The Committee of Ministers, under the terms of Article 54
(art. 54) of the Convention for the Protection of Human Rights
and Fundamental Freedoms (hereinafter referred to as "the
Convention"),
Having regard to the judgment of the European Court of Human
Rights in the Herczegfalvy case delivered on 24 September 1992
and transmitted the same day to the Committee of Ministers;
Recalling that the case originated in an application against
Austria lodged with the European Commission of Human Rights on
27 November 1978 under Article 25 (art. 25) of the Convention by
Mr Istvan Herczegfalvy, a Hungarian national, who complained of
the unlawfulness, length and condition of his detention and of
the medical treatment carried out during it;
Recalling that the case was brought before the Court by the
Commission on 19 April 1991;
Whereas in its judgment of 24 September 1992 the Court
unanimously:
- held that there had not been a violation of Article 5,
paragraphs 1 and 3 (art. 5-1, art. 5-3);
- held that there had been a violation of Article 5,
paragraph 4 (art. 5-4);
- held that there had not been a violation of Article 3
(art. 3);
- held that there had been a violation of Article 8
(art. 8) with respect to the applicant's correspondence, but not
with respect to the medical treatment undergone by him;
- held that there had been a violation of Article 10
(art. 10);
- held that it was not necessary also to examine the case
from the point of view of Article 13 (art. 13);
- held that the respondent state was to pay the
applicant, within three months, 112 000 Austrian schillings and
8 000 Deutschmarks, less 22 971 French francs;
- dismissed the remainder of the claim for just
satisfaction;
Having regard to the Rules adopted by the Committee of
Ministers concerning the application of Article 54 (art. 54) of
the Convention;
Having invited the Government of Austria to inform it of the
measures which had been taken in consequence of the judgment of
24 September 1992, having regard to its obligation under
Article 53 (art. 53) of the Convention to abide by it;
Whereas, during the examination of the case by the Committee
of Ministers, the Government of Austria gave the Committee
information about the measures taken in consequence of the
judgment, which information appears in the appendix to this
resolution;
Having satisfied itself that the Government of Austria has
paid the applicant's curator, within the time-limit set, the sums
provided for in the judgment,
Declares, after having taken note of the information
supplied by the Government of Austria, that it has exercised its
functions under Article 54 (art. 54) of the Convention in this
case.
Appendix to Resolution DH (94) 48
Information provided by the Government of Austria
during the examination of the case of Herczegfalvy
by the Committee of Ministers
The Government of Austria considers that the following
measures are apt to prevent the repetition of the violations
found by the Court in the present case.
The judgment of the Court has been transmitted by the
Government to the domestic courts concerned and the Government
is of the opinion that these will not fail to respect, in the
light of the status of the Convention and of the jurisprudence
of the Convention organs in Austrian law, their obligation to
respect Article 5, paragraph 4 (art. 5-4), of the Convention by
taking a decision within the time-limit set out under Article 25,
paragraph 3, of the Criminal Code.
As to the violations of Articles 8 and 10 (art. 8, art. 10)
of the Convention found by the Court, the following measures are
of relevance:
Article 51, paragraph 1, of the Hospitals Act
(Krankenanstaltengesetz) has been deleted (BGBl 157/1990) and
replaced with more precise provisions.
Article 34 of the Act on the Placement of the Mentally Ill
(Unterbringungsgesetz) provides (BGBl Nr. 155/1990) that as from
1 January 1991 the correspondence between the patient and his
counsel may no longer be hindered and that the patient's right
to correspond with other persons may only be limited to the
extent necessary to protect the patient's health. As from
1 January 1994 these provisions apply also to convicted persons
placed in mental hospitals in accordance with a new Article 167.a
in the Law on the Enforcement of Sentences (Strafvollzugsgesetz
- BGBl Nr. 799/1993).
The new Article 167.a also provides that persons serving
their sentences in mental hospitals may see their contacts with
the outside world restricted only to the extent that such
contacts would create a risk that the person concerned would
commit new crimes.
As of 1 January 1994 Article 58 of the Law on the
Enforcement of Sentences (BGBl Nr. 799/1993) provides that the
detainees should have access to, inter alia, reading material and
to television and radio.
The sums awarded by the Court have been paid to the
applicant's curator within the time-limit set by the Court.
Full & Egal Universal Law Academy