CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 14 juillet 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 presented by the applicant may be summarised as follows:   The applicant is a German citizen, born in Köln and at present detained in prison in B..   By decision of .. July 1968, the Regional Court (Landgericht) of B. convicted the applicant of joint murder and attempted joint robbery which was followed by the death of the victim (gemeinschaftlicher Mord und versuchter gemeinschaftlicher Raub mit Todesfolge). The applicant was given a life sentence. The Court found the applicant guilty of having killed on 24 May 1964 a money changer in his chalet near Cannes. Since the authors of this crime feared that the police had immediately discovered their crime they left immediately after the murder without having robbed their victim and crossed the border into Spain.   It appears that the applicant and one of his accomplices were convicted on .. December 1965 by the Grand Jury of the Département Alpes Maritimes at G., France, after proceedings in absentia; apparently the applicant, who then lived in Columbia, was sentenced to death. At the trial in B. the applicant stated that he had not killed the money-changer, but that he had only protected the actual murderer, namely his accomplice Z.. He also alleged that he had acted under the influence of alcohol and that he was consequently not responsible for what had happened. The applicant was legally represented in the proceedings at the Regional Court by Mr. Sch., a lawyer practising in B., who had been allotted to him as an ex officio counsel under the legal aid system.   The applicant subsequently lodged an appeal (Revision) to the Federal Court (Bundesgerichtshof) and it appears that he was still assisted by the above counsel. The applicant complains that the Regional Court had been biased against him and that too much importance had been given to the statements of his co-accused Z.. He also suggests that the President of the jury and the Public Prosecutor had incited the above Z. to give evidence against him. The applicant maintains in this respect that Z., who had already been given a 20 years' sentence before, had acted in a spirit of vengeance since his conviction had been the result of previous statements made by the applicant.   Immediately after his being convicted at first instance the applicant wrote twice to his counsel and asked him to visit him in prison in order to discuss the grounds of his appeal which, under German law, have to be given by the counsel. Apparently he got no reply, but the counsel paid him a five minutes visit in prison several months later. He promised the applicant that he would see him again as soon as the Federal Attorney General (Generalbundesanwalt) had filed his memorial on his appeal. The applicant, however, has never seen his counsel again and it appears that the latter also failed to reply in time to the Federal Attorney General's memorial.   By decision (Beschluss) of .. October 1968, the Federal Court dismissed the applicant's appeal as being manifestly ill-founded under Article 349 (2) of the German Code of Penal Procedure (Strafprozessordnung). The applicant subsequently complained to the Federal Court, stating that he has not been represented in the proceedings before that Court since his counsel had continuously neglected his duties. The President of the Senate which had decided the applicant's appeal replied on 20 February 1969.   He stated that the applicant's allegations were untrue since his counsel had acted for him in the proceedings before the Federal Court. He admitted, however, that the counsel's reply to the Federal Attorney General's memorial of 23 September 1968 was filed after the Court had taken its decision. The President further stated that no appeal laid (weder eine Beschwerde, noch eine erneute Revision) against the Court's decision of .. October 1969.   The applicant subsequently instituted proceedings in order to obtain a re-trial, but this was apparently not granted.   The applicant now complains:   -   that the Regional Court was biased against him; -   that he was not given adequate legal assistance throughout the    appeal proceedings; -   that he had no effective remedy against the negligence of his ex    officio counsel.   The applicant alleges violations of Articles 6 and 13 of the Convention.   THE LAW   Whereas the applicant complains that the German Courts were biased against him since they did not ensure that his ex officio counsel adequately represented him throughout the appeal proceedings;   Whereas, he alleges in this respect that his counsel had filed his reply to the Federal Attorney General's memorial after the Federal Court, on .. October 1969 had taken its decision; whereas the Commission finds that this procedure was most unsatisfactory having regard to the terms of Article 6 (3)(c) (Art. 6-3-c) of the Convention which provides that:   "Everyone charged with a criminal offense has the following minimum rights:   ... (c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require";   Whereas, however, the question arises whether the applicant has exhausted the domestic remedies available to him under German law and thereby complied with Article 26 (Art. 26) of the Convention which provides that the Commission may only deal with a matter after all domestic remedies have been exhausted according to the generally recognised rules of international law;   Whereas, the applicant did not avail himself of the possibility of appealing to the Federal Constitutional Court (Bundesverfassungsgericht) against the said decision of the Federal Court;   Whereas, according to Article 103 (1) of the Basic Law (Grundgesetz), everyone has the right to a hearing "in accordance with the law" (Recht auf rechtliches Gehör);   Whereas the Commission is satisfied that the present complaint of the applicant might have been considered by the Federal Constitutional Court under the above Article of the Basic Law;   Whereas, therefore, he has 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, 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 (3) (Art. 26, 27-3), of the Convention has not been complied with by the applicant;   Now therefore the Commission DECLARES THIS APPLICATION INADMISSIBLE