer, Dr.Schaller, that he was prepared to withdraw the passages concerned.In the meanwhile, the Austrian Government had submitted two letters tothe Commission in which it drew the Commission's attention to thelanguage used by the Applicant and to his general attitude to theproceedings before the Commission. Together with his letter of 16 July1965, the Government's representative submitted a press cuttingreproducing certain statements by the Applicant, and the Government'srepresentative suggested that these statements reflected theApplicant's attitude in regard to the proceedings before theCommission. In his subsequent letter of 19 August 1965, theGovernment's representative stated that certain statements by theApplicant, other than those which he had been invited to withdraw oramend, were also insulting and provocative and that the Governmentreserved the right to object to these parts of his pleadings. TheGovernment's representative maintained this position in his letter of17 November 1965.On 13 December 1965, the Commission decided that the Applicant'swithdrawal of defamatory passages in his pleadings was adequate at thatstage of the proceedings but it left open the possibility of requiringthe withdrawal of any other passages in the memorials which mightappear abusive in the light of a further examination of the case. TheCommission also decided to inform the Parties that "the Commissionwould be prepared to treat the whole Application as abusive in thesense of Article 27, paragraph (2), of the Convention if the Applicantmade any further defamatory statements of the kind now withdrawn".The Parties were informed accordingly by letters of 22 December 1965.On 13 December 1965, the Commission also decided to invite theApplicant to submit in writing his reply to the oral submissions madeby the Government's representative at the hearing on 12 July 1965;after receiving this reply, the Commission would consider whether tohold a further oral hearing, as had been requested by the Applicant.After receiving the Applicant's reply dated 17 January 1966, theCommission decided, on 14 February 1966,(a) not to grant the Applicant's request for a further oral hearing onthe issue of admissibility;(b) to invite the Austrian Government to submit any observations itmight wish to make in reply to the Applicant's submissions of 17January 1966;(b) on receipt of these observations to regard the pleadings of theParties on the issue of admissibility as closed.The Government's further observations were submitted on 8 April 1966.On 27 April 1966, the Commission's Secretary received from theApplicant a further pleading of 11 April 1966, signed by himself andnot by his lawyer. In this pleading, he referred, inter alia, tocertain statements made by the representatives of the AustrianGovernment at the hearing on 12 July 1965 and he commented on thesestatements in the following manner:(a) "In reply, I can only state that the gentleman representing theGovernment has either no idea of the contents of the files or hedeliberately misinforms the High Commission of Human Rights in orderto disguise the real legal situation in Austria" ("Ich habe daraufhinnur zu erwidern, dass der Herr Behördenvertreter entweder keine Ahnungvon der Aktenlage hat, oder dass er die Hohe Menschenrechtskommissionbewusst falsch unterrichtet, um die wahren Rechtsverhältnisse inÖsterreich zu verschleiern").(b) "When, on page 17 of the verbatim record, the gentlemanrepresenting the Government speaks of contempt of court, I am quitewilling to agree with his statement, but this only relates to theconduct of the Government representatives and not at all to my ownconduct, since I would never dare to misinform such a high institutionas the High Council of Europe" ("Wenn der Herr BehÖrdenvertreter aufSeite 17 des Verhandlungsprotokolles von einem Contempt of Courtspricht, dann stimme ich auch dieser Ausführung vollinhaltlich bei, nurliegt diese Tatsache auf Seite der BehÖrdenvertreter und keinesfallsauf meiner Seite, da ich es niemals wagen würde, ein so Hohes Forum wieeinen Hohen Europarat, falsch zu unterrichten").THE LAWWhereas Article 27, paragraph (2) (Art. 27-2), of the Conventionprovides that "the Commission shall consider inadmissible any petitionsubmitted under Article 25 (Art. 25), which it considers an abuse ofthe right of petition";Whereas, in the present case, the Applicant's pleadings which had beensubmitted before the oral hearing on 12 July 1965 contained a numberof passages which were provocative and insulting to the AustrianGovernment; whereas, therefore, the Commission invited the Applicantto withdraw or amend these passages; whereas the Commission alsoinformed him that, unless he withdrew or amended these passages, theCommission would consider whether or not it should declare theApplication to be inadmissible on the ground of being an abuse of theright of petition within the meaning of Article 27, paragraph (2)(Art. 27-2), of the Convention.Whereas, on 13 December 1965, after the Applicant had withdrawn hisprevious defamatory submissions, the Commission decided to inform theParties that it would be prepared to treat the whole Application as anabuse of the right of petition within the meaning of Article 27,paragraph (2) (Art. 27-2), if the Applicant made any further defamatorystatements of the same character; whereas the Parties were informed ofthis decision by letters of 22 December 1965;Whereas, in spite of this clear warning the Applicant, in his pleadingof 11th April 1966, made the statements which are quoted above andwhich the Commission considers clearly defamatory in regard to theAustrian Government; whereas the Commission observes, in particular,that the Applicant's remarks are directed against persons who representthe Government in the present proceedings before the Commission and whoshould enjoy a special protection against defamatory statementsconcerning the manner in which they exercise these functions;Whereas, consequently, the Commission finds that the Applicant hasabused the right of petition and decides, in so far as the Applicationhas not been finally dealt with in the Commission's partial decisionsof 1st June and 24th September 1965 and without further examining thesubstance of the case, to declare the Application inadmissibleaccording to Article 27, paragraph (2) (Art. 27-2), of the Convention.Now therefore the Commission, having regard to its partial decisionsof 1st June and 24th September 1965, declares the remaining parts ofthe Application INADMISSIBLE.