AS TO THE ADMISSIBILITY OF
Application No. 26070/94
by Harald OSTHOFF
against Luxembourg
The European Commission of Human Rights (First Chamber) sitting
in private on 14 January 1998, the following members being present:
MM M.P. PELLONPÄÄ, President
N. BRATZA
E. BUSUTTIL
A. WEITZEL
Mrs J. LIDDY
MM L. LOUCAIDES
B. MARXER
B. CONFORTI
I. BÉKÉS
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
M. VILA AMIGÓ
Mrs M. HION
Mr R. NICOLINI
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 30 September 1993
by Harald OSTHOFF against Luxembourg and registered on 21 December 1994
under file No. 26070/94;
Having regard to:
- the reports provided for in Rule 47 of the Rules of Procedure of
the Commission;
- the observations submitted by the respondent Government on
3 January 1996 and the observations in reply submitted by the
applicant on 5 March 1996;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a German citizen, born in 1944, and resides in
Hannover (Germany). He is an independent broker.
The facts of the case, as submitted by the parties, may be
summarised as follows.
On 18 May 1990, in the course of criminal investigations on
charges of misappropriation of money belonging to private clients, the
Investigating Judge at the Luxembourg District Court (tribunal
d'arrondissement) issued a warrant of arrest against the applicant.
On 22 May 1990 the applicant and W., the director of the
applicant's company, were arrested in Luxembourg and charged with
illegal financial activities, fraud and misappropriation.
From the beginning of the pre-trial investigations the applicant
was represented by a Luxembourg lawyer. On 27 February 1991, the
applicant informed the Investigating Judge that his defence counsel had
resigned from representing him. As from April 1991 the applicant was
represented by another defence counsel.
On 11 December 1991 the Luxembourg District Court committed the
applicant and W. for trial charging them with misappropriation of more
than LF 70,000,000.
On 30 January 1992 the Public Prosecutor summoned the applicant
and W. to appear at hearings fixed before the Luxembourg District Court
on 10 and 17 March 1992. These hearings were adjourned because W. was
unable to be present for health reasons.
On 6 May 1992 the applicant and W. were summoned to appear before
the same court at hearings fixed on 16, 17 and 18 June 1992.
On 16 June 1992 W. was again unable to be present, invoking
health reasons. On that day the Luxembourg District Court ordered the
severance of the applicant's case from W.'s case and decided to
continue the proceedings against the applicant.
By a judgment of 13 July 1992 the Luxembourg District Court
convicted the applicant of fraud and the illegal exercise of a
financial profession, sentenced him to five years' imprisonment and
fined him LF 300,000.
On 19 August 1992 the applicant, assisted by defence counsel,
appealed against this judgment. The applicant contested in particular
the charges of fraud brought against him. He stressed that he was not
responsible for the activities of his German partner who had convinced
the German clients to invest their money in the applicant's company.
He would always have been able to respect the contractual obligations
undertaken.
The applicant's appeal was dismissed by the Luxembourg Court of
Appeal on 9 February 1993.
Thereafter the applicant was summoned to appear as a witness at
a hearing fixed on 9 March 1993 before the Luxembourg District Court
in the proceedings against W.
On 2 March 1993 the applicant informed his defence counsel that
he had received the judgment of the Court of Appeal of 9 February 1993
and the summons to appear in the proceedings against W. In view of W.'s
absence from his own trial, he considered the obligation to give
evidence in the proceedings against W. to be in breach of the principle
of equality (Verletzung der Gleichbehandlung meiner Person). For this
reason, he instructed his defence counsel to appeal against the
judgment of 9 February 1993 to the Court of Cassation.
On 5 March 1993 the applicant submitted a declaration of appeal
on points of law in person to the clerk of the prison.
At the same date, he submitted also the grounds of his appeal to
the Public Prosecutor. These grounds may be summarised as follows:
- it was unfair that, as a result of the severance of
the proceedings, he was summoned to appear as a
witness in the proceedings against W., although the
latter had not appeared at his trial;
- criminal liability involved not only him, but two more
persons who had also signed the contracts, namely, W.
and the German partner;
- various other persons were charged with the keeping of
the company's records; there were therefore no reasons
for believing that he had acted in bad faith;
- with regard to future contracts with American and
other partners, he would undoubtedly have been able to
respect the terms of the contracts with his clients;
- according to the terms of the contracts, any dispute
fell under the jurisdiction of the Munich courts, thus
establishing in the first place the criminal liability
of his German partner;
- he had not taken money from his clients as was shown
by the fact that he was unable to pay the requested
amount of bail to be released pending trial.
By a letter of 4 March 1993, which the applicant received on
5 March 1993, his defence counsel advised him against raising the same
objections as in the appeal proceedings and informed him that in the
absence of any substantive point of law, an appeal to the Court of
Cassation would have no chances of success. However, if he so wished,
he could himself submit a declaration of appeal to the prison clerk.
On 23 March 1993 the applicant's defence counsel informed the
applicant that he would no longer act for him and advised him to
instruct a different lawyer to conduct his appeal before the Court of
Cassation.
By a letter of 30 March 1993 the applicant brought this situation
to the attention of the President of the Bar and asked to be assigned
a new defence counsel.
According to the applicant, he never received a reply to this
letter.
The time-limit for submitting the grounds of appeal expired on
5 April 1993.
On 8 July 1993 the Court of Cassation dismissed the applicant's
appeal on points of law because no memorial signed by a lawyer and
setting out the grounds for his appeal had been submitted within the
one month time-limit following the introduction of his appeal.
On 22 April 1995 he applicant was released from prison.
COMPLAINTS
1. The applicant complains that, contrary to Article 5 para. 1 (c)
of the Convention, his detention on remand was ordered by an
incompetent court and his release illegally refused.
2. The applicant further complains of the court decisions concerned
and that he was denied the right to a fair trial. He alleges that the
courts have incorrectly interpreted certain facts and erroneously
concluded that he had acted with fraudulent intent. He alleges a
violation of Article 6 paras. 1 and 3 (b), (c) and (d) of the
Convention.
a) The applicant complains in particular that he was refused the
right to have his case examined by the Luxembourg Court of Cassation,
since he was given no opportunity to be represented by official defence
counsel before that Court. He claims that he did not have the means to
pay a lawyer of his own choice. He also invokes Article 2 para. 1 of
Protocol No. 7 in this context.
b) The applicant further complains that he has had no possibility
to adequately prepare his defence in the proceedings before the
Luxembourg District Court.
c) The applicant also complains that he could not interrogate the
co-accused W. and that witnesses on his behalf were not heard. In this
connection, he complains that he was summoned to appear as a witness
at W.'s trial, whereas the latter was not heard as a witness at his own
trial.
3. The applicant finally complains that the charges brought against
him did not constitute criminal offences under the existing criminal
law and that, even if they did, a heavier penalty was imposed on him
than the one that was applicable at the time the contested criminal
offences were committed. He submits in this context, that the existing
criminal law, based on the Code Napoleon, has not been adapted to the
evolution in financial matters and has been interpreted in his case to
such an extent as to be in breach of Article 7 of the Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 30 September 1993 and
registered on 21 December 1994.
On 18 October 1995 the Commission decided to communicate the
application to the respondent Government, pursuant to Rule 48
para. 2 (b) of the Rules of Procedure with regard to the applicant's
complaints under Article 6 para. 3 (c) and (d).
The Government's written observations were submitted on 3 January
1996. The applicant replied on 5 March 1996.
THE LAW
1. The applicant complains that his detention from 22 May 1990 to
13 July 1992 infringed Article 5 para. 1 (c) (Art. 5-1-c) of the
Convention. This provision reads:
"Everyone has the right to liberty and security of person. No one
shall be deprived of his liberty save in the following cases and
in accordance with a procedure prescribed by law:
...
c. the lawful arrest and detention of a person effected for the
purpose of bringing him before the competent legal authority on
reasonable suspicion of having committed an offence or when it
is reasonably considered necessary to prevent his committing an
offence or fleeing after having done so ... ".
However, the Commission is not required to decide whether or not
the facts alleged by the applicant disclose any appearance of a
violation of Article 5 (Art. 5) of the Convention as, under Article 26
(Art. 26) of the Convention, it may only deal with a 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 observes that, even assuming that the applicant
had exhausted domestic remedies, he failed to comply with the time-
limit stipulated by Article 26 (Art. 26) of the Convention as his
detention on remand ended with his conviction by the Luxembourg
District Court on 13 July 1992, which is more than six months before
the date on which the application was submitted.
It follows that this part of the application must be rejected in
accordance with Article 27 para. 3 (Art. 27-3) of the Convention.
2. The applicant further complains that he was wrongly convicted and
sentenced by the Luxembourg District Court and the Court of Appeal. He
alleges that the courts have incorrectly interpreted certain facts and
erroneously concluded that he had acted with fraudulent intent.
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 in 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. The Commission refers on this point to its established
case-law (see, for example, No. 12013/86, Dec. 10.3.89, D.R. 59, p.
100, No. 21283/93, Dec. 5.4.94, D.R. 77, p. 81).
It is true that the applicant also complains that he was denied
the right to a fair trial as guaranteed by Article 6 (Art. 6) of the
Convention which , insofar as relevant, reads as follows:
"1. In the determination ... of any criminal charge
against him, everyone is entitled to a fair and public
hearing ... by an ... impartial tribunal ...
...
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;
..."
As the requirements of paragraph 3 of Article 6 (Art. 6-3)
represent particular aspects of the right to a fair trial guaranteed
in paragraph 1, the Commission will examine the applicant's complaints
from the point of view of these two provisions taken together (see, for
example, Eur. Court HR, Lala v. the Netherlands judgment of
22 September 1994, Series A no. 297-A, p. 12, para. 26; Foucher
v. France judgment of 18 March 1997, Reports 1997-II, No. 33,
para. 30).
a) The applicant complains in particular that the lack of legal
representation in the proceedings before the Court of Cassation
deprived him of his right of access to that court.
The Government submit that the requirement to be represented by
a lawyer in the proceedings before the Court of Cassation was
introduced in the Luxembourg legal system in the interests of the
accused and does not infringe the right to access to that court. The
applicant was assisted by defence counsel from the beginning of the
proceedings. Two jurisdictions have examined the charges brought
against the applicant as to questions of fact and law. In the absence
of any substantial points of law, his lawyer resigned from representing
the applicant before the Court of Cassation. In view of the limited
scope of the proceedings before the Court of Cassation involving only
legal issues and the lack of prospect of the applicant's appeal on
points of law, the Government consider that this refusal was justified.
Moreover, the applicant had requested to be assigned a new defence
counsel only towards the end of the time-limit for submitting his
grounds of appeal. Even if the President of the Bar had acted
immediately, a new defence counsel would not have been able to
effectively ensure the defence of the applicant's interests within such
a short time. In any event, legal assistance has to be refused if an
appeal, as in the present case, appears to be manifestly inadmissible
or ill-founded.
The applicant contests the view expressed by the defendant
Government according to which his appeal on points of law would have
had no chances of success. According to him, this is an unacceptable
ex tunc statement.
The Commission recalls that Article 6 para. 1 (Art. 6-1) of the
Convention does not require States to establish courts of appeal or
cassation, but if such courts are created, the requirements of Article
6 (Art. 6) must be respected. However, Article 6 para. 1 (Art. 6-1) of
the Convention does not debar Contracting States from making
regulations, in the interests of the good administration of justice,
concerning access to courts (No. 6916/75, Dec. 8.10.76, D.R. 6, p. 107;
No. 8407/78, Dec. 6.5.80, D.R. 20, p. 179) and in particular access to
the final instance in the domestic legal system, such as to a Court of
Cassation. The Commission recalls in particular that the requirement
to be represented by a lawyer in the proceedings before a higher court
is not incompatible with Article 6 (Art. 6) of the Convention (see No.
16598/90, Dec. 6.5.80, D.R. 66, p. 261).
The Commission further points out that, although not absolute,
the right of everyone charged with a criminal offence to be effectively
defended by a lawyer, assigned officially if need be, is one of the
fundamental features of a fair trial (see Eur. Court HR, Quaranta
v. Switzerland judgment of 24 May 1991, Series A no. 205, p. 16,
para. 27; Pham Hoang v. France judgment of 25 September 1992, Series A
no. 205, p. 23, para. 39; Poitrimol v. France judgment of 23 November
1993, Series A no. 277- A, p. 14, para. 34).
In this connection, the Commission reiterates that the manner in
which paragraph 3 (c) of article 6 (Art. 6-3-c) of the Convention is
to be applied in relation to appellate or cassation courts depends upon
the special features of the proceedings involved; account must be taken
of the entirety of the proceedings conducted in the domestic legal
order and of the role of the appellate or cassation court therein (see
Eur. Court HR, Boner v. the United Kingdom judgment of 28 October 1994,
Series A no. 300-B, p. 74, para. 37 and Maxwell v. the United Kingdom
judgment of 28 October 1994, Series no. A 300-C, p. 96, para. 33).
The Commission observes that under Luxembourg law legal aid in
proceedings before the Court of Cassation can be granted upon a special
request submitted either to the President of the Court of Cassation or
the President of the Bar. If legal aid is granted, the official defence
counsel is personally responsible for submitting the grounds of appeal
within a one month time-limit, unless he considers that such an appeal
has no chances of success.
In the present case, the applicant did not avail himself of the
first possibility. Having been informed on 23 March 1993 that his
defence counsel would not assist him any longer, he did, however,
submit a request for legal aid to the President of the Bar on 30 March
1993, i.e. six days before the expiry of the one month time-limit.
According to him, he did not receive a reply to that request. The
Commission does not consider it necessary to determine whether in these
circumstances the President of the Bar disregarded the specific
safeguard of legal assistance under paragraph 3 (c) of Article 6
(Art. 6-3-c) or the general safeguard of a fair trial under paragraph
1 for the following reasons.
The Commission recalls that the interests of justice, within the
meaning of Article 6 para. 3 (c) (Art. 6-3-c) of the Convention, cannot
be taken to require an automatic grant of legal aid whenever a
convicted person, with no objective likelihood of success, wishes to
appeal after having received a fair trial at first instance in
accordance with Article 6 (Art. 6) of the Convention (see Eur. Court
HR, Monnell and Morris v. the United Kingdom judgment of 2 March 1987,
Series A no. 115, p. 25, para. 67).
The Commission notes that in the present case the applicant had
full legal assistance from the beginning of the pre-trial proceedings
to the end of the proceedings before the Luxembourg Court of Appeal,
extending to the obtaining of counsel's opinion on the prospects of an
appeal on points of law which opinion had been negative. The Commission
has no cause to doubt that the defence counsel's opinion was based on
a full and thorough evaluation of the relevant factors. The Commission
observes in this context that the appeal on points of law to the Court
of Cassation is an extraordinary remedy limited to legal and procedural
issues. However, the applicant's complaints concern essentially the
assessment of the facts and there is no indication in the case-file
that there were any legal questions in issue for the purposes of an
appeal on points of law to the Court of Cassation.
The Commission therefore finds that the particular circumstances
of the present case does not reveal a failure to provide legal
assistance as required by paragraph 3 (c) of Article 6 (Art. 6-3-c) of
the Convention or a denial of a fair hearing under paragraph 1.
Insofar as the applicant complains under Article 2 of Protocol
No. 7 (P7-2) that he was refused the right to have his case reviewed
by the Court of Cassation, the Commission sees no need to examine this
complaint as a separate issue.
It follows that this part of the application is manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
b) The applicant complains, under Article 6 para. 3 (b)
(Art. 6-3-b) of the Convention, that he was deprived of adequate
facilities in the preparation of his defence in the proceedings before
the Luxembourg District Court.
However, the Commission observes that the applicant was
represented by counsel from the beginning of the investigations. There
is no indication in the file that the applicant did not have the
opportunity to organise his defence in an appropriate way and without
restriction as to the possibility to put all relevant defence arguments
before the trial court.
Consequently, the Commission finds no appearance of a violation
of Article 6 para. 3 (b) (Art. 6-3-b) of the Convention in this
respect.
It follows that this part of the application is manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
c) The applicant also complains that the co-accused W. and witnesses
on his behalf were not heard in the proceedings against him.
The Government submit that, during the entire proceedings before
the Investigating Judge, the Luxembourg District Court and the Court
of Appeal, neither the applicant nor his defence counsel have ever
requested that the co-accused or particular witnesses be heard.
Moreover, the facts on which the applicant's conviction was based, had
to a large extent been admitted by the applicant. The Government
consider that this complaint should be dismissed as being abusive
within the meaning of article 27 para. 2 (Art. 27-2) of the Convention,
for failure to comply with the condition as to the exhaustion of
domestic remedies, and in any event as being manifestly ill-founded.
The applicant maintains that he had never been informed of the
declarations made by W. before the Investigating Judge. Once having
been released, W. did not appear at his trial. He therefore had no
opportunity to interrogate W. The applicant also complains that he
could not question his German partner who was tried in separate
proceedings before the Munich courts.
The Commission first observes that the applicant's complaint is
not of such a nature as to constitute an abuse of the right of petition
within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
The Commission next recalls that, even assuming that the
applicant has exhausted the domestic remedies at his disposal under
Luxembourg law, Article 6 paras. 1 and 3 (d) (Art. 6-1, 6-3-d) of the
Convention do not give the right to an unlimited number of witnesses,
and that the domestic courts may refuse to call witnesses requested by
the defence if, for example, it is considered that their evidence would
be irrelevant (see, for example, No. 10563/83, Ekbatani v. Sweden,
Dec. 5.7.85, D.R. 44, pp. 113, 117; No. 10486/83, Hauschildt
v. Denmark, Dec. 1.10.86, D.R. 49, pp. 86, 102).
The Commission notes that the applicant, who was assisted by a
lawyer throughout the domestic proceedings, had ample opportunity to
state his case and to request the trial courts to hear the witnesses
named by him. However, it does not appear from the case-file that the
applicant made such a request. Furthermore, the applicant has not
substantiated to what extent the witnesses named by him could have
contributed to the finding of the truth or established his innocence.
In these circumstances, the Commission finds no appearance that
the criminal proceedings against the applicant in respect of the
hearing of witnesses or in any other respect were unfair.
There is consequently no appearance of a violation of Article 6
paras. 1 and 3 (d) (Art. 6-1, 6-3-d) of the Convention and it follows
that this part of the application has to be rejected as being
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
3. The applicant finally complains under Article 7 (Art. 7) of the
Convention that the charges brought against him did not constitute
criminal offenses under the existing criminal law and that, even if
they did, a heavier penalty was imposed on him than the one that was
applicable at the time the alleged criminal offences were committed.
Article 7 para. 1 (Art. 7-1) of the Convention provides:
"No one shall be held guilty of any criminal offence on
account of any act or omission which did not constitute a
criminal offence under national or international law at the
time when it was committed. Nor shall a heavier penalty be
imposed than the one that was applicable at the time the
criminal offence was committed."
The Commission recalls that Article 7 para. 1 (Art. 7-1) is to
be construed and applied, as follows from its object and purpose, in
such a way as to provide effective safeguards against arbitrary
prosecution, conviction and punishment (see Eur. Court HR, S.W. v. the
United Kingdom judgment of 22 November 1995, Series A no. 335-B, p 41,
para. 34 and C.R. v. the United Kingdom judgment of 22 November 1995,
Series A no. 335-C, p. 68, para. 32). Thus what Article 7 para. 1
(Art. 7-1) prohibits is the development of the law in a way such that
acts not previously punishable are held to entail criminal liability,
or existing offences extended to include acts which it is clear did not
previously constitute a criminal offence (see No. 8710/79, Dec. 7.5.82,
D.R. 28, p. 81).
The Commission further recalls that it is in the first place for
the courts to apply and interpret domestic law since they are in the
nature of things particularly qualified to settle issues arising in
this connection (see Eur. Court HR, Kemmache (No. 3) v. France judgment
of 24 November 1994, Series A no. 296-C, p. 87, para. 37).
However, the applicant does not adduce any argument which would
indicate that in the present case, as a consequence of the evolution
in financial matters, existing domestic law has been extended to acts
which did not previously constitute a criminal offence or that a
heavier penalty was imposed on him than the one that was applicable at
the time the criminal offences were committed. Accordingly, the
Commission finds that the applicant's complaints are unsubstantiated
and do not disclose any appearance of a violation of Article 7 para. 1
(Art. 7-1) of the Convention.
It follows that this part of the application is also 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.
M.F. BUQUICCHIO M.P. PELLONPÄÄ
Secretary President
to the First Chamber of the First Chamber
Full & Egal Universal Law Academy