AS TO THE ADMISSIBILITY OF
Application No. 18825/91
by F.P.
against the Federal Republic of Germany
The European Commission of Human Rights (First Chamber) sitting
in private on 14 October 1992, the following members being present:
MM. F. ERMACORA, Acting President of the First Chamber
J. A. FROWEIN
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
Sir Basil HALL
Mr. C.L. ROZAKIS
Mrs. J. LIDDY
MM. M. PELLONPÄÄ
B. MARXER
Mr. M. de SALVIA, Secretary to the First 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 30 August 1991 by
F.P. against the Federal Republic of Germany and registered on 19
September 1991 under file No. 18825/91;
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 1966 and presently
detained in prison in Saarbrücken. He is represented by Mr. René
Scholtes, lawyer in Saarbrücken.
It follows from his statements and documents submitted that on
5 October 1989 the applicant was convicted by the Saarbrücken Regional
Court (Landgericht) of rape and offering resistance to public
officials. He was sentenced to four years and eight months
imprisonment.
The applicant's appeal on points of law (Revision) was rejected
by the Federal Court (Bundesgerichtshof) on 26 April 1990.
Insofar as the applicant had complained of the composition of the
trial court alleging a violation of procedural rights in respect of the
election of the lay judges the Federal Court considered his appeal to
be unfounded. The Court stated that according to Section 36 (3) of the
Judicature Act (Gerichtsverfassungsgesetz - GVG) the list with proposed
lay judges has to be accessible for examination by the public during
one week. The beginning of the examination period has to be publicized.
Judicial control was limited as to whether these rules had been
respected. However, the applicant did not allege in his appeal that any
of these rules had been disregarded. He only alleged that the Local
Community Statutes (Gemeindesatzung), which inter alia contained
provisions as to how publications of the community have to be effected,
have themselves not been publicized in the correct manner. The Federal
Court considered this argument to be irrelevant as it related only to
possible errors or faults in mere preparatory works for the
presentation of lists of lay judges. Such errors or faults could in
principle not affect the legality of the composition of a court
chamber.
For the same reasons the applicant's further argument, that the
second lay judge wrongly participated in the trial court's
deliberations on his objection about the composition of the trial
court, was considered to be unfounded.
The applicant then lodged a constitutional complaint
(Verfassungsbeschwerde) which was rejected by the Federal
Constitutional Court (Bundesverfassungsgericht) on 19 February 1991 as
being clearly ill-founded.
The Court pointed out that the principle, requiring that a court
of law had to be established in accordance with the law, served to
guarantee the independence of the judiciary. In particular it served
to avoid the danger that in a given case the decision-making could be
manipulated by the choice of a judge ad hoc. A possible error committed
by the administration in the course of the elaboration and
communication of Local Community Statutes could in no way influence the
independence of the judiciary. Furthermore the applicant had not shown
that in his case the choice of the lay judges was in any way affected
by arbitrariness.
Furthermore, the fact that contrary to Section 222 (b), para. 2,
first sentence, of the Code on Criminal Procedure (Strafprozeßordnung -
StPO), the second lay judge had participated in the trial court's
decision rejecting the applicant's objections against the composition
of this court was irrelevant, as a simple error in procedure
constituted a violation of the principle of a fair trial only when it
disclosed arbitrariness. There was however no indication that the lay
judge's competence to participate in the decision in question had been
arbitrarily assumed.
COMPLAINTS
The applicant considers that the local communities in electing
lay judges assume functions of the judiciary. Therefore he is of the
opinion that contrary to the Federal Constitutional Court's opinion the
error committed by a community in connection with the preparation of
the election of a lay judge who participated in the trial against him
was relevant and amounted to a violation of Article 6 of the
Convention. He also considers Article 6 of the Convention to be
violated by the fact that contrary to the German Code on Criminal
Procedure a lay judge participated in the trial court's deliberation
and decision rejecting his objections against the composition of the
trial court.
THE LAW
The applicant submits that his case was not heard by a tribunal
duly "established by law" because certain Local Community Statutes
containing rules on how publications of the community have to be
effected, had themselves allegedly not been publicised in a correct
manner. He invokes Article 6 para. 1 (Art. 6-1) of the Convention
which provides that "in the determination of ... any criminal charge
against him, everyone is entitled to a fair ... hearing ... by an
independent and impartial tribunal established by law".
The Commission notes that according to the Federal Court the
relevant provision of the domestic law in the present case is Section
36 (3) of the Judicature Act which provides that the list with proposed
lay judges has to be accessible for examination by the public during
one week and the beginning of the examination period has to be
publicised. According to the Federal Court the applicant had not
alleged that any of these rules were violated in his case.
He only complained of alleged errors made in connection with the
publication of the Local Community Statutes which contain, inter alia,
rules on how publications of the community have to be effected. The
question as to the manner in which these Statutes had to be publicised
is however an administrative matter which does not, as such, concern
the "establishment" of the court. Any administrative error in this
respect would have to be taken into account only insofar as the error
might have caused such prejudice to the applicant as to amount to a
denial of justice. In the present case it is not shown that the
alleged technical errors in the community administration did in any way
affect the composition of the court and thereby the outcome of the
trial. Consequently, the Commission finds that whatever mistake might
have been made did not result in a violation of Article 6 (Art. 6).
The application is therefore manifestly ill-founded and has to be
rejected in accordance with Article 27 para. 2 (Art. 27-2) of the
Convention.
For these reasons, the Commission by a majority
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the First Chamber Acting President of the First Chamber
(M. de SALVIA) (F. ERMACORA)
Full & Egal Universal Law Academy