CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 22 mai 1969

.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   A. Whereas the facts presented by the Parties and apparently not in dispute between them may be summarised as follows:   The applicant is a German citizen, born in 1925 and at present detained in prison in Berlin-Tegel.   On .. December, 1962, the applicant was convicted of dangerous wounding by the Regional Court (Landgericht) in Berlin. He was found guilty of having thrown nitric acid in the face of his mistress, who had left him against his will, causing her to lose the sight of one eye.   In his defence before the trial court he applicant stated that, as the result of the state of sexual subjugation in which he stood in relation to his mistress and his despair at being abandoned by her, he had neglected to eat and had consumed a large quantity of alcohol.In his opinion the combined effect of these factors was that he committed the act in a state of diminished responsibility.   The Regional Court obtained the opinion of three expert witnesses on the question of the applicant's criminal responsibility, and on the basis of that opinion, it found these allegations to have been refuted and sentenced the applicant to six years' penal servitude. He did not appeal from the decision.   Subsequently, three civil actions were successively brought against the applicant to obtain damages for the injuries inflicted on the victim. The first of these actions was brought by the victim herself and the two others by the insurance company which had payed the victim's medical expenses and had thereby acquired under the applicable law, her claims against the applicant in these respects.   The details of the proceedings, which form the subject matter of the present application, are as follows:   1. On .. February, 1964, the victim, represented by legal counsel filed an action against the applicant in the Berlin Regional Court claiming compensation in the amount of DM 25,000, - including damages for pain and suffering (Schmerzensgeld). The applicant was informed on .. March, 1964 that the hearing of the case had been fixed for .. April, 1964 and that, under the applicable law, it was necessary that he should be represented by Counsel.   At the hearing of .. April, 1964, Mr. G. of the law firm Z. appeared for the applicant. He submitted an answer in writing and also applied for free legal aid (Armenrecht). At the same time, both parties applied for an adjournment of the case and the Court fixed a new hearing for .. June, 1964. Since, on that date, nobody appeared on the applicant's behalf, a new hearing was fixed for .. July, 1964 at the request of the victim's Counsel.   On .. July, 1964 the Regional Court in Berlin refused the application for legal aid after having heard arguments on both sides. The Court found that the applicant's defence did not offer any reasonable prospects of success. The applicant relied on his state of mind at the time the act had been committed and alleged that, owing to his intoxication, his responsibility had been diminished to the extent that his liability was excluded within the meaning of Article 827 of the Civil Code. However, the Court pointed out that, even assuming that his allegations were true, the applicant would still be liable for having acted with negligence.   On .. September, 1964, Mr. W., a lawyer practising in Berlin, filed on behalf of the applicant an appeal (Beschwerde) against the above decision but this appeal was refused by the Court of Appeal (Kammergericht) in Berlin on .. December 1964.   The Court of Appeal evaluated as well the medical opinion submitted by the three experts during the criminal proceedings against the applicant and came to the conclusion that, in the circumstances, the applicant's defence did not offer any reasonable prospects of success.   Subsequently,   Mr. W. again made an application for free legal aid and, on .. March, 1965, the Berlin Regional Court heard the case, both parties being represented by legal Counsel. On that date it granted legal aid to the applicant but only as regards that part of the claim which exceeded DM 15,808.-, and refused the application as to the remainder. By another decision, taken on the same day, the Regional Court allowed the plaintiff's claim for damages in the amount of DM 15,808,- and dismissed the remainder of her claim. The Court found the applicant to have been fully responsible for his actions but considered that the plaintiff had suffered damages only in the above amount. In reaching that decision the Court considered in extenso the expert opinion submitted during the criminal proceedings and adopted all these conclusions. In this connection the Court also dealt with a new defence made by the applicant to the effect that, for two weeks before the crime, he had not taken any proper food. The Court found that this was unlikely and was contrary to the applicant's own statements during the criminal proceedings.   On .. July, 1965, Mr. W. made an appeal to the Berlin Court of Appeal against that part of the decision which found for the plaintiff. At the same time he made an application for free legal aid for the appeal proceedings. This application was refused by the Court of Appeal on .. March, 1966 on the ground that the proceedings proposed did not offer any reasonable prospects of success. The Court found that, insofar as the applicant raised again the question of his responsibility under Article 827 of the Civil Code, this point had already been considered on previous occasions and rejected; the applicant had also not submitted any new considerations. Furthermore, the amount of damages awarded to the plaintiff by the Regional Court was justified.   After the applicant had refused to withdraw his appeal, the Court of Appeal, on .. March 1966, fixed an oral hearing for .. October, 1966. By letters of .. and .. May, 1966, Mr. W. and the applicant himself respectively informed the Court that the former no longer represented the applicant. Since at the hearing of .. October, 1966 nobody appeared on behalf of the applicant the Court of Appeal, on that day, dismissed the appeal by giving judgment be default (Versäumnisurteil).   2. In the meanwhile, on .. November, 1964, the Y. Krankenkasse with whom the victim had been insured instituted proceedings against the applicant to recover certain funds which had been paid on account of the injuries suffered by the victim. The case came before the Berlin Regional Court which fixed an oral hearing from .. June 1965. On .. May, 1965 Mr. W., who had previously informed the Court that he was representing the applicant, made an application for free legal aid and requested that the proceedings should be adjourned sine die.   At the hearing of .. June, 1965, Mr. W. appeared on behalf of the applicant. The Regional Court refused his application for free legal aid on the ground that, since the applicant had failed to submit an answer to the claim against him, his defence did not offer any prospects of success. The Court also rejected his request for an adjournment of the proceedings and fixed a new hearing from .. November, 1965.   The applicant, through his lawyer, then appealed to the Berlin Court of Appeal against the above decision of the Regional Court. This appeal was rejected on .. October, 1965. The Court dealt again with the expert opinion on the issue of the applicant's responsibility and found that his allegations to the effect that he had not been responsible were unfounded. Consequently, his defence did not offer any reasonable prospects of success. The Court also confirmed the Regional Court's decision that the applicant was not entitled to an adjournment of the proceedings against him.   Since at the hearing of .. November, 1965, the applicant was not represented by Counsel, the Regional Court passed judgment by default against him. Subsequently, on .. December, 1965, Mr. W., acting on behalf of the applicant lodged with the Berlin Regional Court an objection (Einspruch) against its default judgment. The Court heard the case on .. January, 1966 in the presence of Counsel for both parties and decided that its judgment should be upheld. It held that the applicant's allegations as to the absence of any liability owing to his diminished responsibility within the meaning of Article 827 of the Civil Code were unfounded.   On .. March, 1966, Mr. W. filed an appeal (Berufung) in the Berlin Court of Appeal against this decision. At the same time he made an application for legal aid in respect of the appeal proceedings and subsequently requested that the period for submitting the grounds of appeal should be extended.   On .. April, 1966, the applicant himself submitted written pleadings to the Court of Appeal. After the Court had informed him that no decision as to his application for legal aid would be taken before his Counsel had submitted the grounds of appeal, the applicant informed the Court by letter of .. May, 1966 that he had withdrawn Mr. W.'s power-of-attorney. Mr. W. confirmed on .. May, 1966 that he was no longer representing the applicant.   On .. June, 1966 the Court of Appeal refused free legal aid for the appeal proceedings referring to the grounds previously stated. This decision was served on both the applicant and his lawyer since the Court considered that, under Article 87, paragraph (1), of the Code of Civil Procedure, Mr. W. continued to represent the applicant during these proceedings.   Subsequently, on .. July, 1966 the Court of Appeal declared inadmissible the applicant's appeal against the Regional Court's decision of .. January, 1966 on the ground that the grounds of appeal had not been submitted within the time-limit prescribed.   3. In July 1966, the Y. Krankenkasse instituted further proceedings against the applicant claiming the recovery of further expenses which had been incurred as a result of the injuries suffered by the victim.   The case came again before the Regional Court of Berlin which fixed a hearing for .. January, 1967 and informed the applicant that it was necessary for him to be represented by legal counsel. Subsequently the Regional Court refused a request made by the applicant for an adjournment of the proceedings and reminded him that he must be represented by a lawyer otherwise judgment might be given against him by default.   On .. January 1967, the Regional Court of Berlin gave judgment against the applicant by default. In letters dated .. and .. February, 1967 and addressed to the Berlin Court of Appeal, the applicant declared that he appealed against the above judgment. He also applied for legal aid during the appeal proceedings. These letters were transmitted to the Regional Court and the applicant was informed that the only remedy available to him at present was an objection (Einspruch) addressed to the Regional Court, that Court being the competent court to rule on his application for free legal aid.   On .. April, 1967, the Regional Court rejected the application for free legal aid on the ground that the applicant had failed to file his objection through Counsel within the time-limit prescribed and that, moreover, the applicant's defence failed to offer any reasonable prospects of success. In this respect the Court referred to its decisions in the first insurer's action and indicated that the applicant had not presented any new points of fact or of law.   The Court then fixed .. April, 1967 for a hearing on the objection against the judgment by default, whereupon the applicant applied for an adjournment and at the same time challenged the judges on grounds of bias. On .. April, 1967, the Regional Court of Berlin rejected the applicant's challenge of the judges and, on .. April, 1967, the objection was refused by a second default judgment.   By letter of .. May, 1967, to the Berlin Regional Court, the applicant stated that he appealed (Berufung) against the above judgment. The matter was transmitted to the Berlin Court of Appeal which treated it as being an application for free legal aid as regards the appeal proceedings. On .. July, 1967, the Court of Appeal refused the application holding that the proceedings proposed did not offer any prospects of success. The Court pointed out that a second judgment by default was only subject to appeal with regard to the question as to whether or not there had been, in fact, any default by reason of the applicant's non-appearance. However, no arguments had been presented to suggest any such situation.   B. Whereas the proceedings before the Commission may be summarised as follows:   In his application of 19th May, 1966, which was entered in the special register of the Commission's Secretariat on 1st August,1966, the applicant made various complaints concerning his conviction and sentence, the stopping by the prison authorities of certain letters which he had written while being detained in prison, the conduct of his lawyers, the failure on the part of the prosecuting authorities to prosecute officials and private individuals, and his application for a retrial. By a partial decision of 16th December, 1967 the Commission rejected these complaints, partly as having been made out of time or for failure to exhaust the domestic remedies (Articles 26 and 27, paragraph (3), of the Convention) and partly as being incompatible with the provisions of the Convention or manifestly ill-founded (Article 27, paragraph (2), of the Convention).   However, the Commission communicated, under Rule 45, paragraph (b), of its Rules of Procedure, to the Government of the Federal Republic of Germany certain other complaints which the applicant had made under Article 6, paragraph (1), of the Convention and which related to the conduct of the civil proceedings brought against him. The Government was invited to submit its observations in reply in writing on the admissibility of these complaints. These observations were received by the Commission on 21st March, 1968 and the applicant submitted his observations in reply on 28th November, 1968. Previously, on 16th July, 1968, the Commission had decided that the applicant should have free legal aid, in accordance with the Addendum to the Commission's Rules of Procedure, for the purpose of presenting him above observations in reply.   C. Whereas the arguments of the parties may be summarised as follows:   The respondent Government first explains the purpose of the provisions of Article 78 of the Code of Civil Procedure which requires parties in civil proceedings to be represented by Counsel before the regional courts and all courts of higher jurisdiction. It points out in detail that such provision is necessary in the interests of the parties themselves and to facilitate the work of the courts. Furthermore, similar provisions exist in Belgium, Holland and Austria.   Legal aid is granted to poor persons for the prosecution or defence of civil proceedings provided that the proceedings in question offer a sufficient prospect of success. Provided therefore that this condition is fulfilled, a poor person is not in a less favourable position than a party who can afford to pay for legal representation.   The effect of a decision granting legal aid is that the party concerned is temporarily exempted from paying the costs and expenses incurred by him during the proceedings. Where such party is required to be represented by Counsel in accordance with Article 78 of the Code of Civil Procedure, the court concerned assigns a lawyer to give free legal advice and assistance during the proceedings and to appeal on behalf of the party. When selecting a lawyer for this purpose the court, as far as possible, takes into account the party's wishes.   The proceedings on an application for legal aid are started in the court in which the main proceedings are pending. The applicant must state in writing or orally before the court's registrar the subject of the litigation concerned and the relevant evidence. The court, in examining whether the conditions set out in Article 114 of the Code of Civil Procedure are satisfied, may make inquiries, request the submission of documentary evidence or hear witnesses and experts. It should, in principle, also hear the opposite party.   The applicant is entitled to appeal (Beschwerde) against a decision refusing free legal aid (Article 27 of the Code of Civil Procedure) but no further appeal lies against the decisions of the appeal court.   In the applicant's case the respondent Government submits that he had not been prejudiced by the refusal of free legal aid. He had in fact been represented by Counsel in the proceedings at first instance in the first two civil proceedings brought against him. With regard to the appeal proceedings he was deemed to have been represented by Counsel by virtue of Article 27, paragraph (1), of the Code of Civil Procedure.   In the third civil proceedings the applicant was not represented by Counsel but his case was fully examined in the proceedings relating to his application for the grant of free legal aid.   Apart from this, these third proceedings related only to an increase in the amount of damages claimed in the second civil action. The two actions were based on the same grounds.   The applicant did not deny that he had caused the injury suffered by the plaintiff but denied his responsibility for this act on account of his state of mind at the time.   In this connection the court was mainly concerned with the question whether or not Article 827 of the Civil Code was applicable in the applicant's cases. That provision states:   "Any person who causes damage to another while being unconscious or while, owing to disease, his mental powers are disturbed to the extent of excluding the free determination of his will, is not responsible for any such damage. If he has put himself into a temporary state of this kind by reason of alcoholic beverages or similar means, he is responsible in the same manner as if he had acted negligently for any damage which he unlawfully causes while being in such state; such responsibility does not arise where such state has come about without his fault."   (Wer im Zustande der Bewusstlosigkeit oder in einem die freie Willensbildung ausschliessenden Zustande krankhafter Störung der Geistestätigkeit einem anderen Schaden zufügt, ist für den Schaden nicht verantwortlich. Hat er sich durch geistige Getränke oder ähnliche Mittel in einen vorübergehenden Zustand dieser Art versetzt, so ist er für einen Schaden, den er in diesem Zustande widerrechtlich verursacht, in gleicher Weise verantwortlich, wie wenn ihm Fahrlässigkeit zur Last fiele; die Verantwortlichkeit tritt nicht ein, wenn er ohne Verschulden in den Zustand geraten ist.)   The above provisions relating to a person's responsibility for his actions were materially similar in civil and criminal law but the practical consequences of the two provisions differed greatly by reason of the different rules of procedure applicable in civil and criminal proceedings. In criminal proceedings the court is under a duty to examine ex officio the facts relating to responsibility whereas, in civil proceedings, the burden of proving the absence of responsibility lies on the person who has caused the injury, that is to say, in the present case, on the applicant. It was not sufficient merely to raise doubts as to his responsibility.   The experts in the criminal proceedings had already expressed the opinion that the circumstances alleged by the applicant, i.e. his state of sexual subjugation, prolonged starvation and the consumption of a large amount of alcohol did not have the effect of excluding his responsibility.   These expert opinions had properly been relied on both in the proceedings relating to the application for the grant of free legal aid and the civil proceedings themselves.   The applicant's only objection to these opinions was that he did not consider them to be correct but he had not submitted any new facts which had not been taken into account by the experts. He had not made any submissions of a nature to raise doubts as to the correctness of the expert opinions. The civil courts, in the exercise of their power of appreciation of the evidence, had examined the expert opinions given in the criminal proceedings and considered that they provided a sufficient basis for their decisions. In these circumstances it could not be alleged that the fact that the applicant was refused legal aid amounted to a violation of his right to a fair hearing under Article 6, paragraph 1, of the Convention.   The respondent Government therefore submits that the Commission should reject this part of the application as being manifestly ill-founded.   The applicant first refers to the Commission's decision on the admissibility of Application No. 2804/66, Struppat against the Federal Republic of Germany (Collection of Decisions, Vol. 27, p. 61) by which the Commission declared inadmissible similar complaints under Article 6 of the Convention on the ground that they were manifestly ill-founded. He submits that his case is substantially different on the facts. He explains that Struppat defended the civil proceedings by claiming that he was not the person who caused the physical injury concerned. The applicant, on the other, had consistently challenged the expert opinion as to his responsibility. All judgments and decisions of the civil courts had been based on the opinion of the medical expert concerning the applicant's criminal responsibility at the time of the crime and this opinion had at no time later been checked by a second expert.   The applicant points out that, at the time of the crime, the alcohol concentration in his blood amounted to 2.6%, that for two weeks before the crime he had not taken any proper food and that he had been, in any case, in an abnormal psychological state owing to the serious conflicts brought about by the separation from his mistress. These three factors had a particularly profound effect on his capacity to appreciate and control his acts and they were of a nature to justify, in the experience of the courts, the assumption of the existence of a state of irresponsibility. It was common knowledge that a blood alcohol concentration of 2% to 3% could produce complete drunkenness or even lead to the danger of fatal alcohol poisoning, that in a state of physical exhaustion, such as that following a long period of starvation, the capacity to tolerate alcohol is considerably reduced, and that alcohol may limit the ability to appreciate one's acts, even more so where the person concerned has been subjected to severe emotional stress.   On the other hand, it was also commonly known that, when it comes to assessing states of mind and of consciousness, expert opinions were often influenced by errors and limitations and distortions of know edge. Moreover, the expert witness might differ in his expert opinion from the results which are to be expected from a consideration, in the light of common experience, of the concrete circumstances of the case, as they have been established. In such circumstances it would appear that, even accepting the principle of the appreciation of evidence by the judges, it was not reasonable to base a final decision upon the opinion of an expert witness who gave his opinion in proceedings which were not presided over by the Court in question. Reference to an expert opinion given in earlier proceedings could not be considered sufficient of the simple reason that the Court deciding the later issue had no possibility of putting questions to that expert witness in order to judge the weight and persuasiveness of his opinion.   In order to comply with the provisions of Article 6, paragraph (1), of the Convention, the civil courts should have given the applicant an opportunity of applying for evidence to be taken with a view to bringing about a re-assessment of the expert opinion. This would only have been possible for the applicant if he had been represented by a lawyer in the proceedings before the civil courts.   THE LAW   Whereas the only question that remains to be decided by the Commission is whether or not the Convention, and particularly Article 6, paragraph (1) (Art. 6-1), has been violated by reason of the applicant being unable to defend himself in the civil proceedings concerned as a result of the refusal to grant him free legal aid.   Whereas Article 6, paragraph (1) (Art. 6-1), of the Convention provides that, in the determination of his civil rights and obligations, everyone is entitled to a fair and public hearing by a tribunal established by law;   Whereas the applicant submits that he had in effect been prevented from defending himself in the civil proceedings taken against him both by the victim of his attack and by her insurers, since, under the relevant law, he could only conduct his defence trough a lawyer;   Whereas he further submits that the courts refused him free legal assistance for this purpose; whereas, in particular, he submits that he had consequently been unable to put before the courts the issue of his responsibility; that this had been established during the criminal proceedings against him and that he wished to challenge that decision during the above civil proceedings;   Whereas the Government submits that the applicant had, in fact, been represented by legal Counsel in the proceedings at first instance in the two first civil proceedings brought against him although he was not represented in the third civil proceedings; that, however, his case, including the question of his responsibility, had been fully examined in the proceedings relating to his application for the grant of free legal aid;   Whereas the Commission has previously held that, while the right to free legal aid in civil cases, as opposed to criminal cases, was not a such included among the rights and freedoms guaranteed by the Convention, it nevertheless considered, when dealing with complaints concerning the refusal of free legal aid in civil proceedings, the general provisions of Article 6, paragraph (1) (Art. 6-1), of the Convention;   Whereas its object, in doing this, was to determine whether such a refusal constituted, in the particular circumstances of the case, a violation of the right of the person concerned to be granted a fair hearing; whereas the right to a fair hearing within the meaning of Article 6, paragraph (1) (Art. 6-1), of the Convention is held to mean that anyone, who is a party to either civil or criminal proceedings, should have a reasonable opportunity of presenting his case to the court under conditions which do not place him at a substantial disadvantage vis-à-vis his opponent. (See Decision on the admissibility of Application No. 2804/66, Struppat against the Federal Republic of Germany, Collection of Decisions, Vol. 27, pages 61, 73);   Whereas in this respect, the Commission has also decided that it must consider whether the specific circumstances of the proceedings against an applicant amounted to a denial of his right to a fair hearing within the meaning of Article 6, paragraph (1) (Art. 6-1), of the Convention;   Whereas, any such decision could not properly be determined on an isolated consideration of those civil proceedings which led to the judgment by default but regard must be had to all the relevant proceedings;   Whereas the Commission finds that, in the present case, the relevant proceedings comprise the criminal proceedings in which he had been convicted and sentenced, the civil proceedings and the proceedings instituted by him to obtain free legal aid;   Whereas the Commission first observes that the applicant had been heard, either himself or through his Counsel, at first instance in the criminal proceedings and in two of the three civil proceedings; that, admittedly, the applicant was not represented in the proceedings at first instance concerning the third civil action against him or at the hearing of his appeal against the judgment concerning the first civil action; that, however, his written submissions which he made in support of his petitions for free legal aid in the three civil proceedings and which set out his entire case in defence were considered both by the Regional Court and the Court of Appeal in the legal aid proceedings;   Whereas the Commission next observes that the particular question of his diminished responsibility was the subject of the evidence of the three expert witnesses during the criminal proceedings against him; whereas, in their detailed opinions, these experts came to the conclusions that the applicant had been responsible for his acts;   Whereas, during the proceedings concerning the first civil action, the applicant's Counsel made an application to the Berlin Regional Court to obtain a further expert opinion for the purpose of deterring his responsibility; whereas this application was refused after the Court considered, in extenso, the experts' conclusions; whereas, in that connection, the Regional Court also dealt with the applicant's only new ground of defence, namely that, for two weeks before the crime, he had not taken any proper food; whereas the Court found that this was unlikely and contrary to the applicant's own statement during the criminal proceedings;   Whereas, for these reasons, the Commission finds that, having regard to the proceedings as a whole, the applicant was not only represented by Counsel in certain of these proceedings, but that all the grounds of his defence in the civil proceedings, including that, in particular, of diminished responsibility, were considered by the Courts before giving their judgments by default against him; whereas, therefore, it does not appear that he was placed at such disadvantage vis-à-vis the plaintiffs as to have been prejudiced in the effective exercise of his defence; whereas, accordingly, the applicant's right to a fair hearing by an independent and impartial tribunal in the determination of his civil obligation to indemnify the victim of his assault was not violated in the proceedings concerned;   Whereas, consequently, the Commission finds that an examination of the applicant's complaints does not disclose the appearance of a violation of the Convention and, in particular of Article 6, paragraph (1) (Art. 6-1), of the Convention; whereas it follows that the remainder of 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 declares this application inadmissible.