دكتور غنام
قناة دكتور أكرم على يوتيوب

آخـــر الــمــواضــيــع

النتائج 1 إلى 2 من 2

الموضوع: W., X., Y. AND Z. v. THE UNITED KINGDOM - 3479/68 [1968] ECHR 4 (19 July 1968)

  1. #1

    افتراضي W., X., Y. AND Z. v. THE UNITED KINGDOM - 3479/68 [1968] ECHR 4 (19 July 1968)

    [align=left]
    THE FACTS

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

    The applicant is a German citizen born in 1941 at S., Yugoslavia.
    When last heard of he was detained in prison at Stein/Danube (Austria)
    serving a sentence of five years' severe imprisonment (schwerer Kerker)

    for fraud; his term was due to end in October 1968.

    He has lodged two previous applications (Nos. 2370/64 and 3011/67)
    which were declared inadmissible by the Commission's decisions
    of 11th February (1) and 20th December, 1967 (2).

    The applicant generally attacks the Commission's decisions on his
    previous applications and alleges that the Commission violated all
    the articles of the Convention ("ihre eigenen Artikel auf der ganzen
    Linie verletzt"). In particular he complains of the fact that the
    Commission decided too early and did not wait until domestic
    proceedingshad come to an end.

    He raises a number of new complaints which are, however, largely
    connected with facts forming already the subject of the previous
    applications.

    A. Complaints against Austria

    I. One part of the applicant's present application relates to certain
    facts already presented in Application No. 2370/64 against Austria
    which were summarised as follows in the Commission's decision
    of 11th February, 1967;
    ------------------------------
    (1) Published in Collection of Decisions, Vol. 22, p. 96
    (2) Published in Collection of Decisions, Vol. 25, p. 70
    ------------------------------
    "After the hearing of his appeal in Vienna on .. July, 1964, the
    applicant jumped off the train on his way back to the prison at
    Wiener-Neustadt allegedly with the intention of committing suicide
    after his conviction. A disciplinary punishment (Hausstrafe) of 10 days
    solitary confinement ('Keller') and of 4 days fasting and sleeping hard
    was imposed by the prison authority of Wiener-Neustadt which found that
    he had tried to escape. The punishment was executed at Stein where the
    applicant had been taken in the meanwhile. On .. December, 1964, the
    applicant complained of this fact in a letter to the Minister of
    Justice, but apparently without success. He also required compensation
    for the injuries he had suffered when he jumped off the train.
    ...
    With regard to these injuries ... suffered on .. July, 1964, when he
    jumped off the train between Vienna and Wiener-Neustadt ... he filed
    in 1965 with the Regional Court (Landesgericht für Zivilsachen) of
    Vienna an action for damages against the State, which according to him
    has not yet been determined by Court.

    The Court assigned a lawyer of Krems to represent him in these
    proceedings. This lawyer informed him, on .. March, 1966, that he had
    presented the claim first to the Office of the Attorney of the Treasury
    and that he would have to wait 3 months for its decision. In reply, the
    applicant demanded a copy of the request lodged on his behalf with the
    Attorney of the Treasury, but without success. Instead he was informed
    on .. May, 1966, that the lawyer had asked the Court's permission to
    resign from this case (Enthebung beantragt). On .. June, 1966, the
    lawyer himself wrote to the applicant that he could not act for him
    because the claims were exaggerated. On .. June, 1966, the applicant
    was heard by the Court but no decision was taken. Subsequent letters
    to the Court remained without reply.

    The applicant states, without giving further details, that he has now
    brought an action on the ground of tardiness and a claim for damages
    (Säumnisklage verbunden mit einem Schadensersatzanspruch) against the
    lawyer.

    Insofar as the applicant's complaints were directed against his lawyer
    who represented him in subsequent civil proceedings for damages, the
    Commission rejected his previous application as being incompatible with
    the Convention ratione personae and added that there was no appearance
    of a violation of the Convention. Insofar as the above complaint gives
    rise to the question whether the Regional Court failed to ensure that
    the applicant's defence was properly carried out with the consequence
    that he was not given a fair hearing within the meaning of Article 6
    of the Convention.

    Although the applicant, in a letter to the Commission dated 3rd
    October, 1964, and concerning his previous application, had stated
    expressly that he deliberately jumped off the train ("Ich wollte
    sterben und sprang kurzerhand aus dem fahrenden Zug ..."), he now
    alleges that he did not intend to commit suicide but fell off the
    train. When reminded of the previous statement, he explains that he had
    made those in a state of confusion ("Sinnverwirrung"). He now affirms
    that, because of the hot weather on the day in question he did not feel
    well and had to go to the lavatory. While he did so the prison officer
    who accompanied him, sat in a corner of the compartment sleeping or
    otherwise not paying attention. On his way back from the lavatory the
    applicant - according to his present allegations - broke down tried to
    find hold but did not succeed. So he fell through the door which he
    might have opened while on the platform between two wagons and off the
    train because the grid was not closed. The applicant alleges that the
    prison officer according to the Rules on the escorting of prisoners by
    prison officers (Vorschriften über die Eskortierung von Gefangenen
    durch Justizwachbeamte) should have accompanied him to and waited at
    the lavatory door.

    With regard to the applicant's subsequent action for compensation - in
    the amount of 700,000 Austrian Schillings - it appears from his present
    allegations that, by decision from .. April, 1967, the Regional Court
    released the lawyer from the case and withdrew the legal aid which had
    been granted to the applicant. After having consulted the file kept in
    the prison the Court held that his action had no chance of success as
    there was nothing to show that the applicant had in fact fallen from
    the train as a result of any negligence of the prison guard or the
    railway administration.

    The applicant's appeal was rejected by the Court of Appeal
    (Oberlandesgericht) of Vienna on .. September, 1967, on the ground that
    under Austrian law the applicant, as a foreigner, could not bring an
    action for damages against the State, since no reciprocity is
    guaranteed in relation to his home country; i.e. the Federal Republic
    of Germany.

    A further appeal lodged by the applicant was rejected as being
    inadmissible by the Regional Court on .. November and by the Court of
    Appeal on .. December. 1967.

    The applicant complains both of the court's and his lawyer's conduct
    in the case. He further complains that the Court of Appeal did not
    transmit his appeal to the Constitutional Court
    (Verfassungsgerichtshof) as requested by him. On .. February, 1968, he
    applied directly to the Constitutional Court but apparently without
    success.

    The applicant also laid criminal charges against the persons who were
    responsible that, according to his allegations, the grid of the
    platform was not closed. The Public Prosecutor's Office
    (Staatsanwaltschaft) of Wiener-Neustadt discontinued the proceedings
    on .. May, 1967, on the ground that there was no sign of negligence and
    this was confirmed on .. October, 1967, by the Judges' Chamber of the
    Regional Court (Ratskammer des Kreisgerichts).

    II. The applicant further complains about another incident during his
    detention in Austria. He states that on .. April, 1967, he had
    undergone an operation in a hospital in Krems. In the night from .. to
    .. April, 1967, he received some medicine because he had pains. In the
    morning he was apparently given a purgative. One hour later he had to
    go to the lavatory but he could not get up because after having got so
    much medicine he was too weak. When he tried to get up he allegedly
    fell and hurt himself. Finally he had to relieve himself in the bed
    while two prison officers stood in the room laughing and insulting him.

    The applicant complains that the prison officers watched the whole
    indigent without helping or assisting him in any way. He lodged against
    the officers charges of having endangered his personal safety
    (Gefährdung der Sicherheit des Lebens). The charges were dismissed on
    .. August, 1967, and this decision was confirmed on .. October, 1967,
    by the Judges' Chamber of the Regional Court at Krems.

    III. The applicant further complains that during this medical treatment
    in the hospital in Krems he had for 7 days to stay in a bed for which
    the bedclothes of a fellow prisoner who had died were used without
    being cleaned.

    IV. As in his first application (No. 2370/64) he complains of the fact
    that during his detention in Stein prison his health was ruined and as
    a result of the work which he had to perform he now suffers from an
    anginal hernia.[/align]
    مكتب
    هيثم محمود الفقى
    المحامى بالاستئناف العالى ومجلس الدولة
    المستشار القانونى لنقابة التمريض ا مساعد أمين الشباب لدى منظمة الشعوب العربية لحقوق الانسان ودعم الديمقراطية ا مراقب عام دائم بمنظمة الشعوب والبرلمانات العربية ا مراسل ومحرر صحفى ا

  2. #2

    افتراضي

    [align=left]

    The applicant alleges violations of Articles 3, 6, paragraphs (1) and
    (3) (a), (c) and (d), 7, paragraph (1), 8. paragraph (2), 9, paragraph
    (2), 11, paragraph (2), 13 and 14 of the Convention. He also invokes
    Articles 25, 26, 27, paragraph (1) (b), 28, paragraph (b), 31,
    paragraphs (1) and (3), 44, 47, 49 and 50 of the Convention.

    B. Complaints against the Federal Republic of Germany

    The complaints made by the applicant against the Federal Republic of
    Germany relate to certain facts already presented in Application No.
    3011/67 which were summarised as follows in the Commission's decision
    of 20th December, 1967:

    "From his statements and from documents submitted by him in support of
    his present application against the Federal Republic of Germany it
    appears that, since September, 1954, his mother had rented a flat at
    Magstadt which he also inhabited and where he kept his belongings.
    Owing to the applicant's frequent absence, his mother let part of the
    flat to a subtenant. On .. October, 1964, upon the initiative taken by
    the authorities at Magstadt, the applicant's mother was first committed
    to an institution for aged people and later to a mental institution.
    Subsequently, the lessor gave notice to the applicant to vacate the
    flat in view of the fact that his mother was unlikely to return and he
    himself was faced with a long-term imprisonment imposed upon him in
    Austria.

    The applicant, whose furniture, household and other goods were still
    in this flat, objected to the notice to both the authorities at
    Magstadt and the lessor. It appears that he also addressed himself
    repeatedly to the District Court (Amtsgericht) at Böblingen asking for
    protection. By letters from the District Court, dated .. February, 1965
    and .. April, 1965, and from the authorities at Magstadt, dated ..
    January, 1965, he was informed that, in the circumstances, no action
    could be taken on his behalf. He apparently did not listen, however,
    to the advice given to him by the authorities at Magstadt and the
    District Court at Böblingen to the effect that he should apply for a
    guardian (Pfleger) who would attend to his affairs. In any event, the
    lessor took possession of the flat on .. July, 1965, after having
    evicted the subtenants.

    It appears that, in the meanwhile, the applicant's brother had come
    over from America to take possession of the applicant's belongings. He
    sold them and obtained a purchase price of DM 1065.- which he took with
    him to America.

    The applicant maintained that the goods stored away in the flat had a
    much higher value than the price realised by his brother. He concluded
    that the subtenant had taken them in his possession when his mother was
    committed to the mental institution. He held the authorities at
    Magstadt and the lessor responsible for the damage done to him owing
    to their failure to protect his mother from the subtenants and to the
    fact that they had allowed them (the subtenants) to remain in the flat
    after his mother had left it.

    Thus he intended to bring an action for damages in the courts and, for
    this purpose, lodged an application for free legal aid
    (Armenrechtsgesuch) with the Regional Court (Landgericht) at Stuttgart.
    This Court refused the application by decision (Beschluss) of ..
    August, 1966, on the ground that the proceedings proposed did not offer
    any reasonable prospects of success. The applicant appealed
    (Beschwerde) against this decision to the Court of Appeal
    (Oberlandesgericht) at Stuttgart which dismissed the appeal on ..
    January, 1967. The Court held that insofar as the claim was directed
    against the lessor, there was no cause of action, because the lessor
    owed no duty to the lessee in respect of the lessee's belongings. The
    Court continued that there was also no cause of action against the
    authorities of Magstadt; even if it were assumed that a duty existed
    owing to the fact that this defendant caused the mother to be committed
    to an institution for aged people, there was no breach of this duty
    (Amtspflichtverletzung) because she herself had taken steps to
    safeguard her own and the applicant's belongings.

    The applicant made a further appeal (weitere Beschwerde) against this
    decision to the Federal Court (Bundesgerichtshof) which was declared
    inadmissible on .. September, 1967, on the ground that a further appeal
    did not lie in these cases."

    These complaints were declared inadmissible by the Commission's
    decision of 20th December, 1967, both as regards the alleged
    deprivation of property and the subsequent court proceedings.

    The applicant now alleges that during these Court proceedings he was
    insulted and defamed in a letter submitted by the lessor to the
    Regional Court on .. June, 1966. In this letter it was stated that the
    applicant served a long term of imprisonment, that the applicant's
    mother had let part of the flat to a subtenant without the lessor's
    permission and that one could not expect from the lessor to let the
    flat to the applicant and his mother any longer because they would not
    be able to pay the rent.

    The applicant requested legal aid in order to institute private
    criminal prosecution ("Privatklage") against the lessor to the District
    Court of Stuttgart. The District Court refused the request by decision
    of .. September, 1967, on the grounds that the intended private
    criminal prosecution had no reasonable chance of success. This decision
    was confirmed on appeal by the Regional Court on .. September, 1967.

    It appears that the applicant also lodged two constitutional appeals
    which were rejected as being inadmissible by decisions of the Federal
    Constitutional Court (Bundesverfassungsgericht) of .. January and ..
    February, 1968. The applicant gives no clear details in this respect.

    The applicant complains that he did not really want to apply for
    private criminal prosecution but wanted to bring a civil action.

    Although speaking of a "Privatklage" he apparently wished to bring a
    civil action for damages and for a statement that he was still tenant
    of the flat. He complains that no decision was given in this respect.

    Furthermore the applicant complains of the fact that the Court had put
    the expenses at his charge. He alleges - as he did in his previous
    application (No. 3011/67) - that the authorities at Magstadt and the
    lessor are responsible for the damage done to him and now complains
    that he has even to pay the court's expenses resulting from this case.

    The applicant alleges violations of Articles 6, paragraphs (1) and (3),
    (c) and (d), 8, 13 and 14 of the Convention and Article 1 of the First
    Protocol. He also invokes Articles 25, 26, 31, paragraph (1), 44, 47,
    49 and 50 of the Convention.

    THE LAW

    Whereas Article 27, paragraph (2) (Art. 27-2), of the Convention
    provides that "the Commission shall consider inadmissible any petition
    submitted under Article 25 (Art. 25), which it considers ... an abuse
    of the right of petition";

    Whereas in this respect it is first to be observed that the applicant
    has already seized the Commission twice with applications generally
    concerning the same facts as his present complaints; whereas both those
    previous applications were found to be inadmissible; whereas the
    applicant nevertheless repeats in part his previous complaints although
    adding certain new elements; whereas therefore the Commission, in
    examining the present application, has taken into account that this
    application constitutes to a certain extent a repetition of the
    previous ones, even if it cannot strictly be said to be "substantially
    the same" within the meaning of Article 27, paragraph (1) (b)
    (Art. 27-1-b) of the Convention;

    Whereas in his submission on one of those facts already raised in his
    first application (No. 2370/53), the applicant has made deliberately
    false statements and tried to mislead the Commission with regard to the
    incident on the train between Vienna and Wiener-Neustadt, in that he
    claimed in his first application that he jumped off the train to commit
    suicide and - obviously no longer being aware of that statement - now
    claims that he fell off the train as a result of a sudden fainting and
    contributory negligence on the part of the escorting officer;

    Whereas the Commission has already held in the past in similar cases
    that such conduct of an applicant constitutes an abuse of the right of
    petition; whereas reference is made to the decisions on the
    admissibility of Applications Nos. 2169/64, 2204/64, 2326/64;
    Collection of Decisions, Vol. 14, p. 76, and Nos. 2364/64, 2584/65,
    2662/65 and 2748/66, Collection of Decisions, Vol. 22, p. 103; whereas
    also in the present case the Commission finds in view of all
    circumstances that the applicant's new application amounts to an abuse
    of the right to petition within the meaning of Article 27, paragraph
    (2) (Art. 27-2), of the Convention;

    Now therefore the Commission DECLARES THIS APPLICATION INADMISSIBLE
    [/align]
    مكتب
    هيثم محمود الفقى
    المحامى بالاستئناف العالى ومجلس الدولة
    المستشار القانونى لنقابة التمريض ا مساعد أمين الشباب لدى منظمة الشعوب العربية لحقوق الانسان ودعم الديمقراطية ا مراقب عام دائم بمنظمة الشعوب والبرلمانات العربية ا مراسل ومحرر صحفى ا

المواضيع المتشابهه

  1. M.R. v. AUSTRIA - 2614/65 [1968] ECHR 7 (18 July 1968)
    بواسطة هيثم الفقى في المنتدى Decisions of The European Court of Human Rights
    مشاركات: 8
    آخر مشاركة: 07-19-2009, 01:18 AM
  2. WEMHOFF v. GERMANY - 2122/64 [1968] ECHR 2 (27 June 1968)
    بواسطة هيثم الفقى في المنتدى Decisions of The European Court of Human Rights
    مشاركات: 13
    آخر مشاركة: 07-19-2009, 01:08 AM
  3. NEUMEISTER v. AUSTRIA - 1936/63 [1968] ECHR 1 (27 June 1968)
    بواسطة هيثم الفقى في المنتدى Decisions of The European Court of Human Rights
    مشاركات: 18
    آخر مشاركة: 07-19-2009, 12:51 AM
  4. X. v. THE FEDERAL REPUBLIC OF GERMANY - 2699/65 [1968] ECHR 9 (01 April 1968)
    بواسطة هيثم الفقى في المنتدى Decisions of The European Court of Human Rights
    مشاركات: 2
    آخر مشاركة: 07-19-2009, 12:37 AM
  5. TWENTY-ONE DETAINED PERSONS v. GERMANY - 3139/67 [1968] ECHR 15 (06 April 1968)
    بواسطة هيثم الفقى في المنتدى Decisions of The European Court of Human Rights
    مشاركات: 0
    آخر مشاركة: 07-19-2009, 12:35 AM

المفضلات

المفضلات

ضوابط المشاركة

  • لا تستطيع إضافة مواضيع جديدة
  • لا تستطيع الرد على المواضيع
  • لا تستطيع إرفاق ملفات
  • لا تستطيع تعديل مشاركاتك
  •