F I N A L
AS TO THE ADMISSIBILITY OF
Application No. 10802/84
by P. and P.
against Austria
The European Commission of Human Rights sitting in private
on 8 May 1989, the following members being present:
MM. S. TRECHSEL, Acting President
F. ERMACORA
E. BUSUTTIL
G. JÖRUNDSSON
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
G. BATLINER
H. VANDENBERGHE
Mrs. G.H. THUNE
Sir Basil HALL
Mr. C.L. ROZAKIS
Mrs. J. LIDDY
Mr. L. LOUCAIDES
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
23 September 1983 by P. and P. against Austria and registered on 31
January 1984 under file No. 10802/84;
__________________________
* Taking into account proposed amendments of Mr. Trechsel to the text
as distributed during the May session. These amendments are marked in
the margin.
Having regard to:
- the Commission's partial decisions of 13 May 1987
and 15 December 1988;
- the Government's observations of 27 July 1987 and
the applicants' observations in reply of 23 September 1987;
- the information submitted by the Government on
16 December 1987 and the applicants' comments thereon
of 3 February 1988;
- the parties' submissions at the hearing on 8 May 1988;
Having deliberated;
Decides as follows:
THE FACTS
The applicants are Austrian citizens born in 1945 and 1952
respectively. Both are represented by Mr. Reinhard Peters, a German
citizen residing in Munich, Federal Republic of Germany.
Certain complaints of the applicants were rejected by the
Commission's partial decisions of 13 May 1987 and 15 December 1988.
As regards the remaining parts of the application, the facts agreed
between the parties may be summarised as follows:
I. The criminal proceedings against the first applicant
On the basis of a warrant of arrest issued by the Regional
Court (Landesgericht) of Klagenfurt on 12 November 1982, the first
applicant was arrested in Klagenfurt on 20 November 1982. The warrant
was based on the suspicion of his having committed various criminal
offences (aggravated fraud, professional burglary, forgery and
suppression of documents, professional receiving of stolen goods, and
illegal possession of firearms) and it referred to a danger of
absconding, of collusion and of repetition under Section 175 para. 1,
sub-paras. 2-4 of the Code of Criminal Procedure (Strafprozessordnung).
On 21 November 1982 the first applicant was brought before an
investigating judge in accordance with Section 179 para. 1 of the Code
of Criminal Procedure, i.e. the judge on duty (Journalrichter) Dr. A.
He informed the first applicant of the reasons for the arrest. The
first applicant denied having committed the above criminal offences,
except the offence of illegal possession of firearms. The merits of
the case were not discussed.
Also on 21 November 1982 the investigating judge competent for
the first applicant's case, Dr. K, ordered the transfer of the first
applicant to the Vienna Regional Court for Criminal Affairs
(Landesgericht für Strafsachen) which had issued a warrant of arrest
against this applicant on 20 November 1982, on the suspicion of his
having participated in an armed robbery in Vienna. The Klagenfurt
proceedings were joined to those of the Regional Court of Vienna.
However, on 20 January 1983 they were severed again and referred back
to the Regional Court of Klagenfurt. The first applicant was detained
on remand in the prison of the Vienna Regional Court from 22 November 1982
until 24 February 1983.
On 25 February 1983, the investigating judge of the Regional
Court of Klagenfurt who was now competent, Dr. St, ordered the opening
of a judicial investigation (Voruntersuchung) against the first
applicant, and his detention on remand in the prison of this Court.
The warrant of arrest based on Section 180, para. 1 and para. 2
sub-paras. 1 - 3 (danger of absconding, collusion and repetition) was
brought to his knowledge by judge Dr. St on the same day.
On 23 May 1983 the first applicant challenged judge Dr. St
on the ground of bias. However, on 26 May 1983 the President of
the Regional Court of Klagenfurt rejected this challenge as being
unsubstantiated.
On 10 June 1983 the investigating judge made a request under
Section 193 para. 2 of the Code of Criminal Procedure for the
prolongation of the first applicant's detention on remand beyond the
statutory time-limit of six months. On 16 June 1983 the Graz Court of
Appeal (Oberlandesgericht) acceded to the request, authorising
detention for a maximum period of nine months, having regard to the
volume and complexity of the judicial investigation. On 7 July 1983
the Review Chamber (Ratskammer) of the Regional Court of Klagenfurt
ordered the first applicant's continued detention, on the grounds of
danger of absconding and repetition. The first applicant lodged an
appeal against this decision.
On 19 July 1983 the competent public prosecutor submitted an
indictment charging the first applicant with the offences of receiving
stolen goods and illegal possession of firearms. He requested that
the remaining charges be severed as the investigation had not been
concluded in this respect (two of the charges concerned - suppression
of documents and one case of fraud - were subsequently dropped). The
first applicant raised an objection (Einspruch) against the indictment.
Pending the decision on this objection, the investigating
judge requested a further prolongation of the first applicant's
detention on remand. The Graz Court of Appeal decided on 18 August 1983
to authorise his detention on remand for a maximum period of ten months
and to reject his appeal against his continued detention and his
objection against the indictment.
The trial was to be opened on 14 September 1983 before the
Regional Court of Klagenfurt, sitting with two professional judges
(Drs. K and A) and two lay assessors (Schöffengericht). The fact that
the two professional judges had earlier acted as investigating judges
(Dr. K had been the competent investigating judge until 31 December 1982,
Dr. A had been the judge on duty at the applicant's first hearing on
21 November 1982), was raised with the first applicant by the
presiding judge, Dr. K, on 31 August and 1 September 1983. He
informed this applicant that the two judges were disqualified from
participating in the trial by virtue of Section 68 para. 2 under
sanction of nullity as provided for in Section 281 para. 1 No. 1 of
the Code of Criminal Procedure. However, the first applicant declared
that he would not lodge a plea of nullity on this account; he further
observed that he did not consider it necessary to consult his defence
counsel on this question. The trial was held with the participation
of the above two professional judges on 14 September and 7 October 1983.
The defence did not raise any objection to the composition of
the Court. In particular, it did not invoke Section 68 para. 2 of the
Code of Criminal Procedure on the ground that the judges, Drs. K and A,
had previously acted as investigating judges.
Nor did the defence draw the Court's attention to the fact
that the first applicant had in the meantime instituted criminal
proceedings against the investigating judge, Dr. St, who, according
to the first applicant, had committed an abuse of public powers in
connection with the investigation. In those proceedings against the
investigating judge the applicant had, on 23 September 1983,
challenged all judges of the Regional Court as being biased, but at
the trial on 7 October 1983 the defence did not refer to this
circumstance and to the fact that the challenge, which also concerned
Drs. K and A, had not yet been determined. (A decision on this matter
was only taken on 10 November 1983 by the Graz Court of Appeal. As
all judges of the Regional Court of Klagenfurt, being colleagues of
Dr. St, had declared themselves to be biased in the proceedings
against the latter judge, the challenge was allowed and the case
referred to the Regional Court of Leoben. The proceedings in question
were later discontinued by a decision of the Review Chamber of that
Court.)
On 7 October 1983, the Regional Court of Klagenfurt convicted
the first applicant of qualified receiving of stolen goods under
Section 164 para. 3 of the Penal Code (Strafgesetzbuch) and of illegal
possession of firearms under Section 36 of the Firearms Act
(Waffengesetz). It sentenced him to three years' imprisonment. The
periods of the first applicant's detention on remand in Vienna and
Klagenfurt and of an earlier detention in Innsbruck (17 July -
10 September 1982) were deducted from the sentence. Two further
periods of detention, however, were not taken into account because the
relevant criminal proceedings were still pending before the Regional
Court of Salzburg.
The first applicant lodged a plea of nullity (Nichtigkeits-
beschwerde) against his conviction and appealed from the sentence
(Berufung). However, these remedies were rejected by the Supreme
Court (Oberster Gerichtshof) on 29 February 1984.
The Supreme Court, dismissing the plea of nullity, held in
particular that the judgment was not attended with nullity because of
the participation of biased judges. Insofar as the first applicant had
referred to his undetermined challenge of all judges of the Regional
Court prior to the trial, the Supreme Court observed that he had not
requested a decision at the trial in which case the Regional Court
would have been obliged to take an interim decision. The fact that
the challenge of the whole Regional Court of Klagenfurt was
subsequently allowed in the criminal proceedings against the
investigating judge, Dr. St, did not justify the conclusion that the
judges of the Regional Court were also biased in the criminal
proceedings against the applicant. The fact that the two professional
judges, Drs. K and A, should, in principle, have been excluded from
the trial by virtue of Section 68 para. 2 of the Code of Criminal
Procedure because they had been involved in the investigation could
not be invoked by the applicant because he had prior to the trial
expressly renounced challenging these judges.
The Supreme Court further rejected the first applicant's
complaints concerning alleged inconsistencies of the judgment
regarding his income, his co-operation with Italian criminals, and
his knowledge that the goods received stemmed from a robbery. The
Supreme Court also confirmed the first applicant's sentence, rejecting
his appeal (Berufung).
The above criminal proceedings pending before the Regional
Court of Salzburg were discontinued on 24 May 1984 in view of the
first applicant's conviction in the above proceedings before the
Regional Court of Klagenfurt. The first applicant then applied for a
deduction of the earlier periods of detention on remand (in Innsbruck
from 19 September 1979 to 23 May 1980, and in Klagenfurt from 28 March
to 26 May 1981) from his sentence. The Regional Court of Klagenfurt
rejected this request by a decision of 24 January 1985 finding that
the conditions of Section 38 of the Penal Code were not fulfilled as
the relevant detention periods were neither directly related to the
case at issue nor imposed subsequently to the acts of which the first
applicant was convicted. However, at the same time it applied to the
Graz Court of Appeal for a supplementary mitigation of the applicant's
penalty (nachträgliche Strafmilderung) under Section 410 of the Code
of Criminal Procedure. By a decision of 14 February 1985 the Court of
Appeal acceded to the request and reduced the first applicant's
sentence from three years' to two years and nine months'
imprisonment.
II. Censorship of correspondence between the two applicants
During their detention on remand the applicants corresponded
with each other. At some time in the early summer of 1983 the
investigating judge censored a letter addressed by the second
applicant to the first applicant by crossing out and making illegible
certain passages. These passages were not reconstrued in the
subsequent proceedings, but according to the applicants they contained
critical remarks on prison officers in the following terms:
(German)
"Ich frage mich, ob in diesem Affenhaus noch jemand
normal ist .... Im Leben sind es Würstchen, hier sind
sie, glauben sie, Götter. Einige von den Beamten sind
ja Gäste wie wir. Dauernd wird hier spioniert bei den
Frauen, züchtige Spanner, dieses Affenpack! Ich hasse
es so!"
(Translation)
"I ask myself whether there is anybody left in this
ape house who is still normal ... In normal life they
are miserable creatures, here they think they are gods.
Some of the officers are guests like us. They are for
ever spying on the women, these apes are proper peeping
toms! I hate it!"
The second applicant complained to the Review Chamber of the
Regional Court. She claimed that the form of censorship was unlawful as
Section 187 para. 2 of the Code of Criminal Procedure provided only
for the stopping of letters but not for making them illegible. She
further submitted that censorship was permissible only in respect of
letters likely to endanger the aim of the detention, or letters
suspected of involving a criminal offence except an offence liable to
prosecution only at the request of the injured person. In the
applicant's view the relevant passages in the letter neither
endangered the aim of her detention nor did they constitute a public
prosecution offence.
The Review Chamber, after having heard the prosecution and
having obtained a report of the investigating judge, rejected the
second applicant's complaint on 26 July 1983. It observed that the
crossing out of certain passages in the letter was a less severe
measure than its stopping to which the investigating judge was
entitled by virtue of Section 187 para. 2 of the Code of Criminal
Procedure. This measure was therefore implied in the investigating
judge's powers and did not infringe the applicant's rights. The
censorship had been justified as the passages in question, being
described by the investigating judge in her report on the incident as
"jokes of an insulting nature against prison officers", had
constituted the offence of defamation of officials on duty (Section
111 para. 1 in conjunction with Section 117 para. 2 of the Penal
Code), an offence which could be taken as the basis for a measure
under Section 187 para. 2 of the Code of Criminal Procedure.
Following the communication of the present application to the
respondent Government, the Attorney General's office (Generalprokuratur)
lodged a plea of nullity for safeguarding the law (Nichtigkeits-
beschwerde zur Wahrung des Gesetzes) in respect of the above decision
of the Review Chamber of the Regional Court of Klagenfurt. It was
claimed that the decision was unlawful because the applicant's remarks
could not possibly have constituted an offence against the honour of
prison officers "on duty" ("während der Ausübung seines Amtes oder
Dienstes"), i.e. a public prosecution offence to be prosecuted with
the consent of the officials concerned (Section 117 para. 2 of the
Code of Criminal Procedure), because such an offence could only be
committed "from person to person" and not in a letter. If there was
an offence against the honour of prison officers, it was liable to
prosecution only at the request of the injured persons and thus did
not justify a measure of censorship under Section 187 para. 2 of the
Code of Criminal Procedure. Unlawfulness of the measure was further
claimed on the ground that the latter provision merely authorised the
stopping of a letter, but not the crossing out of certain passages
therein.
On 20 October 1987 the Supreme Court, after having held a
public hearing in the presence of a representative of the Attorney
General's office, but in the absence of the second applicant, rejected
the argument that there was no public prosecution offence, but found a
violation of the law as to the form of censorship. Assuming that the
crossed-out passages actually contained "jokes of an insulting nature
against prison officers" as found by the investigating judge, it was
justified to suspect the second applicant of an offence, namely the
offence of insult (Beleidigung) under Section 115 of the Penal Code
(rather than defamation under Section 111). If committed against an
official on duty this offence was to be prosecuted ex officio (with
the consent of the official in question) under Section 117 para. 2 of
the Penal Code. In the present case the possible offence would have
been committed against prison officers "on duty" because the offence
would have been completed by handing the letter to a prison officer
for the purpose of submitting it to the investigating judge and this
forwarding procedure would necessarily have created the possibility
that the insulting contents of the letter became known to several
prison or court officers on duty. This implied that Section 117
para. 2 of the Penal Code was applicable and the measure therefore
was covered by Section 187 para. 2 of the Code of Criminal Procedure.
However, this provision only authorised the investigating judge to
stop a letter, but not to cross out passages. In this latter respect
the investigating judge and the Review Chamber had adopted an unlawful
approach contrary to the ratio legis. The investigating judge had not
taken a "less severe measure" implied in her powers under Section 187
para. 2, but a different measure which interfered with the interests
of the prosecution authorities and of the officials concerned to have
criminal proceedings instituted against the second applicant on
account of her remarks in the letter. It was therefore sufficient to
state that the law had been violated. The second applicant was not
aggrieved and therefore could not complain of the rejection of her
appeal by the Review Chamber.
COMPLAINTS
1. The first applicant complains that the criminal proceedings
against him in Klagenfurt were not conducted by an impartial court and
therefore infringed Article 6 para. 1 of the Convention. He observes
that he had challenged all judges of the Regional Court prior to the
trial which nevertheless took place before the challenge was decided
upon. Moreover, the professional judges sitting at the trial had been
involved in the investigation and he had not validly renounced a trial
by an impartial tribunal.
The first applicant also alleges that the trial was unfair
insofar as it was based on an investigation by a judge who
subsequently declared himself to be biased. He submits that the
acts of the investigating judge should have been considered as void.
The Regional Court further acted unfairly and violated the presumption
of innocence in that it drew certain conclusions from unproven
assumptions regarding in particular the sources of the applicant's
income, his contacts with Italian criminals, and finally his knowledge
of the origin of the goods received. Thus his conviction for
qualified receiving of stolen goods lacked a legal basis. The
judgment contained no statements regarding the form of his guilt and
the professional character of his actions. In this respect he invokes
Article 7 of the Convention.
The first applicant further complains that certain detention
periods were not counted as part of his sentence. He notes that the
sentence was subsequently reduced by three months in view of the
detention periods in question, but submits that these periods had in
fact been much longer and that Section 38 of the Penal Code which
requires that all previous detention periods should be counted towards
the sentence was thus violated. For this reason he considers his
detention as contrary to Article 5 of the Convention.
2. Both applicants complain that the censorship of their
correspondence during their detention on remand infringed Article 8 of
the Convention both as regards the object pursued and the method
applied. The law allows censorship only in respect of a letter which
constitutes a public prosecution offence, but not merely a private
prosecution offence such as insulting an official. Also it is
allegedly unlawful and contrary to Article 8 that the letter was read
by prison officers, as assumed by the Supreme Court. The law
furthermore only allows the stopping of letters, but not the deletion
of passages. This made it impossible to examine the reasons for the
censorship, and therefore the applicants were allegedly deprived of an
effective remedy contrary to Article 13 of the Convention.
PROCEEDINGS
The application was introduced on 23 September 1983 and
registered on 31 January 1984.
On 13 May 1987 the Commission rejected certain complaints of
the first applicant by a partial decision. As regards the applicants'
remaining complaints, the Commission decided to give notice of the
application to the respondent Government and to invite them, in
accordance with Rule 42 para. 2 (b) of the Rules of Procedure, to
submit observations in writing on the admissibility and merits, inter
alia, concerning the first applicant's complaint that two professional
judges had taken part in his trial who previously had acted as
investigating judges as well as the complaint of both applicants
relating to the censorship of their correspondence.
The Government submitted their observations on 27 July 1987.
The applicants submitted observations in reply on 23 September 1987.
On 16 December 1987 the Government submitted further
information concerning the Supreme Court's decision of 20 October 1987
on the Attorney General's plea of nullity for safeguarding the law.
On 3 February 1988 the applicant submitted comments on this decision.
On 15 December 1988 the Commission rejected certain further
complaints of both applicants by a partial decision while reserving
the decision concerning the first applicant's complaints relating to
the criminal proceedings against him and his subsequent detention, and
the complaints of both applicants concerning the censorship of a
letter. In this respect the Commission decided to invite the parties,
in accordance with Rule 42 para. 3 (b) of its Rules of Procedure, to
submit further observations orally at a hearing on admissibility and
merits.
The hearing took place on 8 May 1989. The parties were
represented as follows:
For the Government
Ambassador Helmut Türk, Legal Adviser of the Ministry
for Foreign Affairs, Vienna
Mr. Wolf Okresek, Adviser, Federal Chancellery, Vienna
Ms. Irene Gartner, Adviser, Federal Ministry of Justice, Vienna
For the applicants
Mr. Reinhard Peters, Munich
Ms. Anne Marie Schwarz, Adviser
THE LAW
a) As to the complaints of the first applicant
regarding his trial and detention
1. The first applicant alleges violations of Article 6 para. 1
(Art. 6-1) of the Convention in several respects. Insofar as
relevant, this provision reads as follows:
"1. In the determination of ... any criminal charge against
him, everyone is entitled to a fair ... hearing ... by an
independent and impartial tribunal established by law. ..."
The first applicant complains that two professional judges
of the Regional Court, before which he was tried, had earlier acted
as investigating judges and that for this reason the Court was not
"impartial". He further observes that by virtue of Section 68 para. 2
of the Austrian Code of Criminal Procedure the judges were
disqualified to sit and that therefore the Court was not a "tribunal
established by law".
The Government claim that the first applicant has not
exhausted the domestic remedies because he failed to challenge the
judges at the trial and to lodge a plea of nullity on the ground that
they had previously acted as investigating judges. However, the
Commission notes the Supreme Court's finding that the taking of these
remedies would not have been of any use as the first applicant
previously waived his right to challenge the judges on this ground.
The Commission considers that in these circumstances the remedies
indicated by the Government would not have been effective, and that
for this reason the first applicant must be absolved from using them.
It follows that this complaint cannot be declared inadmissible, under
Article 27 para. 3 in conjunction with Article 26 (Art. 27-3+26)
of the Convention, for non-exhaustion of domestic remedies.
The question nevertheless arises whether the first applicant
can claim to be a victim, in the sense of Article 25 (Art. 25), of a
violation of his rights under Article 6 (Art. 6) of the Convention
having waived objections against the participation of the disqualified
judges. In this respect the Commission recalls that a person may
validly waive invoking the guarantees under Article 6 (Art. 6) of the
Convention (cf. No. 1197/61, Dec. 5.3.62, Collection 8 pp. 68, 73; No.
6903/75, Deweer v. Belgium, Comm. Report 5.10.78, paras. 55 et seq.,
confirmed by Eur. Court H.R., Deweer judgment of 27 February 1980,
Series A no. 35, p. 25, paras. 49 et seq.; No. 9177/80, Dec. 6.10.81.,
D.R. 26 pp. 255, 258). However, the Commission also notes the first
applicant's submission that his waiver was obtained in an unlawful
procedure and was therefore invalid. The Commission does not consider
it appropriate to examine the validity of the waiver at the present
stage of the proceedings.
As regards the participation of two judges in the first
applicant's trial who had earlier acted as investigating judges, the
Commission recalls that such participation may raise an issue
concerning the impartiality of the court (cf. in particular Eur.
Court H.R., De Cubber judgment of 26 October 1984, Series A no. 86;
No. 9976/82, Ben Yaacoub v. Belgium, Comm. Report 7.5.86; and e
contrario, No. 10486/83, Hauschildt v. Denmark, Comm. Report 16.7.87).
The Government submit in the present case that the functions exercised
by the two professional judges of the Regional Court in their previous
capacity as investigating judges were of a limited nature. This is
contested by the first applicant who refers to the wide powers conferred
upon investigating judges in Austria and who argues that the presiding
judge, Dr. K., had a profound knowledge of his case.
The Comission has considered these arguments, but finds that
the first applicant's above complaints cannot be rejected at this
stage as being manifestly ill-founded within the meaning of Article 27
para. 2 (Art. 27-2) of the Convention. Having regard to the Court's
De Cubber judgment of 26 October 1984 (Eur. Court H.R., Series A no.
86), it finds that these complaints raise complex issues of fact and
law regarding the application of Article 6 para. 1 (Art. 6-1) of the
Convention which require a determination on the merits.
The applicant has also complained that the Regional Court was
not impartial as required by Article 6 para. 1 (Art. 6-1) of the Convention
because the trial took place although he had previously challenged the
judges of the Court and this challenge had not yet been determined.
The Commission notes, however, that the challenge was made in criminal
proceedings instituted by the applicant against the investigating
judge, Dr. St., and that in the present case the applicant's plea of
nullity based on this ground was rejected because the applicant had
not referred to that challenge at the trial. The Government conclude
from this that the applicant has not exhausted the domestic remedies
in this respect as required by Article 26 (Art. 26) of the Convention.
The applicant objects that at the trial he did not know that the
judges concerned had declared themselves to be biased in the case of
Dr. St.
The Commission considers that the whole issue is so closely
related to the above complaint concerning the disqualification of the
same judges because they had previously acted as investigating judges
that it cannot be separated. This part of the application must
therefore also be considered on the merits.
2. The first applicant submits that the trial was unfair because
the investigating judge, Dr. St., had admitted to have been biased.
The investigation should therefore have been considered as void.
However, Dr. St. had not declared himself to be biased in
relation to the investigation in the applicant's case, but in the
context of the above criminal proceedings instituted against him by
the first applicant. The Commission finds that this does not justify
the conclusion that he was also biased in the criminal proceedings
against the applicant at the time when he conducted the investigation
against him. A challenge for bias was in fact rejected by the
President of the Regional Court of Klagenfurt on 26 May 1983. The fact
that the applicant later instituted criminal proceedings against
Dr. St. equally does not show that the investigation was carried out
improperly or that Dr. St. was biased. It follows that the trial court
did not act unfairly when using the result of the investigation.
There is thus no appearance of unfairness of the proceedings
in this respect, and this part of the application must therefore be
rejected as being manifestly ill-founded within the meaning of
Article 27 para. 2 (Art. 27-2) of the Convention.
4. The first applicant further complains that the Regional Court
acted unfairly and violated the presumption of innocence in that it
drew certain conclusions from allegedly unproven assumptions. Insofar
as the judgment did not contain statements regarding the form of his
guilt and the professional character of his actions the judgment
allegedly lacked a legal basis and violated Article 7 (Art. 7) of the
Convention.
With regard to the judicial decisions complained of, the
Commission recalls that, in accordance with Article 19 (Art. 19) of the
Convention, its only task is to ensure the observance of the
obligations undertaken by the Parties to the Convention. In
particular, it is not competent to deal with an application alleging
that errors of law or fact have been committed by domestic courts,
except where it considers that such errors might have involved a
possible violation of any of the rights and freedoms set out in the
Convention. The Commission refers, on this point, to its constant
case-law (see e.g. No. 458/59, Dec. 29.3.60, Yearbook 3 pp. 222/236;
No. 5258/71, Dec. 8.2.73, Collection 43 pp. 71, 77; No. 7987/77, Dec.
13.12.79, D.R. 18 pp. 31, 45). In the present case the Commission
finds that the first applicant's above complaints under Article 6
paras. 1 and 2 (Art. 6-1-2) and Article 7 para. 1 (Art. 7-1) of the
Convention have not been substantiated. These complaints are
therefore manifestly ill-founded within the meaning of Article 27
para. 2 (Art. 27-2) of the Convention.
5. The first applicant finally complains that certain periods of
detention on remand were not fully counted towards his sentence, and
he alleges a breach of Article 5 (Art. 5) of the Convention in this respect.
Insofar as relevant this provision reads as follows:
"1. Everyone has the right to liberty and security of
person. No one shall be deprived of his liberty save in
the following cases and in accordance with a procedure
prescribed by law:
(a) the lawful detention of a person after
conviction by a competent court;
...
(c) the lawful arrest or detention of a person
effected for the purpose of bringing him before the
competent legal authority on reasonable suspicion of having
committed an offence or when it is reasonably considered
necessary to prevent his committing an offence or fleeing
after having done so;
..."
The Commission observes that the prison sentence which the
first applicant had to serve constituted a lawful detention after
conviction by a competent court and was thus covered by Article 5
para. 1 (a) (Art. 5-1-a) of the Convention. This holds true both as
regards the original sentence imposing a prison term of three years
and as regards the subsequent reduced sentence of two years and nine
months.
The Convention does not require that periods of remand custody
should be counted towards the sentence. As regards the two detention
periods which were not fully taken into account in the first
applicant's revised sentence, the Regional Court found that Section 38
of the Penal Code did not apply as these detention periods were
neither directly related to the case at issue nor imposed subsequently
to the acts of which the first applicant was convicted.
In these circumstances there is no appearance that the first
applicant's detention following his conviction was unlawful. This
part of the application is therefore manifestly ill-founded.
b) As to the complaints of both applicants regarding
the censorship of a letter
6. Both applicants complain of the censorship of a letter
which the second applicant addressed to the first applicant. In this
respect they invoke Article 8 (Art. 8) of the Convention which reads
as follows:
"1. Everyone has the right to respect for his private
and family life, his home and his correspondence.
2. There shall be no interference by a public authority
with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic
society in the interests of national security, public safety
or the economic well-being of the country, for the
prevention of disorder or crime, for the protection of
health or morals, or for the protection of the rights and
freedoms of others."
The Commission notes that only the second applicant, being the
author of the letter, exhausted the domestic remedies, but the first
applicant was affected as well, being the addressee. The Commission
finds that, in the circumstances, he was absolved from exhausting the
domestic remedies which would have been identical to those taken by
the second applicant.
The Commission next notes the Supreme Court's judgment
of 20 October 1987 according to which the censorship was as such
justified although the form in which it was carried out was unlawful.
It further notes the Supreme Court's finding that the applicants
suffered no disadvantage as it would in any event have been possible
to stop the letter. This raises the question whether the applicants
can still claim to be victims, within the meaning of Article 25 of
the Convention, of the measure of censorship in question. The
Government deny this.
The Commission accepts that, by the Supreme Court's above
judgment, the applicants obtained redress in respect of their
complaint that the form of censorship had been unlawful because
Section 187 para. 2 of the Code of Criminal Procedure allows only the
stopping of letters, but not the crossing out of passages. However,
the applicants did not obtain redress insofar as they claimed that the
measure of censorship was in substance unjustified. In this respect
the applicants still can claim to be victims of their rights under the
Convention.
The Government submit that the measure of censorship in
question was justified under Article 8 para. 2 (Art. 8-2) of the
Convention as being lawful and necessary in a democratic society for
the prevention of disorder or crime, and for the protection of the
rights of others. The applicants deny this, stressing in particular
that the actual contents of the letter did not justify the censorship
and that the forwarding procedure as described by the Supreme Court
involved a further violation of Article 8 (Art. 8) in that it was
unlawful and unjustified to allow the mail of remand prisoners to be
read by prison officers.
The Commission has considered these arguments and finds that
the applicants' above complaints cannot be rejected at this stage as
being manifestly ill-founded. Having regard to the Court's Silver and
Others judgment of 25 March 1983 (Eur. Court H.R., Series A no. 61) it
finds that these complaints raise complex issues of fact and law
regarding the application of Article 8 (Art. 8) of the Convention
which require a determination on the merits.
7. The applicants finally complain that because of the particular
form of censorship the actual content of the letter in question could
not be established in the complaints procedure before the Review
Chamber in which they could not take part and that, for this reason,
their right under Article 13 (Art. 13) of the Convention to an
effective remedy before an national authority was violated. Article
13 (Art. 13) reads as follows:
"Everyone whose rights and freedoms as set forth in
this Convention are violated shall have an effective
remedy before a national authority notwithstanding that
the violation has been committed by persons acting in an
official capacity."
The Commission notes, however, that in its decision of
20 October 1987 the Supreme Court declared the particular form of
censorship applied in this case as having been unlawful. As the
applicants obtained redress in this respect, they can no longer claim
to be victims of a violation of Article 13 (Art. 13) based essentially
on the particular form of censorship applied. It is clear that apart
from this there existed a remedy whereby the justification of the
censorship could be reviewed. The fact that this remedy was
unsuccessful in the present case cannot be seen as a violation of
Article 13 (Art. 13). The applicants' complaint in this respect is
therefore manifestly ill-founded.
For these reasons, the Commission
1. DECLARES ADMISSIBLE, without prejudging the merits of the case,
a) the complaint of the first applicant that the Regional
Court which tried his case was not an "impartial tribunal
established by law";
b) the complaint of both applicants that the censorship of the
letter addressed by the second applicant to the first
applicant and its reading by prison officers were unjustified;
2. DECLARES INADMISSIBLE the remainder of the application.
Secretary to the Commission Acting President of the Commission
(H.C. KRÜGER) (S. TRECHSEL)