AS TO THE ADMISSIBILITY OF
Application No. 25493/94
by Rocco TARANTINO
against Germany
The European Commission of Human Rights (First Chamber) sitting
in private on 18 October 1995, the following members being present:
Mr. C.L. ROZAKIS, President
Mrs. J. LIDDY
MM. E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
M.P. PELLONPÄÄ
B. MARXER
G.B. REFFI
B. CONFORTI
N. BRATZA
I. BÉKÉS
E. KONSTANTINOV
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
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 5 September 1994
by Rocco TARANTINO against Germany and registered on 26 October 1994
under file No. 25493/94;
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 facts, as they have been submitted by the applicant, may be
summarised as follows.
The applicant, born in 1955, is an Italian national. He is a
welder by profession. When lodging his application he was detained at
a prison in Freiburg. In the proceedings before the Commission he is
represented by Mr. M. Schubert, a lawyer practising in Freiburg.
On 29 January 1993 the Freiburg Regional Court (Landgericht),
having held a trial between 21 October 1992 and 29 January 1993,
convicted the applicant of aggravated arson, arson and bodily assault
as well as of having simulated the commission of a punishable offence
and committed fraud. The applicant was sentenced to three year's and
four months' imprisonment.
The Regional Court found that on 28 December 1988, between noon
and 1 p.m., the applicant had returned from a christmas holiday in
Italy, while his wife - the spouses had separated - and son had
continued to stay there. He had arrived at the spouses's apartment in
the early morning of 29 December 1988 where he simulated a burglary and
afterwards set fire. He had intended to claim insurance payments for
the damage caused and various valuables which had either previously
been taken away or were taken along by him on that occasion. The
applicant, when questioned by the police as a victim, according to his
plan had maintained that a burglary had been committed and various
valuables been stolen. Furthermore he had claimed about DM 120,000
from his insurance company for his alleged losses. The insurance
company had subsequently paid shares of altogether DM 90,000. As to
the applicant's financial situation in 1987 and 1988, the Regional
Court found that the applicant had earned about DM 35,000 in 1987 and
about DM 88,000 in 1988, that his cheque accounts at two banking
institutes were mostly in debit and that he had to pay a debt of
DM 40,000 by monthly instalments.
The Regional Court stated that its factual findings were based
partly upon the applicant's statements and the statements of witnesses,
inter alia the applicant's wife and his mistress as well as his former
employer, in particular as to the applicant's financial situation. As
regards the offences as such, the Regional Court noted that the
applicant had denied any guilt. The Regional Court proceeded from the
testimony of some other tenants in the house concerned, who had seen
somebody entering the house, and heard noise in the applicant's
apartment, on 29 December 1988, at about 1.15 a.m. Having regard to
the opinion of an engineer and employee of the German automobile club
(ADAC), the Regional Court considered that the applicant when returning
from Italy on 28 December 1988, between noon and 1 p.m., had been able
to return and arrive in Freiburg in the early morning of
29 December 1988, between 1.15 and 1.20 a.m. Both the expert and the
Regional Court, in this respect, took the possible average speed, speed
limits, the traffic and weather situation at the relevant time into
account. As to the weather conditions, the Regional Court heard a
meteorologist from the German weather forecast (Deutscher Wetterdienst)
as expert. The Regional Court did not give credence to the statements
of some of the applicant's relatives from Italy, who had indicated a
later time of the applicant's departure in Italy.
Considering all relevant circumstances, the Regional Court was
also convinced that the applicant had set fire to the apartment. In
this respect, the Regional Court, having regard to the opinion of a
further expert and the statements of a police officer as to the
possibilities to open the main entrance door as well as the door of the
applicant's apartment, concluded that these doors had been opened with
one of the three original keys, one owned by the applicant. Even
assuming that one of the original keys had been lost in 1981, it could
reasonably be excluded that a third person had kept such a key until
December 1988 in order to commit a burglary. Moreover, the state of
the apartment, the kind of damage caused to the entrance door of the
apartment rather excluded a burglary. The Regional Court considered
that the applicant's motive to commit the offences in question had been
his poor financial situation at the relevant time.
In these and the ensuing proceedings the applicant was assisted
by defence counsel.
On 30 November 1993 the Federal Court of Justice (Bundesgerichts-
hof), upon the applicant's appeal on points of law (Revision), amended
the Regional Court's judgment as to the legal qualification of the
offence as aggravated arson only, and dismissed the remainder of the
appeal on points of law.
As regards the applicant's procedural complaint that the Regional
Court had refused to hear two witnesses on their impression that he had
plenty of money at the relevant time, the Federal Court of Justice
considered that the Regional Court had proceeded from the truth of this
statement and, on the basis of the applicant's own statements, assumed
that he had earned about DM 35,000 in 1987 and about DM 88,000 in 1988.
His subsequent financial situation had been irrelevant.
The Federal Court of Justice further considered that the
complaint about the Regional Court's refusal to hear the applicant's
son on the question whether, upon the family's departure, the entrance
door of the apartment had been closed by key was inadmissible. In this
respect, the Federal Court of Justice observed that the applicant had
failed to show that his son had at all been present.
The Federal Court of Justice also regarded as inadmissible the
complaint that the interpreter present when the applicant's wife had
been heard by the police had not been heard by the Regional Court as
to alleged insufficiencies in that questioning. The applicant had
failed to submit the contents of the record on that questioning.
Furthermore, no taking of evidence had been necessary on the
question whether one or two original keys had been lost in 1981 on the
ground that the Regional Court had proceeded on the assumption of the
loss of one of the keys which was valid also for the possible loss of
two keys in 1981.
The Federal Court of Justice also approved that the Regional
Court had read out at the trial the record on the questioning, in
proceedings under letters rogatory in Bari, Italy, of the applicant's
mother, and, for age and health reasons, refrained from summoning her
as witness at the trial. Furthermore, as regards the applicant's
complaint that his counsel had not been summoned to participate in the
questioning in Bari, the Federal Court of Justice noted that the
applicant had not objected to the record concerned being read out. The
fact that this witness had not been sworn was regarded as irrelevant
on the ground that the credibility of the applicant's mother had not
been called into question. Furthermore, the Regional Court had not
been obliged to hear a particular meteorologist as expert on the
weather conditions at the relevant time. The applicant's further
complaints as to the Regional Court's taking of evidence were also
regarded as unfounded for failure to show the relevance of the evidence
in question.
The Federal Court of Justice confirmed the Regional Court's
assessment of evidence. However, as the applicant's offence of
aggravated arson had only concerned one building, he could not also be
convicted of simple arson.
On 28 February 1994 the Federal Constitutional Court (Bundes-
verfassungsgericht) refused to admit the applicant's constitutional
complaint (Verfassungsbeschwerde). The decision was served on
10 March 1994.
COMPLAINTS
The applicant complains under Article 6 of the Convention about
his conviction by the Freiburg Regional Court of 29 January 1993 and
the alleged unfairness of the court proceedings concerned. He
considers in particular that the Regional Court unduly dismissed the
applicant's requests to take further evidence on his behalf. In this
respect, he submits that the Regional Court's findings as to his guilt
was only based on circumstantial evidence.
THE LAW
The applicant complains about his conviction by the Freiburg
Regional Court of 29 January 1993, as confirmed by the Federal Court
of Justice, 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 (cf. No. 21283/93, Dec. 5.4.94, D.R. 77-B, pp. 81, 88 and
Eur. Court H.R., Van de Hurk judgment of 19 April 1994, Series A
no. 288, p. 20, para. 61; Klaas judgment of 22 September 1993, Series A
no. 269, p. 17, para. 29.
The applicant alleges a violation of Article 6 (Art. 6) of the
Convention in that he did not have a fair trial, in particular that the
Regional Court did not duly take evidence on his behalf.
Article 6 (Art. 6), so far as relevant, provides as follows:
"1. In the determination of ... any criminal charge against
him, everyone is entitled to a fair ... hearing ... by a ...
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 ...
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 applicant's submissions about the conduct of the proceedings
relate in particular to the taking and assessment of evidence. It
seems appropriate to look at these complaints from the point of view
of paragraphs 1 and 3 of Article 6 (Art. 6-1, 6-3) taken together,
especially as the guarantees in paragraph 3 (Art. 6-3) represent
aspects of the concept of a fair trial contained in paragraph 1
(Art. 6-1) (Eur. Court H.R., Unterpertinger judgment of
24 November 1986, Series A no. 110, p. 14, para. 29).
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 defendants seek 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 H.R.,
Bricmont judgment of 7 July 1989, Series A no. 158, p. 31, para. 89;
Vidal judgment of 22 April 1992, Series A no. 235-B, pp. 32-33,
para. 33).
The Commission notes that the Regional Court, as confirmed by the
Federal Court of Justice, dismissed the applicant's requests for the
taking of further evidence, in particular the hearing of witnesses. The
statements of these witnesses were either found to relate to irrelevant
facts, or the Regional Court proceeded on the assumption of the truth
of the fact concerned. Further complaints as regards the taking of
evidence by the Regional Court, raised by the applicant in his appeal
on points of law, were dismissed by the Federal Court of Justice in a
detailed and careful reasoning as to the applicant's arguments and the
requirements of a fair trial. The Federal Court of Justice observed
that the applicant had partly failed to substantiate his procedural
complaints and that other issues he had failed to raise at the trial.
As regards the assessment of evidence, the Commission finds that
the Freiburg Regional Court carefully examined all the evidence before
it. There is nothing to show that relevant material or arguments in
defence were not taken into due account or that any arbitrary
conclusions were drawn.
In these circumstances, the Commission finds no sufficient
grounds to form the view that there were any special circumstances in
the present case which could prompt the conclusion that the Freiburg
Regional Court's taking and assessment of evidence, as confirmed by the
Federal Court of Justice, was incompatible with Article 6 (Art. 6) of
the Convention.
Moreover, having regard to the conduct of the proceedings against
the applicant as a whole, the Commission finds no other indication of
unfairness. In particular his submissions do not show that, assisted
by counsel, he could not duly present his arguments in defence or could
not effectively exercise his defence rights.
Accordingly, there is no appearance of a violation of Article 6
(Art. 6) of the Convention.
It follows that the application is manifestly ill-founded within
the meaning of Article 27 para. 2 (Art. 27-2).
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the First Chamber President of the First Chamber
(M.F. BUQUICCHIO) (C.L. ROZAKIS)
Full & Egal Universal Law Academy