CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 13 octobre 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 13 October 1986, the following members being present:                         MM. C.A. NØRGAARD, President                         J.A. FROWEIN                         F. ERMACORA                         E. BUSUTTIL                         G. JÖRUNDSSON                         G. TENEKIDES                         S. TRECHSEL                         B. KIERNAN                         A.S. GÖZÜBÜYÜK                         A. WEITZEL                         J.C. SOYER                         H.G. SCHERMERS                         H. DANELIUS                         G. BATLINER                         J. CAMPINOS                    Mrs   G.H. THUNE                    Sir   Basil HALL                     Mr. F. MARTINEZ                       Mr. H.C. KRÜGER, Secretary to the Commission     Having regard to Art. 25 (art. 25) of the Convention for the Protection of Human Rights and Fundamental Freedoms;   Having regard to the application introduced on 25 September 1985 by Z.Y. against the Federal Republic of Germany and registered on 3 January 1986 under file No. 11915/86;   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 applicant is a Turkish citizen, born in 1947 and living in Neckarsulm-Obereisesheim, Federal Republic of Germany.   She is represented by Mr N. Wingerter, a lawyer practising in Heilbronn.   In December 1981 private prosecution proceedings (Privatklage) were instituted against the applicant by a neighbour who alleged to have been insulted by her.   According to the plaintiff the applicant had on 3 July 1981 made a gesture (touching her forehead with her forefinger) which indicated that she considered the plaintiff to be stupid.   On 7 June 1985 the Heilbronn District Court (Amtsgericht) discontinued the proceedings in accordance with Section 383 (2) of the Code on Criminal Procedure (Strafprozessordnung)*.   The defendant was ordered to pay the costs of the proceedings while each party had to bear its necessary expenses.   The reasons given for the order of 7 June 1985 read as follows:   "The private prosecutor (Privatkläger) submits that on 3 July 1981 the defendant (Privatbeklagte) made a gesture towards her imputing stupidity (... den "Vogel" gezeigt ...)   She named Mrs H as witness for her allegation.   The defendant denies the accusation.   According to a provisional assessment (vorläufige Bewertung) the court considers the private prosecutor's allegations to be credible (glaubhaft).   Nevertheless a punishment (Ahndung) does not appear to be necessary. Rather, the defendant's fault (Verschulden) may be considered insignificant.   Both parties apparently live close to each other. Quarrels often occurred.   The defendant submitted that the private prosecutor often hit her children.   In these circumstances a trial was not necessary and it could be proceeded with in accordance with Section 383 (3) Code on Criminal Procedure given the insignificance of the fault of the offender (... bei geringer Schuld der Täterin).   However, the costs of the proceedings had to be imposed on the defendant.   In accordance with Section 471 (3) Code on Criminal Procedure it appeared equitable that each party bear its necessary expenses."   The applicant's immediate appeal (sofortige Beschwerde) was rejected by the Heilbronn Regional Court (Landgericht) on 9 July 1985 at the applicant's expense.   Without stating further reasons the Regional Court simply confirmed the reasons stated in the order appealed from.   _______________ *        Which reads:      If the defendant's fault is insignificant, the court may discontinue the proceedings. The proceedings can still be discontinued after the trial has started.   The order can be appealed from.   (Ist die Schuld des Täters gering, so kann das Gericht das Verfahren einstellen.   Die Einstellung ist auch noch in der Haupt- verhandlung zulässig.   Der Beschluss kann mit sofortiger Beschwerde angefochten werden.) _______________   COMPLAINTS   The applicant first complains that despite repeated interventions of her counsel, 42 months elapsed before the trial court considered her case.   She further complains that the decision on costs violates her right to be presumed innocent.   She invokes Article 6 paras. 1 and 2 (art. 6-1, art. 6-2) of the Convention.   Referring to three decisions given by groups of three judges of the Federal Constitutional Court on 2 February 1982 (2 BvR 1312/81), 20 July 1984 (2 BvR 790/84) and 26 November 1984 (2 BvR 627/84)*, rejecting similar complaints, the applicant argues that a constitutional appeal did not in her case constitute an effective remedy in view of the Federal Constitutional Court's jurisprudence on the subject matter.   THE LAW   The applicant has complained of the length of private prosecution proceedings against her and of the decision on costs given in connection with the order discontinuing these proceedings.   This decision is, according to her argument, similar to a conviction.   It is true that Article 6 paras. 1 and 2 (art. 6-1, art. 6-2) of the Convention secure to everyone charged with a criminal offence the rights to a speedy trial and to be considered innocent until final conviction.   However, the Commission is not required to decide whether or not the facts alleged by the applicant disclose any appearance of a violation of these provisions 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 her complaints before the Federal Constitutional Court invoking Articles 20 and 103 of the Basic Law (Grundgesetz) and has, therefore, not exhausted the remedies available to her under German law. 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 her disposal.   The decisions of the Federal Constitutional Court referred to by the applicant do not show that a constitutional appeal would not, in the present case, have offered any prospects of success as regards the alleged violation of the principle of presumption of innocence.   _______________ *        Submitted by the applicant's counsel in the cases of Englert         (No. 10282/83), Lutz (No. 9912/82) and K (No. 11585/85). _______________   The decisions of 2 February 1984 (2 BvR 1312/81) and of 26 November 1984 (2 BvR 627/84) concern orders discontinuing regulatory offence proceedings (Bussgeldverfahren) and refusing reimbursement of the defendant's necessary expenses on grounds indicating that a conviction was likely.   The decision of 20 July 1984 (2 BuR 790/84) concerns an order refusing compensation for prosecution matters.   The present applicant was not only refused reimbursement of her necessary expenses but she was ordered to pay the costs of the proceedings.   Furthermore, unlike the decisions referred to, the decision complained of in the present case mentions the applicant's fault (Verschulden) which is considered to be insignificant.   The case at issue is therefore distinguishable from the facts underlying the cases cited by the applicant which had previously been submitted to the Federal Constitutional Court.   Moreover, the Federal Constitutional Court rejected the complaints in question without considering the merits of those cases.   It cannot, in these circumstances, be concluded from the above decisions given by groups of three judges of the Federal Constitutional Court that a constitutional appeal on behalf of the applicant would not have offered any prospects of success.   It follows that the applicant has not complied with the condition as to the exhaustion of domestic remedies and her application must therefore be rejected under Article 27 para. 3 (art. 27-3) of the Convention.   For these reasons, the Commission   DECLARES THE APPLICATION INADMISSIBLE.   Secretary to the Commission            President of the Commission   (H.C. KRÜGER)                          (C.A. NØRGAARD)