THE FACTS

Whereas the facts presented by the Applicant may be summarised as

follows:

The Applicant is an Austrian citizen, born in ... and at present

detained in prison at A.

On ... 1957 he was sentenced to four years' imprisonment by the

Regional Court (Landesgericht) at A. on charges of having committed

indecent offenses with children. His appeal against this decision was

dismissed by the Supreme Court (Oberster Gerichtshof) on ... 1958.

The following applications for a retrial were then lodged by the

Applicant:

(1) an application of ... 1958 which was dismissed by the Regional

Court at A. on ... 1958 and, on appeal (Beschwerde), by the Court of

Appeal (Oberlandesgericht) at A. on ... 1958 on the ground that it did

not disclose any relevant new facts or evidence;

(2) an application of ... 1958 which was rejected for the same reason

by the Regional Court on ... 1958 and, on appeal, by the Court of

Appeal on ... 1959;  (3) an application of ... 1960 which was dismissed

on the same ground by the Regional Court on ... 1960 and, on appeal,

by the Court of Appeal on ... 1960. The decisions of the Regional Court

and the Court of Appeal mentioned under (1), (2) and (3) above, were

taken in non-public sessions in the absence of the Applicant or his

lawyer and "after hearing" ("nach Anhörung") the Public Prosecutor.

The Applicant states that his Application is based on Article 26 of the

Convention. He alleges that he was wrongly convicted and he claims a

new trial or a reduction of his sentence.

THE LAW

Whereas the facts alleged by the Applicant in regard to his conviction

and the proceedings concerning his first application for a retrial

relate to a period prior to 3rd September, 1958, the date of the entry

into force of the Convention on Human Rights and Fundamental Freedoms

with respect to Austria; whereas, in accordance with the generally

recognised rules of international law, the said Convention only

governs, for each Contracting Party, facts subsequent to its entry into

force with respect to that Party; whereas it follows that the

Application, insofar as it relates to these alleged facts, must be

rejected ratione temporis;

Whereas, in regard to the proceedings concerning the second and third

petitions for a retrial, lodged by the Applicant with the Regional

Court in ... 1958 and ... 1960 respectively, it is to be observed that,

under Article 353, paragraph (2) of the Austrian Code of Criminal

Procedure (Strafprozessordnung), a convicted person may, after the

conclusion of criminal proceedings, lodge a petition for a retrial if

he submits new facts or evidence which appear likely, either by

themselves or combined with evidence previously produced, to justify

his acquittal or a sentence based on a less serious criminal charge;

Whereas during the proceedings concerning the examination of such

petition the previous conviction remains valid and will be modified

only to the extent that the petition is admitted (Articles 357 and 358

of the Code); whereas it follows that the function of the Austrian

courts, in deciding such petitions in accordance with Articles 353, 357

and 358 of the Code, is not to determine a "criminal charge" against,

or any "civil rights or obligations" of, the person concerned, within

the meaning of Article 6 (Art. 6) of the Convention, but solely to

decide, after the conclusion of criminal proceedings and the conviction

of the accused, whether his case should be re-opened; and whereas 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 Regional Court and the Court of Appeal at

A., when deciding the second and third petitions for a retrial lodged

by the Applicant, did not constitute tribunals to which the terms of

Article 6 (Art. 6) of the Convention could apply; whereas, therefore

in regard to this part of the Application, an examination of the case

as it has been submitted including an examination ex officio, does not

disclose any appearance of a violation of the rights and freedoms set

forth in the Convention; 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;

Now therefore the Commission declares this Application INADMISSIBLE."