# أحكام المحاكم الأجنبية Decisions of Foreign Courts > أحكام المحكمة الأوروبية لحقوق الإنسان > Decisions of The European Court of Human Rights >  X. v. AUSTRIA - 2370/64 [1967] ECHR 14 (11 February 1967)

## هيثم الفقى

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X. v. AUSTRIA - 2370/64 [1967] ECHR 14 (11 February 1967) 
THE FACTSWhereas the facts as presented by the Applicant in his numerous andpartly illegible letters and as appearing from the documents submittedby 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 offraud. The trial was ordered to be held on .. February, 1964, beforethe Regional Court (Kreisgericht) of Wiener-Neustadt.By a letter dated .. January, 1964, the Court informed the Applicantthat 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 thata different lawyer, Dr. A, would act as his counsel. He states that hehad no time to get in touch with this lawyer except a minute before theopening of the trial on .. February, 1964, and that the lawyer simplyrelied on what he was about to hear in the course of the trial.On the same day the Applicant was convicted and sentenced to fiveyears' severe imprisonment (schwerer Kerker) with one day sleeping hardevery 3 months.He lodged an appeal (Berufung) and a plea of nullity(Nichtigkeitsbeschwerde) but the latter was subsequently withdrawn byhis trial lawyer, Dr. A, allegedly without the Applicant's consent andknowledge. By a summons dated .. June, 1964, and handed to him on ..June, 1964, the Applicant was informed that his appeal would be heardby the Court of Appeal (Oberlandesgericht) of Vienna on .. July, 1964.By a further letter also dated .. June, 1964, and handed to theApplicant on .. June, 1964 (Friday) he was informed that he would bedefended before the Court of Appeal by Dr. K. He states that he wroteimmediately to this lawyer demanding that the letter be sent byregistered mail but when the Applicant appeared before the Court on ..July, 1964, his lawyer, Dr. H, who was acting for Dr. K, had not yetreceived the letter. The appeal was rejected on that same day.The Applicant petitioned for a plea of nullity for the safeguard of thelaw (Nichtigkeitsbeschwerde zur Wahrung des Gesetzes) but the PublicProsecutor 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 fromAustrian territory by an order of .. October, 1964, which according toits terms took immediate effect. Basing himself on this order theApplicant asked for his immediate expulsion from Austria which wouldinvolve his release from prison but, by a letter of .. February, 1965,the City Council of Krems told him that the order could not be executedas long as he was serving his sentence.After the hearing of his appeal in Vienna on .. July, 1964, theApplicant jumped off the train on his way back to the prison atWiener-Neustadt allegedly with the intention of committing suicideafter his conviction. A disciplinary punishment (Hausstrafe) of 10 dayssolitary confinement ("Keller") and of 4 days fasting and sleeping hardwas imposed by the prison authority of Wiener-Neustadt which found thathe had tried to escape. The punishment was executed at Stein where theApplicant had been taken in the meanwhile. On .. December, 1964, theApplicant complained of this fact in a letter to the Minister ofJustice, but apparently without success. He also required compensationfor 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 andhe was told by a letter of .. November, 1964, that no proof of it***pedition existed but that the letter, written according to the prisonauthority on .. or .. June, had been forwarded to the investigatingjudge on .. June, 1964, and posted subsequently by simple mail.As to the Applicant's question what had become of the two stamps of 3Austrian schillings which he had added for the expedition by registeredmail he was told that one stamp of 3 schillings (postage for abroad)had been used. When the Applicant insisted further, comparing thesefacts to his own offence of fraud, another disciplinary punishment of7 days without breakfast was imposed by the prison authority ofWiener-Neustadt.He appealed against this decision to the Prosecution Officer of Kremssupervising the prison of Stein (Staatsanwaltschaft, Hauskommiss&Atilde;¤r) whorejected his appeal on .. November, 1964, on the ground that he couldnot examine the decisions taken at Wiener-Neustadt.In his letter of .. December, 1964, to the Minister of Justice, theApplicant also complained of these facts, however, without success.The Applicant complains of a second indecent, this time in the Steinprison, in which he allegedly was charged 5.50 Austrian Schillings toomuch for postage stamps. He had obtained permission to send a letterand a pawn ticket (Pfandschein) but contrary to his intentions theywere posted by separate letters and he had to pay two times the postageof 5.50 Austrian Schillings.On .. May, 1966, he lodged with the Court of Appeal in Vienna a requestfor the institution of criminal proceedings against the officialsresponsible for this and for the previous similar incident in theprison at Wiener-Neustadt. But apparently his charges were dismissedas being insignificant (niedergeschlagen wegen Geringf&Atilde;¼gigkeit). Healso addressed a claim for compensation. He submits that he wasinformed that the second letter would be at the expense of the Statebut that he would get his money back only in 1999.He further states that, during his detention in Stein prison, hishealth was ruined and in particular that, as the result of the workwhich 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 andwith regard to the two cases in which he was charged for two stampsinstead of one, he filed in 1965 with the Regional Court (Landesgerichtf&Atilde;¼r 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 theseproceedings. This lawyer informed him, on .. March, 1966, that he hadpresented the claim first to the Office of the Attorney of the Treasuryand 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 withthe Attorney of the Treasury, but without success. Instead he wasinformed on .. May, 1966, that the lawyer had asked the Court'spermission to resign from this case (Enthebung beantragt). On .. June,1966, the lawyer himself wrote to the Applicant that he could not actfor him because the claims were exaggerated. On .. June, 1966, theApplicant was heard by the Court but no decision was taken. Subsequentletters to the Court remained without reply.The Applicant states, without giving further details, that he has nowbrought an action on the ground of tardiness and a claim for damages(S&Atilde;¤umnisklage verbunden mit einem Schadensersatzanspruch) against thelawyer.He further alleges that the food in Stein prison is harmful to himbecause he is suffering from various diseases although he is given aspecial diet. Upon his complaint in this respect he was told on ..November, 1964, by the Supervising Prosecution Officer (Hauskommiss&Atilde;¤r)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 15of the Convention. He attacks the merits of all the decisions mentionedabove and complains in particular of the fact that both in the trialand on appeal he has had no adequate time to prepare his defencetogether with his lawyer.THE LAWWhereas, in so far as the Applicant complains of inadequate time andfacilities for the preparation of the defence due to the lateappointment and the several changes of his lawyers and to thenon-receipt of his letter by the lawyer who appeared for him on thehearing of the appeal, the Applicant has failed to show that either heor his lawyer raised this point before the Court of Appeal and askedfor an adjournment; whereas further the question might arise whethersuch request for adjournment could be considered a remedy which theApplicant should have exhausted in order to satisfy the terms ofArticle 26 (Art. 26) of the Convention;Whereas, however, the Commission decides to leave open the questionwhether or not in these circumstances the Applicant exhausted thedomestic remedies in accordance with Article 26 (Art. 26);Whereas, according to paragraph (3) (b) of Article 6 (Art. 6-3-b) ofthe Convention, everyone charged with a criminal offence has the right"to have adequate time and facilities for the preparation of hisdefence";Whereas, furthermore, according to paragraph (3) (c) of the sameArticle (Art. 6-3-c), he has the right "to defend himself in person orthrough legal assistance of his own choosing", or in certaincircumstances to have free legal assistance; whereas, in order todetermine whether the right to have adequate time and facilities forthe preparation of the defence has been respected, account must betaken of the general situation of the defence, whether such defence iscarried out by the accused himself or through a lawyer;Whereas the Applicant had been arrested on .. October, 1963, on severalcharges of fraud and had thus himself four months to prepare hisdefence before the opening of the proceedings before the trial courtand a further period of four months to prepare his defence on appeal;whereas it is true that the defending counsel, both at the trial andat the appeal hearing, was only appointed shortly before the hearing;whereas, however, the Applicant has failed to show that as a result ofinadequate time to instruct his lawyer on a particular point, hesuffered a prejudice in the proceedings at the trial or on appeal;whereas it is to be observed in this context that the appeal concernedonly the length of the sentence imposed and that the Applicant's pleaof nullity concerning the conviction had been withdrawn; whereastherefore a relatively short period was sufficient for the preparationof the defence by the defending counsel;Whereas, consequently, an examination of the case as it has beensubmitted, including an examination made ex officio, does not discloseany appearance of a violation of the rights and freedoms set forth inthe 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 theApplication 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 incidentswhich occurred and the measures which were taken against him during hisdetention at Wiener-Neustadt and Stein, it is to be observed that,under Article 26 (Art. 26) of the Convention, the Commission may onlydeal with a matter after all domestic remedies have been exhaustedaccordingto the generally recognised rules of international law; andwhereas the Applicant failed to show that he has finally seized theConstitutional Court; whereas, therefore, he has not exhausted allremedies available to him under Austrian law; whereas, moreover, anexamination of the case as it has been submitted, including anexamination made ex officio, does not disclose the existence of anyspecial circumstances which might have absolved the Applicant,according to the generally recognised rules of international law, fromexhausting the domestic remedies at his disposal; whereas, therefore,the condition as to the exhaustion of domestic remedies laid down inArticles 26 and 27, paragraph (3) (Art. 26, 27-3) of that Conventionhas not been complied with by the Applicant;Whereas, in so far as the Applicant's complaints are directed againsthis lawyer who represented him in subsequent civil proceedings fordamages, it results from Article 19 (Art. 19) of the Convention thatthe sole task of the Commission is to ensure the observance of theengagements undertaken in the Convention by the High ContractingParties, being those Members of the Council of Europe which have signedthe 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 admitan application from an individual only if that individual claims to bethe victim of a violation of his rights under the Convention by one ofthe Parties which have accepted this competence of the Commission;whereas it results clearly from these Articles that the Commission hasno competence ratione personae to admit applications directed againstprivate individuals; whereas it follows that this part of theApplication is incompatible with the Convention within the meaning ofArticle 27, paragraph (2) (Art. 27-2) (see Application No. 1599/62,Yearbook of the European Convention on Human Rights, Volume 6, pages348, 356);Whereas, in so far as the above complaint gives rise to the questionwhether the Regional Court failed to ensure that the Applicant'sdefence was properly carried out with the consequence that he was notgiven a fair hearing within the meaning of Article 6 (Art. 6) of theConvention, an examination of the case as it has been submitted,including an examination made ex officio, does not disclose anyappearance of a violation of this right; whereas it follows that, inthis respect, the Application is manifestly ill-founded within themeaning of Article 27, paragraph (2) (Art. 27-2), of the Convention;Now therefore the Commission declares this Application INADMISSIBLE.[/align]

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