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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 - 627/59 [1961] ECHR 4 (14 December 1961) URL: http://www.bailii.org/eu/cases/ECHR/1961/627_59.html Cite as: [1961] ECHR 4

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THE FACTS

Whereas the facts presented by the Applicant may be summarised as
follows:

The Applicant is a German citizen born in ... He is of Jewish origin
and practises the Jewish Orthodox religion.

The Applicant states that his father owned before the war a
well-established printing firm in A. and that he himself was educated
as a printer. The firm was destroyed during the so-called "Crystal
Night" in November 1938.

He further states that he spent several years in the Ghetto of B. and
in various concentration camps. He was liberated from C. by the
Russians in 1945 and was the only survivor of his family, having seen
all his relatives taken to the gas-chamber.

After his liberation the Applicant ran the printing firm which had
belonged to his parents. This firm was situated in A., but in ... the
Applicant had to reorganise the firm in D. after his escape from the
DDR. He apparently specialised in printing stationery, receipts,
orders, bills, etc.

On ... 1956 the Applicant was arrested on charges of fraud, perjury and
falsification of documents in more than 150 cases. After a trial of 47
days he was convicted on ... 1958 by the Regional Court (Landgericht)
of D., whose judgment ran to ... pages and which sentenced him to 6
years' imprisonment, 6 years loss of civil rights and barred for 5
years from carrying on his occupation as a printer.

The Applicant had apparently committed several offenses. One was that
he explained to prospective customers that the abbreviation marked on
certain order forms stood for "Blätter" (pages) and then carried out
the order as "Blöcke" (blocks of 100 pages). The result was that the
customers received and were forced to pay for printed matter 100 times
more than their original order. Other offenses were that the written
order forms differed from the oral agreement, the Applicant relying on
the fact that many persons would not read the text of the forms before
signing them.

The Applicant appealed from his conviction to the Federal Court
(Bundesgerichtshof). He complained of judicial irregularities in that,
inter alia, witnesses had been asked leading questions and that more
than 50 witnesses had not been heard on the grounds that their
testimony was not relevant to the charges or that the questions on
which they would give evidence were not in dispute. On ... 1959 the
Federal Court rejected his application for "Revision" as being
"manifestly unfounded". The Applicant complains that his appeal was
decided upon without a public hearing and that no reasons were given
by the Court for its decision.

Whereas the Applicant alleges that his conviction is unjust and that
it is a result of religious persecution and discrimination. He asks for
a reconsideration of his case and for his social rehabilitation. He
alleges violations of the Convention as follows:

- of Article 3, in that the Regional Court did not respect Jewish
holidays and in that on these days he was unable, for religious
reasons, to undertake his defence;

- of Article 6, paragraph (3) (b), in that the police confiscated
certain documents needed for his defence and these documents were
returned to him when it was too late for an adequate preparation of his
defence;

- of Article 6, paragraph (3) (d), in that he was refused leave to call
a number of witnesses;

- of Article 9, in that the practice of his religion was obstructed by
the Court, no time for prayer being allowed to him;

- of Article 14, in that he was subjected to discrimination on
religious grounds.

Whereas the Applicant alleges, furthermore, that a certain police
official made anti-semitic statements, that the judges were former
members of the Nazi Party and that one of the witnesses for the
prosecution was responsible for the arrest and subsequent extermination
of the Applicant's parents in the camp of C.
Proceedings before the Commission

The Application was submitted to the Commission during the 23rd Session
(30th May - 3rd June 1960), which decided:

(1) to declare the Application to be inadmissible as being manifestly
ill-founded, insofar as the Applicant alleged a violation of Article
6 of the Convention;  and

(2) to instruct the Secretariat to seek information from the Applicant
as to whether or not he had raised the issues of the alleged violations
of Articles 3, 9 and 14 on appeal before the Federal Court.

On 13th June 1960 the Secretariat wrote to the Applicant requesting him
to submit proof that the following allegations had been raised by him
before the Federal Court on appeal:

(1) that the Regional Court of D. had not respected Jewish holidays and
that the Applicant was consequently unable for religious reasons to
undertake his defence on those particular days;

(2) that the practice by the Applicant of his religion was obstructed
by the same Court as no adequate time was given to him for prayer.

On 4th July 1960 the Applicant's lawyer asked for an adjournment of the
case before the Commission as he had in the meanwhile lodged an
application for pardon. During its 24th Session (1st - 6th August 1960)
the Commission decided to adjourn its examination of this Application.
On 5th August 1960 the Applicant replied to the Secretariat stating
that the religious issues had not been raised on appeal because he and
his lawyer had feared that, in view of the influence of former Nazis
in German courts, it might prejudice his case and lead to an
unfavourable decision. He considered, however, that Article 26 had been
complied with as his allegations concerned not only the question of
Jewish holidays but the entire course of proceedings before the
Regional Court which had been the object of his appeal.

In subsequent correspondence with the Secretariat, the Applicant's
lawyer stated that the Applicant had been released from prison on
probation but wished to maintain his Application before the Commission.

The Secretariat asked the lawyer for his comments on the question of
exhaustion of domestic remedies and, in spite of several reminders, of
which the latest was on 4th December 1961, has received no explanation
on this issue.

THE LAW

Whereas, in regard to the Applicant's complaints that certain documents
needed for the Applicant's defence were confiscated by the police and
returned to him at a time when it was too late for him to make use of
them, and that the Regional Court of D. did not allow him to call a
number of witnesses, it is to be observed that in its decision of 31st
May 1960 the Commission has already held that an examination of the
case as it was submitted, including an examination ex officio, did not
disclose any appearance of a violation of Article 6 (Art. 6) of the
Convention; whereas the subsequent submissions by the Applicant insofar
as they relate to these complaints, do not provide any grounds for the
reconsideration of the decision reached by the Commission on 31st May
1960; 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 the proceedings
before the Regional Court of D. were conducted in a manner which
constituted a violation of Articles 3, 9 and 14 (Art. 3, 9, 14) of the
Convention, under Article 26 (Art. 26) of the Convention the Commission
may only deal with a matter after all domestic remedies have been
exhausted according to the generally recognised rules of international
law; and whereas the Applicant has acknowledged that these issues were
not raised by him on appeal before the Federal Court and whereas
accordingly on his own admission, he had failed to exhaust the remedies
available to him under German law; whereas the Applicant has contended
that the question of respect for Jewish religious holidays and rites
might, if raised, have been prejudicial to his appeal in view of the
alleged influence in the German courts of persons once closely
connected with the Nazi regime;

Whereas in spite of numerous requests by the Secretariat, the Applicant
has not given any further explanation as to his failure to exhaust the
domestic remedies available to him; whereas, therefore, in the
circumstances of the present case, it cannot be considered that there
was any special ground which, under the generally recognised rules of
international law, might have absolved him from raising the question
on appeal and thus pursuing the domestic remedies laid down in Article
26 (Art. 26) have not been complied with in the present case;

Whereas, therefore, this part of the Application must be rejected in
accordance with Article 27, paragraph (3) (Art. 27-3), of the
Convention;

Now therefore the Commission declares this Application INADMISSIBLE.