المساعد الشخصي الرقمي

مشاهدة النسخة كاملة : X. v. AUSTRIA - 1127/61 [1961] ECHR 7 (19 December 1961)



هيثم الفقى
07-14-2009, 12:42 AM
X. v. AUSTRIA - 1127/61 [1961] ECHR 7 (19 December 1961)
THE FACTSWhereas the facts presented by the Applicant may be summarised asfollows:The Applicant is an Austria citizen, born in ...The Applicant states that on ... 1960 he was convicted by the RegionalCourt (Landesgericht) in A. on charges of fraud and embezzlement andsentenced to one year's imprisonment, with the additional penalty of"sleeping hard" (hartes Lager) and a fasting diet once every threemonths. He further states that, on appeal by the Director ofProsecutions (Staatsanwaltschaft), the Court of Appeal(Oberlandesgericht) in A. on ... May 1960 increased his sentence tofive years' imprisonment together with the additional penalties alreadymentioned.From official documents submitted by the Applicant, it appears that,in 1960 and 1961, he lodged two petitions for clemency with theRegional Court in A. and that the Court, "having heard" ("nachAnhörung") the Public Prosecutor (Staatsanwaltschaft), dismissed thesepetitions on ... 1960 and ... 1961 respectively.(1) On the same day, the Commission adopted a similar decision withregard to another Application (No. 1128/61 - Y. against Austria). TheApplicant states that, in ... 1960, he addressed a further petition forclemency to the Minister of Justice which was equally unsuccessful. TheApplicant alleges violations of Articles 3, 6, 13 and 14 of theConvention. He asks for a humane sentence.THE LAWWhereas Article 26 (Art. 26) of the Convention provides that theCommission may only deal with a matter "within a period of six monthsfrom the date on which the final decision was taken"; whereas thedecision of the Court of Appeal in A., being the final decisionregarding the Applicant's conviction for fraud and embezzlement, wastaken on ... May 1960; whereas, furthermore, the present Applicationwas not submitted to the Commission until 16th May 1961, that is morethan six months after the date of the decision of the Court of Appeal;whereas it follows that the Applicant, insofar as he complains of thisdecision, has not satisfied the six months' limit laid down in Article26 (Art. 26) of the Convention; whereas, therefore, this part of theApplication must be rejected in accordance with Article 27, paragraph3 (Art. 27-3) of the Convention;Whereas, in regard to the clemency proceedings which took place in theRegional Court in 1960 and 1961, it is to be observed that Article 411of the Austrian Code of Criminal Procedure (Strafprozessordnung)provides that the right to pardon or to commute a sentence lies withthe President of the Republic (paragraph 1); whereas petitions byprisoners for clemency are received by the prison authorities and,together with a statement as to the behaviour and health of theprisoner, transmitted to the court of first instance (paragraph 3);Whereas the court of first instance may either dismiss the petition ifit does not find that there are strong grounds for pardon orcommutation of the sentence or submit the case together with itsrecommendation to the court of second instance; whereas, the court ofsecond instance, having heard the Senior Public Prosecutor(Oberstaatsanwalt), may either dismiss the petition or submit it witha recommendation to the Minister of Justice (paragraph 4); whereas,insofar as the Applicant can be understood to allege with regard to theclemency proceedings before the Regional Court that there was aviolation of Article 6 (Art. 6) of the Convention, it is to be observedthat the clemency procedure provided for in Article 411 of the AustrianCode of Criminal Procedure refers to the exercise, after the conclusionof criminal proceedings, of the prerogative of mercy vested in thePresident of the Republic;Whereas it follows that, under Article 411, the function of theRegional Court, as the Court of first instance, was not to determinethe "civil rights or obligations" of, or a "criminal charge" against,the Applicant within the meaning of Article 6 (Art. 6) of theConvention, but solely to decide, subsequently to the conviction of theApplicant, whether a pardon or a commutation of the sentence should berecommended to the President of the Republic; whereas, therefore, theproceedings relating to this question are not such as fall within theterms of Article 6 (Art. 6) of the Convention; whereas it follows thatthe Application, insofar as it concerns the clemency proceedings beforethe Regional Court, is manifestly ill-founded and must be rejected inaccordance with Article 27, paragraph 2 (Art. 27-2) of the Convention;Whereas, in regard to the Applicant's complaint that his petition forclemency was rejected by the Minister of Justice, an examination of thecase as it has been submitted, including an examination made exofficio, does not disclose any appearance of a violation of the rightsand freedoms set forth in the Convention and, in particular, inArticles 3, 13 and 14 (Art. 3, 13, 14) and whereas it follows that theremainder of the Application is manifestly ill-founded and must alsobe rejected in accordance with Article 27, paragraph 2 (Art. 27-2) ofthe Convention;Now therefore the Commission declares this Application INADMISSIBLE."