CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 12 février 1990

.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. 14453/88                       by   I.H.                       against the Federal Republic of Germany             The European Commission of Human Rights sitting in private on 12 February 1990, the following members being present:                 MM. C.A. NØRGAARD, President                   J.A. FROWEIN                   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                   C.L. ROZAKIS              Mrs.   J. LIDDY              Mr.   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 13 September 1988 by I.H. against the Federal Republic of Germany and   registered on 29 November 1988 under file No. 14453/88;           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 1913 and living in Köln-Marienburg.   He is represented by Mr. H. Millinger and partners, lawyers in Essen.           The applicant complains that, in connection with the crash of a bank which he ran under his name, he was convicted and sentenced although he was allegedly at least partly unfit to stand trial.           On 16 December 1984 the applicant was convicted by the Cologne Regional Court (Landgericht) of bankruptcy and breach of trust (Bankrott und Untreue).   He was sentenced to four years' imprisonment.           On appeal on points of law (Revision) the Federal Court (Bundesgerichtshof) found on 16 October 1985 that the applicant was guilty only of breach of trust and therefore quashed the sentence and referred the case back to the Regional Court for the purpose of determining a new sentence.           On 21 May 1987 the Regional Court sentenced the applicant to two years' imprisonment and granted a stay of execution on probation. As a mitigating factor the Court took into account, inter alia, that the applicant might possibly have been affected at the relevant time by the first signs of his present Pickwick syndrome complaints but not to such an extent as to exclude his criminal reponsibility.   The hearings of this trial were held on 5, 7, 11, 13, 15, 19 and 21 May 1987.           The applicant's final submission (Schlusswort) that his bank's balance sheets had been tampered with by employees without his knowledge was not taken into account by the Regional Court.   The Court pointed out that in this respect it was bound by the findings in the previous judgment of 16 December 1984.   The allegations in question had then been considered to be contradicted by other available evidence.   These previous findings, so the Regional Court pointed out, had become binding in that the Federal Court confirmed the applicant's conviction of breach of trust.   The conviction thereby became final.           The applicant lodged another appeal on points of law (Revision) against the Regional Court's judgment of 21 May 1987 sentencing him to two years' imprisonment.   This appeal was rejected by the Federal Court on 20 April 1988 as being clearly ill-founded.           The applicant then lodged a constitutional complaint alleging that in consequence of his Pickwick syndrome complaints, which were discovered subsequent to his conviction in 1984, he had been unfit for trial both in 1984 and 1987.           On 27 July 1988 a group of three judges of the Federal Constitutional Court (Bundesverfassungsgericht) rejected the complaint as being partly inadmissible and as lacking prospects of success as to the remainder.   The inadmissible part concerned the conviction which had become final on 16 October 1985 and had not been complained of within the time-limit provided for in Sec. 93 (1) of the Federal Constitutional Court Act (BVerfGG).   Insofar as the applicant complained of the new proceedings before the Regional and the Federal Courts relating to the determination of another sentence, the Constitutional Court considered that there was nothing to show that these Courts had arbitrarily considered the applicant fit to stand trial.   COMPLAINTS           The applicant maintains that he was unfit for trial because he allegedly already suffered from the Pickwick syndrome during his first trial in 1984 which, however, was only discovered later.   He submits that the Pickwick syndrome has only been known of since 1956.   It affects a person at night-time in that, whilst asleep, breathing stops from time to time.   The lack of oxygen supply then affects the brain and causes blackouts as well as difficulties to concentrate and judge complex situations.           According to an expert report of 17 May 1987 submitted by the applicant in connection with his second appeal on grounds of law, the applicant has been suffering from the Pickwick syndrome since 1970 and his fitness to stand trial had been limited (eingeschränkt) but not permanently excluded.           The applicant alleges that due to his illness he was not in a position to follow great parts of his first trial in 1984.   This situation, so he submits, was not remedied by the second trial as the Regional Court then considered itself bound by the prior findings on which his conviction for breach of trust had been based.           He also complains that great parts of the trial in 1984 took place in his absence as the Court wrongly considered an operation he underwent at the time to have a pace-maker implanted as a delaying manoeuvre and refused to adjourn the proceedings.           For all these reasons the applicant considers he did not receive a fair trial within the meaning of Article 6 of the Convention.           He considers that domestic remedies have been exhausted by his complaint to the Federal Constitutional Court of the Federal Court's second decision of 20 April 1988.   A constitutional complaint against the Federal Court's first decision of 16 October 1985 would in his opinion have had no chances of success because the criminal proceedings were not terminated by that decision and consequently the ordinary remedies were not yet exhausted at that moment.   THE LAW   1.       Insofar as the applicant complains that great parts of the trial against him in 1984 were conducted in his absence, the Commission is not required to decide whether or not the facts alleged by him disclose any appearance of a violation of Article 6 (Art. 6) of the Convention (fair hearing), as Article 26 (Art. 26) of the Convention provides that the Commission "may only deal with a matter after all domestic remedies have been exhausted according to the generally recognised rules of international law ...".           In the present case the applicant failed to lodge a constitutional complaint on time.   Therefore the Federal Constitutional Court rejected his constitutional complaint as being inadmissible insofar as it related to his conviction which became final when the Federal Court held on 16 October 1985 that he was guilty of breach of trust.   In these circumstances he cannot be considered as having exhausted the remedies available to him under German law.   Moreover, an examination of the case does not disclose the existence of any special circumstances which might have absolved the applicant, according to the generally recognised rules of international law, from exhausting the domestic remedies at his disposal.   2.       The applicant further complains that, both at the trial proceedings in 1984 leading to his conviction and in the proceedings in 1987 relating to the determination of sentence, he was unfit to defend himself adequately in consequence of the complaints caused by the so-called Pickwick syndrome.   This syndrome was only recently discovered, namely in 1987, when it was no longer possible to lodge a constitutional complaint against the Federal Court's decision of 16 October 1985 finalising the applicant's conviction of breach of trust.           In view of these particular circumstances, the Commission considers that the applicant can be considered as having exhausted domestic remedies in that he invoked his Pickwick syndrome complaint in his second appeal on points of law and his subsequent constitutional complaint.           However, insofar as the right to a fair trial is at issue the applicant has not shown that the Pickwick syndrome rendered him unfit to stand trial.   It follows from the medical reports submitted by him that his capacity to attend the hearings was possibly limited but not excluded.   This was duly taken into account by the trial court which held the hearings at intervals.           Furthermore, the applicant was defended by counsel.   He has himself not alleged that he has not been able to instruct his defence counsel in order to be defended in an adequate manner.   The applicant has also been able himself to make use of the right to finalise submissions.           In these circumstances there is nothing to show that the defence was prevented from submitting all facts and arguments it considered relevant and that the applicant was denied a fair hearing.           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)