CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 19 septembre 1961

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }  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."