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 1929 and residing at
Salzburg.  He has lodged a previous Application (No 1128/61) with the
Commission in which he complained about his conviction and sentence by
the Regional Court (Landesgericht) at Salzburg in 1956 and also about
the subsequent refusal of a retrial and the dismissal of his petition
for clemency by the said court.  This Application was declared
inadmissible by the Commission's decision of 19 September 1961.

From the Applicant's statements and from documents submitted by him in
support of his present Application, it appears that while he was
serving his sentence from the above conviction, his 2 children - a son,
Franz, born in 1949 and a daughter, Rosa, born in 1950 - were taken
charge of by the public authorities (Fürsorgeerziehung) in accordance
with an order made by the District Court (Bezirksgericht) of Salzburg
on .. March 1956. Both children were committed to the care of a family
at G.

The Applicant states that the children were neglected by their
foster-parents and that he considered it necessary to make an
application to the authorities that Rosa should be sent to an approved
school (Erziehungsheim). Consequently, his daughter was sent to such
a school, while Franz remained with the foster-parents.

On .. February 1962, the Applicant was released from detention. He
married in December 1964 and now wished to regain charge of his
children. He states that his son had been convicted of a minor offence
and had also stolen money from his foster-parents who were no longer
willing to keep him in their care. Thual Youth Office (Landesjugendamt)
decided in 1965 that Franz should stay with the Applicant until ..
January 1966 and should subsequently be committed to an approved
school. In March 1966 Franz apparently escaped from this school after
having committed several criminal offenses. The Applicant states that
the authorities had not informed him of his son's escape and that it
was only 2 weeks later that his son called him on the telephone, asking
him for help. According to the Applicant he immediately informed the
authorities of the contact which he had established with Franz, and
asked them to search for him and commit him to his care. The
authorities allegedly refused to take any action. The Applicant states
that he searched for his son on his own and that, having found him,
Franz agreed to go with him only after he (the Applicant) had promised
not to deliver him to the authorities, which promise he made. It
appears that 3 weeks later Franz, whose whereabouts had been reported
by his sister Rosa, was returned to the school by the authorities.
However, on .. May 1966, the day of his return, he escaped again and
the Applicant allegedly found him 4 days later starved and exhausted.
The Applicant states that he immediately informed the Regional Youth
Office at Salzburg. In the meanwhile, on .. May 1966, the District
Court at Salzburg had taken a decision to the effect that the order of
.. March 1956, committing Franz to the charge of the authorities,
should be repealed.

However, the Regional Youth Office laid charges against the Applicant
of having assisted his son in his efforts to elude the directions for
his education which had been given by the authorities, in that he had
concealed his son's whereabouts after his escape from the approved
school.

The Applicant was brought to trial on these charges before the District
Court at Salzburg. He was convicted on .. June 1966, and sentenced to
a fine of 500 Schillings. The Applicant lodged an appeal (Berufung)
against his conviction and sentence with the Regional Court of Salzburg
and, at the same time, the Office of the Public Prosecutor
(Staatsanwaltschaft) appealed (Berufung) to that Court against the
sentence. The above Regional Court decided on .. November 1966 that the
Applicant's appeal should be dismissed but that the prosecution's
appeal be allowed to the extent that the sentence should be increased
to one week's arrest (Arrest). The Court further ordered that the
execution of this sentence should be suspended for a probationary
period of 3 years.

The Applicant complains:

a. The Convention was violated by the authorities' failure to take
proper care of his son and to return him to his care.

b. He was wrongly convicted and sentenced. He alleges that he should
not have been convicted of the charge preferred against him because he
was acting under an irresistible force to save his son from becoming
a criminal.

He alleges a violation of Articles 7 and 12 of the Convention.

THE LAW

Whereas the Applicant complains that the Convention was violated by the
authorities' failure to take proper care of his son and to return him
to his care subsequent to his release from prison;

Whereas it is true that Article 8 (Art. 8) of the Convention guarantees
generally the right to respect for private and family life; whereas,
however, paragraph (2) of Article 8 (Art. 8-2) provides that "there
shall be no interference by a public authority with the exercise of
this right except such as in accordance with the law and is necessary
in a democratic society ... for the protection of health or morals";
whereas the Commission finds that, even assuming that in the
circumstances of the present case a question might arise under Article
8, paragraph (1) (Art. 8-1) of the Convention, the measures taken by
the authorities in regard to his son were necessary to protect his
health or morals within the meaning of paragraph (2) of Article 8
(Art. 8-2) of the Convention; whereas it follows that 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;

Whereas the Applicant further complains that he should not have been
convicted for having assisted his son in his efforts to elude the
directions for his education as he was acting under an irresistible
force to save his son from becoming a criminal; whereas it has already
been stated that Article 8 (Art. 8) of the Convention guarantees
generally the right to respect for private and family life subject to
the restrictions set out in paragraph (2) (Art. 8-2) of this provision;
whereas under Article 8, paragraph (2) (Art. 8-2) of the Convention the
interference by a public authority with the exercise of the right to
respect for private and family life is also justified when such is
necessary for the prevention of disorder or crime; whereas the
Commission finds that, again assuming that in the circumstances of the
present case a question might arise under Article 8, paragraph (1)
(Art. 8-1) of the Convention, the action taken against the Applicant
was necessary to prevent disorder or crime within the meaning of
paragraph (2) of Article 8 (Art. 8-2); whereas it follows that this
part of the Application is also manifestly ill-founded and must be
rejected in accordance with Article 27, paragraph (2) (Art. 27-2), of
the Convention;

Whereas finally in regard to the Applicant's complaint that his
conviction and sentence was wrong having regard to the facts of the
case 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
especially in the Articles invoked by the Applicant; whereas, in
respect of the judicial decisions complained of, the Commission has
frequently stated that in accordance with Article 19 (Art. 19) of the
Convention its only task is to ensure observance of the obligations
undertaken by the Parties in the Convention; whereas, in particular,
it is not competent to deal with an application alleging that errors
of law or fact have been committed by domestic courts, except where the
Commission considers that such errors might have involved a possible
violation of any of the rights and freedoms limitatively 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 whereas there is no appearance of a violation in the proceedings
complained of;

Whereas it follows that this part of the Application is again
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.