# أحكام المحاكم الأجنبية Decisions of Foreign Courts > أحكام المحكمة الأوروبية لحقوق الإنسان > Decisions of The European Court of Human Rights >  X. v. AUSTRIA - 2676/65 [1967] ECHR 27 (03 April 1967)

## هيثم الفقى

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X. v. AUSTRIA - 2676/65 [1967] ECHR 27 (03 April 1967) 
THE FACTSWhereas the facts presented by the Applicant may be summarised asfollows:The Applicant is an Austrian citizen born in 1928, presently servinga sentence of imprisonment in the Prison of Stein. He has severalprevious convictions.The Applicant was arrested on .. January, 1965 and convicted on ..April, 1965 by the Regional Court (Landesgericht-Sch&Atilde;¶ffengericht)Vienna of burglary (Einbruch) and extortion (Erpressung). He wassentenced to two and a half years' rigorous imprisonment (schwererversch&Atilde;¤rfter Kerker).The Applicant lodged an appeal (Berufung) and a plea of nullity(Nichtigkeitsbeschwerde), which were rejected by the Court of Appeal(Oberlandesgericht) and the Supreme Court (Oberster Gerichtshof) on ..May and .. June, 1965.On .. June, 1965 the Attorney-General's Office (Generalprokuratur)decided that there was no ground for taking action on the Applicant'srequest of .. June, 1965 for a plea of nullity for safeguarding the law(Nichtigkeitsbeschwerde zur Wahrung des Gesetzes). Later in 1966 theApplicant also applied unsuccessfully for a retrial (Wiederaufnahme).On .. July, 1965 the Regional Court (Kreisgericht) Ried revoked itsorder of .. August, 1962, by which order the Applicant had beenconditionally released (bedingt entlassen) from a labour institutionin respect of a previous sentence. A period of 3 years and 9 months ofthe previous sentence was still outstanding at the time of therevocation of this conditional release.The Applicant has set out in detail the facts leading up to his arrestand conviction. He now affirms that at 3 a.m. on .. January, 1965 hehad left his home to buy cigarettes. He saw two persons carrying sacksand acting in a suspicious manner. He realised that they were hidingthe sacks and was later able to take one sack home. The sacks containedthe proceeds of a burglary. Some days later the Applicant was arrestedand accused of the burglary and of extortion (Erpressung) by havingwritten a threatening letter after workmen had found the second sackwith some of the stolen property hidden on a dump and delivered it tothe police.In relation to his trial, the Applicant states that he was convictedwithout evidence, only because he told lies to try to clear himself.He states that he falsely confessed to the offenses because of threats,to bring the "continual questioning" (das fortw&Atilde;¤hrende Einvernehmen)to an end. He states that on the urging of the investigating judge headmitted the offence of writing the threatening letter. However, thehandwriting experts report stated that the threatening letter was notdefinitely in the Applicant's handwriting.The Applicant's view is that he ought only to have been convicted ofbeing an accomplice to the offence of theft (Diebstahlteilnehmung) andnot of the other offenses. He considers that the judge was prejudicedagainst him and objects to the fact that the judge disclosed detailsof the Applicant's previous convictions to the lay judges (Sch&Atilde;¶ffen).He complains also that the judge described him as being of badreputation (schlecht beleumdet). The Applicant admits that he hadprevious convictions but considers that as he had been in regularemployment and of good behaviour for two and a half years it wasunjustified to say that he was of bad reputation. The Applicant statesthat the judge tried to find a basis for this description of theApplicant by saying that the "X family" was of bad reputation. TheApplicant states that this is also unjustified as he had not lived withhis family for two and a half years. The Applicant states that at thetrial the judge frightened the Applicant's wife and shouted at her.The Applicant complains that he was not properly defended by the lawyerofficially provided to defend him (Pflichtverteidiger). This lawyer wasunprepared for the defence, and did not discuss the case with theApplicant before trial. He gave the Applicant no legal advice(Rechtsbelehrung), only asked the Applicant one question during thewhole hearing and left him in his difficulties (liess mich im Stich).The Applicant believes that the lawyer's final speech was a "farce".Moreover, because of lack of time, the Applicant's own final plea wascut short.The Applicant complains that his appeal was rejected in his absence.Only his unprepared lawyer (Pflichtverteidiger) was present.The Applicant states that while he was in custody a second threateningletter came to his wife. She took the letter to the police, who onlydisclosed it after the trial, although it would have served toexculpate him. He then made application for retrial (Wiederaufnahme)on the basis of the letter which was rejected both by the RegionalCourt and by the Court of Appeal on .. May and .. June, 1966,respectively.The Applicant complains of the length of his sentence. He states thathe had been working regularly before his arrest, so that it is nowquite inappropriate to send him to a labour institution, the purposeof which is to teach prisoners to work. In addition the conditions inthe labour institution resemble those of a prison. He states that heis now married and has children, who will suffer hardship in hisabsence. He cannot earn enough to support them, in the labourinstitution, no matter how hard he were to work. The NationalAssistance for them is inadequate. His wife and children have beenevicted from their home since his arrest.The Applicant further states that if a woman is sentenced to adetention in a labour institution, but then marries, she is notrequired to carry out her sentence. This does not apply to men, whohave to serve the sentence even if they have families.The Applicant alleges violations of Articles 4 and 6 of the Convention.THE LAWWhereas, as regards the complaint that the presiding judge discloseddetails of the Applicant's previous convictions to the lay assessorsbefore determining the issue of his guilt, the Commission considersthat the Application gives rise to questions of the interpretation ofArticle 6, paragraphs (1) and (2) (Art. 6-1, 6-2), of the Convention;Whereas, when interpreting such fundamental concepts as "fair hearing"within the meaning of Article 6, paragraph (1) (Art. 6-1), and"presumption of innocence" within the meaning of Article 6, paragraph(2) (Art. 6-2), the Commission finds it necessary to take intoconsideration the practice in different countries which are members ofthe Council of Europe; whereas it is clear that in a number of thesecountries information as to previous convictions is regularly givenduring the trial before the court has reached a decision as to theguilt of an accused; whereas the Commission is not prepared to considersuch a procedure as violating any provision of Article 6 (Art. 6) ofthe Convention, not even in cases where a jury is to decide on theguilt of an accused (see Decision No. 2518/65, Collection of Decisions,Volume 18, page 44);Whereas, in the present case, it is further to be observed that theApplicant had admitted his guilt to a certain extent and that the judgeand the lay assessors had to decide together both as to the convictionand as to the sentence to be imposed, and that in doing so they had totake into account the past record of the Applicant;Whereas it follows that this part of the Application is manifestlyill-founded within the meaning of Article 27, paragraph (2)(Art. 27-2), of the Convention;Whereas, in so far as the Applicant complains generally of hisconviction and sentence, an examination of the case as it has beensubmitted, including an examination made ex officio, does not discloseany appearance of a violation of the rights and freedoms set forth inthe Convention and especially in the Articles invoked by the Applicant;whereas, in respect of the judicial decisions complained of, theCommission has frequently stated that in accordance with Article 19(Art. 19) of the Convention its only task is to ensure observance ofthe obligations undertaken by the Parties in the Convention; whereas,in particular, it is not competent to deal with an application allegingthat errors of law or fact have been committed by domestic courts,except where the Commission considers that such errors might haveinvolved a possible violation of any of the rights and freedomslimitatively listed in the Convention;Whereas, in this respect, the Commission refers to its decisions Nos.458/59 (X v. Belgium - Yearbook III, page 233) and 1140/61 (X. v.Austria - Collection of Decisions, Volume 8, page 57); and whereasthere is no appearance of a violation in the proceedings complained of;Whereas it follows that this part of the Application is manifestlyill-founded within the meaning of Article 27, paragraph (2)(Art. 27-2), of the Convention;Whereas, in so far as the Applicant complains that he was not allowedto be present in person at the hearing before the Court of Appeal ofVienna on .. May, 1965, it is true that, being in detention on remand,he was prevented from attending that hearing;Whereas Article 6, paragraph (3) (c) (Art. 6-3-c), of the Conventionprovides that "everyone charged with a criminal offence has the ...right ... to defend himself in person or through legal assistance ofhis own choosing or, if he has not sufficient means to pay legalassistance, to be given it free when the interests of justice sorequire"; whereas this provision guarantees to an accused person thatthe proceedings against him will not take place without an adequaterepresentation of the case for the defence, but does not give anaccused person the right to decide himself in what manner his defenceshould be assured;Whereas the decision as to which of the two alternatives mentioned inthe provision should be chosen, namely, the Applicant's right eitherto defend himself in person or to be represented by a lawyer of his ownchoosing or, in certain circumstances, one appointed by the Court,rests with the competent authorities concerned (see the Commission'sdecision of 24th November, 1962, concerning Application No. 1242/61,W against Austria);Whereas, in the present case, the Applicant was represented by a lawyerappointed by the Court; whereas, consequently, his defence before theCourt of Appeal of Vienna was assured in a manner not inconsistent withthe requirements of Article 6, paragraph (3) (c) (Art. 6-3-c), of theConvention;Whereas therefore the examination of this complaint does not discloseany appearance of a violation of the rights and freedoms set forth inthe Convention and in particular in Article 6 (Art. 6); whereas itfollows that this part of the Application is also manifestlyill-founded and must be rejected in accordance with Article 27,paragraph (2) (Art. 27-2), of the Convention;Whereas, in so far as the Applicant's complaints concerning hisconviction and sentence are directed against his lawyer, it resultsfrom Article 19 (Art. 19) of the Convention that the sole task of theCommission is to ensure the observance of the engagements undertakenin the Convention by the High Contracting Parties, being those membersof the Council of Europe which have signed the Convention and depositedtheir instruments of ratification; whereas, moreover, it appears fromArticle 25, paragraph (1) (Art. 25-1), of the Convention that theCommission can properly admit an application from an individual onlyif that individual claims to be the victim of a violation of his rightsunder the Convention by one of the Parties which have accepted thiscompetence of the Commission; whereas it results clearly from theseArticles that the Commission has no competence ratione personae toadmit applications directed against private individuals;  whereas itfollows that this part of the Application is incompatible with theConvention within the meaning of Article 27, paragraph (2) (Art. 27-2)(see Application No. 1599/62, Yearbook of the European Convention onHuman Rights, Volume 6, page 348, 356);Whereas, in so far as the above complaint gives rise to the questionwhether the Court failed to ensure that the Applicant's defence wasproperly carried out with the consequence that he was not given a fairhearing within the meaning of Article 6 (Art. 6) of the Convention, anexamination of the case as it has been submitted, including anexamination made ex officio, does not disclose any appearance of aviolation of this right; whereas it follows that, in this respect, theApplication is manifestly ill-founded within the meaning of Article 27,paragraph (2) (Art. 27-2), of the Convention;Whereas, in so far as the Applicant complains of the rejection of hispetition for retrial and of his request that the Attorney-Generalshould lodge a plea of nullity for safeguarding the law, it is to beobserved that the Convention, under the terms of Article 1 (Art. 1),guarantees only the rights and freedoms set forth in Section I of theConvention; and whereas, under Article 25, paragraph (1) (Art. 25-1),only the alleged violation of one of these rights and freedoms by aContracting Party can be the subject of an application presented by aperson, non-governmental organisation or group of individuals;Whereas otherwise its examination is outside the competence of theCommission ratione materiae; whereas the right to the above mentionedproceedings is not as such included among the rights and freedomsguaranteed by the Convention;  whereas in this respect the Commissionrefers to its previous decisions Nos. 864/60 (X v. Austria - Collectionof Decisions Volume 9, page 17) and 1237/66 (X v. Austria - YearbookV, page 96) as regards petitions for retrial, and Nos. 2123/64 and2301/64 as regards requests that the Attorney-General should lodge aplea of nullity for safeguarding the law;  whereas it follows that thispart of the Application is incompatible with the provisions of theConvention within the meaning of Article 27, paragraph (2) (Art. 27-2),of the Convention;Whereas, in so far as the Applicant complains of the hardship causedto his wife and children as a result of his detention, the Commissionhad regard to Article 8, paragraph (1) (Art. 8-1), of the Conventionwhich guarantees to everyone the right to respect for his private andfamily life; whereas the separation of a prisoner from his family andthe hardship resulting from it are inherent consequences of theexecution of a sentence; whereas therefore an examination of thiscomplaint does not disclose any appearance of a violation of the rightsand freedoms set forth in the Convention and in particular in Article8, paragraph (1) (Art. 8-1); whereas it follows that this part of theApplication is manifestly ill-founded within the meaning of Article 27,paragraph (2) (Art. 27-2), of the Convention.Now therefore the Commission declares this Application INADMISSIBLE.[/align]

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