CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 5 février 1970

.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 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.