The facts presented by the Parties and apparently not in dispute
between them may be summarised as follows:

The applicant is an Austrian citizen, born in 1938 and at present
detained in prison in Krems.

On .. May 1968 the applicant was convicted by the Vienna Regional Court
(Landesgericht) of robbery, attempted theft and causing damage to
public property. The Court of Appeal amended the sentence to one of 12
years' and 6 months' severe imprisonment (schwerer Kerker). The
applicant's term of imprisonment will end on .. April 1980.

On .. December 1967 the Regional Court granted a divorce at the request
of the applicant's wife. The applicant is, according to this decision,
the guilty party.

The applicant's daughter has, since her birth in 1966, been educated
and brought up by her mother.

The mother's request to deprive the applicant of his parental power
(väterliche Gewalt) was rejected by the District Court (Bezirksgericht)
of Central Vienna. However, on .. June 1969 the mother was appointed,
with the applicant's approval, as the child's tutor (Vormünderin) for
the duration of the applicant's imprisonment. In September 1969 the
applicant's divorced wife remarried and no longer wrote to the
applicant who consequently received no more news of his daughter. The
applicant therefore requested the District Court in Vienna to order his
divorced wife or the Youth Officer (Fürsorgebehörde) to send him
regular reports concerning the education of his daughter. The mother
opposed this request. The Court rejected the request on .. August 1970
stating that only the mother was entitled to educate
(erziehungsberechtigt) the girl and the father therefore had no right
to interfere. He only had the right to visit his daughter
(Besuchsrecht) which, however, he could not exercise because he was in
prison. The Court further transferred to the District Court in
Floridsdorf the handling of the guardianship matters (Pflegschaft)
because both mother and child had moved and were living in the district
of the latter Court.

The applicant appealed (Rekurs) against the Vienna District Court's
decision insofar as it rejected his request. On .. September 1970 the
Vienna Regional Court decided that the appeal was unfounded. The Court
stated that, according to Article 176 of the Civil Code (ABGB), a
father's right of custody (väterliche Gewalt) is inoperative (außer
Wirksamkeit) if he is sentenced to imprisonment for more than one year.
Therefore, the applicant could not, in fact, exercise his right of
custody and there was no obligation on the part of the tutor to send
him reports on his child.

The applicant then requested the District Court at Floridsdorf to give
him every six months a report on the welfare and living conditions of
his child. He stated that he was well aware that he had no right to
interfere with his daughter's education but at least he wanted to know
what was happening to her.

On .. May 1971 the District Court at Floridsdorf refused to give the
applicant any information concerning his daughter. The Court stated
that the applicant had no right to such information because his right
of custody was inoperative while he was in prison. The Court further
stated that it saw no reason to take any measures in its capacity as
guardian of the applicant's daughter (pflegschaftsbehördliche
Maßnahmen) because, according to a report from the Youth Office (BJA),
the child's step-father was taking good care of the applicant's
daughter and treated her as if she were his own child.

The applicant's appeal (Rekurs) against this decision was rejected by
the Vienna Regional Court on .. August 1971. The Court confirmed the
District Court's finding that the applicant had no right to claim
information concerning his child. Against this decision the applicant
lodged an appeal (Revisionsrekurs) to the Supreme Court (Oberster
Gerichtshof). The appeal was rejected on .. November 1971 as being
inadmissible. The Supreme Court stated that, according to Article 16
(1) of the Act on Non-contentious Proceedings (AussStrG) the appeal
would only have been admissible if the decision appealed against was
clearly in violation of the law (offenbare Gesetzeswidrigkeit).
However, in the opinion of the Supreme Court the lower courts were
correct in finding that there were no statutory provisions, including
Article 8 of the Convention on Human Rights, from which the applicant
could derive a right to be kept informed on the life of his child.

The applicant also complained to the Constitutional Court
(Verfassungsgerichtshof) of the decision given by the Vienna Regional
Court on .. August 1971. At the same time he applied for legal aid
(Armenrecht). On ..December 1971 the Constitutional Court rejected the
application stating that it had no competence to examine court


The applicant stated that after some delay and difficulty he finally
was given leave to examine the court files concerning his daughter. It
was on that occasion only that he allegedly found out that the husband
of his divorced wife had, nearly one year before, made an application
to adopt the applicant's daughter.

He further alleged that his handcuffs were not taken off when he was
taken before the District Court judge in order to examine the files and
to state whether he had any objection to the adoption.

He alleged that the refusal of the authorities to give him information
concerning his child violates Articles 3 and 8 of the Convention.
Furthermore, he was of the opinion that he was subjected to degrading
treatment because his handcuffs were not taken off when he was being
questioned by the judge as to whether he had any objection to the
adoption of his daughter.

Proceedings before the Commission

The Commission decided on 6 April 1973 to communicate the application
to the Austrian Government for their observations on the admissibility.
After receipt of these observations (15 June 1973) and the applicant's
reply (2 July 1973) a Rapporteur was appointed to examine the legal
situation under Austrian law.

The Rapporteur instructed the Commission's Secretary in accordance with
Rule 45, 2 b) of the Commission's Rules of Procedure to ask the
respondent Government for information concerning the applicant's
allegation that he was not informed of the adoption proceedings. This
information was received on 22 November 1973. The applicant was invited
to reply. He informed the Commission's Secretary by letter of 2
December 1973 that he had arranged himself with "the adverse party" and
no longer saw any reason to pursue his application. However, in a
further letter of 2 February 1974 he again requested the Commission to
examine his case.

Summary of the Government's submissions

1)   On .. February 1971 the District Court in Florisdorf sent the
files concerning the applicant's daughter to the District Court in
Krems so that the applicant should have the opportunity of examining
them. This was done on .. March 1971.

Following a further petition made by the applicant the District Court
in Florisdorf requested the Youth Officer to give a report. On .. May
1971 the Youth Officer reported that in the present circumstances there
was no necessity for the authorities to take any measures. It was also
mentioned that the child did not even know that the second husband of
the applicant's ex-wife was not her father.

2)   The applicant's allegation that he was not informed of the
adoption proceedings concerning his daughter conducted before the
Florisdorf District Court is incorrect.

On .. May 1971, S., the step-father of the applicant's daughter, filed
with the Florisdorf Guardianship Court (Pflegschaftsgericht) an
application for authorization of the adoption contract concluded on ..
April 1971. The Florisdorf District Court, on .. May 1972, forwarded
to the District Court of Krems the guardianship files together with a
request to allow the applicant to inspect the files and "to ask him,
on rogatory commission, whether he agreed to an adoption of the minor
girl by S. ... as to the adoptive father ... in accordance with Article
181, paragraph 1, sub-paragraph 1, of the Civil Code, or to state any
justified reasons he had to put forward for his refusal.

On .. June 1972 the applicant was again allowed to inspect the files,
and he was asked whether he agreed to the envisaged adoption. He
emphatically refused to do so. Thereupon he was given a warning of his
rights by informing him of the relevant rules of the Civil Code, and
he said that he would state in writing the reasons for his refusal to

In an extensive submission to the District Court in Florisdorf of ..
June 1972, the applicant stated his reasons which, in his view, were
telling against an authorization of the adoption contract by the Court.
Pursuant to Article 181, paragraph 3, of the Civil Code this Court will
have to examine, among other things, whether those reasons justify the
applicant's refusal to consent to the adoption. So far no decision has
been rendered concerning an authorization of the adoption contract.

3)   The impossibility of living with his child or obtaining
information about her is a necessary consequence of the applicant's
lawful detention and does not violate Articles 8 or 3 of the

4)   The Convention gives protection against certain interventions by
the State (staatliche Eingriffe) but it does not guarantee a right of
an individual to ask the State to take certain action in his interest
(positive Tun).

The child's mother is herself not obliged to give the applicant the
reports requested by him. Such an obligation cannot be derived from the
Convention which only imposes obligations on the States.

If Articles 3 and 8 of the Convention were interpreted in the sense
that these provisions oblige States to interfere actively and change
situations which are inhuman or contemplated adversely to affect family
life this would have far reaching consequences. The State would then
be obliged to arrange for adequate housing for all who live in inhuman
conditions in flats which are in a state of disrepair or which are too
small for a family.

5)   Apart from that the District Court has sufficiently informed the
applicant about his daughter as he was repeatedly given the opportunity
to examine the court files concerning his daughter especially the
reports of the Youth Officer which were in those files. He also had the
opportunity to copy these documents. The applicant therefore has no
reason to complain as there is no right to request information in the
form of periodical reports concerning his daughter.

6)   Each violation of any of the rights guaranteed by the Convention
is an inhuman treatment. Article 3 therefore only applies when there
is no violation of any other article of the Convention. In the present
case the alleged inhuman treatment allegedly violates Article 8.
Article 3 consequently does not apply.

7)   Even if it were to be assumed that the State has to reserve
family life by active measures there is no violation of Article 8 in
the present case because the applicant's situation is the normal
consequence of his lawful conviction and sentence. The execution of the
sentence is justified under Article 8 (2) even if it infringes the
applicant's right to family life.

8)   Insofar as the applicant complains that he was taken handcuffed
before the District Court judge he did not exhaust domestic remedies
as he could have lodged a complaint (Beschwerde) against this measure
(Articles 103 and 120 of the Austrian Code of Criminal Procedure).

Summary of the applicant's reply

The Government have only mentioned those facts which make him appear
to be a dangerous criminal. They did not mention that in the first
instance he was sentenced to five years' severe imprisonment only. The
applicant considers unjust and too sever the decision of the Court of
Appeal which amended his sentence to one of twelve years' and six
months' imprisonment.

The applicant states that during his divorce proceedings he had a
nervous breakdown and was therefore not in a position to defend his
case. His requests for a rehearing were rejected.

He alleges that he was only given permission to examine the court files
concerning his daughter after he had made various requests and

He fears that he will lose his daughter completely if the new husband
of his ex-wife is given leave to adopt her.

As regards his complaint that he was taken handcuffed to the court the
applicant alleges that this was only done after he had made repeated
requests to be informed about his daughter.

He further alleges that he complained to the Public Prosecutor and was
then no longer handcuffed.


1)   The applicant has complained that the Austrian authorities refuse
either to order his wife, or themselves to arrange to give him
information concerning his child and in this context he also alleged
that he was not promptly informed of the adoption proceedings.

It is true that Article 8 (Art. 8) of the Convention secures to
everyone the right to respect for his family life. However, this
provision is primarily negative in the sense that it gives protection
against unjustified interference with family life by public
authorities, but does not oblige the State positively to re-establish
conditions of family life already impaired, as in the present case, by
divorce and the suspension of the rights of custody of the father.

The applicant's complaint that the judicial authorities neither ordered
his wife, nor themselves arranged, to provide him with reports on his
child can therefore not be regarded as a violation of Article 8
(Art. 8) of the Convention.

As regards the adoption proceedings, the Government have submitted
copies of the records of the court hearings which show the applicant
had, in accordance with Article 181 of the Austrian Civil Code, been
requested to consent to the adoption. He was also informed that
according to Article 181 (3) of the Civil Code, the competent court
could give its consent to the adoption if he gave no valid reasons for
refusing his own consent. He was then given the opportunity to submit
in writing his objections against the adoption. It is clear therefore
that the applicant had full knowledge of the impending adoption

An examination by the Commission of these complaints as they have been
submitted, including an examination made ex officio, does not therefore
disclose any appearance of a violation of the rights and freedoms set
out in the Convention and in particular in the above Article.

2)   The applicant has further complained that he was taken handcuffed
to the court when he was first given the opportunity to examine the
files concerning his daughter. However, 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.

In the present case the applicant failed to lodge an appeal against the
security measures in question and has, therefore, not exhausted the
remedies to him under Austrian law. Moreover, an examination of the
case 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.

It follows that the applicant has not complied with the condition as
to the exhaustion of domestic remedies and his application must in this
respect be rejected under Article 27 (2) (Art. 27-2), of the

For these reasons, the Commission declares this application