CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 20 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 } .s23A41E03 { width:36pt; display:inline-block }             AS TO THE ADMISSIBILITY OF                         Application No. 18337/91                       by Lothar PREISSLER                       against the Federal Republic of Germany         The European Commission of Human Rights sitting in private on 20 October 1992, the following members being present:              MM.    F. ERMACORA, Acting President of the First Chamber                  E. BUSUTTIL            Sir    Basil HALL            Mr.    C.L. ROZAKIS            Mrs.   J. LIDDY            MM.    M.P. 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 10 June 1991 by Lothar Preissler against the Federal Republic of Germany and registered on 24 June 1991 under file No. 18337/91;           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 1941 and detained in prison in Willich.   He is represented by Mr. Hans-Otto Sieg, a lawyer practising in Frankfurt-on-Main.         It follows from the applicant's statements and the documents submitted that on 2 November 1987 he was convicted by the Duisburg Regional Court (Landgericht) of two counts of murder with aggravated robbery and sentenced to life imprisonment.   The trial court's judgment comprises 187 pages.         According to the findings of the trial court which were mainly based on the evidence given by the applicant's accomplice and co-accused D., who was convicted of joint robbery and sentenced to seven years' imprisonment, on the night of 2-3 January 1978 the applicant had shot an American and a Spanish citizen in Torremolinos, Spain.   The exact time of death of the victims could not be determined. On the basis of a medical expert opinion the court stated that it could only be ascertained that the deaths occurred after midnight on 2 January 1978.         D. and the applicant had planned to rob someone as they were short of money.   They went to have some drinks and D. met an American citizen who was drunk.   D. suggested to the American that they go to another bar to have a coffee.   On the way to this bar they were followed by the applicant who eventually shot the American from behind. The applicant then shot a Spaniard who had witnessed the first shooting.         D. and the applicant were denounced by a witness, Astrid L., who informed the public prosecutor in Augsburg in a letter of 20 October 1978 that the applicant had boasted about having killed two people in Spain.         The trial court stated that D.'s confessions in his various statements made before the police, the investigating judge and the trial court were coherent and consistent in so far as the core of the matter was concerned.   It points out that in the given circumstances it nevertheless had to evaluate these statements with particular care. In the opinion of the court D.'s statements were corroborated by circumstantial evidence and the evidence given by various witnesses, inter alia police officers who confirmed D.'s description of the place where the crime had been committed and by one witness Sch., a co- detainee, who stated that the applicant had told him that he had committed the two murders.   The trial court further referred to the evidence given by St., a former friend of the applicant, who likewise confirmed that the applicant had told him that he had shot two people in Spain.   Furthermore the court referred to evidence given to the police by one M.   M. had likewise stated during a police interrogation that the applicant had told him that he had killed someone in Spain. Before the trial court he declared however that he could no longer remember, which was considered to be a lie.         Furthermore the trial court relied on the evidence given by the public prosecutor U. who stated as a witness that the medical expert Dr. K., who during the pre-trial proceedings had been given the task of examining the applicant in order to determine whether or not he was criminally responsible, had told him in the course of a telephone conversation that the applicant had admitted having shot two men in Spain.           Dr. K. was also heard as a witness stating that he did   not remember the applicant having told him anything about the murder.         The trial court pointed out that Dr. K. had successfully been challenged by the defence.   It considered that Dr. K.'s statement at the trial was not credible.   Rather the expert had tried to cover up the professional misconduct he had committed by revealing the applicant's self-incriminating statements.         Finally the court based its findings on a witness H., a police officer who had interrogated the applicant and who stated that the applicant had admitted to him that the crime had been committed by D. and himself, alleging however that D. had shot the men.         Corroborating evidence, which the trial court considered to be of particular importance (von besonderem Gewicht), was given by a ballistic expert who had examined the cartridge cases found near the victims of the killings and a pistol which the applicant had stolen during a previous burglary.   Two policemen had stated as witnesses that the applicant, while in the police van, had himself indicated to them the place where he had hidden further cartridges.   D., co-accused, and witness Gr. had also confirmed that the applicant had been in possession of the pistol.         The exact time of the murder could not be determined.   According to medical expert opinion the victims' bodies were examined on 4 January 1978 at 9.00 am.   The expert considered that the killing had taken place approximately 24 to 30 hours previously.         The co-accused D. had stated the killing took place at about 12.00 midnight.   He and the applicant had then returned to their hotel to clean themselves.   Later they left for a drink and eventually returned, the applicant accompanied by a prostitute.         Witness B. who was staying in a nearby hotel on the night of the killing had stated to the police that he heard shots being fired at 2.00 am.   At the trial he stated he had returned home at 1.00 am and heard the shots about 30 to 60 minutes later.         The trial court considered that these statements together with the statements given by Spanish police officers who inspected the place of the crime in the early hours of the morning, did not make it possible to determine the exact time of the killing.         As regards evidence proposed by the defence and rejected by the trial court it is explained in the judgment   -      that it had not been necessary for the trial court to inspect the       place of the crime given that photos and the description given       by the police was sufficient.   -      that the proposed witness Pr., an interpreter who had assisted       the wife of the murdered American when she contacted the Spanish       police to report the disappearance of her husband, would       certainly not be able to remember several years after the event       at what time they had searched the beach.   It was even more       unlikely that he would remember the exact time as he had never       been heard in the investigation proceedings.   It was therefore       considered unrealistic and impossible to expect this proposed       witness to confirm that he had passed the place of the crime       between exactly 1.55 and 2.00 am, as alleged by the defence.         -      that the allegation of the defence, according to which the       medical expert having examined the victims on 3 January 1978 at       5.30 am, had then said the killing was likely to have occurred       about two hours ago, could be considered to be true;         as well as the allegation of the defence, according to which B.,       when interrogated for the first time by the Spanish policeman       S. L., was sober and had stated that he had heard shots being       fired after 2.00 am.         In regard to these allegations the trial court proceeded on the assumption that the proposed witnesses would confirm the applicant's allegations.         The court stated however that this did not prevent it from finding that the applicant had committed the killing as described by his accomplice D. and corroborated by various evidence.   It pointed out in this context that according to the long experience of the professional judges even the indications of the medical expert on the estimated time of death were approximations only with a possible fluctuation (Schwankungsbreite) of one hour both in regard to the minimum and maximum figures indicated by the expert in his opinion established after the autopsy.   The time-indications of other witnesses were likewise open to doubt and furnished no reason to call into question D.'s version of the event.         The applicant's appeal on points of law (Revision) was rejected by the Federal Court (Bundesgerichtshof) on 14 March 1990.         The applicant had complained that the judgment was contradictory in that the trial court had assumed his allegation not to have spent the evening of 2 January 1978 in the bar "Christina" but in another bar to be true, and nevertheless believed D.'s version of the events although D. had alleged they had been in the bar "Christina" and had furthermore during various interrogations made contradictory statements as to the time of the shooting.         The Federal Court observed in this respect that the trial court correctly based its findings on the premise that it was of no importance in which of the various bars in Torremolinos the applicant had spent the evening.   Therefore witness Christina S., the owner of the bar, had not been suggested as an alibi but only as a means to contradict D.'s statements and to show that D. had fabricated his whole report on the events.   The Federal Court stressed however that the proceedings had lasted for over four years and that the trial court thereby had the occasion to examine the trustworthiness of D.'s statements very carefully.   In this respect the trial court had applied very strict standards and had only considered D.'s statements to be proven in so far as they were confirmed or corroborated by other evidence.         Important supporting evidence was, so the Federal Court underlined, given by the ballistic expert.   This evidence showed that the pistol, which the applicant had stolen in December 1977, and had subsequently in his possession until his arrest in January 1978, was the one which had been used to fire the shots in Torremolinos.   This followed from an examination of the pistol, the cartridge cases found near the victims and the cartridges hidden by the applicant.         The Federal Court also stated that the trial court could rightly consider that D.'s statements were confirmed by several witnesses to whom the applicant had himself insinuated having been responsible for the killing of two people.           The complaint that Spanish witnesses named by the defence were not heard allegedly under the pretext that the trial court presumed they would have given evidence supporting the applicant's version as to the time of the killing, was likewise considered to be unfounded. The Federal Court found that the trial court had in fact taken into consideration the indications of these witnesses as to the time of the murder but had rightly assumed that like the other evidence they offered no reliable proof as to the exact time of the murder.         The applicant then lodged a constitutional complaint which was rejected by a panel of three judges of the Federal Constitutional Court (Bundesverfassungsgericht) on 11 December 1990 as offering no prospect of success.         It is stated in the decision that the Federal Court's rejecting the applicant's complaint about the refusal of the trial court to hear certain witnesses was well-reasoned and in no way disclosed any arbitrariness or violation of constitutional rights.   COMPLAINTS         The applicant maintains the complaints already raised before the Constitutional Court, namely that he was denied a fair trial.         In essence he points out that there was evidence that on 3 January 1978 he was in his hotel room together with a prostitute from 2 a.m. onwards.   Therefore it would have been important to take the evidence offered by him relating to the question of the exact time of the murder and his whereabouts on the night of 2 to 3 January 1978.     THE LAW         The applicant complains that he was wrongly convicted and sentenced on 2 November 1987 by the Duisburg Regional Court and also of the court proceedings concerned.           With regard to the judicial decisions of which the applicant complains, the Commission recalls that, in accordance with Article 19 (Art. 19) of the Convention, its only task is to ensure the observance of the obligations undertaken by the Parties in the Convention.   In particular, it is not competent to deal with an application alleging that errors of law or fact have been committed by domestic courts, except where it considers that such errors might have involved a possible violation of any of the rights and freedoms set out in the Convention.   The Commission refers, on this point, to its established case-law (see e.g. No. 458/59, Dec. 29.3.60, Yearbook 3 pp. 222, 236; No. 5258/71, Dec. 8.2.73, Collection 43 pp. 71, 77; No. 7987/77, Dec. 13.12.79, D.R. 18 pp. 31, 45).           It is true that in this case the applicant also complains that certain evidence proposed by the defence was disregarded by the court. In this connection he alleges a violation of Article 6 para. 1 (Art. 6-1) of the Convention.           However, the Commission notes that the trial court carefully examined all evidence available at the trial and refused to take the evidence offered by the applicant considering it to be irrelevant or assumed in the applicant's favour that the witnesses in question would have testified in the manner indicated by the defence.   This reasoning was held to be unobjectionable by the Federal Court which in detail explains that all relevant evidence was considered by the trial court, and that D.'s incriminating statements were confirmed by various other evidence in particular the opinion of the ballistics expert.    In the light of the particular circumstances of the case the Commission cannot find that the reasons given by the domestic courts in this respect were unfounded or arbitrary.   They do not disclose any appearance of a violation of the right to a fair hearing as guaranteed by Article 6 para. 1 (Art. 6-1) of the Convention.         It follows that 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 unanimously           DECLARES THE APPLICATION INADMISSIBLE.     Secretary to the First Chamber     Acting President of the First Chamber             (M. de SALVIA)                      (F. ERMACORA)