THE FACTS -------------------------------------------------------------------- (1) A partial decision given by the Commission on 14th February 1966 has not been published. -------------------------------------------------------------------- Whereas the facts presented by the Applicant - excluding those which relate to the complaints already rejected by the Commission - may be summarised as follows: The Applicant is a German citizen, born in 1929 and at present living at Lübeck. He states that on .. November 1964, it came to his knowledge that two South Tyrolese were planning to place a suitcase containing a bomb in an express train (Brenner Express) bound for Italy, where the bomb was to explode during the night between .. and .. November. The two men were acting from political motives, and the direct reason was that certain elections were to take place on .. November 1964 in the province of Bolzano. He further states that he tried to persuade the two men to refrain from their action, and when this attempt failed, he was anxious to prevent in some other way the very serious consequences which would be the result of the explosion. He decided, however, not to inform the Austrian authorities, since he considered that certain Austrian officials might not be willing, for political reasons, to prevent the explosion; he chose to go to Italy in the same train as the bomb and to inform the Italian authorities as soon as he had crossed the frontier. He managed to inform the Italian authorities one hour before the explosion was to take place and serious damage was thereby avoided; nevertheless, the authorities did not manage to prevent damage to a railway carriage, although, in the Applicant's opinion, this could also have been avoided. The Applicant submits that, on .. December 1964, he was arrested in Italy by the Austrian police and that the Italian authorities were unaware of his arrest. This action taken by the Austrian authorities outside Austrian territory amounts, in his opinion, to kidnapping. He states about this incident that he travelled in a train to the Brenner railway station in Italy, that he was there taken out of the train and kept about twenty minutes in the office of the Austrian passport authorities; that, shortly before the train left, he was obliged to return to the train with an Austrian police officer and to go into a service compartment of the police; that the Austrian officials drew the curtains of the compartment in order to search the Applicant; that no Italian official was aware of these events, although they all took place on Italian territory; and that he was taken in the train to Austria. In Austria, he was kept in detention on remand (Untersuchungshaft) under suspicion of having violated the Austrian Explosives Act (Sprengstoffgesetz). Although he declared that he had not been involved in the plans to blow up the train, he was not released and he states that he was told that nothing would have happened to him if he had informed the Austrian, and not the Italian, authorities of the plans of the two South Tyrolese. His appeal regarding his detention was rejected on .. December 1964, by the Judges' Chamber of the Regional Court (Ratskammer des Landesgerichts) of Innsbruck and, on appeal, on .. January 1965, by the Court of Appeal (Oberlandesgericht) of Innsbruck. Subsequent requests for release were rejected by the Regional Court of Innsbruck on .. April and .. July 1965. He also asked the Supreme Court (Oberster Gerichtshof) that his case should be dealt with in another "Bundesland", where the authorities would be more impartial in regard to the political issue which formed the background of his case. This petition as well as another petition to the Minister of Justice was, however, unsuccessful. The Applicant states that subsequently he was charged with an offence against the Explosives Act and that the trial against him took place at Graz on .. November 1965. On the same day, he was sentenced to 18 months severe imprisonment, although the jury was not unanimous. He further states that as he had not sufficient money to oppose the political interests which were involved in the case and also in view of the fact that he had already spent 12 months in detention on remand, he declared himself ready to accept the judgment without, however, admitting his guilt. He adds that during the trial, a certain Polizei-Oberrat Dr. A admitted that X. had been arrested on Italian territory and that the arrest had taken place on Dr. A's initiative. The Applicant served his sentence in a prison at Graz and was released in June 1966. The Applicant alleges - that he was unlawfully arrested by Austrian police on Italian territory, - that, as a result of the circumstances of his arrest, his subsequent detention in Austria was also unlawful. He invokes Article 5, paragraphs (1) (c), (4) and (5), of the Convention and emphasises that, according to Article 5, paragraph (1) (c), arrest and detention must be lawful. Proceedings before the Commission Whereas, on 14th February 1966, the Commission, while declaring certain other complaints inadmissible, decided in accordance with Rule 45, paragraph (3) (b), of its Rules of Procedure, to give notice of the allegations set out above to the Austrian Government and to invite it to submit its observations on admissibility; Whereas the Government submitted its observations on 14th April 1966; Whereas the Applicant's observations in reply which are dated 22nd April 1966, were received on 5th May 1966. Submissions of the Parties Whereas the submissions of the Parties may be summarised as follows: The Government submitted that, on the morning of .. November 1964, an explosion, which caused considerable damage to property, occurred in the railway station area at Brixen, South Tyrol, in the luggage van of the Brenner Express train which had come in from Austria. It appeared that explosives had been contained in a suitcase which an unknown man had registered at Innsbruck for delivery in Italy. It was also found out that four people, among them the Applicant, had been involved in the making of the explosive. At that time, the Applicant's whereabouts were not known, but on .. December 1964, the Austrian border police officer on duty at Brenner station, in the course of his routine check of the Alpen Express, noticed the Applicant whom he knew to be wanted by the authorities and who intended to go to Innsbruck in the same train. He asked the Applicant to accompany him to the office of the Austrian border police for an examination of his passport. Shortly before the train was due to leave, the Applicant was given permission to travel on to Austria. In the train, between Brennersee and Gries, i.e. on Austrian territory, the Applicant was told that he was under arrest. Consequently, his arrest took place in Austria, and not in Italy. As regards the exercise by Austrian border police and customs authorities of official functions at the Austro-Italian border in the Brenner area, the Government referred to the agreement signed by Austria and Italy on 22nd October 1947. This agreement, described as a "modus vivendi", authorises Austria to provide border control services at Brenner station. For that purpose, premises are at the disposal of the Austrian authorities, including the police, and, according to the agreement, Austria is expressly authorised to maintain police services at the station. The Government further submitted that the Applicant had not exhausted the domestic remedies within the meaning of Article 26 of the Convention. It is true that in December 1964 and January 1965, he appealed against his detention, but in these proceedings he did not argue that he had been arrested unlawfully in Italy. Even if he had asserted the illegality of his arrest at a later date, namely, in his applications which were rejected by the Regional Court in April and July 1965, the requirements of Article 26 would not be satisfied, since an appeal from the decisions of the Regional Court could have been lodged with the Court of Appeal. Moreover, the decision of .. July 1965, is irrelevant to the question whether or not Article 26 has been satisfied, since that decision was given after the Applicant had lodged his Application with the Commission. By way of conclusion, the Government requested that the Application should be declared inadmissible for non-exhaustion of domestic remedies or, alternatively, as being manifestly ill-founded. The Applicant maintained, in his reply, that he had been arrested at Brenner station, and not in the train between Brennersee and Gries. In support of his statement in this regard, he stated that he was compelled by Austrian police officers to continue in the train to Austria and he also referred to the reply given at the trial by the witness Polizei-Oberrat Dr. A to a question put to him by the Applicant's lawyer. The lawyer asked the following question: "Supposing that the accused X was an Italian agent as you believed or still believe, Dr. A, how can you explain that he let your people arrest him at Brenner station, that is on Italian territory?" Dr. A replied: "The accused had no possibility of escaping at the station, as we had taken appropriate measures and watched him carefully". As regards exhaustion of domestic remedies, the Applicant stated that he had not studied Austrian law and had no one to inform or advise him. He tried, however, to appeal to the Investigating Judge and subsequently to the Regional Court and the Court of Appeal. He also approached the Supreme Court in Vienna but received the reply that only the Courts of Innsbruck were competent. Finally, he wrote to the Commission, hoping to find justice before an international court where there is no prejudice based on national or provincial feelings. THE LAW Whereas the Applicant alleges that his arrest was unlawful as it took place on Italian territory, and that, as a result, his subsequent detention on remand was also unlawful; Whereas Article 26 (Art. 26) of the Convention provides that the Commission may only deal with a matter after all domestic remedies have been exhausted according to the generally recognised rules of international law; Whereas, in so far as the Applicant alleges that his arrest was unlawful, the Commission has taken into consideration, although it was not submitted by the Respondent Government, the fact that, according to Article 144 of the Austrian Federal Constitutional Act (Bundes-Verfassungsgesetz), the Constitutional Court (Verfassungsgerichtshof) is competent to decide on appeals from decisions (Bescheide) by the administrative authorities in regard to alleged violations of constitutional rights; Whereas, according to a constant jurisprudence in Austria, the Constitutional Court is also competent to decide on appeals regarding 'factual' official acts (faktische Amtshandlungen) by the authorities, in so far as these acts have allegedly violated constitutional rights; Whereas the Austrian Act on the Protection of Personal Freedom (Gesetz zum Schutze der persÖnlichen Freiheit) which has the status of a constitutional Act contains provisions regarding the conditions on which a person may be arrested; add whereas the physical arrest of a person is, according to Austrian jurisprudence, apparently to be considered as a 'factual' official act; Whereas it follows that the Constitutional Court would have been competent to examine whether or not the Applicant had been lawfully arrested by the Austrian authorities; Whereas, by failing to appeal to the Constitutional Court, the Applicant has not, in regard to his arrest, exhausted the domestic remedies within the meaning of Article 26 (Art. 26); Whereas, in so far as the Applicant alleges that his subsequent detention on remand was unlawful as a result of his unlawful arrest, it appears that the Applicant lodged an appeal (Haftbeschwerde) regarding his detention which, on .. December 1964, was rejected by the Judges' Chamber of the Regional Court and that his appeal from that decision was rejected on .. January 1965, by the Court of Appeal at Innsbruck; Whereas the Government has stated that in these proceedings the Applicant did not argue that he had been unlawfully arrested in Italy; whereas the Applicant has not contested this statement by the Government; Whereas the Applicant subsequently submitted two requests for his release from detention which were rejected on .. April and .. July 1965, by the Regional Court of Innsbruck; whereas it appears from these decisions that, according to Article 194, paragraph 2, of the Code of Criminal Procedure, no appeal to the Court of Appeal was available; Whereas, however, it remains to be examined whether in these two requests for release the Applicant invoked the alleged fact that he had been arrested on Italian territory; whereas neither the Government nor the Applicant himself has made any clear statement in this regard; whereas the decisions of .. April and .. July 1965, contain no indication that this point had been raised by the Applicant in the proceedings concerned; Whereas, consequently, the Applicant has not shown that, in his appeals or applications relating to his detention, he made the particular allegation which he subsequently raised before the Commission; whereas the Commission concludes that the Applicant has not, in regard to his detention, exhausted the domestic remedies within the meaning of Article 26 (Art. 26). Now therefore the Commission declares this Application INADMISSIBLE.