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."