AS TO THE ADMISSIBILITY OF
Application No. 23505/94
by L.N.
against Germany
The European Commission of Human Rights (First Chamber) sitting
in private on 6 September 1995, the following members being present:
Mr. C.L. ROZAKIS, President
Mrs. J. LIDDY
MM. E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
M.P. PELLONPÄÄ
G.B. REFFI
B. CONFORTI
N. BRATZA
I. BÉKÉS
E. KONSTANTINOV
G. RESS
A. PERENIC
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 16 December 1993
by L.N. against Germany and registered on
16 February 1994 under file No. 23505/94;
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 1969, is a German national and resident
in Voerde. In the proceedings before the Commission, he is represented
by Mr. B. Eichhorn, a lawyer practising in Cologne.
In May 1990 preliminary investigations were started against the
applicant on the suspicion of rape.
On 22 June 1990 the Duisburg Public Prosecutor's Office
(Staatsanwaltschaft) preferred the bill of indictment (Anklageschrift),
charging the applicant with rape.
On 20 March 1991 the First Criminal Chamber (I. Große Straf-
kammer) of the Duisburg Regional Court (Landgericht), following further
investigations, admitted the bill of indictment (Zulassung der Anklage)
and ordered that the trial open (Eröffnung des Hauptverfahrens).
On 8 October 1991 the First Criminal Chamber of the Regional
Court informed the Office of the Prosecutor General in Düsseldorf
(Generalstaatsanwaltschaft), the Office superior to the Duisburg Public
Prosecutor's Office that no date for a hearing had been fixed in the
applicant's case so far. Pointing at its workload, the Chamber stated
that a hearing could be fixed at the earliest in December 1991,
however, a later date was more probable.
The applicant's case was thereupon transferred to the Second
Criminal Chamber of the Duisburg Regional Court, a Chamber which had
been newly created.
In the beginning of 1992, the Second Criminal Chamber fixed the
dates of 27 and 30 April 1992 for the trial hearings. The hearings
were later postponed and eventually conducted on 20 and 21 July 1992.
The applicant was assisted by a defence counsel. At the hearing of
21 July 1992 one witness for the defence did not appear in court,
though duly summoned. Having heard the parties to the proceedings, the
Court imposed a fine upon the witness.
On 21 July 1992, following the hearing, the Second Criminal
Chamber of the Duisburg Regional Court convicted the applicant of rape
(Vergewaltigung), indecent assault (sexuelle Nötigung) and bodily
assault (Körperverletzung), and sentenced him to one year's
imprisonment. The execution of the sentence was suspended on
probation.
The Regional Court, having heard the applicant, the victim of the
offences and several other witnesses, found that the applicant had
raped his former girlfriend. The applicant had met her on the occasion
of a birthday party. When she had expressed the wish to talk to him,
he had proposed to leave the party, and they had sat down in his car.
He had then decided to drive to a nearby parking place where he
forcibly had sexual intercourse with her. The Regional Court found
that the statements of the victim were coherent and conclusive, and
that no contradictions had occurred. The Regional Court considered in
particular that her indications as to the duration of the applicant's
absence from the party were confirmed by statements of other witnesses
who had been present at the party. The Court further had regard to the
statements of two medical practitioners.
The applicant lodged an appeal on points of law (Revision),
complaining in particular about procedural matters concerning the
taking and assessment of evidence and the establishment of the relevant
facts, and generally about the violation of substantive law. He
complained inter alia that the witness who had not appeared in court,
had only been fined, but had not been summoned for another hearing.
Moreover, the applicant's request to order the preparation of an expert
opinion on the credibility of the victim had remained unsuccessful.
On 20 January 1993 the Federal Court of Justice (Bundes-
gerichtshof) amended the Regional Court's judgment to the effect that
the applicant was convicted of rape and bodily assault, and dismissed
the remainder of his appeal. The Federal Court of Justice considered
that the indecent assault had formed part of the rape and could not be
regarded as a separate criminal offence. The decision was served on
9 February 1993.
On 25 June 1993 the Federal Constitutional Court (Bundesver-
fassungsgericht) refused to admit the applicant's constitutional
complaint (Verfassungsbeschwerde) on the ground that it offered no
prospect of success. The Federal Constitutional Court considered in
particular that the taking and assessment of evidence by the Regional
Court did not appear arbitrary. In particular the conduct of the
Regional Court not to summon again the witness who had not appeared in
court and not to order expert evidence on the credibility of another
witness could not be objected to. Furthermore, there was no indication
that the applicant's right to be heard in the proceedings against him
had been disregarded. Finally, the Constitutional Court found that the
applicant's complaint that the Second Criminal Chamber of the Duisburg
Regional Court had not been competent to conduct the trial against him
and that he had thus been removed from the jurisdiction of the lawful
judge in his case, had been lodged out of time. The Constitutional
Court noted that the applicant had first raised this issue in his
submissions of 19 May 1993, and thus more than one month after the
decision of the Federal Court of Justice had been served.
In the context of the present application, the applicant also
refers to criminal proceedings which were conducted against him from
199O on charges of fraud in connection with the lease of an apartment
in his parents' house and for having failed to submit necessary
declarations of income. At first instance the applicant was acquitted
of fraud and fined for failure to make the necessary declarations of
income. The appeal proceedings were discontinued in view of the
applicant's conviction for rape. The circumstances of these
proceedings had attracted the attention of the press, the applicant's
father having been a high ranking official in the North-Rhine
Westphalia Government at the relevant time.
COMPLAINTS
1. The applicant complains under Article 6 paras. 1 and 3 (d) of the
Convention that the Regional Court failed to summon for another hearing
one of the witnesses who had not appeared in court following a first
summons. He considers that the relevance of her statements in the
context of the proceedings was shown by the fact that the Regional
Court fined the witness concerned for not having appeared in court.
The applicant also complains that the Regional Court did not
order, in accordance with his request, the preparation of an expert
opinion regarding the credibility of the alleged victim. The applicant
is of the opinion that the Regional Court failed to consider, and duly
to decide upon, the above requests. In this respect, he also refers
to the circumstances of the earlier criminal proceedings against him
on the suspicion of fraud.
2. The applicant further complains under Article 6 para. 1 of the
Convention that the criminal charges against him had not been
determined by a tribunal established by law. He submits that, in
accordance with the internal rules on the distribution of cases at the
Duisburg Regional Court that First Criminal Chamber had been competent
to conduct the trial proceedings. The transfer of the proceedings to
the Second Criminal Chamber had been contrary to the internal rules and
not been based on any decision of the President of the Duisburg
Regional Court.
As to the exhaustion of domestic remedies, the applicant submits
that the corresponding complaint was lodged with the Federal
Constitutional Court at a later stage, after his counsel for the
purposes of the Constitutional Court proceedings had obtained relevant
information from the defence counsel. He considers that he cannot be
blamed for the conduct of his defence counsel.
THE LAW
1. The applicant complains about his conviction by the Duisburg
Regional Court, and also of the proceedings concerned. He invokes
Article 6 para. 1 and para. 3 (d) (Art. 6-1, 6-3-d) of the Convention
which, so far as relevant, provide as follows:
"1. 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. ...
3. Everyone charged with a criminal offence has the following
minimum rights:
...
d. to examine or have examined witnesses against him and
to obtain the attendance and examination of witnesses on his
behalf under the same conditions as witnesses against him".
The applicant's complaints relate in particular to the taking of
evidence by the Duisburg Regional Court as well as to the competence
of the Second Criminal Chamber, according to the internal rules on the
distribution of cases, to conduct the proceedings against the
applicant.
2. In the present case, it seems appropriate to look at the
applicant's complaints about the taking of evidence from the points of
view of paragraphs 1 and 3 of Article 6 (Art. 6-1+6-3) taken together,
especially as the guarantees in paragraph 3 represent aspects of the
concept of a fair trial contained in paragraph 1 (Eur. Court H.R.,
Unterpertinger judgment of 24 November 1986, Series A no. 110, p. 14,
para. 29).
a. The applicant considers that the Regional Court failed to summon
for another hearing one of the witnesses who had not appeared in court
following a first summons. According to the applicant, the relevance
of her statements was shown by the fact that the Regional Court fined
the witness concerned for not having appeared in court.
As a general rule, it is for the national courts to assess the
evidence before them as well as the relevance of the evidence which the
defendants seek to adduce. More specifically, Article 6 para. 3 (d)
(Art. 6-3-d) leaves it to them, again as a general rule, to assess
whether it is appropriate to call witnesses, in the "autonomous" sense
given to that word in the Convention system; it does not require the
attendance and examination of every witness on the accused's behalf
(cf., Eur. Court H.R., Bricmont judgment of 7 July 1989, Series A no.
158, p. 31, para. 89; Vidal judgment of 22 April 1992, Series A no.
235-B, pp. 32-33, para. 33).
The Commission notes that the Regional Court convicted the
applicant on 21 July 1992 after having heard, apart from himself, the
victim of the offence and a number of other persons, including two
medical practitioners as witnesses. At the hearing of 21 July 1992,
one of the witnesses for the defence had not appeared in court, though
duly summoned. The Regional Court imposed a fine on the witness, after
having heard the parties. The applicant's defence counsel, when heard
as to the imposition of a fine, in particular did not request that the
witness be summoned again or that her appearance in court be enforced,
and the Regional Court did not decide so on its own motion. The
applicant's appeal on points of law and his constitutional complaint
remained unsuccessful.
The Commission finds no sufficient grounds to form the view that
there were any special circumstances in the present case which could
prompt the conclusion that the failure to hear the witness concerned
was incompatible with Article 6 (Art. 6). The Commission considers in
particular that the Regional Court's decision to summon the witness
concerned for the trial of 21 July 1992 is, in itself, not decisive as
to the relevance of the evidence which might have been obtained from
this witness. The applicant failed to show the relevance of the
statements of this witness, taking into account the results of the
Regional Court's taking of evidence as a whole. Moreover, the
applicant, assisted by defence counsel, did not request the Regional
Court to summon the witness again or to enforce her appearance, when
being heard as to the imposition of a fine for failure to appear in
court or at the close of the taking of evidence.
Accordingly, the failure to hear the said witness did not unduly
restrict the rights of the defence, and did not render the proceedings,
considered as a whole, unfair.
b. The applicant also complains that the Regional Court did not
grant his request to obtain an expert opinion regarding the credibility
of the victim. The applicant is of the opinion that the Regional Court
failed to consider, and duly to decide upon, the above requests. In
this respect, he also submits that the circumstances of the further
criminal proceedings against him on the suspicion of fraud would have
required the Regional Court to deal with his procedural request with
particular care.
The Commission notes that the Regional Court, in the reasoning
of its judgment of 21 July 1992, stated that the statements of the
victim were coherent and conclusive and that no contradictions had
occurred. The Regional Court considered in particular that her
indications as to the length of the applicant's absence from the party
were confirmed by statements of other witnesses who had been present
at the party. The applicant's submissions do not disclose any
circumstance according to which the failure to take expert advice
regarding the credibility of the witness concerned could be reasonably
regarded as incompatible with Article 6 (Art. 6).
The applicant's complaints about the Regional Court's taking of
evidence do not, therefore, disclose any appearance of a violation of
his rights under Article 6 paras. 1 and 3 (d) (Art. 6-1, 6-3-d) of the
Convention.
It follows that this part of the application is manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2).
2. The applicant further complains under Article 6 para. 1
(Art. 6-1) that the criminal charges against him had not been
determined by a tribunal established by law. He submits that, in
accordance with the internal rules on the distribution of cases at the
Duisburg Regional Court that First Criminal Chamber had been competent
to conduct the trial proceedings. The transfer of the proceedings to
the Second Criminal Chamber had been contrary to the internal rules and
not been based on any decision of the President of the Duisburg
Regional Court.
The Commission observes that, in accordance with Article 26
(Art. 26), it may only deal with the matter after all domestic remedies
have been exhausted, according to the generally recognised rules of
international law, and within a period of six months from the date on
which the final decision was taken.
The Commission recalls that the requirements as to the exhaustion
of domestic remedies have not been satisfied where failure to respect
procedural rules constitutes the reason for the refusal of a remedy
(No. 10636/83, Dec. 1.7.85, D.R. 43 p. 171; No. 10785/84, Dec. 18.7.86,
D.R. 48 p. 102).
The Commission notes that on 25 June 1993 the Federal
Constitutional Court refused to admit the applicant's constitutional
complaint on the ground that it offered no prospect of success. As
regards the applicant's complaint that the Second Criminal Chamber of
the Duisburg Regional Court had not been competent to conduct the trial
against him, the Constitutional Court found that it had been lodged out
of time. The Constitutional Court noted that the applicant had first
raised this issue in his submissions of 19 May 1993, i.e. more than one
month after the decision of the Federal Court of Justice had been
served on him.
In these circumstances, the Commission finds that the applicant
has not validly exhausted the domestic remedies with regard to his
complaint concerning the competence of the Second Criminal Chamber of
the Duisburg Regional Court.
Moreover, the Commission is of the opinion that the applicant's
submissions concerning the belated lodging of this particular complaint
with the Federal Constitutional Court do not disclose any special
circumstance which would have absolved him from exhausting the remedies
at his disposal according to the procedural rules. In particular, it
cannot accept the applicant's argument that he could not be blamed for
his counsel's conduct.
It follows that this part of the application must be rejected
under Article 27 para. 3 (Art. 27-3) 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) (C.L. ROZAKIS)
Full & Egal Universal Law Academy