I. Original statement of facts based on the submissions of the

The applicant is an Austrian citizen born in 1930 and at present
detained in prison at W..

From his vague statements it appeared that in September 1967 he became
involved in a fight with two other men resulting in a gunshot wound in
his temple. After the fight he was arrested and sentenced to eight
years' severe imprisonment, apparently for robbery.

The applicant mentioned that the Supreme Court (Oberster Gerichtshof)
rejected his appeal or plea of nullity on .. November 1969, without
giving him the opportunity of defending his case personally. Only a
lawyer was appointed for his defence. The applicant has not submitted
any documents relating to his case, nor has he given more detailed
information as to the reason of his arrest and his conviction.

He complained that he was wrongly convicted on the basis of false
evidence given against him. He stated that already in 1947 and in 1961
he had been wrongly convicted and sentenced.

The applicant mainly complained of ill-treatment given to him by the
police after his arrest and by officers in prison.

He alleged:

-  that after his arrest, five policemen ill-treated him. They banged
his head on the floor and kicked him. As a result of this
ill-treatment, and not because of the injury caused by the gunshot
wound, he practically lost his eyesight. The prison authorities, as
well as the District Court (Kreisgericht) at W., refused to let him be
examined and treated at an eye clinic. They kept him isolated without
employment or pastimes in a cell where he is living in permanent

-  that the prisoners have to stand naked in the corridors when the
cells are inspected and that after one of these inspections he found
all his belongings on the floor of the cell and two packets of tobacco

-  that the prison warders made four attempts to murder him. Once they
handcuffed him and thereby cut the blood supply (Schlagader) in his
right arm. Another time they pressed a handful of steel material
(Stahlsplenden) into his mouth and afterwards he was not given any food
for ten days. A third attempt at murder was made on .. November 1969,
when he was forced to sleep in the arrest cell in the basement of the
prison on a stone bed without a mattress and blankets. Finally, another
attempt was made by throwing open the door of his cell unexpectedly
which hit him on his temple.

Alleging a violation of most of the Article of the Convention, the
applicant requests the Commission to help him.

II. Proceedings before the Commission

By decision of 4 October 1970 the Commission rejected, as being
manifestly ill-founded, the applicant's complaint that he was wrongly
convicted and sentenced.

With regard to his complaint that he was ill-treated in prison, the
Commission decided to invite the Austrian Government to submit, before
10 December 1970, its observations in writing on the question of
admissibility. The examination of this part of the application was
consequently adjourned.

The respondent Government's observations were received on 15 December
1970. The applicant was then requested to submit his observations in
reply before 15 January 1971 and on 22 January 1971 his written
observations in reply were received.

III. Observations of the Austrian Government

1. "Concerning the factual allegations of the applicant

By judgement of .. January 1969 given by the Regional Court at W.
(Kreisgericht W.), and which has become final, X was found guilty of
attempted murder and a minor offence. He was sentenced to eight years'
severe imprisonment (schwerer Kerker) aggravated by one day of fasting
every quarter. The decision was based on the fact that on 14 September
1967 at L. the applicant had shot K. in the back and in the back of the
head, and S. in the left side of the lower abdomen with intent to kill.
Shortly before his arrest, X shot himself in the head, whereby he lost
his eyesight.

Already at his trial, the applicant claimed that he had not been in
possession of a gun at all, thus departing from his original statement
that the only reason why he had shot the two men was that they had
wanted to rob him;  at the time of that original statement he did not
deny having shot himself in the head when being arrested on 17
September 1967.

At his trial, however, the applicant claimed that on 14 September 1967,
K. and S. together with an unknown third person had robbed him of
55,000 Austrian schillings and had shot him while doing so. After being
unconscious for some time, he had woken up in the forest, finding next
ho him the gun with which his own bullet wound as well as K's and S's
bullet wounds had been inflicted, together with 157 rounds of
ammunition;  despite his impaired eyesight he had then wandered about
the forest. On 16 September 1967, he had finally arrived at his
sister's and brother-in-law's home at H.. where, however, his head
injury had not been noticed. Having been given food and a raincoat, he
had then walked on until he had been picked up by the gendarmerie on
the following day, 17 September 1967. He had not inflicted a bullet
wound on himself while being arrested, but had been shot in the head
on 14 September 1967 by the robbers.

In order to disprove these assentations by the applicant, extensive
enquiries were made, in the course of the criminal proceedings, in
order to find out in which way the applicant's bullet wound and
blindness had been caused. In these enquiries and the opinions of
experts, it has been established beyond all doubt that the applicant
himself on 17 September 1967, when facing the gendarmes who had stopped
him, fired a gun at his head;  that since that time he has been totally
blind owing to the fact that the optical nerves and the retinal
arteries of both his eyes are severed;  and that at the present state
of scientific knowledge it seems absolutely impossible to restore his
vision. This was also stated in the judgment of the Court. According
to a psychiatric report, the applicant is not subject to delusions. If
he claims that the loss of his eyesight was due to a lack of medical
care during his detention, although he is aware of the true facts, this
can only be explained by his peculiar personality and his
aggressiveness, which is noted in the psychiatric report.

During his detention at the prison of the Regional Court at W., the
applicant swallowed two spoons and fell into rages which necessitated
his temporary transfer to G. psychiatric hospital.

On .. July 1970 the applicant asked the Republic of Austria to
recognise his claim for compensation to the amount of 600,000,000
Austrian schillings (i.e. six hundred million Austrian schillings)
under the Liability of Officials Act (Amtschaftungsgesetz) on the
grounds that his blindness was caused by a lack of medical care during
his detention.

In this connection, the Republic of Austria submits the following

1. A copy of a report of .. November 1970, by the administration of the
  prison attached to the Wiener Neustadt Regional Court;
2. Copies of statements by the prison guards, Justizwachoberkontrollör
   L., Justitzwachmann P., Justizwachmann H., and
   Justizwachoberkontrollör S.;
3. A copy of a passage from the record of the trial of X containing the
  opinion of the medical expert, Primarius Dr. E.;

4. A copy of the report of .. March, 1970 by Dr. H., lecturer in
5. A copy of the case history of X from the municipal hospital of the
town of N.

From these documents it clearly emerges that the applicant's
allegations are untenable.

In particular, it emerges from the documents that the applicant's
blindness did not develop during his detention but was already existent
at the time of his admission to the N. hospital on 17 September 1967
and that X's statements concerning alleged mistreatment during his
detention are false."

2. The Austrian Government further states that the applicant has not
exhausted the domestic remedies available to him. It requests the
Commission to reject the remainder of the application for
non-exhaustion of domestic remedies or in eventu, as being manifestly

IV. Summary of the observations in reply submitted by the applicant

The applicant only repeats his allegation that on four occasions the
prison guards tried to murder him. He does not give any evidence in
support of his allegation. He also repeats that his blindness was
caused by the ill-treatment given to him in prison. He claims that the
result of the medical examination carried out at G. proves that the
gunshot which he received previously did not cause his blindness
because the bullet did not hit a nerve.


Whereas, in regard to the applicant's remaining complaint that he was
ill-treated by the police and prison guards, the Commission finds that
the Austrian Government's observations and documents enclosed therewith
give a reasonable explanation of the situation;

Whereas, indeed, the applicant only repeats, in his reply to the
Government's observations, his prior allegations without giving any
evidence to support them or to disprove the statements of the
respondent Government;

Whereas consequently the Commission accepts the Government's
explanation of the events concerned and finds that there is no
appearance of any violation of the rights and freedoms set forth in the
Convention and in particular in Article 3 (Art. 3); whereas it follows
that the remaining part of the application is also manifestly
ill-founded within the meaning of Article 27, paragraph (2)
(Art. 27-2), of the Convention.