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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 - 2857/66 [1969] ECHR 5 (22 May 1969) URL: http://www.bailii.org/eu/cases/ECHR/1969/2857_66.html Cite as: [1969] ECHR 5

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THE FACTS

A. Whereas the facts presented by the Parties and apparently not in
dispute between them may be summarised as follows:

The applicant is a German citizen, born in 1925 and at present detained
in prison in Berlin-Tegel.

On .. December, 1962, the applicant was convicted of dangerous wounding
by the Regional Court (Landgericht) in Berlin. He was found guilty of
having thrown nitric acid in the face of his mistress, who had left him
against his will, causing her to lose the sight of one eye.

In his defence before the trial court he applicant stated that, as the
result of the state of sexual subjugation in which he stood in relation
to his mistress and his despair at being abandoned by her, he had
neglected to eat and had consumed a large quantity of alcohol.In his
opinion the combined effect of these factors was that he committed the
act in a state of diminished responsibility.

The Regional Court obtained the opinion of three expert witnesses on
the question of the applicant's criminal responsibility, and on the
basis of that opinion, it found these allegations to have been refuted
and sentenced the applicant to six years' penal servitude. He did not
appeal from the decision.

Subsequently, three civil actions were successively brought against the
applicant to obtain damages for the injuries inflicted on the victim.
The first of these actions was brought by the victim herself and the
two others by the insurance company which had payed the victim's
medical expenses and had thereby acquired under the applicable law, her
claims against the applicant in these respects.

The details of the proceedings, which form the subject matter of the
present application, are as follows:

1. On .. February, 1964, the victim, represented by legal counsel filed
an action against the applicant in the Berlin Regional Court claiming
compensation in the amount of DM 25,000, - including damages for pain
and suffering (Schmerzensgeld). The applicant was informed on .. March,
1964 that the hearing of the case had been fixed for .. April, 1964 and
that, under the applicable law, it was necessary that he should be
represented by Counsel.

At the hearing of .. April, 1964, Mr. G. of the law firm Z. appeared
for the applicant. He submitted an answer in writing and also applied
for free legal aid (Armenrecht). At the same time, both parties applied
for an adjournment of the case and the Court fixed a new hearing for
.. June, 1964. Since, on that date, nobody appeared on the applicant's
behalf, a new hearing was fixed for .. July, 1964 at the request of the
victim's Counsel.

On .. July, 1964 the Regional Court in Berlin refused the application
for legal aid after having heard arguments on both sides. The Court
found that the applicant's defence did not offer any reasonable
prospects of success. The applicant relied on his state of mind at the
time the act had been committed and alleged that, owing to his
intoxication, his responsibility had been diminished to the extent that
his liability was excluded within the meaning of Article 827 of the
Civil Code. However, the Court pointed out that, even assuming that his
allegations were true, the applicant would still be liable for having
acted with negligence.

On .. September, 1964, Mr. W., a lawyer practising in Berlin, filed on
behalf of the applicant an appeal (Beschwerde) against the above
decision but this appeal was refused by the Court of Appeal
(Kammergericht) in Berlin on .. December 1964.

The Court of Appeal evaluated as well the medical opinion submitted by
the three experts during the criminal proceedings against the applicant
and came to the conclusion that, in the circumstances, the applicant's
defence did not offer any reasonable prospects of success.

Subsequently,  Mr. W. again made an application for free legal aid and,
on .. March, 1965, the Berlin Regional Court heard the case, both
parties being represented by legal Counsel. On that date it granted
legal aid to the applicant but only as regards that part of the claim
which exceeded DM 15,808.-, and refused the application as to the
remainder. By another decision, taken on the same day, the Regional
Court allowed the plaintiff's claim for damages in the amount of DM
15,808,- and dismissed the remainder of her claim. The Court found the
applicant to have been fully responsible for his actions but considered
that the plaintiff had suffered damages only in the above amount. In
reaching that decision the Court considered in extenso the expert
opinion submitted during the criminal proceedings and adopted all these
conclusions. In this connection the Court also dealt with a new defence
made by the applicant to the effect that, for two weeks before the
crime, he had not taken any proper food. The Court found that this was
unlikely and was contrary to the applicant's own statements during the
criminal proceedings.

On .. July, 1965, Mr. W. made an appeal to the Berlin Court of Appeal
against that part of the decision which found for the plaintiff. At the
same time he made an application for free legal aid for the appeal
proceedings. This application was refused by the Court of Appeal on ..
March, 1966 on the ground that the proceedings proposed did not offer
any reasonable prospects of success. The Court found that, insofar as
the applicant raised again the question of his responsibility under
Article 827 of the Civil Code, this point had already been considered
on previous occasions and rejected; the applicant had also not
submitted any new considerations. Furthermore, the amount of damages
awarded to the plaintiff by the Regional Court was justified.

After the applicant had refused to withdraw his appeal, the Court of
Appeal, on .. March 1966, fixed an oral hearing for .. October, 1966.
By letters of .. and .. May, 1966, Mr. W. and the applicant himself
respectively informed the Court that the former no longer represented
the applicant. Since at the hearing of .. October, 1966 nobody appeared
on behalf of the applicant the Court of Appeal, on that day, dismissed
the appeal by giving judgment be default (Versäumnisurteil).

2. In the meanwhile, on .. November, 1964, the Y. Krankenkasse with
whom the victim had been insured instituted proceedings against the
applicant to recover certain funds which had been paid on account of
the injuries suffered by the victim. The case came before the Berlin
Regional Court which fixed an oral hearing from .. June 1965. On ..
May, 1965 Mr. W., who had previously informed the Court that he was
representing the applicant, made an application for free legal aid and
requested that the proceedings should be adjourned sine die.

At the hearing of .. June, 1965, Mr. W. appeared on behalf of the
applicant. The Regional Court refused his application for free legal
aid on the ground that, since the applicant had failed to submit an
answer to the claim against him, his defence did not offer any
prospects of success. The Court also rejected his request for an
adjournment of the proceedings and fixed a new hearing from ..
November, 1965.

The applicant, through his lawyer, then appealed to the Berlin Court
of Appeal against the above decision of the Regional Court. This appeal
was rejected on .. October, 1965. The Court dealt again with the expert
opinion on the issue of the applicant's responsibility and found that
his allegations to the effect that he had not been responsible were
unfounded. Consequently, his defence did not offer any reasonable
prospects of success. The Court also confirmed the Regional Court's
decision that the applicant was not entitled to an adjournment of the
proceedings against him.

Since at the hearing of .. November, 1965, the applicant was not
represented by Counsel, the Regional Court passed judgment by default
against him. Subsequently, on .. December, 1965, Mr. W., acting on
behalf of the applicant lodged with the Berlin Regional Court an
objection (Einspruch) against its default judgment. The Court heard the
case on .. January, 1966 in the presence of Counsel for both parties
and decided that its judgment should be upheld. It held that the
applicant's allegations as to the absence of any liability owing to his
diminished responsibility within the meaning of Article 827 of the
Civil Code were unfounded.

On .. March, 1966, Mr. W. filed an appeal (Berufung) in the Berlin
Court of Appeal against this decision. At the same time he made an
application for legal aid in respect of the appeal proceedings and
subsequently requested that the period for submitting the grounds of
appeal should be extended.

On .. April, 1966, the applicant himself submitted written pleadings
to the Court of Appeal. After the Court had informed him that no
decision as to his application for legal aid would be taken before his
Counsel had submitted the grounds of appeal, the applicant informed the
Court by letter of .. May, 1966 that he had withdrawn Mr. W.'s
power-of-attorney. Mr. W. confirmed on .. May, 1966 that he was no
longer representing the applicant.

On .. June, 1966 the Court of Appeal refused free legal aid for the
appeal proceedings referring to the grounds previously stated. This
decision was served on both the applicant and his lawyer since the
Court considered that, under Article 87, paragraph (1), of the Code of
Civil Procedure, Mr. W. continued to represent the applicant during
these proceedings.

Subsequently, on .. July, 1966 the Court of Appeal declared
inadmissible the applicant's appeal against the Regional Court's
decision of .. January, 1966 on the ground that the grounds of appeal
had not been submitted within the time-limit prescribed.

3. In July 1966, the Y. Krankenkasse instituted further proceedings
against the applicant claiming the recovery of further expenses which
had been incurred as a result of the injuries suffered by the victim.

The case came again before the Regional Court of Berlin which fixed a
hearing for .. January, 1967 and informed the applicant that it was
necessary for him to be represented by legal counsel. Subsequently the
Regional Court refused a request made by the applicant for an
adjournment of the proceedings and reminded him that he must be
represented by a lawyer otherwise judgment might be given against him
by default.

On .. January 1967, the Regional Court of Berlin gave judgment against
the applicant by default. In letters dated .. and .. February, 1967 and
addressed to the Berlin Court of Appeal, the applicant declared that
he appealed against the above judgment. He also applied for legal aid
during the appeal proceedings. These letters were transmitted to the
Regional Court and the applicant was informed that the only remedy
available to him at present was an objection (Einspruch) addressed to
the Regional Court, that Court being the competent court to rule on his
application for free legal aid.

On .. April, 1967, the Regional Court rejected the application for free
legal aid on the ground that the applicant had failed to file his
objection through Counsel within the time-limit prescribed and that,
moreover, the applicant's defence failed to offer any reasonable
prospects of success. In this respect the Court referred to its
decisions in the first insurer's action and indicated that the
applicant had not presented any new points of fact or of law.

The Court then fixed .. April, 1967 for a hearing on the objection
against the judgment by default, whereupon the applicant applied for
an adjournment and at the same time challenged the judges on grounds
of bias. On .. April, 1967, the Regional Court of Berlin rejected the
applicant's challenge of the judges and, on .. April, 1967, the
objection was refused by a second default judgment.

By letter of .. May, 1967, to the Berlin Regional Court, the applicant
stated that he appealed (Berufung) against the above judgment. The
matter was transmitted to the Berlin Court of Appeal which treated it
as being an application for free legal aid as regards the appeal
proceedings. On .. July, 1967, the Court of Appeal refused the
application holding that the proceedings proposed did not offer any
prospects of success. The Court pointed out that a second judgment by
default was only subject to appeal with regard to the question as to
whether or not there had been, in fact, any default by reason of the
applicant's non-appearance. However, no arguments had been presented
to suggest any such situation.

B. Whereas the proceedings before the Commission may be summarised as
follows:

In his application of 19th May, 1966, which was entered in the special
register of the Commission's Secretariat on 1st August,1966, the
applicant made various complaints concerning his conviction and
sentence, the stopping by the prison authorities of certain letters
which he had written while being detained in prison, the conduct of his
lawyers, the failure on the part of the prosecuting authorities to
prosecute officials and private individuals, and his application for
a retrial. By a partial decision of 16th December, 1967 the Commission
rejected these complaints, partly as having been made out of time or
for failure to exhaust the domestic remedies (Articles 26 and 27,
paragraph (3), of the Convention) and partly as being incompatible with
the provisions of the Convention or manifestly ill-founded (Article 27,
paragraph (2), of the Convention).

However, the Commission communicated, under Rule 45, paragraph (b), of
its Rules of Procedure, to the Government of the Federal Republic of
Germany certain other complaints which the applicant had made under
Article 6, paragraph (1), of the Convention and which related to the
conduct of the civil proceedings brought against him. The Government
was invited to submit its observations in reply in writing on the
admissibility of these complaints. These observations were received by
the Commission on 21st March, 1968 and the applicant submitted his
observations in reply on 28th November, 1968. Previously, on 16th July,
1968, the Commission had decided that the applicant should have free
legal aid, in accordance with the Addendum to the Commission's Rules
of Procedure, for the purpose of presenting him above observations in
reply.

C. Whereas the arguments of the parties may be summarised as follows:

The respondent Government first explains the purpose of the provisions
of Article 78 of the Code of Civil Procedure which requires parties in
civil proceedings to be represented by Counsel before the regional
courts and all courts of higher jurisdiction. It points out in detail
that such provision is necessary in the interests of the parties
themselves and to facilitate the work of the courts. Furthermore,
similar provisions exist in Belgium, Holland and Austria.

Legal aid is granted to poor persons for the prosecution or defence of
civil proceedings provided that the proceedings in question offer a
sufficient prospect of success. Provided therefore that this condition
is fulfilled, a poor person is not in a less favourable position than
a party who can afford to pay for legal representation.

The effect of a decision granting legal aid is that the party concerned
is temporarily exempted from paying the costs and expenses incurred by
him during the proceedings. Where such party is required to be
represented by Counsel in accordance with Article 78 of the Code of
Civil Procedure, the court concerned assigns a lawyer to give free
legal advice and assistance during the proceedings and to appeal on
behalf of the party. When selecting a lawyer for this purpose the
court, as far as possible, takes into account the party's wishes.

The proceedings on an application for legal aid are started in the
court in which the main proceedings are pending. The applicant must
state in writing or orally before the court's registrar the subject of
the litigation concerned and the relevant evidence. The court, in
examining whether the conditions set out in Article 114 of the Code of
Civil Procedure are satisfied, may make inquiries, request the
submission of documentary evidence or hear witnesses and experts. It
should, in principle, also hear the opposite party.

The applicant is entitled to appeal (Beschwerde) against a decision
refusing free legal aid (Article 27 of the Code of Civil Procedure) but
no further appeal lies against the decisions of the appeal court.

In the applicant's case the respondent Government submits that he had
not been prejudiced by the refusal of free legal aid. He had in fact
been represented by Counsel in the proceedings at first instance in the
first two civil proceedings brought against him. With regard to the
appeal proceedings he was deemed to have been represented by Counsel
by virtue of Article 27, paragraph (1), of the Code of Civil Procedure.

In the third civil proceedings the applicant was not represented by
Counsel but his case was fully examined in the proceedings relating to
his application for the grant of free legal aid.

Apart from this, these third proceedings related only to an increase
in the amount of damages claimed in the second civil action. The two
actions were based on the same grounds.

The applicant did not deny that he had caused the injury suffered by
the plaintiff but denied his responsibility for this act on account of
his state of mind at the time.

In this connection the court was mainly concerned with the question
whether or not Article 827 of the Civil Code was applicable in the
applicant's cases. That provision states:

"Any person who causes damage to another while being unconscious or
while, owing to disease, his mental powers are disturbed to the extent
of excluding the free determination of his will, is not responsible for
any such damage. If he has put himself into a temporary state of this
kind by reason of alcoholic beverages or similar means, he is
responsible in the same manner as if he had acted negligently for any
damage which he unlawfully causes while being in such state; such
responsibility does not arise where such state has come about without
his fault."

(Wer im Zustande der Bewusstlosigkeit oder in einem die freie
Willensbildung ausschliessenden Zustande krankhafter Störung der
Geistestätigkeit einem anderen Schaden zufügt, ist für den Schaden
nicht verantwortlich. Hat er sich durch geistige Getränke oder ähnliche
Mittel in einen vorübergehenden Zustand dieser Art versetzt, so ist er
für einen Schaden, den er in diesem Zustande widerrechtlich verursacht,
in gleicher Weise verantwortlich, wie wenn ihm Fahrlässigkeit zur Last
fiele; die Verantwortlichkeit tritt nicht ein, wenn er ohne Verschulden
in den Zustand geraten ist.)

The above provisions relating to a person's responsibility for his
actions were materially similar in civil and criminal law but the
practical consequences of the two provisions differed greatly by reason
of the different rules of procedure applicable in civil and criminal
proceedings. In criminal proceedings the court is under a duty to
examine ex officio the facts relating to responsibility whereas, in
civil proceedings, the burden of proving the absence of responsibility
lies on the person who has caused the injury, that is to say, in the
present case, on the applicant. It was not sufficient merely to raise
doubts as to his responsibility.

The experts in the criminal proceedings had already expressed the
opinion that the circumstances alleged by the applicant, i.e. his state
of sexual subjugation, prolonged starvation and the consumption of a
large amount of alcohol did not have the effect of excluding his
responsibility.

These expert opinions had properly been relied on both in the
proceedings relating to the application for the grant of free legal aid
and the civil proceedings themselves.

The applicant's only objection to these opinions was that he did not
consider them to be correct but he had not submitted any new facts
which had not been taken into account by the experts. He had not made
any submissions of a nature to raise doubts as to the correctness of
the expert opinions. The civil courts, in the exercise of their power
of appreciation of the evidence, had examined the expert opinions given
in the criminal proceedings and considered that they provided a
sufficient basis for their decisions. In these circumstances it could
not be alleged that the fact that the applicant was refused legal aid
amounted to a violation of his right to a fair hearing under Article
6, paragraph 1, of the Convention.

The respondent Government therefore submits that the Commission should
reject this part of the application as being manifestly ill-founded.

The applicant first refers to the Commission's decision on the
admissibility of Application No. 2804/66, Struppat against the Federal
Republic of Germany (Collection of Decisions, Vol. 27, p. 61) by which
the Commission declared inadmissible similar complaints under Article
6 of the Convention on the ground that they were manifestly
ill-founded. He submits that his case is substantially different on the
facts. He explains that Struppat defended the civil proceedings by
claiming that he was not the person who caused the physical injury
concerned. The applicant, on the other, had consistently challenged the
expert opinion as to his responsibility. All judgments and decisions
of the civil courts had been based on the opinion of the medical expert
concerning the applicant's criminal responsibility at the time of the
crime and this opinion had at no time later been checked by a second
expert.

The applicant points out that, at the time of the crime, the alcohol
concentration in his blood amounted to 2.6%, that for two weeks before
the crime he had not taken any proper food and that he had been, in any
case, in an abnormal psychological state owing to the serious conflicts
brought about by the separation from his mistress. These three factors
had a particularly profound effect on his capacity to appreciate and
control his acts and they were of a nature to justify, in the
experience of the courts, the assumption of the existence of a state
of irresponsibility. It was common knowledge that a blood alcohol
concentration of 2% to 3% could produce complete drunkenness or even
lead to the danger of fatal alcohol poisoning, that in a state of
physical exhaustion, such as that following a long period of
starvation, the capacity to tolerate alcohol is considerably reduced,
and that alcohol may limit the ability to appreciate one's acts, even
more so where the person concerned has been subjected to severe
emotional stress.

On the other hand, it was also commonly known that, when it comes to
assessing states of mind and of consciousness, expert opinions were
often influenced by errors and limitations and distortions of know
edge. Moreover, the expert witness might differ in his expert opinion
from the results which are to be expected from a consideration, in the
light of common experience, of the concrete circumstances of the case,
as they have been established. In such circumstances it would appear
that, even accepting the principle of the appreciation of evidence by
the judges, it was not reasonable to base a final decision upon the
opinion of an expert witness who gave his opinion in proceedings which
were not presided over by the Court in question. Reference to an expert
opinion given in earlier proceedings could not be considered sufficient
of the simple reason that the Court deciding the later issue had no
possibility of putting questions to that expert witness in order to
judge the weight and persuasiveness of his opinion.

In order to comply with the provisions of Article 6, paragraph (1), of
the Convention, the civil courts should have given the applicant an
opportunity of applying for evidence to be taken with a view to
bringing about a re-assessment of the expert opinion. This would only
have been possible for the applicant if he had been represented by a
lawyer in the proceedings before the civil courts.

THE LAW

Whereas the only question that remains to be decided by the Commission
is whether or not the Convention, and particularly Article 6, paragraph
(1) (Art. 6-1), has been violated by reason of the applicant being
unable to defend himself in the civil proceedings concerned as a result
of the refusal to grant him free legal aid.

Whereas Article 6, paragraph (1) (Art. 6-1), of the Convention provides
that, in the determination of his civil rights and obligations,
everyone is entitled to a fair and public hearing by a tribunal
established by law;

Whereas the applicant submits that he had in effect been prevented from
defending himself in the civil proceedings taken against him both by
the victim of his attack and by her insurers, since, under the relevant
law, he could only conduct his defence trough a lawyer;

Whereas he further submits that the courts refused him free legal
assistance for this purpose; whereas, in particular, he submits that
he had consequently been unable to put before the courts the issue of
his responsibility; that this had been established during the criminal
proceedings against him and that he wished to challenge that decision
during the above civil proceedings;

Whereas the Government submits that the applicant had, in fact, been
represented by legal Counsel in the proceedings at first instance in
the two first civil proceedings brought against him although he was not
represented in the third civil proceedings; that, however, his case,
including the question of his responsibility, had been fully examined
in the proceedings relating to his application for the grant of free
legal aid;

Whereas the Commission has previously held that, while the right to
free legal aid in civil cases, as opposed to criminal cases, was not
a such included among the rights and freedoms guaranteed by the
Convention, it nevertheless considered, when dealing with complaints
concerning the refusal of free legal aid in civil proceedings, the
general provisions of Article 6, paragraph (1) (Art. 6-1), of the
Convention;

Whereas its object, in doing this, was to determine whether such a
refusal constituted, in the particular circumstances of the case, a
violation of the right of the person concerned to be granted a fair
hearing; whereas the right to a fair hearing within the meaning of
Article 6, paragraph (1) (Art. 6-1), of the Convention is held to mean
that anyone, who is a party to either civil or criminal proceedings,
should have a reasonable opportunity of presenting his case to the
court under conditions which do not place him at a substantial
disadvantage vis-à-vis his opponent. (See Decision on the admissibility
of Application No. 2804/66, Struppat against the Federal Republic of
Germany, Collection of Decisions, Vol. 27, pages 61, 73);

Whereas in this respect, the Commission has also decided that it must
consider whether the specific circumstances of the proceedings against
an applicant amounted to a denial of his right to a fair hearing within
the meaning of Article 6, paragraph (1) (Art. 6-1), of the Convention;

Whereas, any such decision could not properly be determined on an
isolated consideration of those civil proceedings which led to the
judgment by default but regard must be had to all the relevant
proceedings;

Whereas the Commission finds that, in the present case, the relevant
proceedings comprise the criminal proceedings in which he had been
convicted and sentenced, the civil proceedings and the proceedings
instituted by him to obtain free legal aid;

Whereas the Commission first observes that the applicant had been
heard, either himself or through his Counsel, at first instance in the
criminal proceedings and in two of the three civil proceedings; that,
admittedly, the applicant was not represented in the proceedings at
first instance concerning the third civil action against him or at the
hearing of his appeal against the judgment concerning the first civil
action; that, however, his written submissions which he made in support
of his petitions for free legal aid in the three civil proceedings and
which set out his entire case in defence were considered both by the
Regional Court and the Court of Appeal in the legal aid proceedings;

Whereas the Commission next observes that the particular question of
his diminished responsibility was the subject of the evidence of the
three expert witnesses during the criminal proceedings against him;
whereas, in their detailed opinions, these experts came to the
conclusions that the applicant had been responsible for his acts;

Whereas, during the proceedings concerning the first civil action, the
applicant's Counsel made an application to the Berlin Regional Court
to obtain a further expert opinion for the purpose of deterring his
responsibility; whereas this application was refused after the Court
considered, in extenso, the experts' conclusions; whereas, in that
connection, the Regional Court also dealt with the applicant's only new
ground of defence, namely that, for two weeks before the crime, he had
not taken any proper food; whereas the Court found that this was
unlikely and contrary to the applicant's own statement during the
criminal proceedings;

Whereas, for these reasons, the Commission finds that, having regard
to the proceedings as a whole, the applicant was not only represented
by Counsel in certain of these proceedings, but that all the grounds
of his defence in the civil proceedings, including that, in particular,
of diminished responsibility, were considered by the Courts before
giving their judgments by default against him; whereas, therefore, it
does not appear that he was placed at such disadvantage vis-à-vis the
plaintiffs as to have been prejudiced in the effective exercise of his
defence; whereas, accordingly, the applicant's right to a fair hearing
by an independent and impartial tribunal in the determination of his
civil obligation to indemnify the victim of his assault was not
violated in the proceedings concerned;

Whereas, consequently, the Commission finds that an examination of the
applicant's complaints does not disclose the appearance of a violation
of the Convention and, in particular of Article 6, paragraph (1)
(Art. 6-1), of the Convention; whereas it follows that the remainder
of the application is 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.