THE FACTS

Whereas the facts presented by the applicant may be summarised as

follows:

The applicant is an Austrian citizen, born in 1934 and at present

detained in prison at G..

By judgment of .. August 1968 the Regional Court (Kreisgericht) of K.

convicted the applicant of manslaughter and gave him an eight years'

sentence. The applicant, who had already been previously convicted of

manslaughter, was found guilty of having killed an inmate of the prison

at S. during a dispute. The applicant, who at the time of the crime

served a sentence in the same prison for a crime previously committed,

was known as being a dangerous cut-throat. The applicant defended

himself with the allegation, that he had fought a mock fight with his

victim to show that a man with a knife was superior to a karate fighter

such as was the applicant's victim. The Court, however, based its

decision on the evidence given by other inmates of the prison who were

present when the crime took place and who confirmed that no such

sportive fight took place, but a harsh dispute between the two men.

The applicant appealed against this judgment to the Supreme Court

(Oberster Gerichtshof). He insisted on the fact that he had not

intended to do any harm to his victim but that the only purpose of his

attacking the latter was to perform a sportive fight to which his

victim had agreed before-hand. By decision of .. November 1968 the

Supreme Court decided to have an oral hearing of the applicant's case

and that the applicant should be represented at this hearing by his

counsel only, and that he should consequently not personally be

present. In the same decision the Supreme Court appointed an ex officio

counsel on the applicant's behalf for that purpose.

By judgment of .. December 1968, the Supreme Court dismissed the

applicant's appeal. The Court stated that the lower court's judgment

was right and that the applicant's allegations were not confirmed by

the evidence given by the witnesses at the trial.

The applicant thereafter lodged applications for a retrial. He

requested the hearing of several new witnesses and he alleged that the

witnesses who had been heard at his trial had given wrong evidence. The

applicant also requested that one of these witnesses should be

medically examined as to his state of mind, since it appeared to him

that this witness was not fully responsible for his statements and

actions. The applicant indicated that these new witnesses could confirm

that his victim was indeed killed during a mock fight only and not in

the course of

a dispute.

By decision (Beschluss) of .. July 1969, the Regional Court of W.

dismissed the applicant's request. The Court held that even assuming

that these witnesses confirmed the applicant's allegations, his crime

would still qualify as manslaughter since a fight of such a nature

could not be considered as being a sportive performance. The Court also

stated that the applicant's allegations contained no relevant new facts

and did not satisfy the conditions for re-trial within the meaning of

Article 353 (1) of the Austrian Code of Penal Procedure

(Strafprozessordnung).

The applicant now complains:

- that he is innocent and that the witnesses had given false evidence

  in his case;

- that his ex officio counsel had neglected his duties since he had not

looked into the files and since he had not consulted the applicant

on the contents of his appeal to the Supreme Court;

- and that he had been punished twice for the same offence, since he

  also received an additional disciplinary penalty apart from that

  given by the Court.

The applicant alleges violations of the Convention.

THE LAW

Whereas, in the first place the applicant's allegation that he was

wrongly convicted and that the witnesses heard at the trial had given

false evidence in his case; whereas and examination of the case as it

ha 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; 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 the observance of the obligations undertaken by the

Parties to 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 rights and freedoms limitatively listed in the Convention;

whereas, in this respect, the Commission refers to its decisions (Nos.

458/59 ( X. v. Belgium - Yearbook, Vol. 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 manifestly

ill-founded within the meaning of Article 27, paragraph (2)

(Art. 27-2), of the Convention;

Whereas, insofar as the applicant's complaints are directed against his

lawyer, it results from Article 19 (Art. 19) of the Convention that the

sole task of the Commission is to ensure the observance of the

engagements undertaken in the Convention by the High Contracting

Parties, being those Members of the Council of Europe which have signed

the Convention and deposited their instruments of ratification;

Whereas, moreover, it appears from Article 25 (1) (Art. 25-1) of the

Convention that the Commission can properly admit an application from

an individual only if that individual claims to be the victim of a

violation of his rights under the Convention by one of the Parties

which have accepted this competence of the Commission;

Whereas it results clearly from these Articles that the Commission has

no competence ratione personae to admit Amnesty Acts directed against

private individuals; whereas it follows that this part of the

application is incompatible with the Convention within the meaning of

Article 27, paragraph (2) (Art. 27-2), of the Convention (see

Application No. 1599/62, Yearbook, Vol. VI, pages 348, 356);

Whereas, insofar as the above complaint gives rise to the question

whether the Supreme Court failed to ensure that the applicant's defence

was properly carried out with the consequence that he was not given a

fair hearing within the meaning of Article 6, paragraph (1) (Art. 6-1),

of the Convention, 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 this right; whereas it follows that, in

this respect, the application is manifestly ill-founded within the

meaning of Article 27, paragraph (2) (Art. 27-2), of the Convention;

Whereas the applicant further complains that he had been punished twice

for the same offence since an additional disciplinary sanction was

imposed upon him as a result of the incident concerned apart from the

penalty which the Courts imposed; whereas this complaint might give

rise to the question whether or not the principle of ne bis in idem is

guaranteed by the Convention; whereas this principle, however, is not

as such included amongst the rights and freedoms set forth in the

Convention but there might be the question whether it might not be

considered under Article 6, paragraph (1) (Art. 6-1), of the Convention

which guarantees to everyone a fair trial; whereas, however, in the

present circumstances this question does not need to be examined

further since the applicant has not, in fact, been punished twice for

the same offence as the criminal proceedings and disciplinary

proceedings in question concerned different aspects of the same

incident and impose different sanctions of different categories;

whereas, consequently, this part of the application is manifestly

ill-founded and must be rejected in accordance with Article 27,

paragraph (2) (Art. 27-2), of the Convention;

Whereas, finally, in regard to the applicant's complaints relating to

his claim for a retrial and the court proceedings concerned, it is to

be observed that the Convention, under the terms of Article 1 (Art. 1),

guarantees only the rights and freedoms set forth in Section I of the

Convention; and whereas, under Article 25 (1) (Art. 25-1) of the

Convention, only the alleged violation of one of those right and

freedoms by a Contracting Party can be the subject of an application

presented by a person, non-governmental organisation or group of

individuals;

Whereas otherwise its examination is outside the competence of the

Commission ratione materiae; whereas the right to a retrial is not as

such included among the rights and freedoms guaranteed by the

Convention; and whereas, in accordance with the Commission's constant

jurisprudence, proceedings concerning applications for retrial fall

outside the scope of Article 6 (Art. 6) of the Convention (see

Applications Nos. 864/60, X. v. Austria - Yearbook, Vol. V, p. 96);

whereas it follows that this part of the application is incompatible

with the provisions of the Convention within the meaning of Article 27,

paragraph (2) (Art. 27-2), thereof;

Now therefore the Commission DECLARES THIS APPLICATION INADMISSIBLE