CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 9 décembre 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. 12866/87                       by H.E.                       against the Federal Republic of Germany             The European Commission of Human Rights sitting in private on 9 December 1987, the following members being present:                 MM. C.A. NØRGAARD, President                   J.A. FROWEIN                   S. TRECHSEL                   G. SPERDUTI                   E. BUSUTTIL                   G. JÖRUNDSSON                   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 11 March 1987 by H.E. against the Federal Republic of Germany and registered on 13 April 1987 under file N° 12866/87;           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&S           The applicant is a German citizen, born in 1926 and living in Freudenberg-Oberholzklau.   He is represented in the proceedings before the Commission by Curt Freiherr v.   Stackelberg, a lawyer with a right of audience before the Federal Court (Bundesgerichtshof), whose practice is in Karlsruhe.           In a previous application (No. 8130/78) the applicant complained of the length of criminal proceedings against him.   On 15 July 1982 the European Court of Human Rights found that the criminal proceedings against the applicant carried out by the judicial authorities in Trier and Cologne had exceeded a reasonable time and therefore violated Article 6 para. 1 of the Convention (Series A, Vol. 65).           On 21 June 1983 the European Court of Human Rights (Series A, Vol. 65) awarded the applicant just satisfaction to the amount of nine thousand six hundred and forty-one Marks and ten Pfennigs (9,641.10 DM) in respect of costs and expenses and rejected the remainder of the applicant's claims.           On the basis of the aforementioned judgment of 15 July 1982, the applicant made a request for retrial arguing that his conviction pronounced by the Trier Regional Court on 17 March 1972, judgment that has become final in the meantime, had to be quashed as in view of the unreasonable length of the proceedings they should have been discontinued.   He argued that the violation of Article 6 para. 1 of the Convention, which had been established only subsequent to the criminal proceedings, was a "new fact" in the sense of Section 359 (5) of the Code on Criminal Procedure (StPO) and therefore his request for a retrial should be granted.           On 6 December 1985 the Regional Court (Landgericht) in Koblenz rejected the request.   On 12 August 1986 the Koblenz Court of Appeal (Oberlandesgericht) confirmed the Regional Court's decision.   The appellate court pointed out that the length of the proceedings was known to the trial court and considered as being a mitigating circumstance.   Consequently, the legal requirements to re-open the criminal proceedings were not given.           The applicant's constitutional appeal was rejected by a group of three judges of the Federal Constitutional Court (Bundesverfassungs- gericht) on 24 September 1986 as offering no prospects of success.     &_COMPLAINTS&S           The applicant complains that his request for a retrial was rejected although a retrial would, in his opinion, have offered the possibility to remedy the violation of Article 6 para. 1 found by the European Court of Human Rights.   He submits in this respect that the trial court's statement that the length of the criminal proceedings had been considered as a mitigating factor was an empty formula. Therefore, so he argues, the only remedy at his disposal was a request for a retrial.   The denial of this request consequently violated Articles 6, 13, 50 and 53 of the Convention.   THE LAW   1.       The applicant has complained that his claim for a retrial was refused.   However, under Article 25 para. 1 (Art. 25-1) of the Convention, it is only the alleged violation of one of the rights and freedoms set out in the Convention that can be the subject of an application presented by a person, non-governmental organisation or group of individuals. With regard to the present complaint, no right to a retrial is as such included among the rights and freedoms guaranteed by the Convention (See No. 7761/77, Dec. 8.5.78, DR 14 p. 171).           The Commission leaves open the question of whether a Convention issue could arise where an act found to be in violation of the Convention by a judgment of the European Court of Human Rights continues to negatively affect the victim (Articles 52, 53, 54 (Art. 52, 53, 54) of the Convention).   Such a situation is, however, not given in the present case.   The judgment determining the criminal charges in the criminal proceedings against the applicant was not, in the previous application proceedings (No. 8130/78), found to have violated any Convention right.   It was only the length of the criminal proceedings that were considered to have exceeded a reasonable time and therefore to have violated Article 6 para. 1 (Art. 6-1).   However, this did not affect the substance of the applicant's conviction.           It follows that this part of the application is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 27 para. 2 (Art. 27-2).   2.       Insofar as the applicant invokes Article 13 of the Convention and even assuming that this complaint has not essentially the same content as the applicant's previous application No. 8130/78, it has to be noted that the applicant could complain of the length of the criminal proceedings, both to the criminal courts that determined the charges to which these proceedings related and to the Federal Constitutional Court.   As the applicant considered that these courts did not deal with his complaint of the length of the criminal proceedings in an adequate manner, he lodged his previous application No. 8130/78.   He obtained just satisfaction in the proceedings relating to this previous application (Eur.   Court H.R., judgment of 21.6.1983, Series A, Vol. 65).   In these circumstances there is no appearance of a violation of Article 13 (Art. 13) of the Convention.   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.           For these reasons, the Commission             DECLARES THE APPLICATION INADMISSIBLE.         Secretary to the Commission                President of the Commission                 (H.C. KRÜGER)                             (C.A. NØRGAARD)