European Court of Human Rights

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."