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X. v. AUSTRIA - 1159/61 [1962] ECHR 4 (12 March 1962)
THE FACTS (1)Whereas the facts of the case may be summarised as follows:The Applicant is an Austrian citizen, born in ... and at presentdetained in the prison of A.. He has several previous convictions andwas on ... 1959 released on probation from a labour institution.On ... 1960 the Applicant was convicted by the Regional Court(Landesgericht) of B. on several charges of theft and sentenced to 18months' imprisonment with the additional penalties of "sleeping hard"and a fast day four times a year. When fixing the sentence the Courtconsidered as extenuating circumstance the fact that the Applicant hadapparently made a partial restitution to the victims of the objectsstolen and the fact that he had been brought up in poverty and had tomaintain a family.----------------------------------(1) See also decision of 19th September 1961 on the admissibility ofApplication No. 1053/61, page 6.----------------------------------The Public Prosecutor lodged an appeal with the Court of Appeal(Oberlandesgericht) which on ... 1960 heard the case in a non-publicsession. Neither the Applicant nor his lawyer was present and the Courtonly heard the arguments of the Chief Public Prosecutor(Oberstaatsanwalt). The Court rejected the existence of extenuatingcircumstances and having referred to the Applicant's recent release onprobation from a labour institution, increased his sentence from 18months to 5 years' imprisonment.On ... 1960 the District Court (Kreisgericht) of C. revoked theApplicant's conditional release from the labour institution and orderedhim to serve the remainder of his sentence of detention in thatinstitution after he had completed his 5-year term of imprisonment.On ... 1960 the Applicant lodged a request that the Attorney-Generalshould file pleas of nullity (Nichtigkeitsbeschwerde) against hisconviction by the Court of Appeal of B. and against the decision of theDistrict Court of C., but on ... 1961 he was informed that the PublicProsecutor had decided not to take any such action.Whereas the Applicant alleges violations of Article 6, paragraphs (1)and (3) (c) and (d);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" and whereas thedecision of the Court of Appeal of B. the final decision in the case,was taken on ... 1960; whereas, furthermore, the present Applicationwas not submitted to the Commission until 25th June 1961, that is morethan six months after the date of the decision of the Court of Appealof B.;Whereas the request lodged by the Applicant that the Attorney-Generalshould introduce a plea of nullity in the Applicant's favour does notconstitute a remedy within the meaning of Article 26 (Art. 26) of theConvention; whereas it follows that the Applicant has not satisfied thesix months limit laid down in Article 26 (Art. 26) of the Conventionand this Application must be rejected in accordance with Article 27,paragraph (3) (Art. 27-3) of the Convention;Now therefore the Commission declares this Application INADMISSIBLE.[/align]