Austrian Amnesty Case [Austria, Court of Appeal of Vienna.]

JurisdictionAustria
CourtCourt of Appeal of Vienna (Austria)
Austria, Court of Appeal of Vienna.
Austrian Amnesty Case.

Belligerent Occupation — Judicial Functions of Occupant — Whether Tribunals of Occupant Foreign or Municipal Tribunals — Person Convicted of Criminal Offence by Tribunal of Occupant — Amnesty Law Enacted by Occupied Country — Application of Amnesty Law to Sentences of Occupation Tribunals — The Law of Austria.

The Facts.—The Austrian Amnesty Law of 1955 provided, as far as here material, that persons sentenced to terms of imprisonment not exceeding three months were entitled to an amnesty. In this case the accused was sentenced to a term of three months' imprisonment by an Austrian court, and put on probation for three years. While on probation he was sentenced to a term of imprisonment of more than eight years by an American occupation tribunal. After serving some five years of this sentence he was released in 1955. Meanwhile, the Amnesty Law had been enacted, and the question arose as to whether the sentence of the American tribunal must be added to the term of three months' imprisonment imposed by the Austrian court in 1948, or whether, for the purpose of the Amnesty Law, it must be ignored, in which latter case the accused would be entitled to an amnesty.

Held: that as the sentence of the American tribunal was the sentence of a foreign court and not an Austrian court, it must be ignored for the purpose of the Amnesty Law; the only outstanding term of imprisonment was therefore one not exceeding three months, and the accused was accordingly entitled to an amnesty.

The Court said: “According to section 1 of the Amnesty Law of 1955 an amnesty is to be granted only in respect of sentences not exceeding three months. Apart from the sentence passed by the District Court of Vienna on March 15, 1948, there is only one further sentence in existence which has been passed, viz. that resulting from the decision of the American Tribunal at Salzburg. This, however, is not a sentence within the meaning of section 1 of the Amnesty Law. The accused is an Austrian citizen who committed the offence with which he was charged before the American Tribunal, in Austria, and that offence is a crime against sections 8 and 90 of the Austrian Criminal Code; alternatively, it constitutes at least the offence of restricting another person's personal liberty within the meaning of section 83 of the Austrian Criminal Code. In principle, therefore...

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