European Court of Human Rights

THE FACTS

Whereas the facts as presented by the Applicant in his numerous and
partly illegible letters and as appearing from the documents submitted
by him may be generally summarised as follows:

The Applicant is a German citizen born in 1941 in Sekic, Jugoslavia.
He is at present detained in prison at Stein, Austria.

On .. October, 1963, he was arrested in Austria on several charges of
fraud. The trial was ordered to be held on .. February, 1964, before
the Regional Court (Kreisgericht) of Wiener-Neustadt.

By a letter dated .. January, 1964, the Court informed the Applicant
that a lawyer, Dr. B, had been appointed as his counsel for the trial.
But one day after receipt of this letter the Applicant was told that
a different lawyer, Dr. A, would act as his counsel. He states that he
had no time to get in touch with this lawyer except a minute before the
opening of the trial on .. February, 1964, and that the lawyer simply
relied on what he was about to hear in the course of the trial.

On the same day the Applicant was convicted and sentenced to five
years' severe imprisonment (schwerer Kerker) with one day sleeping hard
every 3 months.

He lodged an appeal (Berufung) and a plea of nullity
(Nichtigkeitsbeschwerde) but the latter was subsequently withdrawn by
his trial lawyer, Dr. A, allegedly without the Applicant's consent and
knowledge. By a summons dated .. June, 1964, and handed to him on ..
June, 1964, the Applicant was informed that his appeal would be heard
by the Court of Appeal (Oberlandesgericht) of Vienna on .. July, 1964.

By a further letter also dated .. June, 1964, and handed to the
Applicant on .. June, 1964 (Friday) he was informed that he would be
defended before the Court of Appeal by Dr. K. He states that he wrote
immediately to this lawyer demanding that the letter be sent by
registered mail but when the Applicant appeared before the Court on ..
July, 1964, his lawyer, Dr. H, who was acting for Dr. K, had not yet
received the letter. The appeal was rejected on that same day.

The Applicant petitioned for a plea of nullity for the safeguard of the
law (Nichtigkeitsbeschwerde zur Wahrung des Gesetzes) but the Public
Prosecutor refused on .. October, 1964, to institute such proceedings.
He also lodged  several petitions for pardon, but without success.

After his conviction had become final, the City Council (Magistrate)
of Krems, which was his last residence in Austria, banished him from
Austrian territory by an order of .. October, 1964, which according to
its terms took immediate effect. Basing himself on this order the
Applicant asked for his immediate expulsion from Austria which would
involve his release from prison but, by a letter of .. February, 1965,
the City Council of Krems told him that the order could not be executed
as long as he was serving his sentence.

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 respect to the letter to his lawyer, Dr. K, which had not arrived,
the Applicant inquired at the prison authority of Wiener-Neustadt and
he was told by a letter of .. November, 1964, that no proof of its
expedition existed but that the letter, written according to the prison
authority on .. or .. June, had been forwarded to the investigating
judge on .. June, 1964, and posted subsequently by simple mail.

As to the Applicant's question what had become of the two stamps of 3
Austrian schillings which he had added for the expedition by registered
mail he was told that one stamp of 3 schillings (postage for abroad)
had been used. When the Applicant insisted further, comparing these
facts to his own offence of fraud, another disciplinary punishment of
7 days without breakfast was imposed by the prison authority of
Wiener-Neustadt.

He appealed against this decision to the Prosecution Officer of Krems
supervising the prison of Stein (Staatsanwaltschaft, Hauskommissär) who
rejected his appeal on .. November, 1964, on the ground that he could
not examine the decisions taken at Wiener-Neustadt.

In his letter of .. December, 1964, to the Minister of Justice, the
Applicant also complained of these facts, however, without success.

The Applicant complains of a second indecent, this time in the Stein
prison, in which he allegedly was charged 5.50 Austrian Schillings too
much for postage stamps. He had obtained permission to send a letter
and a pawn ticket (Pfandschein) but contrary to his intentions they
were posted by separate letters and he had to pay two times the postage
of 5.50 Austrian Schillings.

On .. May, 1966, he lodged with the Court of Appeal in Vienna a request
for the institution of criminal proceedings against the officials
responsible for this and for the previous similar incident in the
prison at Wiener-Neustadt. But apparently his charges were dismissed
as being insignificant (niedergeschlagen wegen Geringfügigkeit). He
also addressed a claim for compensation. He submits that he was
informed that the second letter would be at the expense of the State
but that he would get his money back only in 1999.

He further states that, during his detention in Stein prison, his
health was ruined and in particular that, as the result of the work
which he had to perform, he now suffers from an inguinal hernia.

With regard to these injuries and to those suffered on .. July, 1964,
when he jumped off the train between Vienna and Wiener-Neustadt and
with regard to the two cases in which he was charged for two stamps
instead of one, 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 the 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 three 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.

He further alleges that the food in Stein prison is harmful to him
because he is suffering from various diseases although he is given a
special diet. Upon his complaint in this respect he was told on ..
November, 1964, by the Supervising Prosecution Officer (Hauskommissär)
that he should address himself first of all to the prison authority.
Whether he did so and with what result is not clear.

The Applicant alleges violations of Articles 3, 5, 6, 8, 13, 14 and 15
of the Convention. He attacks the merits of all the decisions mentioned
above and complains in particular of the fact that both in the trial
and on appeal he has had no adequate time to prepare his defence
together with his lawyer.

THE LAW

Whereas, in so far as the Applicant complains of inadequate time and
facilities for the preparation of the defence due to the late
appointment and the several changes of his lawyers and to the
non-receipt of his letter by the lawyer who appeared for him on the
hearing of the appeal, the Applicant has failed to show that either he
or his lawyer raised this point before the Court of Appeal and asked
for an adjournment; whereas further the question might arise whether
such request for adjournment could be considered a remedy which the
Applicant should have exhausted in order to satisfy the terms of
Article 26 (Art. 26) of the Convention;

Whereas, however, the Commission decides to leave open the question
whether or not in these circumstances the Applicant exhausted the
domestic remedies in accordance with Article 26 (Art. 26);

Whereas, according to paragraph (3) (b) of Article 6 (Art. 6-3-b) of
the Convention, everyone charged with a criminal offence has the right
"to have adequate time and facilities for the preparation of his
defence";

Whereas, furthermore, according to paragraph (3) (c) of the same
Article (Art. 6-3-c), he has the right "to defend himself in person or
through legal assistance of his own choosing", or in certain
circumstances to have free legal assistance; whereas, in order to
determine whether the right to have adequate time and facilities for
the preparation of the defence has been respected, account must be
taken of the general situation of the defence, whether such defence is
carried out by the accused himself or through a lawyer;

Whereas the Applicant had been arrested on .. October, 1963, on several
charges of fraud and had thus himself four months to prepare his
defence before the opening of the proceedings before the trial court
and a further period of four months to prepare his defence on appeal;
whereas it is true that the defending counsel, both at the trial and
at the appeal hearing, was only appointed shortly before the hearing;
whereas, however, the Applicant has failed to show that as a result of
inadequate time to instruct his lawyer on a particular point, he
suffered a prejudice in the proceedings at the trial or on appeal;
whereas it is to be observed in this context that the appeal concerned
only the length of the sentence imposed and that the Applicant's plea
of nullity concerning the conviction had been withdrawn; whereas
therefore a relatively short period was sufficient for the preparation
of the defence by the defending counsel;

Whereas, consequently, 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 6, paragraphs (3) (b) and
(c) (Art. 6-3-b, 6-3-c); whereas it follows that this part of the
Application is 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 as to the incidents
which occurred and the measures which were taken against him during his
detention at Wiener-Neustadt and Stein, 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
accordingto the generally recognised rules of international law; and
whereas the Applicant failed to show that he has finally seized the
Constitutional Court; whereas, therefore, he has not exhausted all
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 that Convention
has not been complied with by the Applicant;

Whereas, in so far as the Applicant's complaints are directed against
his lawyer who represented him in subsequent civil proceedings for
damages, it results from Article 19 (Art. 19) of the Convention that
the sole task of the Commission is to ensure the observance of the
engagements undertaken in the Convention by the High Contracting
Parties, being those Members of the Council of Europe which have signed
the Convention and deposited their instruments of ratification;
whereas, moreover, it appears from Article 25, paragraph (1)
(Art. 25-1), of the Convention that the Commission can properly admit
an application from an individual only if that individual claims to be
the victim of a violation of his rights under the Convention by one of
the Parties which have accepted this competence of the Commission;
whereas it results clearly from these Articles that the Commission has
no competence ratione personae to admit applications directed against
private individuals; whereas it follows that this part of the
Application is incompatible with the Convention within the meaning of
Article 27, paragraph (2) (Art. 27-2) (see Application No. 1599/62,
Yearbook of the European Convention on Human Rights, Volume 6, pages
348, 356);

Whereas, in so far 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 (Art. 6) of the
Convention, 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 this right; whereas it follows that, in
this respect, the Application is manifestly ill-founded within the
meaning of Article 27, paragraph (2) (Art. 27-2), of the Convention;

Now therefore the Commission declares this Application INADMISSIBLE.