AS TO THE ADMISSIBILITY OF
Application No. 10533/83
by Istvan HERCZEGFALVY
against Austria
The European Commission of Human Rights sitting in private on
10 March 1988, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
G. BATLINER
J. CAMPINOS
H. VANDENBERGHE
Mrs. G.H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 27 November 1978
by Istvan HERCZEGFALVY against Austria and registered on 22 August 1983
under file No. 10533/83;
Having regard to the report provided for in Rule 40 of the
Rules of Procedure of the Commission;
Having deliberated on 29 February and 10 March 1988;
Decides as follows:
THE FACTS
I. The applicant is a Hungarian refugee born in 1944 who came
to Austria in 1964. He soon married an Austrian woman and established
himself as a self-employed businessman. In particular, he ran a TV
repair-shop in Vienna.
Criminal proceedings were instituted against the applicant in
connection with acts of physical aggression against his wife (who had
left him in December 1971) and certain of his clients. On 9 November
1972, the Regional Criminal Court (Landesgericht für Strafsachen) of
Vienna convicted him for several acts of extortion, deprivation of
liberty, dangerous threats, inflicting bodily injuries on his spouse
and ill-treating her. In addition, the Court found him guilty of
calumny and raising false suspicions. It pronounced a prison sentence
of two years. This judgment was in substance confirmed by the Supreme
Court (Oberster Gerichtshof) on 28 June 1973. The applicant served his
sentence until 13 May 1974. As he considered that he had been wrongly
convicted, he filed an application with the Commission (No. 6398/73)
which, however, was declared inadmissible on 12 December 1974.
In the meantime, further criminal proceedings had been
instituted against the applicant, essentially for offences connected
with his business practices. On 2 February 1973, the Regional Criminal
Court of Vienna found him guilty of numerous acts of aggravated fraud,
extortion, attempted theft, thwarting an enforcement procedure,
resistance against officials, and defamation. It imposed a prison
sentence of five and a half years which, however, was subsequently
reduced to three years by a decision of the Supreme Court of 12
December 1973. The applicant served this sentence immediately after
the first one, until 13 May 1977.
During his detention in various prisons the applicant turned
out to be a difficult prisoner, mainly because of the numerous
petitions and complaints which he addressed to various authorities
concerning his allegedly wrongful convictions and his treatment in
prison. Because of his querulous behaviour, civil proceedings were
eventually taken against him in 1975 by the prosecution authorities
with a view to establishing a partial lack of legal capacity to act
(beschränkte Entmündigung). After having heard psychiatric expert
evidence in this respect, the District Court of Vienna City
(Bezirksgericht Wien - Innere Stadt) by a decision of 23 December 1975
declared him to lack legal capacity, and appointed a guardian
(Beistand) for him. This decision became final on 3 November 1977 when
it was confirmed by the Vienna Regional Court of Civil Affairs
(Landesgericht für Zivilrechtssachen).
After completion of the above two sentences on 13 May 1977, the
applicant was not released, but remanded in custudy in connection with
charges of having committed further criminal offences while in
detention (assaults on prison wardens and fellow prisoners, uttering
dangerous threats in letters addressed to the presiding judge of the
first trial). The warrant of arrest of 12 May 1977 was based on the
grounds that the applicant might abscond and carry out his threat to
commit further offences (Section 180 paras. 1(1) and (3) of the Code
of Criminal Procedure (Strafprozessordnung)).
As the applicant's vexatious behaviour deteriorated during his
detention on remand and as he showed signs of increased aggressive-
ness, the President of the trial court in the new case decided on 9
January 1978 that the applicant should be provisionally detained
(vorläufige Unterbringung) in an institution for mentally deranged
offenders (Anstalt für geistig abnorme Rechtsbrecher) under Section 438
of the Code of Criminal Procedure. This decision was based on the
advice of several experts. It was confirmed by the Review Chamber
(Ratskammer) of the Regional Court of Vienna on 6 March 1978, and by
the Vienna Court of Appeal (Oberlandesgericht) on 19 April 1978.
A trial in the case had in the meantime been held on 4 April
1978 after the initial date set for this trial (2 November 1977) had
been cancelled due to the necessity of taking further evidence. The
trial was interrupted due to the behaviour of the applicant. The
applicant was then examined by a psychiatric expert who expressed the
view that the applicant suffered from paranoia querulans which could
be considered as being equivalent to a mental illness and that he was
therefore irresponsible for his acts. In view of this expert opinion,
the prosecution abandoned the original indictment aiming at the
applicant's conviction and replaced it by a new one aiming at his
detention in an institution for mentally deranged offenders according
to Section 21 para. 1 of the Penal Code (Strafgesetzbuch).
A new trial was held before the Vienna Regional Criminal Court
on 9 and 10 January 1979. The applicant was initially present, but was
excluded in the course of the trial under Section 430 para. 5 of the
Code of Criminal Procedure. The Court found the facts of three of the
charges established (threats against a prison director and a judge,
resistence against officials, and bodily injury of a prison warden).
It ordered the applicant's detention in an institution for mentally
deranged offenders under Section 21 para. 1 of the Penal Code, on the
ground that he was a dangerous person who was not responsible for his
acts under criminal law.
As regards the question of criminal responsibility, the Court
took into account the expert opinions of three psychiatrists who all
considered that, although there were no signs of a mental illness in
the strict sense, the applicant nevertheless suffered from paranoia
querulans with strong tendencies to aggression. In this state of mind
he had already committed the earlier criminal offences which had led
to his criminal convictions in 1972 and 1973, but the symptoms had
aggravated during the period of his subsequent detention. At least
since 1975, the querulous behaviour had reached the level of a serious
mental instability equivalent to a mental illness, preventing the
applicant from realising the unlawfulness of his behaviour and from
acting lawfully.
In its finding that the applicant was a dangerous person, the
Court again followed the opinion of the above three experts, confirmed
by its own impression, that the applicant was totally incapable of
realising his guilt and was ridden by the obsession that he must fight
against his "persecutors" not only by a flood of petitions and
complaints but also by threats and physical acts of aggression.
The applicant's plea of nullity (Nichtigkeitsbeschwerde)
against this decision was in part successful. By a decision of 3
October 1979, the Supreme Court confirmed the findings concerning the
first charge (dangerous threats) but quashed those relating to the
second and third charges on the ground that the trial court had failed
to hear certain witnesses. The numerous other complaints alleging
grounds of nullity which the applicant had submitted were all rejected.
The order to detain the applicant in an institution for mentally
deranged offenders was nevertheless quashed, and the matter referred
back to the Regional Court for a new trial.
This trial took place on 20 March and 9 April 1980. It covered
the two charges in relation to which the Supreme Court had quashed the
earlier judgment, and a new charge of dangerous threats against the
same judge as before. After the taking of voluminous evidence , the
facts of all three offences were found to be established. The Court
again ordered the applicant's detention in an institution for mentally
deranged offenders under Section 21 para. 1 of the Penal Code, on the
grounds stated in its earlier judgment of 10 January 1979. It also
relied on new expert evidence showing that the situation had not
essentially changed despite some improvement which had been brought
about by the applicant's psychiatric treatment. In this connection,
reference was made in particular to a new offence committed since the
last judgment. The taking of further expert evidence was not considered
as necessary as the existing expert opinions did not contradict each
other and were conclusive.
The applicant withdrew his plea of nullity against this
judgment which therefore has become final.
However, he repeatedly challenged his continued detention in
the institution for mentally deranged offenders.
After the Supreme Court's judgment of 3 October 1979 had been
served on the applicant, he requested his release, but this request was
rejected by the Review Chamber on 28 January 1980.
The detention ordered by the Regional Court's judgment of
9 April 1980 was maintained by a decision of the same Court of
8 February 1982 on the ground that the applicant continued to be a
dangerous person as confirmed by a report of the psychiatric hospital.
In July, September and October 1983, the applicant again
requested his release, observing that no decision ordering his
continued detention had been taken within the statutory time limit
(Section 25 para. 3 of the Penal Code), which had expired on 8 February
1983. The Court of Appeal on 14 February 1984 referred the matter to
the Regional Court. Two days later, on 16 February 1984, the Regional
Court ordered the applicant's continued detention. It found that,
according to the report of the psychiatric hospital, the applicant's
state of mental health had not essentially changed. He still continued
to write vexatious complaints without the consent of his guardian whose
appointment he did not accept, and if released he would presumably
raise numerous claims. At the same time, it could not be predicted
whether he would make true any of the threats previously uttered in
particular against the prison staff. His paranoia querulans could not
be stopped even with modern medical treatment. The treatment which he
actually received had a sedative effect which might end with his
release as he was opposed to this treatment, considering himself to be
sane. As he would certainly refuse to undergo any treatment after his
release which, however, was absolutely necessary, the danger which was
at the basis of his detention continued to exist.
The applicant's appeal (Beschwerde) against this decision was
rejected by the Vienna Court of Appeal on 4 April 1984. It considered
that the Regional Court had arrived at the correct conclusions on the
basis of the very detailed expert opinion of the director of the
psychiatric hospital and a supplementary report by another
psychiatrist.
The applicant was eventually released by a decision of the
Regional Court of 14 November 1984. On the basis of the expert opinion
obtained it noted that there had been no essential improvement of the
applicant's state of health. His paranoia querulans continued to
exist, it had even developed by acquiring a political component after
the applicant's treatment with injections had been discontinued, and
he had still recently uttered serious threats. However, the querulous
behaviour was primarily concerned with the detention (Haftquerulanz)
and the vexatious litigation (Rechts- querulanz) was only a secondary
phenomenon. The latter would probably continue to exist even after a
release, but vexatious complaints, petitions etc. did not constitute
a danger within the meaning of Section 21 of the Penal Code. The
querulous behaviour concerning the detention on the other hand would
cease in the case of a conditional release. A genuine aggressiveness
had been observed only on rare occasions since the commission of the
offences which had led to the applicant's detention. It was to be
assumed that the applicant would seek to redress the wrong allegedly
or even really done to him first of all by querulous complaints. While
it could not be excluded that he would become aggressive in the case
of frustration, there was from the psychiatric point of view no acute
danger that he would commit criminal offences with grave consequences
because of his abnormal personality. A conditional release was
therefore now possible. A further psychiatric treatment or treatment
by drugs was no longer considered necessary by the expert, although it
was recommended.
II. By the date of his release on 14 November 1984, the applicant
had been detained without interruption under various legal titles since
15 May 1972, i.e. for 121/2 years.
In particular, the applicant was detained in the following
institutions:
- until 30 January 1974 in the prison of the Regional Criminal
Court of Vienna;
- until 3 February 1975 in the prison of Stein;
- until 24 August 1975 in the special prison for mentally
deranged offenders, Mittersteig;
- until 30 October 1975 in the psychiatric hospital of Vienna
(observation in connection with civil incapacitation
proceedings);
- until 7 January 1977 again in the special prison,
Mittersteig;
- until 12 May 1977 in the prison of Graz;
- until 27 November 1980 in the prison of the Regional
Criminal Court of Vienna (detention on remand, since
January 1978 provisional detention as a mentally
deranged offender, interrupted by lengthy periods in
the psychiatric hospital of Vienna and the psychiatric
university clinic of Vienna);
- until his release on 14 November 1984 in a closed
department of the psychiatric hospital of Vienna
attached to the special prison of Mittersteig.
Throughout his detention, the applicant was considered a
particularly difficult prisoner and was therefore subjected to very
close supervision. The measures applied may be summarised as follows:
Medical treatment
Apart from his mental instability, which was the subject matter
of many psychiatric reports, the applicant also suffered from other
health problems. In the prison of Stein he suffered from lumbago which
was allegedly due to the conditions of detention. The applicant was
transferred to the prison hospital for lengthy periods. He
subsequently complained to various authorities that he had not received
adequate medical treatment. He further claimed that he was unfit for
detention, but his requests to be released for this reason were
rejected by the competent courts. Apparently because of these
decisions the applicant went on hunger-strike from October until
December 1974. During the hunger-strike he was detained in isolation
and examined by a medical officer about once a week. Eventually it
became necessary to provide for more intensive care in the Krems civil
hospital.
During his subsequent detention as a convicted prisoner in the
prisons of Mittersteig and Graz the applicant again complained of
inadequate medical treatment.
In Mittersteig the diagnosis of lumbago was originally
confirmed and an ulcer was found in March 1975. However, in August
1975 the prison doctor found no signs of any disease and this was
confirmed by a university clinic. It was recorded that the applicant's
health troubles seemed to be simulated. It appears that the applicant
was nevertheless given medicaments for stomach troubles, but no other
treatment.
A prison doctor in Graz subsequently confirmed stomach and
spinal troubles which, however, did not make the applicant unfit for
detention.
During the subsequent detention periods it was mainly the
applicant's mental troubles which led to medical or, more particularly,
psychiatric treatment. Already in November 1976 the applicant's
guardian had suggested that the applicant should be subjected to
compulsory psychiatric treatment in order to prevent vexatious
complaints. A psychiatric report of the special prison of Mittersteig
of December 1976 stated that the applicant suffered from a paranoid
complex with temporary fits of excitement.
In December 1977 the applicant staged a second hunger-strike
in the prison of the Regional Court of Vienna. A psychiatric
consultant of the prison thereupon recommended his provisional
detention in a psychiatric hospital as he considered the applicant
dangerous to the public and possibly also to himself. The applicant
was transferred for a week to the psychiatric hospital of Vienna and
subsequently complained that he had been treated with sedatives against
his will.
After a relatively calm period, the applicant showed increased
aggressiveness in June 1979. On 20 June 1979 the Vienna Regional Court
ordered four weeks' detention in a security cot (Gitterbett) which was
carried out in the psychiatric hospital of Vienna from 18 June to 23
July 1979. Upon his return to the Regional Court's prison, the
applicant began a third hunger-strike to protest against his continued
detention and deprivation of his files. He had a complete breakdown
on 28 August 1979.
On 29 August 1979 the Vienna Court of Appeal ordered the
Regional Court's Review Chamber to deal with a complaint of the
applicant against his detention in a security cot. On 5 September 1979
the Review Chamber decided to replace that measure by provisional
detention in the psychiatric hospital of Vienna (Section 429 para. 4
of the Code of Criminal Procedure) subject to intensive medical, socio-
and psychotherapeutical treatment. The Court of Appeal confirmed this
decision on 12 October 1979 in view of psychiatric reports confirming
that the applicant presented an acute danger to the public and to
himself, justifying his compulsory psychiatric detention under Section
50 of the Hospital Act (Krankenanstaltengesetz).
The applicant subsequently requested the institution of
criminal proceedings against doctors and nurses because of his having
been kept with fetters in the security cot and having been compulsorily
treated with sedatives ("Niederspritzen"), alleging that these measures
amounted to an attempt of murder. However, in view of the guardian's
consent to the compulsory treatment (14 December 1979) no charges seem
to have been laid by the prosecution.
After these events the applicant remained most of the time in
the psychiatric clinic of Vienna where he continued to be treated with
sedatives until August 1984 on a regular basis (depot injections every
28 days). It further appears that from 1979 until the summer of 1982
the applicant observed a hunger-strike, during which he was subject to
compulsory feeding. Thereafter he underwent a work-therapy which he
stopped in the summer of 1984 after his guardian had seized the
applicant's remuneration (AS 3900.-) for the purpose of covering his
fees.
Access to court
In particular during the first period of his detention the
applicant was involved in numerous court (divorce, incapacitation,
business-related civil and enforcement proceedings) and administrative
proceedings (residence status, taxation, unauthorised use of title
etc.). He was frequently brought to court hearings, but this became
more difficult when he was detained outside Vienna where most
proceedings took place.
The prison administration in Stein initially allowed frequent
transports (Ausführungen) to Vienna, but later refused several
transports on the ground that the applicant was not prepared to bear
the costs. The applicant complained that the costs were exaggerated
and that he was unable to bear them. The prison administration
rejected these complaints, but did not issue a written decision as
requested by the applicant. Upon the applicant's further complaint the
Federal Ministry of Justice eventually ruled in 1977 that the
withholding of a written decision had been unlawful. It did not deal
with the question of whether the refusal of transport on the above
ground had been justified.
During the applicant's hunger-strike in Stein a number of
transports were refused on the ground of the applicant being unfit for
transport. A complaint to the Ministry in one of these cases was
eventually rejected in 1977 for lack of legal interest because, in that
case, the Vienna Commercial Court's judgment in default issued against
the applicant had subsequently been quashed for violation of his right
to be heard.
The special prison of Mittersteig initially adopted a rather
liberal approach concerning transport to court hearings, hoping that
this would lead to an improvement of the applicant's state of mind.
However, after incidents in the summer of 1975 the prison governor
reported to the Ministry of Justice that this expectation had been
disappointed. Subsequently the applicant was taken to court hearings
free of charge only when there was a court summons.
After the institution of incapacitation proceedings in 1975,
the applicant was no longer able to bring court proceedings himself.
Proceedings were adjourned by the Commercial Court of Vienna and the
Administrative Court pending the conclusion of the incapacitation
proceedings. As regards the institution of criminal proceedings, the
Supreme Court ruled on 10 March 1977 that the consent of the guardian
was required according to the circumstances of each case. A
hierarchical appeal about a delay in the criminal proceedings concerned
was thereupon rejected. Numerous other criminal proceedings brought
by the applicant were subsequently discontinued failing the consent of
his guardian. However, there is no indication that the applicant's
plea of nullity against the judgment of 1980 (cf. p. 4 above) was
invalid, or that it was withdrawn in view of doubts as to its validity
(cf. p. 13 below).
As regards complaints to the visiting judge relating to
detention and treatment in prison (Arrestvisite), it was clarified by
a ruling of the President of the Regional Criminal Court of Vienna in
July 1977 that each prisoner must have the possibility to speak to the
judge. The applicant had not been given this possibility during
several consecutive visits in May and June 1977.
It finally appears that, after the adoption of the procedure
whereby the applicant's mail was channelled through his guardian on a
systematic basis (see below), the applicant was in principle prevented
from instituting complaints and other proceedings. This procedure was
apparently maintained from 1977 until the date of the applicant's
release in November 1984.
Access to files
In connection with the numerous proceedings in which he was
involved or which he tried to start, the applicant kept voluminous
files in his cell, but he was repeatedly deprived of these files.
All files were removed from his cell in Mittersteig in August
1975 after a search had led to the discovery of unauthorised items. The
measure aimed at a close control of the applicant's papers by the
prison governor, and it was stated that this did not interfere with his
procedural rights. The papers were subsequently kept with the
applicant's personal deposits until November 1975, the applicant being
told that he was entitled to request the return of any specific
documents.
In October 1976 the applicant laid a criminal information
against his guardian who had not consented to his consulting the file
which then was refused by the authority.
A report of January 1977 to the Ministry of Justice stated that
consultation of the file had been interrupted as the applicant had
crossed out certain passages.
In July 1977 the applicant was allowed to consult the file for
a total of 35 hours under special supervision in the Regional Criminal
Court's prison. The access to the file was interrupted on 9 September
on the ground that the applicant had abused this right.
On 7 November 1977 his cell was controlled and thousands of
pages removed to the deposits. The prison administration subsequently
reported this measure to the Ministry and to the applicant's guardian.
On 9 December the Ministry instructed the prison to grant the applicant
access to the files at any time, although it did not object to their
removal from the cell.
In August 1979 the cell was searched and voluminous files
removed to the deposits. They were returned to the applicant in the
psychiatric hospital of Vienna on 25 September 1979, despite doubts of
the prison administration and the Ministry, because it was thought that
possession of the files could contribute to the success of the
psychiatric treatment. However, it appears that the files were removed
again and taken to the deposits after a short period.
At the trials in 1979 and 1980 the applicant complained that
the deprivation of his files had hindered the preparation of his
defence. His requests to adjourn the proceedings for this reason were
rejected.
It appears that after the applicant's committal for detention
as a mentally deranged offender his voluminous files were not available
to him in the psychiatric hospital of Vienna, but were kept
in a special room to which the applicant was not granted access, not
even for the purpose of preparing his present petition to the
Commission. According to the Government's submissions, the applicant
could, however, request the handing out of specific documents. He did
not make such requests but insisted on access to the whole of the
files. His attempts in 1982 to get permission for consultation of the
file by a (non-practising) lawyer with whom he was acquainted also
failed.
Control of correspondence
Throughout his detention the applicant conducted correspondence
on an extremely large scale, including private and business letters and
first of all letters, petitions and complaints addressed to various
authorities in connection with the numerous proceedings in which he was
involved and also concerning his treatment in prison, including the
handling of his correspondence.
In their attempts to reduce the flood of correspondence the
authorities resorted to different measures, including temporary
restrictions on the use of writing material.
Use of a typewriter and writing material were already refused
during the applicant's first detention in the Regional Criminal Court's
prison in Vienna.
In Stein prison the applicant was refused prison paper,
envelopes and paper for making copies. Business letters and letters
to his lawyer written on other than prison paper were not accepted for
delivery.
In Mittersteig special prison it was ordered in August 1975
that paper and complaint forms should be handed out to him in each case
only following a specific request. A petition on toilet paper was
forwarded to the Federal Ministry of Justice on 23 August 1975. On 8
September a request for 110 sheets of paper and 25 envelopes was
refused and unauthorised writing material removed. The specific
request-requirement was apparently maintained during the subsequent
detention in the psychiatric hospital of Vienna.
In October 1977 the applicant complained to the Ministry that
he was not given sufficient writing paper in the Regional Criminal
Court's prison. The prison administration commented that he was given
sufficient prison paper, that he was also entitled to buy paper, and
that it was not therefore necessary to use wrapping paper as he had
done. After a search of the cell in November the prison reported to
the Ministry that the applicant had sufficient writing paper. The
applicant was reminded that one set of writing material was considered
sufficient and was told that petitions on wrapping paper etc. could not
be accepted.
It appears that writing material was withheld from the
applicant also at later dates. Thus a letter to the Commission of 27
November 1978 was written on brown paper bags and the applicant stated
that he had been refused other paper and had also complained of this
to the Ministry. Most of the applicant's subsequent letters to the
Commission were according to him smuggled out under circumvention of
the prison rules because he did not get sufficient writing material or
permission to write.
As regards delivery of correspondence, the applicant also
encountered difficulties on numerous occasions, both concerning the
incoming and outgoing mail. The applicant was particularly aggrieved
by the fact that, during his detention in the prisons of Stein and
Mittersteig, official communications addressed to him by courts and
other authorities, including summonses to appear at court hearings,
court decisions etc., were not handed to him personally but only read
out to him and kept in the prison files. He repeatedly refused to
acknowledge receipt of such letters by his signature on the special
return sheet provided for such official deliveries. The letters in
question were then deposited in the Post Office or returned to the
sender. The applicant was advised on 21 July 1975 that he must bear
the consequences. His complaints to the Ministry of Justice and his
attempts to institute criminal proceedings for suppression of his mail
failed.
As regards outgoing mail, the applicant was repeatedly advised
of the applicable provisions of the Criminal Law Enforcement Act
(Strafvollzugsgesetz), in particular that letters must be submitted in
unsealed envelopes, that they must be correctly addressed and that he
must pay the postage. He was also advised repeatedly that it was
inadmissible to request an authority other than the prison, e.g. the
Ministry of Justice, to forward letters to other addresses on his
behalf. Such letters were regularly returned to him.
The payment of postage developed into a special issue of
confrontation with the authorities. The applicant claimed that he was
unable to pay postage from the money available to him for this purpose
(Eigengeld), and that the postage must therefore be paid by the State.
However, the authorities did not accept this view and frequently
refused to forward letters without stamps. On 27 January 1977 the
Ministry of Justice confirmed that the postage was, in principle, to
be paid by the applicant from his own money, and that letters without
postage should not be accepted for transmission. Only letters
addressed to authorities competent for criminal matters were to be
forwarded through the official channels.
It appears that in practice most letters addressed to
authorities and courts were in fact transmitted to them, despite the
applicant's failure to pay postage, while other letters without postage
were returned to the applicant, including letters to his lawyer, to the
Chamber of Medicine, and the Police Headquarters in Vienna. The
applicant nevertheless consistently maintained his practice of
submitting letters without postage. He continued to do so even after
his release and he has also posted letters to the Commission without
stamps on numerous occasions. Some were returned and when the
applicant refused to pay additional postage they were retained by the
Post Office and not handed back to him.
According to the provisions of the Criminal Law Enforcement
Act, the applicant's mail was subject to censorship by the prison
governor or his representative. In the prison of Stein this censorship
was exercised systematically in each case and not only at random as is
usual practice. This measure was based on Section 129 of the above Act
which allows the prison governor to order appropriate modifications of
the general prison regime in cases of mentally deranged persons. The
same approach seems to have been taken subsequently in the special
prison of Mittersteig.
Numerous letters were stopped, in particular on the ground of
abusive language or distortion of facts. They included letters to the
applicant's (ex-)wife and her employer, to his relatives in Hungary
(which were first translated by the services of the Ministry of
Justice), to the Soviet Embassy, to newspapers and the Austrian radio
and even one letter addressed to the Commission on 25 July 1974 (on the
ground that it contained unjustified complaints about the prison).
The applicant complained that also other letters to the
Commission had not been delivered, and this led to investigations by
the Ministry of Justice. Eventually it was found that all letters to
the Commission had in fact been transmitted to the latter (note of 16
December 1974). The practice followed with complaints to the
Commission (and also the UN High Commissioner for Refugees) was
apparently to submit the relevant letters, or copies thereof, to the
Ministry, sometimes with comments by the prison administration.
Letters addressed to Austrian courts could not be stopped even
if they contained abusive language (Section 90/4 of the Criminal Law
Enforcement Act), but letters addressed to individual judges were
stopped on some occasions. Such letters and letters to prison
officials also led to disciplinary sanctions and the institution of
criminal proceedings against the applicant.
Letters to the Federal Ministry of Justice or prosecution
authorities were generally transmitted to them, often with comments by
the prison on the matters raised in the said letters.
After the appointment of a guardian for the applicant, his
letters addressed to the various authorities were no longer directly
transmitted to them but collected and from time to time sent to the
guardian, who then decided whether they should be forwarded or not.
This practice was apparently maintained throughout the period between
February 1977 and February 1980. During the time in which the
applicant was detained in the psychiatric hospital in 1979, the
transmission of his correspondence was nevertheless handled by the
prison administration.
No details have been provided concerning the practice after
February 1980, but it appears that, in principle, the control of the
mail by the guardian was maintained until the applicant's release in
November 1984.
Disciplinary sanctions
The applicant was repeatedly subjected to disciplinary
sanctions, in particular periods of house arrest or segregation from
other prisoners. Such measures were, in particular, taken during the
two periods of detention in the prison of the Vienna Regional Court,
and in the ordinary prisons of Stein and Graz, inter alia on the ground
that the applicant had written insulting letters to court and prison
officials. The special prison of Mittersteig took the view that such
offences were due to his mental troubles and therefore did not impose
disciplinary sanctions.
COMPLAINTS
In the application form submitted on 31 July 1983 the applicant
did not invoke any specific provision of the Convention. In a
subsequent letter of 25 October 1984 he stated that at the relevant
time the text of the Convention had not been available to him, and he
added that he wished to submit complaints under Articles 1, 2, 3, 4
paras. 1 and 2, 5 paras. 1 - 5, 6 paras. 1 - 3, 8, 9, 10, 13, 14, 17,
18, 25 and 60 of the Convention as well as Articles 1 and 2 of Protocol
No. 1 and Article 2 para. 2 of Protocol No. 4 to the Convention.
The applicant claims that he was wrongly convicted in 1972 and
1973, the charges against him having been fabricated by his wife and
lawyers acquainted with her.
He further claims that the facts concerning the charges of
aggressive behaviour during his detention were also wrongly established
and that it had not been him but the prison staff who had been
aggressive. He further challenges the relevant court proceedings on
various grounds under Article 6 of the Convention: the judges and
experts were allegedly biased against him, he could not defend himself
properly, the indictment was not served upon him, he was unable to
appoint a lawyer of his own choice, he was deprived of his files and
excluded from the trial in January 1979, and his requests for further
expert evidence, including a faculty opinion, were rejected at the
trial in April 1980. Finally he was led by false promises to withdraw
his plea of nullity against the judgment of 9 April 1980.
Under Article 5 of the Convention the applicant submits that
he was unlawfully deprived of his liberty for 13 years. He claims that
his convictions in 1972 and 1973 were not lawful (Article 5 para. 1
(a)) and that, in particular, his detention after completion of the
sentences resulting from these convictions lacked any justification.
Moreover, he was detained on remand from 13 May 1977 until 9 April
1980, but when this measure was ordered there was no reasonable
suspicion of his having committed any criminal offence nor any reason
to assume that he would abscond or commit further offences (Article 5
para. 1 (c)). The warrant of arrest was not served upon him (Article
5 para. 2) and he was not promptly brought before a judge, nor released
or brought to trial within a reasonable time (Article 5 para. 3).
Because he was deprived of writing material he was prevented from
submitting written requests for release and was compelled to make such
requests orally to the visiting judge. However, all these requests were
either suppressed or disregarded and no decision was taken on them
(Article 5 para. 4). The same applied to his requests for compensation
(Article 5 para. 5).
Insofar as his detention in psychiatric hospitals is concerned,
the applicant contends that it was totally unjustified as he was never
a person of unsound mind. His allegedly vexatious behaviour which was
considered equivalent to a mental illness was, in his opinion, no more
than the legitimate exercise of his right of defence against the
various unlawful measures taken against him. The applicant finally
argues in this context that his incapacitation was unlawful as under
Section 13 of the Incapacitation Act (Entmündigungs- ordnung) such a
measure could not be taken against a foreign national.
The applicant raises numerous complaints concerning the
conditions of his detention:
He complains under Article 2 of the Convention that, due to
acts of physical ill-treatment and lack of appropriate medical care,
his life was put in danger on frequent occasions.
He further complains under Article 3 of the Convention that he
was subjected to inhuman and degrading treatment or torture by the
conditions of his detention. In this context he again complains of
physical and mental ill-treatment, isolated detention under appalling
conditions for lengthy periods, being kept with fetters in a security
cot for a considerable time, lack of appropriate medical care,
compulsory feeding during lengthy periods of hunger-strike (altogether
more than three years) and compulsory treatment with neuroleptic drugs
against his will during most of the time of his detention in the
psychiatric hospital of Vienna.
The applicant considers that during his detention he was
without any rights and thus practically kept in slavery contrary to
Article 4 para. 1 of the Convention. Between October 1982 and June
1984 he was subjected to a work therapy in the psychiatric hospital and
received a very low renumeration. He stopped working when he learnt
that his guardian had seized the money (AS 3900.-) in order to cover
his fees. In the applicant's view this situation amounts to compulsory
labour contrary to Article 4 para. 2 of the Convention.
The interference with his private life and correspondence
amounted in his view to a breach of Article 8 of the Convention which
was not justified by paragraph 2 of this provision. He further submits
that the interference with his correspondence and the withholding of
his files also affected his rights under Article 6 of the Convention.
Insofar as the interference with correspondence concerned his
communications with the Commission he invokes Article 25 para. 1 of the
Convention.
The applicant alleges that in prison he was not allowed to
participate in religious ceremonies and that therefore his right under
Article 9 was violated.
He sees further interferences with his rights under Article 9
(freedom of thought and conscience) and Article 10 of the Convention
(freedom of expression) in the fact that his attempts to criticise the
various measures taken against him led to serious sanctions. Article
10 (freedom of information) is also invoked insofar as he was kept for
lengthy periods in complete isolation, without radio, television, books
and journals. By the same measures he was deprived of his right of
education under Article 2 of Protocol No. 1 of the Convention.
He had no possibility to complain effectively of the various
measures taken against him and therefore alleges a breach of Article
13 of the Convention.
The measures in question were allegedly taken against him
because of his race, national origin or language, and were thus
discriminatory contrary to Article 14 of the Convention. He further
claims that they were abuses of the Austrian State contrary to Articles
17 and 18 of the Convention.
Finally, the applicant complains under Article 1 of Protocol
No. 1 of the Convention that his business was unjustifiedly closed down
and declared bankrupt after his imprisonment, and under Article 2 para.
2 of Protocol No. 4 of the Convention that he was prevented from
leaving the Austrian territory. From 1964 until 1970 he was refused
an alien's passport so that he could not travel abroad. In 1979/1980
he tried to arrange his repatriation to Hungary, but this was made
impossible by the Austrian authorities who insisted that in Hungary he
should also be detained in a mental hospital. The Hungarian
authorities refused to take him back under this condition.
PROCEEDINGS BEFORE THE COMMISSION
The applicant's first letter concerning the present case dates
from 27 November 1978. That letter was written on brown paper bags.
The applicant complained, inter alia, that in the prison of the
Regional Criminal Court of Vienna where he was detained at that time
he was refused writing material even for the purpose of addressing the
Commission. He also referred to earlier letters written on wrapping
paper and stated that the prison authorities had probably failed to
forward these letters to the Commission as he had received no reply.
The letter of 27 November 1978 concluded by a postscriptum according
to which a prison warden had refused to accept the letter for delivery
in the morning of 28 November 1978.
This letter was received by the Commission on 31 January 1979.
The Secretariat's reply of 9 February 1979 referred to the obligation
of the Contracting States under Article 25 para. 1 of the Convention
not to hinder in any way the effective exercise of the right of
individual petition. The applicant was further reminded of the
requirement of exhaustion of domestic remedies under Article 26 of the
Convention and invited to submit documents showing that he had complied
with this requirement.
The applicant wrote again to the Commission on 1 December 1979
and 24 April 1981, each time complaining of interferences with his
correspondence and the withholding of his files. He was again invited
by the Secretariat to submit documents showing that he had exhausted
domestic remedies.
On 2 June 1981 the applicant wrote that he was unable to submit
any decisions as his files continued to be withheld from him. The
Commission's Secretary replied on 25 June 1981 that under Rule 38 of
the Commission's Rules of Procedure it was normally the applicant's
duty to submit the necessary documentation. If the applicant could not
produce the documents himself, he should ask his defence counsel or
guardian. Only if this was not possible either could a registration
of the case without any documents be considered. An application form
was sent to the applicant who was reminded of the authorities' duty not
to hinder the effective exercise of his right of individual petition.
The applicant submitted the completed application form on 2
July 1981. However, the case was not immediately registered because
the applicant had used abusive language. On 31 July 1981 he was
warned that, for this reason, the Commission might consider the
application as abusive within the meaning of Article 27 para. 2 of the
Convention and a new application form was accordingly sent to the
applicant in order to give him an opportunity to set out his complaints
in proper form.
On 3 February 1983 the applicant insisted on registration of
the case on the basis of the application form which he had already
submitted. On 22 February 1983 he was again invited to complete the
form in good order. On 2 March 1983 he complained of the continued
refusal to register his case stating that the second application form
had been taken away by the prison administration.
The matter was then submitted to the Commission's President
who, on 14 July 1983, ruled that the applicant should be provided with
a new application form which he should complete in good order having
regard, in particular, to any further developments in the case. The
applicant was again reminded of the authorities' duty not to hinder the
effective exercise of his right of individual petition, a duty which
obliged the Austrian authorities to allow him to correspond with the
Commission and to grant him access to the necessary files.
The applicant submitted the application form on 31 July 1983
without any documents, claiming that they were still being withheld
from him. The form reached the Commission on 22 August 1983 and the
case was registered on the same day under file No. 10533/83.
On 14 October 1983 a member of the Commission, acting as
Rapporteur, after carrying out a preliminary examination of the case,
decided to request information from the respondent Government in
accordance with Rule 40 para. 2 (a) of the Rules of Procedure. In
particular, the Government were asked whether, and if so, for what
reasons, the applicant had at any time been restricted or otherwise
hindered in his correspondence with the Austrian authorities and/or the
Commission. The Government were further requested to state whether it
was true that any documents which could be relevant to the applicant's
complaints before the Commission were not available to him, and if so,
on which legal basis they were being withheld. In that case the
Government were requested to submit the said documents to the
Commission.
The Government replied to the request for information on 13
December 1983, stating, inter alia, that during his detention in the
Regional Court's prison and in the special prison of Mittersteig the
applicant had not been hindered in exercising his right to file
applications by interfering with his correspondence or by retaining
relevant documents. The alleged restriction of his right to lodge
applications and the alleged interference with his correspondence might
perhaps be felt by the applicant to arise from the fact that his
correspondence must first be shown to his guardian in view of his
partial incapacitation. The applicant had repeatedly been reminded of
his duty under Section 92 para. 3 of the Criminal Law Enforcement Act
to pay the postal charges for his correspondence with the Commission.
As he had refused to bear these postal charges the correspondence
concerned could not be dispatched. The documents kept
by the applicant were extremely voluminous (11 cardboard boxes, each
weighing between 25 and 30 kilogrammes) and therefore could not be
stored in his cell. They were kept in a special locked store-room.
Specific documents could always be handed out to him at his request,
but he had insisted on having all 11 boxes.
In his comments of 31 December 1983, the applicant maintained
that, contrary to the Government's assertions, he was still being
hindered in the exercise of his right of correspondence, including
correspondence with the Commission. He further submitted that the
Government themselves had admitted that he had not been granted access
to his documents.
In a letter of 21 April 1984, the applicant stated again that
the authorities continued to refuse him access to these documents.
On 21 May 1984 the Commission's Rapporteur, noting that it
seemed impossible to obtain the relevant documents through the
applicant, made a second request for information to the respondent
Government, asking them under Rule 40 para. 2 (a) of the Commission's
Rules of Procedure to submit a full documentation of the case.
The Government submitted this documentation which fills 13
Leitz files on 11 July 1984, and the applicant submitted certain
comments on 26 July and 25 October 1984.
Thereafter, the applicant continued to write very frequently
to the Commission, raising various additional complaints even after his
release from prison.
THE LAW
1. The applicant complains of various measures taken against him
by the Austrian authorities since May 1972 when he was arrested in
criminal proceedings which led to his first conviction in November
1972. Those proceedings were the subject of his earlier application
No. 6398/73. Insofar as he now again complains of those proceedings,
the matter is substantially the same as that which has already been
considered by the Commission in the previous case. The applicant has
not submitted any new relevant information in this respect, and this
part of the application must accordingly be rejected under Article 27
para. 1 (b) (Art. 27-1-b) of the Convention.
2. The applicant has further submitted complaints under various
provisions of the Convention which relate to facts which occurred
between 1972 and 1978: the second criminal proceedings taken against
the applicant in 1973, his detention as a convicted prisoner until 13
May 1977, the proceedings concerning his subsequent detention on remand
and his provisional detention in an institution for mentally deranged
offenders, the incapacitation proceedings taken in 1975 - 1977, the
bankruptcy of the applicant's firm following his imprisonment, and
finally the restrictions on the applicant's freedom to leave the
country in the period between 1964 and 1970.
However, the Commission is not required to decide whether or
not the facts alleged by the applicant in these respects disclose any
appearance of violations of the Convention, as Article 26 (Art. 26) of
the Convention provides that the Commission "may only deal with the
matter ... within a period of six months from the date on which the
final decision was taken". The final decisions concerning the above
matters were given at various dates which antedate the applicant's
first letter to the Commission of 27 November 1978 by more than six
months. Furthermore, an examination of the case does not disclose the
existence of any special circumstances which might have interrupted or
suspended the running of the six-month period.
It follows that these parts of the application have been
introduced out of time and must be rejected under Article 27 para. 3
(Art. 27-3) of the Convention.
3. The applicant has also submitted a number of complaints which
relate to facts which occurred after 27 May 1978, i.e. less than six
months before the introduction of the application. In particular he
has complained that the third criminal proceedings taken against him
which resulted in the Regional Court's judgment of 9 April 1980
violated Article 6 (Art. 6) of the Convention in several respects.
However, the Commission is not required to decide whether or
not the facts alleged by the applicant in respect of those criminal
proceedings disclose any appearance of a violation of this provision
as, under Article 26 (Art. 26) of the Convention, it may only deal with
a matter after all domestic remedies have been exhausted according to
the generally recognised rules of international law.
In the present case the applicant withdrew his plea of nullity
against the Regional Court's judgment and has, therefore, not exhausted
the remedies available to him under Austrian law. Moreover, an
examination of the case 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. In particular there is no
indication that the applicant's plea of nullity against the above
judgment was invalid, or that it was withdrawn in view of doubts as to
its validity. Nor is there any indication that the applicant, who in
the above proceedings was represented by counsel, was unable to pursue
his remedy against the Regional Court's judgment due to his
incapacitation. His allegation that he was led by false promises to
withdraw his plea of nullity has not been substantiated.
It follows that the applicant in this respect has not complied
with the condition as to the exhaustion of domestic remedies and this
part of the application must therefore be rejected under Article 27
para. 3 (Art. 27-3) of the Convention.
4. Finally, the applicant's remaining complaints - in particular
his complaints that his provisional and definitive detention as a
mentally deranged offender was unjustified and contravened Article 5
(Art. 5) of the Convention and that the conditions under which he was
detained violated various other provisions of the Convention, including
Articles 3, 6, 8, 10 and 13 (Art. 3, 6, 8, 10, 13) - cannot be rejected
as having been filed out of time insofar as the period after
27 May 1978 is concerned. The Commission considers that further
information is required in this respect and accordingly reserves the
examination of the admissibility of this part of the application.
For these reasons, the Commission
1. DECLARES INADMISSIBLE THE APPLICANT'S COMPLAINTS
a) INSOFAR AS THEY ARE ESSENTIALLY THE SAME AS
THOSE CONSIDERED IN APPLICATION NO. 6398/73;
b) INSOFAR AS THEY RELATE TO FACTS PRIOR TO
27 MAY 1978;
c) INSOFAR AS THEY CONCERN THE CRIMINAL PROCEEDINGS
WHICH RESULTED IN THE REGIONAL COURT'S JUDGMENT
OF 9 APRIL 1980 BY WHICH THE APPLICANT WAS
COMMITTED TO AN INSTITUTION FOR MENTALLY DERANGED
OFFENDERS;
2. DECIDES TO ADJOURN THE EXAMINATION OF THE
APPLICANT'S REMAINING COMPLAINTS RELATING TO
FACTS AFTER 27 MAY 1978.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)