THE FACTS
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A partial decision of 1st April, 1966, has been published in Collection
of Decisions, Volume 19, page 95.
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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 an Austrian citizen, born in 1932 and at present
detained in the Stein prison.

On 8th October, 1965, the Regional Court for Criminal Cases
(Landesgericht für Strafsachen) in Vienna convicted the Applicant for
theft and sentenced him to six years' severe imprisonment. The Court
also ordered his subsequent internment in a labour institution
(Arbeitshaus).

On 11th October, 1965, the Applicant first wrote to the Commission,
complaining of his committal to a labour institution. The Commission's
Secretary replied to this letter on 18th October, 1965.

The Applicant complains that the authorities controlling his
correspondence forwarded to the press information about the contents
of these two letters of 11th and 18th October, 1965 and that articles
concerning this correspondence appeared in several Austrian newspapers
which also published his name.

He states that he complained of this to the Minister of Justice and
that his complaint was rejected on .. January, 1966.

He alleges a violation of Article 8, paragraph (2), of the Convention.

In support of his allegation, the Applicant has submitted a printed
article which, according to his information, had appeared in the
Austrian newspaper "Express" of 26th - 27th October, 1965. In this
article, it is stated:

"There is no forced labour in a labour institution. This was
established by the Commission of Human Rights in a letter to the Vienna
prisoner X who, in respect of his committal to an Austrian labour
institution, had invoked the provisions of the Convention on Human
Rights according to which, in his opinion, forced labour is forbidden.
In the information given to the prisoner, it is expressly stated that
the labour institution only serves the purpose of reforming the
prisoner. He should be brought back in this manner to a hard-working,
regular life. Consequently, the labour institution is not covered by
the provisions of the Convention which forbid forced labour."

The Applicant states that similar articles appeared in two other
newspapers, "Wiener Kurier" and "Kronen Zeitung".

A further newspaper article is available to the Commission (received
from the Information Service of the Council of Europe). In this
article, which appeared in the "Arbeiter-Zeitung" on 14th October,
1965, it is indicated that X had alleged before the Commission of Human
Rights that detention in a labour institution implied forced labour and
was therefore illegal. Indications were given about the offenses of
which X had been convicted and in regard to his complaint to the
Commission the following information was added:

"I am not in possession of the necessary means to pay a lawyer ...",
wrote X, in a manner calling for pity, in his latter of complaint to
Strasbourg. Then he got upset at the thought of being punished, in case
of refusal to work in the labour institution, with solitary
confinement, sleeping hard, and deprival of privileges. Moreover, the
prisoner only receives 25 Groschen an hour for his work. "Even if I
have had my shortcomings, I do wish to obtain my right", he concluded
his letter.

It was asserted at the Regional Court of Vienna that this letter will
be forwarded to the Commission of Human Rights although it contains
defamatory and incorrect statements ..."

Proceedings before the Commission

Whereas the proceedings before the Commission may be summarised as
follows:

By its partial decision of 1st April, 1966, the Commission declared
certain parts of the Application inadmissible and decided to invite the
Respondent Government, in accordance with Rule 45, paragraph 3 (b), of
the Commission's Rules of Procedure, to submit its observations on the
admissibility of the Applicant's complaint that the Austrian
authorities had violated his right to respect for his correspondence
within the meaning of Article 8 of the Convention.

The Government submitted its observations on 31st May, 1966, and the
Applicant replied by letter of 8th June, 1966.

The Commission resumed its examination of the case on 14th, 15th and
19th July, 1966, and decided to ask the Government to submit further
comments in regard to a number of specific points.

The Respondent Government submitted, on 27th September, 1966, the
comments requested by the Commission, and the Applicant replied by
letter of 9th October, 1966. The Applicant also made certain further
submissions dated 14th November, 1966.

The Commission continued its examination of the Application on 14th
December, 1966. On this occasion, the Commission considered it
essential to obtain certain further documents regarding the case and
instructed its Secretary to ask the Applicant to submit these documents
or, if necessary, to obtain them from the Government.

The Applicant subsequently informed the Commission that he was unable
to produce the documents concerned, but these were submitted on 1st
March, 1967, by the Respondent Government.

Submissions of the Parties

Whereas the submissions of the Parties may be summarised as follows:

I. Exhaustion of domestic remedies

The Government submitted that the Application was inadmissible on the
ground that the domestic remedies had not been exhausted within the
meaning of Article 26 of the Convention. In the Government's opinion,
there were two remedies which the Applicant ought to have exhausted,
namely, (a) appeal to the Constitutional Court (Verfassungsgerichtshof)
and (b) criminal charge (Strafanzeige).

(a) Appeal to the Constitutional Court

The Government submitted that the Applicant could have lodged a
constitutional appeal in accordance with Article 144 of the Federal
Constitutional Act (Bundes-Verfassungsgesetz). It was true that this
provision only provided for appeals from formal decisions (Bescheide)
of administrative authorities but, according to the consistent practice
of the Constitutional Court, not only decisions but also factual
official acts (faktische Amtshandlungen) could be challenged under
Article 144 of the Federal Constitutional Act. According to the
Government, the fact of communicating the contents of letters which had
become known to officials while performing their task of controlling
the correspondence of prisoners could, in accordance with the
consistent practice of the Constitutional Court, certainly be qualified
as a factual official act.

The Government further pointed out that the Convention was an integral
part of Austria's domestic legislation and had the status of a Federal
constitutional act. The Constitutional Court, it was true, had decided
that Articles 5, 6, 11 and 13 of the Convention were not
self-executing. Such a decision of the Constitutional Court did not
exist in regard to Article 8 of the Convention. The fact that the
Constitutional Court had not yet had to deal with this provision of the
Convention did not make any difference. Consequently, everybody could
be expected to institute, in accordance with Article 144 of the Federal
Constitutional Act, proceedings with the Constitutional Court for a
violation of Article 8 of the Convention and such proceedings could not
in advance be said to the hopeless. Consequently, before appealing to
the Commission, the Applicant ought to have submitted his complaint to
the Constitutional Court.

The Commission, on 19th July, 1966, decided to ask the Government for
further information as to whether a constitutional appeal had been
available to the Applicant in the circumstances of the present case.
Information was requested on two specific points. First, the Commission
had observed that, according to the Applicant, he did not know which
public authority he should consider responsible for the alleged
transmission of information to the press. The Commission therefore
wished to be informed whether in these circumstances it would have been
possible to lodge a constitutional appeal or whether there would have
been an obstacle by reason of the fact that the Applicant could not
bring proceedings against any particular authority. Secondly, the
Commission pointed out that the Applicant's correspondence had
apparently been censored by an official at the Regional Court for
Criminal Cases. Consequently, the Commission wished to know whether the
Applicant, if he considered that information had been given to the
press by an official at this Court, could have raised this allegation
before the Constitutional Court; or whether that Court would not have
been competent to deal with the allegation on the ground that it
concerned a court and not an administrative authority (see the wording
of Article 144 of the Federal Constitutional Act: "appeals against
decisions of the administrative authorities").

The Government, in its reply, pointed out that as a matter of
principle, the legal questions raised by the Commission could only be
finally answered by the Austrian courts themselves. The Government,
however, referred to a decision (Slg. 3062) in which the Constitutional
Court had pointed out that the administrative decision which an
Applicant alleged to have violated one of his constitutional rights
formed the subject of a complaint under Article 144 of the Federal
Constitutional Act. In the same decision the Constitutional Court had
added that it was immaterial if the complainant in his complaint named
the wrong authority. In such a case the Constitutional Court could ex
officio cite the authority which was in fact responsible for the
decision forming the subject of the complaint.

In proceedings under Article 144 of the Federal Constitutional Act a
factual official act was equivalent to a written administrative
decision (see Decision Slg. 1542 of the Constitutional Court). The
alleged transmission by a State official of the Applicant's
correspondence with the Commission could be regarded as a factual
official act within the meaning of the jurisprudence of the
Constitutional Court. In this context mention could be made of Decision
Slg. 2694, in which the Constitutional Court had ruled that the
publication by a press release of a specific measure taken by an
authority was a factual official act where the press release was not
ordered by written administrative decision, and that a complaint under
Article 144 of the Federal Constitutional Act could be lodged in such
a case.

Arguing from these decisions of the Constitutional Court, which were
in complete accord with the wording of Article 144 of the Federal
Constitutional Act, and of Article 82 of the Constitutional Court Act
of 1953, where it was not stipulated that the authority should
expressly be named, the Applicant could have resorted to the
Constitutional Court on the ground of the alleged violation of Article
8 of the Convention. In his complaint to the Constitutional Court, the
Applicant would have been obliged to name the official act which in his
view violated one of his constitutional rights. But it would not have
been absolutely necessary to name the State official or agency
responsible for the act in question. It would only have been necessary
- as, incidentally, in the present proceedings before the Commission
- to prove that the act concerned was a specific official act. In
compliance with its own Decision Slg. 3062, the Constitutional Court
would ex officio have cited the authority responsible for this act.

The Government further submitted that a complaint to the Constitutional
Court within the framework of proceedings under Article 144 of the
Federal Constitutional Act was not a priori excluded by the fact that
it was an official of the Regional Court who was alleged to have
violated Article 8 of the Convention. From the competence of the
Constitutional Court under Article 144 of the Federal Constitutional
Act acts of "jurisdiction" were excepted. But courts were active not
only in the field of jurisdiction but also in the field of
administration ("judicial administration" as provided by Article 87 of
the Federal Constitutional Act). To this extent the acts of a court did
come under constitutional jurisdiction and were subject to the
proceedings provided by Article 144 of the Federal Constitutional Act
(see for example Decision Slg. 3701 of the Constitutional Court).

The Applicant first maintained that under Austrian law he must, if an
appeal of his was dismissed, be informed orally or in writing to which
authority he could apply for the further protection of his rights. This
had not been done in the present case and he had therefore not been
aware of the possibility of appealing to the Constitutional Court.
Subsequently, he also contested that an appeal to the Constitutional
Court had been available and referred to a letter which he had received
from the President of the Constitutional Court. In this letter, dated
.. October, 1966, the President had stated as follows:

"Under Article 144 of the Federal Constitutional Act, the
Constitutional Court may decide on appeals against decisions
(Bescheide) of the administrative authorities. Since your letter does
not refer to any such decision, it cannot be treated as an appeal
within the meaning of Article 144 of the Federal Constitutional Act."

The Commission found it necessary also to have the text of the letter
which the Applicant had sent to the Constitutional Court and to which
the President of the Court had replied as indicated above. The letter
is dated .. October, 1966, and concerned complaints regarding the
Applicant's internment in a labour institution and the lawfulness of
labour institutions in general. In respect of the publication of the
Applicant's correspondence in the press, the letter contains the
following statement by the Applicant:

"I do not wish to deal, in this connection, with the publication of my
letters in the press, since the High Commission has already been
dealing with this question since 18th February, 1966, under file No.
2742/66, according to Articles 6 and 8."

(b) Criminal charge

The Respondent Government also submitted that there was a further
remedy which the Applicant should have exhausted. The act of which he
complained was punishable according to Article 102, paragraph (c), of
the Austrian Penal Code which subjects to punishment "whoever in a
dangerous manner divulges an official secret entrusted to him; whoever
destroys a document (Urkunde) entrusted to him in his official function
or, contrary to his duty, discloses it to somebody". Consequently, the
Applicant would have had the possibility to lodge a criminal charge
(Strafanzeige) and, if necessary, to bring a "subsidiary charge"
(Subsidiarantrag) according to Article 48 of the Code of Criminal
Procedure (Strafprozessordnung). However, by not using these remedies
he had failed to comply with Article 26 of the Convention.

The Commission, on 19th July, 1966, decided to ask the Government for
further information as to whether the alleged act constituted a
criminal offence under Austrian law since otherwise the remedies
concerned would not be applicable. First, the Commission wished to be
informed of the exact provision of Article 102, paragraph (c), of the
Penal Code which was considered by the Government to cover the
circumstances of the present case and, in particular, as to whether the
letters concerned were to be considered as "documents" (Urkunden)
within the meaning of Article 102, paragraph (c). Secondly, the
Commission drew the Government's attention to Article 1 of the 1870 Act
for the Protection of the Secrecy of Letters and Documents (Gesetz zum
Schutze des Brief- und Schriftengeheimnisses) which gives protection
against "unlawful opening or suppression" of letters and documents.
The Commission asked the Government to indicate whether it considered
this provision to be applicable to the present case.

The Government, in its reply, emphasised that the authoritative
interpretation of the provisions concerned was a matter for the
Austrian courts.
It pointed out, however, that Article 101 of the Penal Code gave a
general description of the crime of abuse of official powers and then
indicated who was to be regarded as an official in this context; the
following Article 102 added some "particular cases" of abuse of
official powers. The provisions of Articles 101 and 102 of the Penal
Code in its present version were the following:

"Article 101: Any official of the State or a municipality who in his
official position in whatever manner it may be abuses the powers
entrusted him with intent to cause detriment to somebody, whether it
be the State, a municipality or some other person, shall be guilty of
a felony; regardless whether he be induced by self-interest or any
other passion or intention.

Whoever by force of a direct or indirect public appointment is engaged
to transact government business, regardless whether or not he has taken
an oath of office, shall be regarded as an official.

Article 102: Under such circumstances this felony is in particular
committed by:

(a) a judge, public prosecutor or other government official, and
generally any official on active duty, who refrains from fulfilling his
official duties;

(b) any official, including notaries public, drawing up or executing
legal instruments, who in an official matter testifies to untrue facts;

(c) whoever in a dangerous manner divulges an official secret entrusted
to him; whoever destroys a document entrusted to him in his official
function or, contrary to his duty, discloses it to somebody;

(d) a lawyer or other sworn attorney who, to the detriment of his
party, assists the opponent in the drawing up of legal papers or in
some other manner advises or aids him.

Furthermore, any official who in the exercise of his official duties
or services trespasses on the privacy of a person's home or on a
person's freedom by illegally restricting his personal freedom or
depriving him thereof shall also be guilty of the felony of abuse of
official powers."

The Government further stated that Article 1 of the Act of 6th April,
1870, RGBl. No. 42. for the Protection of the Secrecy of Letters and
Documents read as follows:

"The wilful violation of the secrecy of letters of other sealed papers
by unlawful opening or suppression of them shall be punished as a
misdemeanour, unless a severer provision of general criminal law is
applicable to such a violation. When committed by an official or public
servant or some other person entrusted with public business in the
exercise of his duties or services, such a misdemeanour shall be
punishable by a term of imprisonment not exceeding six months and, in
other cases, by a fine not exceeding 25,000 Schillings or a term of
imprisonment not exceeding three months.

In the latter case a criminal prosecution shall not be instituted
unless this is requested by the person whose right has been violated."

Under Article 102, paragraph (c), of the Penal Code the felony of abuse
of official powers was committed by:

1. an official who in a dangerous manner divulges an official secret
   entrusted to him;
2. an official who destroys a document entrusted to him in his official
  function;
3. an official who, contrary to his duty, discloses to some other
   person a document entrusted to him in his official function.

It was, according to the Government, the first and the third offence
which must be discussed in the present connection.

Matters entrusted to an official in his official function were all
matters of which he was informed only because of his official position,
i.e. any information he obtained in the performance of his official
duties (Supreme Court Decisions of 3rd January, 1936, SSt XVI/1, and
of 20th April, 1956, SSt XXVII/20; cf. Rittler, Lehrbuch des
österreichischen Strafrechts, 1962, Volume II, page 407). An official
secret was any fact of which an official only learned in the
performance of his official duties and whose secrecy was necessary in
the interest of an authority or of the parties involved (Article 20 of
the Federal Constitutional Act; Article 23 of the Civil Service
Regulations of 25th January, 1914, RGBl. No. 15; Article 58 of the
Judiciary Act, BGBl. No. 305/1961; Article 5 of the Contract Officers
Act, BGBl. No. 86/1948). An official secret was not necessarily a State
secret. It might just as well relate to private affairs. Facts which
had been discussed in public proceedings lost their secret character
(Rittler, Volume II, page 408). "In a dangerous manner" as used in this
passage of the Act meant that an official secret had been disclosed in
circumstances in which a damage or loss might be caused to somebody
(Supreme Court Decisions of 3rd January, 1936, SSt XVI/1, of 12th
December, 1952, SSt XXIII/101 and of 20th April, 1956, XXVII/20). The
intention to violate the State's right to secrecy did not suffice to
make the betrayal of a secret a punishable act; rather, the intent of
the offender must also have been influenced by the possibility of
causing some other loss or damage in addition (Supreme Court Decision
of 6th March, 1950, Evidenzblatt No. 285/1950). The intention to
violate the right to privacy of correspondence was not sufficient in
this context; rather, the intent must have been to cause some concrete
damage or loss, though this need not be of a material nature.

Divulging an official secret meant disclosing it (Supreme Court
Decision of 3rd January, 1936, SSt XVI/1). A document was any statement
which was embodied in a readable form, provided that it constituted
evidence (Rittler, Volume II, page 438 et seq.). The protection of
Article 102, paragraph (c), of the Penal Code was extended to public
and private documents. It could be assumed that the application dated
11th October, 1965, and the reply of the Secretary to the Commission
dated 18th October, 1965, were documents within the meaning of this
legal provision. A document was entrusted to an official if he received
it through official channels (Supreme Court Decision of 28th October,
1948, Evidenzblatt No. 232/1949). "Disclose" meant any act by which a
third party was given access to the document, regardless whether that
party only inspected it or was allowed to copy it or make use of it in
some other manner (Supreme Court Decision of 16th May, 1898, KH 2212).

According to Article 1 of the Act for the Protection of the Secrecy of
Letters and Documents, one of the cases in which an infraction of this
Act was committed was, in the Government's opinion, the case of an
official who wilfully violated the privacy of sealed letters (or
papers) by unlawfully opening or suppressing them. The applicability
of this penal provision depended on the condition that the unlawful
opening or suppression was not subject to a severer provision of
general criminal law (Supreme Court Decision of 29th January, 1934, SSt
XIV/7; Rittler, Volume II, page 89 et seq. and page 409). The criminal
offence defined in Article 1 of the Act for the Protection of the
Secrecy of Letters and Documents was perpetrated by the mere opening
of the sealed letter (or paper), i.e. by tearing or cutting it open or
by using chemical methods, etc., or by its suppression. It was not
required that a third party by acquainting himself with the contents
of the letter (or paper) trespassed on the privacy existing between the
writer of the letter (or paper) and the addressee (Supreme Court
Decision of 24th October, 1949, Evidenzblatt No. 107/1950; Rittler,
loc. cit.). It was only after the sealed letter or paper had unlawfully
been opened that making accessible its contents to a third party became
an offence punishable under Article 1 of the Act.

In summary the Government submitted that Article 102, paragraph (c),
of the Penal Code could be cited if an official given all the other
prerequisites, had betrayed a secret with intent to cause the party
concerned a concrete damage or loss, beyond the State's right to
secrecy and the right to privacy of correspondence.

Article 1 of the Act for the Protection of the Secrecy of Letters and
Documents could be applicable if an official other than a judge (i.e.
a prison officer, or an official in the "Einlaufstelle",
"Vollzugsabteilung" or "Geschäftsstelle" departments of the Vienna
Regional Court) had unlawfully opened the letters concerned at a time
when they were sealed. Since there were no facts which might give rise
to such a suspicion no reference had so far been made to this
provision.

The Applicant pointed out, in particular, that the Public Prosecutor
had the duty to institute criminal proceedings ex officio irrespective
of whether the victim of the offence submitted a complaint to him. In
the present case, the Applicant had complained to the authorities, even
to the Ministry of Justice which was the supervising authority in
respect of the Public Prosecutor, and it would therefore have been the
task of the Public Prosecutor to institute proceedings ex officio, on
the basis of these complaints. Consequently, the Applicant did not
consider that his failure to lodge a criminal charge could be held to
constitute a failure to satisfy the requirements of Article 26 of the
Convention.

II. The question as to whether the Application is manifestly
ill-founded

The Respondent Government informed the Commission that extensive
enquiries had been made by the Austrian authorities but that it had not
been possible to clarify how the newspapers had obtained information
about the correspondence concerned. In any case, there was no reason
to assume that any official had forwarded information to the press.
 On the basis of the enquiries made, the Government submitted that on
11th October, 1965, S, a court guard, had taken over from the Applicant
a letter in a closed envelope which was addressed to the Commission.
Mr. S had passed that letter, whose contents were unknown to him, on
to the incoming-mail-bureau of the Regional Court for Criminal Cases
of Vienna, which had submitted it to Dr. F, the competent judge.

The latter had stated that the Application addressed by the prisoner
to the Commission as well as the Commission's reply to the Applicant
had been submitted to him for censoring. He had not informed any third
person, in particular any press reporter, of that letter. However, the
Applicant, in a great number of letters to third persons, had notified
the contents of his petitions to the Commission as well as the contents
of the latter's replies. This had been admitted by the Applicant, who
had been heard on this matter on .. May, 1966; but he had held that
this could not have resulted in the contents of his respective letter
to the Commission having been published in part literally in newspapers
already two days after dispatch of the letter. For, he said, he had
neither literally repeated in his letters to third persons the contents
of his Application nor had he written to any person whom he could
assume to be connected with the press.

The court officers and guards who, within their sphere of duty, had had
to do with the Applicant's correspondence had stated concordantly that
they had not known the contents of these letters and that for this
reason they could not have furnished any information to daily papers.

In an application, dated .. December, 1965, the Applicant had
complained to the Federal Ministry of Justice that his correspondence
with the Commission had been published in daily papers.

Dr. F had pointed out in his observations to that application on ..
December, 1965, that the Applicant himself had declared in the court
room at the end of the final hearing that he intended to lodge an
application with the Commission for being sent to a labour institution
and he had written this in nearly all of his letters.

By its decree of .. January, 1966, the Federal Ministry of Justice had
informed the Applicant that it had not found any reason for issuing an
order in its capacity of supervising authority.

The Commission, on 19th July, 1966, decided to ask the Government for
further information on certain points. First, the Government was asked
to comment on the following passage in the article in the
Arbeiter-Zeitung: "It was asserted at the Regional Court of Vienna that
this letter will be forwarded to the Commission of Human Rights
although it contains defamatory and incorrect statements". Secondly,
the Government was asked to indicate whether the Applicant had himself
had the possibility of communicating with the press during the relevant
time and, in this connection, to submit information from the prison
records as regards any letters sent by him and any visits received by
him in the periods of 11th-14th October and 18th-26th October, 1965.


The Government replied that investigations had shown that the author
of the article in the Arbeiter-Zeitung refused to disclose his source
of information, invoking the journalists' code of ethics. He had
stated, however, that the only purpose of the passage in question had
been to inform the readers that applications of prisoners to the
Commission are passed on in all circumstances, even if they contains
insults and false allegations. This had not been based on any piece of
information which had led to the writing of the article in question but
was a widely known fact.

The Government further stated that Dr. F, when heard again on ..
August, 1966, had referred to his previous statements. He had then
declared that, as far as he remembered, it was not after the sentence
had been read and the Applicant had asked to be given time to consider
an appeal that the Applicant in conversation with a person in the court
room had made a remark concerning an application under the Convention,
but after the end of the trial. At that time the public had been
leaving the court room. The Applicant had been calm and composed at the
end of the trial.

In the present matter, besides the competent judge and the Applicant,
all officials had been closely questioned who were responsible for the
receipt of the letters in question, for their submission to the judge,
and for their dispatch. All of the officials questioned as well as the
competence judge had made convincing statements to the effect that they
had not informed the press of the contents of the two letters.

With reference to the records of the prison department concerned, the
Director of the Prison had reported that the Applicant on 11th October,
1965 had written a letter to the Commission and on 21st October, 1965,
a letter to a certain K. These letters had been dispatched without a
special permit. On 26th October, 1965, the Applicant had asked the
competent judge for special dispatch of a letter, on the ground of
"urgent family affairs".

As regards visitors, the Applicant had seen his defence counsel, Dr.
M, on 11th October, 1965.

The Applicant contested that he had forwarded any information to the
press and submitted that he had not even had the opportunity of doing
so during the relevant periods. He stated that he had not received the
Secretary's letter of 18th October, 1965 until 25th October, 1965 and,
in support of this statement, he produced in evidence the envelope of
that letter which bears the official stamp of the Regional Court dated
25th October, 1965. He also indicated that the article about this
letter appeared in the newspaper Express of 26th - 27th October, 1965.
The Applicant submitted that he had no opportunity of communicating
with the press between the receipt of the letter and the publicity
about it in the press, in particular as, having sent a letter to a
friend on 21st October, he had not been allowed, according to the
prison rules, to send another private letter until 4th November. He
pointed out that on 26th October he had not sent any letter but only
asked for permission to send one.

He maintained that the only possibility was that the newspapers had
been informed by the authorities and he pointed out that the article
in the Arbeiter-Zeitung contained a reference to information given by
the Regional Court. He had not, in connection with the court hearing,
made any declaration regarding his Application to the Commission and
in any event a statement made on 8th October, 1965 could not be the
source of information regarding his letter of 11th October, 1965.

THE LAW

Whereas Article 26 (Art. 26) of the Convention provides that "the
Commission may only deal with the matter after all domestic remedies
have been exhausted, according to the generally recognised rules of
international law";

Whereas the Respondent Government has submitted that, in regard to the
alleged violation of Article 8 (Art. 8) of the Convention, there were
two remedies which the Applicant should have exhausted, namely, an
appeal to the Constitutional Court and a criminal charge
(Strafanzeige);

Whereas, as indicated above, the Commission found it necessary to ask
the Government for further information as to the applicability of these
remedies in the circumstances of the present case;

Whereas, on the basis of the further information provided by the
Government, the Commission is satisfied that, having regard to the
jurisprudence of the Austrian Constitutional Court regarding "factual
official acts" (faktische Amtshandlungen) the Applicant could have
lodged a constitutional appeal in respect of the alleged disclosure by
the authorities of the contents of his correspondence;

Whereas the Applicant has objected that, in a letter which he had
received from the Constitutional Court, it was indicated that Court was
only competent to deal with appeals against formal administrative
decisions; whereas the question therefore arises as to whether the
Applicant was justified, in view of this information received from the
Court itself, in assuming that no appeal was available in his case;

Whereas it appears that the letter concerned was written in reply to
a letter by the Applicant, in which he raised certain complaints;

Whereas the terms of this letter show clearly that these complaints did
not relate to the alleged disclosure of the contents of his
correspondence;

Whereas, indeed, the Applicant expressly stated in his letter to the
Constitutional Court that he did not wish to raise before the Court the
question of the publication of his correspondence;

Whereas, consequently, the reply which was given by the President of
the Constitutional Court did not concern the present complaint and can
in no way be considered to have absolved the Applicant, according to
the generally recognised rules of international law, from submitting
this complaint to the Constitutional Court;

Whereas it follows that, by failing to lodge a constitutional appeal,
the Applicant has not satisfied the condition as to the exhaustion of
domestic remedies laid down in Article 26 (Art. 26) of the Convention;

Whereas, in these circumstances, it is not necessary to examine the
question whether the Applicant should also have exhausted any further
remedy in order to comply with Article 26 (Art. 26) of the Convention;

Whereas similarly the Commission has not found it necessary to examine
whether the Applicant's complaint was inadmissible on any other ground;

Now therefore the Commission,

Having regard to its partial decision of 1st April, 1966, declares the
remainder of the Application inadmissible.