CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 13 juillet 1987

.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 }                       AS TO THE ADMISSIBILITY OF                         Application No. 11853/85                       by P.V.                       against the Federal Republic of Germany             The European Commission of Human Rights sitting in private on 13 July 1987 the following members being present:                 MM. C. A. NØRGAARD, President                   J. A. FROWEIN                   S. TRECHSEL                   F. ERMACORA                   E. BUSUTTIL                   A. S. GÖZÜBÜYÜK                   A. WEITZEL                   J. C. SOYER                   H. G. SCHERMERS                   H. DANELIUS                   G. BATLINER              Mrs.   G. H. THUNE              Sir   Basil HALL              MM.   F. MARTINEZ                   C.L. ROZAKIS              Mrs.   J. LIDDY                Mr.   H. C. KRÜGER Secretary to the Commission           Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;           Having regard to the application introduced on 13 August 1984 by P.V. against the Federal Republic of Germany and registered on 15 November 1985 under file N° 11853/85.           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 of the case, as submitted by the applicant, may be summarised as follows:           The applicant is an Austrian national born in 1950 and a plumber by profession.   He is presently serving a sentence in Kaisheim prison (Federal Republic of Germany).   Before the Commission he is represented by Dr.   T. Rübsaamen, a lawyer practising in Augsburg.           On 21 May 1982 the applicant was arrested on the ground of suspicion of illegal drug trafficking.   On the following day an arrest warrant was issued, and the applicant was then detained on remand.           On 18 August 1982 the Augsburg Regional Court (Landgericht) decided to open the main proceedings.           The trial before this court was fixed for 14 October 1982. However, the hearing could not take place, as one of the witnesses, C, was not present.   C, who was suspected of having bought about 6 kilograms of hashish from the applicant on several occasions between the beginning of 1981 and the applicant's arrest on 21 May 1982, had incriminated the applicant in statements to the Augsburg police on 4 and 28 May 1982.   Apparently C had confirmed these statements before the Augsburg District Court (Amtsgericht) on 28 May 1982.           C revoked these statements in a letter of 1 November 1982 after having left Germany for Turkey in August 1982.           On 9 November 1982 the Augsburg Regional Court requested the competent Turkish authority by letters rogatory to examine C in a Turkish court and also to summon him to appear as a witness before the Augsburg Regional Court at the trial fixed for 17 May 1983.           On 20 January 1983 the Munich Court of Appeal (Oberlandesgericht) ordered that the applicant's detention on remand should continue.   Subsequent orders for further extension of the applicant's detention pursuant to Sections 121 para. 1 and 122 para. 4 of the Code of Criminal Procedure (Strafprozessordnung) were made by this Court on 27 June 1983 and 14 October 1983, respectively.           On 14 April 1983 C, who was at that time performing his military service in Izmir, was examined in the Izmir Criminal Court in pursuance of the request by the Augsburg Regional Court.   C confirmed that his previous statements to the Augsburg police which were read out by the court were true and correct.   However, the minutes of this examination were not received by the Augsburg Regional Court until 24 October 1983.           On 8 May 1983 the applicant's defence counsel interrogated C in a hotel in Izmir.   C stated that his evidence given before the Augsburg police was not true and that he had bought the hashish not from the applicant and another person accused but from two Turks whose surnames he did not know.   A transcript of this interrogation was submitted to the Augsburg Regional Court on 16 May 1983.           On 17 May 1983 the hearing before the Augsburg Regional Court was due to take place.   Again, C was not present and as the applicant persisted in an examination of C in court, the hearing was adjourned.           Thereupon the Court, noting that the minutes of C's examination in the Izmir Criminal Court had not yet arrived, again requested the competent Turkish authority by letters rogatory of 26 May 1983 to examine C in a Turkish court and to summon him to appear as a witness before the Augsburg Regional Court at the hearing then fixed for 8 December 1983.   Attached to the summons was a safe-conduct for C issued on 18 May 1983 by another chamber of the Augsburg Regional Court.           On 14 June 1983 the applicant's defence counsel requested the Augsburg Regional Court to have C examined by a judge appointed by this court in Istanbul on 22 June 1983.   The defence counsel stated that C who was still performing his military service would be available on that day but that he was about to be transferred to another place and that consequently he could not be summoned to appear before the Court in Augsburg any more.   This request was rejected on 15 June 1983 on the ground that German judges were not authorised to perform official acts in Turkey.           On 24 October 1983 the Regional Court received the minutes of C's examination in the Izmir Criminal Court.           On 8 December 1983 the trial before the Augsburg Regional Court was opened.   As C was again not present the Court ordered that his evidence given in the Izmir Criminal Court on 14 April 1983 as well as his statements to the Augsburg police of 4 and 28 May 1982 be read out.           On 13 December 1983 the Court delivered its judgment, basing itself on these statements confirmed by C before the Court in Izmir and which had been corroborated by the testimony given by another witness at the trial.   The Court considered these statements to be true while C's statements to the contrary, made in his letter of 1 November 1982 and during his interrogation by the applicant's defence counsel in Izmir on 8 May 1983, were not credible.   The applicant was convicted of illegal drug trafficking and sentenced to four years' imprisonment.           On 5 July 1984 the Federal Court (Bundesgerichtshof) dismissed the applicant's appeal on points of law (Revision) as being unfounded.   COMPLAINTS           Invoking Article 5 para. 3 of the Convention, the applicant complains of the length of his detention on remand, which lasted nineteen months and therefore considerably exceeded the time-limit of six months, provided for in S. 121 para. 1 of the German Code of Criminal Procedure beyond which continued detention may only be authorised in exceptional cases.           The applicant further complains under Article 6 para. 3 (b) that he did not have adequate time and facilities for the preparation of his defence.           Additionally, he raises various complaints under Article 6 para. 3 (d), alleging that he could not examine or have examined the witness against him nor could he obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him.           In this respect the applicant submits that the Regional Court, by considering that the applicant's wife called on C in the morning of 22 May 1982 and told him about the applicant's arrest and a search carried out at her home, based its reasoning on facts which had not been brought before the Court.   However, had the defence known that the Court would use these facts for its reasoning, it could have named another witness who was present at the search of the applicant's wife's home.           The applicant also alleges that the statement made by C to the Augsburg police on 28 May 1982, which C confirmed before the Izmir Criminal Court on 14 April 1983, was not translated by a sworn translator.   A translation by a sworn translator would have been more accurate and the evidence would therefore have been more favourable to the applicant.           The applicant further alleges that only C's statement of 28 May 1982 was read out at his examination in the Izmir Criminal Court on 14 April 1983, but not his statement of 4 May 1982. Therefore C's examination was incomplete.           The applicant finally complains that the Court essentially based its judgment on the statements of C who never gave evidence before the trial court.   Moreover, as the defence was not informed of the date of C's examination in the Izmir Criminal Court, the applicant's defence counsel was unable to attend this hearing although both the German and the Turkish Codes of Criminal Procedure provide for the presence of defence counsel at the examination of witnesses in court.   Likewise, his defence counsel was not informed of C's examination in the Augsburg District Court on 28 May 1982, despite the fact that he had given notice, on 26 May 1982, of having assumed the applicant's defence.   Therefore, neither the applicant himself nor his defence counsel ever had the opportunity of directly examining C in court.   In this context the applicant also submits that C would have appeared at the trial in December 1983 if a safe-conduct had already been attached to the first letters rogatory.   The applicant also argues that C, who was at that time performing his military service in Turkey, could not be expected to give evidence in Turkey contradicting his previous statements to the German authorities.   THE LAW   l.   The Commission does not find it necessary to determine whether or not the applicant can be considered to have exhausted the domestic remedies at his disposal in accordance with Article 26 (Art. 26) of the Convention despite the fact that he did not lodge a constitutional complaint (Verfassungsbeschwerde) with the Federal Constitutional Court (Bundesverfassungsgericht).   In any event the application is manifestly ill-founded for the following reasons.   2.   The applicant complains about the length of his detention on remand.   Under Article 5 para. 3 (Art. 5-3) of the Convention "(e)everyone ... detained in accordance with the provisions of paragraph 1(c) of this Article shall be entitled to trial within a reasonable time or to release pending trial".           The applicant was detained on remand from 21 May 1982 until 13 December 1983, that is 18 months and 22 days.   In this respect the Commission first observes that the Munich Court of Appeal ordered in accordance with Section 121 para. 2 of the Code of Criminal Procedure that in the exceptional circumstances of the case the applicant's detention should continue after the time limit of six months provided for in Section 121 para. 1 of the Code of Criminal Procedure had expired.   Subsequently the Court of Appeal made orders on 27 June 1983 and 14 October 1983 for further extension of the applicant's detention in accordance with Sections 121 para. 1 and 122 para. 4 of the Code of Criminal Procedure.   The Commission is therefore satisfied that the applicant's detention was lawful according to German law and that consequently the applicant was lawfully detained in accordance with the provisions of Article 5 para. 1 (c) (Art. 5-1-c) of the Convention.           It is then necessary to examine the question whether the length of detention on remand can be regarded as "reasonable" within the meaning of Article 5 para. 3 (Art. 5-3) of the Convention.   In determining this question, regard must not only be had to the absolute time spent in detention but also to the circumstances of the individual case.        In the present case, the indictment against the applicant had been admitted by the Regional Court on 18 August 1982 and the trial fixed for 14 October 1982, i.e. less than five months after the applicant's arrest.   It is true that finally the trial did not take place until December 1983.   However, this postponement was due to C's non-appearance at the hearings fixed for October 1982 and for May 1983 and the applicant persisting in his examination.   Moreover, the minutes of C's examination in the Izmir Criminal Court were not received by the Augsburg Regional Court until 24 October 1983, i.e. almost one year after the request for C's examination on commission had been formulated.         The Commission is unable to conclude that this delay was caused by the Augsburg Regional Court or any other German authority or that it is imputable to the Federal Republic of Germany on other grounds. The trial court had expressly mentioned in its letters rogatory that the applicant was detained and that a date for the trial had already been fixed and that therefore an expeditious execution was requested. The fact that C's examination on commission was further delayed because of his being called up for military service in Izmir was neither foreseeable nor imputable to the German authorities.   In particular, it does not appear that the address of C given by the Augsburg Court to the Turkish authorities was incorrect at that time as C had himself indicated this address in his letter of 1 November 1982.        In these circumstances, and also having regard to the charge laid against the applicant, the Commission cannot find that the length of the applicant's detention on remand until the trial actually took place in December 1983 exceeded the "reasonable time" provided for in Article 5 para. 3 (Art. 5-3) of the Convention.         It follows that this part of the application must be rejected as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   3.     The applicant also complains that he did not have adequate facilities to prepare his defence as provided for by Article 6 para. 3 (b) (Art. 6-3-b) of the Convention.   However, he has not at all substantiated this complaint.         It follows that this part of the application is also manifestly ill-founded and must be rejected in accordance with Article 27 para. 2 (Art. 27-2) of the Convention.   4.    The applicant further complains that he could not obtain the attendance and examination of certain witnesses and that he could not examine or have examined the principal witness against him.        Article 6 para. 3 (d) (Art. 6-3-d) of the Convention states that everyone charged with a criminal offence "has the right 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".   More generally, Article 6 para. 1 (Art. 6-1) of the Convention provides that, in the determination of any criminal charge against him, everyone is entitled to a "fair hearing".        The Commission has examined the applicant's separate complaints as they have been submitted by him under both provisions.         a)   The applicant complains that the Augsburg Regional Court relied in its judgment on the fact that the applicant's wife informed C about the search carried out at her home; he alleges that this fact has not been brought before the Court.         The Commission notes that this fact was mentioned by C in his statement made to the police on 28 May 1982 and read out during the trial whereby it became part of the oral proceedings.   Therefore, the Commission finds the applicant's allegation to be without factual basis.         Moreover, Article 6 para. 3 (d) (Art. 6-3-d) of the Convention does not grant the defence total freedom to call any potential witness at any time in the proceedings, but allows a refusal to call witnesses whose statements are not likely to assist in ascertaining the truth (cf. e.g.   No. 8231/78, Dec. 6.3.82, D.R. 28 p. 1 [25];   No. 9000/80, Dec. 11.3.82, D.R. 28 p. 127 [135]). The applicant did not specify what the witness whose appearance in court the defence would have requested would have stated if he had been examined. Therefore, the Commission is unable to conclude that his evidence could have been of any relevance to the applicant's defence or that the applicant's conviction could have rested on the failure to hear this witness.          It follows that this part of the application is again manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention and must accordingly be rejected.           b)   The applicant also alleges that the statement made by C on 28 May 1982 to which C had been referred during his examination in the Izmir Criminal Court was not translated by a sworn translator.   He further submits that only this statement but not C's previous statement of 4 May 1982 was read out by that court.           However, the applicant does not allege that the translation - assuming it was not drawn up by a sworn translator - was incorrect. In any event, he does not specify which parts were incorrectly translated.   Likewise, he does not specify on which parts of C's statement of 4 May 1982 allegedly not read out by the Izmir Criminal Court the Augsburg Regional Court based its reasoning.   Therefore, the Commission is unable to conclude that the principle of fair trial as laid down in Article 6 para. 1 (Art. 6-1) of the Convention has not been complied with or that any of the applicant's rights under Article 6 para. 3 (Art. 6-3) were violated.            c)   The applicant finally complains that the Augsburg Regional Court essentially based its judgment on the testimony of C who was never examined in this court and whom the applicant or his defence counsel could not directly examine in court.            The Commission recalls that Article 6 para. 3 (d) (Art. 6-3-d) of the Convention does not grant the accused an unlimited right to secure the appearance of witnesses in court.   Its purpose is rather to ensure equality between the defence and the prosecution as regards the summoning and examining of witnesses (cf. e.g.   No. 4428/70, Dec. 1.6.72, CD 40 p. 1[8]; No. 8417/78, Dec. 4.5.79, D.R. 16 p. 200 [207]).   It does not exclude that witnesses residing abroad whose presence at the trial cannot be enforced by the trial court are examined on commission by a court at their place of residence.   This is a well-established practice provided for in numerous bilateral and multilateral international conventions.   Its very purpose is to assure to the greatest possible extent the availability of evidence which cannot be collected otherwise.             It is true that in the present case neither the applicant himself nor his defence counsel were informed of the date of C's examination in Izmir and that they could not therefore be present during his examination and put questions to him.   The Commission notes that no representative of the Augsburg Public Prosecutor's Office (Staatsanwaltschaft) was present either.   In any event, assuming that the Turkish law provides for the presence of the accused or his defence counsel at the examination of a witness on commission, the German authorities cannot be held responsible for the non-observance of provisions of the Turkish law by a Turkish court (cf. the analogous situation in No. 5049/71, Dec. 5.2.73, CD 43 p. 38 [42]).   Moreover, the Commission notes that the Augsburg Regional Court in its letters rogatory expressly requested the Turkish authorities to inform it of the date of C's examination on commission.   Furthermore, Article 6 para. 3 (d) (Art. 6-3-d) does not require that the defence must always have the opportunity of directly examining a witness.   According to this provision, the accused has the right to examine "or have examined" witnesses.   The Commission finds that this requirement is not only complied with if the accused or his defence counsel have the opportunity of putting questions to the witnesses themselves, but also if they can request that certain questions are put to the witness by the court.   Especially, this holds true if witnesses are to be examined on commission (cf.   No. 5049/71, supra, p. 43).           The applicant does not allege that it was impossible or inappropriate for him to request that in case the applicant or his defence counsel could not attend the hearing certain specific questions should be put to C by the Turkish court examining him on commission regarding C's previous statements to the police which the applicant's defence counsel had a right to consult.   Nor does the applicant allege that he made such a request which was then denied.   In these circumstances, the Commission cannot find that the applicant's right under Article 6 para. 3(d) (Art. 6-3-d) to have witnesses examined was in any way impaired.           Insofar as the applicant submits that his defence counsel was not informed of the date of C's examination in the Augsburg District Court on 28 May 1982, the Commission - assuming that this examination was part of the preliminary investigation directed against the applicant and not part of a preliminary investigation against C - points out that the Augsburg Regional Court did not rely on the evidence taken at that examination.   Consequently, the applicant was not prejudiced by the absence of his defence counsel.           The Commission has also examined the question whether, in respect of the witness C, the applicant's right to a fair hearing of his case under Article 6 para. 1 (Art. 6-1) of the Convention has been observed by the Augsburg Regional Court.            Although this court was not responsible for the examination of C on commission it is in principle conceivable that the use of the evidence thereby obtained could be contrary to that provision. However, the Commission has already found that the applicant's rights under Article 6 para. 3(d) (Art. 6-3-d) were respected with regard to the examination of C on commission.   Therefore, the Commission concludes that the use of his evidence by the Augsburg Regional Court was also in conformity with the requirements of a fair trial.            The Commission notes in this respect that C's evidence before the Turkish court was limited to confirming his previous statements to the Augsburg police and that the Augsburg Regional Court relied essentially on those statements.   However, neither Article 6 para. 1 (Art. 6-1) nor Article 6 para. 3(d) (Art. 6-3-d) of the Convention excludes that the trial court, in order to establish the truth, relies on indirect evidence (cf. e.g.   No. 8414/78, Dec. 4.7.79, D.R. 17 p. 231 [233]). In particular, neither provision excludes the use of previous statements which subsequently are confirmed in court. Moreover, in the present case, the Augsburg Regional Court also took into account and weighed evidence presented by the defence, viz.   C's letter of 1 November 1982 and the transcript of C's interrogation by the applicant's defence counsel in Izmir on 8 May 1983.   The court also found that C's previous statements which the court considered to be credible were corroborated by the testimony of another witness.   In these circumstances, the Commission finds that the trial was fair and that there has consequently been no violation of Article 6 para. 1 (Art. 6-1) of the Convention.             The Commission finally finds that there is no appearance of a violation of either Article 6 para. 1 or Article 6 para. 3(d) (Art. 6-1, 6-3-d) of the Convention by the fact that the first letters rogatory requesting to summon C to appear before the Augsburg Regional Court were not accompanied by a safe-conduct, or by the rejection of the applicant's request to have C examined by a judge of the Augsburg Regional Court in Istanbul; as the Court correctly pointed out, foreign authorities may not take evidence in another state unless prior consent is granted.             It follows that this part of the application is also manifestly ill-founded and must be rejected in accordance with Article 27 para. 2 (Art. 27-2) 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)