AS TO THE ADMISSIBILITY OF
Application No. 37998/97
by Roland Meerbrey
against Germany
The European Commission of Human Rights sitting in private on
12 January 1998, the following members being present:
Mr S. TRECHSEL, President
MM J.-C. GEUS
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H. DANELIUS
F. MARTINEZ
C.L. ROZAKIS
Mrs J. LIDDY
MM L. LOUCAIDES
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
N. BRATZA
I. BÉKÉS
J. MUCHA
D. SVÁBY
G. RESS
A. PERENIC
C. BÎRSAN
P. LORENZEN
K. HERNDL
E. BIELIUNAS
E.A. ALKEMA
M. VILA AMIGÓ
Mrs M. HION
MM R. NICOLINI
A. ARABADJIEV
Mr M. de SALVIA, 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 February 1997
by Roland Meerbrey against Germany and registered on 2 October 1997
under file No. 37998/97;
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 applicant, born in 1952, is a German national. When lodging
his application, he was detained at a prison in Heilbronn, but he was
later transferred to the ambulatory of the Asperg Prison.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
On 19 January 1995 the applicant was arrested on suspicion of
murder and detained on remand on 20 January 1995. In the ensuing
proceedings the applicant was assisted by defence counsel. His
repeated requests for release were to no avail. The Stuttgart Public
Prosecutor's Office (Staatsanwaltschaft) drew up the bill of indictment
on 7 August 1995. The applicant was committed for trial before the
Stuttgart Regional Court (Landgericht). The date of 9 January 1996 was
fixed for the opening of the trial.
On 3 January 1996 the Stuttgart Regional Court dismissed the
applicant's request that the question of his capacity to take part in
the trial (Verhandlungsfähigkeit) be examined by the medical
practitioner Dr. U. on the ground that Dr. U. had refused to carry out
the examination.
On 5 January 1996 the Presiding Judge at the Stuttgart Regional
Court ordered that the applicant be transferred from the Stuttgart
Prison to the Hohenasperg Ambulatory Prison on the ground that he had
refused food and constituted a danger to himself. Furthermore, the
Presiding Judge ordered the applicant's compulsory feeding, if need be.
He finally ordered that the applicant's presence at the hearings
starting on 9 January 1996 be ensured (Vorführung) even against his
will, and with the necessary security measures, if necessary, being
brought on a stretcher (aufgebahrt).
The trial opened before the Stuttgart Regional Court, sitting as
Assize Court (Schwurgericht) with three professional judges and two lay
assessors, on 9 January 1996. Furthermore, a psychiatric expert was
present. In the course of the trial the applicant was assisted by two
defence counsel.
The applicant's presence in court was ensured by his being
brought on a stretcher and he was covered by a blanket. According to
the applicant, his right leg was tied to the right side of the
stretcher, his left leg to the left side; his arms were tied crosswise;
his body was covered by two sheets and strapped to the stretcher. The
applicant's account is further that he remained in this position
throughout the hearings and also during hearing breaks and during his
transfers between the prison and the court building; that he could not
eat or drink or go to the toilet.
The applicant's challenge of the Presiding Judge and of one of
the other judges for bias was rejected as having been lodged out of
time. On 26 January 1996 the applicant's repeated request that he be
excused from the trial was dismissed.
On 15 March 1996 the Stuttgart Regional Court, following several
hearings, convicted the applicant of murder in conjunction with
attempted murder and robbery and sentenced him to life imprisonment.
In its judgment, the Regional Court found that in the course of
a burglary the applicant had ill-treated an elderly married couple,
tied their hands behind their backs and had further tied a sweater
around the woman's head. The woman was suffocated and died some hours
later; the man's health deteriorated and he needed constant care and
attention.
The Regional Court had regard to the applicant's personal
background and his numerous previous convictions since 1969. His
convictions related, inter alia, to the following offences: causing
grievous bodily harm (gefährliche Körperverletzung) and obstructing
public officers in the execution of their duties (Widerstand gegen
Vollstreckungsbeamte), robbery and extortion with menaces (räuberische
Erpressung), intimidation (Bedrohung) of prison guards and causing
grievous bodily harm to an investigating judge in the course of a
hearing in 1990. The Court also noted that the applicant was HIV
(Human Immunodeficiency Virus) positive, and that he had, according to
his own allegations, developed AIDS (acquired immunodeficiency
syndrome) with a future life expectancy of two or three years.
As regards the course of the trial, the Regional Court observed
that the applicant had refused to participate voluntarily. The Court
stated that, taking into account the applicant's known dangerousness
and his HIV-infection, and in order to avoid exposing the guards to any
risks, it had refrained from enforcing his presence by means of
coercion which would have been applied to other remand prisoners. The
applicant had therefore been brought before the Court on a stretcher,
although this had not been necessary for medical reasons. The Regional
Court further noted that the applicant had refused to comply with the
rules of conduct under the Code of Criminal Procedure
(Strafprozeßordnung) and had generally not behaved in a civilised
manner (menschenwürdiger Umgang). In particular, he had insulted and
disparaged the Court and compared it to the judiciary under the Nazi
regime, had made threats to commit murder and had even spat at the
court. Finally, in the cell where he stayed during the hearing breaks,
plastic bags were found which were filled with his urine and could have
been used as projectiles, although it had remained unclear whether he
had intended to do so. The applicant repeatedly offended against the
good order in court proceedings and had to be removed from the court
room. To a large extent, the trial had to be conducted in his absence.
The Regional Court, having regard to information obtained by the
infirmary of the Stuttgart Prison and also psychiatric expert advice,
further found that the applicant was capable of taking part in the
proceedings.
As regards the assessment of the evidence before it, the Regional
Court considered that the applicant had simply denied the charges
against him and had repeatedly stated that the judiciary had always
aimed at ruining his life. He had also unsuccessfully attempted to
establish an alibi or to question the credibility of witnesses.
Moreover, the Regional Court established the applicant's guilt
on the basis of the statements made by the witness E. whom the
applicant had told about the offences during the following day. The
Regional Court examined in detail the witness's credibility, bearing
in mind that at the early stage of the investigations, she herself had
been suspected of the offences in question and that she then had given
wrong indications. However, a further witness, as well as a detail of
the offence which had not been known to the general public, had
confirmed her final account. Moreover, part of a particular firearm
had been found at the place of the offences and, as confirmed by
several witnesses, the applicant had owned a weapon of this kind. The
Court finally observed that two further witnesses, Mr. J.M. and
Ms. B.M., had stated that the applicant was guilty. However,
considering that they were suspected of having acted as accomplices in
the offences in question, their statements had to be assessed
cautiously.
Finally, the Court dismissed the applicant's requests for the
taking of further evidence as to his physical health, which the Court
accepted to be bad, or his state of mental health, which had been
sufficiently explored by the first psychiatric expert. Numerous other
requests concerned irrelevant or proven events or other matters which
were assumed to be true.
A German newspaper reported on the trial against the applicant
and its report, dated 16 March 1996, on the applicant's conviction was
accompanied by a photograph showing the applicant on the stretcher.
On 18 March 1996 the applicant's defence counsel lodged an appeal
on points of law (Revision), and submitted grounds for the appeal
relating to both procedural aspects and the merits on 3 July 1996. The
applicant had further grounds recorded at the Registry (Rechtsantrag-
stelle) of the Stuttgart-Bad Cannstadt District Court (Amtsgericht) on
numerous days between 15 July and 9 September 1996, and applied for
leave to submit these reasons out of time. This recording had been
preceded by a dispute between legal officers (Rechtspfleger) at the
District Court and the Stuttgart Regional Court as to the competence
for recording the statements in question which had only been settled
on 10 July 1996.
On 4 October 1996 the Federal Public Prosecutor (General-
bundesanwalt) submitted his comments on the applicant's appeal on
points of law. He considered in particular that the applicant's
grounds for the appeal were mostly inadmissible, unsubstantiated or did
not appeal to violate any procedural rules. As regards his complaint
that he had been brought to the hearings on a stretcher, the Federal
Public Prosecutor considered that he had failed to prove his
allegations as to the way he was tied to the stretcher and on not being
able to eat. In any event, he had been able to communicate with his
counsel and had lodged numerous requests. Moreover, he himself was
responsible for his enforced presence as he had refused to participate
voluntarily.
On 23 January 1997 the Federal Court of Justice (Bundesgerichts-
hof) dismissed the applicant's appeal on points of law. His requests
for a late submission of grounds for the appeal were partly admitted,
namely to the extent that they had been submitted within one month of
the cessation of the impediment, i.e. termination of the above-
mentioned competence conflict. The Court of Justice, considered that
the appeal submissions, in particular the Regional Court's taking and
assessment of evidence could not be objected to.
The applicant apparently received a copy of the decision of
23 January 1997 in the Stuttgart Prison on 15 February 1997. Some days
later he was transferred to the Heilbronn Prison, where he consulted
his counsel on the question of lodging a constitutional complaint. On
4 March 1997 he was transferred to the Hohenasperg Ambulatory Prison.
On 14 March 1997 the applicant made submissions to the Federal
Constitutional Court (Bundesverfassungsgericht) with a view to lodging
a constitutional complaint (Verfassungsbeschwerde) about his conviction
and the proceedings concerned. Moreover, referring to his problems in
contacting his counsel and consulting the relevant files, he applied
for an extension to supplement his complaint. By letter of
19 March 1997 his counsel informed him that a constitutional complaint
would have no prospect of success. By letter of 20 March 1997, the
President's Office (Präsidialrat) of the Federal Constitutional Court
generally informed the applicant about the conditions for lodging a
constitutional complaint. Moreover, the applicant's attention was
drawn to specific doubts as to the admissibility of his constitutional
complaint as he had failed to substantiate the alleged violations of
his constitutional rights and in particular failed to file copies of
the relevant criminal court decisions. Having received the relevant
files in prison on 9 April 1997, the applicant supplemented his
constitutional complaint, and his submissions were apparently sent to
the Constitutional Court on 22 April 1997. His constitutional
complaint was registered on 29 April 1997.
On 15 May 1997 the Federal Constitutional Court refused to
entertain the applicant's constitutional complaint. The Federal
Constitutional Court found that his constitutional complaint was
inadmissible on the ground that the applicant had failed to
substantiate a violation of any of his constitutional rights within the
one-month's time-limit, as required under the relevant provisions of
the Federal Constitutional Court Act (Bundesverfassungsgerichtsgesetz).
As regards the applicant's request to lodge his complaint out of time
(Wiedereinsetzung in den vorigen Stand), the Constitutional Court found
that no decision was required as the applicant's initial complaint had
not been lodged out of time.
COMPLAINTS
The applicant complains about his conviction and also of the
criminal proceedings against him. He submits that he was ill-treated
by the police upon his arrest. He further complains about the fact
that he had to attend the trial on a stretcher. He generally alleges
an arbitrary persecution by the German judiciary. According to him,
he did not have a hearing by an independent and impartial tribunal and
he could not effectively exercise his defence rights. He also
complains about the taking and assessment of evidence. He invokes
Articles 3, 5, 6 paras. 1 and 3 (b), (c) and (d) and Article 14 of the
Convention.
THE LAW
1. The applicant complains about ill-treatment upon his arrest.
However, in accordance with Article 26 (Art. 26) of the
Convention, the Commission 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.
In the present case, the applicant failed to take any judicial
remedies with regard to his allegations of ill-treatment. Moreover,
the applicant was arrested in January 1995, and he lodged his present
application on 25 February 1997 which is more than six months later.
This part of the application must, therefore, be rejected under
Article 27 para. 3 (Art. 27-3) of the Convention.
2. The applicant further raises various complaints under Article 6
(Art. 6) of the Convention about the criminal proceedings and his
conviction.
Article 6 (Art. 6) of the Convention, as far as relevant, reads:
"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. ...
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;
..."
a. The Commission notes at the outset that the Federal
Constitutional Court refused to entertain the applicant's
constitutional complaint on the ground that he had failed to
substantiate a violation of any of his constitutional rights within the
one-month's time-limit, as required under the relevant provisions of
the Federal Constitutional Court Act. However, considering the
applicant's situation, in particular his repeated transfers between
prisons, his state of health and the facts that he did not have the
files at his disposal, it might be open to doubt whether the lack of
substantiation in due time can be held against the applicant for the
purposes of Article 26 (Art. 26). However, this problem need not be
resolved, as these parts of the application are in any event
inadmissible for the following reasons.
b. As regards the conduct of the trial, the applicant complains in
particular that he was forced to appear in court on a stretcher.
The Commission has examined this complaint from the point of view
of paragraphs 1, 2 and 3 (b) and (c) of Article 6 taken together
(Art. 6-1+6-2+6-3-b+6-3-c), especially as the guarantees in paragraphs
2 and 3 represent aspects of the concept of a fair trial contained in
paragraph 1 (cf. Eur. Court HR, Unterpertinger v. Austria judgment of
24 November 1986, Series A no. 110, p. 14, para. 29).
The Commission recalls that, in a case concerning the appearance
of an accused before a criminal court in a "glass cage", no violation
of the right to a fair trial or of the presumption of innocence was
found. In this case the Commission noted that this was a constant
security measure used for other criminal cases, that the applicant was
able to communicate confidentially with his lawyer, that he was able
to communicate with the court and that he was not in an unfavourable
position in relation to the prosecution or the jury (No. 11837/85,
Auguste v. France, Comm. Report 7.6.90, D.R. 69, p. 104; see also
No. 23331/94, Dec. 26.2.97, unpublished, on close surveillance during
the trial).
In the present case, the Presiding Judge of the Regional Court
ordered that the applicant's presence at the trial be ensured, if need
be, by his being brought on a stretcher. Considering the context of
this decision, it was motivated by the applicant's refusal of food and
his refusal to participate in the proceedings. Moreover, the Regional
Court in its judgment explained that the applicant's dangerousness and
his HIV-infection had made it necessary to apply a means of coercion
which was not usually applied to other remand prisoners. Indeed, the
applicant's previous convictions, as set out in the said judgment,
confirm the applicant's disposition to violence and his aggressiveness
towards public officials. The Commission also notes the applicant's
conduct throughout the trial, i.e. his offences against good order in
court proceedings and his generally bad behaviour.
The Commission finds that the applicant could freely communicate
with defence counsel and with the Court. There is no indication that
the applicant's being fixed to the stretcher could have placed him at
a disadvantage in relation to the prosecution or in an unfavourable
position in relation to the court and could have thereby interfered
with the proper conduct of the proceedings. The Commission also
considers that the manner in which the applicant appeared before the
Regional Court did not affect his rights of defence.
Moreover, being justified by the applicant's past criminal
behaviour, the security measure imposed upon him did not suggest that
the Regional Court regarded him as guilty. Accordingly, there is no
appearance of a breach of the presumption of innocence.
c. As regards the applicant's further complaints about the alleged
unfairness of the proceedings, in particular the taking and assessment
of evidence, the Commission recalls that, 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 defendant seeks 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 HR, Bricmont
v. Belgium judgment of 7 July 1989, Series A no. 158, p. 31, para. 89;
Vidal v. Belgium judgment of 22 April 1992, Series A no. 235-B, pp.
32-33, para. 33).
In the present case, the applicant's requests to take further
evidence were refused on the grounds that the alleged facts were
regarded as true or as irrelevant, taking into account the evidence
before the Regional Court's as a whole.
Having regard to all material before it, the Commission finds no
sufficient grounds to conclude that the decision not to take further
evidence was incompatible with Article 6 (Art. 6).
d. As to the applicant's complaints about the alleged lack of
impartiality of the judges at the Stuttgart Regional Court, the
Commission has had regard to the relevant criteria established in the
case-law of the Convention organs (Eur. Court HR, Hauschildt v. Denmark
judgment of 24 May 1989, Series A no. 154, p. 21, para. 46; Fey
v. Austria judgment of 24 February 1993, Series A no. 255-A, p. 12,
para. 28). The Commission, having also regard to the above
considerations relating to the security measures imposed upon the
applicant, finds no element in the file to doubt the impartiality of
the judges at the Regional Court who had conducted the proceedings
against him.
Considering the circumstances of the case as a whole, the
Commission finds no appearance of a violation of the applicant's rights
under Article 6 paras. 1, 2 and 3 (Art. 6-1, 6-2, 6-3) 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).
3. The applicant also invokes Article 3 (Art. 3) with regard to the
manner in which his presence in court was ensured.
Article 3 (Art. 3) of the Convention provides as follows:
"No one shall be subjected to torture or to inhuman or degrading
treatment or punishment."
As to whether there are particular factors in the present case
which would bring the applicant's situation at the trial within the
scope of Article 3 (Art. 3), the Commission recalls that, according to
the constant case-law of the Convention organs, the treatment in
respect of which an applicant complains must attain a minimum level of
severity if it is to fall within the scope of this provision of the
Convention. The assessment of this minimum is relative and depends,
therefore, on all the circumstances of the case (cf. Eur. Court HR,
Ireland v. United Kingdom judgment of 18 January 1978, Series A no. 25,
p. 65, para. 162).
The Commission, having found above that the manner in which the
applicant appeared in court did not infringe his rights under Article 6
(Art. 6), likewise considers that the applicant's situation did not go
beyond the inevitable element of suffering and humiliation connected
with the legitimate security measure applied to him.
In these circumstances, the Commission finds that the applicant
was not subjected to inhuman or degrading treatment within the meaning
of Article 3 (Art. 3) of the Convention.
It follows that this part of the application is also manifestly
ill-founded within the meaning of Article 27 para. 3 (Art. 27-3).
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
M. DE SALVIA S. TRECHSEL
Secretary President
to the Commission of the Commission
Full & Egal Universal Law Academy