THE FACTS

Whereas the facts, insofar as they are apparently not disputed, may be
summarised as follows:

The applicant is a German citizen, born in 1931 and resident in Munich.
At the time of the introduction of his present application he was being
kept in detention on remand in the prison of the Regional Court at Wels
in Upper-Austria. The applicant, who is a publisher of books dealing
with cultural matters, is represented in the proceedings before the
Commission by Rechtsanwalt Willy Osthues, a lawyer practising in
Munich.

On 30 July 1969, the applicant was arrested by the Austrian police on
suspicion of fraud and, on 31 July 1969, the Regional Court
(Kreisgericht) of Wels decided to open a preliminary investigation
against the applicant under Article 197 of the Austrian Penal Code
(Strafgesetz) for cheque fraud (Scheckbetrug). The applicant was
charged with having issued a number of uncovered cheques on the account
of his Austrian bank at St. Wolfgang and of having cashed these cheques
in Germany. He was accused of having thereby caused his Austrian bank
to suffer a financial loss of more than 1,700,000 Austrian Schillings.
By decision of 31 July 1969, the above court remanded the applicant in
custody and he was detained in the prison of the Regional Court at
Wels. The Court considered that the danger existed that the applicant
might abscond, that he might commit further offenses, and that there
was a considerable risk of collusion between him and other persons
involved.

Upon his arrest the applicant indicated that he was not fit for
detention since, in 1961, he had suffered from poliomyelitis which had
resulted in his left arm and shoulder as well as his left leg and his
right arm being permanently disabled. Thereafter he had suffered from
spinal and chest diseases and had been under permanent medical care
since 1961; in particular, he had always to undergo regular orthopaedic
gymnastics to prevent atrophy of his muscles. The applicant was
examined on 4 August 1969 by the prison doctor, Mr. Müller, an expert
in neurology and psychiatry, who was of the opinion that the
applicant's state of health  was due to a chronic condition which was
likely to worsen even under treatment. This opinion did not, however,
expressly state whether or not the applicant was fit for detention.

On 29 August 1969 the applicant requested his release on bail and gave
further particulars on 1 and 4 September 1969. At this time, however,
he did not give his state of health as a reason for his request for
release, but he argued that the reasons for detention on remand, as
listed in the Austrian Code of Penal Procedure (Strafprozessordnung),
did not exist. He offered bail of 150,000 Austrian Schillings.

On 8 September 1969 the Investigating Judge dismissed the applicant's
request. The Judge stated that the applicant was a German citizen and
that he must expect a heavy penalty and that, consequently, the danger
of his absconding was obvious. Furthermore, there existed the risk of
collusion since a co-accused person in Munich, who had also made out
uncovered cheques, had not yet given evidence. The Investigating Judge
further held that the applicant had previously issued uncovered cheques
on several occasions and there was therefore danger of his continuing
these practices.

The applicant appealed against this decision on the same day and again
alleged that no reason for his detention on remand existed, but he did
not invoke his alleged physical unfitness for detention as a ground for
his release.

The Judges' Chamber (Ratskammer) of the Regional Court confirmed the
Investigating Judge's decision on the same day, i.e. on 8 September
1969.

The Chamber stated that release on bail was only provided if the danger
of absconding was the only ground for the detention on remand of the
person concerned. As there also existed in the applicant's case the
risk of collusion and the danger of his committing further offenses,
his release on bail would not be granted. The Court declared that it
was most probable that the applicant would abscond to the United States
of America as he had relatives living there and as there was the
possibility of his receiving a heavy penalty on the present charges.
With respect to the risk of collusion it was stated that the
investigation was not yet finished since the inquiries in Munich, where
the applicant's commercial activities were concentrated, had not yet
been carried out. The Judges' Chamber also confirmed the danger of the
applicant committing further offenses since he was also accused of
forging cheques in Germany and, consequently, it was to be expected
that he would continue his practice of issuing uncovered cheques.

On 16 September 1969 the applicant appealed against this decision to
the Linz Court of Appeal (Oberlandesgericht) which, by decision of 1
October 1969, confirmed the decision of the lower courts. The decision
of the Court of Appeal did not deal with the applicant's state of
health because the applicant had not mentioned it in his appeal.

In all these proceedings, the applicant was represented by Rechtsanwalt
Viktor Straberger, a member of the Wels Bar.

On 24 October 1969 the applicant himself, without the assistance of his
counsel, requested his release from detention. In a handwritten letter
to the Investigating Judge the applicant indicated that reasons
for his detention did not exist, and he offered bail of 100,000
Austrian Schillings. In this request the applicant, for the first time,
referred to his bad state of health as a ground for his release and
said that he urgently needed specialised medical treatment. At the end
of this letter to the Investigating Judge the applicant included the
following statement concerning his health:

"I know that the latter argument is not a fact which can be legally be
taken into consideration by the Court ..."  (Ich weiß, daß mein
letzteres Vorbringen zwar keine juristisch wägbare Tatsache darstellt
...")

Also on 24 October, the applicant challenged the Investigating Judge.
He alleged that the latter was acting on the basis of political
considerations and bias against the applicant and that he intended to
endanger the applicant's family, who lived in the German Democratic
Republic. The applicant also referred to his state of health and
accused the Investigating Judge of not taking it into account. This
challenge was rejected by the President of the Regional Court by
decision of 28 October 1969. The President held that these reasons were
ill-founded and that, in particular, the applicant was, according to
the medical opinion of Dr. Müller of 4 August, fit to undergo
detention.

At the request of the Investigating Judge, Dr. Schättinger, the medical
officer of the Wels City Administration (Amtsarzt des Magistrates der
Stadt Wels) on 27 October examined the applicant and gave his opinion
on 30 October 1969. He found that the applicant's body was to a large
extent paralysed and that there was visible damage to his spine. He
said, however, that this was a permanent physical situation which could
not be improved and he concluded that the applicant's detention in
prison of the Regional Court was, for the time being, still possible
if orthopaedic gymnastics could be done; such gymnastics were still
possible in the Wels Hospital, according to the chief doctor Meissner.
If the period of the detention were longer, a transfer must be ordered
to another prison which had an infirmary.

("Eine Haft ist derzeit noch im kreisgerichtlichen Gefangenenhaus
möglich, wenn eine heilgymnastische Behandlung durchgeführt wird, die
im Krankenhaus Wels nach Rücksprache mit Primarius Dr. Meissner noch
möglich wäre. Bei längerer Haftdauer müßte aber eine Überstellung in
ein Gefangenenhaus mit Krankenabteilung durchgeführt werden.")

On 5 November 1969 the Investigating Judge dismissed the applicant's
request of 24 October 1969 for his release. He stated that the
applicant could not be released since the danger of his absconding and
committing further offenses continued. He indicated that release on
bail was only possible, if the sole reason for detention was the
existence of a danger of absconding. The Judge, however, did not deal
at all with the applicant's argument, put before him in his request,
that he was unfit for detention due to his physical condition. This
decision was served upon the applicant on 6 November 1969 together with
a notification that he could appeal against it within fourteen days.
The applicant did not, however, appeal against this decision.

On 6 November 1969 the Investigating Judge requested the Administration
of Wels Prison to transfer the applicant immediately to a prison
hospital (Inquisitenspital). He indicated that, in view of the medical
opinion of the above expert, Dr. Schättinger, such transfer was
essential since the end of the applicant's detention wasnot within
sight ("... so daß die Dauer der Untersuchungshaft nicht abzusehen
ist.")

On 7 November 1969 the Prison Governor wrote a letter to the Federal
Minister of Justice in Vienna and this was received in the Ministry on
10 November. The Prison Governor submitted copies of the expert opinion
of Dr. Schättinger and of the request of the Investigating Judge. He
asked the Minister to specify a prison hospital to which the applicant
could be transferred. In this letter the Prison Governor also stated
that at that time the applicant was being taken once a week to the Wels
hospital for the prescribed orthopaedic gymnastics.

On 17 November 1969 the Federal Ministry of Justice informed the
Regional Court of Wels that no prison hospitals were available where
such orthopaedic gymnastics could be done as were necessary for the
applicant's treatment and that, accordingly, the applicant should
continue to do these gymnastics in the Wels hospital.

On 1 December 1969 the applicant wrote a letter to Dr. Schättinger and
informed him that he had still not been able to see a specialist
regarding his ailments and that, since 27 October, he had been taken
to the Wels Hospital for gymnastics once a week and only for half an
hour. He also stated that he had not been strong enough to support that
weekly visit and had once fallen down; since then his left arm was
entirely paralysed and had lost 3 cm in circumference.

On 3 December 1969 the Investigating Judge requested Dr. Schättinger
to examine the applicant again. The doctor informed the Judge that this
examination should be carried out in a special hospital at Linz, the
Wagner-Jauregg Hospital. The chief doctor of that hospital, Dr.
Steinhäusl, telephoned the Investigating Judge on 10 December 1969 to
say that the examination would take several days and asked whether the
applicant should be kept in the open or closed section of the hospital.
After having consulted the President of the Regional Court, the
Investigating Judge ordered that the applicant should be kept in a
closed ward. (The closed ward of this hospital is situated at
Niedernhart, about 15 miles from Linz). In Dr. Steinhäusl's medical
opinion, dated 10 December 1969, it is stated that the applicant was
examined as his left arm was recently paralysed as a consequence of a
clumsy movement of a fellow prisoner who helped the applicant when he
was in danger of falling. The doctor found, however, no recent
paralysis but indicated that, in view of the past diseases of the
applicant, permanent active and passive physiotherapy was necessary in
order to keep in action the still active muscles and to prevent their
becoming atrophied ("... bei dem stattgehabten Leiden des Patienten
eine ständige aktive und passive Bewegungstherapie erforderlich ist,
um die noch aktiven Muskeln weiterhin in Aktion zu halten und damit
diese der Athrophie und Inaktivität nicht anheimfallen.")

On 23 December 1969, the applicant wrote a letter to the Investigating
Judge informing him that he was still kept in the closed ward at
Niedernhart in a room together with twenty violent, mentally sick
persons, six of whom had died in the last ten days in his presence. He
asked the Judge to transfer him to a proper hospital.

On 24 December 1969 the applicant returned, on the instructions of the
Investigating Judge, to Wels Prison.

On 12 January 1970, Mr Osthues, the applicant's German counsel, wrote
a letter to the Austrian Ministry of Justice, asking for an examination
of the applicant in view of his bad state of health, and for him to be
given adequate medical treatment.

On 14 January 1970, Dr. Schättinger again gave an opinion as to the
physical state of the applicant and based this on the report of Dr.
Steinhäusl, which he had apparently received only on 12 January 1970,
and on his own examination of the applicant. Dr. Schättinger found that
physiotherapy and orthopaedic gymnastics were permanently and
continuously necessary, and that the attempts to treat the applicant
in the Wels Hospital had failed since the applicant was thereby
subjected to an additional physical effort, and since the treatment in
the hospital was not adequate for the type of complaint of which the
applicant suffered. Dr. Schättinger declared that the applicant needed
permanent and continuous specialised medical treatment which he could
not obtain in prison or in any other hospital in Upper Austria. He
stated, furthermore, that the applicant's detention in the Wels Prison
could not be justified any longer.

On 15 January 1970 the President of the Regional Court of Wels informed
the Ministry of Justice of the opinions of Dr. Steinhäusl and Dr.
Schättinger and requested urgently that the applicant should be taken
to a special prison hospital.

On 22 January 1970, the President of the Regional Court released the
Investigating Judge from the conduct of the case as the latter had
informed him that, due to accusations made by the applicant against him
in a letter of 20 January 1970, special circumstances existed which
made it impossible for him, the Investigating Judge, to carry on the
investigation against the applicant.

On 21 January 1970, the Ministry of Justice informed the President of
the Regional Court that no appropriate prison hospital was available
in Austria and, on 22 January, the Minister instructed the Public
Prosecutor at Wels to request the Regional Court to release the
applicant. On 23 January 1970 the applicant was released from prison.

Complaints of the applicant

1.   The applicant complains that he was treated as a criminal while
being detained on remand. In this respect he submits that the
Investigating Judge and the police officers had frequently called him
a fraudulent person and a criminal. He alleges violations of Article
6 (2) of the Convention.

2.   The applicant further complains that he was beaten up and
received physical injuries during his detention in the Regional Court's
Prison at Wels. In this respect he submits that a police officer, Mr.
Greiner, gave him upon arrest a severe punch on his left side and that
he was kicked towards a washbasin and thereby injured. The same officer
allegedly gave him later a slap in the face. The applicant invokes in
this respect Article 3 of the Convention.

3.   The applicant finally alleges that his treatment during his
detention in Wels amounted to inhuman and degrading treatment within
the meaning of Article 3 of the Convention and also that his right to
life, as guaranteed under Article 2, was violated. The applicant
complains about the following facts:

(a)  that he was kept in detention on remand although he was
physically not fit for detention. In this respect the applicant
indicates that he was not given the medical treatment which was
essential for him and which was prescribed by both Dr. Schättinger and
Dr. Steinhäusl, and that he was not given the particular nutritious
diet which he needed;

(b)  that his left arm was paralysed due to the negligence of the
prison authorities during his transport to his weekly gymnastics at
Wels Prison;

(c)  that he was taken to the closed ward of the Psychiatric Hospital
of Linz at Neidenhart without having been informed beforehand that he
had to stay there for a fortnight, so that he did not take with him his
belongings, including his electric razor and his money for buying
additional food;

(d)  that he was kept in the closed ward at Niedernhart in a room
together with twenty violent lunatics, of whom six died in his presence
and that, consequently, he could not sleep and recover from his
illness;

(e)  that he was returned to Wels Prison on Christmas Eve 1969,
without notification and, despite his state of health, at a temperature
of -10o centigrade in an unheated van which was generally used for
transporting food; and that, consequently he contracted a fever which
finally ended in pneumonia;

(f)  that he did not get any adequate food upon his arrival at Wels
on 24 December, since the prison administration was not informed about
his return and he could only eat what other prisoners left;

(g)  that he received no medical care at all during the period from
24 December 1969 to 8 January 1970 although he suffered from fever
which later turned into pneumonia and that, from 8 January until his
release, he was not given the medical treatment prescribed in Dr.
Steinhäusl's report of 10 December;

(h)  that, due to this treatment, he lost by atrophy of his muscles
more than 16 kilograms, and almost lost his life as a consequence of
this and of his pneumonia.

Proceedings before the Commission

On 8 January 1970 the President of the Commission, acting ex officio
under Rule 38, 1 of the Commission's Rules of Procedure, gave priority
to this application.

A group of three members of the Commission carried out, on 11 March
1970, a preliminary examination of the application, and suggested that
the respondent Government should be invited to submit its written
observations on the admissibility in accordance with Rule 45, 3 (b) of
the Rules of Procedure.

On 20 March 1970, the Commission decided to give notice to the Austrian
Government of this application and to invite the Government to submits
its observations on the admissibility of the complaints under Articles
2 and 3 that the applicant was subjected to inhuman treatment whilst
being in custody.

On 11 May 1970 the Austria Government submitted its written
observations which were communicated to the applicant who submitted his
observations in reply by letter of 8 June 1970.

On 13 July 1970, a second group of three members of the Commission
examined the application and the observations of the parties and
unanimously reported to the Commission that the application appeared
to be admissible.

On 22 July 1970, the Commission decided, in accordance with Rule 46,
1 in fine of its Rules of Procedure, to invite the parties to make oral
explanations on the admissibility of the application. The hearing of
the parties was held in Strasbourg on 17 December 1970.

The applicant was present at the hearing and was represented by
Rechtsanwalt Willy Osthues. The Austrian Government was represented by
Sektionsrat W. Pahr, of the Federal Chancellery, deputy agent, and
Ministerialsekretär P. Jann, of the Ministry of Justice, adviser.

On the same day after hearing the parties, the Commission decided to
adjourn its decision on the admissibility of the application and to
delegate three members to hear evidence (MM. Fawcett, Ermacora, de Gaay
Fortman), in the presence of the parties, of Rechtsanwalt Dr. Viktor
A. Straberger (the applicant's Austrian counsel) and Landesgerichtsrat
Dr. Johann Gruber (the Investigating Judge up to 22 January 1970), on
facts concerning the question of the exhaustion of domestic remedies
by the applicant. The hearing of these witnesses took place on 23
January 1971, in Vienna, in the presence of the parties. The applicant
was represented by Rechtsanwalt Willy Osthues. For the respondent
Government there appeared:  Mr. E. Nettel, Minister Plenipotentiary at
the Austrian Ministry of Foreign Affairs, Agent, Sektionsrat W. Pahr,
of the Federal Chancellery, Deputy Agent, and Ministerialsekretär P.
Jann, adviser.

SUBMISSIONS OF THE PARTIES

Whereas the submissions of the parties in their written observations
and at the hearing may be summarised as follows:

I.   Under Article 26 of the Convention

In its written submissions the respondent Government pleaded that the
applicant had not exhausted the domestic remedies with regard to his
complaints under Article 3 of the Convention, namely that he had been
beaten by police officers and that his treatment during his detention
on remand amounted to inhuman and degrading treatment. The Government
submitted in this respect that both the beating up and the refusal of
medical assistance would in such circumstances amount to a punishable
offence under Austrian law; that the applicant must, therefore, in
order to comply with the rule laid down in Article 26 of the
Convention, bring criminal proceedings against the persons responsible
for these alleged offenses. The applicant, however, had only laid
charges against the police officers concerned but had not used his
further right of bringing a subsidiary prosecution (Subsidiäranklage)
against them under Article 48 of the Code of Criminal Procedure. At the
oral hearing the respondent Government submitted additional arguments
as regards this question. With regard to the alleged insufficient
medical attention during the applicant's detention on remand, it was
submitted that the applicant, in requesting his release on bail, had
not exhausted his remedies. The applicant had requested his release on
29 August 1969 and had given further particulars on 1 and 4 September
1969. However, he did not then rely on his unfitness for detention as
a ground for requesting his release. The Investigating Judge, who had
dismissed his request on 8 September 1969, did not therefore deal with
this point in his decision. In his appeal to the Judges' Chamber
(Ratskammer) of the same day, the applicant had failed to refer to his
state of health with the result that the Chamber, in its decision of
8 September 1969, also did not deal with the alleged unfitness of the
applicant. The same had happened with regard to the applicant's further
appeal of 16 September to 1 October 1969. The Court, for the same
reasons, had also not dealt with the applicant's state of health. It
was submitted that, consequently, this part of the proceedings could
not be considered as being relevant for the question of exhaustion
since the applicant had failed to put his case fully before the courts.

On 24 October 1969 the applicant had again requested his release from
detention and had expressly referred to his bad physical condition. The
Investigating Judge, by decision of 5 November 1969, did not, however,
grant his release. The respondent Government admitted that, in this
decision, the Investigating Judge did not deal with the applicant's
state of health.

According to the respondent Government, the applicant's request of 24
October 1969 for release was the only remedy of which the applicant had
availed himself since only in this request had he put his case fully
and formally before the Judge. Since the applicant had failed to appeal
against this decision to the Judges' Chamber and further to the Court
of Appeal, the Government concluded that he had not satisfied the
provisions of Article 26 of the Convention. It was admitted that the
Court and the Investigating Judge had been fully informed that the
applicant was feeling ill, and the applicant's German counsel, Mr.
Osthues, had also corresponded with the Court on this point and had
asked for his release; but this situation had not been put before the
Court by a formal request (prozessförmliche Anträge) and there had
therefore been no formal decision in this respect. The applicant had
also not made these requests through his Austrian counsel, Mr.
Straberger, who had been the only person who could validly act on his
behalf. Since the applicant had been represented by counsel it was
submitted by the Government that the Court had not the duty to advise
the applicant on remedies at his disposal. The Government submitted in
this respect that the applicant had, moreover, been informed as to his
remedies under the Austrian Code of Penal Procedure since his request
of 24 October 1969, for release had been made by himself and not by his
counsel. But even the applicant's ignorance as to these remedies would
not have absolved him from the obligation to exhaust them.

It was further submitted that, in any case, the requests of the
applicant and of his German lawyer, although made informally, had been
considered by the Austrian authorities and had finally led to his
release, at the Public Prosecutor's request, as soon as there was a
medical opinion to the effect that the applicant was unfit for
detention.

In conclusion, it was submitted that, with respect to this part of the
application, the applicant himself had not taken all necessary steps
to put his claim formally before the several Austrian courts which
would have been competent to grant his release on the ground of his
unfitness for detention, and that he consequently had failed to exhaust
the remedies available under Austrian law.

With regard to the applicant's complaint that he was beaten up in
prison by police officers, the respondent Government submitted that the
applicant had laid charges against Mr. Greiner, the police officer
concerned, and against the Investigating Judge, Mr. Gruber, on 29
October 1969 and on 20 April 1970, respectively, but these charges were
not substantiated. The applicant had indicated that he would give more
precise information but he had not yet done so. On the basis of these
charges the authorities had heard witnesses but their statements had
not corroborated the applicant's allegations. Consequently, the Public
Prosecutor had discontinued these proceedings. The Government,
accordingly, concluded that the applicant had not yet exhausted his
domestic remedies since he had not substantiated his charges against
the persons who had allegedly ill-treated him, and had not yet utilised
his possibilities under Article 48 of the Code of Penal Procedure, that
is to bring a subsidiary prosecution.

The applicant submitted that he had exhausted his remedies under
Austrian law with regard to his detention in prison. He referred in
this respect to his many formal and informal requests for release, his
having challenged several times the Investigating Judge, and his
complaints to the Ministry of Justice. He submitted that he did not
lodge a further appeal against the Investigating Judge's decision of
5 November 1969 refusing his release on bail, because the Investigating
Judge informed him that such an appeal would be useless. The applicant
complained in this respect that the Austrian Court had not ex officio
taken adequate action to prevent the deterioration of his health; that,
therefore, he had requested his release from prison because of his
state of health, in his formal complaint of 24 October 1969. This
complaint had been drafted by himself and its contents had been
influenced by the advice of the Investigating Judge. The latter had
told him, according to the applicant, that his state of health would
not be a factor which could be legally taken into consideration when
deciding on release. The applicant further referred to the
Investigating Judge's advice that an appeal would be useless and said
that this had been corroborated by his Austrian counsel, Mr.
Straberger. Both the Investigating Judge and Mr. Straberger had told
him that the question of the applicant's health could not be taken into
account when deciding on a request for release from detention. That was
the reason, according to the applicant, for his statement in his
request for release on 24 October 1969 that he knew "that his state of
health could not legally be taken into consideration". It was further
submitted by the applicant that he had not lodged an appeal against the
decision of 5 November 1969 because Mr. Straberger had also advised him
that, in view of the Court of Appeal's previous decision, any further
appeals would be ineffective. The applicant finally submitted, with
respect to this question that his lawyer, Mr. Straberger, had not been
granted access to him, since the Investigating Judge had held that no
reason existed for the applicant to see his counsel.

With regard to this last submission of the applicant, the respondent
Government objected that it was certainly not true that Mr. Straberger
was hindered from seeing the applicant or that the Investigating Judge
refused visits of Mr. Straberger to the applicant. The Government,
therefore, requested the hearing of Mr. Straberger both on this
question and, generally, on the steps taken by the latter in order to
have the applicant released. The respondent Government also stated
that, even if it was true that applicant's counsel had no right to
visit the applicant, it would have been possible for the applicant to
send the Investigating Judge's decision of 5 November 1969 to Mr.
Straberger and to request him to lodge an appeal against it or,
alternatively, the applicant could have made this appeal himself. The
respondent Government further submitted that an appeal against the
decision of 5 November 1969 would have been an effective remedy, since
for the first time the Judges' Chamber and the Court of Appeal would
have been confronted with the applicant's allegation that he was unfit
for detention in view of his state of health.

In respect of the applicant's complaint that he was beaten up by a
police officer, the applicant submitted that he had not elaborated on
the charges laid against the police officer and the Investigating
Judge, Mr. Gruber, and had not yet given the additional information
requested since, after his release from prison on 23 January 1970, his
principal concern had been to recover his health and to get proper
medical attention. On 2 January 1971, however, the applicant laid
charges against Mr. Greiner and other unknown persons, and therein he
substantiated his accusations.

II.  Under Articles 2 and 3 of the Convention

The respondent Government submitted in this respect that, as regards
the physical condition of the applicant, the latter had been medically
examined five days after his arrest, on 4 August 1969. The doctor had
no objections then as regards the applicant's fitness for detention.
On 14 October 1969 the Investigating Judge again requested a medical
opinion on the applicant's state of health; this opinion was given on
30 October 1969 and the applicant was declared fit for detention but
it was suggested that he should have orthopaedic training in the
hospital. On 3 December 1969 the Investigating Judge again requested
medical opinion which was given by the Chief Medical Officer of a
neurological hospital at Linz. This medical officer examined the
applicant on 10 December 1969 but his opinion was only received by the
Court by 14 January 1970. On the same day, Dr. Schättinger gave his
opinion stating that the applicant was not fit for detention in Wels
Prison. According to the respondent Government, this was the first time
it could be considered that the applicant was no longer fit for
detention. On the basis of this opinion and at the Public Prosecutor's
request, which the latter made ex officio, the applicant was released
on 23 January 1970.

As regards the particular complaints of the applicant, the respondent
Government submits that the applicant's allegations about his state of
health were not corroborated by the evidence and the files in the hands
of the Government. In particular, it did not appear from these
documents that the applicant's life had, as alleged, been in danger.
In this respect, the respondent Government referred to the medical
opinions of Dr. Müller, Dr. Schättinger and Dr. Steinhäusl. With regard
to the applicant's food it was submitted by the Government that he had
regularly accepted the meals which he had been given in prison and that
he had also regularly purchased such additional food, as was available
in the prison. Furthermore, it was pointed out by the Government that
the applicant did not follow the advice of the prison doctor as regards
his treatment; in particular he had failed to do exercises whilst in
his cell, or to do any gymnastics. With regard to the applicant's
complaint about his being transported in an unheated van, the
Government replied that this was especially equipped for the transport
of prisoners.

The applicant submits that the medical opinion given by Dr. Müller on
4 August was superficial and incorrect, and was given on the basis of
a cursory examination of the applicant without X-ray. Although he had
continually asked the Investigating Judge, Dr. Gruber, to allow him to
see a specialist and constantly complained of pains and emaciation, he
had received no treatment. The treatment given by the prison doctor,
Dr. Narbeshuber had been entirely insufficient and he had been given
totally inappropriate medicine. For example, he had been given
"Rheuma-Tropon-Salbe" and 5-10 Adolorin pain-killing pills per day,
which had the result that the whole lining of his stomach had become
inflamed and his state of emaciation had been accelerated. On his
complaints to the Investigating Judge he had been told not to make a
fuss. The applicant further submitted his complaints as indicated above
and emphasised that, due to the negligence of the prison authorities,
he also contracted pneumonia whilst detained in prison, and that he
suffered from that illness until his release on 23 January 1970, when
he had been taken by ambulance to a hospital in Munich, where his
illness had been diagnosed.

III. Under Article 27 (2) of the Convention

The respondent Government submitted that the Commission might consider
that the applicant had abused his right to petition under Article 25
of the Convention since, after his release in January 1970, he had
refused to give any evidence with regard to the criminal proceedings
opened against him in Austria although he had been requested to do so
before the District Court (Amtsgericht) in Munich. The District Court
had been asked by the Regional Court of Wels to hear the applicant on
certain points at stake. The applicant had refused to answer the
questions put to him, stating that he would not answer them as long as
the "corrupted criminal Gruber" was active at the Regional Court at
Wels. He had indicated that he would be ready to reply to these
questions after the Regional Court of Wels had justified itself before
the European Commission of Human Rights in Strasbourg as regards the
prejudice which it had caused him. The respondent Government submitted
in this respect that proceedings before the Commission could not
justify the applicant's refusal to comply with a legal obligation. The
respondent Government therefore requested the Commission to reject the
application as being an abuse of the right of petition.

The applicant submitted in reply that, according to German law, nobody
is obliged to make statements before a court. He pointed out that he
had refused to reply to the questions put to him by the District Court
of Munich since he did not want to prejudice his statements before the
Commission and since he had been of the opinion that these questions,
concerning the investigation of the charges laid against him in Austria
could not be clarified by a hearing before the District Court in
Munich.

THE COMMISSION'S FINDING OF THE FACT AS REGARDS THE ADMISSIBILITY OF
THE APPLICATION

On 17 December 1971, after having heard the parties to the present
application, the Commission decided to adjourn its decision on the
admissibility of the application and to hear the evidence, in the
presence of the parties, of Mr. Viktor A. Straberger, the applicant's
Austrian lawyer at Wels and of Mr. Johann Gruber, the Judge who, until
22 January 1970, led the investigation of the charges laid against the
applicant, on questions of fact connected with the issue as to whether
the applicant had or had not exhausted his remedies under the Austria
law. The hearing was held before three Delegates of the Commission in
Vienna on 23 January 1971. The evidence given by both witnesses may be
summarised as follows:

I.   As to the remedies available under Austrian law in the
applicant's case, and the decisions taken

Mr. Gruber said that in his opinion Article 398 of the Austrian Code
of Penal Procedure was not applicable to the applicant, since he had
not been a convicted person and this Article provides that the
execution of a sentence should be discontinued in the case of a serious
illness of the convicted person. Mr. Gruber also denied that this
provision could be applied to persons detained on remand by analogy,
but he referred in this respect to Article 183 of the above Code. The
latter Article provides that detention on remand should be executed in
such a manner that the person as such and his reputation should as far
as possible be taken into consideration. A person detained on remand
could at any time request release from prison. The decision taken by
the Investigating Judge and an appeal is available against this
decision to the Judges' Chamber, and further to the Court of Appeal.
Mr. Gruber said that, in his view, a person who is fit for detention
must be held in detention if one of the reasons mentioned in the Code
of Penal Procedure regarding detention on remand exists. If a person
was unfit for detention, he should then be released. The Investigating
Judge as such was not competent or authorised to make a finding himself
about the person's state of health; this was the task of the medical
officer (Amtsarzt). Mr. Gruber was not sure whether he could decide
upon the state of health as such of a detained person, since the prison
governor was responsible for the well-being of a detained person. Mr.
Gruber pointed out that he had informed Mr. Osthues about this, namely
that the question of the applicant's health  was a medical and not a
legal question.

As regards the remedies brought by the applicant, Mr. Gruber submitted
that the applicant's numerous complaints about his state of health were
not to be considered as formal complaints under the Code of Penal
Procedure. With respect to the applicant's formal request of 24 October
1969, Mr. Gruber said that, before reaching his decision thereupon, he
had asked for the opinion of the Public Prosecutor who had advised that
he would object to the applicant's release because of the danger of his
absconding and the risk of collusion. Mr. Gruber himself had agreed
with this opinion because he had considered, on the basis of Dr.
Schättinger's opinion of 30 October 1969, that the applicant had been
fit for detention, and that reasons for his detention continued to
exist. Since the Public Prosecutor had not dealt with the question of
the applicant's physical fitness for detention, Mr. Gruber had been of
the opinion that he himself had also no need to deal with it but he
confirmed that he had been of the opinion that the applicant was in
fact fit for detention. On the basis of this, Mr. Gruber said that he
had told the applicant, before the latter had drafted his complaint of
24 October 1969 that his state of health could legally not be taken
into consideration and that, according to his, Mr. Gruber's opinion,
release would not be granted on grounds of the applicant's health. In
this respect Mr. Gruber denied that he had ever told Mr. Osthues, the
applicant's German counsel, that unfitness for detention was no reason
for release under Austrian law. Mr. Gruber stated that his decision of
5 November 1969, by which he had refused the applicant's release, had
been served on the applicant only, since the request concerned had been
introduced by the applicant and not by his counsel. Mr. Gruber said
that he had given the applicant the advice that an appeal to the
Judges' Chamber and to the Court of Appeal  would have no success, but
he had also told the applicant that an appeal was available. Mr. Gruber
confirmed that he had seen all the letters of the applicant to Mr.
Osthues and other persons, in which the applicant had complained about
his bad treatment in prison, including his allegation that he had not
received medical attention, but submitted that this could not affect
the situation, since the applicant had refused to accept the treatment
prescribed by the prison doctor, whom he had called a charlatan.

Mr. Straberger submitted that he had been continuously informed as to
the state of health of the applicant through Mr. Gruber and Dr.
Schättinger. He stated that he had been fully aware of the contents of
Dr. Schättinger's report of 30 October 1969 by which the applicant was
found fit for detention provided that he underwent orthopaedic
gymnastics regularly at Wels Hospital. On the basis of this report Mr.
Straberger had found it unnecessary to lodge further formal requests
for release of the applicant since they would have been ineffective as
long as there was no medical opinion available to the effect that the
applicant was really unfit for detention. Mr. Straberger, therefore,
intervened many times with the President of the Regional Court, who at
the same time was responsible for the prison administration, the Public
Prosecutor, and the Investigating Judge, in order to have the applicant
transferred to a prison hospital. Mr. Straberger emphasised that he had
known that the President of the Regional Court had frequently requested
the Ministry of Justice to allow the transfer of the applicant. He also
submitted that he had been of the opinion that, in the circumstances
of the case, informal intervention for the applicant was more expedient
and had more chance of success than any formal complaint under the Code
of Penal Procedure. That had been the reason why he had not lodged any
further complaints or requests for release. Mr. Straberger said in this
connection that he had not known until the day of the hearing before
the Commission's Delegates that Mr. Simon-Herold had himself made a
further formal request for release, on 24 October 1969. He had
therefore not been given a copy of the decision of 5 November 1969 and
had, accordingly, not advised the applicant as to the possibility of
appeal. Mr. Straberger stated, however, that he had not known that the
applicant, on 10 December 1969, had been examined by Dr. Steinhäusl,
nor had he been informed of Dr. Schättinger's medical report of 14
January 1970 on the applicant's state of health. Mr. Straberger
indicated that, in view of the applicant's fitness for detention as it
appeared from the medical reports of 4 August 1969 and 30 October 1969,
his main concern had always been to have the applicant receive better
medical attention, but not release, since he had known that complete
unfitness for detention was rare. He added that he knew of cases, in
particular where the detained had suffered from tuberculosis, where the
detained person had been released as being unfit for detention, but he
thought that the applicant had not been unfit to this extent.

II.  As to Mr. Straberger's access to the applicant

Mr. Gruber submitted that Mr. Straberger had been very active as the
applicant's defence counsel in the first period of the applicant's
detention but that later Mr. Simon-Herold had on no occasion requested
the visit of Mr. Straberger. He stressed that he had never refused Mr.
Straberger permission to see the applicant and, as regards the
correspondence between the applicant and Mr. Straberger, Mr. Gruber
said that there had been only a few letters. As regards the days before
and after 24 October 1969 no requests to see each other had been made
either by Mr. Straberger or Mr. Simon-Herold.

Mr. Straberger submitted in this respect that he had always had the
possibility of seeing his client and that he had never been refused
access to him. He could also correspond with his freely, and he had at
no time been hindered in carrying out his professional obligations with
regard to the applicant.

THE LAW

Whereas first, the respondent Government submitted that the applicant
had abused his right to petition under Article 25 (Art. 25) of the
Convention and that, therefore, the application should be considered
inadmissible under Article 27, paragraph (2) (Art. 27-2), of the
Convention;
Whereas the Government submits in this respect that the applicant, when
requested to give evidence before the German District Court in Munich
with regard to the criminal proceedings opened against him in Austria,
stated that he would "only reply to these questions after the Regional
Court of Wels had justified itself before the European Commission of
Human Rights in Strasbourg as regards the prejudice which it had caused
him";

Whereas the applicant submitted that, according to German law, nobody
was obliged to make statements before a court and that he did not want
to prejudice his application before the Commission;

Whereas the Commission finds that the proceedings before the German and
Austrian courts are not linked with the proceedings instituted by the
applicant before the Commission; that, therefore, the applicant had
made the above remarks in proceedings which are not connected with the
present application; that, consequently these remarks are not relevant
in the present proceedings before the Commission; whereas,
consequently, the Commission cannot consider this application to be
inadmissible under Article 27, paragraph (2) (Art. 27-2), of the
Convention;

Whereas the applicant complains that he was treated as a criminal while
being detained on remand and that such treatment amounts to a breach
of Article 6 (2) (Art. 6-2) of the Convention which provides that
"everyone charged with a criminal offence shall be presumed innocent
until proved guilty according to law"; whereas he submits, in this
respect, that the Investigating Judge and police officers had
frequently called him a fraudulent person and a criminal; whereas the
Commission finds, however, that this allegation is not corroborated by
any evidence submitted to it by the applicant; whereas, therefore, the
Commission finds that there is no appearance of a violation of the
provisions of Article 6 (2) (Art. 6-2) of the Convention in the present
case;

Whereas, consequently, this part of the application is manifestly
ill-founded and must be rejected in accordance with Article 27 (2)
(Art. 27-2) thereof;

Whereas the applicant further complains that he was beaten up and
received physical injuries during his detention in the Regional Court's
Prison at Wels; in particular, that a police officer upon his arrest
injured him by giving him a severe punch and later slapped him in the
face; whereas the applicant invokes in this respect Article 3 (Art. 3)
of the Convention which provides "No one shall be subjected to torture
or to inhuman or degrading treatment or punishment";

Whereas the respondent Government submitted, having regard to Article
26 (Art. 26) of the Convention, that the applicant had not exhausted
his remedies under Austrian law with regard to this complaint since he
merely laid charges against the police officers concerned and against
the Investigating Judge, without substantiating them;

Whereas the Government, in particular, objects that the applicant had
also not used the possibilities under Article 48 of the Code of Penal
Procedure to bring a subsidiary prosecution against the persons
concerned; whereas the Government concludes that, therefore, the
applicant has not availed himself of any of the remedies provided for
in Austrian law;

Whereas the applicant submits that he had not yet elaborated the
charges laid by him against the Investigating Judge and the police
officer and had not given the additional information requested since,
after his release from prison on 23 January 1970, his principal concern
had been to recover his health and to get proper medical attention;
Whereas, on 2 January 1971 the applicant laid charges against the above
officials and other unknown persons and substantiated his accusations
therein; whereas, therefore, proceedings before the Austrian
authorities are still pending with regard to the applicant's present
complaint;

Whereas under Article 26 (Art. 26) of the Convention the Commission may
only deal with a matter after all domestic remedies have been exhausted
according to the generally recognised rules of international law; and
whereas the Commission finds that the applicant has not yet exhausted
the possibilities offered to him under Article 48 of the Code of Penal
Procedure, that is to bring a private prosecution against the above
officials; whereas, therefore, he has not exhausted the remedies
available to him under Austrian law; whereas, moreover, an examination
of the complaint as it has been submitted, including an examination
made ex officio, does not disclose the existence of any special
circumstances which might have absolved the applicant according to the
generally recognised rules of international law, from exhausting the
domestic remedies at his disposal; whereas, therefore, as regards the
applicant's above complaint, the condition as to the exhaustion of
domestic remedies laid down in Articles 26 and 27 (3) (Art. 26, 27-3)
of the Convention has not been complied with by the applicant;

Whereas the applicant finally alleges that his treatment during his
detention on remand in Wels Prison from 31 July 1969 until 23 January
1970 amounted to inhuman treatment and degrading treatment within the
meaning of Article 3 (Art. 3) of the Convention and also that his right
to life, as guaranteed under Article 2 (Art. 2), was violated;

Whereas the applicant's complaints in this respect are set out under
paragraph 3 above;

Whereas the Commission has first considered the respondent Government's
objection that the applicant had not exhausted his remedies available
to him under Austrian law; whereas the Government in particular submits
that the applicant's request for release of 29 August 1969, as well as
the appeals against the decision given as regards this request, could
not be considered in this connection since the applicant did not then
rely on his unfitness for detention as a ground for his request for
release; whereas the Government further submits that the applicant also
failed to appeal against the decision of the Investigating Judge of 5
November 1969 and that this was the only decision which was given on
a formal request by the applicant to be released on the ground of his
bad state of health; whereas the Government also submits that the
applicant had been formally advised by the Investigating Judge as to
his possibilities to appeal to the Judges' Chamber against the above
decision; further that the applicant's numerous complaints, which he
had made in letters to the President of the Court or in other letters,
could not be considered in respect of the question of the exhaustion
of domestic remedies, since they were not made in a request formally
put to the Court; whereas the respondent Government concludes that the
applicant had thus not taken all necessary steps to put his claim
formally before the several Austrian courts which would have been
competent to grant his release on the ground of his unfitness for
detention; whereas, consequently, the applicant had, according to the
Government failed to exhaust his domestic remedies within the meaning
of Article 26 (Art. 26) of the Convention.

Whereas in this connection the applicant submitted that he had
exhausted these remedies by virtue of his numerous judicial and
extra-judicial complaints lodged against his detention; whereas, in
particular, he refers to his request for release of 24 October 1969,
which he was refused by the Investigating Judge on 5 November 1969;

Whereas, in this respect, the applicant states that he did not make a
further appeal against this decision because the Investigating Judge
had informed him that any appeal, although provided for under the Code
of Penal Procedure, would be useless and unsuccessful; whereas he
alleged that this information was confirmed, in general by his Austrian
counsel, Mr. Straberger, who had previously told him that any further
requests for release or appeals against the decisions of the
Investigating Judge would be useless in view of the decision of the
Court of Appeal of 1 October 1969; whereas the applicant furthermore
submits that he could not consult his counsel on this question after
5 November 1969, when the essential decision of the Investigating Judge
was given, since the latter had refused to allow Mr. Straberger to see
him;

Whereas the Commission first had regard to the complaint of the
applicant with respect to his treatment in Wels Prison during the
period from 31 July 1969 until 24 October 1969; whereas it appears from
the facts before it that the applicant, during that period, complained
against his detention and on 29 August requested his release from
prison; this request was refused by decision of 8 September, and the
applicant on the same day appealed to the Judges' Chamber which also
refused to release him; the applicant's further appeal against this
decision was dismissed on 1 October 1969 by the Linz Court of Appeal;

Whereas the Commission notes that no other formal request for release
was made by the applicant during this period and whereas it is of
essential importance that, in the requests mentioned above, the
applicant failed to invoke his bad state of health as a ground for
release;

Whereas, therefore, the applicant did not put his case fully before the
several Austrian courts which would have been competent to deal with
it;

Whereas, therefore, the applicant has not exhausted the remedies
available to him under Austrian law;

Whereas the Commission, in this respect, refers to its previous
decision No. 1661/62, YB VI p. 366, where it held that, "for the
purposes of applying Article 26 (Art. 26) of the Convention, any
complaint made to it in respect of a lower national court must first
have been brought, at least in substance, before the appropriate higher
court ...; whereas an application ... may thus prove to be inadmissible
if the victim of the alleged violation has not given his judges an
opportunity to remedy that violation because the Convention was not
invoked or no other arguments to the same effect were raised ...";

Whereas this applies, a fortiori, to the present complaint since the
applicant, during this first period of his detention, had not put his
complaint at all before any of the competent Austria courts;

Whereas, therefore, as regards this period the condition as to the
exhaustion of domestic remedies laid down in Articles 26 and 27 (3)
(Art. 26, 27-3) of the Convention has not been complied with by the
applicant;

Whereas as regards the second period of the applicant's detention the
Commission notes that the applicant in a formal complaint to the
Investigating Judge on 24 October 1969 requested his release from
prison in view of his physical unfitness for detention;

Whereas, the Commission again, however, had regard to the question
whether or not the applicant had complied with the rule regarding the
exhaustion of domestic remedies in spite of the fact that he failed to
appeal against the Investigating Judge's decision of 5 November 1969;

Whereas the applicant alleged that he had been advised by both the
Investigating Judge and his counsel that such an appeal would be
useless and further that his counsel was refused access to him by the
Investigating Judge;
Whereas, therefore, the issue put before the Commission whether or not
special circumstances existed which, according to the rules of
international law within the meaning of Article 26 (Art. 26) of the
Convention, absolved the applicant from exhausting the remedy available
to him namely the lodging of the above appeal [see the Commission's
decisions No. 181/63, Yearbook, Vol. I, p. 140; 27/55, Yearbook, Vol.
I, 139; 1918/63, Yearbook, Vol. VI, p. 492; 1404/62 (Wiechert v.
Federal Republic of Germany), Yearbook, Vol. VII, 134];

Whereas in this respect the Commission first had regard to the evidence
before it, and in particular the statements of the two witnesses heard
by its Delegates; whereas it finds that the applicant had indeed been
advised by the Investigating Judge that any further appeal against the
decision of 5 November 1969 would be useless and had no chance of
success; whereas at the same time the Commission noted that the
Investigating Judge expressly informed the applicant in writing that
such an appeal was, in principle, open to him; whereas it also finds
that the applicant's counsel, Mr. Straberger, was generally of the same
opinion, although he had not been consulted by the applicant as to the
lodging of a further appeal against the said decision;

Whereas the Commission further finds that the applicant's allegations
that the Investigating Judge had refused the applicant permission to
see his counsel were not corroborated by the evidence before the
Commission; whereas, on the contrary, the Commission finds that the
applicant's counsel was, in principle, always free to see the
applicant;

Whereas, having regard to the other circumstances of this case as
mentioned above, the Commission does not consider that the applicant,
simply by reason of the Investigating Judge's advice that a further
appeal would most likely be unsuccessful, was absolved from lodging
such an appeal; whereas the Commission, in this respect, refers to its
above decisions, and especially to its decision in application No.
1488/62 (Collection of Decisions, Vol. 13, p. 96) where it held that
the advice of the lawyers of the applicant that a further remedy would
be useless does not constitute a "special circumstance", which, under
the rules of international law within the meaning of Article 26
(Art. 26) of the Convention, absolved the applicant from exhausting
that remedy; whereas the same consideration applies in the present
case, where similar advice had been given by both applicant's counsel
and the Judge whose decision was concerned;

Whereas, however, the Commission had regard to the above rules of
international law in another context, namely "the rule of local redress
confines itself in imposing the 'normal use' of remedies 'likely to be
effective and adequate'" [see decision of the Commission No. 788/60
(Austria v. Italy), Yearbook, Vol. VII, p. 172];

Whereas, in this respect it further refers to its previous decisions
[No. 299/57 (Greece v. United Kingdom) Yearbook, Vol. II, p. 192; No.
332/57 (Lawless v. Ireland), Yearbook, Vol. II, p. 318; No. 788/60
(Austria v. Italy) p. 169],  where the Commission has held that the
exhaustion of a given domestic remedies ceases to be necessary,
according to the generally recognised rules of international law, if
the applicant can show that, in the particular circumstances, this
remedy was unlikely to be effective and adequate in regard to the
grievances in question;

Whereas, in the present case, the Commission had regard to the fact
that the Investigating Judge's decision, whether or not to release the
applicant on the ground of his unfitness for detention, depended on the
medical report before him and also to the fact that he could only grant
this release in circumstances where the medical officer had reported
to him that the person concerned was unfit for detention;
Whereas the Judge could not himself find that the person was unfit for
detention and thereby release him; whereas, in the present case, the
Investigating Judge reached his decision of 5 November 1969, on the
basis of a medical report of the medical officer, dated 30 October 1969
in which it was stated that the applicant was not unfit for detention
in the Wels Prison; whereas, consequently the Investigating Judge was
obliged to decide not to release the applicant;

Whereas, in these particular circumstances, it appears that an appeal
against the decision of the Investigating Judge would almost certainly
have been ineffective, since both the Judge's Chamber and the Court of
Appeal must also have decided on the basis of the above medical report;

Whereas, accordingly, the Commission finds that the applicant, in the
particular circumstances of his case, was absolved from appealing
against the decision of 5 November 1969 since such appeal was not an
effective remedy within the meaning of Article 26 (Art. 26); whereas,
accordingly, the applicant cannot be said not to have complied, as from
24 October 1969, with the rule laid down in Article 26 (Art. 26) of the
Convention;

Whereas, consequently, his complaints regarding his treatment while
being detained on remand during the period of 24 October 1969 until 23
January 1970 cannot be rejected under Article 26 (Art. 26) of the
Convention for non-exhaustion of domestic remedies;

Whereas, the Commission next had regard to the substance of the
applicant's complaints under Articles 2 and 3 (Art. 2, 3) as to his
ill-treatment in Wels Prison during his detention on remand, as from
24 October 1969 until 23 January 1970; whereas the Commission finds
that, in the light of the submissions of the parties, these complaints
raise important issues concerning the application and interpretation
of the Convention whose determination should depend upon an examination
of the merits of the application;

Whereas, therefore, these complaints cannot be considered as being
manifestly ill-founded within the meaning of Article 27, paragraph (2)
(Art. 27-2), of the Convention;

Now therefore the Commission

1.   Declares admissible the part of the application that relates to
the applicant's treatment in Wels Prison during the period from 24
October 1969 until 23 January 1970;

2.   Declares the remainder of the application inadmissible.