CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 21 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 1929 and at present detained in prison at K.. In the proceedings before the Commission the applicant is represented by Mr. G., a lawyer practising in Munich, who acts under a power-of-attorney of 3 June 1969.   The application deals with the question whether or not the applicant, who had been convicted of homosexuality on several charges, has had a fair trial and whether or not the courts have given the applicant the opportunity to have all the witnesses on his behalf examined.   On .. November 1967 the Regional Court (Landgericht) of F. in Germany convicted the applicant of homosexuality with dependent persons and of seduction of minors to homosexuality (Unzucht mit Abhängigen mit Verführung männlicher Minderjähriger zur gleichgeschlechtlichen Unzucht). The applicant was given an overall sentence of 18 months' imprisonment. The Court found the applicant guilty of having had sexual relations with two boys, then aged 15 and 14 years respectively, who lived in the boarding school of which the applicant was the director.   The Court based its judgment mainly on the evidence given by the victims of the applicant. The Court was of the opinion that both boys were credible and that their statements were most likely true.   The applicant denied any guilt and alleged that one boy, O., acted in a feeling of vengeance against him, since other persons had turned the boy against him. He also stated that he knew that the boy had been a male prostitute for some time. As regards the other boy, T., the applicant maintained that he had been mentally unstable and that he had on several occasions expressed his intention to commit suicide; thus the applicant was of the opinion that T. was also not credible.   The Court rejected these allegations in its judgment. It stated that O. had not acted in revenge; this the Court concluded from the attitude of O. showed when he was first examined by the police. The Court further held that O.'s credibility was beyond doubt. It had heard in this respect the employer of O. who confirmed that O. was not a liar. Finally it was stated that O. had not had any homosexual experiences before.   With respect to the other witness T., the Court declared that this boy was also fully worthy of belief, since his statements made before the police and at the trial were in no way contradictory. The Court also heard several witnesses in respect of the credibility of T. and it was satisfied that this principal witness was also trustworthy. The Court finally concluded that, under the circumstances given, it was not necessary to ask for an expert opinion as to the credibility of the two principal witnesses.   The applicant appealed against this decision to the Federal Court (Bundesgerichtshof); the memorial stating the grounds for this appeal (Revisionsbegründung) was filed with the Federal Court on 22 May 1968. The applicant complained that the Regional Court failed to hear an expert and to ask for a psychological expert opinion as to the credibility of the two principal witnesses, despite the fact that it was almost obvious that both suffered from serious psychic injuries which were caused by the environment in which they were brought up. It was also maintained that the statements of both the witnesses had often been contradictory so that they were not really credible. The applicant also indicted that the school of which he had been the director was an institution for the education of boys who had difficulties in normal schools. With respect to O. it was maintained that he had been very uncertain of his statements when he was interrogated at the trial. Without searching questions of the presiding judge the witness certainly had not made the statements which incriminated the applicant. Moreover, there was a difference between his statements given to the police and those he gave at the trial. It was further indicated from a letter written by O. to his mother, that he had often been in the company of two men who had invited him for lunch and that he had homosexual relations with another boy who had already been convicted of homosexual offenses.   As regards the other witness, T., the applicant complained that this boy should also be examined by an expert in order to establish whether he was a witness worthy of belief.   The applicant also complains that important witnesses for his defence have not been heard by the Court. The applicant had requested the Court to hear Mr. V., who had been in the school of which the applicant was a director, together with the two principal witnesses, O. and T.. It was indicated that V. could state that he had never noticed that the applicant had any particular relations with the two boys and that due to the situation in the school and in the rooms where they lived, he would certainly have recognised such relations, if existing. The Court had refused to hear V. since O. and T. had already stated that they had such relations with the applicant.   The applicant complained that other witnesses for his defence had not been heard by the Court, in particular:   -   the mother of O. who could have given evidence as to the homosexual relations which O. had before he went to the school of the applicant;   -   A Catholic monk, who was the director of a school in Austria, who could have given evidence that O. had written to one of his pupils stating that he would like to go back to the school again, if possible;   -   two other persons who could have given evidence that the foster mother of T., who had been heard in the trial, was not credible.   By judgment of .. January 1969 the Federal Court dismissed the applicant's appeal. The Court held that it was not indispensable that the Regional Court need have asked for expert opinions on the credibility of the two victims, since the Court had enough experience dealing with similar cases. The Court further held in this respect that this was a question of the evaluation of the evidence and that this could not be the substance of any appeal before it. As regards the refusal of the Regional Court to hear V. as a witness for the applicant's defence, the Court stated that the Regional Court had based its decision on the assumption that V. had indeed never recognised any relations between the applicant and his victims. Consequently it was not necessary to hear this witness.   As regards the hearing of the mother of O. the Court held that it was not important to hear her, since she could only give vague information which would not have been valuable. The Court furthermore declared that the two other persons could not have helped the applicant's defence, since the credibility of the foster mother of T. did not play a role in the court proceedings.   The applicant now complains that his rights under Article 6 (3) (d) of the Convention were violated. He alleges that he was not given a fair trial and that he could not obtain the attendance and examination of witnesses of his behalf.   The applicant points out in this respect that it was indispensable for the Courts to hear experts on the credibility of the two principal witnesses. He indicates in this respect, that the Commission in previous cases has held already that the right to hear experts for the defence of the applicant was covered by Article 6 (3) (d).   The applicant furthermore complains that several other witnesses for his defence were not heard and that this violated the above provision of the Convention.   The applicant, finally, indicates that he has exhausted all the domestic remedies available under German law. He alleges that a constitutional appeal to the Federal Constitutional Court (Bundesverfassungsgericht) was not effective, since such appeals cannot be based on the European Convention on Human Rights, which has the rank of an ordinary law only and does not form part of the German Basic Law.   THE LAW   Whereas the applicant complains that he was denied a fair hearing since the German Courts refused to hear several witnesses on his behalf or to hear experts on the credibility of the principal witnesses called by the prosecution and consequently violated Article 6 (3)(d) (Art. 6-3-d) of the Convention; whereas the said Article provides that "Everyone charged with a criminal offense has the following minimum rights: ... (d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him"; whereas the Commission has also considered his complaint under Article 6, paragraph (1) (Art. 6-1), of the Convention which guarantees a "fair hearing" to everyone;   Whereas, however, the question first arises whether the applicant has exhausted the domestic remedies available to him under German law and thus 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 of 14 January 1969; whereas, however, he alleges in this respect that such appeal would not have been effective since constitutional appeals cannot be based on the European Convention on Human Rights, but only on the Basic Law (Grundgesetz) of the Federal Republic;   Whereas, in this respect, the Commission has observed that, according to Article 103 (1) of the said Basic Law, everyone has the right to a hearing "in accordance with the law" (Recht auf rechtliches Gehör);   Whereas, indeed, there is a controversy in German legal writing and practice as to whether a constitutional appeal concerning the hearing of witnesses and experts on an appellants behalf, as in the present case, might be considered under the said Article; whereas, however, the Commission finds that, even assuming that the applicant has exhausted the domestic remedies, his above-mentioned complaints are manifestly ill-founded; whereas the said Article 6 (3)(d) (Art. 6-3-d) does not give the accused person a right to call witnesses without restriction; whereas in this respect the Commission refers to its decisions on the admissibility of Applications No. 788/60 (Austria v. Italy), Yearbook, Vol. III, p. 370, and No. 1134/6?, Yearbook, Vol. IV, p. 382 and 3848/68 of 15 December 1969; whereas it is in principle within the discretionary power of the national courts of the Contracting states to establish whether the hearing of a witness for the defence is likely to be of assistance in discovering the truth and, if not, decide against calling such witness; whereas the Commission notes the reasons why the German Courts considered that the evidence of the witnesses requested by the applicant would have been irrelevant and finds that the Courts have not thereby acted inconsistently with the provisions of Article 6, paragraphs (1) and (3) (d) (Art. 6-1, 6-3-d),   Whereas it follows that the application must be rejected in accordance with Article 27, paragraph (2) (Art. 27-2), of the Convention;   Now therefore the Commission DECLARES THIS APPLICATION INADMISSIBLE