CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 14 décembre 1961

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }  THE FACTS   Whereas the facts of the case may be summarised as follows:   1. The Applicant is a German citizen born in ... and is at present detained in prison. He has been convicted on 25 previous occasions on various charges and has served sentences in prison and has been detained in concentration camps for three years.   In response to the present case, the Applicant was arrested on ... 1958 on suspicion of having committed theft and fraud, inter alia, by promising marriage to elderly women for the purpose of obtaining money from them.   He alleges that he was denounced by a woman named Mrs. A. but admits that he is guilty of certain of the crimes of which he was charged. On ... 1958, he informed the Public Prosecutor that he was the victim of a plot on the part of Mrs. A. and a certain Mr. B.   The Applicant states that B. was charged with him for the same offenses and that B. was an "unreliable and untrustworthy person" who had already denounced several innocent persons to the police in East Germany and, further, that Mrs. A. with whom he, the Applicant, had lived, had private grudges against him.   2. The Applicant also states that the sole purpose of the investigation of the charges against him was to obtain his conviction and not to find out the true facts. The police officials had told him that a detailed investigation of the case was superfluous as the facts were evident from the statements made by Mrs. A. and Mr. B. and would justify a reduction of his sentence to one of detention for security purposes (Sicherungsverwahrung). The Applicant now alleges that the police violated Article 160 of the Criminal Penal Code by not taking into consideration the circumstances of the case, and, in particular, those circumstances which were in his favour as an accused person. The Applicant, therefore, refused to cooperate with the police who had so far dealt with his case and he was not subjected to any further interrogation between ... 1959 and his trial in ...1959. The indictment against him was finally drawn up on ...1959.   3. It is also stated by the Applicant that during a Session of the ... Chamber of the Regional Court (Landgericht) of C. on ... 1959, a judge indirectly accused him of murder by asking him, in connection with his previous attempt to commit suicide by taking luminal, whether he had not taken a wrong glass. Interpreting this question as implying that the glass had been designed for somebody else, the Applicant asked on ... 1959 that the Chamber should be declared as having no competence in the case. This request was refused by the Chamber on ... 1959 and the Applicant apparently took no further steps in this respect.   4. On ... 1959 the Applicant was apparently refused permission to attend a court session where witnesses were to be heard, and he states that these witnesses were informed of his criminal record and that leading questions were put to them.   On ... 1959, five days before his trial, the Court appointed a lawyer to defend the Applicant, but on the following day, the Applicant asked that another lawyer in whom he had more confidence should be appointed.   This request was refused, but in the meanwhile, the lawyer whose services he had asked for had applied for an adjournment of the case on the ground that an adequate preparation of the Applicant's defence was impossible owing to lack of time. This application was also rejected.   The Applicant alleges that the lawyer appointed to defend him did   not take any interest in his case, that he did not ask for adjournment which was necessary for the proper preparation of his defence and   that he, the Applicant, was consequently deprived of his   constitutional rights. He further adds that it is absurd that the outcome of a trial and the fate of an accused person should depend entirely on the whim of an officially appointed lawyer.   5. The Applicant, during the course of his trial on ..., ... and ... 1959 was ill and states that this was partly due to the drugs prescribed by the doctors of the prison hospital. He maintains that his bad health made his defence impossible.   He even alleges that on ... 1959 he was physically attacked in the Court by a health expert whose medical examination was superficial and irresponsible and whose appointment on ... 1959 he had refused to recognise.   The Applicant's various requests to call his own expert evidence   as to his alleged criminal tendencies were rejected.   6. On ... 1959 the Applicant was convicted by the Regional Court of C. on certain of the charges mentioned above and sentenced, as a habitual criminal, to five years' imprisonment, to four separate fines of 10 DM, to loss of civil rights for five years and to preventive detention (Sicherungsverwahrung) for five years. He now states that the Court was biased and in this respect he refers to the passage in its judgment concerning the Applicant's past convictions. He maintains that the Court did not take into consideration the extenuating circumstances of the crimes of which he had been previously accused and he requests that the Commission asks for and examines all the files regarding his post-war convictions.   The Applicant also submits that the Court was in error in accepting Mrs. A's evidence, which was prejudiced and which was different from the statements given by her to the police during the investigation. Moreover, the judge posed "subjective questions" which were not relevant to the case, but which tended to incriminate the Applicant and, in general, the Court did not apply the generally recognised doctrine of in dubio pro reo.   7. On ... 1959 the Court's decision was communicated to the Applicant, who alleges that his lawyer, in spite of the Applicant's being admitted to hospital on ... 1959, took not steps to appeal from this decision, but simply stated that he had not time to deal with the Applicant's case. Consequently, the Applicant himself, on ... 1960, lodged an appeal without any assistance from his lawyer and on ... 1960 submitted to the Federal Court (Bundesgerichtshof) a document in support of his appeal in which he pleaded, inter alia, that the European Convention on Human Rights had been violated during the proceedings before the Regional Court.   On ... 1960, the Applicant requested that a lawyer be appointed to assist him during the appeal proceedings, but in a decision of ... 1960, of which a copy has been submitted to the Secretariat, the Regional Court refused this request on the ground that legal assistance was not necessary at that stage of the proceedings. This decision was upheld by the Chamber Court (...) of C. on ... 1960.   On ... 1960, the Federal Court dismissed the Applicant's appeal after having heard the Public Prosecutor (nach Anhörung des Generalbundesanwalts).   8. The Applicant alleges that the minutes of the Court proceedings were substantially changed seven days after his trial and after they had been signed. He states further that he was refused permission to copy certain documents in the file of his case.   The allegations of the applicant:   Whereas the Applicant alleges violations of Articles 3, 5 and 6 of the Convention;   - in that he was not presumed innocent until proved guilty, according   to law; - in that the Regional Court of C. was not impartial in its conduct of   the proceedings against him; - in that the witnesses for the prosecution were heard in his absence   and that this did not constitute a fair hearing of his case; - in that he was deprived of his right to prepare a proper and adequate   defence; - in that the facilities necessary for his defence were not granted to   him; - in that evidence requested by the defence was not allowed to be   called; - in that he was denied free legal assistance during the appeal   proceedings; - in that he was not allowed to be present at the hearing of his case   before the Federal Court.   The object of the application:   Whereas the Applicant claims a retrial of the charges against him and an investigation of the methods used by the police and the courts in C.   Proceedings before the commission:   The Application was submitted to the Commission during its 30th Session (24th to 28th July 1961) which decided:   (a) to declare inadmissible the parts of the Application which related to the proceedings before the Regional Court of C. as being manifestly ill-founded, there being no apparent violation of Articles 3, 5 and 6 of the Convention.   (b) to communicate to the Government of the Federal Republic of Germany, under Rule 45, paragraph (3) (b) of the Rules of Procedure, the remaining part of the Application, in which the Applicant alleged a violation of Article 6 in that he was denied the right to defend himself in person before the Federal Court, and to invite the Government to submit its observations in writing as to the admissibility of that part of the Application.   On 14th November 1961, the Respondent Government submitted its observations which may be summarised as follows:   (a) In accordance with Article 349, paragraph 2 of the German Code of Criminal Procedure, the Applicant's appeal was rejected by the Federal Court in a closed session without an oral hearing of either party. The appeal proceedings consisted solely of an exchange of written pleadings and the submissions made by the Public Prosecutor were communicated to the Applicant and to his lawyer.   (b) The expression "nach Anhörung", as used in the decision, does not mean that the Public Prosecutor was actually heard in person, but has a purely formal significance in certifying that Article 33 of the Code had been observed (This Article provides that the Public Prosecutor must be given comments on the appeal).   (c) The appointment by the Court of a lawyer to act for the Applicant was not revoked until ... 1960, namely, after the expiry of the time-limit fixed for the making of submissions to the Court. The Applicant had consequently legal assistance during the Spring of 1960 when the exchange of the written pleadings in the case took place.   (d) In general, that there had been no violation of Article 6, paragraph (3) of the Convention and that the Application was manifestly ill-founded.   THE LAW   Whereas, in regard to the Applicant's complaints of violations of Articles 3, 5 and 6 (Art. 3, 5, 6) of the Convention during the proceedings before the Regional Court of C., namely, that he was not presumed innocent until proved guilty, in that the Court was not impartial, that the witnesses for the prosecution were heard in his absence, that he was deprived of his right to prepare a proper and adequate defence, that the facilities necessary for his defence were not granted to him and that evidence requested by the defence was not allowed to be called, it is to be observed that on 27th July 1961 the Commission held an examination of the case as it was submitted, including an examination ex officio, did not disclose any appearance of a violation of the above Articles of the Convention; whereas the subsequent submissions by the Applicant, in so far as they relate to these complaints, do not provide any grounds for a reconsideration of the finding reached by the Commission on 27th July, 1961; whereas it follows that these complaints are manifestly ill-founded and must be rejected in accordance with Article 27, paragraph (2) (Art. 27-2) of the Convention;   Whereas, in regard to the Applicant's complaints that he was refused free legal assistance during the appeal proceedings before the Federal Court, it is to be observed that such legal assistance was not refused until after the Applicant's appeal had been lodged an supporting arguments had been submitted; whereas, in its decision of ... 1960, the First Criminal Chamber of the Court of Appeal of C. held that legal assistance was not necessary at the next stage of the proceedings and gave as its reason the fact that the time-limit for submitting further arguments on procedural grounds had expired and based itself, in this respect, on Article 345, paragraph (1) of the Code of Criminal Procedure;   whereas in accordance with Article 345, paragraph (2) of the Code of Criminal Procedure, the Applicant himself still had the possibility of lodging with the Registrar of the Regional Court of C. any written submissions which he might wish to make regarding his complaint that the law had been incorrectly applied by the Regional Court;   Whereas, in these circumstances, the interests of justice did not require that the Applicant should be given free legal assistance in regard to the proceedings before the Federal Court; whereas it follows that in this respect there has been no violation of Article 6,paragraph (3) (c) (Art. 6-3-c) of the Convention;   Whereas, in regard to the Applicant's complaints that he was not allowed to be present at the hearing of his appeal before the Federal Court on ... 1960, the fact is that the Court did not order an oral hearing of the case, but rejected the Applicant's appeal in pursuance of Article 349, paragraph (2) of the Code of Criminal Procedure, which provides that an appeal may be rejected by the Federal Court without an oral hearing of the parties in public, where it considers the appeal to be manifestly ill-founded; whereas the Public Prosecutor and the Applicant, notwithstanding the fact that they were not present at   the hearing, had the possibility of presenting their arguments to   the Court in writing; whereas, indeed, the Applicant, after he had been notified of the Public Prosecutor's observations, availed himself of this possibility and submitted full arguments in writing in support of his appeal; whereas, in these circumstances, the conduct of the proceedings was not inconsistent with the provision contained in Article 6, paragraph (1) (Art. 6-1) of the Convention, which guarantees a fair hearing to a person in the determination of a criminal charge against him;   Whereas it follows that the complaints made by the Applicant in respect of the appeal proceedings before the Federal Court are also manifestly ill-founded and must be rejected in accordance with Article 27, paragraph (2) (Art. 27-2) of the Convention.   Now therefore the Commission declares this Application inadmissible."