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مشاهدة النسخة كاملة : X. v. AUSTRIA - 2547/65 [1966] ECHR 6 (14 July 1966)



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07-15-2009, 12:43 AM
X. v. AUSTRIA - 2547/65 [1966] ECHR 6 (14 July 1966)
THE FACTS--------------------------------------------------------------------(1) A partial decision given by the Commission on 14th February 1966has not been published.--------------------------------------------------------------------Whereas the facts presented by the Applicant - excluding those whichrelate to the complaints already rejected by the Commission - may besummarised as follows:The Applicant is a German citizen, born in 1929 and at present livingat Lübeck.He states that on .. November 1964, it came to his knowledge that twoSouth Tyrolese were planning to place a suitcase containing a bomb inan express train (Brenner Express) bound for Italy, where the bomb wasto explode during the night between .. and .. November. The two menwere acting from political motives, and the direct reason was thatcertain elections were to take place on .. November 1964 in theprovince of Bolzano.He further states that he tried to persuade the two men to refrain fromtheir action, and when this attempt failed, he was anxious to preventin some other way the very serious consequences which would be theresult of the explosion. He decided, however, not to inform theAustrian authorities, since he considered that certain Austrianofficials might not be willing, for political reasons, to prevent theexplosion; he chose to go to Italy in the same train as the bomb andto inform the Italian authorities as soon as he had crossed thefrontier. He managed to inform the Italian authorities one hour beforethe explosion was to take place and serious damage was thereby avoided;nevertheless, the authorities did not manage to prevent damage to arailway carriage, although, in the Applicant's opinion, this could alsohave been avoided.The Applicant submits that, on .. December 1964, he was arrested inItaly by the Austrian police and that the Italian authorities wereunaware of his arrest. This action taken by the Austrian authoritiesoutside Austrian territory amounts, in his opinion, to kidnapping. Hestates about this incident that he travelled in a train to the Brennerrailway station in Italy, that he was there taken out of the train andkept about twenty minutes in the office of the Austrian passportauthorities; that, shortly before the train left, he was obliged toreturn to the train with an Austrian police officer and to go into aservice compartment of the police; that the Austrian officials drew thecurtains of the compartment in order to search the Applicant; that noItalian official was aware of these events, although they all tookplace on Italian territory; and that he was taken in the train toAustria.In Austria, he was kept in detention on remand (Untersuchungshaft)under suspicion of having violated the Austrian Explosives Act(Sprengstoffgesetz). Although he declared that he had not been involvedin the plans to blow up the train, he was not released and he statesthat he was told that nothing would have happened to him if he hadinformed the Austrian, and not the Italian, authorities of the plansof the two South Tyrolese.His appeal regarding his detention was rejected on .. December 1964,by the Judges' Chamber of the Regional Court (Ratskammer desLandesgerichts) of Innsbruck and, on appeal, on .. January 1965, by theCourt of Appeal (Oberlandesgericht) of Innsbruck. Subsequent requestsfor release were rejected by the Regional Court of Innsbruck on ..April and .. July 1965. He also asked the Supreme Court (ObersterGerichtshof) that his case should be dealt with in another"Bundesland", where the authorities would be more impartial in regardto the political issue which formed the background of his case. Thispetition as well as another petition to the Minister of Justice was,however, unsuccessful.The Applicant states that subsequently he was charged with an offenceagainst the Explosives Act and that the trial against him took placeat Graz on .. November 1965. On the same day, he was sentenced to 18months severe imprisonment, although the jury was not unanimous. Hefurther states that as he had not sufficient money to oppose thepolitical interests which were involved in the case and also in viewof the fact that he had already spent 12 months in detention on remand,he declared himself ready to accept the judgment without, however,admitting his guilt.He adds that during the trial, a certain Polizei-Oberrat Dr. A admittedthat X. had been arrested on Italian territory and that the arrest hadtaken place on Dr. A's initiative.The Applicant served his sentence in a prison at Graz and was releasedin June 1966.The Applicant alleges- that he was unlawfully arrested by Austrian police on Italianterritory,- that, as a result of the circumstances of his arrest, his subsequentdetention in Austria was also unlawful.He invokes Article 5, paragraphs (1) (c), (4) and (5), of theConvention and emphasises that, according to Article 5, paragraph (1)(c), arrest and detention must be lawful.Proceedings before the CommissionWhereas, on 14th February 1966, the Commission, while declaring certainother complaints inadmissible, decided in accordance with Rule 45,paragraph (3) (b), of its Rules of Procedure, to give notice of theallegations set out above to the Austrian Government and to invite itto submit its observations on admissibility;Whereas the Government submitted its observations on 14th April 1966;Whereas the Applicant's observations in reply which are dated 22ndApril 1966, were received on 5th May 1966.Submissions of the PartiesWhereas the submissions of the Parties may be summarised as follows:The Government submitted that, on the morning of .. November 1964, anexplosion, which caused considerable damage to property, occurred inthe railway station area at Brixen, South Tyrol, in the luggage van ofthe Brenner Express train which had come in from Austria. It appearedthat explosives had been contained in a suitcase which an unknown manhad registered at Innsbruck for delivery in Italy. It was also foundout that four people, among them the Applicant, had been involved inthe making of the explosive. At that time, the Applicant's whereaboutswere not known, but on .. December 1964, the Austrian border policeofficer on duty at Brenner station, in the course of his routine checkof the Alpen Express, noticed the Applicant whom he knew to be wantedby the authorities and who intended to go to Innsbruck in the sametrain. He asked the Applicant to accompany him to the office of theAustrian border police for an examination of his passport. Shortlybefore the train was due to leave, the Applicant was given permissionto travel on to Austria. In the train, between Brennersee and Gries,i.e. on Austrian territory, the Applicant was told that he was underarrest. Consequently, his arrest took place in Austria, and not inItaly. As regards the exercise by Austrian border police and customsauthorities of official functions at the Austro-Italian border in theBrenner area, the Government referred to the agreement signed byAustria and Italy on 22nd October 1947. This agreement, described asa "modus vivendi", authorises Austria to provide border controlservices at Brenner station. For that purpose, premises are at thedisposal of the Austrian authorities, including the police, and,according to the agreement, Austria is expressly authorised to maintainpolice services at the station.The Government further submitted that the Applicant had not exhaustedthe domestic remedies within the meaning of Article 26 of theConvention. It is true that in December 1964 and January 1965, heappealed against his detention, but in these proceedings he did notargue that he had been arrested unlawfully in Italy. Even if he hadasserted the illegality of his arrest at a later date, namely, in hisapplications which were rejected by the Regional Court in April andJuly 1965, the requirements of Article 26 would not be satisfied, sincean appeal from the decisions of the Regional Court could have beenlodged with the Court of Appeal. Moreover, the decision of .. July1965, is irrelevant to the question whether or not Article 26 has beensatisfied, since that decision was given after the Applicant had lodgedhis Application with the Commission.By way of conclusion, the Government requested that the Applicationshould be declared inadmissible for non-exhaustion of domestic remediesor, alternatively, as being manifestly ill-founded. The Applicantmaintained, in his reply, that he had been arrested at Brenner station,and not in the train between Brennersee and Gries.In support of his statement in this regard, he stated that he wascompelled by Austrian police officers to continue in the train toAustria and he also referred to the reply given at the trial by thewitness Polizei-Oberrat Dr. A to a question put to him by theApplicant's lawyer. The lawyer asked the following question: "Supposingthat the accused X was an Italian agent as you believed or stillbelieve, Dr. A, how can you explain that he let your people arrest himat Brenner station, that is on Italian territory?" Dr. A replied: "Theaccused had no possibility of escaping at the station, as we had takenappropriate measures and watched him carefully".As regards exhaustion of domestic remedies, the Applicant stated thathe had not studied Austrian law and had no one to inform or advise him.He tried, however, to appeal to the Investigating Judge andsubsequently to the Regional Court and the Court of Appeal. He alsoapproached the Supreme Court in Vienna but received the reply that onlythe Courts of Innsbruck were competent. Finally, he wrote to theCommission, hoping to find justice before an international court wherethere is no prejudice based on national or provincial feelings.THE LAWWhereas the Applicant alleges that his arrest was unlawful as it tookplace on Italian territory, and that, as a result, his subsequentdetention on remand was also unlawful;Whereas Article 26 (Art. 26) of the Convention provides that theCommission may only deal with a matter after all domestic remedies havebeen exhausted according to the generally recognised rules ofinternational law;Whereas, in so far as the Applicant alleges that his arrest wasunlawful, the Commission has taken into consideration, although it wasnot submitted by the Respondent Government, the fact that, accordingto Article 144 of the Austrian Federal Constitutional Act(Bundes-Verfassungsgesetz), the Constitutional Court(Verfassungsgerichtshof) is competent to decide on appeals fromdecisions (Bescheide) by the administrative authorities in regard toalleged violations of constitutional rights;Whereas, according to a constant jurisprudence in Austria, theConstitutional Court is also competent to decide on appeals regarding'factual' official acts (faktische Amtshandlungen) by the authorities,in so far as these acts have allegedly violated constitutional rights;Whereas the Austrian Act on the Protection of Personal Freedom (Gesetzzum Schutze der persÖnlichen Freiheit) which has the status of aconstitutional Act contains provisions regarding the conditions onwhich a person may be arrested; add whereas the physical arrest of aperson is, according to Austrian jurisprudence, apparently to beconsidered as a 'factual' official act;Whereas it follows that the Constitutional Court would have beencompetent to examine whether or not the Applicant had been lawfullyarrested by the Austrian authorities;Whereas, by failing to appeal to the Constitutional Court, theApplicant has not, in regard to his arrest, exhausted the domesticremedies within the meaning of Article 26 (Art. 26);Whereas, in so far as the Applicant alleges that his subsequentdetention on remand was unlawful as a result of his unlawful arrest,it appears that the Applicant lodged an appeal (Haftbeschwerde)regarding his detention which, on .. December 1964, was rejected by theJudges' Chamber of the Regional Court and that his appeal from thatdecision was rejected on .. January 1965, by the Court of Appeal atInnsbruck;Whereas the Government has stated that in these proceedings theApplicant did not argue that he had been unlawfully arrested in Italy;whereas the Applicant has not contested this statement by theGovernment;Whereas the Applicant subsequently submitted two requests for hisrelease from detention which were rejected on .. April and .. July1965, by the Regional Court of Innsbruck; whereas it appears from thesedecisions that, according to Article 194, paragraph 2, of the Code ofCriminal Procedure, no appeal to the Court of Appeal was available;Whereas, however, it remains to be examined whether in these tworequests for release the Applicant invoked the alleged fact that he hadbeen arrested on Italian territory; whereas neither the Government northe Applicant himself has made any clear statement in this regard;whereas the decisions of .. April and .. July 1965, contain noindication that this point had been raised by the Applicant in theproceedings concerned;Whereas, consequently, the Applicant has not shown that, in his appealsor applications relating to his detention, he made the particularallegation which he subsequently raised before the Commission; whereasthe Commission concludes that the Applicant has not, in regard to hisdetention, exhausted the domestic remedies within the meaning ofArticle 26 (Art. 26).Now therefore the Commission declares this Application INADMISSIBLE.