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الموضوع: X. v. AUSTRIA - 3001/66 [1968] ECHR 10 (30 May 1968)

  1. #1

    افتراضي X. v. AUSTRIA - 3001/66 [1968] ECHR 10 (30 May 1968)

    [align=left]THE FACTS

    Whereas the facts presented by the Applicant may be summarised as
    follows:

    The Applicant is an Austrian citizen, born in 1916 and residing in
    Vienna.

    From his statements and from documents submitted by him it appears
    that, on .. April, 1966, he was arrested on suspicion of having
    committed fraud (Betrug) and defamation (Verleumdung) and remanded in
    custody in accordance with Articles 175, paragraph (1) No. 4, and 180,
    paragraph (1), of the Code of Criminal Procedure (Strafprozessordnung).

    He states that on .. April, 1966, he was taken before the competent
    investigating judge (Untersuchungsrichter). Subsequently, he made an
    application to the Regional Court (Landesgericht) at Klagenfurt for his
    release pending trial. This application was dismissed on .. May; 1966,
    on the ground that there existed a danger of his absconding and
    committing further offences (Fluchtgefahr und Wiederholungsgefahr). The
    Applicant states that he lodged an appeal (Beschwerde) against this
    decision with the Judges' Chamber (Ratskammer) of the Regional Court
    at Klagenfurt which was dismissed on .. May, 1966, and that he lodged
    with the Court of Appeal (Oberlandesgericht) of Graz a further appeal
    (weitere Beschwerde) against the Judges' Chamber's decision. According
    to the Applicant, his further appeal was dismissed on .. June, 1966,
    the Court of Appeal deciding that although there existed no danger of
    his absconding, the danger of his committing further offences
    persisted. The Applicant then apparently made an appeal against this
    decision to the Supreme Court (Oberster Gerichtshof), which was
    rejected by the Court of Appeal of Graz on the ground that such appeal
    to the Supreme Court did not lie under Austrian law. The Applicant
    further states that he also complained to the Minister of Justice and
    the President of the Regional Court about his detention on remand and
    that the latter promised to examine his complaint.

    It appears that, on .. September, 1966, the office of the Public
    Prosecutor (Staatsanwaltschaft) at Klagenfurt served on the Applicant
    the bill of indictment (Anklageschrift). He states that he submitted
    a list of witnesses whom he wished to have summoned to give evidence
    at the trial. This list was later supplemented by the names of further
    witnesses for the defence.

    On .. November, 1966, the Applicant was brought to trial before the
    Regional Court of Klagenfurt sitting at Spittal/Drau. He states that
    only three of the witnesses named by him appeared in court. He also
    alleges that he was hindered in his defence. He explains that he had
    been in contact with a lawyer in Vienna who had invited him to send a
    statement concerning his case. However, the investigating judge at
    Klagenfurt had refused his permission to transmit this statement on the
    ground that the Applicant was not allowed to write any letter relating
    to the proceedings against him. The Applicant further explains that
    shortly before the trial he had been informed that another lawyer from
    Spittal had been appointed to represent him at the trial. This lawyer
    had then informed the Applicant that he was not able properly to defend
    him because he himself had just learned of his appointment.
    Consequently, the Applicant had prepared a seventeen page statement
    which he intended to deliver at the trial, but the presiding judge
    prohibited him from delivering this document and defending himself in
    person.

    The Applicant states that, on .. November, 1966, the Regional Court
    decided to adjourn the case.

    It appears that the matter was heard again on .. January, 1967. On that
    day the Regional Court of Klagenfurt convicted the Applicant for
    defamation an fraud and sentenced him to ten months' severe
    imprisonment with the additional penalty of "sleeping hard" (hartes
    Lager) once a month. The Applicant lodged with the Supreme Court a plea
    of nullity (Nichtigkeitsbeschwerde) alleging only that he was wrongly
    convicted (Article 281, No. 9a of the Code of Criminal Procedure). The
    Public Prosecutor's office, in turn, appealed (Berufung) against the
    sentence imposed by the Regional Court. On .. June, 1967, the Supreme
    Court rejected both the appeal and the plea of nullity.[/align]
    مكتب
    هيثم محمود الفقى
    المحامى بالاستئناف العالى ومجلس الدولة
    المستشار القانونى لنقابة التمريض ا مساعد أمين الشباب لدى منظمة الشعوب العربية لحقوق الانسان ودعم الديمقراطية ا مراقب عام دائم بمنظمة الشعوب والبرلمانات العربية ا مراسل ومحرر صحفى ا

  2. #2

    افتراضي

    [align=left]The Applicant now complains that

    - his arrest and detention on remand violated the Convention. He
    alleges that insofar as the Court of Appeal had held that there was no
    danger of his absconding but only of his committing a further offence
    of defamation, his arrest and detention were unlawful as the Austrian
    Code of Criminal Procedure did not provide for detention on that
    ground. He further alleges that, by .. December, 1966, he had been in
    detention for eight months;

    - he was wrongly convicted and sentenced;

    - the Convention was violated in the court proceedings concerned in
    that he was hindered in his defence and his witnesses were not summoned
    and examined by the Regional Court.

    He alleges violations of Articles 5, paragraphs (2) and (3), and 6,
    paragraph (3) of the Convention.

    THE LAW

    Whereas, insofar as the Applicant complains of his arrest and detention
    on remand, the Commission has had regard to Article 5, paragraph (1)
    (c) (Art. 5-1-c), of the Convention which permits the "lawful arrest
    or detention of a person effected for the purpose of bringing him
    before the competent legal authority on reasonable suspicion of having
    committed an offence or when it is reasonably considered necessary to
    prevent his committing an offence or fleeing after having done so";

    Whereas it appears that the competent Austrian court made an order for
    the Applicant's arrest and detention on remand under the provisions of
    Articles 175, paragraph (1), No. 2 and 180, paragraph (1) of the Code
    of Criminal Procedure; whereas the Commission is not competent to
    examine the question whether during those proceedings the domestic law
    was correctly interpreted and applied but is only concerned to satisfy
    itself that the Applicant's detention was not the consequence of some
    arbitrary action by the authorities; whereas the Applicant has not
    produced any evidence indicating the existence of such arbitrary
    action; whereas, therefore, the Commission finds that his detention
    was "lawful" within the meaning of Article 5, paragraph (1) (c),
    (Art. 5-1-c), of the Convention;

    Whereas it follows that, in this respect, the Application is manifestly
    ill-founded and must be rejected in accordance with Article 27,
    paragraph (2) (Art. 27-2), of the Convention.

    Whereas, in regard to the Applicant's complaints as regards the length
    of his detention on remand; the Commission had regard to his allegation
    that he was so detained for a period of eight months; whereas the
    Commission finds that an examination of the case as it has been
    submitted, including an examination made ex officio, does not disclose
    any appearance of a violation of the rights and freedoms set forth in
    the Convention and in particular in Article 5 (Art. 5); whereas it
    follows that this part of the Application is also manifestly
    ill-founded within the meaning of Article 27, paragraph (2)(Art. 27-2),
    of the Convention.

    Whereas, in regard to the Applicant's complaints relating to his
    conviction and sentence an examination of the case as it has been
    submitted, including an examination made ex officio, does again not
    disclose any appearance of a violation of the rights and freedoms set
    forth in the Convention and especially in the Articles invoked by the
    Applicant; whereas, in respect of the judicial decisions complained
    of, the Commission has frequently stated that in accordance with
    Article 19 (Art. 19) of the Convention its only task is to ensure
    observance of the obligations undertaken by the Parties in the
    Convention; whereas, in particular, it is not competent to deal with
    an application alleging that errors of law or fact have been committed
    by domestic courts except where the Commission considers that such
    errors might have involved a possible violation of any of the right and
    freedoms limitatively listed in the Convention; whereas, in this
    respect, the Commission refers to its decisions Nos. 458/59 (X v.
    Belgium - Yearbook III, p. 233) and 1140/61 (X v. Austria - Collection
    of Decisions, Vol. 8, p. 57); and whereas there is no appearance of a
    violation in the proceedings complained of; whereas it follows that
    this part of the Application is again manifestly ill-founded within the
    meaning of Article 27, paragraph (2) (Art. 27-2), of the Convention;

    Whereas, in regard to the Applicant's complaint that the Convention was
    violated in the court proceedings concerned, it is to be observed that,
    under Article 26 (Art. 26) of the Convention, the Commission may only
    deal with a matter after all domestic remedies have been exhausted
    according to the generally recognised rules of international law;

    Whereas the mere fact that the Applicant has, in pursuance of Article
    26 (Art. 26), submitted his case to the various competent courts does
    not constitute compliance with this rule; whereas it is also required
    that any complaint made before the Commission and relating to lower
    courts or authorities should have been substantially raised before the
    competent higher court or authority; whereas in this respect the
    Commission refers to its constant jurisprudence, e.g. decisions No.
    263/57 (K v. Federal Republic of Germany - Yearbook I, p. 147), 788/60
    (Austria v. Italy, ibid IV, p. 116) and 1103/61 (N. v. Belgium - ibid
    V. p. 168);

    Whereas the Applicant had the possibility in his plea of nullity and
    appeal to the Supreme Court to invoke his right to a fair hearing and,
    in this connection, to rely upon the relevant provisions in domestic
    law including possibly Article 6 (Art. 6) of the Convention;

    Whereas it appears that he has not availed himself of this possibility;

    Whereas , furthermore, an examination of the case as it has been
    submitted, including an examination made ex officio does not disclose
    the existence of any special circumstances, such as a legal or factual
    impossibility or a justified impediment which might have absolved the
    Applicant according to the generally recognised rules of international
    law, from raising his complaints before the Supreme Court;

    Whereas, therefore, the condition as to the exhaustion of domestic
    remedies laid down in Articles 26 and 27, paragraph (3)
    (Art. 26, 27-3), of the Convention has not been complied with by the
    Applicant.

    Now therefore the Commission declares this application INADMISSIBLE[/align]
    مكتب
    هيثم محمود الفقى
    المحامى بالاستئناف العالى ومجلس الدولة
    المستشار القانونى لنقابة التمريض ا مساعد أمين الشباب لدى منظمة الشعوب العربية لحقوق الانسان ودعم الديمقراطية ا مراقب عام دائم بمنظمة الشعوب والبرلمانات العربية ا مراسل ومحرر صحفى ا

المواضيع المتشابهه

  1. X. v. THE FEDERAL REPUBLIC OF GERMANY - 2699/65 [1968] ECHR 9 (01 April 1968)
    بواسطة هيثم الفقى في المنتدى Decisions of The European Court of Human Rights
    مشاركات: 2
    آخر مشاركة: 07-19-2009, 12:37 AM
  2. TWENTY-ONE DETAINED PERSONS v. GERMANY - 3139/67 [1968] ECHR 15 (06 April 1968)
    بواسطة هيثم الفقى في المنتدى Decisions of The European Court of Human Rights
    مشاركات: 0
    آخر مشاركة: 07-19-2009, 12:35 AM
  3. X. v. THE NETHERLANDS - 2648/65 [1968] ECHR 8 (06 February 1968)
    بواسطة هيثم الفقى في المنتدى Decisions of The European Court of Human Rights
    مشاركات: 0
    آخر مشاركة: 07-19-2009, 12:29 AM
  4. X. v. SWEDEN - 3071/67 [1968] ECHR 12 (07 February 1968)
    بواسطة هيثم الفقى في المنتدى Decisions of The European Court of Human Rights
    مشاركات: 0
    آخر مشاركة: 07-19-2009, 12:28 AM
  5. X. v. BELGIUM - 2568/65 [1968] ECHR 6 (06 February 1968)
    بواسطة هيثم الفقى في المنتدى Decisions of The European Court of Human Rights
    مشاركات: 0
    آخر مشاركة: 07-19-2009, 12:27 AM

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