THE FACTS
Whereas the facts of the case as presented by the Applicant may be
summarised as follows:
The Applicant is an Austrian citizen, born in 1911 and at present
living in Vienna. He is represented before the Commission by Dr.
Herbert Schaller, a lawyer practising in Vienna.
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(1) The Commission's partial decisions of 1 June and 24 September 1965
have not been published.
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At the request of the Austrian authorities, he was arrested in Germany
on 22 June 1961 and was detained there pending extradition
(Auslieferungshaft) until 21 December 1961, when he was extradited to
Austria.
Following his extradition, he was held in detention on remand
(Untersuchungshaft) in Austria. On 31 October and 6 November 1962, he
lodged requests for his release (Haftbeschwerden) which were rejected
on 21 December 1962 by the Judges' Chamber (Ratskammer) of the Regional
Court for Criminal Cases (Landesgericht für Strafsachen) in Vienna. His
appeal from that decision was rejected on 19 February 1963 by the Court
of Appeal (Oberlandesgericht) in Vienna.
In November 1963, the preliminary investigation was completed and the
file was transferred to the Public Prosecutor who, on 17 March 1964,
issued the indictment (Anklageschrift) against the Applicant. In this
indictment, he was charged with a number of offenses of fraud.
On 9 November 1964, the trial opened before the Regional Court but, on
18 June 1965, the proceedings were adjourned sine die pending further
investigations by the investigating judge. On the same day, a request
by the Applicant for his release was rejected by the Regional Court.
On his appeal from that decision, the Court of Appeal decided, however,
that the Applicant should be released on parole (Gelöbnis) and bail
(Kaution oder Bürgschaft) to be determined by the Regional Court. In
July 1965, the Applicant was released on bail of 20,000 Schillings.
The Applicant made a number of allegations which were directed against
the German and Austrian Governments and which mostly concerned his
detention and the proceedings against him. He invoked a great many
provisions of the Convention including Articles 5, paragraph (3), and
6, paragraphs (1) and (2).
Proceedings before the Commission
Whereas the proceedings before the Commission may be summarised as
follows;
On 17 February 1965, the President of the Commission decided to give
precedence to this Application under Rule 38 of the Commission's Rules
of Procedure.
On the same day, the Application was examined by a group of three
members of the Commission pursuant to Rule 45, paragraph 1, of the
Rules of Procedure. The group reported unanimously that the Application
appeared admissible in so far as it was directed against Austria and
concerned the alleged violations of Articles 5, paragraph (3), and 6,
paragraphs (1) and (2), of the Convention. Consequently, the President
of the Commission, acting in accordance with Rule 45, paragraph 2, of
the Rules of Procedure, gave notice of these parts of the Application
to the Austrian Government and invited it to submit its observations
in writing on the admissibility.
In its observations submitted on 26 April 1965, the Austrian Government
maintained that the Application, in so far as it had been communicated
to the Government, was inadmissible as being manifestly ill-founded.
The Applicant's reply to the Austrian Government's observations was
submitted on 12 May 1965.
On 1 June 1965, the Commission decided:
(a) to declare the Application inadmissible in regard to the alleged
violations of the Convention by the German Government and certain of
the alleged violations by the Austrian Government;
(b) to invite the Parties to make oral explanations on the
admissibility of those parts of the Application which had already been
communicated to the Austrian Government;
(c) to ask the German Government for information as to the Applicant's
allegation that, during his detention in Germany, his right to
communicate with the Commission had been violated.
As regards the question of interference with the Applicant's
correspondence with the Commission, the German Government submitted its
comments on 6 August, 1965 and the Commission decided, on 24 September
1965, in the light of these comments, not to take any further action
in this regard.
As regards the remaining complaints directed against Austria, an oral
hearing was fixed for 12 July 1965. The Applicant informed the
Commission that he would be represented by a certain lawyer in Vienna,
but on 8 July 1965, the Secretary to the Commission was informed by
that lawyer that he would not appear at the hearing and that the
Applicant had asked for an adjournment.
On 12 July 1965, the Commission rejected the application for
adjournment and the hearing was held in the absence of the Applicant's
representative.
During the hearing, the Government's representative objected to certain
parts of the Applicant's written submissions in the case which, in the
Government's opinion, were insulting and provocative. Without making
any specific request, the Government's representative suggested that
the Commission should take measures to protect the Republic of Austria
against such defamatory remarks as had been made by the Applicant. In
view of the Government's objections, the Commission decided to invite
the Applicant to withdraw or amend certain parts of his submissions
which the Commission found objectionable.
By letter received on 13 August 1965, the Applicant informed the
Commission that he was not willing to withdraw or amend the passages
concerned. In view of the contents of this letter, the Commission
decided, on 24 September 1965, to state to the Applicant that, unless
he informed the Commission within a certain time-limit that he was
willing to withdraw or amend the relevant parts of his submissions, the
Commission would consider whether or not it should declare the
Application to be inadmissible on the ground of its being an abuse of
the right of petition within the meaning of Article 27, paragraph (2),
of the Convention. In reply, the Applicant informed the Commission, by
a letter of 16 October 1965 from his newly-appointed lawyer, Dr.
Schaller, that he was prepared to withdraw the passages concerned.
In the meanwhile, the Austrian Government had submitted two letters to
the Commission in which it drew the Commission's attention to the
language used by the Applicant and to his general attitude to the
proceedings before the Commission. Together with his letter of 16 July
1965, the Government's representative submitted a press cutting
reproducing certain statements by the Applicant, and the Government's
representative suggested that these statements reflected the
Applicant's attitude in regard to the proceedings before the
Commission. In his subsequent letter of 19 August 1965, the
Government's representative stated that certain statements by the
Applicant, other than those which he had been invited to withdraw or
amend, were also insulting and provocative and that the Government
reserved the right to object to these parts of his pleadings. The
Government's representative maintained this position in his letter of
17 November 1965.
On 13 December 1965, the Commission decided that the Applicant's
withdrawal of defamatory passages in his pleadings was adequate at that
stage of the proceedings but it left open the possibility of requiring
the withdrawal of any other passages in the memorials which might
appear abusive in the light of a further examination of the case. The
Commission also decided to inform the Parties that "the Commission
would be prepared to treat the whole Application as abusive in the
sense of Article 27, paragraph (2), of the Convention if the Applicant
made any further defamatory statements of the kind now withdrawn".
The Parties were informed accordingly by letters of 22 December 1965.
On 13 December 1965, the Commission also decided to invite the
Applicant to submit in writing his reply to the oral submissions made
by the Government's representative at the hearing on 12 July 1965;
after receiving this reply, the Commission would consider whether to
hold a further oral hearing, as had been requested by the Applicant.
After receiving the Applicant's reply dated 17 January 1966, the
Commission decided, on 14 February 1966,
(a) not to grant the Applicant's request for a further oral hearing on
the issue of admissibility;
(b) to invite the Austrian Government to submit any observations it
might wish to make in reply to the Applicant's submissions of 17
January 1966;
(b) on receipt of these observations to regard the pleadings of the
Parties on the issue of admissibility as closed.
The Government's further observations were submitted on 8 April 1966.
On 27 April 1966, the Commission's Secretary received from the
Applicant a further pleading of 11 April 1966, signed by himself and
not by his lawyer. In this pleading, he referred, inter alia, to
certain statements made by the representatives of the Austrian
Government at the hearing on 12 July 1965 and he commented on these
statements in the following manner:
(a) "In reply, I can only state that the gentleman representing the
Government has either no idea of the contents of the files or he
deliberately misinforms the High Commission of Human Rights in order
to disguise the real legal situation in Austria" ("Ich habe daraufhin
nur zu erwidern, dass der Herr Behördenvertreter entweder keine Ahnung
von der Aktenlage hat, oder dass er die Hohe Menschenrechtskommission
bewusst falsch unterrichtet, um die wahren Rechtsverhältnisse in
Österreich zu verschleiern").
(b) "When, on page 17 of the verbatim record, the gentleman
representing the Government speaks of contempt of court, I am quite
willing to agree with his statement, but this only relates to the
conduct of the Government representatives and not at all to my own
conduct, since I would never dare to misinform such a high institution
as the High Council of Europe" ("Wenn der Herr BehÖrdenvertreter auf
Seite 17 des Verhandlungsprotokolles von einem Contempt of Court
spricht, dann stimme ich auch dieser Ausführung vollinhaltlich bei, nur
liegt diese Tatsache auf Seite der BehÖrdenvertreter und keinesfalls
auf meiner Seite, da ich es niemals wagen würde, ein so Hohes Forum wie
einen Hohen Europarat, falsch zu unterrichten").
THE LAW
Whereas Article 27, paragraph (2) (Art. 27-2), of the Convention
provides that "the Commission shall consider inadmissible any petition
submitted under Article 25 (Art. 25), which it considers an abuse of
the right of petition";
Whereas, in the present case, the Applicant's pleadings which had been
submitted before the oral hearing on 12 July 1965 contained a number
of passages which were provocative and insulting to the Austrian
Government; whereas, therefore, the Commission invited the Applicant
to withdraw or amend these passages; whereas the Commission also
informed him that, unless he withdrew or amended these passages, the
Commission would consider whether or not it should declare the
Application to be inadmissible on the ground of being an abuse of the
right of petition within the meaning of Article 27, paragraph (2)
(Art. 27-2), of the Convention.
Whereas, on 13 December 1965, after the Applicant had withdrawn his
previous defamatory submissions, the Commission decided to inform the
Parties that it would be prepared to treat the whole Application as an
abuse of the right of petition within the meaning of Article 27,
paragraph (2) (Art. 27-2), if the Applicant made any further defamatory
statements of the same character; whereas the Parties were informed of
this decision by letters of 22 December 1965;
Whereas, in spite of this clear warning the Applicant, in his pleading
of 11th April 1966, made the statements which are quoted above and
which the Commission considers clearly defamatory in regard to the
Austrian Government; whereas the Commission observes, in particular,
that the Applicant's remarks are directed against persons who represent
the Government in the present proceedings before the Commission and who
should enjoy a special protection against defamatory statements
concerning the manner in which they exercise these functions;
Whereas, consequently, the Commission finds that the Applicant has
abused the right of petition and decides, in so far as the Application
has not been finally dealt with in the Commission's partial decisions
of 1st June and 24th September 1965 and without further examining the
substance of the case, to declare the Application inadmissible
according to Article 27, paragraph (2) (Art. 27-2), of the Convention.
Now therefore the Commission, having regard to its partial decisions
of 1st June and 24th September 1965, declares the remaining parts of
the Application INADMISSIBLE.