The European Commission of Human Rights sitting in private on
17 July 1986 the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
F. ERMACORA
G. TENEKIDES
S. TRECHSEL
B. KIERNAN
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.C. SOYER
H.G. SCHERMERS
H. DANELIUS
G. BATLINER
H. VANDENBERGHE
Mrs G.H. THUNE
Sir Basil HALL
Mr J. RAYMOND, Deputy Secretary to the Commission
Having regard to Article 25 (Art. 25) of the Convention for the
Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 14 November 1984 by
H.F. against the Federal Republic of Germany and registered
on 20 November 1984 under file No. 11255/84;
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 facts apparently not in dispute between the parties may be
summarised as follows.
The applicant is a German citizen, born in 1933 and living in Kedem.
He is represented by Messrs H. Millinger and Partners, lawyers in
Essen.
1. Original charge and first trial
On 15 June 1981 the applicant was convicted by the Regional Court
(Landgericht) in Duisburg of attempted continued tax evasion
(versuchte fortgesetzte Steuerhinterziehung) and of bankruptcy
(Bankrott) in two cases and sentenced to a global sentence of two
years and six months' imprisonment. He was acquitted on another
charge of bankruptcy. A co-accused, Mr W, was convicted of attempted
tax evasion and acquitted on other charges, and another co-accused, Mr
B, was acquitted. Following an appeal on points of law (Revision)
lodged by the Public Prosecutor, the Federal Court (Bundesgerichtshof)
amended the judgment of 15 June 1981 to the effect that the applicant
was guilty of two cases of fraudulent breach of trust (Untreue)
instead of bankruptcy. Therefore the Federal Court quashed the
sentence concerning the two cases as well as the global sentence.
It also quashed the judgment in so far as it acquitted the applicant
of a further charge of bankruptcy, and the two co-accused of a charge
of being accomplices to bankruptcy. To the extent the judgment was
quashed the cases were sent back for a new trial. The Federal Court's
decision was given on 24 March 1982.
2. The remaining charge which had to be determined in a second
trial
The charge of bankruptcy of which the applicant had been acquitted in
first instance, and which had to be retried according to the Federal
Court, related to the following facts. In November 1973 the applicant
had taken over shares of a company dealing with petrol. In his
capacity of Managing Director of this company, called Union-Mineralöl
GmbH (hereinafter called "Union"), he concluded a contract with a
foreign company called Intercommercial and Finance Corporation
(hereinafter called "Intercommercial"), based in Panama, on 2 February
1974, by which Intercommercial undertook to supply Union with 600,000
tons of ordinary petrol and 600,000 tons of four-star petrol
(Superbenzin) in monthly part deliveries of 10,000 tons each. As a
guarantee for its buyer obligations, Union accepted to deposit six
million DM abroad immediately. 4,200,000 DM were accordingly
transferred. The remainder could not be transferred as Union's German
accounts were eventually seized on account of important tax arrears.
The trial court in its jugment of 15 June 1981 found that there was
not sufficient evidence that the applicant knew when concluding the
contract of 2 February 1974 that Union was already heavily indebted.
It could not be excluded that he considered the company's debts to be
outbalanced by its real-estate properties. Therefore, although the
company was in difficulties, and although an increase of its turnover,
in the circumstances, would only have increased its losses, it could
not be concluded that the applicant accepted the agreement of
2 February 1974 knowing that his company was near to insolvency
(Zahlungsunfähigkeit).
The Federal Court considered that the transaction in question might
have constituted a breach of trust (Untreue). The Court pointed out
that the contract of 2 February 1974 was possibly fictitious but in
any event appeared to be commercially disadvantageous for Union. The
risk of losing the guarantee deposit of six million DM was high in
view of Union's financial difficulties. It therefore had to be
examined whether or not the applicant had, by concluding the contract
of 2 February 1974, exceeded the limits of customary (verkehrsübliche)
risks normally connected with comparable transactions. In this
connection it was of little importance whether other companies
accepted similar conditions at the relevant time. Rather, account had
to be taken of Union's bad financial situation and of the applicant's
strategy to expand the business by concluding contracts which in the
end only caused financial losses to his company. Even if at the
relevant time he did not yet reckon with the company's insolvency he
already knew about the possibility of measures being taken by the tax
authorities against the company on account of tax arrears. Therefore,
the payment of the guarantee appeared to be a transaction of which the
applicant knew that it was likely to cause damage to Union. In fact
when the company went bankrupt in June 1974 the sum of 4.2 million DM
already transferred abroad could no longer be recuperated.
Therefore, even if there was not enough evidence to convict the
applicant on another count of bankruptcy it had to be examined whether
the transaction in question constituted a breach of trust committed to
the disadvantage of Union.
3. The second trial
On 11 November 1982 the applicant was summoned to attend the new trial
the beginning of which was fixed for 28 February 1983. Further
hearings were envisaged for 2, 9, 11, 14, 18, 25 and 31 March and 8
and 15 April. About two weeks before the beginning of the trial the
applicant's chosen defence counsel, Mr Hütsch, who was, as the
applicant submits, acquainted with the case and its economic
background, fell ill and his office so informed the trial court.
On 21 February 1983 the trial court's presiding judge, Mr Rutsch,
telephoned Mr François, a partner of Mr Hütsch, to find out whether Mr
Hütsch would be able to attend the trial. He was informed that Mr
Hütsch would probably not be fit to attend the trial on 28 February
and that no other lawyer was prepared to defend the applicant. On
Friday 25 February the trial court informed Mr Hütsch's office by
telephone that the applicant should appear on Monday 28 February and
that a legal aid defence counsel would be appointed for him.
On 28 February the applicant requested to suspend the trial but his
request was rejected and the appointment, made on that day, of a legal
aid counsel, Mrs Heck-Kammerichs, was maintained. The applicant
complained and requested the court to appoint Mr François as his
official defence counsel. This request was rejected as Mr François
had declared he was too busy to take on a new case. The trial was,
however, adjourned until 9 March 1983 in order to allow the official
counsel to acquaint herself with the case.
After hearings on 28 Februay, 9, 14 and 18 March 1983 the applicant
was convicted on an additional count of breach of trust in relation to
the transaction of 2 February 1974. The Court found that the
applicant knew at the end of 1973 that Union was heavily indebted.
Nevertheless he increased the turnover selling at losses in order to
pay off arrears of taxes, increasing however the current tax
obligations. It later turned out that the losses as per 22 July 1974
amounted to 17,600,000 DM. In these circumstances the Court
considered that the applicant was aware that the contract of 2
February 1974 created an unusual risk for his company (Union) and the
danger of substantial damages. Consequently the transaction
constituted a breach of trust. The Court refused to hear an expert on
the question whether the contract of 2 February 1974 was economically
reasonable. It considered itself to be sufficiently experienced to
decide this question without the aid of an expert and found that in
the given circumstances the unreasonableness of the contract in
question was obvious to any economically minded person.
The global result of the criminal proceedings consequently was that
the applicant was convicted of attempted continued tax evasion and of
breach of trust (Untreue) in three cases. In fixing the sentence the
Court considered in the applicant's favour that he had never been
convicted before and had not committed further offences since. The
important damages caused by the applicant were considered as an
aggravating factor. He was again given a global sentence of two years
and six months' imprisonment.
His appeal on points of law was rejected by the Federal Court on
6 July 1984 as being unfounded.
4. Constitutional appeal
The applicant then lodged a constitutional appeal
(Verfassungsbeschwerde) complaining that at the second trial he was
not defended by counsel of his choice and that he was not adequately
defended due to lack of time for the preparation of his defence and
lack of experience of the official defence counsel.
On 13 September 1984 a group of three judges of the Federal
Constitutional Court (Bundesverfassungsgericht) rejected the
applicant's constitutional appeal as offering no prospects of success.
It is pointed out in the decision that the facts and legal issues had
already been clarified in the previous criminal proceedings and that
the matter had been narrowed down by the preceding judgment of
15 June 1981 and the Federal Court's decision of 24 March 1982, and
that in these circumstances the trial court did not act arbitrarily
considering that the time given to the official defence counsel for
the preparation of the defence was sufficient. In this context the
trial court not only had to consider the applicant's interest in
having adequate time for the preparation of his defence and in being
defended by a chosen counsel but also the general interest, and the
interest of the co-accused to have the charges determined within a
reasonable time.
COMPLAINTS
The applicant complains that shortly before the second trial started
he was imposed an official counsel who did not have sufficient time to
prepare his defence. He also alleges that his official defence
counsel was young and inexperienced. He submits that due to other
business his official defence counsel had on 14 March 1983 still not
had the time to examine the files. He alleges a violation of
Article 6 paras. 1 and 3 (a) - (c) (Art. 6-1, art. 6-3-a, art. 6-3-c)
of the Convention.
He further complains that the trial court rejected his request to
obtain an expert opinion on the question whether the contract of
2 February 1974 between Union and Intercommercial was reasonable from
an economic point of view.
The applicant considers that the trial court did not have the expert
knowledge to decide the issue in question. As, furthermore, he was
not in a position to defend himself adequately, he concludes that his
conviction violates Article 6 para. 1 (Art. 6-1) of the Convention.
PROCEEDINGS BEFORE THE COMMISSION
On 21 March 1985 the Commission's Rapporteur, having made a
preliminary examination of the case, requested further information
from the applicant in accordance with Rule 40 para. 2 (a) of the
Commission's Rules of Procedure. Subsequently the Commission decided
on 1 July 1985 to communicate the application to the respondent
Government for observations on admissibility and merits. The
Government's observations were, after extension of the time limit,
submitted on 5 December 1985 and the applicant's reply arrived on
30 January 1986.
SUMMARY OF THE PARTIES' OBSERVATIONS
I. The respondent Government
1. As to the facts
It is pointed out that when the Federal Court partially quashed the
first judgment of 15 June 1981 and sent the case back for a new trial,
this new trial only concerned the transaction of 2 February 1984 and
the fixing of a new global sentence. Thus the fact finding task of
the trial court as well as the remaining issue as such were
considerably narrowed down. Therefore the trial took less time than
expected, only three days of hearings were needed.
It is further pointed out that on 17 January 1983 the trial court
asked the defence and the Public Prosecutor whether they wished that
witnesses be summoned for the trial. The applicant's counsel replied
on 21 January 1983 that he would submit comments after his return from
holiday on 5 February 1982. No such comments were however submitted
while at the Public Prosecutor's request three witnesses were
summoned. Having received on 17 February 1983 the information that
the applicant's defence counsel had fallen ill the trial court's
president, according to a written statement signed by him, telephoned
counsel's office on 21 February 1983 and discussed the matter with Mr
François, the applicant's counsel's partner. He was told that the
applicant's counsel, Mr Hütsch, was suffering from lumbo-sciatica and
would probably not be able to work for about two months.
The President discussed the possibility of disjoining the applicant's
case from that of the co-accused and of postponing it. He states that
he no longer remembers the exact contents of the conversation but
excludes that he gave any binding assurance that the applicant's case
would be dealt with separately at a later stage. The President
further points out in his statement that at the trial of
9, 14 and 18 March 1983 the applicant pleaded on the merits and no
longer repeated his former objections concerning the official defence
counsel and the lack of time for the preparation of the defence.
2. Exhaustion of domestic remedies
The applicant did not raise the complaint about the refusal to hear an
expert on the reasonableness of the contract of 2 February 1974
(between Union and Intercommercial) before the Federal Constitutional
Court.
As regards the complaint on the alleged insufficiency of the
applicant's defence it is pointed out that the applicant failed,
during the trial, to repeat his complaint that - despite the
adjournment from 28 February 1983 to 9 March 1983 - his defence
counsel had neither adequate time nor sufficient experience to prepare
his defence.
Therefore domestic remedies were not exhausted, with regard to both
complaints.
3. On the merits
As the trial court carefully considered all the circumstances relating
to the conclusion of the agreement of 2 February 1974, it was in a
position to decide whether or not Union's undertaking to deposit a
guarantee of six million DM was reasonable. The refusal to hear an
expert on this question was lawful and justified and in no way
arbitrary.
The applicant did have sufficient time and opportunity to prepare his
defence. As was already pointed out by the Federal Constitutional
Court the facts and issues had been narrowed down by the first trial
and the Federal Court's judgment.
The applicant knew from the previous proceedings which questions had
to be dealt with at the new trial. He was summoned for this trial
three months in advance. After having been informed that his chosen
defence counsel was ill he could and should have prepared his defence
himself. Furthermore the offical defence counsel had sufficient time
from 28 February until 9 March 1893 to prepare the defence. In view
of the first trial court judgment of 15 June 1981 and the Federal
Court's decision of 24 March 1982, it was easy for the official
defence counsel to familiarise herself with the case and the factual
or legal problems it still raised.
As the proceedings not only concerned the applicant but also two
co-accused, the necessity to determine the charges within a reasonable
time excluded a further adjournment, which was in any event not
requested after this trial started on 9 March 1983.
There was nothing to show that the official defence counsel neglected
her obligation to defend the applicant in an effective manner. She
submitted several motions for the taking of evidence and thus did all
which she and also the applicant himself considered necessary for the
defence.
The applicant was not prevented from choosing himself another defence
counsel or from complaining to the court that the official defence
counsel neglected her obligation to defend him in an adequate manner.
He did not, however, raise any such objections during the trial.
II. The applicant
1. As to the facts
The applicant submits a statement of counsel Helge Millinger according
to which the applicant's official defence counsel repeatedly told him
at the trial that she did not have sufficient time to prepare the
case. He also refers to a statement of his chosen counsel's partner,
Mr François, according to which the time given to the official defence
counsel for the preparation of the defence was insufficient.
Mr François furthermore states that the trial court's presiding judge
told him during the telephone conversation on 21 February 1983 that he
saw no other solution than to sever the proceedings against the
applicant from those against the co-accused and to hold the
applicant's trial at a later date as in view of the complexity of the
case there was not sufficient time to have the defence prepared by an
official defence counsel.
2. Exhaustion of domestic remedies
Domestic remedies were fully exhausted by way of a constitutional
appeal.
It is alleged that the constitutional appeal having been directed
against the judgments given in the criminal proceedings the Federal
Constitutional Court could and should have examined ex officio whether
or not the refusal to hear an expert violated constitutional rights.
3. On the merits
The trial court failed to establish all circumstances which would have
been relevant to decide the question whether the contract of 2
February 1974 had, from an economical point of view, been reasonable.
Therefore it violated the right to a fair trial by not obtaining an
expert opinion on this question.
As the applicant had no personal confidence in his official defence
counsel, who was not sufficiently experienced to deal with a
complicated commercial matter, the court should have granted his
request to adjourn the proceedings. In any event he cannot be blamed
for not having himself prepared his defence as he first trusted that
he would be defended by Mr Hütsch, and when this counsel fell ill, he
trusted that the trial court would adjourn his case, in accordance
with the assurance given to Mr François by the trial court's
President. The applicant argues that in his statement submitted by
the Government the President has not clearly denied having given the
assurance in question.
He submits that the second trial in 1983 concerned complex events
which took place many years before. Therefore an adequate defence was
possible only after careful examination of the files and sufficient
experience with regard to commercial activities in the petrol market.
The official defence counsel had neither sufficient time nor
sufficient experience to deal with his case. It was therefore
necessary and also possible to sever his case and adjourn the trial
against him.
Finally he argues that the alleged violation does not depend on the
establishment of concrete disadvantages sustained as a consequence of
the insufficiency of his defence.
THE LAW
1. The applicant has first complained under Article 6 (Art. 6) of
the Convention that he did not have adequate time and opportunity to
prepare his defence at the second trial which had been fixed to begin
on 28 February 1983. He complains that the trial court's decision to
appoint an official defence counsel for him against his will took him
by surprise because he had expected that the trial against him would
be adjourned until his chosen defence counsel was fit to take up the
defence again.
The respondent Government argue that the applicant's objections raised
on 28 February 1983 were taken into consideration in that the trial
was adjourned until 9 March 1983 in order to give the official defence
counsel the opportunity to examine the case and prepare the defence.
When the trial eventually began on 9 March 1983 and continued on
14 and 18 March the applicant pleaded his case and no longer
complained that it had not been possible to prepare his defence in an
adequate manner. He therefore did not exhaust all available domestic
remedies, as under Section 265 (4) of the Code on Criminal Procedure
he could have made a request to stay the proceedings.
The Commission notes however that the applicant raised the present
complaint before the Federal Constitutional Court. This Court did not
reject the constitutional appeal on the formal ground of
non-exhaustion of available ordinary remedies but on the ground that
it lacked chances of success. The complaint was consequently
considered by the Federal Constitutional Court and the applicant must
in these circumstances be considered to have exhausted domestic
remedies in accordance with Article 26 (Art. 26) of the Convention.
As regards the substance of his complaint the Commission agrees with
the Federal Constitutional Court and the respondent Government's
submissions that the remaining charge which had to be determined at
the second trial no longer raised manifold and complex issues of fact
or law. The facts had to a great extent been established at the
preceding trial and the Federal Court had in its judgment of
24 March 1982 delimited the legal problem which remained to be
examined.
On the basis of the Federal Court's decision it must have been clear
to any lawyer but also to the applicant as an experienced businessman
what would be the subject-matter of the second trial. The Commission
notes that the applicant was already informed on 2 November 1982 of
the date on which the second trial would begin, i.e. on 28 February
1983. He therefore had sufficient time personally to prepare his
defence. It is true that he had chosen a defence counsel and that a
defendant can rely on his defence counsel to prepare the defence.
Such preparation will, however, normally require a certain
collaboration between the defendant and his counsel. In the present
case the main question which remained to be resolved at the second
trial related to the appreciation of a business transaction carried
out by the applicant in his capacity of Managing Director of a
company. It is evident that in these circumstances the preparation of
the defence could hardly be effected without the applicant's active
participation.
As an experienced businessman the applicant must have been perfectly
familiar with the general market situation at the relevant time and
being a party to the incriminated business transaction he must also
have been able to indicate the circumstances which from his point of
view justified this transaction commercially. The applicant therefore
was in a position to assist the official defence counsel in the
preparation of his defence.
There was reasonable time to do this as the trial was adjourned from
28 February until 9 March 1983 leaving counsel more than a full week
to work on the case. Although normally a time-limit of eight days may
appear to be insufficient for an official defence counsel to
familiarise himself with a case the present applicant has not shown
that in the particular circumstances of his case it had been
impossible for the official defence counsel to prepare his defence. As
already stated, the case was in any event no longer of a very
complicated and complex nature. It has also to be noted in this
context that the applicant's chosen defence counsel, who suffered from
lumbo-sciatica, was not by the nature of his illness prevented from
giving advice either in writing or orally to the official defence
counsel about the handling of the case.
It has finally to be noted that after the period of preparation given
to the official defence counsel neither the applicant nor his official
defence counsel alleged that despite the adjournment of the trial from
28 February to 9 March 1983 it had not been possible to prepare the
defence.
In these circumstances it is of no relevance whether or not during the
telephone conversation of 21 February 1983 with Mr François, partner
of the applicant's chosen counsel, Mr Hütsch, the trial court's
presiding judge gave the impression he would adjourn the proceedings
against the applicant. The trial court informed Mr Hütsch's office on
25 February 1983 that the date for the beginning of the trial was
maintained. The applicant then still had time either to choose and
instruct another lawyer or to instruct the officially appointed
defence counsel.
As the applicant did not, on 28 February 1983, designate a defence
counsel of his own choice, the trial court was free to appoint an
official defence counsel. The right to free legal assistance provided
for by Article 6 para. 3 (c) (Art. 6-3-c) of the Convention does not
guarantee to the accused the right to choose the official defence
counsel (No. 6946/75, Dec. 6.7.76, D.R. 6, p. 114). It is true that
under German law the court would to a certain extent have had to take
into account the defendant's preference for a particular lawyer.
However, the applicant was not in a position to name a lawyer willing
to act as his official defence counsel. On the other hand there is
nothing to show that the trial court's choice was arbitrary or that
the trial court had in the course of the trial any reason to replace
the official defence counsel. The applicant had more than a week at
his disposal to prepare his defence with the official defence counsel.
At the trial he was defended by the official defence counsel and he
did not not, during the trial, allege that the preparation of this
defence was insufficient on account either of lack of time or lack of
interest on the part of the official defence counsel.
An examination by the Commission of this complaint does not therefore
disclose any appearance of a violation of the rights and freedoms set
out in the Convention and in particular in Article 6 (Art. 6).
It follows that this part of the application is manifestly ill-founded
within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
2. The applicant has further complained that his request to
obtain an expert opinion on the reasonableness of the business
transaction of 2 February 1974 was rejected by the trial court.
It is true that Article 6 para. 1 (Art. 6-1) of the Convention secures
to everyone the right to a fair trial, which includes the right of the
accused that the trial court take into account all relevant evidence.
However, the Commission is not required to decide whether or not the
facts alleged by the applicant disclose any appearance of a violation
of this provision 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 applicant failed to raise this particular
complaint before the Federal Constitutional Court. In the grounds of
his constitutional appeal he only complained that he was not given
sufficient time and opportunity to prepare his defence and that an
official defence counsel was appointed against his will shortly before
the beginning of the trial. He failed, however, to substantiate his
present complaint, in accordance with Section 92 of the Act on the
Federal Constitutional Court. He cannot, therefore, be considered to
have exhausted the remedies available to him under German law.
Moreover an examination of the case does not disclose the existence of
any special circumstances which might have absolved the applicant,
according to the generally recognised rules of international law, from
exhausting the domestic remedies at his disposal.
It follows that the applicant has not complied with the condition as
to the exhaustion of domestic remedies and his application must in
this respect be rejected under Article 27 para. 3 (Art. 27-3) of the
Convention.
In any event the applicant has not shown that the determination of the
remaining charge at the second trial depended on particular knowledge
which was not available to the trial court without the help of an
expert.
The above complaint would therefore have had to be rejected as being
manifestly ill-founded if domestic remedies had been exhausted.
For these reasons, the Commission
DECLARES THE APPLICATION INADMISSIBLE.
Deputy Secretary to the Commission President of the Commission
(J. RAYMOND) (C.A. NØRGAARD)