AS TO THE ADMISSIBILITY OF
Application No. 18337/91
by Lothar PREISSLER
against the Federal Republic of Germany
The European Commission of Human Rights sitting in private on
20 October 1992, the following members being present:
MM. F. ERMACORA, Acting President of the First Chamber
E. BUSUTTIL
Sir Basil HALL
Mr. C.L. ROZAKIS
Mrs. J. LIDDY
MM. M.P. PELLONPÄÄ
B. MARXER
Mr. M. de SALVIA, Secretary to the First 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 10 June 1991 by
Lothar Preissler against the Federal Republic of Germany and registered
on 24 June 1991 under file No. 18337/91;
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 is a German citizen born in 1941 and detained in
prison in Willich. He is represented by Mr. Hans-Otto Sieg, a lawyer
practising in Frankfurt-on-Main.
It follows from the applicant's statements and the documents
submitted that on 2 November 1987 he was convicted by the Duisburg
Regional Court (Landgericht) of two counts of murder with aggravated
robbery and sentenced to life imprisonment. The trial court's judgment
comprises 187 pages.
According to the findings of the trial court which were mainly
based on the evidence given by the applicant's accomplice and
co-accused D., who was convicted of joint robbery and sentenced to
seven years' imprisonment, on the night of 2-3 January 1978 the
applicant had shot an American and a Spanish citizen in Torremolinos,
Spain. The exact time of death of the victims could not be determined.
On the basis of a medical expert opinion the court stated that it could
only be ascertained that the deaths occurred after midnight on
2 January 1978.
D. and the applicant had planned to rob someone as they were
short of money. They went to have some drinks and D. met an American
citizen who was drunk. D. suggested to the American that they go to
another bar to have a coffee. On the way to this bar they were
followed by the applicant who eventually shot the American from behind.
The applicant then shot a Spaniard who had witnessed the first
shooting.
D. and the applicant were denounced by a witness, Astrid L., who
informed the public prosecutor in Augsburg in a letter of
20 October 1978 that the applicant had boasted about having killed two
people in Spain.
The trial court stated that D.'s confessions in his various
statements made before the police, the investigating judge and the
trial court were coherent and consistent in so far as the core of the
matter was concerned. It points out that in the given circumstances
it nevertheless had to evaluate these statements with particular care.
In the opinion of the court D.'s statements were corroborated by
circumstantial evidence and the evidence given by various witnesses,
inter alia police officers who confirmed D.'s description of the place
where the crime had been committed and by one witness Sch., a co-
detainee, who stated that the applicant had told him that he had
committed the two murders. The trial court further referred to the
evidence given by St., a former friend of the applicant, who likewise
confirmed that the applicant had told him that he had shot two people
in Spain. Furthermore the court referred to evidence given to the
police by one M. M. had likewise stated during a police interrogation
that the applicant had told him that he had killed someone in Spain.
Before the trial court he declared however that he could no longer
remember, which was considered to be a lie.
Furthermore the trial court relied on the evidence given by the
public prosecutor U. who stated as a witness that the medical expert
Dr. K., who during the pre-trial proceedings had been given the task
of examining the applicant in order to determine whether or not he was
criminally responsible, had told him in the course of a telephone
conversation that the applicant had admitted having shot two men in
Spain.
Dr. K. was also heard as a witness stating that he did not
remember the applicant having told him anything about the murder.
The trial court pointed out that Dr. K. had successfully been
challenged by the defence. It considered that Dr. K.'s statement at
the trial was not credible. Rather the expert had tried to cover up
the professional misconduct he had committed by revealing the
applicant's self-incriminating statements.
Finally the court based its findings on a witness H., a police
officer who had interrogated the applicant and who stated that the
applicant had admitted to him that the crime had been committed by D.
and himself, alleging however that D. had shot the men.
Corroborating evidence, which the trial court considered to be
of particular importance (von besonderem Gewicht), was given by a
ballistic expert who had examined the cartridge cases found near the
victims of the killings and a pistol which the applicant had stolen
during a previous burglary. Two policemen had stated as witnesses that
the applicant, while in the police van, had himself indicated to them
the place where he had hidden further cartridges. D., co-accused, and
witness Gr. had also confirmed that the applicant had been in
possession of the pistol.
The exact time of the murder could not be determined. According
to medical expert opinion the victims' bodies were examined on
4 January 1978 at 9.00 am. The expert considered that the killing had
taken place approximately 24 to 30 hours previously.
The co-accused D. had stated the killing took place at about
12.00 midnight. He and the applicant had then returned to their hotel
to clean themselves. Later they left for a drink and eventually
returned, the applicant accompanied by a prostitute.
Witness B. who was staying in a nearby hotel on the night of the
killing had stated to the police that he heard shots being fired at
2.00 am. At the trial he stated he had returned home at 1.00 am and
heard the shots about 30 to 60 minutes later.
The trial court considered that these statements together with
the statements given by Spanish police officers who inspected the place
of the crime in the early hours of the morning, did not make it
possible to determine the exact time of the killing.
As regards evidence proposed by the defence and rejected by the
trial court it is explained in the judgment
- that it had not been necessary for the trial court to inspect the
place of the crime given that photos and the description given
by the police was sufficient.
- that the proposed witness Pr., an interpreter who had assisted
the wife of the murdered American when she contacted the Spanish
police to report the disappearance of her husband, would
certainly not be able to remember several years after the event
at what time they had searched the beach. It was even more
unlikely that he would remember the exact time as he had never
been heard in the investigation proceedings. It was therefore
considered unrealistic and impossible to expect this proposed
witness to confirm that he had passed the place of the crime
between exactly 1.55 and 2.00 am, as alleged by the defence.
- that the allegation of the defence, according to which the
medical expert having examined the victims on 3 January 1978 at
5.30 am, had then said the killing was likely to have occurred
about two hours ago, could be considered to be true;
as well as the allegation of the defence, according to which B.,
when interrogated for the first time by the Spanish policeman
S. L., was sober and had stated that he had heard shots being
fired after 2.00 am.
In regard to these allegations the trial court proceeded on the
assumption that the proposed witnesses would confirm the applicant's
allegations.
The court stated however that this did not prevent it from
finding that the applicant had committed the killing as described by
his accomplice D. and corroborated by various evidence. It pointed out
in this context that according to the long experience of the
professional judges even the indications of the medical expert on the
estimated time of death were approximations only with a possible
fluctuation (Schwankungsbreite) of one hour both in regard to the
minimum and maximum figures indicated by the expert in his opinion
established after the autopsy. The time-indications of other witnesses
were likewise open to doubt and furnished no reason to call into
question D.'s version of the event.
The applicant's appeal on points of law (Revision) was rejected
by the Federal Court (Bundesgerichtshof) on 14 March 1990.
The applicant had complained that the judgment was contradictory
in that the trial court had assumed his allegation not to have spent
the evening of 2 January 1978 in the bar "Christina" but in another bar
to be true, and nevertheless believed D.'s version of the events
although D. had alleged they had been in the bar "Christina" and had
furthermore during various interrogations made contradictory statements
as to the time of the shooting.
The Federal Court observed in this respect that the trial court
correctly based its findings on the premise that it was of no
importance in which of the various bars in Torremolinos the applicant
had spent the evening. Therefore witness Christina S., the owner of
the bar, had not been suggested as an alibi but only as a means to
contradict D.'s statements and to show that D. had fabricated his whole
report on the events. The Federal Court stressed however that the
proceedings had lasted for over four years and that the trial court
thereby had the occasion to examine the trustworthiness of D.'s
statements very carefully. In this respect the trial court had applied
very strict standards and had only considered D.'s statements to be
proven in so far as they were confirmed or corroborated by other
evidence.
Important supporting evidence was, so the Federal Court
underlined, given by the ballistic expert. This evidence showed that
the pistol, which the applicant had stolen in December 1977, and had
subsequently in his possession until his arrest in January 1978, was
the one which had been used to fire the shots in Torremolinos. This
followed from an examination of the pistol, the cartridge cases found
near the victims and the cartridges hidden by the applicant.
The Federal Court also stated that the trial court could rightly
consider that D.'s statements were confirmed by several witnesses to
whom the applicant had himself insinuated having been responsible for
the killing of two people.
The complaint that Spanish witnesses named by the defence were
not heard allegedly under the pretext that the trial court presumed
they would have given evidence supporting the applicant's version as
to the time of the killing, was likewise considered to be unfounded.
The Federal Court found that the trial court had in fact taken into
consideration the indications of these witnesses as to the time of the
murder but had rightly assumed that like the other evidence they
offered no reliable proof as to the exact time of the murder.
The applicant then lodged a constitutional complaint which was
rejected by a panel of three judges of the Federal Constitutional Court
(Bundesverfassungsgericht) on 11 December 1990 as offering no prospect
of success.
It is stated in the decision that the Federal Court's rejecting
the applicant's complaint about the refusal of the trial court to hear
certain witnesses was well-reasoned and in no way disclosed any
arbitrariness or violation of constitutional rights.
COMPLAINTS
The applicant maintains the complaints already raised before the
Constitutional Court, namely that he was denied a fair trial.
In essence he points out that there was evidence that on
3 January 1978 he was in his hotel room together with a prostitute from
2 a.m. onwards. Therefore it would have been important to take the
evidence offered by him relating to the question of the exact time of
the murder and his whereabouts on the night of 2 to 3 January 1978.
THE LAW
The applicant complains that he was wrongly convicted and
sentenced on 2 November 1987 by the Duisburg Regional Court and also
of the court proceedings concerned.
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 e.g. No. 458/59, Dec. 29.3.60, Yearbook 3 pp. 222, 236;
No. 5258/71, Dec. 8.2.73, Collection 43 pp. 71, 77; No. 7987/77, Dec.
13.12.79, D.R. 18 pp. 31, 45).
It is true that in this case the applicant also complains that
certain evidence proposed by the defence was disregarded by the court.
In this connection he alleges a violation of Article 6 para. 1
(Art. 6-1) of the Convention.
However, the Commission notes that the trial court carefully
examined all evidence available at the trial and refused to take the
evidence offered by the applicant considering it to be irrelevant or
assumed in the applicant's favour that the witnesses in question would
have testified in the manner indicated by the defence. This reasoning
was held to be unobjectionable by the Federal Court which in detail
explains that all relevant evidence was considered by the trial court,
and that D.'s incriminating statements were confirmed by various other
evidence in particular the opinion of the ballistics expert. In the
light of the particular circumstances of the case the Commission cannot
find that the reasons given by the domestic courts in this respect were
unfounded or arbitrary. They do not disclose any appearance of a
violation of the right to a fair hearing as guaranteed by Article 6
para. 1 (Art. 6-1) of the Convention.
It follows that the application is 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.
Secretary to the First Chamber Acting President of the First Chamber
(M. de SALVIA) (F. ERMACORA)
Full & Egal Universal Law Academy