AS TO THE ADMISSIBILITY OF
Application No. 10817/84
by Bruno MACHERHAMMER
against Austria
The European Commission of Human Rights sitting in private
on 4 May 1987, the following members being present:
MM. C. A. NØRGAARD, President
G. JÖRUNDSSON
S. TRECHSEL
B. KIERNAN
A. S. GÖZÜBÜYÜK
A. WEITZEL
J. C. SOYER
H. G. SCHERMERS
H. DANELIUS
G. BATLINER
Mrs G. H. THUNE
Sir Basil HALL
Mr. F. MARTINEZ
Mr J. RAYMOND, Deputy 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 23 August 1981
by Bruno Macherhammer against Austria and registered on
13 February 1984 under file No. 10817/84;
Having regard to the report provided for in Rule 40 of the
Rules of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant, an Austrian citizen born in 1931, is a retired
savings-bank employee resident in Linz. He considers himself one of
the disciples of Kirpal Singh, founder and leader of a religious sect.
In 1970, he was recruited by the Linz General Savings Bank
(Allgemeine Sparkasse). After having published an article in an
Austrian newspaper entitled "Our misery results from the banking
system" ("Die Banken sind unser Unglück") in July 1976, he was
dismissed by his employer in August 1976. Apparently his dismissal
became effective on 31 December 1976. It is unclear whether the
applicant instituted proceedings before the competent labour courts.
After his dismissal the applicant submitted petitions to
various public and private bodies. He also filed several complaints
with the Public Prosecutor's Office against the (then) Director of the
General Savings Bank and other persons.
In November 1979, the applicant instituted proceedings before
the Linz Regional Court (Landesgericht) against the Union of Private
Employees (Gewerkschaft der Privatangestellten) and the head of its
Legal Department, claiming damages for the losses suffered because of
the refusal by the Union to grant him security for legal expenses
in proceedings against his dismissal in 1976.
The Linz Regional Court found that the statement of claims was
confused. On that ground it ordered, on 17 December 1979, the
examination of the applicant's capacity to conduct proceedings
(Prozessfähigkeit) ex officio. The applicant's appeal (Rekurs)
against this decision was rejected by the Linz Court of Appeal
(Oberlandesgericht) on 7 July 1980.
Meanwhile, on 25 June 1980, the Linz District Court (Bezirks-
gericht) had ordered the opening of proceedings for placing the
applicant under guardianship (Einleitung des Entmündigungsverfahrens)
on the ground of mental disorder according to SS. 1 and 25 of the
Guardianship Act (Entmündigungsordnung). The applicant's appeal
(Rekurs) and his further appeal (Revisionsrekurs) were rejected by the
Linz Regional Court (Landesgericht) on 16 July 1981 and by the Supreme
Court (Oberster Gerichtshof) on 10 February 1982, respectively.
Thereupon, on 30 June 1982 the Linz District Court
(Bezirksgericht) decided to place the applicant under limited
guardianship (beschränkt entmündigt).
On 9 December 1983, the applicant lodged a petition with the
District Court for setting aside the Court's decision of 30 June 1982.
This petition was treated as an appeal (Rekurs) by the Linz Regional
Court and rejected on 18 July 1984 for having been lodged out of time.
In the meantime, the applicant had been arrested on
10 September 1982 and committed to a mental hospital (Anhaltung).
Apparently notice of the applicant's hospitalisation was given to the
Linz District Court, which, however, did not take any action.
Thereupon, the applicant was released on 29 October 1982.
Furthermore, a letter from the Commission's Secretariat sent
to the applicant's private address on 7 July 1983 was apparently
intercepted by the applicant's guardian, the Linz Welfare Office
(Wohlfahrtsamt) on 12 July 1983. No notice of this letter was given to
the applicant by the Welfare Office until on 4 November 1983 he was
provided with a copy after having learned, through further
correspondence with the Commission's Secretariat, about the existence
of this letter.
On 7 December 1984, the Linz District Court (Bezirksgericht)
declared that in view of an amendment to the Austrian Civil Code
(Allgemeines Bürgerliches Gesetzbuch - ABGB), which had entered into
force on 1 July 1984, the limited guardianship (beschränkte
Entmündigung) ordered on 30 June 1982 had been converted into a
curatorship (Sachwalterschaft) according to S. 273 para. 3 (3) ABGB.
At the same time the Court limited this curatorship to managing the
applicant's legal affairs and appointed Dr T., a lawyer practising in
Linz, as curator.
On 12 December 1984 the applicant apparently threatened the
head of the Regional Tax Office (Finanzlandesdirektion) for Upper
Austria. He was arrested on suspicion of attempt of aggravated
coercion (schwere Nötigung) under SS. 105 and 106 of the Austrian
Criminal Code (Strafgesetzbuch) and again committed to a mental
hospital. On 14 December 1984 a single judge of the Linz Regional
Court ordered the applicant's provisional hospitalisation. This
decision was confirmed by the Review Chamber (Ratskammer) of the
Regional Court on 20 March 1985 and upheld by the Linz Court of Appeal
(Oberlandesgericht) on 8 May 1985. After discontinuance of the
preliminary investigations, the Regional Court, on 21 June 1985, set
aside its order of 14 December 1984 and ordered the applicant's
immediate release.
By order of 22 December 1986 the Linz District Court
terminated the curatorship.
COMPLAINTS
The applicant complains about violations of the Convention in
general, invoking Articles 2 to 11 of the Convention. He considers
himself to be a victim of persecution for being a disciple of the sect
of Karpal Singh.
Additionally, invoking Article 6 of the Convention, he
complains that he was prevented from bringing an action against his
dismissal in 1976.
He also complains that his various informations lodged with
the Public Prosecutor's Office, hierarchical complaints, and other
protests were of no avail and that he was therefore deprived of
judicial protection.
The applicant further submits that he was illegally deprived
of his liberty as a result of his repeated hospitalisation at the
mental hospital, where he was forced to undergo medical treatment, in
violation of Articles 3 and 5 of the Convention.
He finally complains under Article 8 of the Convention of a
violation of his right to respect for his correspondence, as the
letter sent by the Commission's Secretariat on 7 July 1983 was not
handed over to him.
THE LAW
1. The Commission first observes that the applicant's capacity to
institute proceedings under Article 25 (Art. 25) of the Convention was not
affected by the decisions placing him under guardianship (cf. No.
1527/62, Dec. 4.10.62, Yearbook 5 pp. 238, 246).
The Commission has therefore examined the applicant's separate
complaints as they have been submitted by him.
2. The applicant claims to be a victim of persecution and
discrimination for being a member of a certain sect. However, he has
failed to show that there has been any interference by State
authorities with his right to freedom of religion as guaranteed by Article 9
(Art. 9) of the Convention, or any discrimination in the enjoyment of his
rights under the Convention, contrary to Article 14 (Art. 14) of the
Convention, on account of his affiliation to the Kirpal Singh sect. The
dismissal pronounced by a private savings bank on the ground of the expression
of ideas based on the applicant's religious convictions is not imputable to the
respondent State and cannot therefore be challenged before the Convention
organs.
Nor does it appear that the applicant was refused legal
protection by the courts against this dismissal. He did not pursue
the remedies available to him, apparently because his trade union
refused to provide him legal assistance for this purpose. However,
the union is again a private organisation whose actions do not engage
the State's responsibility under the Convention.
It follows that this part of the application, in so far as it
is not incompatible with the Convention ratione personæ, is manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
3. The applicant's further complaint, concerning the proceedings
subsequently brought by him against the union concerned, raises the
question of the restriction of his right of access to court, as
guaranteed by Article 6 para. 1 (Art. 6-1) of the Convention, in view of doubts
as to his capacity to conduct proceedings. The Commission does not
find it necessary to determine this question. It notes that, in the
proceedings which led to the appointment of a guardian,
the applicant failed to appeal in time against that appointment.
He cannot therefore be considered as having exhausted the
domestic remedies in respect of this obstacle to the continuation of
the proceedings against the union. Consequently, the Commission is
also not required to decide whether the applicant's placement under
guardianship was in conformity with Article 8 (Art. 8) of the Convention or
whether the guardianship proceedings were conducted in conformity with
the requirements of Article 6 para. 1 (Art. 6-1) of the Convention.
It follows that this part of the application must be rejected under
Article 27 para. 3 (Art. 27-3) in conjunction with Article 26 (Art. 26) of the
Convention.
4. In so far as the applicant complains that he was twice
committed to a mental hospital, it appears that the domestic remedies
were effective each time and led to his eventual release. In these
circumstances the applicant can no longer claim to be a victim of a
violation of his Convention rights in this respect, and in particular
of his right under Article 5 (Art. 5) to liberty and security of person.
It follows that this part of the application is manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2).
5. In so far as the applicant further alleges that during
his hospitalisation he was subjected to inhuman treatment contrary to Article 3
(Art. 3) of the Convention, he has not shown that he exhausted any remedies.
This part of the application must accordingly be rejected under Article 27
para. 3 (Art. 27-3) in conjunction with Article 26 (Art. 26) of the Convention.
6. The applicant finally complains under Article 8 (Art. 8) of the
Convention that a letter addressed to him by the Secretariat was
withheld by his guardian. The Commission recalls that complaints
concerning interference with an applicant's correspondence with the Commission
must be considered under Article 25 para. 1 (Art. 25-1) in fine of the
Convention providing that a High Contracting Party who has recognised the right
of individual petition undertakes "not to hinder in any way the effective
exercise of this right". The Commission finds, however, that the applicant was
not in fact prejudiced, in the presentation of his case to the Commission, by
the withholding of the said letter.
For these reasons, the Commission
1. DECLARES THE 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.
Deputy Secretary to the Commission President of the Commission
(J. RAYMOND) (C.A. NØRGAARD)