AS TO THE ADMISSIBILITY
Application No. 11669/85
by A. A.
against the Federal Republic of Germany
The European Commission of Human Rights sitting in private
on 7 December 1987, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
G. SPERDUTI
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
G. BATLINER
Mrs. G.H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
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 4 March 1985
by A.A. against the Federal Republic of Germany and registered
on 31 July 1985 under file N° 11669/85;
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, born in Teheran in 1931, acquired German
nationality in 1971. He is a medical doctor and a lawyer and runs
a private institute for forensic medicine in Düsseldorf. His
application was introduced by Messrs. Krumbiegel and Biron, lawyers
practising in Düsseldorf.
On 26 March 1983 the applicant was formally charged
(angeklagt) with fraud. In 1978 the applicant, who at that time was
employed at the Institute of Forensic Medicine of the Düsseldorf
University, had been appointed as expert by the Schleswig-Holstein
Court of Appeal (Oberlandesgericht) in the proceedings concerning the
retrial of a murder case. However, according to the indictment, the
applicant had based his opinion which he delivered in 1979 on
experiments which may never have been carried out or, at least, were
not carried out in the way described in his opinion.
The applicant commented on the indictment on 20 September 1983
and on 3 October 1983.
On 28 February 1984 the Düsseldorf District Court (Amtsgericht)
refused to commit the applicant for trial (lehnte die Eröffnung des
Hauptverfahrens ab).
On 19 March 1984 the Public Prosecution (Staatsanwaltschaft)
appealed from that order (sofortige Beschwerde).
Thereupon, on 22 June 1984, the Düsseldorf Regional Court
(Landgericht) ordered that the case should go to trial before the
Düsseldorf District Court.
Thereafter the applicant requested leave to submit additional
comments to the Regional Court, in view of the fact that the District
Court had refused to commit him for trial on legal grounds and that
evidence disproving the factual allegations of the indictment had not
yet been offered in detail. This request was granted by the Regional
Court on 22 October 1984. The time-limit for submission of the
applicant's comments was 20 November 1984.
The applicant submitted comments dated 19 November 1984
(nine pages) and 20 November 1984 (one page); the comments dated
20 November 1984 were received by the Regional Court in the evening
of that day.
The 21 November 1984 was a public holiday (Buss- und Bettag);
the 24 November was a Saturday.
On Monday, 26 November 1984 the Düsseldorf Regional Court
refused to reverse or modify its decision of 22 June 1984.
On 20 December 1984 the applicant lodged a constitutional
complaint (Verfassungsbeschwerde) with the Federal Constitutional
Court (Bundesverfassungsgericht). On 14 January 1985 this complaint
was rejected by a committee of three judges as lacking prospects of
success.
COMPLAINTS
The applicant complains about the decision of the Regional
Court of 26 November 1984. He submits that this Court, on 22 June
1984, decided to commit him for trial without having been able to
comment on the indictment. Thus, his right under Article 6 para. 1
first sentence that his case be heard fairly and publicly within a
reasonable time was violated.
He further alleges that the opportunity to subsequently submit
comments did not comply with the requirements of fair trial, as
guaranteed by the said provision, as the Regional Court had not
sufficiently motivated its decision of 26 November 1984. The
applicant also contends that the judges of the chamber concerned of
the Regional Court were unable to consider the applicant's submissions
on the two working days between the end of the time-limit and the day
of their decision.
The applicant further complains that his case was not decided
by his lawful judge. He argues that, after the District Court's
decision which was based on legal grounds was reversed by the Regional
Court, this Court was not competent to decide itself whether or not
the case should go to trial but was obliged to send the case back to
the District Court.
The applicant also alleges violations of Articles 3 and 14 of
the Convention.
THE LAW
1. The applicant complains that the Düsseldorf Regional Court, in
committing him for trial before the Düsseldorf District Court, violated
Article 6 para. 1 (Art. 6-1) of the Convention.
The first sentence of this provision stipulates:
"1. In the determination ... of any criminal charge against
him, everyone is entitled to a fair and public hearing within
a reasonable time by an independent and impartial tribunal
established by law. ..."
(In French:
"1. Toute personne a droit à ce que sa cause soit
entendue équitablement, publiquement et dans un délai
raisonnable, par un tribunal indépendant et impartial,
établi par la loi, qui décidera ... du bien-fondé de
toute accusation en matière pénale dirigée contre elle.")
The Commission notes that the decision complained of, while
relating to a "criminal charge" in the sense of the above provision,
concerned exclusively the question of whether or not the case should
go to trial. Although such a decision implies a finding as to whether
there is a sufficient suspicion against the accused, it does not
involve a finding of guilt which is to be proven during the trial. A
decision to commit the accused for trial does not therefore constitute
a "determination of a criminal charge" (décision sur le bien-fondé
d'une accusation en matière pénale) within the meaning of Article 6
para. 1 (Art. 6-1) first sentence, and it follows that this provision is not
applicable to the proceedings in question here. Consequently, this
part of the application must be rejected as incompatible ratione
materiae with the provisions of the Convention in accordance with
Article 27 para. 2 (Art. 27-2) of the Convention.
2. Insofar as the applicant alleges violations of Articles 3 and
14 (Art. 3, 14) of the Convention the Commission finds no issue under these
provisions. This part of the application must accordingly be
rejected as manifestly ill-founded within the meaning of Article 27
para. 2 (Art. 27-2) 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)