State party’s submissions on the merits and the
author’s comments
ophthalmologist. His report shows that the author’s
eye was already blind in March 1989, when he was
first examined at the Eye Hospital, as a result of an
old retinal detachment and that it had begun to show
the first signs of an external squint. The State party
concludes that the eye must have gone blind before
1988, since a blind eye does not begin to squint until
after a long period of blindness.
8.1 The State party, on 10 November 1992 and 4
January 1993, reiterates that the author made his
complaint of ill-treatment months after its alleged
occurrence. It submits that the author has suffered
from eye trouble since childhood and that the
medical records show that he complained about his
left eye for the first time on 16 September 1988. As
a result of examinations by the prison doctor on 14
November 1988, aphykia (the absence of the lens of
the eye) and ablatio retinae (detachment of the retina)
were found. Subsequently, after examinations at the
Vienna Eye Hospital it was concluded that the
author’s left eye was blind. The State party
forwarded a copy of the medical record in the
author’s case.
11.2 The State party recalls that the author was
arrested on 19 April 1988 on the suspicion of being
involved in internationally organized heroin
trafficking. On 5 December 1988, the author for the
first time claimed to have been subjected to torture
and threatened by Inspector J.J. Neither the
Journalrichter nor the investigating judge had
observed any signs of ill-treatment. The author
repeated his allegations in a number of written
submissions to the Public Prosecutor, the Attorney
General and the Minister of Justice. Police Inspector
J.J. and one of his colleagues were questioned on
these charges by the investigating judge on 16
February 1989; they rejected the accusations made
against them.
8.2 With regard to the investigations into the
author’s allegations, the State party states that the
criminal proceedings against Inspector J.J. and a
colleague were stopped by the Prosecutor’s office on
6 November 1992, on the ground that following
preliminary investigations the allegations were found
to be totally unsubstantiated. At the preliminary
hearing, the interpreter who had been present during
the interrogations testified that the conduct by the
police officers had been correct and that she had
never witnessed any acts of torture. Only two
witnesses, both co-defendants of the author, claimed
to have been given one or two blows by Inspector J.J.
All other witnesses gave exonerating evidence. No
medical evidence was available to substantiate the
allegations.
11.3 The State party submits that, since no signs of
an injury could be established and the police officers
denied the charges, no strong suspicion existed that
an act of torture had been committed. It was
therefore decided that the criminal proceedings
against the author could proceed. During the trial
against the author, from 8 to 11 January 1990,
witnesses testified that they had been ill-treated by
Inspector J.J. and his colleague. As a result,
preliminary investigations against the two policemen
were instituted on 5 March 1990.
9.1 In his comments on the State party’s
submissions, counsel maintains his claim that the
author’s eye injury was caused by Inspector J.J. at
the end of June or the beginning of July 1988, when
the author was hit with a pistol and his head was
banged against a table.
12. In his comments on the State party’s
submission, dated 21 October 1993, counsel submits
that the State party had not consulted him about the
choice of the medical expert. He further states that
the expert’s report does not necessarily exclude the
author’s version of events. He emphasizes that the
author received medical treatment in prison after
having been ill-treated but that the records of this
treatment were not kept.
9.2 Counsel further claims that some witnesses,
who could have corroborated the author’s allegations,
were not called by the Prosecutor during the
preliminary investigations against Inspector J.J.
Among these persons is the author’s wife, who no
longer lives in Austria.
Examination of the merits
13.1 The Committee has considered the
communication in the light of all information made
available to it by the parties, as required under article
22, paragraph 4, of the Convention.
10. On 26 April 1993, the Committee decided to
request the State party to appoint, in consultation
with the author’s counsel, an independent expert in
ophthalmology in order to determine the date of and
the origin of the eye injury. It further referred to
article 12 of the Convention and requested the State
party to submit written explanations clarifying the
delay in initiating the investigation of the author’s
allegations.
13.2 The Committee notes that the author has
claimed that he was ill-treated after his arrest and
that as a consequence he suffered an eye injury. The
State party has denied the alleged ill-treatment and
has claimed that the author’s eye injury dates from
childhood. It has submitted an expert report, in
which it is concluded that the author’s left eye, with
almost absolute certainty (“mit an Sicherheit
11.1 On 27 July 1993, the State party forwarded to
the Committee an expert opinion prepared by an
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