AS TO THE ADMISSIBILITY OF
Application No. 12371/86
by B.
against the Federal Republic of Germany
The European Commission of Human Rights sitting in private
on 12 December 1988, the following members being present:
MM. C. A. NØRGAARD, President
J. A. FROWEIN
S. TRECHSEL
G. SPERDUTI
E. BUSUTTIL
G. JÖRUNDSSON
A. WEITZEL
J. C. SOYER
H. G. SCHERMERS
H. DANELIUS
J. CAMPINOS
H. VANDENBERGHE
Mrs. G. H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
Mr. J. RAYMOND, Deputy 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 11 July 1986
by B. against the Federal Republic of Germany and registered on 18
August 1986 under file No. 12371/86;
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 1951 and serving
a life sentence in prison at Stuttgart. He is represented by
Mrs. M. Roell and Mr. J. Schwenn, lawyers in Hamburg.
The facts submitted may be summarised as follows:
On 7 May 1984 the applicant was convicted by the Stuttgart
Court of Appeal (Oberlandesgericht) principally on several counts of
murder in conjunction with the taking of hostages and kidnapping (Mord
in Tateinheit mit Geiselnahme, erpresserischem Menschenraub). He was
given a triple life-sentence and fifteen years' imprisonment (dreimal
lebenslange Freiheitsstrafe sowie fünfzehn Jahre Freiheitsstrafe).
According to the findings of the Court, the applicant was an
underground member of a terrorist organisation known as the Red Army
Fraction (RAF) since the end of December 1976. As a member of this
terrorist organisation the applicant actively participated in the
planning, organisation and execution of the following actions:
In April/May 1977 a commando group of "RAF" members, including
the applicant, decided to kidnap personalities in order to propose to
the German authorities their liberation in exchange for the liberation
of the lawfully detained "RAF" members Baader, Ensslin and Raspe.
It was first planned to kidnap the banker Jürgen Ponto. The
applicant fully accepted and identified himself with the project. On
28 and 29 July 1977 the applicant and other members of the group stole
and prepared two cars for the kidnapping. On 30 July three other
members, namely Susanne Albrecht, the daughter of a friend of Mr.
Ponto's, Brigitte Mohnhaupt and an unidentified male member, visited
the Pontos in their home. When they tried to kidnap Mr. Ponto he
resisted and was then shot by Brigitte Mohnhaupt. The perpetrators
escaped. Subsequently, the "RAF" wrote letters to various press agencies
commenting on the action.
On 25 August 1977 the commando attempted to kill officials
of the Federal Prosecutor's Office (Bundesanwaltschaft) by firing
explosives at the office building from a nearby apartment house.
There they had overwhelmed an elderly couple and installed in that
couple's apartment a rocket-launching device with 42 launchers, which
the applicant had constructed with the help of Susanne Albrecht and
others. The plot failed, because an error was made in setting the
self-timer and the apartment owners eventually succeeded in freeing
themselves and alarming the police. Again the "RAF" sent letters
claiming to be the author of the plot.
On 5 September 1977 a "RAF" commando kidnapped the President of
the Federal Union of German Employer Associations (Bundesvereinigung
der Deutschen Arbeitgeberverbände), Mr. H.-M. Schleyer, when he was
driving home with his escort. Mr. Schleyer's driver and three
policemen were killed by the commando. Mr. Schleyer was later killed
by an unidentified "RAF" member by three shots into his head. The
kidnapping had been prepared with great care during several weeks and
the applicant again took an active part in the plot. Although on
25 September 1977 he travelled to Bagdad, the whole action was, in the
Court's opinion, carried out with his knowledge, consent and approval.
The findings of the Court of Appeal were based on
circumstancial evidence like fingerprints of the applicant and other
"RAF" members, evidence given by police officers to whom one of the
arrested "RAF" members had freely talked about the group's organisation
and activities, the statements made before judicial authorities by two
former members who, however, refused to give evidence at the trial for
fear of reprisals.
The applicant had also admitted to having been an active "RAF"
member. He had, however, denied participating in any of the actions
which resulted in the actual killing of persons. While there was no
evidence to prove the contrary, the Court of Appeal, admitting that
not all "RAF" members were informed about or participated in the various
criminal activities, nevertheless considered the applicant to be an
accomplice (Mittäter), as the killings were only the end-result of
preconceived plans, in the realisation of which the applicant had, as
the evidence obtained proved, taken an active and deliberate part,
knowing and approving the consequences.
In this respect the Court of Appeal referred, inter alia, to
previous trials against other "RAF" members and to the statements of "RAF"
member Stefan Wisniewski made at his trial before the Düsseldorf Court
of Appeal. Wisniewski, who was found guilty of having participated in
the Schleyer kidnapping, had explained that "RAF" actions were decided
and carried out on a basis of mutual agreement and accord between the
participating members.
The Court of Appeal therefore did not consider it necessary to
hear an expert proposed by the applicant's defence on the allegation
that not all "RAF" members were informed about and participated in the
decision-making on the different actions.
The applicant's appeal on points of law (Revision) against
conviction was rejected by the Federal Court (Bundesgerichtshof) on
8 July 1985. However, the Federal Court quashed the applicant's
sentence and sent the case back for a new decision on sentence.
The applicant then lodged a constitutional complaint against
the Federal Court's decision rejecting his appeal against conviction.
He complained, inter alia, that the trial court had refused to hear an
expert on social science on the allegation that an empirical analysis
would show that there did not exist a behavioural pattern of collective
planning and action within the "RAF".
On 23 December 1985 a group of three judges of the Federal
Constitutional Court rejected the complaint as offering no prospects
of success. The decision was received by the applicant's counsel on
13 January 1986. It is stated in the decision that the trial court's
taking and appreciation of evidence was by no means exceptionable.
The trial court, so it is further pointed out, was entitled to take
into consideration under the applicable procedural law facts and
circumstances known to it as a result of other trials. The trial
court had duly informed the defence that certain facts relating to the
"RAF" were known from previous proceedings. Thus the defence did have
the opportunity to submit their comments in this respect. The trial
court finding, based on previous trials, that the "RAF" terrorist
organisation had a collective structure was not arbitrary. It is
noted in this context that the trial court admitted that not all
members were previously informed about every action. Furthermore, so
the Federal Constitutional Court noted, the trial court did not refer
to previous proceedings but to the evidence taken at the applicant's
trial insofar as the particular circumstances concerned related
to the planning and realisation by the group of perpetrators of the
crimes in question. The evidence had been evaluated in accordance
with the trial court's competence to do so.
COMPLAINTS
The applicant complains that he was wrongly convicted of
murder as there was allegedly no evidence that he participated in any
of the killings. He maintains that it violated his right to a fair
trial that no expert was heard on his allegation that, contrary to the
statements of certain "RAF" members, a collective structure did not exist
within the "RAF" but rather a hierarchical structure with executive
groups at different levels which often operated without knowledge of
the aims and plans of the decision-making members. He invokes Article
6 paras. 1 and 3 of the Convention.
THE LAW
The applicant has complained that he was wrongly convicted and
sentenced on 7 May 1984 by the Stuttgart Court of Appeal and also of
the court proceedings concerned.
With regard to the judicial decisions of which the applicant
complains, the Commission recalls that, in accordance with Article 19
(Art. 19) of the Convention, its only task is to ensure the observance
of the obligations undertaken by the Parties in the Convention. 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 it considers that such errors might have involved a
possible violation of any of the rights and freedoms set out in the
Convention. The Commission refers, on this point, to its established
case-law (see e.g. No. 458/59, Dec. 29.3.60, Yearbook 3 pp. 222, 236;
No. 5258/71, Dec. 8.2.73, Collection 43 pp. 71, 77; No. 7987/77, Dec.
13.12.79, D.R. 18 pp. 31, 45).
It is true that the applicant also complains that
the trial court refused to hear an expert on the allegation that the
terrorist organisation of which he was a member did not have a
collective structure. In this connection he alleges a violation of
Article 6 paras. 1 and 3 (Art. 6-1, 6-3) of the Convention, which provides:
"1. In the determination of his civil rights and
obligations or 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. Judgment shall be pronounced publicly but the press
and public may be excluded from all or part of the trial in
the interests of morals, public order or national security
in a democratic society, where the interests of juveniles or
the protection of the private life of the parties so
require, or to the extent strictly necessary in the opinion
of the court in special circumstances where publicity would
prejudice the interests of justice.
2. ...
3. Everyone charged with a criminal offence has the
following minimum rights:
(a) to be informed promptly, in a language which he
understands and in detail, of the nature and cause of the
accusation against him;
(b) to have adequate time and facilities for the
preparation of his defence;
(c) to defend himself in person or through legal
assistance of his own choosing or, if he has not sufficient
means to pay for legal assistance, to be given it free when
the interests of justice so require;
(d) to examine or have examined witnesses against him
and to obtain the attendance and examination of witnesses on
his behalf under the same conditions as witnesses against
him;
(e) to have the free assistance of an interpreter if he
cannot understand or speak the language used in court."
However, even assuming that the guarantee of a fair trial
interpreted in the light of the special guarantees set out in
paragraph 3 of the Convention, in particular, the right of the accused
to obtain the attendance and examination of witnesses on his behalf
(sub-paragraph (d)), includes a right to have an expert opinion
obtained on questions which necessitate specialised knowledge,
such a right is not an absolute one. As is the case in regard
to the hearing of witnesses, it is, in principle, within the
discretionary power of the national courts of the Contracting States
to establish whether it is necessary that an expert opinion be
obtained for the establishment of the truth (cf. No. 8231/78,
Dec. 6.3.82, D.R. 28 p. 5 [25]). In the present case the Commission
notes that the applicant's conviction is not simply based on the fact
and reasoning that he was a member of a terrorist organisation and
that it followed from the "collective structure" of this organisation
that he was to be considered guilty of the crimes committed by the
organisation. It appears from the carefully and extensively reasoned
decision of the trial court that the evidence taken at the applicant's
trial proved that he took an active and deliberate part in the
planning and realisation of the terrorist plots that led to the
killing of several people.
In these circumstances it cannot be found that the court
failed to respect Article 6 (Art. 6) of the Convention by not accepting the
proposal made by the defence to hear an expert on the question as to
whether or not the terrorist organisation did have a collective
structure.
It follows that the application is 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.
Deputy Secretary to the Commission President of the Commission
(J. RAYMOND) (C.A. NØRGAARD)