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	European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> X. v. THE GERMANY - 2566/65 [1967] ECHR 25 (06 February 1967) URL: http://www.bailii.org/eu/cases/ECHR/1967/2566_65.html Cite as: [1967] ECHR 25

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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 1902 and at present detained
in the prison at Butzbach.

On ... 1964, the Applicant was convicted of a homosexual offence with
an adolescent by the Criminal Chamber of the Regional Court
(Strafkammer des Landgerichts) in Frankfurt.

His appeal (Revision) was rejected by the Federal Court
(Bundesgerichtshof) on ... 1965.

On ... 1965, the Applicant requested the Public Prosecutor in Frankfurt
to prosecute one of the witnesses for perjury and procuration of
perjury in his trial. The Applicant was acquitted on the count on which
this witness gave evidence. This count related to homosexual behaviour
with the witness's son who had given evidence, which the Applicant
states to be false, of homosexual acts by the Applicant. The Applicant
considers that although he was acquitted on this count the evidence
given may have affected his sentence.

The Applicant complains particularly that he has been sentenced to
preventive detention (Sicherungsverwahrung) and considers that he has
suffered injustice in that - the court refused to grant an application
of the defence to call a second psychiatrist as an expert witness
because, in the opinion of the Applicant, the psychiatrist called did
not show the necessary understanding of the case and had a negative
attitude towards homosexuality;

a statement appeared in the judgment which is not true and which was
not at any stage of the proceedings put to the Applicant so that he had
no opportunity of disproving it, namely: that the Applicant had
discussed sexual subjects with the adolescent with whom he was
convicted of committing homosexual acts before these acts were
committed with the intention of causing erotic stimulation;

the proceedings were rushed and the court sat for an unduly long time
(from 9.15 a.m. to 9.35 p.m.) with the result that certain matters were
not given sufficient attention: in particular the motives, tendencies
and personality of the accused seen as a whole;

his five former convictions were taken into account in fixing the
sentence and ordering preventive detention without proper attention
being given to the fact that the first two convictions (1938 and 1940)
occurred during the period of National Socialist Government and were
affected by the political circumstances. It was impossible for him to
apply for retrial and prove his innocence because the competent court
was in East Berlin where the offenses were treated as having been
effaced by prescription. For this reason the Applicant considers that
they were improperly taken into consideration by the trial court.

With regard to the other convictions the Applicant (who in one case
considers that he was innocent) objects that they have been taken into
account without proper consideration being given to the mitigating
factors which were present in each case.

The Applicant complains that the court had treated his opinion that an
affectionate relationship between men and youths in the Socratic
tradition was justified as a negative factor in assessing his
punishment.

The Applicant also complains that a letter which he sent to a witness
on the count on which he was acquitted was not forwarded on grounds
that it was liable to influence the proceedings. He  appealed to the
Court and the Court of Appeal (Oberlandesgericht) on this point but his
appeals were rejected.

The Applicant relies on the following Articles of the Convention: 1,
5 (2), 5 (5), 6 (1), 6 (3) (a), 6 (3) (b), 6 (3) (d), 9 (1), 14.

THE LAW

Whereas, in regard to the Applicant's complaint concerning his
conviction and subsequent detention, an examination of the case as it
has been submitted, including an examination made ex officio, does not
disclose any appearance of a violation of the rights and freedoms set
forth in the Convention and especially in the Articles invoked by the
Applicant;

Whereas, in respect of the judicial decisions complained of, the
Commission, has frequently stated that in accordance with Article 19
(Art. 19) of the Convention its only task is to ensure observance of
the obligations undertaken by the Parties in the Convention; whereas,
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 the Commission considers that such errors might have
involved a possible violation of any of the rights and freedoms
limitatively listed in the Convention; whereas, in this respect, the
Commission refers to its decisions Nos. 458/59 (X v. Belgium - Yearbook
III, page 233) and 1140/61 (X v. Austria - Collection of Decisions,
Volume 8, page 57); and whereas there is no appearance of a violation
in the proceedings complained of; whereas it follows that this part of
the Application is manifestly ill-founded within the meaning of Article
27, paragraph (2) (Art. 27-2), of the Convention;

Whereas, in regard to the Applicant's complaint that a letter addressed
by him to a witness was not forwarded, an examination of the case as
it has been submitted, including an examination made ex officio, does
not disclose any appearance of a violation of the rights and freedoms
set forth in the Convention and in particular in Article 8 since the
stopping of a letter calculated to influence a witness is justified as
a measure aimed at the prevention of crime and thus falls within the
terms of paragraph (2) of Article 8 (Art. 8-2); whereas it follows that
this part of the Application is manifestly ill-founded within the
meaning of Article 27, paragraph (2) (Art. 27-2), of the Convention.

Now therefore the Commission declares this Application INADMISSIBLE.