European Court of Human Rights

THE FACTS
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(1) A partial decision given by the Commission on 14th February 1966
has not been published.
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Whereas the facts presented by the Applicant - excluding those which
relate to the complaints already rejected by the Commission - may be
summarised as follows:

The Applicant is a German citizen, born in 1929 and at present living
at Lübeck.

He states that on .. November 1964, it came to his knowledge that two
South Tyrolese were planning to place a suitcase containing a bomb in
an express train (Brenner Express) bound for Italy, where the bomb was
to explode during the night between .. and .. November. The two men
were acting from political motives, and the direct reason was that
certain elections were to take place on .. November 1964 in the
province of Bolzano.

He further states that he tried to persuade the two men to refrain from
their action, and when this attempt failed, he was anxious to prevent
in some other way the very serious consequences which would be the
result of the explosion. He decided, however, not to inform the
Austrian authorities, since he considered that certain Austrian
officials might not be willing, for political reasons, to prevent the
explosion; he chose to go to Italy in the same train as the bomb and
to inform the Italian authorities as soon as he had crossed the
frontier. He managed to inform the Italian authorities one hour before
the explosion was to take place and serious damage was thereby avoided;
nevertheless, the authorities did not manage to prevent damage to a
railway carriage, although, in the Applicant's opinion, this could also
have been avoided.

The Applicant submits that, on .. December 1964, he was arrested in
Italy by the Austrian police and that the Italian authorities were
unaware of his arrest. This action taken by the Austrian authorities
outside Austrian territory amounts, in his opinion, to kidnapping. He
states about this incident that he travelled in a train to the Brenner
railway station in Italy, that he was there taken out of the train and
kept about twenty minutes in the office of the Austrian passport
authorities; that, shortly before the train left, he was obliged to
return to the train with an Austrian police officer and to go into a
service compartment of the police; that the Austrian officials drew the
curtains of the compartment in order to search the Applicant; that no
Italian official was aware of these events, although they all took
place on Italian territory; and that he was taken in the train to
Austria.

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 involved
in the plans to blow up the train, he was not released and he states
that he was told that nothing would have happened to him if he had
informed the Austrian, and not the Italian, authorities of the plans
of the two South Tyrolese.

His appeal regarding his detention was rejected on .. December 1964,
by the Judges' Chamber of the Regional Court (Ratskammer des
Landesgerichts) of Innsbruck and, on appeal, on .. January 1965, by the
Court of Appeal (Oberlandesgericht) of Innsbruck. Subsequent requests
for release were rejected by the Regional Court of Innsbruck on ..
April and .. July 1965. He also asked the Supreme Court (Oberster
Gerichtshof) that his case should be dealt with in another
"Bundesland", where the authorities would be more impartial in regard
to the political issue which formed the background of his case. This
petition as well as another petition to the Minister of Justice was,
however, unsuccessful.

The Applicant states that subsequently he was charged with an offence
against the Explosives Act and that the trial against him took place
at Graz on .. November 1965. On the same day, he was sentenced to 18
months severe imprisonment, although the jury was not unanimous. He
further states that as he had not sufficient money to oppose the
political interests which were involved in the case and also in view
of 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 admitted
that X. had been arrested on Italian territory and that the arrest had
taken place on Dr. A's initiative.

The Applicant served his sentence in a prison at Graz and was released
in June 1966.

The Applicant alleges

- that he was unlawfully arrested by Austrian police on Italian
territory,

- that, as a result of the circumstances of his arrest, his subsequent
detention in Austria was also unlawful.

He invokes Article 5, paragraphs (1) (c), (4) and (5), of the
Convention and emphasises that, according to Article 5, paragraph (1)
(c), arrest and detention must be lawful.

Proceedings before the Commission

Whereas, on 14th February 1966, the Commission, while declaring certain
other complaints inadmissible, decided in accordance with Rule 45,
paragraph (3) (b), of its Rules of Procedure, to give notice of the
allegations set out above to the Austrian Government and to invite it
to 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 22nd
April 1966, were received on 5th May 1966.

Submissions of the Parties

Whereas the submissions of the Parties may be summarised as follows:

The Government submitted that, on the morning of .. November 1964, an
explosion, which caused considerable damage to property, occurred in
the railway station area at Brixen, South Tyrol, in the luggage van of
the Brenner Express train which had come in from Austria. It appeared
that explosives had been contained in a suitcase which an unknown man
had registered at Innsbruck for delivery in Italy. It was also found
out that four people, among them the Applicant, had been involved in
the making of the explosive. At that time, the Applicant's whereabouts
were not known, but on .. December 1964, the Austrian border police
officer on duty at Brenner station, in the course of his routine check
of the Alpen Express, noticed the Applicant whom he knew to be wanted
by the authorities and who intended to go to Innsbruck in the same
train. He asked the Applicant to accompany him to the office of the
Austrian border police for an examination of his passport. Shortly
before the train was due to leave, the Applicant was given permission
to travel on to Austria. In the train, between Brennersee and Gries,
i.e. on Austrian territory, the Applicant was told that he was under
arrest. Consequently, his arrest took place in Austria, and not in
Italy. As regards the exercise by Austrian border police and customs
authorities of official functions at the Austro-Italian border in the
Brenner area, the Government referred to the agreement signed by
Austria and Italy on 22nd October 1947. This agreement, described as
a "modus vivendi", authorises Austria to provide border control
services at Brenner station. For that purpose, premises are at the
disposal of the Austrian authorities, including the police, and,
according to the agreement, Austria is expressly authorised to maintain
police services at the station.

The Government further submitted that the Applicant had not exhausted
the domestic remedies within the meaning of Article 26 of the
Convention. It is true that in December 1964 and January 1965, he
appealed against his detention, but in these proceedings he did not
argue that he had been arrested unlawfully in Italy. Even if he had
asserted the illegality of his arrest at a later date, namely, in his
applications which were rejected by the Regional Court in April and
July 1965, the requirements of Article 26 would not be satisfied, since
an appeal from the decisions of the Regional Court could have been
lodged with the Court of Appeal. Moreover, the decision of .. July
1965, is irrelevant to the question whether or not Article 26 has been
satisfied, since that decision was given after the Applicant had lodged
his Application with the Commission.

By way of conclusion, the Government requested that the Application
should be declared inadmissible for non-exhaustion of domestic remedies
or, alternatively, as being manifestly ill-founded. The Applicant
maintained, 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 was
compelled by Austrian police officers to continue in the train to
Austria and he also referred to the reply given at the trial by the
witness Polizei-Oberrat Dr. A to a question put to him by the
Applicant's lawyer. The lawyer asked the following question: "Supposing
that the accused X was an Italian agent as you believed or still
believe, Dr. A, how can you explain that he let your people arrest him
at Brenner station, that is on Italian territory?" Dr. A replied: "The
accused had no possibility of escaping at the station, as we had taken
appropriate measures and watched him carefully".

As regards exhaustion of domestic remedies, the Applicant stated that
he had not studied Austrian law and had no one to inform or advise him.
He tried, however, to appeal to the Investigating Judge and
subsequently to the Regional Court and the Court of Appeal. He also
approached the Supreme Court in Vienna but received the reply that only
the Courts of Innsbruck were competent. Finally, he wrote to the
Commission, hoping to find justice before an international court where
there is no prejudice based on national or provincial feelings.

THE LAW

Whereas the Applicant alleges that his arrest was unlawful as it took
place on Italian territory, and that, as a result, his subsequent
detention on remand was also unlawful;

Whereas Article 26 (Art. 26) of the Convention provides that 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, in so far as the Applicant alleges that his arrest was
unlawful, the Commission has taken into consideration, although it was
not submitted by the Respondent Government, the fact that, according
to Article 144 of the Austrian Federal Constitutional Act
(Bundes-Verfassungsgesetz), the Constitutional Court
(Verfassungsgerichtshof) is competent to decide on appeals from
decisions (Bescheide) by the administrative authorities in regard to
alleged violations of constitutional rights;

Whereas, according to a constant jurisprudence in Austria, the
Constitutional 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 (Gesetz
zum Schutze der persÖnlichen Freiheit) which has the status of a
constitutional Act contains provisions regarding the conditions on
which a person may be arrested; add whereas the physical arrest of a
person is, according to Austrian jurisprudence, apparently to be
considered as a 'factual' official act;

Whereas it follows that the Constitutional Court would have been
competent to examine whether or not the Applicant had been lawfully
arrested by the Austrian authorities;

Whereas, by failing to appeal to the Constitutional Court, the
Applicant has not, in regard to his arrest, exhausted the domestic
remedies within the meaning of Article 26 (Art. 26);

Whereas, in so far as the Applicant alleges that his subsequent
detention 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 the
Judges' Chamber of the Regional Court and that his appeal from that
decision was rejected on .. January 1965, by the Court of Appeal at
Innsbruck;

Whereas the Government has stated that in these proceedings the
Applicant did not argue that he had been unlawfully arrested in Italy;
whereas the Applicant has not contested this statement by the
Government;

Whereas the Applicant subsequently submitted two requests for his
release from detention which were rejected on .. April and .. July
1965, by the Regional Court of Innsbruck; whereas it appears from these
decisions that, according to Article 194, paragraph 2, of the Code of
Criminal Procedure, no appeal to the Court of Appeal was available;
Whereas, however, it remains to be examined whether in these two
requests for release the Applicant invoked the alleged fact that he had
been arrested on Italian territory; whereas neither the Government nor
the Applicant himself has made any clear statement in this regard;
whereas the decisions of .. April and .. July 1965, contain no
indication that this point had been raised by the Applicant in the
proceedings concerned;

Whereas, consequently, the Applicant has not shown that, in his appeals
or applications relating to his detention, he made the particular
allegation which he subsequently raised before the Commission; whereas
the Commission concludes that the Applicant has not, in regard to his
detention, exhausted the domestic remedies within the meaning of
Article 26 (Art. 26).

Now therefore the Commission declares this Application INADMISSIBLE.