AS TO THE ADMISSIBILITY OF
Application No. 20493/92
by Heinz STEINHART
against Germany
The European Commission of Human Rights (First Chamber) sitting
in private on 1 December 1993, the following members being present:
MM. A. WEITZEL, President
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
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 11 May 1992 by
Heinz STEINHART against Germany and registered on 13 August 1992 under
file No. 20493/92;
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 facts of the case, as they have been submitted by the
applicant, may be summarised as follows.
The applicant, born in 1943, is a German national. When lodging
his application, he was detained at a prison in Freiburg. Before the
Commission, he is represented by Mr. Biebelheimer, a lawyer practising
in Frankfurt/Main.
On 11 April 1990 the Mannheim Regional Court (Landgericht)
convicted the applicant of breach of trust on three counts, incitement
to breach of trust and of fraud and sentenced him to six years and nine
months' imprisonment. Two co-accused were convicted of breach of trust
and of having acted as accessory to breach of trust, respectively.
In the course of the trial, the applicant had first been assisted
by three chosen defence counsel. When he had withdrawn their power of
attorney, the Regional Court had appointed two of them as official
defence counsel.
On 21 November 1991 the Federal Court of Justice (Bundes-
gerichtshof) partly declared the applicant's appeal on points of law
(Revision) inadmissible, and dismissed his procedural complaint
regarding the appointment of his official defence counsel.
The Federal Court of Justice accepted the applicant's complaint
regarding the official defence counsel out of time, as, in this
respect, the applicant, through no fault of his own, had been hindered
to comply with the relevant time-limit.
The Federal Court of Justice noted that on the fourteenth day of
the trial, the applicant had simultaneously withdrawn the powers of
attorney of all three defence counsel. As, in the relevant
circumstances, the Code of Criminal Procedure required legal
assistance, the Regional Court had been obliged to appoint an official
defence counsel immediately. The applicant had not made any proposal
regarding the appointment of an official defence counsel. The Federal
Court of Justice considered that, as a matter of principle, the
previously chosen defence counsel could be appointed as official
defence counsel, even if counsel had resigned due to a loss of
confidence, or if the client had withdrawn the power of attorney. At
the time of the appointment of the official defence counsel, the
Presiding Judge at the Regional Court had no concrete and relevant
indications that the confidence between the applicant and his defence
counsel was so seriously disturbed that defence counsel was not in a
position duly to act on behalf of the applicant. In this respect, the
Federal Court of Justice noted that, in a letter of 10 March 1990, the
applicant had merely informed the Regional Court that he did no longer
trust his defence counsel on the ground that they did not sufficiently
visit him in prison and had not given him copies of some relevant
documents. No further reasons had been given in his appeal. Rather,
Mrs. C., one of the two official defence counsel, had appeared at the
next day of the trial and had refrained from presenting a prepared
written request objecting to the appointment. In these circumstances
the appointment of the official defence counsel did not appear
unlawful.
Moreover, the Federal Court of Justice considered that, when
Mr. T., the second official defence counsel, did not appear in court
on the next day of the trial against the applicant and submitted that
he did not intend to act as defence counsel, the Regional Court had not
been obliged to appoint another official defence counsel. The applicant
had been assisted by defence counsel at any stage of the proceedings.
Upon continuation of the trial, his defence counsel Mrs. C. had not
maintained that she was not in a position to secure his defence.
Finally the Federal Court of Justice found that the applicant had
failed duly to present his further complaints about the trial, in
particular the taking of evidence, and that the Regional Court had not
otherwise erroneously applied the relevant provisions of criminal law.
On 7 February 1992 the Federal Constitutional Court (Bundes-
verfassungsgericht) refused to admit the applicant's constitutional
complaint (Verfassungsbeschwerde) on the ground that it offered no
prospects of success.
COMPLAINTS
The applicant complains about his conviction and subsequent
detention, and about the alleged unfairness of the criminal proceedings
against him.
The applicant submits in particular that the Regional Court
wrongly evaluated the evidence. Furthermore, he objects to the
appointment of his former defence counsel as official defence counsel
despite the alleged loss of confidence. He also considers that the
Regional Court should have appointed another official defence counsel
to replace Mr. T., who had refused to continue as official defence
counsel, because Mrs. C. was young and inexperienced. Finally, he
alleges discrimination in that his co-accused had a free choice of
their defence counsel.
He invokes Article 5 para. 1 (a), Article 6 paras. 1 and 3 (d)
and Article 14 of the Convention.
THE LAW
The applicant complains about his conviction by the Mannheim
Regional Court on 11 April 1990 and the court proceedings concerned as
well as his subsequent detention.
With regard to the judicial decisions of which the applicant
complains, the Commission recalls that, in accordance with Article 19
(Art. 19) of the Convention, its only task is to ensure the observance
of the obligations undertaken by the Parties to the Convention. In
particular, it is not competent to deal with an application alleging
that errors of law or fact have been committed by domestic courts,
except where it considers that such errors might have involved a
possible violation of any of the rights and freedoms set out in the
Convention (No. 458/59, Dec. 29.3.60, Yearbook 3 pp. 222, 236; No.
7987/77, Dec. 13.12.79, D.R. 18 pp. 31, 45).
In the present case the applicant raises various complaints, in
particular under Article 6 paras. 1 and 3 (d) (Art. 6-1, 6-3-d) about
the alleged unfairness of the court proceedings against him.
As regards the applicant's complaint about the appointment of his
former chosen defence counsel as official defence counsel, the
Commission recalls that Article 6 para. 3 (c) (Art. 6-3-c) does not
guarantee the right to choose, or to be consulted about the choice of,
an officially appointed defence counsel (No. 6946/75, Dec. 6.7.76, D.R.
6 p. 114; No. 12152/86, Dec. 9.5.89, D.R. 61 p. 171). However, the
guarantees under paragraph 3 of Article 6 (Art. 6-3) are specific
aspects of the right to a fair trial set forth in paragraph 1, and the
competent authorities are responsible to ensure that the official
defence counsel is capable of effectively defending the accused (cf.
Eur. Court H.R., Artico judgment of 13 May 1980, Series A no. 37, p.
16, para. 33; No. 12152/86, Dec. 9.5.89, loc. cit.).
In the present case, the applicant withdrew the powers of
attorney of his three chosen defence counsel at the same time. The
Federal Court of Justice, in its decision of 21 November 1991, examined
in detail the applicant's complaint regarding the appointment of his
official defence counsel. It noted in particular that the applicant
himself had not made any proposal. Furthermore, there were no concrete
and relevant indications that the confidence between the applicant and
his previously chosen defence counsel was so seriously disturbed that
defence counsel was not in a position duly to act on his behalf. The
Court of Justice also considered that, in the circumstances, the
applicant had been effectively assisted by defence counsel.
The Commission finds that the applicant failed to show that the
appointed official defence counsel was not qualified to ensure an
effective assistance in his defence, and that the appointment of a
further defence counsel would have been necessary. Moreover, there is
no other indication that the trial, including the taking and assessment
of evidence, was not fair.
The Commission also considers that the applicant's detention
after his conviction was "lawful" and effected "in accordance with a
procedure prescribed by law" within the meaning of Article 5 para. 1
(a) (Art. 5-1-a) of the Convention.
In so far as the applicant also relies on Article 14 (Art. 14)
of the Convention, an examination of his submissions does not reveal
any appearance of discrimination contrary to this Article.
It follows that 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 unanimously
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the First Chamber President of the First Chamber
(M.F. BUQUICCHIO) (A. WEITZEL)
Full & Egal Universal Law Academy