CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 19 juillet 1971

.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   The facts of the case as submitted by the applicant may be summarised as follows:   The applicant is a German citizen, born in 1902 and resident in St. Jean-Cap Ferrat.   He has lodged with the Commission a previous application (No. 2257/64) (1) which related to certain criminal proceedings against him before the Regional Courts at Munich and Augsburg. --------------------- (1) See Report of the Commission of 3 February 1970 and the resolution of the Committee of Ministers (D.H. (71) 1) adopted on 19 February 1971.     The substance of the applicant's complaints in that application concerned the length of these criminal proceedings, the fact that they were in the end discontinued in accordance with Article 153 (3) of the Government Code of Criminal Procedure on the ground that his guilt was insignificant and consequences of his action unimportant as well as various other allegations regarding the conduct of his case by the German courts.   By partial decision of 7 October 1966 the Commission rejected as being incompatible with the Convention and manifestly ill-founded (Article 27, paragraph (2), of the Convention) the applicant's complaints relating to the conduct of his case before the German courts but invited the parties to submit written and oral observations on the questions of the dismissal of his case under Article 153 (3) of the Code of Criminal Procedure and the length of the proceedings. ----------------------------------------------------------------------- On 5 April 1968 the Commission took a final decision on the admissibility of these complaints. It rejected for non-exhaustion of domestic remedies (Article 27 (3) of the Convention) the applicant's complaint relating to the termination of the proceedings under the above provision of the Code of Criminal Procedure finding that the applicant had failed to put this question before the Federal Constitutional Court (Bundesverfassungsgericht) invoking Article 013 (1) of the Basic Law by means of a constitutional appeal (Verfassungsbeschwerde).   On the other hand, the Commission declared admissible the applicant's complaint under Article 6 (1) of the Convention relating to the length of the criminal proceedings against him. On 3 February 1970 the Commission adopted its report on this point and on 19 February 1970 the Committee of Ministers decided, in accordance with the opinion expressed by the Commission, that there had been no violation of the applicant's right under Article 6 (1) of the Convention to a hearing of his case within a reasonable time.   It appears that, in his present application, the applicant wishes to complain of the length of two further criminal proceedings against him one of which has equally been terminated under Article 153 (3) of the Code of Criminal Procedure. The first of these proceedings was allegedly instituted against him in 1960 before the District Court (Schöffengericht) of Hanover as a result of an information laid in 1957 to the effect that the applicant had made false accusations (falsche Anschuldigungen) against a Mr. B. It appears that the applicant had accused Mr. B. of having falsely assumed the military rank of "Major".   Certain aspects of these proceedings have been the subject of a further previous application (No. 2588/65) by the applicant which he had lodged with the Commission in August 1965. In that case the applicant had complained to the Commission that the above prosecution against him was based on trifles and pure misunderstandings, that the Hanover District Judge was biased, and that a medical examination which had been ordered to ensure his presence in court at Hanover endangered his life owing to his generally bad health and allergic reactions to injections. As the applicant had informed the Commission on 20 November 1967 that he wished to withdraw this application, the Commission had decided on 1 April 1968 to strike it off its list of cases.   From the statements now submitted in regard to his present application it appears that, after the above criminal proceedings had been started against him in 1960 before the District Court of Hanover, three witnesses were heard by rogatory commissions in Munich and Tettnang.   The applicant states that, since these witnesses had given evidence on his behalf, the proceedings were afterwards adjourned, in accordance with Article 205 of the Code of Criminal Procedure, and no further action was taken with regard to the charges against him until 1969 when the proceedings were continued upon the request of the Federal Ministry of Justice. According to the applicant, this was a reprisal against his having lodged with the European Commission of Human Rights his above application No. 2257/64. It appears, however, that the District Court of Hanover decided in 22 April 1970 that the proceedings should be terminated in accordance with Article 153 (3) of the Code of Criminal Procedure on the ground that the applicant's guilt was insignificant and the consequences of his action unimportant. The Court apparently also noted that the applicant's counsel had been heard with regard to the termination.   The applicant then lodged a constitutional appeal against this decision which was declared inadmissible by three judges of the Federal Constitutional Court on 11 November 1970. The Court found that, as the proceedings were terminated, the applicant was no longer a victim of any violation of constitutional rights, and the provisions of the Basic Law, including Article 103 (1), did not guarantee any right of appeal to the accused person nor did they impose the obligation on the courts to continue with the proceedings and obtain further evidence leading to a possible acquittal. The Court continued that it did not need to examine the question whether or not Article 153 (3) had been correctly applied in a particular case unless any violation of constitutionally guaranteed rights became apparent. This was not so in the present case and, in particular, Article 103 (1) of the Basic Law did not require that the applicant should have given his consent to the termination of the proceedings against him. It was sufficient that the applicant had an opportunity of being heard and this had been accomplished by reason of the fact that the intention to terminate had been communicated in advance to the applicant's lawyer in Hanover who had an opportunity of making submissions in this respect.   As regards the second proceedings against the applicant it appears that he was charged in 1967 with an offence of tax evasion (Steuerhinterziehung) committed in 1953. The applicant states that subsequently a court order (Strafbefehl) was issued against him by the District Court in Munich requiring him to pay a fine of 3,000 DM. The applicant, who considered that he had not committed any offence in this respect, made an objection (Einspruch) against the above order as a result of which criminal proceedings were initiated against him before the Munich District Court and the Court fixed a three-day hearing for .. to .. July 1969.   It appears that the applicant made an unsuccessful appeal (Beschwerde) to the Regional Court (Landgericht) in Munich against the decision fixing a date for trial. He then lodged with the Federal Constitutional Court a constitutional appeal against these decisions. On .. November 1970 three judges of the Federal Constitutional Court decided that the appeal was inadmissible on the ground that the decision fixing the date for trial was an interlocutory decision (Zwischenentscheidung) which could not be challenged by means of an appeal to the Constitutional Court. Furthermore, insofar as the appeal was directed against his being prosecuted for a criminal offense, remedies had not yet been exhausted.   Complaints   With regard to the Hanover proceedings against him for charges of making false accusations, the applicant now complains to the Commission that these proceedings were wrongfully discontinued under Article 153 (3) of the Code of Criminal Procedure after a period of thirteen years. He explains that the charge concerned was unjustified from the very beginning and makes various submissions to the effect that he was in a position to prove that his remarks about Mr. B. were true. In this connection he also makes again extensive submissions concerning the proceedings which were the subject matter of his previous application, No. 2257/64.   The applicant further alleges that the Hanover proceedings against him were initiated in 1958 only because it would have helped the prosecution's case in the Munich defamation proceedings if he had a previous conviction, and they were continued in 1969 only because the Federal Government repeatedly referred to that case during the proceedings before the Commission concerning application No. 2257/64.   The applicant complains that the Hanover proceedings should not have been terminated under Article 153 (3) of the Code of Criminal Procedure, i.e. on the ground that his guilt was insignificant and the consequences of his action unimportant. He states that he had given strict instructions to his lawyer in Hanover not to give his consent to this termination but the lawyer had failed to abide by his instructions and thereby violated his duties as a legal aid lawyer. This, according to the applicant, constituted a violation of Article 6 (3) (c) of the Convention and he requests the Commission generally to examine the question of the duties of a lawyer who has been appointed under national legal aid legislation.   On the other hand according to the applicant it would have been proper procedure to discontinue these proceedings either because criminal prosecution on the charges concerned was barred by the period of limitation or because any further action by the court after a period of thirteen years was inconsistent with his right to a hearing within a reasonable time as guaranteed by Article 6 (1) of the Convention.   Withe regard to the tax proceedings before the District Court in Munich the applicant complains again that these have been initiated seventeen years after the offence was alleged to have been committed. Moreover, the trial of this charge had deliberately been fixed for .. to .. July 1969 being exactly the dates for which the European Commission had ordered an oral hearing in Strasbourg on the merits of his application No. 2257/64. The applicant states that this attempt on the part of the authorities to prevent him from defending his case before the Commission failed, however, as the Munich hearing had to be adjourned owing to a mistake in the summonses.   The applicant alleges violations of Article 6 of the Convention. He contends that the criminal proceedings against him were the result of his anti-Nazi opinions and the fact that he was the bearer of secret information which he had obtained during the war as a former member of the German Intelligence Service. He further contends that as a consequence of the length of these proceedings his health and financial position had been completely ruined.   THE LAW   1. The Commission first considered the applicant's complaints relating to the criminal proceedings against him before the District Court of Hanover on charges of making false accusations. In this respect the applicant has alleged that the proceedings started in 1957 and were discontinued on .. April 1970 in accordance with Article 153 (3) of the German Code of Criminal Procedure on the ground that the applicant's guilt was insignificant and the consequences of his action unimportant. He has complained under Article 6 (Art. 6) of the Convention of the length of these proceedings and of their termination on the above grounds.   Article 6 (1) (Art. 6-1) of the Convention provides, inter alia, that in "the determination of .... any criminal charge against him, everyone is entitled to a fair .... hearing within a reasonable time by an independent and impartial tribunal established by law". Furthermore, Article 153 of the German Code of Criminal Procedure provides:   "(1) Petty offenses are not prosecuted if the guilt of the doer is minor, unless there is a public interest in obtaining a judicial decision.   (2)   If in a case of a minor crime the guilt of the doer is insignificant and if the public interest does not require enforcement, the prosecution may terminate the proceedings, with consent of the Court competent for the decision on opening the main proceedings.   (3)   If the public charge has already been preferred, the Court may at any stage of the proceedings terminate them, with the consent of the prosecution and after hearing the person charged; the order is not subject to appeal."   With regard to the applicant's first complaint in this connection, the Commission refers to its constant jurisprudence that, in regard to any judicial decisions complained of, it is not competent to deal with an application alleging that errors of law or fact have been committed by domestic courts, except where it considers that such errors might have involved a possible violation of any of the rights and freedoms set forth in the Convention (see e.g. decision on the admissibility of applications No. 458/59, Yearbook, Vol. 3, pp. 222, 232 and No. 1140/61, Collection of Decisions, Vol. 8, pp. 57, 62). Consequently, with regard to the applicant's above complaint, the Commission is only called upon to examine the question whether or not the termination of criminal proceedings, in accordance with paragraph (3) of Article 153 of the Code of Criminal Procedure, is consistent, both in principle and in the particular circumstances of the present case, with the applicant's right to have criminal charges against him determined by a tribunal after a fair hearing of his case, as is guaranteed by Article 6 (1) (Art. 6-1) of the Convention.   Under German law the court has the power to terminate proceedings in accordance with Article 153 (3) where it finds that the accused person's guilt is insignificant and the consequences of his actions are unimportant. The prosecution must give consent but it is not necessary that the applicant should also agree; he must simply be heard prior to the termination and he has the possibility, in this connection, to show that the offense is not punishable, or that it may not be prosecuted for other reasons, or that there is no guilt on his part and that proceedings should therefore be closed in another way.   It is true that a decision under Article 153 (3) of the German Code implies some findings of guilt on the part of the person charged with a criminal offense. However, contrary to the procedure under paragraph (2) of that provision where the prosecution authority makes such a decision, the decision under paragraph (3) is given by a court after hearing the accused person. Moreover, the Commission finds that the notion of "determination of a criminal charge" must, in principle, be understood to give a court the power to terminate proceedings, for example, where it has no interest in their continuation. It follows that Article 153 (3) of the German Code of Criminal Procedure is not, from this point of view, inconsistent with Article 6 (1) (Art. 6-1) of the Convention.   However, in the opinion of the Commission it is nevertheless conceivable that, where the Court so determines a criminal charge, namely by terminating the proceedings against the accused, the particular circumstances surrounding such decision might give rise to the question whether or not the accused had received a "fair hearing" within the meaning of Article 6 (1) (Art. 6-1) of the Convention.   In the present case, the applicant's lawyer received notice of the proposed termination and was given an opportunity to make submissions to the Court showing that the criminal charge against the applicant should be determined in a manner other than by the termination of the proceedings under Article 153 (3) of the Code of Criminal Procedure. In fact, the applicant's lawyer apparently made certain submissions although the applicant states that the substance of these submissions did not correspond to his instructions. In this connection, the applicant has made a further complaint which is dealt with below (paragraphs 2 and 3).   Furthermore, although the applicant has alleged that he had not given his consent to such decision by the court and apart from the fact that under the applicable German law such consent is not required, it emerges clearly from the applicant's previous application No. 2588/65 which he later withdrew, that he himself considered the case against him as being based on trifles and misunderstandings. It appears, therefore, somewhat inconsistent on his part that, in his present application, he should now make objections against the termination of the proceedings against him by a court finding that the matter was indeed trivial and should therefore not be further considered.   It follows that, on the facts of the present case, procedure adopted by the German courts in terminating the proceedings against the applicant, is not inconsistent with his rights under Article 6 (1) (Art. 6-1) of the Convention.   As regards the applicant's second complaint concerning the length of these proceedings the Commission notes that, although the information against him had been laid in 1957, the proceedings were not initiated until 1960 and were subsequently stopped in accordance with Article 205 of the Code of Criminal Procedure. This provision states that if "the main trial cannot be held for a long time because of the absence of the person charged or because of some other impediment on his part, the court may by order provisionally discontinue the proceedings. The Presiding Judge secures the evidence so far as necessary". According to the applicant, no further action was taken after this order had been made until the proceedings were continued in 1969 and terminated in April 1970 but no particulars have been submitted by him in this regard.   It is, therefore, clear that during a considerable period between 1960 and 1970, being the period under consideration in the present case, it had not been possible to proceed with the case "because of the absence of the applicant or because of some other impediment on his part". Furthermore, it is clear that, when the proceedings were continued in 1959 this order was made for the sole purpose of terminating them definitely on the grounds already stated. On these facts the Commission finds that the Hanover District Court cannot be regarded as having unreasonably delayed the criminal proceedings against the applicant and examination of the case as it has been submitted, including an examination made ex officio does not therefore disclose any appearance of a violation of the rights and freedoms set forth in the Convention and in particular in Article 6 (Art. 6).   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.   2. The applicant has further made certain complaints about the conduct of his lawyer who represented him in the Hanover proceedings. However, under Article 25 (1) (Art. 25-1) of the Convention, the Commission may only admit an application from a person, non-governmental organisation or group of individuals, where the applicant alleges a violation by one of the Contracting Parties of the rights and freedoms set forth in the Convention and where that party has recognised this competence of the Commission. The Commission may not, therefore, admit applications directed against private individuals. In this respect, the Commission refers to its constant jurisprudence (see e.g. the decisions on the admissibility of applications No. 172/56, Yearbook, Vol. 1, pp. 211, 215 and No. 1599/62, Yearbook, Vol. 6, pp. 348, 356).   It follows that this part of the application is incompatible ratione personae with the Convention within the meaning of Article 27 (2) (Art. 27-2).   3. The Commission has also considered whether the alleged conduct of the lawyer could have involved the responsibility of the rights and freedoms guaranteed by the Convention under the Convention. In this connection, the Commission considered again whether the courts failed, by reason of the alleged conduct of the applicant's lawyer, to ensure that the applicant had a fair hearing of his case within the meaning of Article 6 (1) (Art. 6-1) of the Convention.   However, the Commission found that an examination of the case as it has been submitted does not disclose any appearance of a violation of this right. It follows that this part of the application, considered under Article 6 (1) (Art. 6-1), is manifestly ill-founded within the meaning of Article 27, paragraph (2) (Art. 27-2), of the Convention.   4. The Commission finally examined the applicant's complaint relating to the proceedings against him before the District Court of Munich for having alleged that the proceedings concerned lasted beyond a reasonable time resulting in a violation of his rights under Article 6 (1) (Art. 6-1) of the Convention. He has further alleged that the trial had deliberately been fixed by the Munich District Court at a time in July 1969 when he had other commitments and this had been done for the sole purpose of preventing him from defending his case.   As regards the latter allegation the Commission notes that, apart form the fact that the applicant has adduced no evidence to show that his allegations concerning the court's motives in fixing the date for trial in July 1969 are true, the applicant has stated himself that the hearing was subsequently adjourned. Consequently, there can be no question of his having been prejudiced in the defence of his case at that time.   As regards the length of these proceedings the Commission notes that the applicant was charged in 1967 with an offence committed in 1953. The period which is under consideration in regard to these proceedings therefore, only started to run in 1967. No particulars have been given as to the end of the period but it appears that the proceedings were still pending in November 1970 when the Constitutional Court rejected, for non-exhaustion of remedies, a constitutional appeal made by the applicant in regard to these proceedings.   The Commission is therefore called upon to consider a period of about four and a half years at the most, and finds that, having regard to the applicant's own conduct in relation to court proceedings in general, this period does not exceed a reasonable time within the meaning of Article 6 (1) (Art. 6-1) of the Convention. In this connection, the Commission points out that the applicant in the present case, invoked the Federal Constitutional Court merely on the basis of the fact that the Court fixed a date for a hearing, and also refers to its report of 3 February 1970 on the Soltikow Case (Application No. 2257/64) and the Committee of Ministers's decision in that case, dated 19 February 1971 (Resolution D.H. (71) 1).   In these circumstances the Commission concludes that an examination of these complaints as they have been submitted, including an examination made ex officio, again does not disclose any appearance of a violation of the rights and freedoms set forth in the Convention and in particular in Article 6 (Art. 6).   It follows that this part of the application is equally manifestly ill-founded within the meaning of Article 27, paragraph (2) (Art. 27-2), of the Convention.   For these reasons, the Commission DECLARES THIS APPLICATION INADMISSIBLE