CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 19 janvier 1989

.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. 13666/88                       by H.B.                       against the Federal Republic of Germany             The European Commission of Human Rights sitting in private on 19 January 1989, the following members being present:                 MM. C.A. NØRGAARD, President                   G. SPERDUTI                   E. BUSUTTIL                   G. JÖRUNDSSON                   A.S. GÖZÜBÜYÜK                   A. WEITZEL                   J.-C. SOYER                   H.G. SCHERMERS                   H. DANELIUS                   G. BATLINER                   H. VANDENBERGHE              Mrs.   G.H. THUNE              Sir   Basil HALL              MM.   F. MARTINEZ              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 17 November 1987 by H.B. against the Federal Republic of Germany and registered on 18 February 1988 under file No. 13666/88;           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 1940 and living in Lindlor.   He is represented by Messrs.   Millinger and Partners, lawyers in Essen.           The facts, as submitted by the applicant, may be summarised as follows:           The application relates to criminal proceedings against the applicant in which he was defended by a defence counsel of his own choice.   In addition the court had appointed an official defence counsel for the applicant's defence.           On 23 May 1984 the applicant was convicted by the Cologne Regional Court (Landgericht) of evasion of income tax, turnover tax, four counts of breach of trust (Untreue), attempted fraud, embezzlement (Unterschlagung), five violations of an obligation to respect confidentiality (Verletzung der Vertraulichkeit des Wortes) and a violation of the Act on Detention of Weapons (Waffengesetz). He was sentenced to three years and nine months' imprisonment.           On appeal on points of law (Revision) the Federal Court (Bundesgerichtshof) quashed the conviction for embezzlement and the whole sentence on 22 January 1985.   To this extent it sent the case back to another chamber of the Regional Court for a new trial.   The Federal Court also considered that the applicant's conviction for tax evasion had to be limited to evasion of turnover tax.   Furthermore, the Federal Court discontinued the proceedings insofar as they related to charges of violation of an obligation to respect confidentiality.           In view of these amendments the applicant remained convicted of tax evasion, four counts of breach of trust, attempted fraud and a violation of the Act on Detention of Weapons.           In the course of the new trial the Cologne Regional Court provisionally discontinued the proceedings in relation to the charge of embezzlement and convicted the applicant only to the extent that the Federal Court had confirmed the previous conviction.   It sentenced the applicant on 29 December 1986 to three years and nine months' imprisonment.   This sentence comprised another sentence imposed on the applicant on 29 August 1985 by the Cologne District Court (Amtsgericht), namely several fines which were transformed into part of the prison sentence.           The fact-finding of the second trial before the Regional Court was limited to circumstances relevant for fixing the sentence, such as the applicant's personal and financial situation.           In this context the Regional Court decided on 6 August 1986, at the request of the defence, to hear a medical expert on the question whether or not the applicant's criminal responsibility had been affected on account of events he lived through as a child in connection with Nazi persecution directed against his family.   The applicant's brother, a member of the resistance movement, had been executed by the Gestapo in 1944 and his parents and sister were detained and ill-treated in a concentration camp-like detention centre.   The defence furthermore alleged that the applicant's actions had been provoked by disloyal behaviour of his former friend and partner.           In view of the preparation of the expert opinion the trial was adjourned for an undetermined period.   On 28 November 1986 the trial court's president ordered that the trial be continued on 12, 16, 18, 22 and 29 December.   This order was based on oral information received by telephone from the medical expert.   He told the presiding judge that he had the applicant examined and invited for a final examination on 11 December 1986.           On 9 December 1986 the applicant's chosen defence counsel informed the court that, for professional and health reasons, they were prevented from attending the hearings of 16, 18 and 22 December. Therefore they requested an adjournment pointing out that they had not yet been informed of any results of the medical examination.   This request was rejected the same day.           At the oral hearing on 12 December the applicant's chosen defence counsel again requested that the trial be adjourned.   The request was rejected on the ground that the proceedings had to be terminated within a reasonable time.           The hearing of 12 December was not attended by the official defence counsel.   However, this counsel attended the hearings of 16, 18 and 22 December while the chosen defence counsel was prevented on these three days.           On 15 December 1986 the applicant's chosen defence counsel received the written expert opinion.           On 16 December 1986 the applicant himself read out a preformulated request for an adjournment.   He pointed out that the official defence counsel had neither attended all previous hearings at the first trial nor participated in the preparation and hearing of his appeal.   He therefore considered that only his chosen defence counsel could assure his defence in an adequate manner.   The applicant's request was also rejected.           At the hearing of 16 December 1986 the official defence counsel suggested that the expert be heard on 29 December 1986 when the chosen defence counsel would again be able to attend.   The expert, however, was heard on 18 December 1986.           The chosen defence counsel eventually participated at the final hearing of 29 December which lasted from 9.15 to 18.25 hrs.   The official defence counsel only attended until 10.55.   On 29 December the taking of evidence was terminated with the hearing of three witnesses.   The applicant's chosen defence counsel allegedly renounced their pleading.           They considered that they were not in a position to comment on the result of the taking of evidence and to defend the applicant in an adequate manner as they had not attended the hearings of 16, 18 and 22 December.           The trial court stated in its judgment of 29 December 1986 that it had no doubts as to the applicant's criminal responsibility given that the medical expert had not found any indication of a severe personality disorder or any other serious mental disturbance, despite a thorough examination of the applicant himself, a medical report   established by other doctors who had previously examined the applicant, and the description of the applicant's personal circumstances in the submissions of his defence - circumstances which were considered to be proven.           The applicant's appeal on points of law against the judgment of 29 December 1986 was rejected by the Federal Court on 21 August 1987 as being ill-founded.   The applicant's complaint that the request for adjournment as repeated by his chosen defence counsel on 12 December 1986 had been wrongly rejected was held to be inadmissible because the contents of this request had not been stated in the grounds given for the appeal.   The further complaint concerning the refusal of the request for an adjournment made by the applicant himself on 16 December 1986 was considered to be ill-founded.           The applicant then lodged a constitutional complaint (Ver- fassungsbeschwerde) against the judgment of 29 January 1986 and the Federal Court's decision of 21 August 1987.   This complaint was rejected by a group of three judges of the Federal Constitutional Court (Bundesverfassungsgericht) on 14 December 1987 as offering no prospects of success.   It is stated in the decision that the constitutional complaint was inadmissible insofar as the applicant failed to exhaust ordinary remedies in respect of the dismissal of the request of adjournment made on 12 December 1986.   As to the remainder of his complaints, it is pointed out that throughout the hearings of the second trial the applicant had been assisted by at least one defence counsel.   The Constitutional Court also stated that, in deciding on a request for adjournment, the trial court had to weigh the interest in speedy proceedings on the one hand and the defendant's interest in being assisted by his chosen defence counsel on the other. There was nothing to show that in deciding on the conflicting interests the trial court disregarded constitutional standards.     COMPLAINTS           The applicant alleges that his official defence counsel had practically not been involved in his case since May 1984.   In particular, the official defence counsel did not participate at the hearings of 4 and 6 August 1986 when the reasons for obtaining a medical expert opinion were discussed.   Furthermore, he allegedly never contacted the applicant nor did he inspect the files for the preparation of the defence.           As the chosen and the official defence counsel did not work as a team replacing each other mutually, the applicant considers that he was not adequately defended because only his chosen defence counsel was sufficiently informed about his case but could not attend important parts of the trial as a consequence of the trial court's refusal to adjourn the hearings.   He alleges a violation of Article 6 of the Convention.   THE LAW           The applicant complains of the refusal of his request for an adjournment of the final hearings in his second trial which took place on 12, 16, 18, 22 and 29 December 1986.   Therefore his chosen defence counsel was unable to attend the hearings of 16, 18 and 22 December. The applicant argues that, as a consequence, he was not adequately defended because his official defence counsel who was present at the hearings of 16, 18 and 22 December was allegedly not sufficiently familiar with the case, while his chosen counsel who attended the last day of the hearings, on 29 December, was then not in a position to sum up the defence's arguments in final submissions because he had not attended the preceding hearings.           It is true that Article 6 para. 1 (Art. 6-1) of the Convention guarantees the right to a fair trial and paragraph 3(c) of Article 6 (Art. 6-3-c), which enumerates one of the constituent elements of this general notion, provides for the accused's right "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".           However, admitting that an accused has a legitimate interest to be defended by his chosen counsel, there may arise situations where the chosen counsel is prevented from assuming the defence while it is in the interest of justice, and normally also in the interest of the accused, to speed up the proceedings.           In such cases an adequate defence may also be provided by an officially appointed defence counsel.   The Commission's competence of control is, in this respect, limited to ascertaining whether the accused had the benefit of a defence that was "practical and effective" (Eur.   Court H.R., Goddi judgment of 9 April 1984, Series A no. 76, p. 11, para. 27).           As regards the circumstances of the present case the Commission notes that the criminal proceedings against the applicant were pending for several years.   He was first convicted on 23 May 1984.   The conviction became final to the extent that it was confirmed by the Federal Court on 22 January 1985.   The Federal Court only quashed the conviction insofar as it related to a charge of embezzlement.   At the second trial the Cologne Regional Court did not determine this remaining charge as it discontinued the proceedings provisionally. Thus the new trial before the Cologne Regional Court was limited to the determination of a new sentence as the Federal Court had also quashed the sentence imposed on the applicant by judgment of 23 May 1984.   This issue involved the question whether or not the applicant was criminally responsible. In this respect the applicant had mainly alleged that as a child he had been seriously affected by Nazi persecution to which his family had been exposed. The written medical expert opinion on the question of the applicant's criminal responsibility was communicated to the applicant's chosen defence counsel on 15 December 1986.   The expert explained his opinion at the     hearing of 18 December 1986 when the applicant was defended by the official defence counsel who had already been appointed for the first trial.   The Commission finds no indication that the question on which the expert was consulted raised complex problems which only the chosen defence counsel would have been able to deal with.   In fact both the medical expert and the trial court accepted as true the applicant's description of the events which allegedly affected him psychologically. In any event the applicant's chosen defence counsel was informed about the dates of the December hearings on 28 November 1986.   On 9 December 1986 his request for an adjournment was rejected.   He thus disposed of several days to instruct the official defence counsel with regard to the factual situation relevant for the medical expert opinion. Furthermore there is nothing to show that the expert's written report, which was communicated to the chosen defence counsel on 15 December 1986 and which was explained orally by the expert at the hearing of 18 December, was of such a complicated nature that the applicant's defence would have needed more time to prepare its comments on this report.           Between the hearings of 16, 18 and 22 December and the last hearing of 29 December, when the applicant's chosen counsel was again attending the trial, the defence again disposed of several days during which the official defence counsel, who had attended these hearings, could inform the chosen defence counsel about what had been discussed or said at the hearings which the latter had been prevented from attending.   The applicant alleged that the two counsel did not collaborate.   However,the two defence counsel had a duty to see to it that the applicant was adequately defended and there is nothing to show that an exchange of information between them had not been possible, either in view of the complexity of the matter dealt with or for any other justified reasons.           In these circumstances the Commission cannot find that the trial court's repeated refusal to adjourn the December hearings deprived the applicant of the benefit of a practical and effective defence.           It follows that there is no appearance of a violation of the Convention and, in particular, of Article 6 (Art. 6) and consequently 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)