CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 17 juillet 1986

.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 European Commission of Human Rights sitting in private on 17 July 1986 the following members being present:                    MM. C.A. NØRGAARD, President                       J.A. FROWEIN                       F. ERMACORA                       G. TENEKIDES                       S. TRECHSEL                       B. KIERNAN                       A.S. GÖZÜBÜYÜK                       A. WEITZEL                       J.C. SOYER                       H.G. SCHERMERS                       H. DANELIUS                       G. BATLINER                       H. VANDENBERGHE                   Mrs G.H. THUNE                   Sir Basil HALL                      Mr J. RAYMOND, Deputy Secretary to the Commission   Having regard to Article 25 (Art. 25) of the Convention for the Protection of Human Rights and Fundamental Freedoms;   Having regard to the application introduced on 14 November 1984 by H.F. against the Federal Republic of Germany and registered on 20 November 1984 under file No. 11255/84;   Having regard to the report provided for in Rule 40 of the Rules of Procedure of the Commission;   Having deliberated;   Decides as follows:   THE FACTS   The facts apparently not in dispute between the parties may be summarised as follows.   The applicant is a German citizen, born in 1933 and living in Kedem. He is represented by Messrs H. Millinger and Partners, lawyers in Essen.   1. Original charge and first trial   On 15 June 1981 the applicant was convicted by the Regional Court (Landgericht) in Duisburg of attempted continued tax evasion (versuchte fortgesetzte Steuerhinterziehung) and of bankruptcy (Bankrott) in two cases and sentenced to a global sentence of two years and six months' imprisonment.   He was acquitted on another charge of bankruptcy.   A co-accused, Mr W, was convicted of attempted tax evasion and acquitted on other charges, and another co-accused, Mr B, was acquitted.   Following an appeal on points of law (Revision) lodged by the Public Prosecutor, the Federal Court (Bundesgerichtshof) amended the judgment of 15 June 1981 to the effect that the applicant was guilty of two cases of fraudulent breach of trust (Untreue) instead of bankruptcy.   Therefore the Federal Court quashed the sentence concerning the two cases as well as the global sentence.   It also quashed the judgment in so far as it acquitted the applicant of a further charge of bankruptcy, and the two co-accused of a charge of being accomplices to bankruptcy.   To the extent the judgment was quashed the cases were sent back for a new trial.   The Federal Court's decision was given on 24 March 1982.   2. The remaining charge which had to be determined in a second trial   The charge of bankruptcy of which the applicant had been acquitted in first instance, and which had to be retried according to the Federal Court, related to the following facts.   In November 1973 the applicant had taken over shares of a company dealing with petrol. In his capacity of Managing Director of this company, called Union-Mineralöl GmbH (hereinafter called "Union"), he concluded a contract with a foreign company called Intercommercial and Finance Corporation (hereinafter called "Intercommercial"), based in Panama, on 2 February 1974, by which Intercommercial undertook to supply Union with 600,000 tons of ordinary petrol and 600,000 tons of four-star petrol (Superbenzin) in monthly part deliveries of 10,000 tons each. As a guarantee for its buyer obligations, Union accepted to deposit six million DM abroad immediately. 4,200,000 DM were accordingly transferred.   The remainder could not be transferred as Union's German accounts were eventually seized on account of important tax arrears.   The trial court in its jugment of 15 June 1981 found that there was not sufficient evidence that the applicant knew when concluding the contract of 2 February 1974 that Union was already heavily indebted. It could not be excluded that he considered the company's debts to be outbalanced by its real-estate properties. Therefore, although the company was in difficulties, and although an increase of its turnover, in the circumstances, would only have increased its losses, it could not be concluded that the applicant accepted the agreement of 2 February 1974 knowing that his company was near to insolvency (Zahlungsunfähigkeit).   The Federal Court considered that the transaction in question might have constituted a breach of trust (Untreue).   The Court pointed out that the contract of 2 February 1974 was possibly fictitious but in any event appeared to be commercially disadvantageous for Union. The risk of losing the guarantee deposit of six million DM was high in view of Union's financial difficulties.   It therefore had to be examined whether or not the applicant had, by concluding the contract of 2 February 1974, exceeded the limits of customary (verkehrsübliche) risks normally connected with comparable transactions.   In this connection it was of little importance whether other companies accepted similar conditions at the relevant time.   Rather, account had to be taken of Union's bad financial situation and of the applicant's strategy to expand the business by concluding contracts which in the end only caused financial losses to his company.   Even if at the relevant time he did not yet reckon with the company's insolvency he already knew about the possibility of measures being taken by the tax authorities against the company on account of tax arrears.   Therefore, the payment of the guarantee appeared to be a transaction of which the applicant knew that it was likely to cause damage to Union.   In fact when the company went bankrupt in June 1974 the sum of 4.2 million DM already transferred abroad could no longer be recuperated.   Therefore, even if there was not enough evidence to convict the applicant on another count of bankruptcy it had to be examined whether the transaction in question constituted a breach of trust committed to the disadvantage of Union.   3. The second trial   On 11 November 1982 the applicant was summoned to attend the new trial the beginning of which was fixed for 28 February 1983. Further hearings were envisaged for 2, 9, 11, 14, 18, 25 and 31 March and 8 and 15 April.   About two weeks before the beginning of the trial the applicant's chosen defence counsel, Mr Hütsch, who was, as the applicant submits, acquainted with the case and its economic background, fell ill and his office so informed the trial court.   On 21 February 1983 the trial court's presiding judge, Mr Rutsch, telephoned Mr François, a partner of Mr Hütsch, to find out whether Mr Hütsch would be able to attend the trial.   He was informed that Mr Hütsch would probably not be fit to attend the trial on 28 February and that no other lawyer was prepared to defend the applicant.   On Friday 25 February the trial court informed Mr Hütsch's office by telephone that the applicant should appear on Monday 28 February and that a legal aid defence counsel would be appointed for him.   On 28 February the applicant requested to suspend the trial but his request was rejected and the appointment, made on that day, of a legal aid counsel, Mrs Heck-Kammerichs, was maintained.   The applicant complained and requested the court to appoint Mr François as his official defence counsel.   This request was rejected as Mr François had declared he was too busy to take on a new case.   The trial was, however, adjourned until 9 March 1983 in order to allow the official counsel to acquaint herself with the case.   After hearings on 28 Februay, 9, 14 and 18 March 1983 the applicant was convicted on an additional count of breach of trust in relation to the transaction of 2 February 1974.   The Court found that the applicant knew at the end of 1973 that Union was heavily indebted. Nevertheless he increased the turnover selling at losses in order to pay off arrears of taxes, increasing however the current tax obligations.   It later turned out that the losses as per 22 July 1974 amounted to 17,600,000 DM.   In these circumstances the Court considered that the applicant was aware that the contract of 2 February 1974 created an unusual risk for his company (Union) and the danger of substantial damages.   Consequently the transaction constituted a breach of trust.   The Court refused to hear an expert on the question whether the contract of 2 February 1974 was economically reasonable.   It considered itself to be sufficiently experienced to decide this question without the aid of an expert and found that in the given circumstances the unreasonableness of the contract in question was obvious to any economically minded person.   The global result of the criminal proceedings consequently was that the applicant was convicted of attempted continued tax evasion and of breach of trust (Untreue) in three cases.   In fixing the sentence the Court considered in the applicant's favour that he had never been convicted before and had not committed further offences since.   The important damages caused by the applicant were considered as an aggravating factor.   He was again given a global sentence of two years and six months' imprisonment.   His appeal on points of law was rejected by the Federal Court on 6 July 1984 as being unfounded.   4. Constitutional appeal   The applicant then lodged a constitutional appeal (Verfassungsbeschwerde) complaining that at the second trial he was not defended by counsel of his choice and that he was not adequately defended due to lack of time for the preparation of his defence and lack of experience of the official defence counsel.   On 13 September 1984 a group of three judges of the Federal Constitutional Court (Bundesverfassungsgericht) rejected the applicant's constitutional appeal as offering no prospects of success.   It is pointed out in the decision that the facts and legal issues had already been clarified in the previous criminal proceedings and that the matter had been narrowed down by the preceding judgment of 15 June 1981 and the Federal Court's decision of 24 March 1982, and that in these circumstances the trial court did not act arbitrarily considering that the time given to the official defence counsel for the preparation of the defence was sufficient.   In this context the trial court not only had to consider the applicant's interest in having adequate time for the preparation of his defence and in being defended by a chosen counsel but also the general interest, and the interest of the co-accused to have the charges determined within a reasonable time.   COMPLAINTS   The applicant complains that shortly before the second trial started he was imposed an official counsel who did not have sufficient time to prepare his defence.   He also alleges that his official defence counsel was young and   inexperienced.   He submits that due to other business his official defence counsel had on 14 March 1983 still not had the time to examine the files.   He alleges a violation of Article 6 paras. 1 and 3 (a) - (c) (Art. 6-1, art. 6-3-a, art. 6-3-c) of the Convention.   He further complains that the trial court rejected his request to obtain an expert opinion on the question whether the contract of 2 February 1974 between Union and Intercommercial was reasonable from an economic point of view.   The applicant considers that the trial court did not have the expert knowledge to decide the issue in question.   As, furthermore, he was not in a position to defend himself adequately, he concludes that his conviction violates Article 6 para. 1 (Art. 6-1) of the Convention.   PROCEEDINGS BEFORE THE COMMISSION   On 21 March 1985 the Commission's Rapporteur, having made a preliminary examination of the case, requested further information from the applicant in accordance with Rule 40 para. 2 (a) of the Commission's Rules of Procedure.   Subsequently the Commission decided on 1 July 1985 to communicate the application to the respondent Government for observations on admissibility and merits.   The Government's observations were, after extension of the time limit, submitted on 5 December 1985 and the applicant's reply arrived on 30 January 1986.   SUMMARY OF THE PARTIES' OBSERVATIONS   I. The respondent Government   1. As to the facts   It is pointed out that when the Federal Court partially quashed the first judgment of 15 June 1981 and sent the case back for a new trial, this new trial only concerned the transaction of 2 February 1984 and the fixing of a new global sentence.   Thus the fact finding task of the trial court as well as the remaining issue as such were considerably narrowed down.   Therefore the trial took less time than expected, only three days of hearings were needed.   It is further pointed out that on 17 January 1983 the trial court asked the defence and the Public Prosecutor whether they wished that witnesses be summoned for the trial.   The applicant's counsel replied on 21 January 1983 that he would submit comments after his return from holiday on 5 February 1982.   No such comments were however submitted while at the Public Prosecutor's request three witnesses were summoned.   Having received on 17 February 1983 the information that the applicant's defence counsel had fallen ill the trial court's president, according to a written statement signed by him, telephoned counsel's office on 21 February 1983 and discussed the matter with Mr François, the applicant's counsel's partner.   He was told that the applicant's counsel, Mr Hütsch, was suffering from lumbo-sciatica and would probably not be able to work for about two months.   The President discussed the possibility of disjoining the applicant's case from that of the co-accused and of postponing it.   He states that he no longer remembers the exact contents of the conversation but excludes that he gave any binding assurance that the applicant's case would be dealt with separately at a later stage.   The President further points out in his statement that at the trial of 9, 14 and 18 March 1983 the applicant pleaded on the merits and no longer repeated his former objections concerning the official defence counsel and the lack of time for the preparation of the defence.   2. Exhaustion of domestic remedies   The applicant did not raise the complaint about the refusal to hear an expert on the reasonableness of the contract of 2 February 1974 (between Union and Intercommercial) before the Federal Constitutional Court.   As regards the complaint on the alleged insufficiency of the applicant's defence it is pointed out that the applicant failed, during the trial, to repeat his complaint that - despite the adjournment from 28 February 1983 to 9 March 1983 - his defence counsel had neither adequate time nor sufficient experience to prepare his defence.   Therefore domestic remedies were not exhausted, with regard to both complaints.   3. On the merits   As the trial court carefully considered all the circumstances relating to the conclusion of the agreement of 2 February 1974, it was in a position to decide whether or not Union's undertaking to deposit a guarantee of six million DM was reasonable.   The refusal to hear an expert on this question was lawful and justified and in no way arbitrary.   The applicant did have sufficient time and opportunity to prepare his defence.   As was already pointed out by the Federal Constitutional Court the facts and issues had been narrowed down by the first trial and the Federal Court's judgment.   The applicant knew from the previous proceedings which questions had to be dealt with at the new trial.   He was summoned for this trial three months in advance.   After having been informed that his chosen defence counsel was ill he could and should have prepared his defence himself.   Furthermore the offical defence counsel had sufficient time from 28 February until 9 March 1893 to prepare the defence.   In view of the first trial court judgment of 15 June 1981 and the Federal Court's decision of 24 March 1982, it was easy for the official defence counsel to familiarise herself with the case and the factual or legal problems it still raised.   As the proceedings not only concerned the applicant but also two co-accused, the necessity to determine the charges within a reasonable time excluded a further adjournment, which was in any event not requested after this trial started on 9 March 1983.   There was nothing to show that the official defence counsel neglected her obligation to defend the applicant in an effective manner.   She submitted several motions for the taking of evidence and thus did all which she and also the applicant himself considered necessary for the defence.   The applicant was not prevented from choosing himself another defence counsel or from complaining to the court that the official defence counsel neglected her obligation to defend him in an adequate manner. He did not, however, raise any such objections during the trial.   II. The applicant   1. As to the facts   The applicant submits a statement of counsel Helge Millinger according to which the applicant's official defence counsel repeatedly told him at the trial that she did not have sufficient time to prepare the case.   He also refers to a statement of his chosen counsel's partner, Mr François, according to which the time given to the official defence counsel for the preparation of the defence was insufficient. Mr François furthermore states that the trial court's presiding judge told him during the telephone conversation on 21 February 1983 that he saw no other solution than to sever the proceedings against the applicant from those against the co-accused and to hold the applicant's trial at a later date as in view of the complexity of the case there was not sufficient time to have the defence prepared by an official defence counsel.   2. Exhaustion of domestic remedies   Domestic remedies were fully exhausted by way of a constitutional appeal.   It is alleged that the constitutional appeal having been directed against the judgments given in the criminal proceedings the Federal Constitutional Court could and should have examined ex officio whether or not the refusal to hear an expert violated constitutional rights.   3. On the merits   The trial court failed to establish all circumstances which would have been relevant to decide the question whether the contract of 2 February 1974 had, from an economical point of view, been reasonable. Therefore it violated the right to a fair trial by not obtaining an expert opinion on this question.   As the applicant had no personal confidence in his official defence counsel, who was not sufficiently experienced to deal with a complicated commercial matter, the court should have granted his request to adjourn the proceedings.   In any event he cannot be blamed for not having himself prepared his defence as he first trusted that he would be defended by Mr Hütsch, and when this counsel fell ill, he trusted that the trial court would adjourn his case, in accordance with the assurance given to Mr François by the trial court's President.   The applicant argues that in his statement submitted by the Government the President has not clearly denied having given the assurance in question.   He submits that the second trial in 1983 concerned complex events which took place many years before.   Therefore an adequate defence was possible only after careful examination of the files and sufficient experience with regard to commercial activities in the petrol market. The official defence counsel had neither sufficient time nor sufficient experience to deal with his case.   It was therefore necessary and also possible to sever his case and adjourn the trial against him.   Finally he argues that the alleged violation does not depend on the establishment of concrete disadvantages sustained as a consequence of the insufficiency of his defence.   THE LAW   1. The applicant has first complained under Article 6 (Art. 6) of the Convention that he did not have adequate time and opportunity to prepare his defence at the second trial which had been fixed to begin on 28 February 1983.   He complains that the trial court's decision to appoint an official defence counsel for him against his will took him by surprise because he had expected that the trial against him would be adjourned until his chosen defence counsel was fit to take up the defence again.   The respondent Government argue that the applicant's objections raised on 28 February 1983 were taken into consideration in that the trial was adjourned until 9 March 1983 in order to give the official defence counsel the opportunity to examine the case and prepare the defence. When the trial eventually began on 9 March 1983 and continued on 14 and 18 March the applicant pleaded his case and no longer complained that it had not been possible to prepare his defence in an adequate manner.   He therefore did not exhaust all available domestic remedies, as under Section 265 (4) of the Code on Criminal Procedure he could have made a request to stay the proceedings.   The Commission notes however that the applicant raised the present complaint before the Federal Constitutional Court.   This Court did not reject the constitutional appeal on the formal ground of non-exhaustion of available ordinary remedies but on the ground that it lacked chances of success.   The complaint was consequently considered by the Federal Constitutional Court and the applicant must in these circumstances be considered to have exhausted domestic remedies in accordance with Article 26 (Art. 26) of the Convention.   As regards the substance of his complaint the Commission agrees with the Federal Constitutional Court and the respondent Government's submissions that the remaining charge which had to be determined at the second trial no longer raised manifold and complex issues of fact or law.   The facts had to a great extent been established at the preceding trial and the Federal Court had in its judgment of 24 March 1982 delimited the legal problem which remained to be examined.   On the basis of the Federal Court's decision it must have been clear to any lawyer but also to the applicant as an experienced businessman what would be the subject-matter of the second trial.   The Commission notes that the applicant was already informed on 2 November 1982 of the date on which the second trial would begin, i.e. on 28 February 1983.   He therefore had sufficient time personally to prepare his defence.   It is true that he had chosen a defence counsel and that a defendant can rely on his defence counsel to prepare the defence. Such preparation will, however, normally require a certain collaboration between the defendant and his counsel.   In the present case the main question which remained to be resolved at the second trial related to the appreciation of a business transaction carried out by the applicant in his capacity of Managing Director of a company.   It is evident that in these circumstances the preparation of the defence could hardly be effected without the applicant's active participation.   As an experienced businessman the applicant must have been perfectly familiar with the general market situation at the relevant time and being a party to the incriminated business transaction he must also have been able to indicate the circumstances which from his point of view justified this transaction commercially.   The applicant therefore was in a position to assist the official defence counsel in the preparation of his defence.   There was reasonable time to do this as the trial was adjourned from 28 February until 9 March 1983 leaving counsel more than a full week to work on the case.   Although normally a time-limit of eight days may appear to be insufficient for an official defence counsel to familiarise himself with a case the present applicant has not shown that in the particular circumstances of his case it had been impossible for the official defence counsel to prepare his defence. As already stated, the case was in any event no longer of a very complicated and complex nature.   It has also to be noted in this context that the applicant's chosen defence counsel, who suffered from lumbo-sciatica, was not by the nature of his illness prevented from giving advice either in writing or orally to the official defence counsel about the handling of the case.   It has finally to be noted that after the period of preparation given to the official defence counsel neither the applicant nor his official defence counsel alleged that despite the adjournment of the trial from 28 February to 9 March 1983 it had not been possible to prepare the defence.   In these circumstances it is of no relevance whether or not during the telephone conversation of 21 February 1983 with Mr François, partner of the applicant's chosen counsel, Mr Hütsch, the trial court's presiding judge gave the impression he would adjourn the proceedings against the applicant.   The trial court informed Mr Hütsch's office on 25 February 1983 that the date for the beginning of the trial was maintained.   The applicant then still had time either to choose and instruct another lawyer or to instruct the officially appointed defence counsel.   As the applicant did not, on 28 February 1983, designate a defence counsel of his own choice, the trial court was free to appoint an official defence counsel.   The right to free legal assistance provided for by Article 6 para. 3 (c) (Art. 6-3-c) of the Convention does not guarantee to the accused the right to choose the official defence counsel (No. 6946/75, Dec. 6.7.76, D.R. 6, p. 114).   It is true that under German law the court would to a certain extent have had to take into account the defendant's preference for a particular lawyer. However, the applicant was not in a position to name a lawyer willing to act as his official defence counsel.   On the other hand there is nothing to show that the trial court's choice was arbitrary or that the trial court had in the course of the trial any reason to replace the official defence counsel.   The applicant had more than a week at his disposal to prepare his defence with the official defence counsel. At the trial he was defended by the official defence counsel and he did not not, during the trial, allege that the preparation of this defence was insufficient on account either of lack of time or lack of interest on the part of the official defence counsel.   An examination by the Commission of this complaint does not therefore disclose any appearance of a violation of the rights and freedoms set out 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 para. 2 (Art. 27-2) of the Convention.   2. The applicant has further complained that his request to obtain an expert opinion on the reasonableness of the business transaction of 2 February 1974 was rejected by the trial court.   It is true that Article 6 para. 1 (Art. 6-1) of the Convention secures to everyone the right to a fair trial, which includes the right of the accused that the trial court take into account all relevant evidence.   However, the Commission is not required to decide whether or not the facts alleged by the applicant disclose any appearance of a violation of this provision as, under Article 26 (Art. 26) of the Convention, it may only deal with a matter after all domestic remedies have been exhausted according to the generally recognised rules of international law.   In the present case the applicant failed to raise this particular complaint before the Federal Constitutional Court.   In the grounds of his constitutional appeal he only complained that he was not given sufficient time and opportunity to prepare his defence and that an official defence counsel was appointed against his will shortly before the beginning of the trial.   He failed, however, to substantiate his present complaint, in accordance with Section 92 of the Act on the Federal Constitutional Court.   He cannot, therefore, be considered to have exhausted the remedies available to him under German law.   Moreover an examination of the case 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.   It follows that the applicant has not complied with the condition as to the exhaustion of domestic remedies and his application must in this respect be rejected under Article 27 para. 3 (Art. 27-3) of the Convention.   In any event the applicant has not shown that the determination of the remaining charge at the second trial depended on particular knowledge which was not available to the trial court without the help of an expert.   The above complaint would therefore have had to be rejected as being manifestly ill-founded if domestic remedies had been exhausted.   For these reasons, the Commission   DECLARES THE APPLICATION INADMISSIBLE.   Deputy Secretary to the Commission            President of the Commission   (J. RAYMOND)                                  (C.A. NØRGAARD)