X. v. AUSTRIA - 2291/64 [1967] ECHR 8 (01 June 1967)

[هيثم الفقى]

X. v. AUSTRIA - 2291/64 [1967] ECHR 8 (01 June 1967)
THE FACTSI. Whereas the facts as presented in great detail and with considerableprecision by the Applicant, and as appearing from the relevantdocuments submitted by him, may be summarised as follows:The Applicant is an Austrian citizen, born in 1924. He is detained inthe Stein Prison, serving a sentence of lifelong severe imprisonment(schwerer Kerker) for rape having caused the death of the victim(Notzucht mit Todsfolge) and for arson (Brandstiftung).In the night of .. to .. July, 1961, the Applicant had taken along inhis car a young woman, who later that night was found dead in a burningshed nearby. On .. July, 1961, the Applicant was arrested. His defencethat he had been already home at the time at which the crime must havetaken place, was at first not confirmed by his wife, who said she couldnot remember the time he had come home. In a letter of .. March, 1962the Applicant urged her to tell the truth without any restraint. Thisletter was withheld by the investigating judge (Untersuchungsrichter).He offered, however, the Applicant's wife another possibility to giveevidence, but she refused.Extensive investigations were made, experts examined in particular,whether some dirt found under the Applicant's finger-nails containedthe same chemical elements as the partly burnt woollen vest of thevictim. On .. September, 1962, the Applicant was indicted by the PublicProsecutor (Staatsanwaltschaft) at Korneuburg. On .. October, 1962, theCourt of Appeal of Vienna overruled his objection and ordered hisfurther detention in accordance with Article 182, paragraph 2, of theCode of Criminal Procedure.The Applicant retained as his defence counsel, Dr. Y. of Vienna. Thislawyer requested that the files should be sent to Vienna for hisinformation. This was refused and he then withdrew from the caseshortly before the trial. Consequently, a new lawyer instructed by theApplicant, Dr. Z., had only two days to see the files and to preparethe defence.From .. to .. December, 1962, the trial took place before the RegionalCourt (Geschworenengericht am Sitze des Kreisgerichtes) at Korneuburg.On .. December, 1962, the Court inspected the Applicant's car, and onthis occasion the Applicant was taken through the streets inhand-cuffs. On the last day of the trial the Applicant's wife confirmedhis contention that he had come home already before one o'clock, andeven mentioned the fact that he had taken somebody along in his car.At the end of the trial, the Applicant was acquitted by the jurors bya vote of four against four.The representative of the Public Prosecutor announced immediately aplea of nullity (Nichtigkeitsbeschwerde) and upon his request, theRegional Court ordered that the Applicant should remain in detentionin accordance with Article 284, paragraph 3, of the Code of CriminalProcedure. An appeal lodged by the Applicant against this decision, wasrejected by the Court of Appeal on .. December, 1962.On .. May, 1963, after having received written and oral submissionsboth from the prosecution and from the defence, the Supreme Court(Oberster Gerichtshof) set aside the acquittal and ordered a new trialto be held before the Regional Court (Landesgericht) in Vienna. TheSupreme Court found that the Regional Court had committed an error whenit refused to hear, after the Applicant's wife had confirmed herhusband's defence, all the police officers who had examined herpreviously. Following this decision, the Applicant was transferred fromthe Korneuburg prison to Vienna.Before the second trial, the Applicant requested new expertinvestigations to be carried out by different experts. On .. September,1963, the Court refused to appoint new experts.During the second trial which took place from .. to .. September, 1963,certain additional investigations requested by the Applicant were madeby the experts heard already at the first trial. At this trial theApplicant was convicted by a vote of six against two and sentenced tolifelong severe imprisonment (lebenslanger schwerer Kerker) with oneday of detention in darkness (Dunkelhaft) every year on the date of thecrime.The Applicant requested several corrections of the Court record of thetrial and with a few exceptions, these corrections were granted by theCourt.On .. October, 1963, the Applicant lodged both a plea of nullity(Nichtigkeitsbeschwerde) against the conviction, and an appeal(Berufung) against the sentence imposed. In the plea of nullity theApplicant submitted that the trial court had violated the law byrejecting several of his requests to take further evidence.The Applicant had requested, in particular:(1) to hear as a witness the police officer who had directed theinvestigation against him, Major W., and to have examined the casts offootprints taken by the police on the scene of the crime and to havethen compared with his own shoes;(2) to have examined by an expert all the woollen blankets used by himduring the first night of his arrest as being the possible source ofhis finger-nail dirt, allegedly stemming from the victim's wollen vest;(3) to hear a number of neighbours of his, with whom he had gone towork in the same bus on the morning after the crime and who would beable to testify that the Applicant had not been together with anotherwitness, V., allegedly travelling in a different bus, who had testifiedthat the Applicant had told him on the bus on that morning that he hadcome home in the night only at two o'clock. The Applicant had alsorequested to hear these neighbours on the question whether he hadtalked at all with another witness, U., who also said he had heard fromthe Applicant, however, in the bus indicated by the Applicant himself,that he had come home at two o'clock. Because of the contradictionsbetween the evidence given by V. and U., the Applicant had also laidcharges of perjury against them on .. December, 1962, but the chargeshad been dismissed by the Regional Court in Korneuburg on .. February,1963;(4) to hear his doctor who had treated him at the time of the crime foracute rheumatism, as a witness that he had been physically incapableof carrying and lifting the body of the victim as alleged;(5) to hear the policeman who was responsible for the report on hisreputation read out in court;

[هيثم الفقى]

On .. October, 1963, the Applicant lodged both a plea of nullity
(Nichtigkeitsbeschwerde) against the conviction, and an appeal
(Berufung) against the sentence imposed. In the plea of nullity the
Applicant submitted that the trial court had violated the law by
rejecting several of his requests to take further evidence.

The Applicant had requested, in particular:

(1) to hear as a witness the police officer who had directed the
investigation against him, Major W., and to have examined the casts of
footprints taken by the police on the scene of the crime and to have
then compared with his own shoes;

(2) to have examined by an expert all the woollen blankets used by him
during the first night of his arrest as being the possible source of
his finger-nail dirt, allegedly stemming from the victim's wollen vest;

(3) to hear a number of neighbours of his, with whom he had gone to
work in the same bus on the morning after the crime and who would be
able to testify that the Applicant had not been together with another
witness, V., allegedly travelling in a different bus, who had testified
that the Applicant had told him on the bus on that morning that he had
come home in the night only at two o'clock. The Applicant had also
requested to hear these neighbours on the question whether he had
talked at all with another witness, U., who also said he had heard from
the Applicant, however, in the bus indicated by the Applicant himself,
that he had come home at two o'clock. Because of the contradictions
between the evidence given by V. and U., the Applicant had also laid
charges of perjury against them on .. December, 1962, but the charges
had been dismissed by the Regional Court in Korneuburg on .. February,
1963;

(4) to hear his doctor who had treated him at the time of the crime for
acute rheumatism, as a witness that he had been physically incapable
of carrying and lifting the body of the victim as alleged;

(5) to hear the policeman who was responsible for the report on his
reputation read out in court;

(6) to hear the wife of a neighbour to whom he said he had mentioned
himself on the day after the crime, the fact that he had taken along
a woman in the car the night before;

(7) to have the finger-nail dirt examined by a second expert in view
of contradictions in the opinion given by the first expert. He also
criticised that the first expert had not been sworn before beginning
the examinations.

On .. February, 1964, after having received written and oral submission
both from the prosecution and from the defence, the Supreme Court
sitting in public session, however, without the Applicant being present
in person, rejected both his plea of nullity and his appeal.

The Supreme Court considered the Applicant's grounds for his plea of
nullity as ill-founded for the following reasons:

(1) The Applicant had not specified sufficiently the questions as to
which Major W. should have been heard. The mistakes of the police in
their investigations, which the Applicant had alleged, were not
essential since not the police report but the evidence given in court,
was the basis for his conviction. As to the comparison of the
footprints and of his shoes, the Applicant had not expressly requested
that this comparison should be made by an expert. The court itself had
made such a comparison but found that no sufficiently certain
conclusions were possible.

(2) As to the examinations of the blankets used by the Applicant during
the night after his arrest, the Supreme Court stated that there had
been no indications that any of these blankets had been scorched, so
that there was no possibility that the threads found under the
Applicant's finger-nails, and allegedly coming from the partly burnt
vest of the victim did, in fact, come from the blankets.

(3) As to the neighbours who according to the Applicant could have
proven the falseness of the evidence given by the witnesses V. and U.,
the Supreme Court stated that, in fact, all these persons had been
heard by the police upon instruction of the trial court, that none of
them had been able to give clear evidence on the point at issue, and
that the report on these enquiries had been read out at the trial. The
Supreme Court observed that the Applicant and his defence counsel had
not insisted subsequently on an examination of these witnesses in
court, and that the procedure followed was in accordance with its own
jurisprudence.

[هيثم الفقى]

(4) As to the Applicant's request to hear his doctor, the Supreme Court
observed that the question raised by the Applicant, was one to be
answered by an expert and that, in fact, one of the experts had also
been heard on this point. In addition, this witness, too, had been
questioned by the police and the report had been read out at the trial.

(5) As to the policemen who as responsible for the report on the
Applicant's reputation, the Supreme Court observed that the Applicant
had not formally requested to hear this witness, but that, in fact, he
had been heard by the police and the report had been read out in court.
Furthermore, the point in question was not decisive for the case.

(6) As to the refusal to hear the wife of a neighbour to whom the
Applicant said he had mentioned on the day after the crime, the fact
that he had taken a woman along in his car, the Supreme Court agreed
with the trial court and held that the fact in question was a detail
of no importance.

(7) As to the expert opinion and as to the Applicant's demand to hear
a new expert, the Supreme Court took the view that the opinion of the
first expert was not unclear or contradictory and that therefore no new
expert opinion was necessary. As to the request to examine a larger
piece of the woollen vest, and to have the examination carried out by
two experts, the Supreme Court pointed out that the Applicant had
failed to make such a request at the trial. The failure to swear the
expert in before the trial did not constitute a reason for quashing the
judgment since, at least at the trial, the expert had been sworn in.
On the basis of declarations made by the witness V., criminal
proceedings were instituted against the Applicant's mother-in-law, on
the charge of having tried to influence the witness on the morning of
the first trial in Korneuburg. At her trial, on .. June, 1963, she
denied the fact that she had talked at all to V. Her lawyer accused V.
of perjury and undertook to prove this by the neighbours who according
to the Applicant, had travelled together with him in the bus on the
morning after the crime. The Court considered this question as
irrelevant and convicted her without hearing these witnesses. Upon her
plea of nullity, however, the Court of Appeal, on .. February, 1964,
set aside the trial because of the refusal to hear these witnesses.

Subsequently, the Public Prosecutor discontinued the proceedings.
On a similar charge, proceedings were also instituted against the
Applicant's wife and, on .. May, 1965, the Applicant was heard as a
witness at the trial of his wife. For this purpose, the Applicant was
taken from the Stein prison to the court in Korneuburg. During the
transport effected by train and tram, and on foot through public
streets, the Applicant was escorted by two guards, hand-cuffed and
wearing convict's dress although he had asked for the prison director's
permission to wear his civilian clothes. In from of the court room he
met his children of 5 and 8 years. As evidence he submits several press
photos.

II. Whereas the Applicant alleges, in particular, the following
violations of the Convention:

Article 3
On three occasions, on .. December, 1962, during his first trial at the
inspection of his car, on .. June, 1963, during his transfer from the
Korneuburg prison to Vienna, and on .. May, 1964, at the trial of his
wife, he has been exposed to the public hand-cuffed and on the last two
occasions, also in convict's dress. He considers this as inhuman and
degrading, particularly since he found himself in view of his children
at the hearing in Korneuburg.

Article 6 (2)
He considers it as incompatible with the presumption of innocence that,
at the first trial, during the inspection of his car, he was
hand-cuffed before the jurymen who thus must get the impression that
he was guilty.

Article 6 (1)
He complains of the length of the proceedings and of his detention on
remand. He considers as not justified the periods of 14 months until
the indictment and of 17 months until the first trial.
According to him, he had no fair trial. The witnesses were under the
impression of the numerous press reports on the crime and his arrest,
when they were first heard by the police.
The Applicant states that two witnesses were known to the police
already before his arrest, but that the police deliberately heard them
only two days afterwards, after the first press report had appeared.
The Applicant complains that the Judges at the Vienna trial were
prejudiced and asked irrelevant questions with the only purpose to
downgrade him in the eyes of the public and of the jury. The evidence
was not evaluated correctly.

Article 6 (3) (a)
The police and the investigating judge did not inform him fully of the
evidence already taken. They even deliberately misinformed him on
certain points.

Article 6 (3) (b)
The request of his first counsel, Dr. Y., to send the file from
Korneuburg to Vienna was refused. He withdrew therefore from the case
and the second lawyer had only two days to see the file and to prepare
the defence for the first trial at Korneuburg.
On the other hand, upon demand of the Public Prosecutor at Korneuburg,
who acted in the case also at the second trial in Vienna, the file was
sent to Korneuburg.

Article 6 (3) (d)
As to his requests to hear further witnesses and experts, which were
refused by the Court, the Applicant repeats the arguments of his plea
of nullity. In reply to the reasons given by the Supreme Court in its
judgment of .. February, 1964, he develops his arguments as follows:

(1) At the trial his lawyer had, according to the Court record,
requested to hear Major W. "on the subject of the police
investigations". If this had been considered as not sufficiently
precise, the Court should have given him a chance to specify his
request. In fact, the trial court had known perfectly well the reasons
why the examination of this witness had been requested. The Court
record was not verbatim but only gave a summary of his lawyer's
declaration. The Applicant sets out in detail the alleged
contradictions and mistakes of the police report, and points out that
this report was part of the file available to the jury and therefore
inevitably influenced their judgment.

[هيثم الفقى]

(2) As to the rejection of his request to have all the woollen blankets
examined by an expert, the Applicant points out that there were several
possibilities that some of these blankets had been scorched, e.g. by
cigarettes, and that this need not be visible for a layman, but could
be ascertained only by an expert.

(3) As to the refusal of the trial court to hear in court the
neighbours who allegedly travelled with him on the bus on the morning
after the crime, the Applicant argues that the interrogation of these
witnesses by the police was no adequate substitute. He submits that
many witnesses when giving evidence before the police without being
cross-examined or under oath, would try to keep out of the trial,
particularly if contradictions between other witnesses coming from the
same village were involved. According to the Applicant, some of the
witnesses did, in fact, confirm his statements, to a certain extent and
indicated certain further witnesses who also could have testified,
whether the conversation alleged by V and U. had taken place or not.
If it was necessary for the defence, as stated by the Supreme Court,
to repeat the request to hear the witnesses after the police report on
their interrogations had been read out, the trial court was obliged to
draw this to the attention of the defence counsel. Its failure to do
so could not be held against the accused.

(4) As to this request to hear his doctor on the question whether he
was physically capable of carrying the body of the victim 118 metres,
and lifting it 1.5 to 2 metres, as assumed by the prosecution, the
Applicant submits that this was a question which could have been
answered by his doctor, and not by the expert. According to the
Applicant, the expert who had not been committed before the trial to
give an opinion on this point, never sought information from the doctor
who had treated the Applicant at the time of the crime continuously for
24 days, including 12 days of sick leave. Without having even seen the
case sheet, the expert only made a few superficial remarks at the trial
which did in no way answer the question in point.

(5) As to the request to hear the policeman responsible for the report
on his reputation read out in court, the Applicant does not give any
details other than those contained in his plea of nullity.

(6) As to his request to hear the wife of the neighbour whom he told
on the day after the crime that he had taken a woman along in his car,
the Applicant objects to the statement of the Court that this was a
detail of no importance. He submits that he had requested to hear both
the husband and his wife, that both were present, that the husband was
heard, but did not remember this point, and that thus his own
credibility might have appeared questionable in the eyes of the jury,
and that in these circumstances, it was quite essential to hear also
the wife. He argues that there was, in fact, no reason to hear the
husband but not the wife on the point in question.

(7) The Applicant sets out in great detail certain contradictions in
the opinion of the experts heard by the Court, and submits that under
these circumstances his request to have a new examination made by a
different expert, should have been granted. Even the Supreme Court had
admitted that as to the swearing in of the experts, the rules of law
had not always been observed.

Articles 8 (1) and 10 (1)
The Applicant further complains of the stopping of the letter he wrote
to his wife on .. March, 1962. According to him, this letter did in no
way suggest to his wife any particular way of testifying, but only
requested her to tell the truth without fear or concern. If his wife
had received the letter she would have given immediately a clear and
true account of his coming home in the night of .. to .. July, 1961.
When the letter was stopped and the investigating judge approached her,
she was even more confused and intimidated, and therefore refused at
that time to give any evidence at all. Thus, he was deprived of an
important means of defence by the stopping of his letter.

Article 13
The Applicant complains that he did not enjoy "equality of arms". The
prosecution's plea of nullity lodged against the acquittal pronounced
by the first jury was set aside, although the police officers not heard
at the first trial could, in fact, not give any substantial evidence.
His own plea of nullity, although based on the trial court's refusal
to hear several important witnesses at the second trial, was rejected
by the Supreme Court. After the acquittal had been quashed, he did no
longer have a real chance before the second jury which must have been
under the impression that the Supreme Court considered him as guilty.
The same impression was also created by numerous press reports
unfavourable to him. Being in detention and without sufficient means,
he had no possibility of convincing the public opinion of his
innocence.

Articles 14 and 17
The Applicant submits that the Austrian authorities consider themselves
as not being bound internally by the Convention, but take the view that
they can act as they think fit, and leave it to the accused to complain
to the Commission. He complains of a bias of the prosecution and of the
courts against him and his relatives. As an example, he quotes the case
of his mother-in-law, who was first convicted, but when the prosecution
was afraid of a defect after the conviction had been set aside, they
simply discontinued the proceedings.

"Interferences with the right of petition" (Article 25)
When lodging his Application, the Applicant demanded access to his
file; however, he was given only a little more than six hours' time to
study the file. He was told that the file was further needed at
Korneuburg. Upon a second request, some time later, he received the
same reply.
In July, 1965, he lodged a petition to grant him free legal aid to
obtain, free of charge, the certification of copies of parts of his
case-file in order to submit them to the Commission. On .. July, 1965,
the Court rejected this petition on the ground that for this purpose
no free legal aid was provided for by the law. The Applicant offers to
submit, upon request of the Commission, uncertified copies of further
documents, particularly of the court record of his trial. Whereas the
Applicant demands that the conviction should be set aside and that a
new trial, observing both the provisions of the Austrian Code of
Criminal Procedure and of the Convention, should be held before the
Jury Courts in Vienna.

THE LAW

Whereas the Applicant alleges a violation of Article 3 (Art. 3)
of the Convention in that he was taken through the town of Korneuburg
wearing handcuffs and convict's dress; whereas the Commission considers
that this measure, although undesirable, was clearly not so serious as
to amount to an inhuman or degrading treatment (see Decision on the
admissibility of Application No. 1352/62, H. against Austria);

Whereas he also states that during the trial he was hand-cuffed in
front of the jury, upon the order of the presiding judge when evidence
was examined outside the court-house; whereas he submits that this
measure amounted to a violation of Article 6, paragraph (2) (Art. 6-2),
in that it unfavourably influenced the jury and thereby did not respect
the principle of presumption of innocence; whereas the Commission
considers that this order of the presiding judge was clearly a measure
of security which could not lead to any false conclusions on the part
of the jury;

Whereas the Applicant also complains of the length of his detention on
remand; whereas the Commission has examined the complaint in the light
of Article 5, paragraph (3) (Art. 5-3);

Whereas, in this respect, the question arises whether the period of
detention between the beginning of the first trial and the final
decision of the Supreme Court is to be taken into account when
determining whether a person detained on remand has been brought to
"trial within a reasonable time";

Whereas, without prejudging this question, the Commission considers
that, even if the period of detention until the final judgment were to
be taken into account, there is in the present case no appearance of
undue delay;

Whereas, in this respect, the Commission recalls that, according to its
constant jurisprudence, the question whether a period of detention on
remand is "reasonable" or not cannot be decided in abstracto but must
be determined in the light of the particular circumstances of each case
(see Applications No. 2077/63, Yearbook VII, page 276, and No. 2516/65,
Collection of Decisions, Volume 20, page 35);

Whereas, in the present case, the Commission considers that, in view
of the complexity of the case and of the particularly serious nature
of the offence concerned, the examination of the case does not disclose
any appearance of an unduly prolonged period of detention on remand;

Whereas the Applicant further alleges a violation of his right to a
"hearing within a reasonable time", as guaranteed in Article 6,
paragraph (1) (Art. 6-1) of the Convention; whereas, in particular, he
considers as not being justified the period of 14 months from his
arrest until his indictment and the further period of three months
until the beginning of his first trial on .. December, 1962;

Whereas the Commission has considered the question whether the period
referred to in Article 6, paragraph (1) (Art. 6-1), only extends from
the date of the Applicant's arrest (.. July, 1961) to the opening of
the Applicant's first trial on .. December, 1962, or also up to the
judgment of the Regional Court of .. December, 1962, or even includes
the further proceedings up to the final judgment of the Supreme Court
of .. February, 1964;

Whereas, however, the Commission has not found it necessary in the
present case to express any view on this question; whereas it is of the
opinion that, even if the period concerned was considered to run from
.. July, 1961, until .. February, 1964, there is no appearance of a
violation of Article 6, paragraph (1) (Art. 6-1) in the criminal
proceedings against the Applicant;

Whereas, in so deciding, the Commission has particularly taken into
consideration the complexity of the case resulting from the great
number of witnesses and the detailed expert opinion involved and the
very serious nature of the offence forming the subject of the charge
against the Applicant; whereas it must also be observed that the total
period of the proceedings includes the time necessary for the
preparation and the execution of two trials and two hearings on appeal;

Whereas, in view of all these circumstances, the examination of the
case does not reveal any element tending to show that the criminal
proceedings against the Applicant were unduly prolonged by the
authorities;

Whereas the Applicant further complains that he was not given a "fair
hearing" within the meaning of Article 6, paragraph (1) (Art. 6-1), of
the Convention, since the witnesses were under the influence of press
reports on his case and since the judges were prejudiced;

Whereas the Commission observes in this respect that its sole task is
to ensure the observance of the engagements undertaken in the
Convention by the High Contracting Parties and that the Austrian
Government cannot be held responsible for the press reports which
allegedly influenced the witnesses;

Whereas also with regard to the Applicant's further allegations that
the judges were prejudiced, the examination of the case as it has been
submitted, including an examination made ex officio, does not disclose
any appearance of a violation of the rights and freedoms set forth in
the Convention and in particular in Article 6, paragraph (2)
(Art. 6-2);

Whereas the Applicant furthermore complains that the police and the
investigating judge did not inform him fully of the evidence already
taken by them and even deliberately misinformed him on certain points;
Whereas, however, he does not allege that the authorities failed to
inform him of the facts constituting the crime with which he was
charged;

Whereas Article 6, paragraph (3) (a) (Art. 6-3-a), of the Convention
provides that "everyone charged with a criminal offence has the ...
right ... to be informed promptly, ... in detail, of the nature and
cause of the accusation against him";

Whereas an examination of the Applicant's complaint does not disclose
any violation of this provision;

[هيثم الفقى]

Whereas the Applicant furthermore alleges a violation of Article 6,
paragraph (3) (b) (Art. 6-3-b), in that his lawyer did not have
adequate time and facilities for the preparation of the defence at the
first trial;

Whereas it is to be observed that the restrictions of time and of
access to the file of which the Applicant complains did not in any way
prejudice him since he was acquitted at the first trial;

Whereas, however, he does not allege that his lawyer was in any way
hindered in the preparation of his defence for the second trial which
led to his conviction;

Whereas, in this respect, the Applicant cannot therefore be considered
as a "victim" within the meaning of Article 25, paragraph (1)
(Art. 25-1), of the Convention, of any violation of his rights;

Whereas the Applicant furthermore complains that several essential
witnesses were not heard at his trial;

Whereas Article 6, paragraph (3) (d) (Art. 6-3-d), provides that every
person charged with a criminal offence has the right "to examine or
have examined witnesses against him and to obtain the attendance and
examination of witnesses on his behalf under the same conditions as
witnesses against him"; whereas the Commission has already pointed out,
in its decisions on the admissibility of Applications No. 617/59,
Hopfinger against Austria (Yearbook III, page 390), and No. 1134/61,
X against Belgium (Yearbook IV, page 382), that the text in question
is intended to place the accused on an equal footing with the
prosecution as regards the hearing of witnesses, but not to give him
a right to call witnesses without restriction;

Whereas the "Travaux préparatoires" of the Convention clearly confirm
the accuracy of this interpretation (Report of the Conference of Senior
Officials to the Committee of Ministers of the Council of Europe,
Document CM/WP IV (50) of 19th June, 1950, pages 15 and 16); whereas
the competent judicial authorities of the High Contracting Parties
accordingly remain free, on condition that the Convention and, in
particular, the above-mentioned principle of equality is complied with,
to establish whether the hearing of a witness can contribute to the
finding of the truth and, if not, to decide against calling such
witness;

Whereas, in the present case, the Regional Court, in refusing to hear
the witnesses and experts in question, and the Supreme Court, in
confirming the decision of .. September, 1963, found that the witnesses
or experts could not give any relevant evidence and further that, in
certain respects, the Applicant had not requested in proper form their
examination before the trial court; whereas the Commission considers
that in so deciding the courts have in no way exceeded their powers to
determine whether the examination of the evidence concerned can
contribute to the finding of the truth;

Whereas the Applicant furthermore complains of a violation of Articles
8 and 10 (Art. 8, 10) in that his letter of .. March, 1962, in which
he urged his wife to tell the truth was withheld by the investigating
judge;

Whereas the Commission observes in this respect that the ordinary
control of a prisoner's correspondence is to be considered as an
inherent feature of imprisonment (see decision on the admissibility of
Application No. 2375/64); whereas this control by the competent
authority includes also the right to stop a letter tending to influence
a witness in a case still pending; whereas in the circumstances of the
present case it cannot be said that the investigating judge was not
justified when he considered that the letter in question, regardless
of its particular wording, might possibly influence the Applicant's
wife with regard to the evidence which she had to give at the trial;
whereas, therefore, the examination of the case does not disclose any
appearance of a violation of paragraph (1) of Articles 8 and 10 (Art.
8-1, 10-1);

Whereas the Applicant furthermore alleges violations of Articles 13,
14 and 17 (Art. 13, 14, 17); whereas, however, he has not shown any
facts which could possibly come under these provisions;

Whereas, for these reasons, in regard to all the above-mentioned
complaints, an examination of the case as it has been submitted,
including an examination made ex officio, does not disclose any
appearance of a violation of the rights and freedoms set forth in the
Convention and in particular in the provisions invoked by the
Applicant; whereas it follows that the whole of the Application is
manifestly ill-founded within the meaning of Article 27, paragraph (2)
(Art. 27-2), of the Convention;

Whereas the Commission has also considered the Applicant's complaints
that he was hindered in the effective exercise of the right to lodge
an Application with the Commission; whereas he alleges in particular
that he did not have sufficient access to the file covering his trial
and complains that he was not granted free legal aid in order to obtain
certified copies of the court records;

Whereas the Commission observes, in this respect, that the Applicant
has been able to present this case in a fully satisfactory manner;

Whereas he had been informed by a letter from the Secretary to the
Commission that no further documents, in particular no certified copies
of the court records, were necessary;

Whereas, in these circumstances, the Commission considers that he has
not been hindered in the effective exercise of the right to lodge an
Application, as guaranteed in Article 25, paragraph (1) in fine (Art.
25-1), of the Convention;

Now therefore the Commission

1. declares this Application INADMISSIBLE.

2. decides to take no further steps in respect of the alleged
interferences with the effective exercise of the right of individual
petition.