CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 12 janvier 1998

.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. 37998/97                       by Roland Meerbrey                       against Germany         The European Commission of Human Rights sitting in private on 12 January 1998, the following members being present:              Mr     S. TRECHSEL, President            MM     J.-C. GEUS                  E. BUSUTTIL                  G. JÖRUNDSSON                  A.S. GÖZÜBÜYÜK                  A. WEITZEL                  J.-C. SOYER                  H. DANELIUS                  F. MARTINEZ                  C.L. ROZAKIS            Mrs    J. LIDDY            MM     L. LOUCAIDES                  M.A. NOWICKI                  I. CABRAL BARRETO                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  J. MUCHA                  D. SVÁBY                  G. RESS                  A. PERENIC                  C. BÎRSAN                  P. LORENZEN                  K. HERNDL                  E. BIELIUNAS                  E.A. ALKEMA                  M. VILA AMIGÓ            Mrs    M. HION            MM     R. NICOLINI                  A. ARABADJIEV              Mr     M. de SALVIA, 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 25 February 1997 by Roland Meerbrey against Germany and registered on 2 October 1997 under file No. 37998/97;         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, born in 1952, is a German national.   When lodging his application, he was detained at a prison in Heilbronn, but he was later transferred to the ambulatory of the Asperg Prison.         The facts of the case, as submitted by the applicant, may be summarised as follows.         On 19 January 1995 the applicant was arrested on suspicion of murder and detained on remand on 20 January 1995.   In the ensuing proceedings the applicant was assisted by defence counsel.   His repeated requests for release were to no avail.   The Stuttgart Public Prosecutor's Office (Staatsanwaltschaft) drew up the bill of indictment on 7 August 1995.   The applicant was committed for trial before the Stuttgart Regional Court (Landgericht).   The date of 9 January 1996 was fixed for the opening of the trial.         On 3 January 1996 the Stuttgart Regional Court dismissed the applicant's request that the question of his capacity to take part in the trial (Verhandlungsfähigkeit) be examined by the medical practitioner Dr. U. on the ground that Dr. U. had refused to carry out the examination.         On 5 January 1996 the Presiding Judge at the Stuttgart Regional Court ordered that the applicant be transferred from the Stuttgart Prison to the Hohenasperg Ambulatory Prison on the ground that he had refused food and constituted a danger to himself.   Furthermore, the Presiding Judge ordered the applicant's compulsory feeding, if need be. He finally ordered that the applicant's presence at the hearings starting on 9 January 1996 be ensured (Vorführung) even against his will, and with the necessary security measures, if necessary, being brought on a stretcher (aufgebahrt).         The trial opened before the Stuttgart Regional Court, sitting as Assize Court (Schwurgericht) with three professional judges and two lay assessors, on 9 January 1996.   Furthermore, a psychiatric expert was present. In the course of the trial the applicant was assisted by two defence counsel.         The applicant's presence in court was ensured by his being brought on a stretcher and he was covered by a blanket.   According to the applicant, his right leg was tied to the right side of the stretcher, his left leg to the left side; his arms were tied crosswise; his body was covered by two sheets and strapped to the stretcher.   The applicant's account is further that he remained in this position throughout the hearings and also during hearing breaks and during his transfers between the prison and the court building; that he could not eat or drink or go to the toilet.           The applicant's challenge of the Presiding Judge and of one of the other judges for bias was rejected as having been lodged out of time.   On 26 January 1996 the applicant's repeated request that he be excused from the trial was dismissed.         On 15 March 1996 the Stuttgart Regional Court, following several hearings, convicted the applicant of murder in conjunction with attempted murder and robbery and sentenced him to life imprisonment.       In its judgment, the Regional Court found that in the course of a burglary the applicant had ill-treated an elderly married couple, tied their hands behind their backs and had further tied a sweater around the woman's head.   The woman was suffocated and died some hours later; the man's health deteriorated and he needed constant care and attention.         The Regional Court had regard to the applicant's personal background and his numerous previous convictions since 1969.   His convictions related, inter alia, to the following offences: causing grievous bodily harm (gefährliche Körperverletzung) and obstructing public officers in the execution of their duties (Widerstand gegen Vollstreckungsbeamte), robbery and extortion with menaces (räuberische Erpressung), intimidation (Bedrohung) of prison guards and causing grievous bodily harm to an investigating judge in the course of a hearing in 1990.   The Court also noted that the applicant was   HIV (Human Immunodeficiency Virus) positive, and that he had, according to his own allegations, developed AIDS (acquired immunodeficiency syndrome) with a future life expectancy of two or three years.         As regards the course of the trial, the Regional Court observed that the applicant had refused to participate voluntarily.   The Court stated that, taking into account the applicant's known dangerousness and his HIV-infection, and in order to avoid exposing the guards to any risks, it had refrained from enforcing his presence by means of coercion which would have been applied to other remand prisoners.   The applicant had therefore been brought before the Court on a stretcher, although this had not been necessary for medical reasons.   The Regional Court further noted that the applicant had refused to comply with the rules of conduct under the Code of Criminal Procedure (Strafprozeßordnung) and had generally not behaved in a civilised manner (menschenwürdiger Umgang).   In particular, he had insulted and disparaged the Court and compared it to the judiciary under the Nazi regime, had made threats to commit murder and had even spat at the court.   Finally, in the cell where he stayed during the hearing breaks, plastic bags were found which were filled with his urine and could have been used as projectiles, although it had remained unclear whether he had intended to do so.   The applicant repeatedly offended against the good order in court proceedings and had to be removed from the court room.   To a large extent, the trial had to be conducted in his absence.         The Regional Court, having regard to information obtained by the infirmary of the Stuttgart Prison and also psychiatric expert advice, further found that the applicant was capable of taking part in the proceedings.         As regards the assessment of the evidence before it, the Regional Court considered that the applicant had simply denied the charges against him and had repeatedly stated that the judiciary had always aimed at ruining his life.   He had also unsuccessfully attempted to establish an alibi or to question the credibility of witnesses.         Moreover, the Regional Court established the applicant's guilt on the basis of the statements made by the witness E. whom the applicant had told about the offences during the following day.   The Regional Court examined in detail the witness's credibility, bearing in mind that at the early stage of the investigations, she herself had been suspected of the offences in question and that she then had given wrong indications.   However, a further witness, as well as a detail of the offence which had not been known to the general public, had confirmed her final account.   Moreover, part of a particular firearm had been found at the place of the offences and, as confirmed by several witnesses, the applicant had owned a weapon of this kind.   The Court finally observed that two further witnesses, Mr. J.M. and Ms. B.M., had stated that the applicant was guilty. However, considering that they were suspected of having acted as accomplices in the offences in question, their statements had to be assessed cautiously.         Finally, the Court dismissed the applicant's requests for the taking of further evidence as to his physical health, which the Court accepted to be bad, or his state of mental health, which had been sufficiently explored by the first psychiatric expert.   Numerous other requests concerned irrelevant or proven events or other matters which were assumed to be true.         A German newspaper reported on the trial against the applicant and its report, dated 16 March 1996, on the applicant's conviction was accompanied by a photograph showing the applicant on the stretcher.         On 18 March 1996 the applicant's defence counsel lodged an appeal on points of law (Revision), and submitted grounds for the appeal relating to both procedural aspects and the merits on 3 July 1996.   The applicant had further grounds recorded at the Registry (Rechtsantrag- stelle) of the Stuttgart-Bad Cannstadt District Court (Amtsgericht) on numerous days between 15 July and 9 September 1996, and applied for leave to submit these reasons out of time.   This recording had been preceded by a dispute between legal officers (Rechtspfleger) at the District Court and the Stuttgart Regional Court as to the competence for recording the statements in question which had only been settled on 10 July 1996.         On 4 October 1996 the Federal Public Prosecutor (General- bundesanwalt) submitted his comments on the applicant's appeal on points of law.   He considered in particular that the applicant's grounds for the appeal were mostly inadmissible, unsubstantiated or did not appeal to violate any procedural rules.   As regards his complaint that he had been brought to the hearings on a stretcher, the Federal Public Prosecutor considered that he had failed to prove his allegations as to the way he was tied to the stretcher and on not being able to eat.   In any event, he had been able to communicate with his counsel and had lodged numerous requests.   Moreover, he himself was responsible for his enforced presence as he had refused to participate voluntarily.         On 23 January 1997 the Federal Court of Justice (Bundesgerichts- hof) dismissed the applicant's appeal on points of law.   His requests for a late submission of grounds for the appeal were partly admitted, namely to the extent that they had been submitted within one month of the cessation of the impediment, i.e. termination of the above- mentioned competence conflict.   The Court of Justice, considered that the appeal submissions, in particular the Regional Court's taking and assessment of evidence could not be objected to.         The applicant apparently received a copy of the decision of 23 January 1997 in the Stuttgart Prison on 15 February 1997.   Some days later he was transferred to the Heilbronn Prison, where he consulted his counsel on the question of lodging a constitutional complaint.   On 4 March 1997 he was transferred to the Hohenasperg Ambulatory Prison.       On 14 March 1997 the applicant made submissions to the Federal Constitutional Court (Bundesverfassungsgericht) with a view to lodging a constitutional complaint (Verfassungsbeschwerde) about his conviction and the proceedings concerned.   Moreover, referring to his problems in contacting his counsel and consulting the relevant files, he applied for an extension to supplement his complaint.   By letter of 19 March 1997 his counsel informed him that a constitutional complaint would have no prospect of success.   By letter of 20 March 1997, the President's Office (Präsidialrat) of the Federal Constitutional Court generally informed the applicant about the conditions for lodging a constitutional complaint.   Moreover, the applicant's attention was drawn to specific doubts as to the admissibility of his constitutional complaint as he had failed to substantiate the alleged violations of his constitutional rights and in particular failed to file copies of the relevant criminal court decisions. Having received the relevant files in prison on 9 April 1997, the applicant supplemented his constitutional complaint, and his submissions were apparently sent to the Constitutional Court on 22 April 1997.   His constitutional complaint was registered on 29 April 1997.         On 15 May 1997 the Federal Constitutional Court refused to entertain the applicant's constitutional complaint.   The Federal Constitutional Court found that his constitutional complaint was inadmissible on the ground that the applicant had failed to substantiate a violation of any of his constitutional rights within the one-month's time-limit, as required under the relevant provisions of the Federal Constitutional Court Act (Bundesverfassungsgerichtsgesetz). As regards the applicant's request to lodge his complaint out of time (Wiedereinsetzung in den vorigen Stand), the Constitutional Court found that no decision was required as the applicant's initial complaint had not been lodged out of time.     COMPLAINTS         The applicant complains about his conviction and also of the criminal proceedings against him.   He submits that he was ill-treated by the police upon his arrest.   He further complains about the fact that he had to attend the trial on a stretcher.   He generally alleges an arbitrary persecution by the German judiciary.   According to him, he did not have a hearing by an independent and impartial tribunal and he could not effectively exercise his defence rights.   He also complains about the taking and assessment of evidence.   He invokes Articles 3, 5, 6 paras. 1 and 3 (b), (c) and (d) and Article 14 of the Convention.   THE LAW   1.     The applicant complains about ill-treatment upon his arrest.         However, in accordance with Article 26 (Art. 26) of the Convention, the Commission may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law, and within a period of six months from the date on which the final decision was taken.         In the present case, the applicant failed to take any judicial remedies with regard to his allegations of ill-treatment.   Moreover, the applicant was arrested in January 1995, and he lodged his present application on 25 February 1997 which is more than six months later.         This part of the application must, therefore, be rejected under Article 27 para. 3 (Art. 27-3) of the Convention.   2.     The applicant further raises various complaints under Article 6 (Art. 6) of the Convention about the criminal proceedings and his conviction.         Article 6 (Art. 6) of the Convention, as far as relevant, reads:         "1.   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.   ...         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;       ..."   a.     The Commission notes at the outset that the Federal Constitutional Court refused to entertain the applicant's constitutional complaint on the ground that he had failed to substantiate a violation of any of his constitutional rights within the one-month's time-limit, as required under the relevant provisions of the Federal Constitutional Court Act.   However, considering the applicant's situation, in particular his repeated transfers between prisons, his state of health and the facts that he did not have the files at his disposal, it might be open to doubt whether the lack of substantiation in due time can be held against the applicant for the purposes of Article 26 (Art. 26).   However, this problem need not be resolved, as these parts of the application are in any event inadmissible for the following reasons.   b.     As regards the conduct of the trial, the applicant complains in particular that he was forced to appear in court on a stretcher.         The Commission has examined this complaint from the point of view of paragraphs 1, 2 and 3 (b) and (c) of Article 6 taken together (Art. 6-1+6-2+6-3-b+6-3-c), especially as the guarantees in paragraphs 2 and 3 represent aspects of the concept of a fair trial contained in paragraph 1 (cf. Eur. Court HR, Unterpertinger v. Austria judgment of 24 November 1986, Series A no. 110, p. 14, para. 29).         The Commission recalls that, in a case concerning the appearance of an accused before a criminal court in a "glass cage", no violation of the right to a fair trial or of the presumption of innocence was found.   In this case the Commission noted that this was a constant security measure used for other criminal cases, that the applicant was able to communicate confidentially with his lawyer, that he was able to communicate with the court and that he was not in an unfavourable position in relation to the prosecution or the jury (No. 11837/85, Auguste v. France, Comm. Report 7.6.90, D.R. 69, p. 104; see also No. 23331/94, Dec. 26.2.97, unpublished, on close surveillance during the trial).         In the present case, the Presiding Judge of the Regional Court ordered that the applicant's presence at the trial be ensured, if need be, by his being brought on a stretcher.   Considering the context of this decision, it was motivated by the applicant's refusal of food and his refusal to participate in the proceedings.   Moreover, the Regional Court in its judgment explained that the applicant's dangerousness and his HIV-infection had made it necessary to apply a means of coercion which was not usually applied to other remand prisoners.   Indeed, the applicant's previous convictions, as set out in the said judgment, confirm the applicant's disposition to violence and his aggressiveness towards public officials.   The Commission also notes the applicant's conduct throughout the trial, i.e. his offences against good order in court proceedings and his generally bad behaviour.         The Commission finds that the applicant could freely communicate with defence counsel and with the Court.   There is no indication that the applicant's being fixed to the stretcher could have placed him at a disadvantage in relation to the prosecution or in an unfavourable position in relation to the court and could have thereby interfered with the proper conduct of the proceedings.   The Commission also considers that the manner in which the applicant appeared before the Regional Court did not affect his rights of defence.         Moreover, being justified by the applicant's past criminal behaviour, the security measure imposed upon him did not suggest that the Regional Court regarded him as guilty.   Accordingly, there is no appearance of a breach of the presumption of innocence.   c.     As regards the applicant's further complaints about the alleged unfairness of the proceedings, in particular the taking and assessment of evidence, the Commission recalls that, as a general rule, it is for the national courts to assess the evidence before them as well as the relevance of the evidence which the defendant seeks to adduce.   More specifically, Article 6 para. 3 (d) (Art. 6-3-d) leaves it to them, again as a general rule, to assess whether it is appropriate to call witnesses, in the "autonomous" sense given to that word in the Convention system; it does not require the attendance and examination of every witness on the accused's behalf (cf. Eur. Court HR, Bricmont v. Belgium judgment of 7 July 1989, Series A no. 158, p. 31, para. 89; Vidal v. Belgium judgment of 22 April 1992, Series A no. 235-B, pp. 32-33, para. 33).         In the present case, the applicant's requests to take further evidence were refused on the grounds that the alleged facts were regarded as true or as irrelevant, taking into account the evidence before the Regional Court's as a whole.         Having regard to all material before it, the Commission finds no sufficient grounds to conclude that the decision not to take further evidence was incompatible with Article 6 (Art. 6).   d.     As to the applicant's complaints about the alleged lack of impartiality of the judges at the Stuttgart Regional Court, the Commission has had regard to the relevant criteria established in the case-law of the Convention organs (Eur. Court HR, Hauschildt v. Denmark judgment of 24 May 1989, Series A no. 154, p. 21, para. 46; Fey v. Austria judgment of 24 February 1993, Series A no. 255-A, p. 12, para. 28). The Commission, having also regard to the above considerations relating to the security measures imposed upon the applicant, finds no element in the file to doubt the impartiality of the judges at the Regional Court who had conducted the proceedings against him.         Considering the circumstances of the case as a whole, the Commission finds no appearance of a violation of the applicant's rights under Article 6 paras. 1, 2 and 3 (Art. 6-1, 6-2, 6-3) of the Convention.         It follows that this part of the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2).   3.     The applicant also invokes Article 3 (Art. 3) with regard to the manner in which his presence in court was ensured.         Article 3 (Art. 3) of the Convention provides as follows:         "No one shall be subjected to torture or to inhuman or degrading       treatment or punishment."         As to whether there are particular factors in the present case which would bring the applicant's situation at the trial within the scope of Article 3 (Art. 3), the Commission recalls that, according to the constant case-law of the Convention organs, the treatment in respect of which an applicant complains must attain a minimum level of severity if it is to fall within the scope of this provision of the Convention. The assessment of this minimum is relative and depends, therefore, on all the circumstances of the case (cf. Eur. Court HR, Ireland v. United Kingdom judgment of 18 January 1978, Series A no. 25, p. 65, para. 162).         The Commission, having found above that the manner in which the applicant appeared in court did not infringe his rights under Article 6 (Art. 6), likewise considers that the applicant's situation did not go beyond the inevitable element of suffering and humiliation connected with the legitimate security measure applied to him.         In these circumstances, the Commission finds that the applicant was not subjected to inhuman or degrading treatment within the meaning of Article 3 (Art. 3) of the Convention.         It follows that this part of the application is also manifestly ill-founded within the meaning of Article 27 para. 3 (Art. 27-3).         For these reasons, the Commission, unanimously,         DECLARES THE APPLICATION INADMISSIBLE.           M. DE SALVIA                         S. TRECHSEL          Secretary                            President      to the Commission                     of the Commission