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	European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> X. v. THE FEDERAL REPUBLIC OF GERMANY - 599/59 [1961] ECHR 3 (14 December 1961) URL: http://www.bailii.org/eu/cases/ECHR/1961/599_59.html Cite as: [1961] ECHR 3

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THE FACTS

Whereas the facts of the case may be summarised as follows:

1. The Applicant is a German citizen born in ... and is at present
detained in prison. He has been convicted on 25 previous occasions on
various charges and has served sentences in prison and has been
detained in concentration camps for three years.

In response to the present case, the Applicant was arrested on ... 1958
on suspicion of having committed theft and fraud, inter alia, by
promising marriage to elderly women for the purpose of obtaining money
from them.  He alleges that he was denounced by a woman named Mrs. A.
but admits that he is guilty of certain of the crimes of which he was
charged.
On ... 1958, he informed the Public Prosecutor that he was the victim
of a plot on the part of Mrs. A. and a certain Mr. B.  The Applicant
states that B. was charged with him for the same offenses and that B.
was an "unreliable and untrustworthy person" who had already denounced
several innocent persons to the police in East Germany and, further,
that Mrs. A. with whom he, the Applicant, had lived, had private
grudges against him.

2. The Applicant also states that the sole purpose of the investigation
of the charges against him was to obtain his conviction and not to
find out the true facts. The police officials had told him that a
detailed investigation of the case was superfluous as the facts were
evident from the statements made by Mrs. A. and Mr. B. and would
justify a reduction of his sentence to one of detention for security
purposes (Sicherungsverwahrung). The Applicant now alleges that the
police violated Article 160 of the Criminal Penal Code by not taking
into consideration the circumstances of the case, and, in particular,
those circumstances which were in his favour as an accused person. The
Applicant, therefore, refused to cooperate with the police who had so
far dealt with his case and he was not subjected to any further
interrogation between ... 1959 and his trial in ...1959. The indictment
against him was finally drawn up on ...1959.

3. It is also stated by the Applicant that during a Session of the ...
Chamber of the Regional Court (Landgericht) of C. on ... 1959, a judge
indirectly accused him of murder by asking him, in connection with his
previous attempt to commit suicide by taking luminal, whether he had
not taken a wrong glass. Interpreting this question as implying that
the glass had been designed for somebody else, the Applicant asked on
... 1959 that the Chamber should be declared as having no competence
in the case. This request was refused by the Chamber on ... 1959 and
the Applicant apparently took no further steps in this respect.

4. On ... 1959 the Applicant was apparently refused permission to
attend a court session where witnesses were to be heard, and he states
that these witnesses were informed of his criminal record and that
leading questions were put to them.

On ... 1959, five days before his trial, the Court appointed a lawyer
to defend the Applicant, but on the following day, the Applicant asked
that another lawyer in whom he had more confidence should be appointed.

This request was refused, but in the meanwhile, the lawyer whose
services he had asked for had applied for an adjournment of the case
on the ground that an adequate preparation of the Applicant's defence
was impossible owing to lack of time. This application was also
rejected.

The Applicant alleges that the lawyer appointed to defend him did  not
take any interest in his case, that he did not ask for adjournment
which was necessary for the proper preparation of his defence and  that
he, the Applicant, was consequently deprived of his  constitutional
rights. He further adds that it is absurd that the outcome of a trial
and the fate of an accused person should depend entirely on the whim
of an officially appointed lawyer.

5. The Applicant, during the course of his trial on ..., ... and ...
1959 was ill and states that this was partly due to the drugs
prescribed by the doctors of the prison hospital. He maintains that his
bad health made his defence impossible.

He even alleges that on ... 1959 he was physically attacked in the
Court by a health expert whose medical examination was superficial and
irresponsible and whose appointment on ... 1959 he had refused to
recognise.

The Applicant's various requests to call his own expert evidence  as
to his alleged criminal tendencies were rejected.

6. On ... 1959 the Applicant was convicted by the Regional Court of C.
on certain of the charges mentioned above and sentenced, as a habitual
criminal, to five years' imprisonment, to four separate fines of 10 DM,
to loss of civil rights for five years and to preventive detention
(Sicherungsverwahrung) for five years. He now states that the Court was
biased and in this respect he refers to the passage in its judgment
concerning the Applicant's past convictions. He maintains that the
Court did not take into consideration the extenuating circumstances of
the crimes of which he had been previously accused and he requests that
the Commission asks for and examines all the files regarding his
post-war convictions.

The Applicant also submits that the Court was in error in accepting
Mrs. A's evidence, which was prejudiced and which was different from
the statements given by her to the police during the investigation.
Moreover, the judge posed "subjective questions" which were not
relevant to the case, but which tended to incriminate the Applicant
and, in general, the Court did not apply the generally recognised
doctrine of in dubio pro reo.

7. On ... 1959 the Court's decision was communicated to the Applicant,
who alleges that his lawyer, in spite of the Applicant's being admitted
to hospital on ... 1959, took not steps to appeal from this decision,
but simply stated that he had not time to deal with the Applicant's
case. Consequently, the Applicant himself, on ... 1960, lodged an
appeal without any assistance from his lawyer and on ... 1960 submitted
to the Federal Court (Bundesgerichtshof) a document in support of his
appeal in which he pleaded, inter alia, that the European Convention
on Human Rights had been violated during the proceedings before the
Regional Court.

On ... 1960, the Applicant requested that a lawyer be appointed to
assist him during the appeal proceedings, but in a decision of ...
1960, of which a copy has been submitted to the Secretariat, the
Regional Court refused this request on the ground that legal assistance
was not necessary at that stage of the proceedings. This decision was
upheld by the Chamber Court (...) of C. on ... 1960.

On ... 1960, the Federal Court dismissed the Applicant's appeal after
having heard the Public Prosecutor (nach Anhörung des
Generalbundesanwalts).

8. The Applicant alleges that the minutes of the Court proceedings
were substantially changed seven days after his trial and after they
had been signed. He states further that he was refused permission to
copy certain documents in the file of his case.

The allegations of the applicant:

Whereas the Applicant alleges violations of Articles 3, 5 and 6 of the
Convention;

- in that he was not presumed innocent until proved guilty, according
  to law;
- in that the Regional Court of C. was not impartial in its conduct of
  the proceedings against him;
- in that the witnesses for the prosecution were heard in his absence
  and that this did not constitute a fair hearing of his case;
- in that he was deprived of his right to prepare a proper and adequate
  defence;
- in that the facilities necessary for his defence were not granted to
  him;
- in that evidence requested by the defence was not allowed to be
  called;
- in that he was denied free legal assistance during the appeal
  proceedings;
- in that he was not allowed to be present at the hearing of his case
  before the Federal Court.

The object of the application:

Whereas the Applicant claims a retrial of the charges against him and
an investigation of the methods used by the police and the courts in
C.

Proceedings before the commission:

The Application was submitted to the Commission during its 30th Session
(24th to 28th July 1961) which decided:

(a) to declare inadmissible the parts of the Application which related
to the proceedings before the Regional Court of C. as being manifestly
ill-founded, there being no apparent violation of Articles 3, 5 and 6
of the Convention.

(b) to communicate to the Government of the Federal Republic of
Germany, under Rule 45, paragraph (3) (b) of the Rules of Procedure,
the remaining part of the Application, in which the Applicant alleged
a violation of Article 6 in that he was denied the right to defend
himself in person before the Federal Court, and to invite the
Government to submit its observations in writing as to the
admissibility of that part of the Application.

On 14th November 1961, the Respondent Government submitted its
observations which may be summarised as follows:

(a) In accordance with Article 349, paragraph 2 of the German Code of
Criminal Procedure, the Applicant's appeal was rejected by the Federal
Court in a closed session without an oral hearing of either party. The
appeal proceedings consisted solely of an exchange of written pleadings
and the submissions made by the Public Prosecutor were communicated to
the Applicant and to his lawyer.

(b) The expression "nach Anhörung", as used in the decision, does not
mean that the Public Prosecutor was actually heard in person, but has
a purely formal significance in certifying that Article 33 of the Code
had been observed (This Article provides that the Public Prosecutor
must be given comments on the appeal).

(c) The appointment by the Court of a lawyer to act for the Applicant
was not revoked until ... 1960, namely, after the expiry of the
time-limit fixed for the making of submissions to the Court. The
Applicant had consequently legal assistance during the Spring of 1960
when the exchange of the written pleadings in the case took place.

(d) In general, that there had been no violation of Article 6,
paragraph (3) of the Convention and that the Application was manifestly
ill-founded.

THE LAW

Whereas, in regard to the Applicant's complaints of violations of
Articles 3, 5 and 6 (Art. 3, 5, 6) of the Convention during the
proceedings before the Regional Court of C., namely, that he was not
presumed innocent until proved guilty, in that the Court was not
impartial, that the witnesses for the prosecution were heard in his
absence, that he was deprived of his right to prepare a proper and
adequate defence, that the facilities necessary for his defence were
not granted to him and that evidence requested by the defence was not
allowed to be called, it is to be observed that on 27th July 1961 the
Commission held an examination of the case as it was submitted,
including an examination ex officio, did not disclose any appearance
of a violation of the above Articles of the Convention; whereas the
subsequent submissions by the Applicant, in so far as they relate to
these complaints, do not provide any grounds for a reconsideration of
the finding reached by the Commission on 27th July, 1961; whereas it
follows that these complaints are manifestly ill-founded and must be
rejected in accordance with Article 27, paragraph (2) (Art. 27-2) of
the Convention;

Whereas, in regard to the Applicant's complaints that he was refused
free legal assistance during the appeal proceedings before the Federal
Court, it is to be observed that such legal assistance was not refused
until after the Applicant's appeal had been lodged an supporting
arguments had been submitted; whereas, in its decision of ... 1960, the
First Criminal Chamber of the Court of Appeal of C. held that legal
assistance was not necessary at the next stage of the proceedings and
gave as its reason the fact that the time-limit for submitting further
arguments on procedural grounds had expired and based itself, in this
respect, on Article 345, paragraph (1) of the Code of Criminal
Procedure;  whereas in accordance with Article 345, paragraph (2) of
the Code of Criminal Procedure, the Applicant himself still had the
possibility of lodging with the Registrar of the Regional Court of C.
any written submissions which he might wish to make regarding his
complaint that the law had been incorrectly applied by the Regional
Court;

Whereas, in these circumstances, the interests of justice did not
require that the Applicant should be given free legal assistance in
regard to the proceedings before the Federal Court; whereas it follows
that in this respect there has been no violation of Article 6,paragraph
(3) (c) (Art. 6-3-c) of the Convention;

Whereas, in regard to the Applicant's complaints that he was not
allowed to be present at the hearing of his appeal before the Federal
Court on ... 1960, the fact is that the Court did not order an oral
hearing of the case, but rejected the Applicant's appeal in pursuance
of Article 349, paragraph (2) of the Code of Criminal Procedure, which
provides that an appeal may be rejected by the Federal Court without
an oral hearing of the parties in public, where it considers the appeal
to be manifestly ill-founded; whereas the Public Prosecutor and the
Applicant, notwithstanding the fact that they were not present at  the
hearing, had the possibility of presenting their arguments to  the
Court in writing; whereas, indeed, the Applicant, after he had been
notified of the Public Prosecutor's observations, availed himself of
this possibility and submitted full arguments in writing in support of
his appeal; whereas, in these circumstances, the conduct of the
proceedings was not inconsistent with the provision contained in
Article 6, paragraph (1) (Art. 6-1) of the Convention, which guarantees
a fair hearing to a person in the determination of a criminal charge
against him;

Whereas it follows that the complaints made by the Applicant in respect
of the appeal proceedings before the Federal Court are also manifestly
ill-founded and must be rejected in accordance with Article 27,
paragraph (2) (Art. 27-2) of the Convention.

Now therefore the Commission declares this Application inadmissible."