AS TO THE ADMISSIBILITY OF
Application No. 11863/85
by A.B.
against the Federal Republic of Germany
The European Commission of Human Rights sitting in private
on 4 May 1987 the following members being present:
MM. C. A. NØRGAARD, President
E. BUSUTTIL
G. JÖRUNDSSON
S. TRECHSEL
B. KIERNAN
A. S. GÖZÜBÜYÜK
A. WEITZEL
H. G. SCHERMERS
H. DANELIUS
G. BATLINER
Mrs. G. H. THUNE
Mr. F. MARTINEZ
Mr. H. C. KRÜGER Secretary to the Commission
Having regard to Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 17 October 1985
by A.B. against the Federal Republic of Germany and registered
on 27 November 1985 under file N° 11863/85.
Having regard to the report provided for in Rule 40 of the
Rules of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a German citizen born in 1954 and residing in
Oldenburg. He is represented before the Commission by Mr D. Kaut, a
lawyer practising in Hamburg.
On 9 November 1977, the applicant was convicted by the Berlin
Regional Court (Landgericht) of several cases of robbery and
sentenced to ten years' imprisonment. A request for retrial (Antrag
auf Wiederaufnahme) was admitted by the Regional Court, but finally
rejected as being unfounded on 29 January 1982. The applicant's
appeal was of no avail.
A second request for retrial was filed on 9 September 1985.
After the termination of the first proceedings for retrial,
the Public Prosecutor's Office (Staatsanwaltschaft) in Berlin
instituted preliminary investigations against witnesses and also
against the applicant on suspicion of instigation of false testimony.
It is unclear when the applicant was informed for the first time of
these charges. In any event, after having consulted the file
concerning these investigations the applicant's lawyer reported to the
applicant by letter of 23 January 1984.
On 26 June 1984 a certain K, who was charged with being an
accomplice of the applicant in the robbery cases, gave evidence in the
new investigation proceedings directed against the applicant. K
stated that only after a confrontation with the applicant would he be
able to tell whether the person who had introduced himself to K as
"Brumme" was in fact identical with the applicant.
Thereupon, on 23 August 1984, the applicant's lawyer requested
the Public Prosecutor's Office in Berlin that K be confronted with the
applicant. This request was repeated several times, the applicant's
lawyer pointing out that the result of this confrontation might be of
relevance not only to the investigation proceedings but also to a
possible request for retrial relating to the applicant's conviction
for robbery.
By letter of 8 February 1985 the Public Prosecutor's Office
informed the applicant's lawyer that it did not, for the time being,
envisage confronting K with the applicant. Thereupon, on 14 February
1985, the applicant's lawyer lodged a hierarchical complaint with the
Chief Public Prosecutor (Generalstaatsanwalt), which was rejected on
23 April 1985. He complained about this decision to the Berlin
Minister of Justice and Federal Affairs (Senator für Justiz und
Bundesangelegenheiten) on 26 April 1984, again requesting that the
applicant be confronted with K.
This complaint was again rejected by the Chief Public
Prosecutor on 10 July 1985. In the meantime, on 26 June 1985, the
Public Prosecutor's Office had informed the applicant's lawyer of its
reasons for not carrying out the requested confrontation. It
considered that even a favourable result of such a confrontation would
be of no relevance to the preliminary investigation against the
applicant.
Following the rejection of his complaint by the Chief Public
Prosecutor, the applicant's lawyer, on 12 August 1985, applied to the
Berlin Court of Appeal (Kammergericht) for a court decision in
accordance with S. 23 of the Introductory Act to the Judicature Act
(Einführungsgesetz zum Gerichtsverfassungsgesetz). However, the Court
of Appeal dismissed this application as inadmissible, stating that the
confrontation requested by the applicant was not an act of judicial
administration subject to its review by virtue of this provision.
Rather, it was a step in the course of the investigation proceedings,
which are to be considered, as a whole, by the courts after formal
indictment.
By February 1986, the Public Prosecutor's Office, after having
resumed its investigations which had been discontinued in the
meantime, had formally indicted the applicant for instigation of false
testimony, and by the end of March 1987 it has been decided that the
case should go to trial before the Tiergarten District Court
(Amtsgericht).
COMPLAINTS
The applicant complains that the Public Prosecutor's Office
refused to accede to his repeated requests to be confronted with K.
He submits that a possible favourable result, viz. that he would not
be recognised by K, would be reduced in value in view of the time
factor if the confrontation was carried out later or only at the
trial. However, the Public Prosecutor's Office was under a duty also
to collect exonerating evidence. Moreover, if he was not recognised
by K, this result would be of relevance also to his request for
retrial relating to his conviction for robbery.
The applicant invokes Article 6 of the Convention.
THE LAW
The applicant complains under Article 6 (Art. 6) of the
refusal by the Public Prosecutor's Office to confront him with a
certain witness.
1. In so far as the applicant submits that this confrontation
could be of relevance to his request for a retrial in relation to an
offence of which he had previously been convicted, the Commission
recalls its constant case-law according to which Article 6 (Art. 6) of the
Convention does not apply to proceedings concerning requests for
retrial, given that someone who applies for his case to be re-opened
after his conviction has become final, is not someone "charged with a
criminal offence" within the meaning of the said Article (see e.g. No.
864/60, Dec. 10.3.62, C.D. 9 p. 17 ; No. 1237/61, Dec. 5.3.62,
Yearbook 5 p. 96 ; No. 7761/77, Dec. 8.5.78, D.R. 14 p. 171
).
Accordingly, the application falls outside the scope of the
Convention in so far as the complaints relate to the question of a
retrial. In this respect, it must therefore be rejected as
incompatible ratione materiæ with the Convention within the
meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
2. The Commission notes, however, that the request for
confrontation was made by the applicant in the course of a preliminary
investigation directed against him. The applicant must have been
informed of this investigation by January 1984 at the latest.
Accordingly, he may, in respect of these proceedings, be considered as
a person charged with a criminal offence within the meaning of
Article 6 (Art. 6) from that time.
Article 6 (Art. 6) of the Convention, in its first paragraph, secures
to everyone charged with a criminal offence the right to a fair and
public hearing within a reasonable time by an independent and
impartial tribunal established by law. Additionally, Article 6 para. 3
(Art. 6-3) provides for certain minimum rights of an accused person.
However, the Commission is not required to decide whether or
not the facts alleged by the applicant disclose any appearance of a violation
of these provisions as, under Article 26 (Art. 26) of the Convention, it may
only deal with a matter after all domestic remedies have been exhausted
according to the generally recognised rules of international law.
In the present case the criminal charge against the applicant
has not yet been determined. However, the question of compliance with
the requirements of fair trial must be decided on the basis of an
evaluation of the trial as a whole, and not on the basis of an
isolated consideration of one particular aspect of the trial or one
particular incident (cf. Nielsen v. Denmark, Comm. Report 15.3.61,
Yearbook 4 p. 494 <548, 550>; No. 4991/71, Dec. 18.7.73, Collection
45 p. 1 ; No. 5574/72, Dec. 21.3.75, D.R. 25 p. 10 ; Can v.
Austria, Comm. Report 12.7.84, para. 48, Eur. Court H.R., Series A No.
96 p. 48). This principle holds true not only for the application of the
concept of fair trial as such, as laid down in Article 6 para. 1 (Art. 6-1),
but also for the application of the specific guarantees laid down in Article 6
para. 3 (Art. 6-3) (Can v. Austria, supra).
It follows from these considerations that in the present case
the question whether the fairness of the trial is impaired by the
refusal of the applicant's request to be confronted with K. at this
stage of the preliminary investigation has to be decided by the trial
court. In the proceedings before that court, the applicant has the
opportunity of raising any complaints about the deficiencies in the
preliminary investigation, including the failure to confront him with
K. As long as this matter has not been brought before the trial
court, the applicant has not exhausted the domestic remedies at his
disposal.
It follows that the application must in this respect be
rejected under Article 27 para. 3 (Art. 27-3) of the Convention.
For these reasons, the Commission
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)