European Court of Human Rights

THE FACTS (1)

Whereas the facts of the case may be summarised as follows:

The Applicant is an Austrian citizen, born in ... and at present
detained in the prison of A.. He has several previous convictions and
was on ... 1959 released on probation from a labour institution.

On ... 1960 the Applicant was convicted by the Regional Court
(Landesgericht) of B. on several charges of theft and sentenced to 18
months' imprisonment with the additional penalties of "sleeping hard"
and a fast day four times a year. When fixing the sentence the Court
considered as extenuating circumstance the fact that the Applicant had
apparently made a partial restitution to the victims of the objects
stolen and the fact that he had been brought up in poverty and had to
maintain a family.
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(1) See also decision of 19th September 1961 on the admissibility of
Application No. 1053/61, page 6.
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The Public Prosecutor lodged an appeal with the Court of Appeal
(Oberlandesgericht) which on ... 1960 heard the case in a non-public
session. Neither the Applicant nor his lawyer was present and the Court
only heard the arguments of the Chief Public Prosecutor
(Oberstaatsanwalt). The Court rejected the existence of extenuating
circumstances and having referred to the Applicant's recent release on
probation from a labour institution, increased his sentence from 18
months to 5 years' imprisonment.

On ... 1960 the District Court (Kreisgericht) of C. revoked the
Applicant's conditional release from the labour institution and ordered
him to serve the remainder of his sentence of detention in that
institution after he had completed his 5-year term of imprisonment.

On ... 1960 the Applicant lodged a request that the Attorney-General
should file pleas of nullity (Nichtigkeitsbeschwerde) against his
conviction by the Court of Appeal of B. and against the decision of the
District Court of C., but on ... 1961 he was informed that the Public
Prosecutor had decided not to take any such action.

Whereas the Applicant alleges violations of Article 6, paragraphs (1)
and (3) (c) and (d);

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" and whereas the
decision of the Court of Appeal of B. the final decision in the case,
was taken on ... 1960; whereas, furthermore, the present Application
was not submitted to the Commission until 25th June 1961, that is more
than six months after the date of the decision of the Court of Appeal
of B.;

Whereas the request lodged by the Applicant that the Attorney-General
should introduce a plea of nullity in the Applicant's favour does not
constitute a remedy within the meaning of Article 26 (Art. 26) of the
Convention; whereas it follows that the Applicant has not satisfied the
six months limit laid down in Article 26 (Art. 26) of the Convention
and this Application must be rejected in accordance with Article 27,
paragraph (3) (Art. 27-3) of the Convention;

Now therefore the Commission declares this Application INADMISSIBLE.