AS TO THE ADMISSIBILITY OF
Application No. 12725/87
by W.M.
against the Federal Republic of Germany
The European Commission of Human Rights sitting in private
on 2 October 1989, the following members being present:
MM. C.A. NØRGAARD, President
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
G. BATLINER
J. CAMPINOS
Mrs. G.H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
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 17 August 1986
by W.M. against the Federal Republic of Germany and registered on 16
February 1989 under file No. 12725/87;
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 applicant is a German citizen born in 1942 who is serving
a sentence in the prison of Amberg. He complains of the criminal
proceedings which led to his conviction and sentence, as well as
certain subsequent proceedings. The facts as submitted by the applicant
may be summarised as follows.
On 21 October 1983 the applicant was arrested on a suspicion
of fraud. Following lengthy investigations an indictment was
preferred against him on 22 February 1985 in which he was charged with
fraud on numerous counts and with a number of other related offences.
On 10 May 1985 the Regional Court (Landgericht) of Nürnberg-Fürth
admitted the indictment and ordered the opening of the main
proceedings. The trial was to begin on 3 June 1985. On 22 May 1985
the applicant asked the Court to reconsider its decision on the
opening of the main proceedings. He referred to negotiations between
his defence counsel and the prosecution as to possible admissions and
the length of sentence, but observed that the prosecution's proposals
in this context were unacceptable to him. Therefore the trial would
have to be held in the normal way and should be postponed as he had
not yet received all the evidence and disposed of insufficient
preparatory time. He also asked for the hearing of numerous witnesses
and for the discontinuation of the proceedings concerning certain
charges.
However, the trial was not postponed and began on 3 June 1985;
it continued on six days of hearings until 18 June 1985. On the basis
of the agreement negotiated between the prosecution and the defence
with the consent of the Court, the prosecution dropped certain charges
in respect of which the Court discontinued the proceedings. As
regards the remaining charges the Court heard only the applicant, but
no witnesses. The prosecution finally requested a sentence of seven
years and six months. The defence did not oppose the legal arguments
of the prosecution, but asked for a mild sentence. On 18 June 1985,
the Court found the applicant guilty as charged. Noting the
applicant's comprehensive confession as a mitigating circumstance,
it imposed a sentence of six years and six months. It expressly
refrained from imposing a measure of preventive detention.
Immediately following pronouncement of the judgment, the Court
reopened its hearing and took note of declarations by the prosecution
and the defence, i.e. the applicant himself and his counsel, that they
waived the right to appeal (Rechtsmittelverzicht). However, already
on 19 June 1985 the applicant revoked his waiver, announcing that he
wished to appeal against the judgment to the Federal Court of Justice
(Bundesgerichtshof). He submitted that the waiver was invalid for
various reasons: it was inadmissible to reopen the court hearing
after the close of the trial and to require him to make immediately a
binding declaration on the use of remedies; moreover he had acted
under constraint by his official defence counsel (who had threatened
to terminate his mandate) and by the prosecution (who had threatened
that in case of an appeal by the applicant they would also appeal and
request a higher sentence including a measure of preventive
detention); finally the waiver was invalid because he had appended a
condition (that the description of his character as "mean" and
"ruthless" should not appear in the written judgment) and because
certain formalities had not been observed. He also submitted that an
appeal was justified because the Court had not dealt with his request
of 22 May 1985 to discontinue the proceedings concerning certain
charges, and because it had failed to sufficiently clarify the
facts. In September 1985 the applicant developed his grounds of appeal
in detail, in December 1985 he requested to be informed of the
observations of the Federal Attorney General (Generalbundesanwalt)
which, however, were never served upon him.
On 14 January 1986 the Federal Court of Justice rejected the
appeal as being inadmissible, finding that the applicant had validly
waived his right to appeal. Basing itself on official statements by
the professional judges of the Regional Court and by the applicant's
official defence counsel, the Federal Court found it established that
the necessary formalities had been observed, that the applicant had
dropped the condition which he had first appended to his waiver, and
that he had not been urged by the Court to waive his right to
appeal. It could be left open whether an appeal was exceptionally
open in case of constraint as in any event there had been no
constraint by the prosecution or the defence counsel in the present
case.
The applicant then lodged a constitutional appeal which the
Federal Constitutional Court (Bundesverfassungsgericht) rejected on
12 February 1986. Its decision was served on the applicant on
18 February 1986.
The applicant subsequently tried to institute criminal
proceedings against the judges of the Regional Court. However, on
8 October 1986 the Nürnberg Court of Appeal (Oberlandesgericht) refused
him legal aid for an action to enforce such proceedings. Thereupon
the applicant tried to institute criminal proceedings against the
judges of the latter Court. On 21 May 1987 it refused him legal aid
also in this case. The applicant's constitutional complaints against
these two decisions were rejected by the Federal Constitutional Court
on 9 January and 18 August 1987 respectively.
COMPLAINTS
Regarding the criminal proceedings against him, the applicant
alleges violations of Article 6 paras. 1, 2 and 3 (b), (c), and (d) of
the Convention. He claims in particular that his official defence
counsel did not assist him effectively, but instead negotiated an
agreement with the prosecution and the Regional Court which for this
reason was not impartial and disregarded the presumption of innocence.
The applicant was thereby caused to make untrue admissions - he denies
that he actually made a comprehensive confession - and to waive his
right to the hearing and questioning of witnesses. Finally, he was
urged by the Regional Court, in the light of threats by the
prosecution and his own defence counsel, to waive his right of appeal.
The Federal Court of Justice did not respect his right to be heard as
it did not make available the submissions of the Federal Attorney
General and as it refused to deal with the question of constraint.
Finally, the Federal Constitutional Court unfairly denied a violation
of his constitutional rights.
Regarding the subsequent proceedings in which he sought the
criminal prosecution of judges, the applicant alleges violations of
Article 6 para. 1 of the Convention in that he did not have a fair
hearing by an impartial tribunal.
THE LAW
1. The applicant complains of criminal proceedings in which he
was convicted of fraud and other related offences and sentenced to six
years and six months' imprisonment. He invokes Article 6 paras. 1, 2
and 3 (b), (c) and (d) (Art. 6-1, 6-2, 6-3-b, 6-3-c, 6-3-d) of the
Convention which read as follows:
"1. In the determination of his civil rights and
obligations or of any criminal charge against him, everyone
is entitled to a fair and public hearing within a reasonable
time by an independent and impartial tribunal established by
law. ...
2. Everyone charged with a criminal offence shall be
presumed innocent until proved guilty according to law.
3. Everyone charged with a criminal offence has the
following minimum rights:
...
(b) to have adequate time and facilities for the
preparation of his defence;
(c) to defend himself in person or through legal
assistance of his own choosing or, if he has not sufficient
means to pay for legal assistance, to be given it free when
the interests of justice so require;
(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 Commission notes that the applicant's conviction was based
on his confession made following an agreement between the defence and
the prosecution with the consent of the Court. The agreement also
concerned the length of the sentence and the waiver of the right to
appeal. The applicant subsequently nevertheless lodged an appeal,
contending that the waiver was invalid on various grounds. However,
the Federal Court of Justice found it to be valid and therefore
rejected the applicant's appeal as inadmissible. The Federal
Constitutional Court found no violation of the Basic Law in this
way of proceeding.
The Commission recalls that a person may in certain
circumstances validly waive rights under Article 6 (Art. 6) of the
Convention (cf. No. 1197/61, Dec. 5.3.62, Collection 8 pp. 68, 73;
Deweer v. Belgium, Comm. Report 5.10.78, paras. 55 et seq., confirmed
by Eur. Court H.R., Deweer judgment of 27 February 1980, Series A no.
35, p. 25, paras. 49 et seq.; No. 9177/80, Dec. 6.10.81, D.R. 26 pp.
255, 258; No. 10802/84, Pfeifer and Plankl v. Austria, Dec. 8.5.1989,
to be published in D.R.). The Commission is satisfied that the
present applicant had accepted the agreement negotiated by his
official defence counsel and thereby waived a contradictory procedure,
the hearing and questioning of witnesses, and the assertion of his
defence in a different manner. By making a confession regarding the
prosecution case insofar as it was maintained, he is also debarred
from invoking the presumption of innocence in this respect, nor can he
claim that the Regional Court was not impartial or acted unfairly when
accepting his admissions.
The Commission notes that in his appeal to the Federal Court of
Justice the applicant wanted to re-open the above issues. However, the
Federal Court declared the appeal inadmissible because it considered
that the applicant's waiver of his right to appeal was valid. The
applicant contests this, but the Commission finds no indication that
when declaring his waiver the applicant acted under constraint or was
misled as to his legal situation.
The waiver of his right to appeal was part and parcel of the
agreement previously accepted by the applicant who had shown by his
behaviour at the trial that he consented to the procedure. In the
circumstances it was not unreasonable to require him immediately
after the pronouncement of the judgment to fulfil the last part of
the agreement by renouncing an appeal, in particular as the matter had
been previously discussed. Not only his defence counsel but also the
applicant himself declared that they waived the right to appeal. The
applicant thus was not taken by surprise. Nor was unjustified
pressure exerted against him. The Commission here notes the Federal
Court's findings that the necessary formalities were observed, that
the applicant dropped the condition to which he had first wished to
subject his waiver and that the Regional Court did not urge him to
forgo his right of appeal. The Commission also notes the applicant's
submission that his defence counsel urged him to do so, indicating
that otherwise he would terminate his mandate. However, it is
understandable that the defence counsel who had negotiated the
agreement felt bound by it and was not prepared to continue to
represent the applicant if he insisted on filing an appeal. Nor can
it be regarded as a measure of inadmissible constraint that the
prosecution declared that they would no longer feel bound by the
agreement if the applicant appealed, and that in this case they would
also have to consider filing an appeal.
In conclusion the Commission therefore finds that having regard
to the particular circumstances the applicant has had a fair trial in
conformity with the requirements of Article 6 (Art. 6) of the
Convention. This part of the application must accordingly be rejected
as being manifestly ill-founded within the meaning of Article 27 para. 2.
2. The applicant further complains that in the proceedings by
which he tried to enforce a criminal prosecution of certain judges of
the Regional Court and of the Court of Appeal he did not have a fair
hearing by an impartial tribunal as required by Article 6 para. 1
(Art. 6-1) of the Convention. The Commission observes, however, that
this provision is only applicable to proceedings on the determination
of an applicant's civil rights and obligations, or of a criminal
charge against him. The proceedings at issue did not concern the
applicant's civil rights and obligations, nor a criminal charge
against the applicant. The Convention does not guarantee any right to
the institution of criminal proceedings against third persons, nor
does it give procedural guarantees in proceedings whereby the
institution of such proceedings is requested. It follows that the
remainder of the application is incompatible with the provisions of
the Convention, ratione materiae, and that it must also be rejected
under Article 27 para. 2 (Art. 27-2).
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