CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 7 mai 1990

.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 }                        AS TO THE ADMISSIBILITY OF                         Application No. 16266/90                       by H.A.                       against Austria             The European Commission of Human Rights sitting in private on 7 May 1990, the following members being present:                 MM. C.A. NØRGAARD, President                   S. TRECHSEL                   F. ERMACORA                   E. BUSUTTIL                   G. JÖRUNDSSON                   A.S. GÖZÜBÜYÜK                   A. WEITZEL                   J.-C. SOYER                   H. DANELIUS                   G. BATLINER                   H. VANDENBERGHE              Sir   Basil HALL              MM.   F. MARTINEZ                   C.L. ROZAKIS              Mrs.   J. LIDDY              Mr.   L. LOUCAIDES                Mr.   H.C. KRÜGER, Secretary to the Commission           Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;           Having regard to the application introduced on 22 December 1989 by H.A. against Austria and registered on 8 March 1990 under file No. 16266/90;           Having regard to the report provided for in Rule 40 of the Rules of Procedure of the Commission;           Having deliberated;           Decides as follows:   THE FACTS           The applicant, an Austrian citizen born in 1957, is at present detained in the prison of Graz-Karlau.   He is represented by Rechtsanwalt Dr.   Karl Bernhauser of Vienna.           In 1978, when serving as a soldier in an Austrian peace-keeping contingent of the United Nations in Syria, the applicant attacked his four fellow soldiers and killed two of them.   He was convicted of murder by an Assize Court of the Regional Criminal Court (Landesgericht für Strafsachen) of Vienna on 22 September 1982.   In view of conflicting opinions of the psychiatric experts a faculty opinion (Fakultätsgutachten) was obtained from the medical faculty of the university of Vienna on the applicant's criminal responsibility. The opinion was favourable to the applicant, but the Court found him fully responsible and imposed a life sentence.   This judgment was confirmed by the Supreme Court (Oberster Gerichtshof) on 26 August 1983.           Concerning these criminal proceedings the applicant lodged an application (No. 10532/83) which the Commission declared admissible on 15 December 1987, finding that it raised issues under Article 6 of the Convention.           On 17 March 1989 the Commission decided to strike the application off the list following its withdrawal by the applicant and adopted a Report under Rule 54 of its Rules of Procedure.   The parties had agreed on an amicable solution of the case of which the Government had informed the Commission in the following terms (letter of 21 February 1989):           "........   I have the honour to inform you that in the         above-mentioned case a friendly settlement was reached         with the applicant.   On the part of the Austrian         Government, the friendly settlement foresees           - the reduction, as a measure of grace, of the           applicant's prison sentence of life to 15           years of imprisonment;           - the payment of a lump sum of AS 50,000.- for the           costs of proceedings of the complaint procedure.           In view of this friendly settlement, the Austrian         Governments requests to strike the above application         off the Commission's list of pending cases."           The applicant had replied as follows (letter of 2 March 1989):           "The applicant declares that, having regard to the conditions         mentioned in the letter of the Austrian Government of         21 February 1989, he agrees to the withdrawal of the         application in accordance with Rule 54 of the Rules of         Procedure.           The withdrawal of the application is, however,         subject to the reservation that the application will be         reactivated if the Austrian Federal President should not         give his necessary consent to the friendly settlement by         granting an act of grace."           On 28 March 1989, i.e. after the adoption of the Commission's Report, the Federal President (Bundespräsident) granted an act of grace by which the applicant's prison sentence for life was reduced to 15 years of imprisonment.           The applicant submits that it was understood that he would be released immediately.   He had served ten years, i.e. two thirds of the commuted 15 years' sentence, on 29 October 1988 and an expert opinion, obtained in the proceedings by which the above act of grace was prepared, had confirmed that the conditions for a conditional release under Section 46 para. 2 of the Penal Code (Strafgesetzbuch) were met.           However, the applicant's subsequent request for conditional release was rejected by the Regional Criminal Court of Graz on 25 July 1989.   The Court left open whether the personal conditions under Section 46 para. 2 of the Penal Code (Spezialprävention) were fulfilled.   It observed that it was also necessary under Section 46 para. 3 of the Penal Code to consider whether there were special reasons of general crime prevention (Generalprävention) which spoke against the applicant's release.   The Court found that the applicant's conditional release would raise problems of special prevention and be inadmissible as being incompatible with general prevention.           Both the prosecution and the applicant appealed against this decision.   The prosecution requested that a decision on conditional release be taken only after having obtained a further expert opinion on the question whether it was still to be feared that the applicant would commit further crimes.   The applicant referred to his impeccable conduct during his detention and the fact that the prison governor had expressly recommended his conditional release.   He further referred to the opinion obtained in connection with the act of grace and submitted that, if there were still doubts, the court should obtain a further expert opinion.   He finally claimed that it was unlawful to refuse conditional release exclusively on grounds of general prevention of crimes.           On 7 September 1989 the Graz Court of Appeal (Oberlandes- gericht) rejected both appeals.   It observed that under Section 46 para. 3 of the Penal Code the personal conditions and the considerations of general crime prevention were generally of equal weight.   The Regional Court had rightly found that in the applicant's case the latter prevailed.   It had however failed to give sufficient reasons for its decision.   The Court of Appeal stated that murder was one of the most serious crimes.   The applicant had killed two persons and attempted to kill two others in a treacherous way.   His guilt was therefore extraordinary.   His trial had aroused great public interest which continued to exist.   A probation officer had reported that the population was shocked about the applicant's mild sentence and the prospect of his release after having served only two-thirds of it. His brother allegedly had also objected to his returning home.   In criminology the preventive purpose of penalties was no longer seen to be deterrence from committing crimes, but reinforcement of trust in the effective operation of the legal system.   This depended on the attitudes of the population concerning the type of crime and the personality of the offender.   The crime of the applicant had aroused great public interest which also concerned his further fate.   Further execution of the sentence was therefore necessary, in particular since it had already been mitigated by an act of grace.   The applicant's release after only 10 years and 10 months of detention would undermine the public's trust in the effectiveness of criminal law.   Since a conditional release was thus excluded for considerations of general crime prevention, it was not necessary to obtain further evidence on the question whether the applicant might commit further crimes.   COMPLAINTS           The applicant claims a violation of the principles of a fair trial, as guaranteed by Article 6 para. 1 of the Convention.   By referring to the nature of his crime and his guilt the courts allegedly disregarded the results of the faculty opinion obtained in the criminal proceedings and the applicant's successful complaint to the Commission.   Furthermore they unfairly failed to take into account the expert opinion preceding the act of grace or to obtain further expert advice.           The applicant also claims a violation of Article 3 of the Convention.   In his view it was inhuman and degrading to base the continued enforcement of his sentence exclusively on the attitudes of the general public.   By so doing the courts allegedly disregarded the principle underlying the Convention system that penalties must be related to personal guilt and responsibility.   The courts' considerations on general crime prevention are not confirmed by empirical results of social research.   The applicant requests the Commission to obtain expert advice on this question.   THE LAW   1.       The Commission first notes that the present application is related to application No. 10532/83 which, after having been declared admissible on 15 December 1987, was struck off the list on 17 March 1989, following an agreement reached between the parties.           Article 30 para. 3 (Art. 30-3) of the Convention provides that the Commission may decide to restore an application to its list of cases if it considers that the circumstances justify such a course.   The Commission has examined whether Application No. 10532/83 should be so restored.           The applicant claims that it was understood that, following the act of grace reducing his life sentence to 15 years of imprisonment, he would be granted a conditional release having completed two thirds of the commuted sentence as the conditions of Section 46 para. 2 of the Penal Code were met.           The Commission notes, however, that no reference was made to conditional release of the applicant in the communications received from the parties prior to its decision of 17 March 1989.           The Commission therefore cannot find that the agreement between the parties underlying the withdrawal of Application No. 10532/83 is invalid or has not been fulfilled, and that Application No. 10532/83 should be restored to the list.   2.       The applicant complains that Article 6 para. 1 (Art. 6-1) of the Convention has been violated in the proceedings concerning the grant of conditional release.           The Commission recalls its constant case-law according to which proceedings concerning the execution of a sentence imposed by a competent court, including proceedings on the grant of conditional release, are not covered by Article 6 para. 1 (Art. 6-1) of the Convention.   They   neither concern the determination of " a criminal charge" nor of "civil rights and obligations" within the meaning of this provision (cf. e.g.   No. 1446/62, Plischke v.   Austria, Dec. 7.3.64, Yearbook 8 pp. 455, 463; No. 1760/63, X. v.   Austria, Dec. 23.5.66, Yearbook 9 pp 167,175; No. 2306/64, X. v.   Austria, Dec. 19.7.66, Collection 21 pp. 23, 31; No. 4133/69, X. v.   U.K., Dec. 13.7.70, Yearbook 13 pp. 780, 790).   The Commission further recalls that a right to be released on probation is not as such included among the rights and freedoms guaranteed by the Convention and that Article 5 para. 4 (Art. 5-4) does not apply in this respect (cf. No. 9089/80, Dec. 9.12.80, D.R. 24 pp. 227, 229).           It follows that the applicant's above complaint is incompatible with the provisions of the Convention, ratione materiae. It must accordingly be rejected under Article 27 para. 2 (Art. 27-2) of the Convention.   3.       The applicant further alleges a violation of Article 3 (Art. 3) of the Convention because his conditional release was refused exclusively on grounds of general prevention of crimes.           The Commission notes that the applicant's life sentence was reduced by an act of grace to 15 years' imprisonment and that the applicant withdrew Application No. 10532/83 on this basis.   He cannot now claim that the commuted 15 years' sentence was in itself an inhuman or degrading punishment.           The applicant claims that, under Section 46 of the Penal Code, it was not admissible to refuse conditional release exclusively on grounds of general prevention of crime.   However, the interpretation of the domestic law is primarily a matter for the domestic courts. The Commission notes that the Austrian courts in the present case held that the considerations of special and general prevention of crime must be given proper weight, and that in the present case the considerations of general prevention prevailed because of the very serious nature of the applicant's crime and the great public interest which it had roused.   Contrary to the applicant's submissions the courts did not confirm that there were no reasons of special prevention justifying the applicant's further detention.   The Regional Court expressed doubts in this respect.   The Court of Appeal implicitly confirmed this statement.   It considered a further investigation unnecessary because of the overriding importance of the considerations of general prevention.           In these circumstances the Commission considers that the applicant's above complaint under Article 3 (Art. 3) has no sufficient basis in   the facts.   The application must therefore be rejected as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the   Convention.           For these reasons, the Commission           DECLARES THE APPLICATION INADMISSIBLE.     Secretary to the Commission          President of the Commission           (H. C. KRÜGER)                        (C. A. NØRGAARD)