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Cite as: [1969] ECHR 12

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X. v. THE FEDERAL REPUBLIC OF GERMANY - 3566/68 [1969] ECHR 12 (15 December 1969)

THE FACTS

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

The applicant is an Austrian citizen, born in 1923, and at present
detained in the Stein prison.

The applicant was arrested on 7th April, 1966, on suspicion of fraud.
It appears, however, that by then the trial had already been opened
before the Regional Court (Kreisgericht) of Wiener Neustadt on five
occasions, the first time in June 1965, but had been repeatedly
adjourned.
The applicant claimed that during the following hearing which took
place on 15th April, 1966, the Presiding Judge, Landgerichtsrat Dr. A.,
showed a hostile attitude towards him. The applicant then requested
that A. should be replaced by another judge, but his request was
refused by the President of the Regional Court on 10th June, 1966.

The applicant renewed his challenge, however, on the grounds that A.
had, inter alia, threatened to impose the maximum penalty if the
applicant did not make a confession. The applicant also alleged that
A. had tried to influence the lay assessors (Schöffen) in their search
for the truth, made defamatory remarks about the applicant and his
family and committed several other irregularities. The applicant's
challenge was dismissed as unfounded on 8th July, 1966.

The trial finally took place on 30th July, 1966, and the applicant
complained that A gave repeated proof of his hostility against the
applicant and his determination to convict him. He accused A. of
having, together with a senior police officer, forged evidence against
him. In particular, he alleged that a certain jacket and a shooting
club badge belonging to him, were falsely presented as a "uniform" worn
by him on one occasion in order to create the impression of a forester,
although he had never worn them together.

The applicant also complained of the refusal to call a number of
witnesses requested by him, some of whom had given evidence during the
previous hearings. He maintained that several witnesses made false
statements in the witness-box.

The Court convicted the applicant on nine counts of fraud and attempted
fraud and sentenced him to eight years' severe imprisonment (schwerer
Kerker).

The applicant lodged both a plea of nullity (Nichtigkeitsbeschwerde)
and an appeal (Berufung) against his conviction and sentence. He
submitted that his appointed counsel, contrary to his explicit
instructions, failed to raise certain grounds in his plea of nullity
and thus the Supreme Court (Oberster Gerichtshof)  was prevented from
considering these grounds which, in the applicant's opinion, should
have led to a quashing of the conviction.

On 24th January, 1967, the Supreme Court rejected the applicant's plea
of nullity. In particular, the Court found that the lower court had
been justified in not admitting the three witnesses referred to in the
plea of nullity as either they were irrelevant or the statements
recorded at previous hearings showed that the failure to call these
witnesses had not interfered with the applicant's facilities to defend
himself. The Court reduced the term of imprisonment, however, to five
years and six months.

The applicant laid criminal charges against A. and the senior police
officer concerned for having forged evidence and against two witnesses
for perjury. According to the applicant,  these charges were rejected
by the Public Prosecutor and a subsequent application for a judicial
decision under Article 48 of the Austrian Code of Criminal Procedure
(Strafprozessordnung) was to no avail. The applicant claimed that
although he had offered sufficient evidence, these charges were not
proceeded with in order to conceal that he had been wrongly convicted.

In February, 1967, the applicant made an application for retrial
(Wiederaufnahme) which was refused by the Regional Court. His appeal
against this decision was dismissed by the Court of Appeal
(Oberlandesgericht) of Vienna on 26th September, 1967. The applicant
submitted that by refusing his application the Courts violated the
relevant provisions of Austrian law as he had clearly established
grounds that would entitle him to a retrial.

The applicant renewed his request to the Regional Court in October,
1967. According to him, he asked at the same time that his case should
be referred to another court as he considered that the Wiener Neustadt
Court was not impartial.

Furthermore, he requested that none of the judges who had previously
dealt with his case should be allowed to handle his application for
retrial. He maintained that he was assured by the President that this
would not happen. The applicant complained that in spite of this
assurance, the case was subsequently assigned to Dr. C., a judge whom
the applicant had previously challenged. Dr. C.'s own request that the
case should be assigned to somebody else was to not avail. On 28th
June, 1968, the applicant's application for retrial was dismissed.

The applicant appealed to the Court of Appeal on the grounds that his
application had wrongly been refused and that Dr. C. had not been
competent to handle it. His appeal was rejected, however, on 29th
October, 1968.

The applicant complained of the proceedings in connection with his
application and alleges that the officials of the Regional Court
intentionally suppressed all his attempts to obtain justice, knowing
that their decisions would always be upheld by the Court of Appeal.

The applicant stated that already in January 1967, he applied to the
President of the Regional Court for writing paper in order to lodge an
application with the Commission. His repeated requests were, however,
refused by the President on the ground that such application could only
be made if all domestic remedies had been exhausted, including an
application for retrial. The applicant maintained that, as a result,
he had been unable to lodge his application with the Commission at an
earlier date. He had furthermore been unaware of the time-limit laid
down in Article 26 of the Convention and had relied on the information
given by the President.

The applicant alleged violations of Articles 3, 5, paragraph (1), 6,
paragraphs (1), (2) and (3) (a) - (d), and 13 of the Convention, and
claimed compensation.

B. Whereas the proceedings before the Commission may be summarised as
follows:

On 16th July, 1969, the Commission examined the application and noted,
in particular, the applicant's allegation that he was refused writing
paper for the purpose of lodging an application with the Commission on
the ground that such application could only be made if all domestic
remedies had been exhausted, including an application for retrial. The
Commission considered that this situation raised an issue of
interference with the right of petition guaranteed under Article 25,
paragraph (1) in fine, of the Convention and it accordingly decided to
invite the respondent Government to submit its comments in writing on
this point.

The respondent Government submitted its written comments on the issue
concerned on 26th September, 1969, and the applicant was then invited
to make submissions in reply.

This reply was given in a letter of 9th October, 1969, comprising 23
handwritten pages and a number of annexes. However, the larger part of
the applicant's submissions relates to the criminal proceedings and he
repeats, in great detail, his previous allegations that Dr. A., the
judge presiding at his trial, and the police committed numerous
irregularities and that his conviction was entirely based on false
evidence.

C. Whereas the submissions of the parties as regards the issue under
Article 25, paragraph (1) in fine, of the Convention may be summarised
as follows:

I. As to the facts

1. The respondent Government submits that pending trial and appeal the
applicant was in detention on remand in the Regional Court Prison of
Wiener Neustadt between 7th April, 1966 and 27th January, 1967. During
that time, the applicant addressed more than 30 applications, some of
them over ten pages long, to various authorities. Nevertheless, he
complained on 19th August, 1966, that no writing paper was being put
at his disposal to enable him to write applications to judicial
authorities, although by that time he had already written at least 16
applications. On 23rd August, 1966, Dr. A. ruled that the applicant was
to receive on request up to ten sheets of paper at a time, in order to
enable him to make written submissions, to lodge complaints and lay
criminal charges, but on condition that the purpose stated by the
applicant should be noted down on each sheet before handing it over to
him.

According to a statement of the President of the Wiener Neustadt
Regional Court, that court during the period of X's detention at Wiener
Neustadt was headed by Dr. D., who died on 3rd June, 1967. As the
alleged refusal of writing paper by the President of the Court, which
the latter allegedly justified by incorrect assertions as to the
prerequisites for lodging an application to the Commission of Human
Rights, was never embodied in writing - not, in any case, in the
available files - it was impossible in view of Dr. D's death to
directly ascertain whether or not this allegation is true.

However, from the fact that the applicant entered into a voluminous
correspondence with various authorities, it is evident that he was
certainly not refused writing paper to compose an application to the
Commission. Rather, the applicant's querulous personality, which is
apparent from his many applications and complaints, suggests that he
is only using the above allegation as an excuse for the belated
submission of his application. It may be mentioned in this context that
all the applications, complaints against his detention
(Haftbeschwerden), complaints alleging neglect of their duties by
officials (Aufsichtsbeschwerden), criminal charges, and petitions for
retrial filed by the applicant - who since his transfer to the Stein
Prison has continued to write lengthy applications - have been
dismissed even though all the legal remedies were exhausted in each
instance. This shows the untenability of the applicant's assertion that
because of the incorrect legal advice he alleges he was given, he
failed to lodge his application to the Commission within the prescribed
period of time. As neither the fact that his applications and petitions
were dismissed nor the written and oral legal information given him on
these occasions have discouraged the applicant from repeating his
demands again and again, it is not likely that the alleged incorrect
legal advice would have discouraged him from lodging an application
under the Convention within the time-limit prescribed.

2. In his reply, the applicant has supplemented his previous
submissions regarding the facts. He states that he was obliged to lodge
a number of appeals and complaints in order to protect himself against
injustice. Judge A. allegedly tried to prevent him from this by denying
him paper, but on appeal, the applicant obtained permission to receive
up to ten sheets at a time in order to lodge domestic appeals. In
January 1967, he applied for fifteen sheets of paper in order to lodge
a complaint with the Commission. When no decision was taken on this
request, the applicant appealed to the President of the Regional Court,
Dr. D.

According to the applicant, the President then informed him on 26th
January, 1967,  that it lay within A.'s discretion to leave without
consideration his request for paper in order to write to the
Commission. The President also informed him that his request could not
be granted unless all domestic remedies had been exhausted according
to the provisions quoted by the President. This condition would only
be satisfied if the applicant applied for a retrial and, if such
application was refused, he also appealed against the refusal.
Allegedly the President had meanwhile become aware of "manipulations"
by A. and the applicant was made to believe that this would be
sufficient basis for a retrial.

Relying on the legal advice given by the President, the applicant
therefore immediately applied for twenty sheets of paper in order to
lodge an application for retrial which he was granted. However, on the
following day, i.e. on 27th January, 1967, the applicant was
transferred to Stein without having received the sheets concerned. The
applicant alleges that he later realised that he had intentionally been
misled by the President in order to forfeit the possibility to appeal
to the Commission, one of the many swindles whereby justice was denied
and the true facts were distorted.

Accordingly, the applicant lodged an application for retrial on 16th
February, 1967, and requested that it should not be dealt with by A.
against whom he had, in the meanwhile, laid criminal charges.

His application was nevertheless rejected by A. on 13th April, 1967,
in violation of the relevant provisions of the Code of Criminal
Procedure. In the decision, the applicant was falsely accused of
defamation by A. who, also knowing it to be untrue, stated that the
conditions for a retrial were not satisfied.

The applicant's appeal was rejected on false grounds by the Court of
Appeal in Vienna on 26th September, 1967, again showing the intention
of the Republic of Austria to conceal the truth and the crimes
committed against the applicant and to cover its own criminal
activities.

In the circumstances, the applicant must therefore be considered to
have complied with the six months' rule.

The applicant alleges repeatedly that the observations made by the
Austrian Government are obviously intended to deceive the Commission
and to cover up the irregularities committed against him.

II. Arguments as to the legal issue concerned

1. The respondent Government has made the following submissions in this
respect.

(a)  According to the information available to the Government, it was
in his letter of 1st April, 1968 - received by the Commission on 16th
April, 1968 -  that the applicant for the first time made the
allegation that he had been refused writing paper for an application
to the Commission.

Taking this date as a starting point, the question must be considered
whether or not the complaint to the effect that Article 25, paragraph
1, in fine, of the Convention was violated to the detriment of the
applicant satisfies the conditions of Article 26 of the Convention.
Under this clause of the Convention, an applicant can only lodge an
application after all domestic remedies have been exhausted, and within
a period of six months. According to the constant practice of the
Commission, it is immaterial in this context whether or not these
stipulations were known to the applicant (see Fawcett, The Application
of the European Convention on Human Rights, p. 303).

The refusal of writing paper for an application to the Commission
alleged by the applicant occurred, according to the information
available, early in 1967. No legal remedy was used against this alleged
refusal. Therefore, the application does not satisfy the conditions
laid down in Article 26 of the Convention,  both because the domestic
remedies were not exhausted and because the time-limit of six months
was exceeded, and it should therefore be rejected under Article 27,
paragraph (3), of the Convention.

(b)  Apart from the fact that the application does not meet the
conditions laid down in Article 26 of the Convention, it is also
inadmissible ratione materiae under Article 27, paragraph 2, of the
Convention.

The subject of the application  is an alleged violation of Article 25,
paragraph 1, in fine, of the Convention. Under this provision, the
Contracting Parties undertake not to hinder in any way the effective
exercise of the right to lodge individual petitions. This undertaking
by the Contracting Parties is to be found in Section III of the
Convention, which contains all provisions concerning the European
Commission of Human Rights. The rights and freedoms which individuals
have under the Convention, on the other hand, are contained in Section
I of the Convention, as its Article 1 states explicitly.

Given the general principles underlying the Convention, and the clear
wording of Article 1, it is impossible to derive from Article 25,
paragraph 1, last sentence, any individual right that might be the
subject of an individual petition under Article 25. In this context,
it is appropriate to emphasise the fact that under Article 25 of the
Convention, an individual petition may only be lodged on the ground of
"a violation .... of the rights set forth in this Convention", whereas
under Article 24, a State may complain against "any alleged breach of
the provisions of the Convention".

Besides, another reason why this provision in Article 25 of the
Convention has to be interpreted restrictively is that the
establishment of the European Commission of Human Rights as a
supranational body designed to look into the activities of the national
authorities represents an almost revolutionary act in international
law.

In this connection, the Government refers to statements by several
writers in order to support its view that the obligation arising from
Article 25, paragraph (1), in fine, cannot be equated to that of the
rights laid down in Section I of the Convention.

(c)  In any event, it must be emphasised that Article 25, paragraph
(1), in fine, cannot constitute a fundamental human right, but rather,
at best, a right comparable to Article 13 of the Convention. With
regard to Article 13 of the Convention the Commission has taken the
view that a violation of this provision of the Convention presupposes
a violation of the fundamental rights safeguarded in Articles 2 to 12
of the Convention (see e.g. the Commission's decisions No. 472/59
Volume III, p. 206 and No. 1092/69, Yearbook, Vol. V, p. 210).

In an argumentum a majori ad minus, it must be concluded from these
decisions of the Commission that a violation of Article 5, paragraph
(1), in fine, too, may not be regarded as having occurred unless it is
connected with an actual violation of Articles 2 to 12 of the
Convention. This is so because, logically, it would certainly not be
defensible to accord more significance to Article 25, paragraph 1, in
fine, which is not included in Section I of the Convention, than to
Article 13, and hence, under Article 1 of the Convention, contains one
of the rights and freedoms safeguarded by the Convention.

(d)  In view of the fact that the Commission in a decision of 6th July,
1959, No. 369/58 (Yearbook, Vol. II, p. 377) found that the undertaking
contained had not been broken because the applicant in fact approached
the Commission, and was able to present his complaint fully and in
detail, it would, in any event, be worthwhile to examine the question
whether it may not be true also for the present case in spite of the
alleged refusal of writing paper the applicant did have the opportunity
to approach the Commission.

In conclusion, the respondent Government asks the Commission:

to declare the present application inadmissible by virtue of Article
27, paragraph 2, of the Convention, for being incompatible with the
provisions of the Convention; in eventu

to reject the application by virtue of Article 27, paragraph 3, as
being inadmissible under Article 26 of the Convention; in eventu

to declare the application inadmissible by virtue of Article 27,
paragraph (2), of the Convention, for being manifestly ill-founded.

2. The applicant has not, in his reply, entered into a discussion of
the points raised by the Government with the exception that he argues
that he cannot be held responsible for his failure to exhaust any
remedies in respect of the refusal to provide him with writing paper.
The reason for this failure was that the refusal was "cunningly based
on intentionally false legal advice". In any event, no remedy was
available to him in this respect, and all his previous complaints had
been dealt with in a way typical of the Republic of Austria, i.e.
rejected on the false ground that he was a querulant.

THE LAW

Whereas the Commission has first considered the issue under Article 25,
paragraph (1) (Art. 25-1), in fine, of the Convention on which the
parties have been invited to submit their comments in writing;
whereas, in accordance with the said provision of Article 25 (Art. 25),
those Contracting Parties, such as Austria, which have recognised the
right of individual petition to the Commission under Article 25
(Art. 25) "undertake not to hinder in any way the effective exercise
of this right"; whereas the Commission has both the competence and,
indeed, the duty to examine, either ex officio or at the request of the
applicant concerned, a situation which gives rise to a question of
undue interference with the effective exercise of the right of
petition;

Whereas it is, however, to be observed that this issue raises a
question exclusively under Article 25, paragraph (1) (Art. 25-1), in
fine, of the Convention and does not concern one of the rights and
freedoms guaranteed under Section I of the Convention; whereas the
Commission has previously held that it is not called upon to decide
whether an application, insofar as it raises such a complaint, is
admissible or not;

Whereas the general rules of admissibility and, in particular, the
provisions concerning the exhaustion of domestic remedies and the six
months' time-limit as set out in Article 26 (Art. 26), are not
therefore applicable (see e.g. the decision of 16th February, 1965, on
Application No. 1765/63, G. v. Austria);

Whereas, the applicant has complained that he was originally refused
writing paper for the purpose of lodging an application with the
Commission on the ground that, before he could have recourse to the
Commission, he must first exhaust all domestic remedies available to
him, including an application for retrial;

Whereas the Commission has considered the substance of the applicant's
allegations in this respect; whereas, however, even assuming that these
allegations were true, it is to be observed that the applicant has, in
fact, made substantial submissions and presented his case in a
completely adequate manner; whereas in these circumstances the
Commission has come to the conclusion that the applicant has not been
hindered in the effective exercise of the right to lodge an application
as guaranteed in Article 25, paragraph (1) (Art. 25-1), in fine, of the
Convention;

Whereas, with regard to the applicant's complaint concerning his
conviction and sentence, it is to be observed that Article 26 (Art. 26)
of the Convention provides that the Commission may only deal with a
matter "within a period of six months from the date on which the final
decision was taken"; whereas the Commission has already held in a
number of previous cases that the "final decision" within the meaning
of Article 26 (Art. 26) refers solely to the final decision involved
in the exhaustion of all domestic remedies according to the generally
recognised rules of international law (see e.g. Application No. 918/60,
N. v. Federal Republic of Germany - Collection of Decisions, Vol. 7,
p. 108);

Whereas, in the circumstances of the present case, the applicant's
petitions for a retrial of his case were not an effective and
sufficient remedy and does not, therefore, constitute a domestic remedy
under the generally recognised rules of international law; whereas it
follows that the decisions regarding these petitions cannot be taken
into consideration in determining the final decision for the purpose
of applying the six months' time-limit laid down in Article 26
(Art. 26); whereas, therefore, the final decision regarding the
applicant's conviction and sentence is the decision of the Supreme
Court which was given on 24th January, 1967;

Whereas the present application was not submitted to the Commission
until 12th November, 1967, that is, more than six months after the date
of this decision;

Whereas, however, the applicant contends that he was prevented from
introducing his application within the said time-limit as a result of
the refusal to provide him with writing paper and also because he
relied on a statement by the President of the Regional Court to the
effect that he was obliged to make an application for retrial before
he could seize the Commission; whereas, again on the assumption that
the applicant's allegations are true, this gives rise to a question as
to whether, in the special circumstances of the present case, the
running of the six months' period should be regarded as having been
interrupted or suspended;

Whereas the Commission does not find it necessary to rule on this
question as, in any event, 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 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 rights and freedoms
limitatively listed in the Convention; whereas, in this respect, the
Commission refers to its decisions Nos. 458/59 (X. v. Belgium -
Yearbook, Vol. III, p. 233) and 1140/61 (X. v. Austria - Collection of
Decisions, Vol. 8, p. 57); and whereas there is not appearance of a
violation in the proceedings complained of; 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 relating to his claim
for a retrial and the court proceedings concerned, it is to be observed
that the Convention, under the terms of Article 1 (Art. 1), guarantees
only the rights and freedoms set forth in Section I of the Convention;
and whereas, under Article 25, paragraph (1) (Art. 25-1), only the
alleged violation of one of those rights and freedoms by a Contracting
Party can be the subject of an application presented by a person,
non-governmental organisation or group of individuals; whereas
otherwise its examination is outside the competence of the Commission
ratione materiae;

Whereas the right to a retrial is not, as such, included among the
rights and freedoms guaranteed by the Convention; and whereas, in
accordance with the Commission's constant jurisprudence, proceedings
concerning applications for retrial fall outside the scope of Article
6 (Art. 6) of the Convention (see Applications Nos. 864/60, X. v.
Austria - Collection of Decisions, Vol. 9, p. 17 and 1237/61, X. v.
Austria - Yearbook, Vol. V, p. 96); whereas it follows that this part
of the application is incompatible with the provisions of the
Convention within the meaning of Article 27, paragraph (2) (Art. 27-2),
of the Convention;

Now therefore the Commission

1. DECLARES THIS APPLICATION INADMISSIBLE

2. DECIDES TO TAKE NO FURTHER ACTION IN RESPECT OF THE ALLEGED
INTERFERENCE WITH THE EFFECTIVE EXERCISE OF THE RIGHT OF INDIVIDUAL
PETITION