هيثم الفقى
07-14-2009, 12:44 AM
X. v. AUSTRIA - 913/60 [1961] ECHR 5 (19 December 1961)
THE FACTSWhereas the facts presented by the Applicant may be summarised asfollows:The Applicant is an Austrian citizen, born in ... and at presentdetained in prison at A.On ... 1957 he was sentenced to four years' imprisonment by theRegional Court (Landesgericht) at A. on charges of having committedindecent offenses with children. His appeal against this decision wasdismissed by the Supreme Court (Oberster Gerichtshof) on ... 1958.The following applications for a retrial were then lodged by theApplicant:(1) an application of ... 1958 which was dismissed by the RegionalCourt at A. on ... 1958 and, on appeal (Beschwerde), by the Court ofAppeal (Oberlandesgericht) at A. on ... 1958 on the ground that it didnot disclose any relevant new facts or evidence;(2) an application of ... 1958 which was rejected for the same reasonby the Regional Court on ... 1958 and, on appeal, by the Court ofAppeal on ... 1959; (3) an application of ... 1960 which was dismissedon the same ground by the Regional Court on ... 1960 and, on appeal,by the Court of Appeal on ... 1960. The decisions of the Regional Courtand the Court of Appeal mentioned under (1), (2) and (3) above, weretaken in non-public sessions in the absence of the Applicant or hislawyer and "after hearing" ("nach Anhörung") the Public Prosecutor.The Applicant states that his Application is based on Article 26 of theConvention. He alleges that he was wrongly convicted and he claims anew trial or a reduction of his sentence.THE LAWWhereas the facts alleged by the Applicant in regard to his convictionand the proceedings concerning his first application for a retrialrelate to a period prior to 3rd September, 1958, the date of the entryinto force of the Convention on Human Rights and Fundamental Freedomswith respect to Austria; whereas, in accordance with the generallyrecognised rules of international law, the said Convention onlygoverns, for each Contracting Party, facts subsequent to its entry intoforce with respect to that Party; whereas it follows that theApplication, insofar as it relates to these alleged facts, must berejected ratione temporis;Whereas, in regard to the proceedings concerning the second and thirdpetitions for a retrial, lodged by the Applicant with the RegionalCourt in ... 1958 and ... 1960 respectively, it is to be observed that,under Article 353, paragraph (2) of the Austrian Code of CriminalProcedure (Strafprozessordnung), a convicted person may, after theconclusion of criminal proceedings, lodge a petition for a retrial ifhe submits new facts or evidence which appear likely, either bythemselves or combined with evidence previously produced, to justifyhis acquittal or a sentence based on a less serious criminal charge;Whereas during the proceedings concerning the examination of suchpetition the previous conviction remains valid and will be modifiedonly to the extent that the petition is admitted (Articles 357 and 358of the Code); whereas it follows that the function of the Austriancourts, in deciding such petitions in accordance with Articles 353, 357and 358 of the Code, is not to determine a "criminal charge" against,or any "civil rights or obligations" of, the person concerned, withinthe meaning of Article 6 (Art. 6) of the Convention, but solely todecide, after the conclusion of criminal proceedings and the convictionof the accused, whether his case should be re-opened; and whereas theproceedings relating to this question are not such as fall within theterms of Article 6 (Art. 6) of the Convention;Whereas it follows that the Regional Court and the Court of Appeal atA., when deciding the second and third petitions for a retrial lodgedby the Applicant, did not constitute tribunals to which the terms ofArticle 6 (Art. 6) of the Convention could apply; whereas, thereforein regard to this part of the Application, an examination of the caseas it has been submitted including an examination ex officio, does notdisclose any appearance of a violation of the rights and freedoms setforth in the Convention; whereas, consequently, this part of theApplication is manifestly ill-founded and must be rejected inaccordance with Article 27, paragraph (2) (Art. 27-2) of theConvention;Now therefore the Commission declares this Application INADMISSIBLE."
THE FACTSWhereas the facts presented by the Applicant may be summarised asfollows:The Applicant is an Austrian citizen, born in ... and at presentdetained in prison at A.On ... 1957 he was sentenced to four years' imprisonment by theRegional Court (Landesgericht) at A. on charges of having committedindecent offenses with children. His appeal against this decision wasdismissed by the Supreme Court (Oberster Gerichtshof) on ... 1958.The following applications for a retrial were then lodged by theApplicant:(1) an application of ... 1958 which was dismissed by the RegionalCourt at A. on ... 1958 and, on appeal (Beschwerde), by the Court ofAppeal (Oberlandesgericht) at A. on ... 1958 on the ground that it didnot disclose any relevant new facts or evidence;(2) an application of ... 1958 which was rejected for the same reasonby the Regional Court on ... 1958 and, on appeal, by the Court ofAppeal on ... 1959; (3) an application of ... 1960 which was dismissedon the same ground by the Regional Court on ... 1960 and, on appeal,by the Court of Appeal on ... 1960. The decisions of the Regional Courtand the Court of Appeal mentioned under (1), (2) and (3) above, weretaken in non-public sessions in the absence of the Applicant or hislawyer and "after hearing" ("nach Anhörung") the Public Prosecutor.The Applicant states that his Application is based on Article 26 of theConvention. He alleges that he was wrongly convicted and he claims anew trial or a reduction of his sentence.THE LAWWhereas the facts alleged by the Applicant in regard to his convictionand the proceedings concerning his first application for a retrialrelate to a period prior to 3rd September, 1958, the date of the entryinto force of the Convention on Human Rights and Fundamental Freedomswith respect to Austria; whereas, in accordance with the generallyrecognised rules of international law, the said Convention onlygoverns, for each Contracting Party, facts subsequent to its entry intoforce with respect to that Party; whereas it follows that theApplication, insofar as it relates to these alleged facts, must berejected ratione temporis;Whereas, in regard to the proceedings concerning the second and thirdpetitions for a retrial, lodged by the Applicant with the RegionalCourt in ... 1958 and ... 1960 respectively, it is to be observed that,under Article 353, paragraph (2) of the Austrian Code of CriminalProcedure (Strafprozessordnung), a convicted person may, after theconclusion of criminal proceedings, lodge a petition for a retrial ifhe submits new facts or evidence which appear likely, either bythemselves or combined with evidence previously produced, to justifyhis acquittal or a sentence based on a less serious criminal charge;Whereas during the proceedings concerning the examination of suchpetition the previous conviction remains valid and will be modifiedonly to the extent that the petition is admitted (Articles 357 and 358of the Code); whereas it follows that the function of the Austriancourts, in deciding such petitions in accordance with Articles 353, 357and 358 of the Code, is not to determine a "criminal charge" against,or any "civil rights or obligations" of, the person concerned, withinthe meaning of Article 6 (Art. 6) of the Convention, but solely todecide, after the conclusion of criminal proceedings and the convictionof the accused, whether his case should be re-opened; and whereas theproceedings relating to this question are not such as fall within theterms of Article 6 (Art. 6) of the Convention;Whereas it follows that the Regional Court and the Court of Appeal atA., when deciding the second and third petitions for a retrial lodgedby the Applicant, did not constitute tribunals to which the terms ofArticle 6 (Art. 6) of the Convention could apply; whereas, thereforein regard to this part of the Application, an examination of the caseas it has been submitted including an examination ex officio, does notdisclose any appearance of a violation of the rights and freedoms setforth in the Convention; whereas, consequently, this part of theApplication is manifestly ill-founded and must be rejected inaccordance with Article 27, paragraph (2) (Art. 27-2) of theConvention;Now therefore the Commission declares this Application INADMISSIBLE."