CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 2 décembre 1991

.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 }    PARTIAL   AS TO THE ADMISSIBILITY OF   Application No. 13882/88 by Siegfried and Ludwig GRITSCHNEDER against the Federal Republic of Germany     The European Commission of Human Rights sitting in private on 2 December 1991, the following members being present:   MM.C.A. NØRGAARD, President J.A. FROWEIN A.S. GÖZÜBÜYÜK A. WEITZEL J.-C. SOYER H. DANELIUS Mrs.G. H. THUNE SirBasil HALL Mrs.J. LIDDY MM.L. LOUCAIDES A.V. ALMEIDA RIBEIRO M.P. PELLONPÄÄ B. MARXER   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 1991 by Siegfried and Ludwig GRITSCHNEDER against the Federal Republic of Germany and registered on 20 May 1988 under file No. 13882/88;   Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;   Having deliberated;   Decides as follows:   THE FACTS   The facts of the case, as they have been submitted by the applicants, may be summarised as follows.   The first applicant, born in 1940, is a German national and resident in Wuppertal.   He is a jurist.   The second applicant, the first applicant's father born in 1915, is also a German national and resident in Wuppertal.   Before the Commission the first applicant represents the second applicant.   In October 1983 criminal proceedings were instituted against the applicants on the charge of defamation.   On 19 April 1984 the Augsburg Public Prosecutor's Office (Staatsanwaltschaft) preferred the indictment (Anklageschrift) against the applicants.   The Office charged them with defamation, committed in the course of civil proceedings relating to guardianship and hereditary matters in respect of the second applicant's deceased brother.   It found that they had, in several letters to the former custodian, the President of the Augsburg Regional Court (Landgericht) and the President of the Munich Court of Appeal (Oberlandesgericht), reproached the custodian concerned as well as the Neustadt District Court (Amtsgericht) with misuse of powers.   On 27 February 1985, in the course of proceedings concerning the applicants' hierarchical complaints (Dienstaufsichtsbeschwerden) against judges and other members of staff at the Neustadt District Court, the President of the Augsburg District Court unsuccessfully attempted to settle all disputes between the applicants, the custodian, the judges and other staff at the Neustadt District Court involved in the above-mentioned civil proceedings.   The proposed friendly settlement which also provided for termination of the criminal proceedings by withdrawal of the charges (Rücknahme der Strafanträge) failed.   The hierarchical complaints were dismissed in November and December 1985.   On 16 January 1986 the Neustadt District Court committed the applicants for trial (Eröffnung des Hauptverfahrens).   In the following proceedings the applicants were assisted by counsel.   On 14 April 1986 the Neustadt District Court, upon hearings on 24 and 26 March, 7 and 14 April 1986, convicted the applicants of defamation on two counts and imposed fines of DM 2000 each, namely 50 daily rates à DM 40.   The District Court, having heard several witnesses, found that the applicants, in various letters, had wrongly reproached the former custodian of the second applicant's deceased brother and staff of the Neuburg District Court, in particular the judicial assistant (Rechts- pfleger) in charge of custody matters, with misuse of powers and irregularities, inter alia, in respect of the sale of a collection of coins.   The applicants' defamatory remarks were not justified for protection of their rightful interests (Wahrnehmung berechtigter Interessen).   In view of the circumstances of the case they were inappropriate and disproportionate means to clarify the allegations.   The applicants' request to hear the custodian was dismissed on the ground of his lasting bad health. Their request to consult internal files of the Director of the Neustadt District Court was dismissed on account of the Director's refusal to hand over these documents destined for internal use only.   The judgment was served on 16 June 1986.   On 30 January 1987 the Augsburg Regional Court, upon the applicants' appeal (Berufung), quashed the District Court's judgment of 14 April 1986 and acquitted the applicants.   The Regional Court, proceeding on the basis of the same facts as the District Court, considered that the applicants' defamatory remarks were justified on the ground that they had acted in order to protect their rightful interests.   Despite official information to the contrary, the applicants had been convinced of the alleged irregularities at Neustadt to the disadvantage of the second applicant's deceased brother.   As relatives and heirs, they could not be blamed for having addressed themselves to all possible authorities in order to have the alleged criminal offences prosecuted.   The judgment was served on 19 June 1987.   On 22 October 1987 the Bavarian Court of Appeal (Oberlandes- gericht), upon the appeal on points of law (Revision) of the Augsburg Public Prosecutor's Office, quashed the judgment of the Augsburg Regional Court.   However, the establishment of the material facts (tatsächliche Feststellungen zum äußeren Tatgeschehen) was upheld. The case was sent back to another Chamber at the Augsburg Regional Court. The Court of Appeal considered that a person could not claim to have protected his rightful interests, if he had already been officially informed about the incorrectness of his defamatory remarks. The Regional Court had not duly taken this consideration into account when it had referred to correct information given to the applicants.   On 15 January 1988 the Bavarian Court of Appeal declared the first applicant's appeal (Beschwerde) against its judgment of 22 October 1987 inadmissible.   On 7 March 1988 the Federal Constitutional Court (Bundesver- fassungsgericht) refused to admit the applicants' constitutional complaint (Verfassungsbeschwerde) concerning the judgment of the Bavarian Court of Appeal of 22 October 1987 and the delay of the criminal proceedings against them.   The Constitutional Court found that the second applicant had failed to pay the advance court fees. The first applicant's complaints were inadmissible on the grounds that he had not suffered any immediate prejudice due to the Court of Appeal's judgment, and that, having regard to the subsidiary character of the constitutional complaint, he had to raise the complaint about the length of the criminal proceedings first in the proceedings as such, in particular at the trial and possibly in his appeal on points of law. The competent courts had first to establish whether or not proceedings had lasted unreasonably long, and what consequences had to be drawn.   On 29 July 1988, in the course of the trial before another Chamber at the Augsburg Regional Court, the proceedings against the second applicant were discontinued with regard to his minor guilt. The cost of the proceedings and the second applicant's necessary expenses were to be borne by the Treasury.   At the same day, the Regional Court dismissed the first applicant's appeal against the judgment of 14 April 1986.   The fine was reduced to DM 1400 (35 daily rates à DM 40).   The Regional Court found that the first applicant had made defamatory remarks about the above-mentioned custodian and the judicial assistant at the Neustadt District Court, the truth of which he had failed to prove.   As regards one of his letters containing such defamatory passages, he could claim to have acted in order to protect his rightful interests, whereas a further letter only contained insulting remarks.   However, subsequently the first applicant had been informed by the Director of the Neustadt District Court about the incorrectness of his allegations, he had been informed about the comments of the custodian and the judicial assistant upon the charges against them and he had received the decision of the Public Prosecutor's Office to discontinue prosecution of the persons concerned.   After this official information by the competent authorities, he could no longer claim to have acted in order to protect his rightful interests, although he might still have been convinced of the truth of his allegations.   In fixing the sentence the Regional Court noted that the proceedings had been conducted very slowly, partly due to the first applicant's numerous submissions. Balancing all aggravating and mitigating circumstances, it found a fine calculated on the basis of 35 daily rates to be appropriate and sufficient.   On 15 March 1989 the Bavarian Court of Appeal dismissed the first applicant's appeal on points of law against the Regional Court's judgment of 29 July 1988.   The second applicant's appeal on points of law was declared inadmissible on the ground that there was no appeal against the decision to discontinue the criminal proceedings against him.   On 25 September 1989 the Federal Constitutional Court refused to admit the second applicant's constitutional complaint on the ground that it had been lodged out of time.   On 27 February 1990 the Federal Constitutional Court refused to admit the first applicant's constitutional complaint on the ground that it offered no prospect of success.   The Constitutional Court considered in particular that the judgments complained of could not be objected to under constitutional law.   The reasoning of the trial courts did not disclose any arbitrariness.    The Regional Court had taken the length of the proceedings duly into account when considering all relevant circumstances in fixing the sentence.   Further proceedings in 1989 concerned the compensation of the second applicant's necessary expenses. COMPLAINTS   The applicants complain about the length of the criminal proceedings against them.   They also complain that the proceedings were unfair.   They submit in particular that the Neustadt District Court at the trial in 1986, and the Augsburg Regional Court at the trial in 1988 had not duly taken evidence.   Furthermore the second applicant submits that despite his hardness of hearing, no official defence counsel had been appointed.   They invoke Articles 5, 6 and 10 of the Convention.     THE LAW   1.As regards the first applicant's complaints about the criminal proceedings against him, in particular their length, the Commission finds that further information is required and accordingly reserves the examination of the admissibility of this part of the application.   2.The Commission is not required to decide whether or not the facts submitted by the second applicant disclose any appearance of a violation of the Convention as the applicant has not, in accordance with Article 26 (Art. 26) of the Convention, exhausted the remedies available under German law.   In this respect the Commission recalls that there is no exhaustion of domestic remedies where a domestic appeal is not admitted because of a procedural mistake (cf. No. 6878/75, Dec. 6.10.76, D.R. 6 p. 79).   In the present case, the Federal Constitutional Court declared the second applicant's constitutional complaint inadmissible as having been lodged out of time. It follows that his complaints must be rejected under Article 27 para. 3 (Art. 27-3) of the Convention.     For these reasons, the Commission, unanimously,   1.DECIDES TO ADJOURN THE EXAMINATION OF THE FIRST APPLICANT'S COMPLAINTS;   2.DECLARES INADMISSIBLE THE SECOND APPLICANT'S COMPLAINTS.       (Secretary to the Commission)             (President of the Commission)          (H. C. KRÜGER)                              (C. A. NØRGAARD)