هيثم الفقى
07-16-2009, 01:43 PM
X. v. AUSTRIA - 3053/67 [1967] ECHR 35 (02 October 1967)
THE FACTSWhereas the facts presented by the Applicant may be summarised asfollows:The Applicant is an Austrian citizen, born in 1929 and residing atSalzburg. He has lodged a previous Application (No 1128/61) with theCommission in which he complained about his conviction and sentence bythe Regional Court (Landesgericht) at Salzburg in 1956 and also aboutthe subsequent refusal of a retrial and the dismissal of his petitionfor clemency by the said court. This Application was declaredinadmissible by the Commission's decision of 19 September 1961.From the Applicant's statements and from documents submitted by him insupport of his present Application, it appears that while he wasserving his sentence from the above conviction, his 2 children - a son,Franz, born in 1949 and a daughter, Rosa, born in 1950 - were takencharge of by the public authorities (Fürsorgeerziehung) in accordancewith an order made by the District Court (Bezirksgericht) of Salzburgon .. March 1956. Both children were committed to the care of a familyat G.The Applicant states that the children were neglected by theirfoster-parents and that he considered it necessary to make anapplication to the authorities that Rosa should be sent to an approvedschool (Erziehungsheim). Consequently, his daughter was sent to sucha school, while Franz remained with the foster-parents.On .. February 1962, the Applicant was released from detention. Hemarried in December 1964 and now wished to regain charge of hischildren. He states that his son had been convicted of a minor offenceand had also stolen money from his foster-parents who were no longerwilling to keep him in their care. Thual Youth Office (Landesjugendamt)decided in 1965 that Franz should stay with the Applicant until ..January 1966 and should subsequently be committed to an approvedschool. In March 1966 Franz apparently escaped from this school afterhaving committed several criminal offenses. The Applicant states thatthe authorities had not informed him of his son's escape and that itwas only 2 weeks later that his son called him on the telephone, askinghim for help. According to the Applicant he immediately informed theauthorities of the contact which he had established with Franz, andasked them to search for him and commit him to his care. Theauthorities allegedly refused to take any action. The Applicant statesthat he searched for his son on his own and that, having found him,Franz agreed to go with him only after he (the Applicant) had promisednot to deliver him to the authorities, which promise he made. Itappears that 3 weeks later Franz, whose whereabouts had been reportedby his sister Rosa, was returned to the school by the authorities.However, on .. May 1966, the day of his return, he escaped again andthe Applicant allegedly found him 4 days later starved and exhausted.The Applicant states that he immediately informed the Regional YouthOffice at Salzburg. In the meanwhile, on .. May 1966, the DistrictCourt at Salzburg had taken a decision to the effect that the order of.. March 1956, committing Franz to the charge of the authorities,should be repealed.However, the Regional Youth Office laid charges against the Applicantof having assisted his son in his efforts to elude the directions forhis education which had been given by the authorities, in that he hadconcealed his son's whereabouts after his escape from the approvedschool.The Applicant was brought to trial on these charges before the DistrictCourt at Salzburg. He was convicted on .. June 1966, and sentenced toa fine of 500 Schillings. The Applicant lodged an appeal (Berufung)against his conviction and sentence with the Regional Court of Salzburgand, at the same time, the Office of the Public Prosecutor(Staatsanwaltschaft) appealed (Berufung) to that Court against thesentence. The above Regional Court decided on .. November 1966 that theApplicant's appeal should be dismissed but that the prosecution'sappeal be allowed to the extent that the sentence should be increasedto one week's arrest (Arrest). The Court further ordered that theexecution of this sentence should be suspended for a probationaryperiod of 3 years.The Applicant complains:a. The Convention was violated by the authorities' failure to takeproper care of his son and to return him to his care.b. He was wrongly convicted and sentenced. He alleges that he shouldnot have been convicted of the charge preferred against him because hewas acting under an irresistible force to save his son from becominga criminal.He alleges a violation of Articles 7 and 12 of the Convention.THE LAWWhereas the Applicant complains that the Convention was violated by theauthorities' failure to take proper care of his son and to return himto his care subsequent to his release from prison;Whereas it is true that Article 8 (Art. 8) of the Convention guaranteesgenerally the right to respect for private and family life; whereas,however, paragraph (2) of Article 8 (Art. 8-2) provides that "thereshall be no interference by a public authority with the exercise ofthis right except such as in accordance with the law and is necessaryin a democratic society ... for the protection of health or morals";whereas the Commission finds that, even assuming that in thecircumstances of the present case a question might arise under Article8, paragraph (1) (Art. 8-1) of the Convention, the measures taken bythe authorities in regard to his son were necessary to protect hishealth or morals within the meaning of paragraph (2) of Article 8(Art. 8-2) of the Convention; whereas it follows that this part of theApplication is manifestly ill-founded and must be rejected inaccordance with Article 27, paragraph (2) (Art. 27-2) of theConvention;Whereas the Applicant further complains that he should not have beenconvicted for having assisted his son in his efforts to elude thedirections for his education as he was acting under an irresistibleforce to save his son from becoming a criminal; whereas it has alreadybeen stated that Article 8 (Art. 8) of the Convention guaranteesgenerally the right to respect for private and family life subject tothe restrictions set out in paragraph (2) (Art. 8-2) of this provision;whereas under Article 8, paragraph (2) (Art. 8-2) of the Convention theinterference by a public authority with the exercise of the right torespect for private and family life is also justified when such isnecessary for the prevention of disorder or crime; whereas theCommission finds that, again assuming that in the circumstances of thepresent case a question might arise under Article 8, paragraph (1)(Art. 8-1) of the Convention, the action taken against the Applicantwas necessary to prevent disorder or crime within the meaning ofparagraph (2) of Article 8 (Art. 8-2); whereas it follows that thispart of the Application is also manifestly ill-founded and must berejected in accordance with Article 27, paragraph (2) (Art. 27-2), ofthe Convention;Whereas finally in regard to the Applicant's complaint that hisconviction and sentence was wrong having regard to the facts of thecase an examination of the case as it has been submitted, including anexamination made ex officio, does not disclose any appearance of aviolation of the rights and freedoms set forth in the Convention andespecially in the Articles invoked by the Applicant; whereas, inrespect of the judicial decisions complained of, the Commission hasfrequently stated that in accordance with Article 19 (Art. 19) of theConvention its only task is to ensure observance of the obligationsundertaken by the Parties in the Convention; whereas, in particular,it is not competent to deal with an application alleging that errorsof law or fact have been committed by domestic courts, except where theCommission considers that such errors might have involved a possibleviolation of any of the rights and freedoms limitatively listed in theConvention; whereas, in this respect, the Commission refers to itsdecisions Nos 458/59 (X v. Belgium - Yearbook III, page 233) and1140/61 (X v. Austria - Collection of Decisions, Volume 8, page 57);and whereas there is no appearance of a violation in the proceedingscomplained of;Whereas it follows that this part of the Application is againmanifestly ill-founded within the meaning of Article 27, paragraph (2)(Art. 27-2), of the Convention;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 1929 and residing atSalzburg. He has lodged a previous Application (No 1128/61) with theCommission in which he complained about his conviction and sentence bythe Regional Court (Landesgericht) at Salzburg in 1956 and also aboutthe subsequent refusal of a retrial and the dismissal of his petitionfor clemency by the said court. This Application was declaredinadmissible by the Commission's decision of 19 September 1961.From the Applicant's statements and from documents submitted by him insupport of his present Application, it appears that while he wasserving his sentence from the above conviction, his 2 children - a son,Franz, born in 1949 and a daughter, Rosa, born in 1950 - were takencharge of by the public authorities (Fürsorgeerziehung) in accordancewith an order made by the District Court (Bezirksgericht) of Salzburgon .. March 1956. Both children were committed to the care of a familyat G.The Applicant states that the children were neglected by theirfoster-parents and that he considered it necessary to make anapplication to the authorities that Rosa should be sent to an approvedschool (Erziehungsheim). Consequently, his daughter was sent to sucha school, while Franz remained with the foster-parents.On .. February 1962, the Applicant was released from detention. Hemarried in December 1964 and now wished to regain charge of hischildren. He states that his son had been convicted of a minor offenceand had also stolen money from his foster-parents who were no longerwilling to keep him in their care. Thual Youth Office (Landesjugendamt)decided in 1965 that Franz should stay with the Applicant until ..January 1966 and should subsequently be committed to an approvedschool. In March 1966 Franz apparently escaped from this school afterhaving committed several criminal offenses. The Applicant states thatthe authorities had not informed him of his son's escape and that itwas only 2 weeks later that his son called him on the telephone, askinghim for help. According to the Applicant he immediately informed theauthorities of the contact which he had established with Franz, andasked them to search for him and commit him to his care. Theauthorities allegedly refused to take any action. The Applicant statesthat he searched for his son on his own and that, having found him,Franz agreed to go with him only after he (the Applicant) had promisednot to deliver him to the authorities, which promise he made. Itappears that 3 weeks later Franz, whose whereabouts had been reportedby his sister Rosa, was returned to the school by the authorities.However, on .. May 1966, the day of his return, he escaped again andthe Applicant allegedly found him 4 days later starved and exhausted.The Applicant states that he immediately informed the Regional YouthOffice at Salzburg. In the meanwhile, on .. May 1966, the DistrictCourt at Salzburg had taken a decision to the effect that the order of.. March 1956, committing Franz to the charge of the authorities,should be repealed.However, the Regional Youth Office laid charges against the Applicantof having assisted his son in his efforts to elude the directions forhis education which had been given by the authorities, in that he hadconcealed his son's whereabouts after his escape from the approvedschool.The Applicant was brought to trial on these charges before the DistrictCourt at Salzburg. He was convicted on .. June 1966, and sentenced toa fine of 500 Schillings. The Applicant lodged an appeal (Berufung)against his conviction and sentence with the Regional Court of Salzburgand, at the same time, the Office of the Public Prosecutor(Staatsanwaltschaft) appealed (Berufung) to that Court against thesentence. The above Regional Court decided on .. November 1966 that theApplicant's appeal should be dismissed but that the prosecution'sappeal be allowed to the extent that the sentence should be increasedto one week's arrest (Arrest). The Court further ordered that theexecution of this sentence should be suspended for a probationaryperiod of 3 years.The Applicant complains:a. The Convention was violated by the authorities' failure to takeproper care of his son and to return him to his care.b. He was wrongly convicted and sentenced. He alleges that he shouldnot have been convicted of the charge preferred against him because hewas acting under an irresistible force to save his son from becominga criminal.He alleges a violation of Articles 7 and 12 of the Convention.THE LAWWhereas the Applicant complains that the Convention was violated by theauthorities' failure to take proper care of his son and to return himto his care subsequent to his release from prison;Whereas it is true that Article 8 (Art. 8) of the Convention guaranteesgenerally the right to respect for private and family life; whereas,however, paragraph (2) of Article 8 (Art. 8-2) provides that "thereshall be no interference by a public authority with the exercise ofthis right except such as in accordance with the law and is necessaryin a democratic society ... for the protection of health or morals";whereas the Commission finds that, even assuming that in thecircumstances of the present case a question might arise under Article8, paragraph (1) (Art. 8-1) of the Convention, the measures taken bythe authorities in regard to his son were necessary to protect hishealth or morals within the meaning of paragraph (2) of Article 8(Art. 8-2) of the Convention; whereas it follows that this part of theApplication is manifestly ill-founded and must be rejected inaccordance with Article 27, paragraph (2) (Art. 27-2) of theConvention;Whereas the Applicant further complains that he should not have beenconvicted for having assisted his son in his efforts to elude thedirections for his education as he was acting under an irresistibleforce to save his son from becoming a criminal; whereas it has alreadybeen stated that Article 8 (Art. 8) of the Convention guaranteesgenerally the right to respect for private and family life subject tothe restrictions set out in paragraph (2) (Art. 8-2) of this provision;whereas under Article 8, paragraph (2) (Art. 8-2) of the Convention theinterference by a public authority with the exercise of the right torespect for private and family life is also justified when such isnecessary for the prevention of disorder or crime; whereas theCommission finds that, again assuming that in the circumstances of thepresent case a question might arise under Article 8, paragraph (1)(Art. 8-1) of the Convention, the action taken against the Applicantwas necessary to prevent disorder or crime within the meaning ofparagraph (2) of Article 8 (Art. 8-2); whereas it follows that thispart of the Application is also manifestly ill-founded and must berejected in accordance with Article 27, paragraph (2) (Art. 27-2), ofthe Convention;Whereas finally in regard to the Applicant's complaint that hisconviction and sentence was wrong having regard to the facts of thecase an examination of the case as it has been submitted, including anexamination made ex officio, does not disclose any appearance of aviolation of the rights and freedoms set forth in the Convention andespecially in the Articles invoked by the Applicant; whereas, inrespect of the judicial decisions complained of, the Commission hasfrequently stated that in accordance with Article 19 (Art. 19) of theConvention its only task is to ensure observance of the obligationsundertaken by the Parties in the Convention; whereas, in particular,it is not competent to deal with an application alleging that errorsof law or fact have been committed by domestic courts, except where theCommission considers that such errors might have involved a possibleviolation of any of the rights and freedoms limitatively listed in theConvention; whereas, in this respect, the Commission refers to itsdecisions Nos 458/59 (X v. Belgium - Yearbook III, page 233) and1140/61 (X v. Austria - Collection of Decisions, Volume 8, page 57);and whereas there is no appearance of a violation in the proceedingscomplained of;Whereas it follows that this part of the Application is againmanifestly ill-founded within the meaning of Article 27, paragraph (2)(Art. 27-2), of the Convention;Now therefore the Commission declares this Application inadmissible.