Communicated on 12 June 2017
FIFTH SECTION
Application no. 61985/12
Gerhard FLEISCHNER
against Germany
lodged on 22 September 2012
SUBJECT MATTER OF the CASE
The case concerns the applicant’s complaints under Articles 6 and 7 of the Convention about an order made against him in civil proceedings to pay, as a joint debtor, compensation in tort for damage incurred by A. as a result of criminal offences. The civil courts held an oral hearing at first, but not at second instance. In order to establish that the applicant had committed the offences in question, deprivation of liberty and coercion, jointly with others, the civil courts relied on the findings of fact set out in a final judgment delivered by a criminal court. That court had convicted several co-accused of the said offences while the criminal proceedings had previously been discontinued against the applicant owing to a procedural bar.
QUESTIONS TO THE PARTIES
1. Was the presumption of innocence, guaranteed by Article 6 § 2 of the Convention, respected in the present case?
In particular, did the civil courts, in the proceedings at issue, comply with that provision in view of the fact that they had found it established that the applicant had committed the criminal offences of deprivation of liberty and coercion jointly with others, and by reference to the findings of fact made in a final judgment by a criminal court against persons other than the applicant?
2. Did the applicant have a fair hearing in the determination of his civil rights and obligations, in accordance with Article 6 § 1 of the Convention?
In particular, did the fact that the civil courts based their decisions on the findings of facts in a judgment rendered in previous criminal proceedings against persons other than the applicant render the proceedings unfair?
3. Has there been a public hearing in the present case, as required by Article 6 § 1 of the Convention?
In particular, having regard to the Court’s case-law (see, in particular, Rippe v. Germany (dec.), no. 5398/03, 2 February 2006 and the cases cited therein), was the dismissal of the applicant’s appeal by the second-instance court without an oral hearing pursuant to Article 522 § 2 of the Code of Civil Procedure in compliance with the requirements of Article 6 § 1 of the Convention in the circumstances of the case? Had the applicant previously been present or represented at the hearing before the first-instance court?
REQUEST FOR SUBMISSION OF DOCUMENTS
It is further proposed that the Government be requested, in accordance with Rule 54 § 2 (a) of the Rules of Court, to submit to the Court, within sixteen weeks from the communication of the present application, the following documents (in copy):
– the judgment of the Traunstein Regional Court of 19 May 2010 (file no. 2 KLs 260 Js 16805/09) convicting persons other than the applicant of deprivation of liberty and coercion;
– the minutes of the hearing before the first-instance Speyer District Court of 7 November 2011 (file no. 34a C 179/11) and documents relating to the applicant’s participation in and/or representation at that hearing.
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