The European Commission of Human Rights sitting in private on
13 October 1986, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
F. ERMACORA
E. BUSUTTIL
G. JÖRUNDSSON
G. TENEKIDES
S. TRECHSEL
B. KIERNAN
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.C. SOYER
H.G. SCHERMERS
H. DANELIUS
G. BATLINER
J. CAMPINOS
Mrs G.H. THUNE
Sir Basil HALL
Mr. F. MARTINEZ
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Art. 25 (art. 25) of the Convention for the
Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 25 September 1985 by
Z.Y. against the Federal Republic of Germany and registered on 3
January 1986 under file No. 11915/86;
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 applicant is a Turkish citizen, born in 1947 and living in
Neckarsulm-Obereisesheim, Federal Republic of Germany. She is
represented by Mr N. Wingerter, a lawyer practising in Heilbronn.
In December 1981 private prosecution proceedings (Privatklage) were
instituted against the applicant by a neighbour who alleged to have
been insulted by her. According to the plaintiff the applicant had on
3 July 1981 made a gesture (touching her forehead with her forefinger)
which indicated that she considered the plaintiff to be stupid. On
7 June 1985 the Heilbronn District Court (Amtsgericht) discontinued
the proceedings in accordance with Section 383 (2) of the Code on
Criminal Procedure (Strafprozessordnung)*. The defendant was ordered
to pay the costs of the proceedings while each party had to bear its
necessary expenses.
The reasons given for the order of 7 June 1985 read as follows:
"The private prosecutor (Privatkläger) submits that on 3 July 1981 the
defendant (Privatbeklagte) made a gesture towards her imputing
stupidity (... den "Vogel" gezeigt ...) She named Mrs H as witness
for her allegation. The defendant denies the accusation.
According to a provisional assessment (vorläufige Bewertung) the court
considers the private prosecutor's allegations to be credible
(glaubhaft).
Nevertheless a punishment (Ahndung) does not appear to be necessary.
Rather, the defendant's fault (Verschulden) may be considered
insignificant. Both parties apparently live close to each other.
Quarrels often occurred. The defendant submitted that the private
prosecutor often hit her children.
In these circumstances a trial was not necessary and it could be
proceeded with in accordance with Section 383 (3) Code on Criminal
Procedure given the insignificance of the fault of the offender (...
bei geringer Schuld der Täterin).
However, the costs of the proceedings had to be imposed on the
defendant. In accordance with Section 471 (3) Code on Criminal
Procedure it appeared equitable that each party bear its necessary
expenses."
The applicant's immediate appeal (sofortige Beschwerde) was rejected
by the Heilbronn Regional Court (Landgericht) on 9 July 1985 at the
applicant's expense. Without stating further reasons the Regional
Court simply confirmed the reasons stated in the order appealed from.
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* Which reads: If the defendant's fault is insignificant,
the court may discontinue the proceedings. The proceedings can still
be discontinued after the trial has started. The order can be
appealed from. (Ist die Schuld des Täters gering, so kann das Gericht
das Verfahren einstellen. Die Einstellung ist auch noch in der Haupt-
verhandlung zulässig. Der Beschluss kann mit sofortiger Beschwerde
angefochten werden.)
_______________
COMPLAINTS
The applicant first complains that despite repeated interventions of
her counsel, 42 months elapsed before the trial court considered her
case.
She further complains that the decision on costs violates her right to
be presumed innocent.
She invokes Article 6 paras. 1 and 2 (art. 6-1, art. 6-2) of the
Convention.
Referring to three decisions given by groups of three judges of the
Federal Constitutional Court on 2 February 1982 (2 BvR 1312/81),
20 July 1984 (2 BvR 790/84) and 26 November 1984 (2 BvR 627/84)*,
rejecting similar complaints, the applicant argues that a
constitutional appeal did not in her case constitute an effective
remedy in view of the Federal Constitutional Court's jurisprudence on
the subject matter.
THE LAW
The applicant has complained of the length of private prosecution
proceedings against her and of the decision on costs given in
connection with the order discontinuing these proceedings. This
decision is, according to her argument, similar to a conviction.
It is true that Article 6 paras. 1 and 2 (art. 6-1, art. 6-2) of the
Convention secure to everyone charged with a criminal offence the
rights to a speedy trial and to be considered innocent until final
conviction.
However, the Commission is not required to decide whether or not the
facts alleged by the applicant disclose any appearance of a violation
of these provisions as, under Article 26 (art. 26) of the Convention,
it may only deal with a matter after all domestic remedies have been
exhausted according to the generally recognised rules of international
law.
In the present case the applicant failed to raise her complaints
before the Federal Constitutional Court invoking Articles 20 and 103
of the Basic Law (Grundgesetz) and has, therefore, not exhausted the
remedies available to her under German law. 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, from exhausting the domestic
remedies at her disposal.
The decisions of the Federal Constitutional Court referred to by the
applicant do not show that a constitutional appeal would not, in the
present case, have offered any prospects of success as regards the
alleged violation of the principle of presumption of innocence.
_______________
* Submitted by the applicant's counsel in the cases of Englert
(No. 10282/83), Lutz (No. 9912/82) and K (No. 11585/85).
_______________
The decisions of 2 February 1984 (2 BvR 1312/81) and of 26 November
1984 (2 BvR 627/84) concern orders discontinuing regulatory offence
proceedings (Bussgeldverfahren) and refusing reimbursement of the
defendant's necessary expenses on grounds indicating that a conviction
was likely. The decision of 20 July 1984 (2 BuR 790/84) concerns an
order refusing compensation for prosecution matters.
The present applicant was not only refused reimbursement of her
necessary expenses but she was ordered to pay the costs of the
proceedings. Furthermore, unlike the decisions referred to, the
decision complained of in the present case mentions the applicant's
fault (Verschulden) which is considered to be insignificant.
The case at issue is therefore distinguishable from the facts
underlying the cases cited by the applicant which had previously been
submitted to the Federal Constitutional Court. Moreover, the Federal
Constitutional Court rejected the complaints in question without
considering the merits of those cases.
It cannot, in these circumstances, be concluded from the above
decisions given by groups of three judges of the Federal
Constitutional Court that a constitutional appeal on behalf of the
applicant would not have offered any prospects of success.
It follows that the applicant has not complied with the condition as
to the exhaustion of domestic remedies and her application must
therefore be rejected under Article 27 para. 3 (art. 27-3) 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)