AS TO THE ADMISSIBILITY OF
Application No. 11853/85
by P.V.
against the Federal Republic of Germany
The European Commission of Human Rights sitting in private
on 13 July 1987 the following members being present:
MM. C. A. NØRGAARD, President
J. A. FROWEIN
S. TRECHSEL
F. ERMACORA
E. BUSUTTIL
A. S. GÖZÜBÜYÜK
A. WEITZEL
J. C. SOYER
H. G. SCHERMERS
H. DANELIUS
G. BATLINER
Mrs. G. H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
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 13 August 1984
by P.V. against the Federal Republic of Germany and registered
on 15 November 1985 under file N° 11853/85.
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 facts of the case, as submitted by the applicant, may be
summarised as follows:
The applicant is an Austrian national born in 1950 and a
plumber by profession. He is presently serving a sentence in Kaisheim
prison (Federal Republic of Germany). Before the Commission he is
represented by Dr. T. Rübsaamen, a lawyer practising in Augsburg.
On 21 May 1982 the applicant was arrested on the ground of
suspicion of illegal drug trafficking. On the following day an arrest
warrant was issued, and the applicant was then detained on remand.
On 18 August 1982 the Augsburg Regional Court (Landgericht)
decided to open the main proceedings.
The trial before this court was fixed for 14 October 1982.
However, the hearing could not take place, as one of the witnesses, C,
was not present. C, who was suspected of having bought about 6
kilograms of hashish from the applicant on several occasions between
the beginning of 1981 and the applicant's arrest on 21 May 1982, had
incriminated the applicant in statements to the Augsburg police on 4
and 28 May 1982. Apparently C had confirmed these statements before
the Augsburg District Court (Amtsgericht) on 28 May 1982.
C revoked these statements in a letter of 1 November 1982
after having left Germany for Turkey in August 1982.
On 9 November 1982 the Augsburg Regional Court requested the
competent Turkish authority by letters rogatory to examine C in a
Turkish court and also to summon him to appear as a witness before the
Augsburg Regional Court at the trial fixed for 17 May 1983.
On 20 January 1983 the Munich Court of Appeal
(Oberlandesgericht) ordered that the applicant's detention on remand
should continue. Subsequent orders for further extension of the
applicant's detention pursuant to Sections 121 para. 1 and 122 para. 4
of the Code of Criminal Procedure (Strafprozessordnung) were made by
this Court on 27 June 1983 and 14 October 1983, respectively.
On 14 April 1983 C, who was at that time performing his
military service in Izmir, was examined in the Izmir Criminal Court in
pursuance of the request by the Augsburg Regional Court. C confirmed
that his previous statements to the Augsburg police which were read
out by the court were true and correct. However, the minutes of this
examination were not received by the Augsburg Regional Court until
24 October 1983.
On 8 May 1983 the applicant's defence counsel interrogated
C in a hotel in Izmir. C stated that his evidence given before the
Augsburg police was not true and that he had bought the hashish not
from the applicant and another person accused but from two Turks whose
surnames he did not know. A transcript of this interrogation was
submitted to the Augsburg Regional Court on 16 May 1983.
On 17 May 1983 the hearing before the Augsburg Regional Court
was due to take place. Again, C was not present and as the applicant
persisted in an examination of C in court, the hearing was adjourned.
Thereupon the Court, noting that the minutes of C's
examination in the Izmir Criminal Court had not yet arrived, again
requested the competent Turkish authority by letters rogatory of 26
May 1983 to examine C in a Turkish court and to summon him to appear
as a witness before the Augsburg Regional Court at the hearing then
fixed for 8 December 1983. Attached to the summons was a safe-conduct
for C issued on 18 May 1983 by another chamber of the Augsburg
Regional Court.
On 14 June 1983 the applicant's defence counsel requested the
Augsburg Regional Court to have C examined by a judge appointed by
this court in Istanbul on 22 June 1983. The defence counsel stated
that C who was still performing his military service would be
available on that day but that he was about to be transferred to
another place and that consequently he could not be summoned to appear
before the Court in Augsburg any more. This request was rejected on
15 June 1983 on the ground that German judges were not authorised to
perform official acts in Turkey.
On 24 October 1983 the Regional Court received the minutes of
C's examination in the Izmir Criminal Court.
On 8 December 1983 the trial before the Augsburg Regional
Court was opened. As C was again not present the Court ordered that
his evidence given in the Izmir Criminal Court on 14 April 1983 as
well as his statements to the Augsburg police of 4 and 28 May 1982 be
read out.
On 13 December 1983 the Court delivered its judgment, basing
itself on these statements confirmed by C before the Court in Izmir
and which had been corroborated by the testimony given by another
witness at the trial. The Court considered these statements to be
true while C's statements to the contrary, made in his letter of
1 November 1982 and during his interrogation by the applicant's
defence counsel in Izmir on 8 May 1983, were not credible. The
applicant was convicted of illegal drug trafficking and sentenced to
four years' imprisonment.
On 5 July 1984 the Federal Court (Bundesgerichtshof) dismissed
the applicant's appeal on points of law (Revision) as being unfounded.
COMPLAINTS
Invoking Article 5 para. 3 of the Convention, the applicant
complains of the length of his detention on remand, which lasted
nineteen months and therefore considerably exceeded the time-limit of
six months, provided for in S. 121 para. 1 of the German Code of
Criminal Procedure beyond which continued detention may only be
authorised in exceptional cases.
The applicant further complains under Article 6 para. 3 (b)
that he did not have adequate time and facilities for the preparation
of his defence.
Additionally, he raises various complaints under Article 6
para. 3 (d), alleging that he could not examine or have examined the
witness against him nor could he obtain the attendance and examination
of witnesses on his behalf under the same conditions as witnesses
against him.
In this respect the applicant submits that the Regional Court,
by considering that the applicant's wife called on C in the morning of
22 May 1982 and told him about the applicant's arrest and a search
carried out at her home, based its reasoning on facts which had not
been brought before the Court. However, had the defence known that
the Court would use these facts for its reasoning, it could have named
another witness who was present at the search of the applicant's
wife's home.
The applicant also alleges that the statement made by C to
the Augsburg police on 28 May 1982, which C confirmed before the Izmir
Criminal Court on 14 April 1983, was not translated by a sworn
translator. A translation by a sworn translator would have been more
accurate and the evidence would therefore have been more favourable
to the applicant.
The applicant further alleges that only C's statement of
28 May 1982 was read out at his examination in the Izmir Criminal
Court on 14 April 1983, but not his statement of 4 May 1982.
Therefore C's examination was incomplete.
The applicant finally complains that the Court essentially
based its judgment on the statements of C who never gave evidence
before the trial court. Moreover, as the defence was not informed of
the date of C's examination in the Izmir Criminal Court, the
applicant's defence counsel was unable to attend this hearing although
both the German and the Turkish Codes of Criminal Procedure provide
for the presence of defence counsel at the examination of witnesses in
court. Likewise, his defence counsel was not informed of C's
examination in the Augsburg District Court on 28 May 1982, despite the
fact that he had given notice, on 26 May 1982, of having assumed the
applicant's defence. Therefore, neither the applicant himself nor his
defence counsel ever had the opportunity of directly examining C in
court. In this context the applicant also submits that C would have
appeared at the trial in December 1983 if a safe-conduct had already
been attached to the first letters rogatory. The applicant also
argues that C, who was at that time performing his military service in
Turkey, could not be expected to give evidence in Turkey contradicting
his previous statements to the German authorities.
THE LAW
l. The Commission does not find it necessary to determine whether or
not the applicant can be considered to have exhausted the domestic
remedies at his disposal in accordance with Article 26 (Art. 26) of the
Convention despite the fact that he did not lodge a constitutional
complaint (Verfassungsbeschwerde) with the Federal Constitutional
Court (Bundesverfassungsgericht). In any event the application is
manifestly ill-founded for the following reasons.
2. The applicant complains about the length of his detention on remand. Under
Article 5 para. 3 (Art. 5-3) of the Convention "(e)everyone ... detained in
accordance with the provisions of paragraph 1(c) of this Article shall be
entitled to trial within a reasonable time or to release pending trial".
The applicant was detained on remand from 21 May 1982 until
13 December 1983, that is 18 months and 22 days. In this respect the
Commission first observes that the Munich Court of Appeal ordered in
accordance with Section 121 para. 2 of the Code of Criminal Procedure
that in the exceptional circumstances of the case the applicant's
detention should continue after the time limit of six months provided
for in Section 121 para. 1 of the Code of Criminal Procedure had
expired. Subsequently the Court of Appeal made orders on 27 June 1983
and 14 October 1983 for further extension of the applicant's detention
in accordance with Sections 121 para. 1 and 122 para. 4 of the Code of
Criminal Procedure. The Commission is therefore satisfied that the
applicant's detention was lawful according to German law and that
consequently the applicant was lawfully detained in accordance with
the provisions of Article 5 para. 1 (c) (Art. 5-1-c) of the Convention.
It is then necessary to examine the question whether the
length of detention on remand can be regarded as "reasonable"
within the meaning of Article 5 para. 3 (Art. 5-3) of the Convention. In
determining this question, regard must not only be had to the absolute
time spent in detention but also to the circumstances of the
individual case.
In the present case, the indictment against the applicant had
been admitted by the Regional Court on 18 August 1982 and the trial
fixed for 14 October 1982, i.e. less than five months after the
applicant's arrest. It is true that finally the trial did not take
place until December 1983. However, this postponement was due to C's
non-appearance at the hearings fixed for October 1982 and for May 1983
and the applicant persisting in his examination. Moreover, the
minutes of C's examination in the Izmir Criminal Court were not
received by the Augsburg Regional Court until 24 October 1983, i.e.
almost one year after the request for C's examination on commission
had been formulated.
The Commission is unable to conclude that this delay was caused
by the Augsburg Regional Court or any other German authority or that
it is imputable to the Federal Republic of Germany on other grounds.
The trial court had expressly mentioned in its letters rogatory that
the applicant was detained and that a date for the trial had already
been fixed and that therefore an expeditious execution was requested.
The fact that C's examination on commission was further delayed
because of his being called up for military service in Izmir was
neither foreseeable nor imputable to the German authorities. In
particular, it does not appear that the address of C given by the
Augsburg Court to the Turkish authorities was incorrect at that time
as C had himself indicated this address in his letter of 1 November
1982.
In these circumstances, and also having regard to the charge laid
against the applicant, the Commission cannot find that the length of
the applicant's detention on remand until the trial actually took
place in December 1983 exceeded the "reasonable time" provided for in
Article 5 para. 3 (Art. 5-3) of the Convention.
It follows that this part of the application must be rejected as
being manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
3. The applicant also complains that he did not have adequate
facilities to prepare his defence as provided for by Article 6 para. 3 (b)
(Art. 6-3-b) of the Convention. However, he has not at all substantiated this
complaint.
It follows that this part of the application is also manifestly
ill-founded and must be rejected in accordance with Article 27 para. 2
(Art. 27-2) of the Convention.
4. The applicant further complains that he could not obtain the
attendance and examination of certain witnesses and that he could not
examine or have examined the principal witness against him.
Article 6 para. 3 (d) (Art. 6-3-d) of the Convention states that everyone
charged with a criminal offence "has the right 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". More
generally, Article 6 para. 1 (Art. 6-1) of the Convention provides that, in the
determination of any criminal charge against him, everyone is entitled to a
"fair hearing".
The Commission has examined the applicant's separate complaints
as they have been submitted by him under both provisions.
a) The applicant complains that the Augsburg Regional Court
relied in its judgment on the fact that the applicant's wife informed
C about the search carried out at her home; he alleges that this fact
has not been brought before the Court.
The Commission notes that this fact was mentioned by C in his
statement made to the police on 28 May 1982 and read out during the
trial whereby it became part of the oral proceedings. Therefore, the
Commission finds the applicant's allegation to be without factual
basis.
Moreover, Article 6 para. 3 (d) (Art. 6-3-d) of the Convention does not
grant the defence total freedom to call any potential witness at any time in
the proceedings, but allows a refusal to call witnesses whose statements are
not likely to assist in ascertaining the truth (cf. e.g. No. 8231/78, Dec.
6.3.82, D.R. 28 p. 1 [25]; No. 9000/80, Dec. 11.3.82, D.R. 28 p. 127 [135]).
The applicant did not specify what the witness whose appearance in court the
defence would have requested would have stated if he had been examined.
Therefore, the Commission is unable to conclude that his evidence could have
been of any relevance to the applicant's defence or that the applicant's
conviction could have rested on the failure to hear this witness.
It follows that this part of the application is again manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention and must accordingly be rejected.
b) The applicant also alleges that the statement made by C
on 28 May 1982 to which C had been referred during his examination in the
Izmir Criminal Court was not translated by a sworn translator. He
further submits that only this statement but not C's previous
statement of 4 May 1982 was read out by that court.
However, the applicant does not allege that the translation -
assuming it was not drawn up by a sworn translator - was incorrect.
In any event, he does not specify which parts were incorrectly
translated. Likewise, he does not specify on which parts of C's
statement of 4 May 1982 allegedly not read out by the Izmir Criminal
Court the Augsburg Regional Court based its reasoning. Therefore, the
Commission is unable to conclude that the principle of fair trial as
laid down in Article 6 para. 1 (Art. 6-1) of the Convention has not been
complied with or that any of the applicant's rights under Article 6 para. 3
(Art. 6-3) were violated.
c) The applicant finally complains that the Augsburg
Regional Court essentially based its judgment on the testimony of C
who was never examined in this court and whom the applicant or his
defence counsel could not directly examine in court.
The Commission recalls that Article 6 para. 3 (d)
(Art. 6-3-d) of the Convention does not grant the accused an unlimited
right to secure the appearance of witnesses in court. Its purpose is
rather to ensure equality between the defence and the prosecution as
regards the summoning and examining of witnesses (cf. e.g. No.
4428/70, Dec. 1.6.72, CD 40 p. 1[8]; No. 8417/78, Dec. 4.5.79, D.R. 16
p. 200 [207]). It does not exclude that witnesses residing abroad
whose presence at the trial cannot be enforced by the trial court are
examined on commission by a court at their place of residence. This
is a well-established practice provided for in numerous bilateral and
multilateral international conventions. Its very purpose is to assure
to the greatest possible extent the availability of evidence which
cannot be collected otherwise.
It is true that in the present case neither the applicant
himself nor his defence counsel were informed of the date of C's
examination in Izmir and that they could not therefore be present
during his examination and put questions to him. The Commission notes
that no representative of the Augsburg Public Prosecutor's Office
(Staatsanwaltschaft) was present either. In any event, assuming that
the Turkish law provides for the presence of the accused or his
defence counsel at the examination of a witness on commission, the
German authorities cannot be held responsible for the non-observance
of provisions of the Turkish law by a Turkish court (cf. the analogous
situation in No. 5049/71, Dec. 5.2.73, CD 43 p. 38 [42]). Moreover,
the Commission notes that the Augsburg Regional Court in its letters
rogatory expressly requested the Turkish authorities to inform it of
the date of C's examination on commission. Furthermore, Article 6 para. 3 (d)
(Art. 6-3-d) does not require that the defence must always have the opportunity
of directly examining a witness. According to this provision, the accused has
the right to examine "or have examined" witnesses. The Commission finds that
this requirement is not only complied with if the accused or his defence
counsel have the opportunity of putting questions to the witnesses themselves,
but also if they can request that certain questions are put to the witness by
the court. Especially, this holds true if witnesses are to be examined on
commission (cf. No. 5049/71, supra, p. 43).
The applicant does not allege that it was impossible or
inappropriate for him to request that in case the applicant or
his defence counsel could not attend the hearing certain specific
questions should be put to C by the Turkish court examining him on
commission regarding C's previous statements to the police which the
applicant's defence counsel had a right to consult. Nor does the
applicant allege that he made such a request which was then denied. In these
circumstances, the Commission cannot find that the applicant's right under
Article 6 para. 3(d) (Art. 6-3-d) to have witnesses examined was in any way
impaired.
Insofar as the applicant submits that his defence counsel was
not informed of the date of C's examination in the Augsburg District
Court on 28 May 1982, the Commission - assuming that this examination
was part of the preliminary investigation directed against the
applicant and not part of a preliminary investigation against C -
points out that the Augsburg Regional Court did not rely on the
evidence taken at that examination. Consequently, the applicant was
not prejudiced by the absence of his defence counsel.
The Commission has also examined the question whether, in
respect of the witness C, the applicant's right to a fair hearing of his case
under Article 6 para. 1 (Art. 6-1) of the Convention has been observed by the
Augsburg Regional Court.
Although this court was not responsible for the examination
of C on commission it is in principle conceivable that the use of the
evidence thereby obtained could be contrary to that provision.
However, the Commission has already found that the applicant's rights
under Article 6 para. 3(d) (Art. 6-3-d) were respected with regard to the
examination of C on commission. Therefore, the Commission concludes
that the use of his evidence by the Augsburg Regional Court was also
in conformity with the requirements of a fair trial.
The Commission notes in this respect that C's evidence
before the Turkish court was limited to confirming his previous
statements to the Augsburg police and that the Augsburg Regional Court relied
essentially on those statements. However, neither Article 6 para. 1
(Art. 6-1) nor Article 6 para. 3(d) (Art. 6-3-d) of the Convention
excludes that the trial court, in order to establish the truth, relies
on indirect evidence (cf. e.g. No. 8414/78, Dec. 4.7.79, D.R. 17 p.
231 [233]). In particular, neither provision excludes the use of
previous statements which subsequently are confirmed in court.
Moreover, in the present case, the Augsburg Regional Court also took
into account and weighed evidence presented by the defence, viz. C's
letter of 1 November 1982 and the transcript of C's interrogation by
the applicant's defence counsel in Izmir on 8 May 1983. The court
also found that C's previous statements which the court considered to
be credible were corroborated by the testimony of another witness. In
these circumstances, the Commission finds that the trial was fair and
that there has consequently been no violation of Article 6 para. 1
(Art. 6-1) of the Convention.
The Commission finally finds that there is no appearance of a
violation of either Article 6 para. 1 or Article 6 para. 3(d) (Art. 6-1, 6-3-d)
of the Convention by the fact that the first letters rogatory requesting to
summon C to appear before the Augsburg Regional Court were not accompanied by a
safe-conduct, or by the rejection of the applicant's request to have C examined
by a judge of the Augsburg Regional Court in Istanbul; as the Court correctly
pointed out, foreign authorities may not take evidence in another state unless
prior consent is granted.
It follows that this part of the application is also
manifestly ill-founded and must be rejected in accordance with Article
27 para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission President of the Commission
(H. C. KRÜGER) (C. A. NØRGAARD)