CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 2 octobre 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. 12725/87                         by W.M.                         against the Federal Republic of Germany             The European Commission of Human Rights sitting in private on 2 October 1989, the following members being present:                 MM. C.A. NØRGAARD, President                   A.S. GÖZÜBÜYÜK                   A. WEITZEL                   J.-C. SOYER                   H.G. SCHERMERS                   H. DANELIUS                   G. BATLINER                   J. CAMPINOS              Mrs.   G.H. THUNE              Sir   Basil HALL              MM.   F. MARTINEZ                   L. LOUCAIDES                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 August 1986 by W.M. against the Federal Republic of Germany and registered on 16 February 1989 under file No. 12725/87;           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           The applicant is a German citizen born in 1942 who is serving a sentence in the prison of Amberg.   He complains of the criminal proceedings which led to his conviction and sentence, as well as certain subsequent proceedings.   The facts as submitted by the applicant may be summarised as follows.           On 21 October 1983 the applicant was arrested on a suspicion of fraud.   Following lengthy investigations an indictment was preferred against him on 22 February 1985 in which he was charged with fraud on numerous counts and with a number of other related offences. On 10 May 1985 the Regional Court (Landgericht) of Nürnberg-Fürth admitted the indictment and ordered the opening of the main proceedings.   The trial was to begin on 3 June 1985.   On 22 May 1985 the applicant asked the Court to reconsider its decision on the opening of the main proceedings.   He referred to negotiations between his defence counsel and the prosecution as to possible admissions and the length of sentence, but observed that the prosecution's proposals in this context were unacceptable to him.   Therefore the trial would have to be held in the normal way and should be postponed as he had not yet received all the evidence and disposed of insufficient preparatory time.   He also asked for the hearing of numerous witnesses and for the discontinuation of the proceedings concerning certain charges.           However, the trial was not postponed and began on 3 June 1985; it continued on six days of hearings until 18 June 1985.   On the basis of the agreement negotiated between the prosecution and the defence with the consent of the Court, the prosecution dropped certain charges in respect of which the Court discontinued the proceedings.   As regards the remaining charges the Court heard only the applicant, but no witnesses.   The prosecution finally requested a sentence of seven years and six months.   The defence did not oppose the legal arguments of the prosecution, but asked for a mild sentence.   On 18 June 1985, the Court found the applicant guilty as charged.   Noting the applicant's comprehensive confession as a mitigating circumstance, it imposed a sentence of six years and six months.   It expressly refrained from imposing a measure of preventive detention.           Immediately following pronouncement of the judgment, the Court reopened its hearing and took note of declarations by the prosecution and the defence, i.e. the applicant himself and his counsel, that they waived the right to appeal (Rechtsmittelverzicht).   However, already on 19 June 1985 the applicant revoked his waiver, announcing that he wished to appeal against the judgment to the Federal Court of Justice (Bundesgerichtshof).   He submitted that the waiver was invalid for various reasons:   it was inadmissible to reopen the court hearing after the close of the trial and to require him to make immediately a binding declaration on the use of remedies; moreover he had acted under constraint by his official defence counsel (who had threatened to terminate his mandate) and by the prosecution (who had threatened that in case of an appeal by the applicant they would also appeal and request a higher sentence including a measure of preventive detention); finally the waiver was invalid because he had appended a condition (that the description of his character as "mean" and "ruthless" should not appear in the written judgment) and because certain formalities had not been observed.   He also submitted that an appeal was justified because the Court had not dealt with his request of 22 May 1985 to discontinue the proceedings concerning certain charges, and because it had failed to sufficiently clarify the facts.   In September 1985 the applicant developed his grounds of appeal in detail, in December 1985 he requested to be informed of the observations of the Federal Attorney General (Generalbundesanwalt) which, however, were never served upon him.           On 14 January 1986 the Federal Court of Justice rejected the appeal as being inadmissible, finding that the applicant had validly waived his right to appeal.   Basing itself on official statements by the professional judges of the Regional Court and by the applicant's official defence counsel, the Federal Court found it established that the necessary formalities had been observed, that the applicant had dropped the condition which he had first appended to his waiver, and that he had not been urged by the Court to waive his right to appeal.   It could be left open whether an appeal was exceptionally open in case of constraint as in any event there had been no constraint by the prosecution or the defence counsel in the present case.           The applicant then lodged a constitutional appeal which the Federal Constitutional Court (Bundesverfassungsgericht) rejected on 12 February 1986.   Its decision was served on the applicant on 18 February 1986.           The applicant subsequently tried to institute criminal proceedings against the judges of the Regional Court.   However, on 8 October 1986 the Nürnberg Court of Appeal (Oberlandesgericht) refused him legal aid for an action to enforce such proceedings.   Thereupon the applicant tried to institute criminal proceedings against the judges of the latter Court.   On 21 May 1987 it refused him legal aid also in this case.   The applicant's constitutional complaints against these two decisions were rejected by the Federal Constitutional Court on 9 January and 18 August 1987 respectively.   COMPLAINTS           Regarding the criminal proceedings against him, the applicant alleges violations of Article 6 paras. 1, 2 and 3 (b), (c), and (d) of the Convention.   He claims in particular that his official defence counsel did not assist him effectively, but instead negotiated an agreement with the prosecution and the Regional Court which for this reason was not impartial and disregarded the presumption of innocence. The applicant was thereby caused to make untrue admissions - he denies that he actually made a comprehensive confession - and to waive his right to the hearing and questioning of witnesses.   Finally, he was urged by the Regional Court, in the light of threats by the prosecution and his own defence counsel, to waive his right of appeal. The Federal Court of Justice did not respect his right to be heard as it did not make available the submissions of the Federal Attorney General and as it refused to deal with the question of constraint. Finally, the Federal Constitutional Court unfairly denied a violation of his constitutional rights.           Regarding the subsequent proceedings in which he sought the criminal prosecution of judges, the applicant alleges violations of Article 6 para. 1 of the Convention in that he did not have a fair hearing by an impartial tribunal.   THE LAW   1.       The applicant complains of criminal proceedings in which he was convicted of fraud and other related offences and sentenced to six years and six months' imprisonment.   He invokes Article 6 paras. 1, 2 and 3 (b), (c) and (d) (Art. 6-1, 6-2, 6-3-b, 6-3-c, 6-3-d) of the Convention which read as follows:   "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. ...   2.    Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.   3.    Everyone charged with a criminal offence has the following minimum rights:           ...        (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;           ..."           The Commission notes that the applicant's conviction was based on his confession made following an agreement between the defence and the prosecution with the consent of the Court.   The agreement also concerned the length of the sentence and the waiver of the right to appeal.   The applicant subsequently nevertheless lodged an appeal, contending that the waiver was invalid on various grounds.   However, the Federal Court of Justice found it to be valid and therefore rejected the applicant's appeal as inadmissible.   The Federal Constitutional Court found no violation of the Basic Law in this way of proceeding.           The Commission recalls that a person may in certain circumstances validly waive rights under Article 6 (Art. 6) of the Convention (cf. No. 1197/61, Dec. 5.3.62, Collection 8 pp. 68, 73; Deweer v. Belgium, Comm. Report 5.10.78, paras. 55 et seq., confirmed by Eur. Court H.R., Deweer judgment of 27 February 1980, Series A no. 35, p. 25, paras. 49 et seq.; No. 9177/80, Dec. 6.10.81, D.R. 26 pp. 255, 258; No. 10802/84, Pfeifer and Plankl v.   Austria, Dec. 8.5.1989, to be published in D.R.).   The Commission is satisfied that the present applicant had accepted the agreement negotiated by his official defence counsel and thereby waived a contradictory procedure, the hearing and questioning of witnesses, and the assertion of his defence in a different manner.   By making a confession regarding the prosecution case insofar as it was maintained, he is also debarred from invoking the presumption of innocence in this respect, nor can he claim that the Regional Court was not impartial or acted unfairly when accepting his admissions.           The Commission notes that in his appeal to the Federal Court of Justice the applicant wanted to re-open the above issues.   However, the Federal Court declared the appeal inadmissible because it considered that the applicant's waiver of his right to appeal was valid.   The applicant contests this, but the Commission finds no indication that when declaring his waiver the applicant acted under constraint or was misled as to his legal situation.           The waiver of his right to appeal was part and parcel of the agreement previously accepted by the applicant who had shown by his behaviour at the trial that he consented to the procedure.   In the circumstances it was not unreasonable to require him immediately after the pronouncement of the judgment to fulfil the last part of the agreement by renouncing an appeal, in particular as the matter had been previously discussed.   Not only his defence counsel but also the applicant himself declared that they waived the right to appeal.   The applicant thus was not taken by surprise.   Nor was unjustified pressure exerted against him.   The Commission here notes the Federal Court's findings that the necessary formalities were observed, that the applicant dropped the condition to which he had first wished to subject his waiver and that the Regional Court did not urge him to forgo his right of appeal.   The Commission also notes the applicant's submission that his defence counsel urged him to do so, indicating that otherwise he would terminate his mandate.   However, it is understandable that the defence counsel who had negotiated the agreement felt bound by it and was not prepared to continue to represent the applicant if he insisted on filing an appeal.   Nor can it be regarded as a measure of inadmissible constraint that the prosecution declared that they would no longer feel bound by the agreement if the applicant appealed, and that in this case they would also have to consider filing an appeal.           In conclusion the Commission therefore finds that having regard to the particular circumstances the applicant has had a fair trial in conformity with the requirements of Article 6 (Art. 6) of the Convention.   This part of the application must accordingly be rejected as being manifestly ill-founded within the meaning of Article 27 para. 2.   2.       The applicant further complains that in the proceedings by which he tried to enforce a criminal prosecution of certain judges of the Regional Court and of the Court of Appeal he did not have a fair hearing by an impartial tribunal as required by Article 6 para. 1 (Art. 6-1) of the Convention.   The Commission observes, however, that this provision is only applicable to proceedings on the determination of an applicant's civil rights and obligations, or of a criminal charge against him.   The proceedings at issue did not concern the applicant's civil rights and obligations, nor a criminal charge against the applicant.   The Convention does not guarantee any right to the institution of criminal proceedings against third persons, nor does it give procedural guarantees in proceedings whereby the institution of such proceedings is requested.   It follows that the remainder of the application is incompatible with the provisions of the Convention, ratione materiae, and that it must also be rejected under Article 27 para. 2 (Art. 27-2).           For these reasons, the Commission           DECLARES THE APPLICATION INADMISSIBLE.       Secretary to the Commission          President of the Commission             (H. C. KRÜGER)                        (C. A. NØRGAARD)