CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 30 mars 1966

.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 presented by the Applicant may be summarised as follows:   The Applicant is a German citizen, born in 1927, and at present detained on remand in Hamburg.   From the statements and documents submitted by the Applicant it appears that on .. February, 1964 he was arrested on suspicion of having committed fraud. On .. January, 1965 the Regional Court (Landgericht) of Hamburg sentenced him to four years' penal servitude. The Applicant's detention on remand was taken into account. On .. June, 1965 the Federal Court of Justice quashed this decision on a procedural ground and the case was sent back for retrial to another Chamber of the same Court. It seems that no further action has taken place yet and that a new trial fixed in February 1966 was adjourned pending criminal investigations against certain judges who participated in the decision of January, 1965.   From his arrest in February, 1964 until his conviction in January, 1965, the Applicant did not request his release from detention on remand as he did not wish to delay the proceedings. Following the above-mentioned decision he has repeatedly requested his release and he also requested his release on bail. His petitions were, however, rejected by the Regional Court of Hamburg (on ... and ... 1965) and, on appeal by the Hanseatic Court of Appeal (Hanseatisches Oberlandesgericht) of Hamburg (on ... and ... 1965), on the grounds that according to his "trustworthy" confessions during the investigating proceedings (Ermittlungsverfahren) and his trial he was "urgently" suspected of having committed the offenses he was charged with and that, in view of the long term of imprisonment which he had to expect, he might flee the country (Fluchtgefahr) as indeed he had tried to do previously. The Court stated that for this last reason his detention could not be suspended under any conditions.   The Applicant claims that he should have been released as there was no reason for such a long detention pending trial. He states that there was no danger that he might flee the country since he wished to live with his parents in Hamburg. He alleges that it was not in order to escape his conviction that he left Hamburg in the beginning of September, 1963, and visited the Netherlands and subsequently until his arrest, lived and worked under a false name at Essen and Celle. At that time the warrant for arrest had not yet been issued and he states that later he never received a summons from the police. Before he left Hamburg he was heard by the police in regard to a different matter but although he returned there later when visiting his parents, he never knew that the police and searched for him. He further submits that the danger that he might flee the country must not be implied from what occurred before the warrant for arrest of .. December, 1963 was issued.   Furthermore, since the sentence of the Regional Court of Hamburg was quashed by the Federal Court of Justice, the Courts should no longer rely on this sentence when deciding on the further duration of his detention on remand. X claims that in similar previous cases the Court of Appeal of Hamburg as well as the Court of Appeal of Frankfort had released persons from detention on remand and that in his case the question whether or not his further detention pending trial was really necessary was not carefully examined.   He complains that, as a result of a false interpretation of the law, the Court of Appeal of Hamburg did not apply to him Articles 121 and 122 of the Code of Criminal Procedure according to which detention on remand can only be prolonged for a period exceeding six months provided that there is a careful examination of the circumstances of the case. (see decision of the Court of Appeal of ... 1965).   The Applicant further submits that his confession during the investigation proceedings was very different from that which he made during his trial under pressure from the Court. He accuses the authorities of extortion of evidence (Aussagenerpressung), improper pressure (Nötigung), and perversion of justice (Rechtsbeugung). He states that after his arrest he had refused to make submissions before the police but, after the Senior Public Prosecutor Dr. had told him that in this case it was likely that his detention on remand would not be taken into account at his final conviction, he has told the police the actual state of affairs as far as he could remember it after a recent road accident. At that occasion he has also explained to the police that he was forced, by extortion and compulsion, to commit some of these offenses. However, the Applicant alleges, in order to ensure his being put into preventive detention (Sicherungsverwahrung), the Office of the Public Prosecutor did not take any action against those who had extorted and put pressure on him. The President of the Court later forced him to give false evidence by threatening him with preventive detention. Thus he says, he confessed to offenses which he has not committed and, contrary to the truth, withdrew evidence which he had given before the police. He also alleges that the lawyer who was appointed ex officio did not defend him properly. The Applicant apparently complained both about this and the fact that certain documents had disappeared from his file. The Senior Public Prosecutor decided on ... 1965 to discontinue the investigation in this matter but, on appeal, the Attorney-General of Hamburg ordered the re-opening of the investigation, on ... 1965. This investigation, it seems, is still going on.   It also appears from the documents submitted that an application concerning the Applicant's trial was rejected by the Ministry of Justice (Landesjustizverwaltung) of Hamburg as being inadmissible (unzuständig).   A letter in which the Applicant wished to inform the German newspaper "Stern" about his case was not forwarded as the Regional Court of Hamburg decided on ... 1965, that it contained wrong or grossly distorting allegations.   The Applicant further complains that all his correspondence with his lawyer has been subject to censorship. His letter of ... 1965, to the Commission has been opened and according to a judicial decision (richterliche Verfügung), been copied. It appears from the text of this decision that it was only in order not to make "difficult" (erschweren) the Applicant's correspondence with the Commission, that this letter was not kept back (angehalten) by the authorities.   X states that his long detention on remand for more than two years was contrary to several Articles of the Criminal Procedure amending Act (Gesetz zur Änderung der Strafprozessordnung und des Gerichtsverfassungsgesetzes) of 19th December, 1964, and violated Article 5, paragraphs (3) and (4) of the Convention. He alleges also a violation of Article 3 of the Convention on the ground that one of the judges (Landgerichtsrat Dr.) who decided upon his conviction also participated in the decision of ... 1965 concerning his detention on remand. This, the Applicant alleges, constitutes an arbitrary act (Willkür).   As the Second Criminal Chamber of the Regional Court of Hamburg which decided on the question of his detention on remand is charged with his retrial, the Applicant further alleges a violation of Article 6, paragraph (2), of the Convention.   THE LAW   Whereas in so far as the Applicant's complaints are directed against the lawyer who was appointed ex officio for his defence, 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, paragraph (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 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 (Collection of Decisions 10, page 9); whereas an examination of the case as it has been submitted, does not disclose any grounds on which the alleged conduct of the lawyer who was appointed ex officio for the Applicant's defence 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 within the meaning of Article 27, paragraph (2) (Art. 27-2), of the Convention;   Whereas, in regard to the Applicant's complaints that the Public Prosecutor induced him to make submissions before the police and that the President of the Court later forced him to give false evidence and to confess to offenses which he had not committed, it is to be observed that the Convention, under the terms of Article 1 (Art. 1), guarantees only the rights and freedoms set forth in Section 1 of the Convention; and whereas, under Article 25, paragraph (1) (Art. 25-1), only the alleged violation of one of those rights and freedoms by a Contracting Party can be the subject of an individual application; whereas otherwise its examination is outside the competence of the Commission ratione materiae; whereas the Commission has noted that, in fact, the question of the institution of criminal proceedings against the judge and Public Prosecutor is still under examination; whereas in any event the right to have criminal proceedings instituted against a judge or public prosecutor is not as such included among the rights and freedoms guaranteed by the Convention;   Whereas it follows that this part of the Application is incompatible with the provisions of the Convention within the meaning of Article 27, paragraph (2) (Art. 27-2), of the Convention.   Whereas, in regard to the Applicant's complaints concerning his conviction and the proceedings before the Regional Court of Hamburg, 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 it appears that, on the Applicant's appeal, the Federal Court of Justice quashed this decision and sent the case back for retrial to another Chamber of the same Court where it is still pending; whereas, therefore the proceedings concerning the Applicant's conviction have not been terminated and the Applicant has therefore not yet exhausted the remedies available to him under German law;   Whereas, moreover, an examination made ex officio, does not disclose the existence of any special circumstances which might absolve the Applicant, according to the generally recognised rules of international law, from 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, paragraph (3) (Art. 26, 27-3) of the Convention has not been complied with by the Applicant;   Whereas, in regard to the Applicant's complaints that he should have been released from detention on remand as there was no reason for his being detained pending trial for such a long period, an examination of the case as it has been submitted in regard to the present stage of the proceedings before the domestic Courts does not disclose any appearance of a violation of the rights and freedoms set forth in the Convention and in particular in Article 5, paragraphs (3) and (4) (Art. 5-3, 5-4); whereas it follows that this part of the Application is, at the present stage of the proceedings, manifestly ill-founded within the meaning of Article 27, paragraph (2) (Art. 27-2) of the Convention;   Whereas, in regard to the remainder of the Application i.e. the Applicant's complaints in regard to his correspondence an to the composition of the Court which decided on his applications for release from detention on remand as well as on the criminal charges brought against him, an examination of the case as it has been submitted does not disclose any appearance of a violation of the Convention and in particular Articles 8, 10, 25, paragraph (1) in fine (Art. 8, 10, 25-1), 3 and 6, paragraph (2) (Art. 3, 6-2);   Whereas it follows that this part too is manifestly ill-founded (Article 27, paragraph (2) (Art. 27-2) of the Convention);   Now therefore the Commission declares this Application INADMISSIBLE.