European Court of Human Rights

THE FACTS

Whereas the facts presented by the Applicant - excluding those which
relate to the complaints already rejected by the Commission (1) - may
be summarised as follows:

The Applicant is a Hungarian citizen, born in 1941. His present
whereabouts are unknown; a letter sent to him under his previous
address in Vienna was returned to the Commission's Secretariat with the
note "addressee has removed abroad to Canada, therefore return"
(Empfänger ins Ausland nach Canada verzogen, daher zurück).

On ... 1962, he was convicted of certain offenses and sentenced by the
Regional Court (Landesgericht) of Vienna to two years' imprisonment.

While serving his sentence, he went on hunger strike on ... 1963. He
states that on the following day he was placed in a dark isolated cell
and for four days refused any liquid. After abandoning his strike on
... 1963, he was served 1/2 litre of strongly salted milk.

He states that again, from ... until ... 1963 he refused to eat and
that similar measures were again applied.

He alleges violations of Article 3 of the Convention.

Whereas, by its partial decision of 24th April 1965, the Commission
decided to invite the respondent Government, in accordance with Rule
45, paragraph 3 (b), of the Rules of Procedure, to submit its
observations on the admissibility of the complaints regarding such
alleged violations of Article 3 of the Convention.

Whereas the Government has stated that the Applicant went on hunger
strike in Stein prison on ... and ... 1963, and subsequently, on ...
1963.

As to the treatment of prisoners on hunger strike and particularly, of
the Applicant, the Government stated:
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(1) Certain complaints were declared inadmissible on 24th April, 1965.
This partial decision of the Commission has not been published.
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"Whenever a prisoner declares that he intends to go on hunger-strike,
he is separated from the other prisoners and transferred into a
corrective cell. At the same time, the potable water supply and the
flushing of the water closet are turned off. To permit the prisoner to
relieve nature, the flushing is turned on for a short time on his
demand. By denying drinking water to the prisoner, he shall be induced
to end his hunger-strike, the more so since every hunger-strike causes
disturbances in the operation of a penitentiary. Only in a corrective
cell is it possible to turn off the flushing of the WC.

During the hunger-strike, the prisoner is supplied with one litre of
whole milk per day; it is left to his discretion to drink that milk or
refuse it. At that time, a small amount of salt - namely 0.5 grammes
per litre whole milk - was added to the milk in order to render the
milk sugar ineffective; this method had meanwhile been abandoned, and
milk is now supplied without any addition of salt. Such salt addition
was to make milk less tasty and increase the prisoner's thirst. This
measure, too, served the only purpose to cause the prisoner to end his
hunger-strike.

Whenever a hunger-strike endangers the prisoner's life, he is forcibly
nourished, i.e. under the control by a physician, he is given one litre
of whole milk containing sugar and one egg.

To permit a prisoner on hunger-strike to clean his body, he gets every
day a hand-basin of water with an addition of 20 grammes of washing
soda and is expressly told about the soda addition. Such soda addition,
which is exactly dosed by a physician, shall prevent the prisoner from
drinking the water. As stated clearly by the physician employed at the
penitentiary, any burns are impossible with such a small addition of
washing soda. Soda solutions of this kind are even used for rinsing
eyes in the case of certain burns. Such soda solutions, therefore,
cannot cause any damage to eyes.

The Applicant's allegation that severe damage was caused to his health
by the treatment given to him during his hunger-strikes, is entirely
unjustified. According to the report of the penitentiary's physician,
the prisoner, who is 178 centimetres tall, weighed 73.50 kilograms when
handed in to the Stein penitentiary and his weight was 72.00 kilograms
at the date of his release. The prisoner was in good state of health
when he was released from prison.

The truth is that the corrective cells are equipped with special safety
devices. They contain, as a rule, a second grid designed to protect the
guards entering the cell against vicious or obstinate prisoners. In
contrast to ordinary cells, they do not contain a sitting WC but a
so-called 'French standing WC' sunk into the floor and consisting of
a solid and flat basin with treads and a hole between."

The Government concluded that in the present case there was no question
of a violation of the Convention and added that the criminal
proceedings which the Applicant had wished to institute against the
prison governor and another prison officer had in fact been
discontinued, as the Applicant's allegations had been found to be
entirely unfounded.

Moreover, the Applicant had not, in the Government's submission,
exhausted the domestic remedies available to him. In fact, two lines
of action were open to him under Austrian law:

(1) Under the Prison Rules, he could have lodged a complaint regarding
his treatment in prison. Such a complaint may finally be decided upon
by the Federal Ministry of Justice. Against the Ministry's decision,
proceedings may be instituted before the Administrative Court
(Verwaltungsgerichtshof);

(2) According to Article 48 of the Code of Criminal Procedure, the
Applicant could have instituted proceedings by way of a
"Subsidiaranklage" against the officials concerned, even if the public
prosecutor had himself refused to take any action.

Whereas the Government's observations have not been communicated to the
Applicant as his present address is unknown to the Commission.

THE LAW

Whereas 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; and whereas the Applicant failed
to exhaust the remedies referred to by the Austrian Government;
whereas, therefore, he has not exhausted the remedies available to him
under Austrian law; whereas, moreover, 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 which might
have absolved the Applicant, according to the generally recognised
rules of international law, from exhausting the domestic remedies at
his disposal; 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.

Whereas, as regards the methods which were previously used during
prisoners' hunger strikes and to which the Applicant was subjected, the
Commission has had regard to the facts that the present Applicant did
not exhaust the remedies at his disposal, and that it appears from the
Government's observations that the practice of adding salt to milk
before consumption has now been abandoned.

Now therefore the Commission declares this Application INADMISSIBLE.