AS TO THE ADMISSIBILITY OF
Application No. 22644/93
by Günther DROZD
against Germany
The European Commission of Human Rights (First Chamber) sitting
in private on 5 July 1994, the following members being present:
MM. A. WEITZEL, President
C.L. ROZAKIS
F. ERMACORA
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
Mrs. J. LIDDY
MM. M.P. PELLONPÄÄ
B. MARXER
G.B. REFFI
B. CONFORTI
N. BRATZA
I. BÉKÉS
E. KONSTANTINOV
G. RESS
Mrs. M.F. BUQUICCHIO, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 26 July 1993 by
Günther DROZD against Germany and registered on 17 September 1993 under
file No. 22644/93;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a German citizen born in 1943 and presently
detained in Tauberbischoffsheim. He is represented by Mr. W. Ferner,
a lawyer practising in Heidelberg.
It follows from his statements and the documents submitted that
on 30 October 1992 the applicant had been remanded in prison and on
16 December 1992 he was convicted by the Tauberbischoffsheim District
Court (Amtsgericht) on five counts of fraud (Betrug) and one count of
embezzlement (Unterschlagung). He was sentenced to one year and eight
months imprisonment.
According to the findings of the trial court the applicant, who
has a long criminal record, has been in constant financial difficulty
for years and is over-indebted. Nevertheless, he bought and had
delivered some expensive goods. The purchase contracts provided for
payment after delivery but the applicant never paid or only made a
down-payment while instalment payments were not made. These findings
are based on the evidence given by various witnesses and documentary
evidence. Furthermore, it is stated in the judgment that the applicant
had admitted his guilt on all counts.
It appears from the trial record of 16 December 1992 that the
applicant's defence counsel, Mr. Ferner, was not present and had on
15 December 1992 challenged the presiding judge, apparently on the
ground that he had rejected counsel's request to adjourn the trial
hearing. This request had been faxed to the court on 4 December 1992
and was rejected on 8 December 1992 on the ground that several
adjournments had already been granted while another adjournment was not
possible for reasons of the court's schedule. The adjournment was also
refused in view of the fact that on 2 October 1992 the court had
refused to appoint Mr. Ferner as the defense counsel considering that
the matter was not of such importance as to make the assistance by a
defence counsel absolutely necessary in accordance with Section 140
para. 2 of the Code on Criminal Procedure (StPO).
As regards the motion of challenge the presiding judge declared,
according to the trial record, that the case had to be dealt with
speedily given that the applicant was in detention on remand.
Therefore he had to reject the request for a further adjournment as the
matter had already been adjourned several times and that in view of the
court's schedule, in the case of an adjournment, it would not have been
possible to bring the applicant to trial before the end of January
1993. In view of this statement and following the request of the
Public Prosecution, the motion of challenge was rejected.
The applicant's counsel then lodged an appeal on points of law
(Revision) on behalf of the applicant submitting that contrary to the
trial court's opinion, Section 140 (2) in the Code on Criminal
Procedure applied in the applicant's case, i.e. presence of a defence
counsel had been necessary.
On 10 May 1993 the appeal was dismissed by the Karlsruhe Court
of Appeal (Oberlandesgericht). The court denied a violation of Section
140 (2) of the Code on Criminal Procedure. It is pointed out that
according to that provision, not only the importance of the criminal
charge and the possible sanction is of relevance but also the
defendant's capacity to defend himself. As the case did not raise any
serious factual or legal issues and as the applicant had given himself
up at his own initiative and had confessed to all charges and as
furthermore he had the experience of 17 former trials, he was in view
of his intellectual capacity and personality in a position to assume
his own defence.
A constitutional appeal was rejected by a group of three judges
of the Federal Constitutional Court (Bundesverfassungsgericht) on
23 June 1993 as offering no prospects of success. The group first
pointed out that the applicant had omitted to lodge an appeal
(Berufung). The facts and merits of the case would then have been
re-examined. In the appeal hearing an official defense counsel would
have had to be appointed in accordance with Sec. 140 (1) No. 5 of the
Code on Criminal Procedure. In these circumstances it was doubtful
whether ordinary remedies could be considered to have been exhausted.
This question needed however no reply as in any event there was no
violation of constitutional law. The group considered that the matter
was not of such importance as to have required appointment of an
official defence counsel. Although the sentence was rather serious the
Court of Appeal had not interpreted Section 140 (2) of the Code on
Criminal Procedure in a manner violating constitutional rights by
assuming that the applicant had been in a position to defend himself
in an adequate manner. The reasons stated in this connection by the
Court of Appeal did not disclose any arbitrariness.
THE RELEVANT PROVISIONS OF GERMAN LAW
Sec. 140 of the Code on Criminal Procedure (StPO) provides, inter alia,
[Translation]
(1) Assistance by a defence counsel is necessary, if ....
N° 5. the accused has been detained at least three months on the
basis of a judicial order and has not been released at the
latest two weeks before the hearing.
(2) in other cases where the presiding judge on request or ex
officio appoints a defense counsel if this appears to be
indicated (geboten) in view of the importance of the offence or
the complexity of the matter both as regards the facts and the
law or if it is apparent that the accused cannot defend
himself personally.
Sec. 316 (1) StPO provides that an appeal (Berufung) which was
lodged on time stays the time limit for the judgment appealed from
becoming final. Under Sec. 449 sentences can be executed only once the
judgment has become final.
According to Sec. 318 StPO an appeal (Berufung), may be limited
to certain points. If this is not the case or if nothing is specified
then the whole of the contested judgment is considered to be the
subject of the appeal.
COMPLAINTS
The applicant complains that in his case defence by an official
defence counsel was necessary and therefore Article 6 para. 3 (c) was
violated.
THE LAW
The applicant complains that he was refused legal aid for the
trial proceedings in his criminal case. He invokes Article 6 para. 3
(c) (Art. 6-3-c) of the Convention. However, under Article 26
(Art. 26) of the Convention the Commission may only examine the merits
of an application under the condition that domestic remedies have been
exhausted.
In the present case it clearly follows from the decision
rejecting the applicant's constitutional complaint that the applicant
would have been appointed an official defense counsel had he lodged an
appeal (Berufung) instead of an appeal on points of law (Revision) as,
in the case of an appeal, a hearing would have taken place and both
factual and legal issues and on sentence (see Sec. 318 of the Code on
Criminal Procedure) would have been reconsidered. The Commission also
notes that in accordance with Secs. 316, 449 of the Code on Criminal
Procedure a sentence is not executed before the judgment becomes final.
As the applicant failed to avail himself of this possibility he cannot
be considered to have exhausted all remedies at his disposal under
German law (cf. No. 11210/84, Dec. 16.10.86). There were no special
circumstances absolving the applicant from exhausting the remedy at his
disposal. It follows that the requirements of Article 26 (Art. 26)
have not been complied with and the application therefore has to be
rejected in accordance with Article 27 para. 3 in connection with
Article 26 (Art. 27-3+26) of the Convention.
For these reasons, the Commission by a majority,
DECLARES THE APPLICATION INADMISSIBLE
Secretary to the First Chamber President of the First Chamber
(M.F. BUQUICCHIO) (A. WEITZEL)
Full & Egal Universal Law Academy