X. v. AUSTRIA - 3001/66 [1968] ECHR 10 (30 May 1968)

[هيثم الفقى]

THE FACTS

Whereas the facts presented by the Applicant may be summarised as
follows:

The Applicant is an Austrian citizen, born in 1916 and residing in
Vienna.

From his statements and from documents submitted by him it appears
that, on .. April, 1966, he was arrested on suspicion of having
committed fraud (Betrug) and defamation (Verleumdung) and remanded in
custody in accordance with Articles 175, paragraph (1) No. 4, and 180,
paragraph (1), of the Code of Criminal Procedure (Strafprozessordnung).

He states that on .. April, 1966, he was taken before the competent
investigating judge (Untersuchungsrichter). Subsequently, he made an
application to the Regional Court (Landesgericht) at Klagenfurt for his
release pending trial. This application was dismissed on .. May; 1966,
on the ground that there existed a danger of his absconding and
committing further offences (Fluchtgefahr und Wiederholungsgefahr). The
Applicant states that he lodged an appeal (Beschwerde) against this
decision with the Judges' Chamber (Ratskammer) of the Regional Court
at Klagenfurt which was dismissed on .. May, 1966, and that he lodged
with the Court of Appeal (Oberlandesgericht) of Graz a further appeal
(weitere Beschwerde) against the Judges' Chamber's decision. According
to the Applicant, his further appeal was dismissed on .. June, 1966,
the Court of Appeal deciding that although there existed no danger of
his absconding, the danger of his committing further offences
persisted. The Applicant then apparently made an appeal against this
decision to the Supreme Court (Oberster Gerichtshof), which was
rejected by the Court of Appeal of Graz on the ground that such appeal
to the Supreme Court did not lie under Austrian law. The Applicant
further states that he also complained to the Minister of Justice and
the President of the Regional Court about his detention on remand and
that the latter promised to examine his complaint.

It appears that, on .. September, 1966, the office of the Public
Prosecutor (Staatsanwaltschaft) at Klagenfurt served on the Applicant
the bill of indictment (Anklageschrift). He states that he submitted
a list of witnesses whom he wished to have summoned to give evidence
at the trial. This list was later supplemented by the names of further
witnesses for the defence.

On .. November, 1966, the Applicant was brought to trial before the
Regional Court of Klagenfurt sitting at Spittal/Drau. He states that
only three of the witnesses named by him appeared in court. He also
alleges that he was hindered in his defence. He explains that he had
been in contact with a lawyer in Vienna who had invited him to send a
statement concerning his case. However, the investigating judge at
Klagenfurt had refused his permission to transmit this statement on the
ground that the Applicant was not allowed to write any letter relating
to the proceedings against him. The Applicant further explains that
shortly before the trial he had been informed that another lawyer from
Spittal had been appointed to represent him at the trial. This lawyer
had then informed the Applicant that he was not able properly to defend
him because he himself had just learned of his appointment.
Consequently, the Applicant had prepared a seventeen page statement
which he intended to deliver at the trial, but the presiding judge
prohibited him from delivering this document and defending himself in
person.

The Applicant states that, on .. November, 1966, the Regional Court
decided to adjourn the case.

It appears that the matter was heard again on .. January, 1967. On that
day the Regional Court of Klagenfurt convicted the Applicant for
defamation an fraud and sentenced him to ten months' severe
imprisonment with the additional penalty of "sleeping hard" (hartes
Lager) once a month. The Applicant lodged with the Supreme Court a plea
of nullity (Nichtigkeitsbeschwerde) alleging only that he was wrongly
convicted (Article 281, No. 9a of the Code of Criminal Procedure). The
Public Prosecutor's office, in turn, appealed (Berufung) against the
sentence imposed by the Regional Court. On .. June, 1967, the Supreme
Court rejected both the appeal and the plea of nullity.

[هيثم الفقى]

The Applicant now complains that

- his arrest and detention on remand violated the Convention. He
alleges that insofar as the Court of Appeal had held that there was no
danger of his absconding but only of his committing a further offence
of defamation, his arrest and detention were unlawful as the Austrian
Code of Criminal Procedure did not provide for detention on that
ground. He further alleges that, by .. December, 1966, he had been in
detention for eight months;

- he was wrongly convicted and sentenced;

- the Convention was violated in the court proceedings concerned in
that he was hindered in his defence and his witnesses were not summoned
and examined by the Regional Court.

He alleges violations of Articles 5, paragraphs (2) and (3), and 6,
paragraph (3) of the Convention.

THE LAW

Whereas, insofar as the Applicant complains of his arrest and detention
on remand, the Commission has had regard to Article 5, paragraph (1)
(c) (Art. 5-1-c), of the Convention which permits 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";

Whereas it appears that the competent Austrian court made an order for
the Applicant's arrest and detention on remand under the provisions of
Articles 175, paragraph (1), No. 2 and 180, paragraph (1) of the Code
of Criminal Procedure; whereas the Commission is not competent to
examine the question whether during those proceedings the domestic law
was correctly interpreted and applied but is only concerned to satisfy
itself that the Applicant's detention was not the consequence of some
arbitrary action by the authorities; whereas the Applicant has not
produced any evidence indicating the existence of such arbitrary
action; whereas, therefore, the Commission finds that his detention
was "lawful" within the meaning of Article 5, paragraph (1) (c),
(Art. 5-1-c), of the Convention;

Whereas it follows that, in this respect, the Application is manifestly
ill-founded and must be rejected in accordance with Article 27,
paragraph (2) (Art. 27-2), of the Convention.

Whereas, in regard to the Applicant's complaints as regards the length
of his detention on remand; the Commission had regard to his allegation
that he was so detained for a period of eight months; whereas the
Commission finds that 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 Article 5 (Art. 5); whereas it
follows that this part of the Application is also manifestly
ill-founded within the meaning of Article 27, paragraph (2)(Art. 27-2),
of the Convention.

Whereas, in regard to the Applicant's complaints relating to his
conviction and sentence an examination of the case as it has been
submitted, including an examination made ex officio, does again not
disclose any appearance of a violation of the rights and freedoms set
forth in the Convention and especially in the Articles invoked by the
Applicant; whereas, in respect of the judicial decisions complained
of, the Commission has frequently stated that in accordance with
Article 19 (Art. 19) of the Convention its only task is to ensure
observance of the obligations undertaken by the Parties in the
Convention; whereas, 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 the Commission considers that such
errors might have involved a possible violation of any of the right and
freedoms limitatively listed in the Convention; whereas, in this
respect, the Commission refers to its decisions Nos. 458/59 (X v.
Belgium - Yearbook III, p. 233) and 1140/61 (X v. Austria - Collection
of Decisions, Vol. 8, p. 57); and whereas there is no appearance of a
violation in the proceedings complained of; whereas it follows that
this part of the Application is again manifestly ill-founded within the
meaning of Article 27, paragraph (2) (Art. 27-2), of the Convention;

Whereas, in regard to the Applicant's complaint that the Convention was
violated in the court proceedings concerned, it is to be observed that,
under Article 26 (Art. 26) of the Convention, the Commission may only
deal with a matter after all domestic remedies have been exhausted
according to the generally recognised rules of international law;

Whereas the mere fact that the Applicant has, in pursuance of Article
26 (Art. 26), submitted his case to the various competent courts does
not constitute compliance with this rule; whereas it is also required
that any complaint made before the Commission and relating to lower
courts or authorities should have been substantially raised before the
competent higher court or authority; whereas in this respect the
Commission refers to its constant jurisprudence, e.g. decisions No.
263/57 (K v. Federal Republic of Germany - Yearbook I, p. 147), 788/60
(Austria v. Italy, ibid IV, p. 116) and 1103/61 (N. v. Belgium - ibid
V. p. 168);

Whereas the Applicant had the possibility in his plea of nullity and
appeal to the Supreme Court to invoke his right to a fair hearing and,
in this connection, to rely upon the relevant provisions in domestic
law including possibly Article 6 (Art. 6) of the Convention;

Whereas it appears that he has not availed himself of this possibility;

Whereas , furthermore, an examination of the case as it has been
submitted, including an examination made ex officio does not disclose
the existence of any special circumstances, such as a legal or factual
impossibility or a justified impediment which might have absolved the
Applicant according to the generally recognised rules of international
law, from raising his complaints before the Supreme Court;

Whereas, therefore, the condition as to the exhaustion of domestic
remedies laid down in Articles 26 and 27, paragraph (3)
(Art. 26, 27-3), of the Convention has not been complied with by the
Applicant.

Now therefore the Commission declares this application INADMISSIBLE