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	European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> X. v. AUSTRIA - 1127/61 [1961] ECHR 7 (19 December 1961) URL: http://www.bailii.org/eu/cases/ECHR/1961/1127_61.html Cite as: [1961] ECHR 7

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THE FACTS

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

The Applicant is an Austria citizen, born in ...

The Applicant states that on ... 1960 he was convicted by the Regional
Court (Landesgericht) in A. on charges of fraud and embezzlement and
sentenced to one year's imprisonment, with the additional penalty of
"sleeping hard" (hartes Lager) and a fasting diet once every three
months. He further states that, on appeal by the Director of
Prosecutions (Staatsanwaltschaft), the Court of Appeal
(Oberlandesgericht) in A. on ... May 1960 increased his sentence to
five years' imprisonment together with the additional penalties already
mentioned.

From official documents submitted by the Applicant, it appears that,
in 1960 and 1961, he lodged two petitions for clemency with the
Regional Court in A. and that the Court, "having heard" ("nach
Anhörung") the Public Prosecutor (Staatsanwaltschaft), dismissed these
petitions on ... 1960 and ... 1961 respectively.
(1) On the same day, the Commission adopted a similar decision with
regard to another Application (No. 1128/61 - Y. against Austria). The
Applicant states that, in ... 1960, he addressed a further petition for
clemency to the Minister of Justice which was equally unsuccessful. The
Applicant alleges violations of Articles 3, 6, 13 and 14 of the
Convention. He asks for a humane sentence.

THE LAW

Whereas Article 26 (Art. 26) of the Convention provides that the
Commission may only deal with a matter "within a period of six months
from the date on which the final decision was taken"; whereas the
decision of the Court of Appeal in A., being the final decision
regarding the Applicant's conviction for fraud and embezzlement, was
taken on ... May 1960; whereas, furthermore, the present Application
was not submitted to the Commission until 16th May 1961, that is more
than six months after the date of the decision of the Court of Appeal;
whereas it follows that the Applicant, insofar as he complains of this
decision, has not satisfied the six months' limit laid down in Article
26 (Art. 26) of the Convention; whereas, therefore, this part of the
Application must be rejected in accordance with Article 27, paragraph
3 (Art. 27-3) of the Convention;

Whereas, in regard to the clemency proceedings which took place in the
Regional Court in 1960 and 1961, it is to be observed that Article 411
of the Austrian Code of Criminal Procedure (Strafprozessordnung)
provides that the right to pardon or to commute a sentence lies with
the President of the Republic (paragraph 1); whereas petitions by
prisoners for clemency are received by the prison authorities and,
together with a statement as to the behaviour and health of the
prisoner, transmitted to the court of first instance (paragraph 3);

Whereas the court of first instance may either dismiss the petition if
it does not find that there are strong grounds for pardon or
commutation of the sentence or submit the case together with its
recommendation to the court of second instance; whereas, the court of
second instance, having heard the Senior Public Prosecutor
(Oberstaatsanwalt), may either dismiss the petition or submit it with
a recommendation to the Minister of Justice (paragraph 4); whereas,
insofar as the Applicant can be understood to allege with regard to the
clemency proceedings before the Regional Court that there was a
violation of Article 6 (Art. 6) of the Convention, it is to be observed
that the clemency procedure provided for in Article 411 of the Austrian
Code of Criminal Procedure refers to the exercise, after the conclusion
of criminal proceedings, of the prerogative of mercy vested in the
President of the Republic;

Whereas it follows that, under Article 411, the function of the
Regional Court, as the Court of first instance, was not to determine
the "civil rights or obligations" of, or a "criminal charge" against,
the Applicant within the meaning of Article 6 (Art. 6) of the
Convention, but solely to decide, subsequently to the conviction of the
Applicant, whether a pardon or a commutation of the sentence should be
recommended to the President of the Republic; whereas, therefore, the
proceedings relating to this question are not such as fall within the
terms of Article 6 (Art. 6) of the Convention; whereas it follows that
the Application, insofar as it concerns the clemency proceedings before
the Regional Court, 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 complaint that his petition for
clemency was rejected by the Minister of Justice, 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
Articles 3, 13 and 14 (Art. 3, 13, 14) and whereas it follows that the
remainder of the Application is manifestly ill-founded and must also
be rejected in accordance with Article 27, paragraph 2 (Art. 27-2) of
the Convention;

Now therefore the Commission declares this Application INADMISSIBLE."