THE FACTS
Whereas the facts as presented by the applicant may be summarised as
follows:
The first applicant is a German citizen, born in 1911 and at present
living in B. (Netherlands).
The second applicant is a citizen of the United States of America, born
in 1941 and also resident at B.. He is the son-in-law of the first
applicant. The whole case has been presented to the Commission by the
second applicant who is acting for the first applicant under an
authority dated 25 October 1968.
1. Complaints relating to the first applicant
From statements and documents submitted, it appears that on .. November
1967 the first applicant was convicted by the Regional Court
(Landgericht) at A. for fraud (Betrug) in seven cases and sentenced to
23 months' imprisonment. It seems that the Regional Court found him
guilty on the ground that, as Head of a Trade Company, he had caused
damage to the property of banks and private persons by giving and
maintaining the impression that his company was still solvent when he
would have known it was going bankrupt.
The applicant appealed against this decision (Revision) to the Federal
Court (Bundesgerichtshof) which on 23 August 1968 dismissed his appeal
as being ill-founded.
On .. November 1968 he made a constitutional appeal
(Verfassungsbeschwerde) to the Federal Constitutional Court
(Bundesverfassungsgericht), submitting the grounds of his appeal in
English. By letter of 15 November 1968 a judge of the Federal
Constitutional Court informed him that the appeal would not be accepted
since it had not been made by a lawyer or a professor of law, since the
appeal had not been submitted in German, and it had been lodged out of
time.
On 23 September 1968 the applicant received notification to report to
prison (Strafantritt) on 30 September 1968.
Before the date he left Germany for the Netherlands.
The applicant states that he was wrongly convicted and sentenced and
that the Convention was violated by reason of the court proceedings
concerned. In this respect he gives the following explanations:
(i) He alleges that the Regional Court of A. had denied him adequate
facilities for the preparation of his defence in that it had failed to
give him access to the files, transcripts and written judgments of the
proceedings which were necessary for the preparation of his grounds of
appeal (Revisionsbegründung). These files were necessary for the
preparation of adequate and specific grounds of appeal since,
otherwise, his appeal would be rejected as being clearly ill-founded.
The right to submit to a higher court an accurate and comprehensive
appeal (Revision) in order to challenge the reasoning and the
appreciation of facts and evidence by the lower court was necessary for
the defence of a person who was charged with a criminal offence.
(ii) The applicant further alleges that the Regional Court of A.
together with the Federal Court denied him adequate time for the
preparation of his defence. According to the applicant, he was told
that the files concerning his case were away from A. during the period
from 7 April to 5 May 1968, without the Court's knowledge of their
location. He states that the time limit for submitting the grounds of
appeal expired on 7 May 1968. He was obliged himself to go to the
Registrar's Office of the Federal Court and quickly put together the
grounds of his appeal. Subsequently, on 7 August 1968 he received a
motion submitted to the Court of the Federal Attorney General
(Generalbundesanwalt) to reject the applicant's appeal as being
ill-founded. The applicant was invited to answer, if he wished, within
14 days, i.e. before 21 August 1968. But only two days later the
Federal Court convened and rejected his appeal, allegedly without ever
having examined the case-files.
The applicant is of the opinion that the combination of his above
complaints amounted to denying him any appeal at all.
(iii) The applicant also alleges that he did not have a fair hearing
by the A. Regional Court in that the presiding judge of the Court,
Judge S., intimidated him prior to the trial. He explains that Judge
S., through his lawyer, Mr. F., indicated that if the applicant would
not cause any difficulties, he would receive a fair trial ("Herr X.
möchte während des Prozesses bitte nicht ausfallend werden, so wird ihm
ein fairer Prozess geliefert"). This he considered as being bias on the
part of Judge S. who, in any event, had relied to a considerable extent
on certain press reports when arriving at his verdict of guilty.
Furthermore, the Court had suppressed evidence in the applicant's
favour prior to and during the trial since all the files concerning the
company concerned had been confiscated at the beginning of the
investigations. He explains that the prosecuting authority had used
several letters out of these files to show fraud committed against
third persons. However, other correspondence which would have benefited
the applicant's had been absent from the files by the time the trial
was opened.
Finally, according to the applicant, the Regional Court had conducted
the trial and arrived at its judgment in an unlawful and illogical
manner. For instance, during the hearing no mention had been made of
a written contract which existed between the company and a certain
third person, and Judge S. had neglected to ask for that contract which
could have cleared up the conflicting evidence with regard to the terms
of that agreement. Judge S. also failed to tell the full Court of
certain evidence which he had obtained from a witness by hearing him
at the witness's home, nor was any mention thereof made in the trial
transcript or the written judgment. According to the applicant, Judge
S. furthermore arrived at a verdict of guilty without having
established a beneficiary of the alleged fraud. The definition of fraud
required that a person should have been deceived, the deceipt inducing
such person to dispose of his possessions to the benefit of some other
person or persons or organisation. However, the Court had simply stated
in the written judgment that the applicant was an "expert in economics"
who knew that his company would collapse any day but who wished to
continue to receive his salary as long as possible. The applicant was
in no case ever accused of having taken money for his own use or
benefit and neither he nor the company itself could be considered as
being the beneficiary since the money was proved to have been deposited
in the company's bank account. The applicant alleges that,
consequently, he should not have been found guilty of fraud.
(iv) The applicant further complains that the Regional Court of A.
denied him the right to defend himself in person or through legal
assistance. He explains that the Court had initially informed him that
it would not be possible to appoint counsel to defend him, since he was
intelligent enough to defend himself. Later this decision had been
reconsidered but the lawyer appointed by the Court, Mr. F., had, in
fact, assisted the prosecuting authorities and the Court rather than
the applicant and had prevented him from submitting a proper appeal
against his conviction and sentence.
(v) The applicant finally complains that he did not have a hearing of
his case within a reasonable time in that it had taken the A. Regional
Court more than six years to bring him to trial. He explains that the
police started to investigate the charges against him in July 1961, and
in 1963 a preliminary investigation was held before the investigating
judge. The trial opened on .. October 1967 and ended on .. November
1967. The applicant alleges that this delay of more than six years had
not been necessary since the investigation by the police had taken one
year at the most and the preliminary investigation had lasted eight
weeks only. Moreover, having had to wait for his trial during that
period had been detrimental to his health and his financial position
as well as to his case since the witness's memory had become more and
more unreliable.
The applicant states that he is able to prove his allegations by the
evidence of his lawyer, Mr. F., by newspaper articles concerning his
trial at A., and by the files concerning his case.
2. Complaints relating to the second applicant
The second applicant is the son-in-law of the first applicant. With
reference to the terms of Article 25 of the Convention, he claims that
status of a victim of violations of the first applicant's human rights.
He gives the following explanations:
(i) On 26 September 1968 as a result of the allegedly abrupt and
unsuspected action on the part of the Federal Court and the notice to
the first applicant to report to prison immediately, the second
applicant was obliged to transport his family from the United States
of America to Germany, even though he and his daughter were seriously
ill.
(ii) For a period of ten days during this critical period the second
applicant was obliged to be absent from his place of employment, to the
detriment of the project he was working on and to the detriment of his
own personal position.
(iii) During the past two years, the applicant's wife had been
suffering from the effects of a nervous disorder, in the form of
allergies and a possible stomach ulcer. She had just been released from
hospital when they had been obliged to go to Germany and had since
suffered continually from the aggravations and strain brought about by
the above situation which according to the applicant resulted from the
unlawful proceedings before the Regional Court in A..
(iv) As a result of the absence of their husband and father the second
applicant was now obliged to assume at least partial support of the
first applicant's wife and son. This imposed an additional hardship on
the second applicant and his family since he was really not in a
financial position to do so.
3. Both applicants allege violations of Article 6, (1), (2) and (3)
(b), (c) and (d) of the Convention. They contend that they have
satisfied the requirements of Article 26 of the Convention because they
had been prevented from appealing to the Federal Constitutional Court
within the time-limit prescribed. They explain that neither the
authorities not the lawyer had informed them about the one month's
time-limit for making such appeal. In fact, it had been the result of
Mr. F.'s misleading advice which had prevented them from submitting the
case to the Federal Constitutional Court immediately upon receiving the
Federal Court's decision rejecting the appeal. Consequently, it had in
fact been the lawyer's fault that his constitutional appeal had not
been accepted.
The applicants request the Commission to order a thorough investigation
of the facts, and to instruct the authorities in the Federal Republic
of Germany to grant a fair hearing before an impartial tribunal. They
also request full compensation for the injuries inflicted and
punishment for the persons who are responsible for the injuries
committed against them.
THE LAW
I. Whereas, the Commission first considered the complaints made by the
first applicant;
Whereas, insofar as the applicant complains that he has been wrongly
convicted and sentenced, an examination of the case as it has been
submitted, including an examination made ex officio, does not disclose
any appearance of a violation of the rights and freedoms set forth in
the Convention and especially in the Articles invoked by the applicant;
whereas in respect of the judicial decisions complained of, the
Commission has frequently stated that in accordance with Article 19
(Art. 19) of the Convention its only task is to ensure observance of
the obligations undertaken by the Parties in the Convention; whereas,
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 the Commission considers that such errors might have
involved a possible violation of any of the rights and freedoms
limitatively listed in the Convention; whereas, in this respect, the
Commission refers to its decisions Nos. 458/59 (X. v. Belgium -
Collection of Decisions, Vol. 8, p. 57); and whereas there is no
appearance of any such violation in the present case; whereas it
follows that this part of the application is manifestly ill-founded
within the meaning of Article 27, paragraph (2) (Art. 27-2), of the
Convention;
Whereas, the applicant also complains, under Article 6, paragraph (1)
(Art. 6-1), of the Convention that he did not have a fair hearing of
his case by the Regional Court of A. in that Judge S., who was the
presiding judge of that Court, had been biased; whereas, he further
complains, under Article 6 (3) (b) (Art. 6-3-b), of the Convention,
that he did not have adequate time and facilities for the preparation
of his defence;
Whereas, in these respects, it is to be observed that, under Article
26 (Art. 26) of the Convention, the Commission may only deal with a
matter after all domestic remedies have been exhausted according to the
generally recognised rules of international law; and whereas the
applicant failed to lodge within the time-limit prescribed a
constitutional appeal with the Federal Constitutional Court alleging
violations of Article 103 (1) of the Basic Law (Grundgesetz); whereas,
therefore, he had not exhausted the remedies available to him under
German law; whereas, moreover, an examination of the case as it has
been submitted, including an examination made ex officio, does not
disclose the existence of any special circumstances which might have
absolved the applicant, according to the generally recognised rules of
international law, form exhausting the domestic remedies at his
disposal; whereas, therefore, the condition as to the exhaustion of
domestic remedies laid down in Articles 26 and 27 (3) (Art. 26, 27-3),
of the Convention has not been complied with by the applicant;
Whereas, insofar as the applicant's complaints are directed against his
lawyer, Mr. F., it results from Article 19 (Art. 19) of the Convention
that the sole task of the Commission is to ensure the observance of the
engagements undertaken in the Convention by the High Contracting
Parties, being those Members of the Council of Europe which have signed
the Convention and deposited their instruments of ratification;
whereas, moreover, it appears from Article 25 (1) (Art. 25-1), of the
Convention that the Commission can properly admit an application from
an individual only if that individual claims to be the victim of a
violation of the rights and freedoms set forth in the Convention
provided that the Party in question has accepted this competence of the
Commission; whereas it results clearly from these Articles that the
Commission has no competence ratione personae to admit applications
directed against private individuals; whereas, in this respect, the
Commission refers to its previous decision No. 1599/63 'Yearbook, Vol.
VI, pages 348, 356); whereas an examination of the case as it has been
submitted, including an examination made ex officio, does not disclose
any grounds on which the alleged conduct of Mr. F., could exceptionally
entail the responsibility of the Government of the Federal Republic of
Germany under the Convention; whereas it follows that this part of the
application is incompatible with the provisions within the meaning of
Article 27, paragraph (2) (Art. 27-2), of the Convention;
Whereas, insofar as the above complaint might give rise to the question
whether the courts failed to ensure that the applicant's defence was
properly carried out with the consequence that he was not given a fair
hearing within the meaning of Article 6 (Art. 6) of the Convention, an
examination of the case as it has been submitted, including an
examination made ex officio, does not disclose any appearance of a
violation of this right; whereas it follows that, in this respect, the
application is manifestly ill-founded within the meaning of Article 27,
paragraph (2) (Art. 27-2), of the Convention;
Whereas, the applicant finally complains that his case has not been
heard within a reasonable time in that first charges were levelled
against him in July 1961, charges which were finally determined by
decision of the Federal Court of 23 August 1968, i.e. after a period
of more than seven years.
Whereas the Commission considers that this complaint may give rise to
a question under Article 6, paragraph (1) (Art. 6-1), of the Convention
which provides, inter alia, that, in the determination of any criminal
charge against him, everyone is entitled to a hearing within a
reasonable time;
Whereas the Commission finds that an examination of the file at the
present stage does not give the information required for determining
the question of admissibility; whereas, therefore, the Commission
decides, in accordance with Rule 45, 2b of its Rules of Procedure, to
give notice of the above complaint to the Government of the Federal
Republic of Germany and to invite the Government to submit its
observations on the question of admissibility; whereas, in the
meanwhile, the Commission decides to adjourn its examination of this
part of the application;
II. Whereas, the Commission next considered the complaints made by the
second applicant;
Whereas according to Article 25 (1) (Art. 25-1), of the Convention "the
Commission may receive petitions .... from any person, non-governmental
organisation or group of individuals claiming to be the victim of a
violation by one of the High Contracting Parties of the rights set
forth in this Convention, provided that the High Contracting Parties
against which the complaint has been lodged has declared that it
recognises the competence of the Commission to receive such petitions",
Whereas the Commission has already held that the term "victim" means
not only the direct victim or victims of the alleged violations but
also, any person who might be an indirect victim either by inevitably
suffering damage as a result of such violation or by having a valid
personal interest in securing the cessation of such violations (see,
for instance, Decision No. 282/57, Yearbook, Vol. I, page 166);
Whereas, in the present case, the second applicant makes certain
allegations with regard to his and his family's situation; whereas
certain hardships which he allegedly suffered in connection with the
transfer of his family from the United States to Europe are attributed
by him to the alleged unlawful acts committed against the first
applicant; whereas, for these reasons, he claims himself to be a
victim of a violation of the Convention;
Whereas, however, the Commission finds that an examination of the case
as it has been submitted does not disclose, as regards this applicant,
any appearance of a violation, either direct nor indirect, of the
provisions of the Convention; whereas, consequently, the applicant
cannot be considered as being a direct or indirect victim, within the
meaning of Article 25 (1) (Art. 25-1), of the Convention, of the rights
and freedoms set forth in the Convention, and, in particular, of the
Articles invoked by him; whereas it follows that in this respect, the
application is manifestly ill-founded and must be rejected in
accordance with Article 27, paragraph (2) (Art. 27-2), of the
Convention;
Now therefore the Commission
1. Declares inadmissible the first applicant's complaints set out under
1 (i) to (iv) of the statement of facts;
2. Decides to adjourn its examination of the admissibility of the first
applicant's complaint set out under 1 (v) of the statement of facts;
3. Declares inadmissible all the complaints made by the second
applicant.