AS TO THE ADMISSIBILITY OF
Application No. 14453/88
by I.H.
against the Federal Republic of Germany
The European Commission of Human Rights sitting in private
on 12 February 1990, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
G. BATLINER
H. VANDENBERGHE
Mrs. G.H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
Mr. L. LOUCAIDES
Mr. H.C. KRÜGER, 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 13 September 1988
by I.H. against the Federal Republic of Germany and registered on 29
November 1988 under file No. 14453/88;
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 1913 and living in
Köln-Marienburg. He is represented by Mr. H. Millinger and partners,
lawyers in Essen.
The applicant complains that, in connection with the crash of
a bank which he ran under his name, he was convicted and sentenced
although he was allegedly at least partly unfit to stand trial.
On 16 December 1984 the applicant was convicted by the Cologne
Regional Court (Landgericht) of bankruptcy and breach of trust
(Bankrott und Untreue). He was sentenced to four years' imprisonment.
On appeal on points of law (Revision) the Federal Court
(Bundesgerichtshof) found on 16 October 1985 that the applicant was
guilty only of breach of trust and therefore quashed the sentence and
referred the case back to the Regional Court for the purpose of
determining a new sentence.
On 21 May 1987 the Regional Court sentenced the applicant to
two years' imprisonment and granted a stay of execution on probation.
As a mitigating factor the Court took into account, inter alia, that
the applicant might possibly have been affected at the relevant time
by the first signs of his present Pickwick syndrome complaints but not
to such an extent as to exclude his criminal reponsibility. The hearings
of this trial were held on 5, 7, 11, 13, 15, 19 and 21 May 1987.
The applicant's final submission (Schlusswort) that his bank's
balance sheets had been tampered with by employees without his
knowledge was not taken into account by the Regional Court. The Court
pointed out that in this respect it was bound by the findings in the
previous judgment of 16 December 1984. The allegations in question
had then been considered to be contradicted by other available
evidence. These previous findings, so the Regional Court pointed out,
had become binding in that the Federal Court confirmed the applicant's
conviction of breach of trust. The conviction thereby became final.
The applicant lodged another appeal on points of law
(Revision) against the Regional Court's judgment of 21 May 1987
sentencing him to two years' imprisonment. This appeal was rejected
by the Federal Court on 20 April 1988 as being clearly ill-founded.
The applicant then lodged a constitutional complaint alleging
that in consequence of his Pickwick syndrome complaints, which were
discovered subsequent to his conviction in 1984, he had been unfit for
trial both in 1984 and 1987.
On 27 July 1988 a group of three judges of the Federal
Constitutional Court (Bundesverfassungsgericht) rejected the complaint
as being partly inadmissible and as lacking prospects of success as to
the remainder. The inadmissible part concerned the conviction which
had become final on 16 October 1985 and had not been complained of
within the time-limit provided for in Sec. 93 (1) of the Federal
Constitutional Court Act (BVerfGG). Insofar as the applicant
complained of the new proceedings before the Regional and the Federal
Courts relating to the determination of another sentence, the
Constitutional Court considered that there was nothing to show that
these Courts had arbitrarily considered the applicant fit to stand trial.
COMPLAINTS
The applicant maintains that he was unfit for trial because he
allegedly already suffered from the Pickwick syndrome during his first
trial in 1984 which, however, was only discovered later. He submits
that the Pickwick syndrome has only been known of since 1956. It affects
a person at night-time in that, whilst asleep, breathing stops from time
to time. The lack of oxygen supply then affects the brain and causes
blackouts as well as difficulties to concentrate and judge complex
situations.
According to an expert report of 17 May 1987 submitted by the
applicant in connection with his second appeal on grounds of law, the
applicant has been suffering from the Pickwick syndrome since 1970 and
his fitness to stand trial had been limited (eingeschränkt) but not
permanently excluded.
The applicant alleges that due to his illness he was not in
a position to follow great parts of his first trial in 1984. This
situation, so he submits, was not remedied by the second trial as the
Regional Court then considered itself bound by the prior findings on
which his conviction for breach of trust had been based.
He also complains that great parts of the trial in 1984 took
place in his absence as the Court wrongly considered an operation he
underwent at the time to have a pace-maker implanted as a delaying
manoeuvre and refused to adjourn the proceedings.
For all these reasons the applicant considers he did not
receive a fair trial within the meaning of Article 6 of the
Convention.
He considers that domestic remedies have been exhausted by his
complaint to the Federal Constitutional Court of the Federal Court's
second decision of 20 April 1988. A constitutional complaint against
the Federal Court's first decision of 16 October 1985 would in his
opinion have had no chances of success because the criminal
proceedings were not terminated by that decision and consequently
the ordinary remedies were not yet exhausted at that moment.
THE LAW
1. Insofar as the applicant complains that great parts of the
trial against him in 1984 were conducted in his absence, the
Commission is not required to decide whether or not the facts alleged
by him disclose any appearance of a violation of Article 6 (Art. 6) of the
Convention (fair hearing), as Article 26 (Art. 26) of the Convention provides
that the Commission "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 lodge a
constitutional complaint on time. Therefore the Federal
Constitutional Court rejected his constitutional complaint as being
inadmissible insofar as it related to his conviction which became
final when the Federal Court held on 16 October 1985 that he was
guilty of breach of trust. In these circumstances he cannot be
considered as having 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.
2. The applicant further complains that, both at the trial
proceedings in 1984 leading to his conviction and in the proceedings in
1987 relating to the determination of sentence, he was unfit to defend
himself adequately in consequence of the complaints caused by the
so-called Pickwick syndrome. This syndrome was only recently
discovered, namely in 1987, when it was no longer possible to lodge
a constitutional complaint against the Federal Court's decision of
16 October 1985 finalising the applicant's conviction of breach of
trust.
In view of these particular circumstances, the Commission
considers that the applicant can be considered as having exhausted
domestic remedies in that he invoked his Pickwick syndrome complaint in
his second appeal on points of law and his subsequent constitutional
complaint.
However, insofar as the right to a fair trial is at issue the
applicant has not shown that the Pickwick syndrome rendered him unfit
to stand trial. It follows from the medical reports submitted by him
that his capacity to attend the hearings was possibly limited but not
excluded. This was duly taken into account by the trial court which
held the hearings at intervals.
Furthermore, the applicant was defended by counsel. He has
himself not alleged that he has not been able to instruct his defence
counsel in order to be defended in an adequate manner. The applicant
has also been able himself to make use of the right to finalise
submissions.
In these circumstances there is nothing to show that the
defence was prevented from submitting all facts and arguments it
considered relevant and that the applicant was denied a fair hearing.
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.
For these reasons, the Commission
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
Full & Egal Universal Law Academy