CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 12 décembre 1988

.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. 12371/86                       by B.                       against the Federal Republic of Germany             The European Commission of Human Rights sitting in private on 12 December 1988, the following members being present:                MM.   C. A. NØRGAARD, President                   J. A. FROWEIN                   S. TRECHSEL                   G. SPERDUTI                   E. BUSUTTIL                   G. JÖRUNDSSON                   A. WEITZEL                   J. C. SOYER                   H. G. SCHERMERS                   H. DANELIUS                   J. CAMPINOS                   H. VANDENBERGHE              Mrs.   G. H. THUNE              Sir   Basil HALL              MM.   F. MARTINEZ                   C.L. ROZAKIS              Mrs.   J. LIDDY                Mr.   J. RAYMOND, Deputy 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 July 1986 by B. against the Federal Republic of Germany and registered on 18 August 1986 under file No. 12371/86;           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 German citizen, born in 1951 and serving a life sentence in prison at Stuttgart.   He is represented by Mrs.   M. Roell and Mr.   J. Schwenn, lawyers in Hamburg.           The facts submitted may be summarised as follows:           On 7 May 1984 the applicant was convicted by the Stuttgart Court of Appeal (Oberlandesgericht) principally on several counts of murder in conjunction with the taking of hostages and kidnapping (Mord in Tateinheit mit Geiselnahme, erpresserischem Menschenraub).   He was given a triple life-sentence and fifteen years' imprisonment (dreimal lebenslange Freiheitsstrafe sowie fünfzehn Jahre Freiheitsstrafe).           According to the findings of the Court, the applicant was an underground member of a terrorist organisation known as the Red Army Fraction (RAF) since the end of December 1976.    As a member of this terrorist organisation the applicant actively participated in the planning, organisation and execution of the following actions:           In April/May 1977 a commando group of "RAF" members, including the applicant, decided to kidnap personalities in order to propose to the German authorities their liberation in exchange for the liberation of the lawfully detained "RAF" members Baader, Ensslin and Raspe.           It was first planned to kidnap the banker Jürgen Ponto.   The applicant fully accepted and identified himself with the project.   On 28 and 29 July 1977 the applicant and other members of the group stole and prepared two cars for the kidnapping.   On 30 July three other members, namely Susanne Albrecht, the daughter of a friend of Mr. Ponto's, Brigitte Mohnhaupt and an unidentified male member, visited the Pontos in their home.   When they tried to kidnap Mr.   Ponto he resisted and was then shot by Brigitte Mohnhaupt.   The perpetrators escaped.   Subsequently, the "RAF" wrote letters to various press agencies commenting on the action.           On 25 August 1977 the commando attempted to kill officials of the Federal Prosecutor's Office (Bundesanwaltschaft) by firing explosives at the office building from a nearby apartment house. There they had overwhelmed an elderly couple and installed in that couple's apartment a rocket-launching device with 42 launchers, which the applicant had constructed with the help of Susanne Albrecht and others.   The plot failed, because an error was made in setting the self-timer and the apartment owners eventually succeeded in freeing themselves and alarming the police.   Again the "RAF" sent letters claiming to be the author of the plot.           On 5 September 1977 a "RAF" commando kidnapped the President of the Federal Union of German Employer Associations (Bundesvereinigung der Deutschen Arbeitgeberverbände), Mr.   H.-M. Schleyer, when he was driving home with his escort.   Mr.   Schleyer's driver and three policemen were killed by the commando.   Mr.   Schleyer was later killed by an unidentified "RAF" member by three shots into his head.   The kidnapping had been prepared with great care during several weeks and the applicant again took an active part in the plot.   Although on 25 September 1977 he travelled to Bagdad, the whole action was, in the Court's opinion, carried out with his knowledge, consent and approval.           The findings of the Court of Appeal were based on circumstancial evidence like fingerprints of the applicant and other "RAF" members, evidence given by police officers to whom one of the arrested "RAF" members had freely talked about the group's organisation and activities, the statements made before judicial authorities by two former members who, however, refused to give evidence at the trial for fear of reprisals.           The applicant had also admitted to having been an active "RAF" member.   He had, however, denied participating in any of the actions which resulted in the actual killing of persons.   While there was no evidence to prove the contrary, the Court of Appeal, admitting that not all "RAF" members were informed about or participated in the various criminal activities, nevertheless considered the applicant to be an accomplice (Mittäter), as the killings were only the end-result of preconceived plans, in the realisation of which the applicant had, as the evidence obtained proved, taken an active and deliberate part, knowing and approving the consequences.           In this respect the Court of Appeal referred, inter alia, to previous trials against other "RAF" members and to the statements of "RAF" member Stefan Wisniewski made at his trial before the Düsseldorf Court of Appeal.   Wisniewski, who was found guilty of having participated in the Schleyer kidnapping, had explained that "RAF" actions were decided and carried out on a basis of mutual agreement and accord between the participating members.           The Court of Appeal therefore did not consider it necessary to hear an expert proposed by the applicant's defence on the allegation that not all "RAF" members were informed about and participated in the decision-making on the different actions.           The applicant's appeal on points of law (Revision) against conviction was rejected by the Federal Court (Bundesgerichtshof) on 8 July 1985.   However, the Federal Court quashed the applicant's sentence and sent the case back for a new decision on sentence.           The applicant then lodged a constitutional complaint against the Federal Court's decision rejecting his appeal against conviction. He complained, inter alia, that the trial court had refused to hear an expert on social science on the allegation that an empirical analysis would show that there did not exist a behavioural pattern of collective planning and action within the "RAF".           On 23 December 1985 a group of three judges of the Federal Constitutional Court rejected the complaint as offering no prospects of success.   The decision was received by the applicant's counsel on 13 January 1986.   It is stated in the decision that the trial court's taking and appreciation of evidence was by no means exceptionable. The trial court, so it is further pointed out, was entitled to take into consideration under the applicable procedural law facts and circumstances known to it as a result of other trials.   The trial court had duly informed the defence that certain facts relating to the "RAF" were known from previous proceedings.   Thus the defence did have the opportunity to submit their comments in this respect.   The trial court finding, based on previous trials, that the "RAF" terrorist organisation had a collective structure was not arbitrary.   It is noted in this context that the trial court admitted that not all members were previously informed about every action.   Furthermore, so the Federal Constitutional Court noted, the trial court did not refer to previous proceedings but to the evidence taken at the applicant's trial insofar as the particular circumstances concerned related to the planning and realisation by the group of perpetrators of the crimes in question.   The evidence had been evaluated in accordance with the trial court's competence to do so.     COMPLAINTS           The applicant complains that he was wrongly convicted of murder as there was allegedly no evidence that he participated in any of the killings.   He maintains that it violated his right to a fair trial that no expert was heard on his allegation that, contrary to the statements of certain "RAF" members, a collective structure did not exist within the "RAF" but rather a hierarchical structure with executive groups at different levels which often operated without knowledge of the aims and plans of the decision-making members.   He invokes Article 6 paras. 1 and 3 of the Convention.     THE LAW           The applicant has complained that he was wrongly convicted and sentenced on 7 May 1984 by the Stuttgart Court of Appeal and also of the court proceedings concerned.           With regard to the judicial decisions of which the applicant complains, the Commission recalls that, in accordance with Article 19 (Art. 19) of the Convention, its only task is to ensure the observance of the obligations undertaken by the Parties in the Convention.   In particular, 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 out in the Convention.   The Commission refers, on this point, to its established case-law (see e.g.   No. 458/59, Dec. 29.3.60, Yearbook 3 pp. 222, 236; No. 5258/71, Dec. 8.2.73, Collection 43 pp. 71, 77; No. 7987/77, Dec. 13.12.79, D.R. 18 pp. 31, 45).           It is true that the applicant also complains that the trial court refused to hear an expert on the allegation that the terrorist organisation of which he was a member did not have a collective structure.   In this connection he alleges a violation of Article 6 paras. 1 and 3 (Art. 6-1, 6-3) of the Convention, which provides:   "1.    In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.   Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.   2.    ...   3.    Everyone charged with a criminal offence has the following minimum rights:        (a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;        (b) to have adequate time and facilities for the preparation of his defence;        (c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;        (d) 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;        (e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court."           However, even assuming that the guarantee of a fair trial interpreted in the light of the special guarantees set out in paragraph 3 of the Convention, in particular, the right of the accused to obtain the attendance and examination of witnesses on his behalf (sub-paragraph (d)), includes a right to have an expert opinion obtained on questions which necessitate specialised knowledge, such a right is not an absolute one.   As is the case in regard to the hearing of witnesses, it is, in principle, within the discretionary power of the national courts of the Contracting States to establish whether it is necessary that an expert opinion be obtained for the establishment of the truth (cf.   No. 8231/78, Dec. 6.3.82, D.R. 28 p. 5 [25]).   In the present case the Commission notes that the applicant's conviction is not simply based on the fact and reasoning that he was a member of a terrorist organisation and that it followed from the "collective structure" of this organisation that he was to be considered guilty of the crimes committed by the organisation.   It appears from the carefully and extensively reasoned decision of the trial court that the evidence taken at the applicant's trial proved that he took an active and deliberate part in the planning and realisation of the terrorist plots that led to the killing of several people.           In these circumstances it cannot be found that the court failed to respect Article 6 (Art. 6) of the Convention by not accepting the proposal made by the defence to hear an expert on the question as to whether or not the terrorist organisation did have a collective structure.           It follows that 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.     Deputy Secretary to the Commission             President of the Commission                 (J. RAYMOND)                                (C.A. NØRGAARD)