COUNCIL OF EUROPE EUROPEAN COMMISSION OF HUMAN RIGHTS EINAL DECISION OF THE COMMISSION AS TO THE ADMISSIBILITY of Application ïïo. 1755/63 hy Johann GRAF against Austria The European Com'aission of Human Rights sitting in private on 1st June, 1965 under the presidency of Mr. L.J.C. BBAUFORT and the following memhers being present: Mrs. G, JANSSEN-PEVTSCHIÏÏ MM. F, ERmCORA F, CASTBERG G. SFERDUTI S, SIGURJONSSON J. E. 3, FAWCETT C, MAGI3IRE F. WELTER T, BALTA Mr. A. B, McNULTY, Secretary to the Commission Having regard to the Application lodged on 27th November, 1962 by Johann GRAF against Austria and registered on 4-th January, 1963 under file No. 1753/63; Having regard to the decisions of the Commission dated 2nd July, 1964 and 15th February, 1965, by which it declared parts of the Application inadmissible; Having regard to the written submissions of the Parties concerning the remainder of the Application; Having regard to the report provided for in Rule 45, paragraph (1), of the Rules of procedure of the Commission; Having deliberated, ./. A 93 040 1753/63 - 2 - THE FACTS Whereas the facts presented by the Applicant - excluding those which relate to the complaints already rejected by the Commission - may be summarised as f ollov/s : The Applicant is an Austrian citizen, born in 1921 and at present detained in prison in Vienna, His complaints relate to the conditions in the prisons of Stein and Garaten, where he was previously detained „ He states that, although suffering from achromotosis, he h^s not received proper medical treatment (notably vitamin pills) and was not given an eye ointment prescribed by the prison doctor. He also alleges that he was compelled to share a cell with prisoners suspected of having tuberculosis; he has indicated the names of two prisoners with whom he had shared'.'a cell at Stein and who were allegedly under treatment for tuberculosis. He states that, in 1963, he went on hunger strike for six weeks and that during that period he was on several occasions forcibly fed with 200 grammes of salt to make him give up his hunger strike and that this resulted in severe burns in his mouth and stomach. Finally, he alleges that at Garsten he was punished by confinement in a dark cell (Barenloch) for 45 days. He states that special cells exist at Garsten under the name of "punish- ment cellars" which are situated 20 steps below ground level. They have no windows and only a narrow closed air-shaft and they are not centrally heated. The Submissions of the Parties The Government submits that, according to the Prison Rules) a prisoner is entitled to lodge a complaint against any measures taken in regard to his treatment in prison. If the complaint concerns a measure taken by a prison officer, the Prison Director is competent to decide on the complaint; if it concerns a measure taken by the Prison Director, the Prison Superintendent (Hauskominissar) decides on the complaint, A further appeal nay be lodged with the supreme supervisory authority, which is the Federal Ministry of Justice, A similar right of complaint exists in regard to disciplinary punishments imposed upon a prisoner. The Applicant did not in any of the cases concerned exhaust these remedies, • / • ­ 3 ­ 1753/63 The Government also states that the Applicant received during his detention the medical attention required and was never kept in the cc^mc cell c.z ­•­'■­­■^ners suffering from tuberculosis. In all prisons, there is a prison doctor who is responsible for the medical treatment of the prisoners. According to the Prison Rules, each prisoner has to report any illness from which he suffers and he may also, for particular reasons, obtain permission no consult a doctor of his choice. ­ On 30th September, I960, the Applicant com­ plained that in the prison of Stein he had been made to share a cell vfxth a prisoner suffering^ or suspected of suffering from tuberculosis. On 29th December, I960, this complaint was rejected by the Prison Superintendent of the Stein Prison on the ground that, according to a report of the prison doctor. the prisoner concerned no longer suffered from tuberculosis. The Applicant did not appeal against the decision of the Prison Superintendent, The Government further submits that the Applicant went on hunger strike at Garsten during the periods 22nd May ­ 11th June, 1st ­ 8th July, 10th ­ l8th July and 19th ­ 25th July, 1963o In other prisons, he had also gone on hunger strikes in 1958 and 1959. After some days' strike, he was forcibly fed with milk containing nourishing substances. It is not tine that he ever received 200 grammes of salt; only one coffee­spoon of salt and certain other substances v/ere added to one liter of milk per day during his hunger strike in 1963. Consequently, it is not true that the Applicant suffered from burns as a result of his being forcibly fed. The Government finally maintains that the Applicant has not been doLalutd fur 45 dayc ix. ?. "Darcnloch" at Garsten. Such cells are, in fact, not used in any prison in Austria. In Garsten, he v/as punished with confinement in a dark cell on two occasions; on 16th May, 1963 for six days and on 25th October, 1963 for three days. These punishments were not carried out on successive days and the Applicant was kept in a cell which l--^! just been renovated and equipped with central heating. ./. Y15'3/e3 - 4 - The Applicant submits in reply that he was kept in a cell with two different prisoners suffering from tuber- culosis, and that the Government only comments on one of them. As regards the prisoner mentioned by the Government, it should be obseived that he was in fact ill; he received a pension as he was unable to work and he also received special food. He further states that a hospital attendant had told other prisoners that a big spoonful (Schbpfloffel) salt had been added to the Applicant's milk so that he would vomit and the salt would burn his mouth. He refers to witnesses who could testify as to the injuries he suffered from this treatment. He insists on his allegation that special punishment cells exist at Garsten and he names persons who could con- firm this. He repeats that he was detained in a dark cell for 45 days. THE LAW Whereas, in regard to the Applicant's complaint, as previously submitted to the Prison Superintendent, that he was kept in a cell together with a prisoner suffering from tuberculosis, Article 26 of the Convention provides that the Commission may only deal with a matter "within a period of six months from the date on which the final decision was taken"; and whereas the decision of the Prison Superintendent, which was the final decision regarding this complaint, was given jon 29th December, I960; whereas the present Application was not submitted to the Commission until 27th November, 1962, that is more than six months after the date of this decision; whereas, furthermore, an examination of the case does not disclose the existence of any special circumstances which might have interrupted or suspended the running of that period; whereas it follows that this part of the Application has been lodged out of time (Articles 26 and 27, paragraph (3), of the Convention); ./. 5 - 1753/63 Whereas, in regard to the remainder of the Application, it is to be observed that, under Article 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 Applicant failed to lodge any complaints or appeals in accordance with the Prison Rules; whereas, therefore, he has not exhausted the remedies available to him under Austrian law; whereas, 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; whereas, therefore, the condition as to the exhaustion of domestic remedies laid down in Articles 26 and 27, paragraph (3) of the Convention has not been complied with by the Applicant, Now therefore the Commission DECLARES THIS APPLICATION INADMISSIBLE Secretary to the Commission For the Acting President of the Commission tJîJLu {A^^^^B^^M^miJTTf (G. JANSSEN-PEVTSCHIN) fH^fU.>j ^^'fa^tii^