WEISE AND STEINHAGEN v. the FEDERAL REPUBLIC OF GERMANY



                      AS TO THE ADMISSIBILITY OF

                      Application No. 17157/90

                      by Gottfried WEISE and Alfred STEINHAGEN

                      against the Federal Republic of Germany

        The European Commission of Human Rights sitting in private

on 10 December 1990, the following members being present:

              MM. C.A. NØRGAARD, President

                  S. TRECHSEL

                  F. ERMACORA

                  G. SPERDUTI

                  E. BUSUTTIL

                  G. JÖRUNDSSON

                  A.S. GÖZÜBÜYÜK

                  A. WEITZEL

                  J.-C. SOYER

                  H.G. SCHERMERS

                  H. DANELIUS

             Mrs.  G. H. THUNE

             Sir  Basil HALL

             MM.  F. MARTINEZ RUIZ

                  C.L. ROZAKIS

             Mrs.  J. LIDDY

             MM.  L. LOUCAIDES

                  A.V. ALMEIDA RIBEIRO

                  M.P. PELLONPÄÄ

             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 15 February 1990

by Gottfried Weise and Alfred Steinhagen against the Federal Republic

of Germany and registered on 13 September 1990 under file No. 17157/90;

        Having regard to the report provided for in Rule 47 of the

Rules of Procedure of the Commission;

        Having deliberated;

        Decides as follows:

        The applicant, Mr.  G. Weise, is a German citizen, born in 1921

and domiciled in Solingen.

        The applicant, Mr.  A. Steinhagen, is a German citizen living

in Solingen.  He is the father of Mr.  Weise's daughter-in-law and

claims to also be affected by the alleged violations of rights of the

applicant Weise whom he represents in the present application

proceedings.

        The applicant Weise was convicted by the Regional Court

(Landgericht) in Wuppertal on 28 January 1988 of five counts of murder

and sentenced to life imprisonment.

        According to the findings of the Court it was considered proven

that Mr.  Weise, a former SS officer and guard in the ill-famed

Auschwitz concentration camp, had killed at least five detainees.

        These findings were based on statements made at the trial by

witnesses F., L., R., S. and T., all former detainees.  The trial

court carefully examined the question of whether these witnesses were

credible and found an affirmative answer, stating that the witnesses

had made a good impression and their statements were coherent, full of

details and there was nothing to raise doubts as to their correctness.

        The applicant lodged an appeal on points of law (Revision).

On 31 March 1989 the Federal Court (Bundesgerichtshof) confirmed the

conviction on three counts of murder and the life sentence.  The

remaining part of the judgment, relating to two further counts of

murder, was quashed.  The Court considered that a further witness

named by the defence should have been heard despite the fact that,

when heard in the pretrial proceedings, this witness did not make any

statements discharging the applicant Weise.  In this respect the

proceedings were eventually discontinued.

        Mr.  Steinhagen complained to the Federal Constitutional Court

(Bundesverfassungsgericht) of the applicant's conviction and sentence.

In a letter dated 6 July 1989 an official of this Court informed him

that his submission would not be considered as a constitutional

complaint as it did not disclose any appearance of a violation of

constitutional rights and as he was not directly affected by the

judgment complained of.

        Both applicants now complain of Mr.  Weise's conviction which

they consider to be unjustified and violating Article 6 of the

Convention as allegedly the rights of the defence were not respected

and the trial court only believed the doubtful statements of the

witnesses of the prosecution, without considering evidence discharging

the applicant Weise.

        However, Mr.  Steinhagen is not a victim within the sense of

Article 25 of the Convention of the alleged violations and, insofar as

the applicant Weise is concerned, the Commission is prevented from

examining his complaint as he failed to raise it before the Federal

Constitutional Court.  Therefore he has not exhausted the remedies

available to him under German law and his application must be rejected

in accordance with Articles 26 and 27 para. 3 of the Convention for

non-exhaustion of domestic remedies.

        In any event the Commission observes that the applicants'

submissions are unsubstantiated and do not disclose any appearance of

a violation of the Convention.  Therefore the application also has to

be rejected under Article 27 para. 2 as being manifestly ill-founded.

        For these reasons, the Commission unanimously

        DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission               President of the Commission

   (H.C. KRÜGER)                               (C.A. NØRGAARD)

 

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