CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 14 octobre 1992

.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. 18825/91                       by F.P.                       against the Federal Republic of Germany           The European Commission of Human Rights (First Chamber) sitting in private on 14 October 1992, the following members being present:              MM.    F. ERMACORA, Acting President of the First Chamber                  J. A. FROWEIN                  E. BUSUTTIL                  A.S. GÖZÜBÜYÜK            Sir    Basil HALL            Mr.    C.L. ROZAKIS            Mrs.   J. LIDDY            MM.    M. PELLONPÄÄ                  B. MARXER              Mr.    M. de SALVIA, Secretary to the First Chamber           Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;           Having regard to the application introduced on 30 August 1991 by F.P. against the Federal Republic of Germany and registered on 19 September 1991 under file No. 18825/91;           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 applicant is a German citizen born in 1966 and presently detained in prison in Saarbrücken.   He is represented by Mr. René Scholtes, lawyer in Saarbrücken.         It follows from his statements and documents submitted that on 5 October 1989 the applicant was convicted by the Saarbrücken Regional Court (Landgericht) of rape and offering resistance to public officials.   He was sentenced to four years and eight months imprisonment.         The applicant's appeal on points of law (Revision) was rejected by the Federal Court (Bundesgerichtshof) on 26 April 1990.         Insofar as the applicant had complained of the composition of the trial court alleging a violation of procedural rights in respect of the election of the lay judges the Federal Court considered his appeal to be unfounded. The Court stated that according to Section 36 (3) of the Judicature Act (Gerichtsverfassungsgesetz - GVG) the list with proposed lay judges has to be accessible for examination by the public during one week. The beginning of the examination period has to be publicized. Judicial control was limited as to whether these rules had been respected. However, the applicant did not allege in his appeal that any of these rules had been disregarded. He only alleged that the Local Community Statutes (Gemeindesatzung), which inter alia contained provisions as to how publications of the community have to be effected, have themselves not been publicized in the correct manner. The Federal Court considered this argument to be irrelevant as it related only to possible errors or faults in mere preparatory works for the presentation of lists of lay judges. Such errors or faults could in principle not affect the legality of the composition of a court chamber.         For the same reasons the applicant's further argument, that the second lay judge wrongly participated in the trial court's deliberations on his objection about the composition of the trial court, was considered to be unfounded.         The applicant then lodged a constitutional complaint (Verfassungsbeschwerde) which was rejected by the Federal Constitutional Court (Bundesverfassungsgericht) on 19 February 1991 as being clearly ill-founded.         The Court pointed out that the principle, requiring that a court of law had to be established in accordance with the law, served to guarantee the independence of the judiciary. In particular it served to avoid the danger that in a given case the decision-making could be manipulated by the choice of a judge ad hoc. A possible error committed by the administration in the course of the elaboration and communication of Local Community Statutes could in no way influence the independence of the judiciary. Furthermore the applicant had not shown that in his case the choice of the lay judges was in any way affected by arbitrariness.         Furthermore, the fact that contrary to Section 222 (b), para. 2, first sentence, of the Code on Criminal Procedure (Strafprozeßordnung - StPO), the second lay judge had participated in the trial court's decision rejecting the applicant's objections against the composition of this court was irrelevant, as a simple error in procedure constituted a violation of the principle of a fair trial only when it disclosed arbitrariness. There was however no indication that the lay judge's competence to participate in the decision in question had been arbitrarily assumed.     COMPLAINTS         The applicant considers that the local communities in electing lay judges assume functions of the judiciary. Therefore he is of the opinion that contrary to the Federal Constitutional Court's opinion the error committed by a community in connection with the preparation of the election of a lay judge who participated in the trial against him was relevant and amounted to a violation of Article 6 of the Convention. He also considers Article 6 of the Convention to be violated by the fact that contrary to the German Code on Criminal Procedure a lay judge participated in the trial court's deliberation and decision rejecting his objections against the composition of the trial court.   THE LAW         The applicant submits that his case was not heard by a tribunal duly "established by law" because certain Local Community Statutes containing rules on how publications of the community have to be effected, had themselves allegedly not been publicised in a correct manner.   He invokes Article 6 para. 1 (Art. 6-1) of the Convention which provides that "in the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law".         The Commission notes that according to the Federal Court the relevant provision of the domestic law in the present case is Section 36 (3) of the Judicature Act which provides that the list with proposed lay judges has to be accessible for examination by the public during one week and the beginning of the examination period has to be publicised.   According to the Federal Court the applicant had not alleged that any of these rules were violated in his case.         He only complained of alleged errors made in connection with the publication of the Local Community Statutes which contain, inter alia, rules on how publications of the community have to be effected.   The question as to the manner in which these Statutes had to be publicised is however an administrative matter which does not, as such, concern the "establishment" of the court.   Any administrative error in this respect would have to be taken into account only insofar as the error might have caused such prejudice to the applicant as to amount to a denial of justice.   In the present case it is not shown that the alleged technical errors in the community administration did in any way affect the composition of the court and thereby the outcome of the trial.   Consequently, the Commission finds that whatever mistake might have been made did not result in a violation of Article 6 (Art. 6). The application is therefore manifestly ill-founded and has to be rejected in accordance with Article 27 para. 2 (Art. 27-2) of the Convention.           For these reasons, the Commission by a majority           DECLARES THE APPLICATION INADMISSIBLE.     Secretary to the First Chamber     Acting President of the First Chamber             (M. de SALVIA)                      (F. ERMACORA)