AS TO THE ADMISSIBILITY OF
Application No. 12668/87
by M.B.
against the Federal Republic of Germany
The European Commission of Human Rights sitting in private on
8 May 1987, the following members being present:
MM. C.A. NØRGAARD, President
G. SPERDUTI
F. ERMACORA
G. JÖRUNDSSON
S. TRECHSEL
B. KIERNAN
A.S. GÖZÜBÜYÜK
A. WEITZEL
H.G. SCHERMERS
G. BATLINER
H. VANDENBERGHE
Mrs G.H. THUNE
Sir Basil HALL
Mr. F. MARTINEZ
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 25 November 1986
by M.B. against the Federal Republic of Germany and
registered on 26 January 1987 under file No. 12668/87;
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 facts of the case, as they have been submitted by the
applicant, may be summarised as follows.
The applicant, born in 1965, is a German national and resident
at B. He is a baker by profession. Before the Commission he is
represented by Mr. W. Both, a lawyer practising at Rotenburg.
On 24 July 1985 the Rotenburg District Court (Amtsgericht)
fined the applicant for aggression and reckless driving (Nötigung und
gefährlicher Eingriff in den Strassenverkehr) committed in October
1984. The Court moreover prohibited the applicant from driving motor
vehicles for the period of one month. In these and the following
proceedings the applicant was represented by Mr. Both.
On 27 November 1985 the Rotenburg District Court fined the
applicant again for aggression and reckless driving (Nötigung und
fahrlässige Gefährdung des Strassenverkehrs) committed in March 1985.
Furthermore the Court withdrew the applicant's driving licence and
ordered that he should not be issued a new driving licence until the
expiry of six months.
On 19 March 1986 the Kassel Regional Court (Landgericht)
dismissed the applicant's appeals (Berufungen) against the judgments
of 24 July and 27 November 1985. The Court confirmed the withdrawal
of the driving licence and the order that no new licence should be
issued until the expiry of further six months. The Court, having
regard to the particular circumstances of the applicant's case,
refused to credit the period of time, which had elapsed since the
judgment of 27 November 1985, towards this blocking period
(Sperrfrist). Under S. 69 (a) para. 5 of the German Criminal Code
(Strafgesetzbuch) the blocking period starts after the final judgment.
However, the Court cancelled the one month's prohibition on driving
motor vehicles.
On 15 May 1986 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.
COMPLAINTS
The applicant complains under Article 6 of the Convention that
the Regional Court's judgment of 19 March 1986 was unfair on the
ground that the blocking period was in fact prolonged. He considers
that his right to appeal was thereby prejudiced.
THE LAW
The applicant complains under Article 6 (Art. 6) of the Convention of
the Regional Court's judgment of 19 March 1986. He considers that the
Court's decision not to credit the period of the appeal proceedings
towards the blocking period rendered the proceedings unfair and
prejudiced his right to appeal.
It is true that Article 6 para. 1 (Art. 6-1) of the Convention secures
to everyone charged with a criminal offence the right to a fair hearing.
The Commission recalls that Article 6 para. 1 (Art. 6-1) is in
principle applicable to proceedings before courts of appeal or of cassation
(Eur. Court H.R., Axen judgment of 8 December 1983, Series A no. 72 p. 12).
However, the Commission has already held that, in appeal proceedings, the risk
of a factual prolongation of a blocking period concerning a driving licence,
which follows from S. 69 (a) para. 5 of the German Criminal Code, does not
constitute a factor contrary to Article 6 para. 1 (Art. 6-1) of the Convention
affecting the accused's decision on the pursuit of his appeal, at least if, as
in the present case, appeal proceedings do not last longer than the blocking
period (No. 9177/80, Dec. 6.10.1981, D.R. 26 p. 255).
In the present case, the Commission notes in particular that
the applicant had the possibility of lodging an appeal against his
conviction and sentence and that he has availed himself of that
remedy. The Commission finds nothing in the case-file to indicate
that the applicant, who was represented by a defence counsel, could
not properly avail himself of his right to appeal or, in particular,
could not properly present his arguments as regards the decision on
the blocking period. Furthermore, he does not allege that the appeal
proceedings were otherwise unfairly conducted.
The Commission concludes that there is no appearance of a violation of
the applicant's rights under Article 6 (Art. 6) of the Convention. It follows
that his 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)