هيثم الفقى
07-14-2009, 12:47 AM
X. v. THE FEDERAL REPUBLIC OF GERMANY - 627/59 [1961] ECHR 4 (14 December 1961)
THE FACTSWhereas the facts presented by the Applicant may be summarised asfollows:The Applicant is a German citizen born in ... He is of Jewish originand practises the Jewish Orthodox religion.The Applicant states that his father owned before the war awell-established printing firm in A. and that he himself was educatedas a printer. The firm was destroyed during the so-called "CrystalNight" in November 1938.He further states that he spent several years in the Ghetto of B. andin various concentration camps. He was liberated from C. by theRussians in 1945 and was the only survivor of his family, having seenall his relatives taken to the gas-chamber.After his liberation the Applicant ran the printing firm which hadbelonged to his parents. This firm was situated in A., but in ... theApplicant had to reorganise the firm in D. after his escape from theDDR. He apparently specialised in printing stationery, receipts,orders, bills, etc.On ... 1956 the Applicant was arrested on charges of fraud, perjury andfalsification of documents in more than 150 cases. After a trial of 47days he was convicted on ... 1958 by the Regional Court (Landgericht)of D., whose judgment ran to ... pages and which sentenced him to 6years' imprisonment, 6 years loss of civil rights and barred for 5years from carrying on his occupation as a printer.The Applicant had apparently committed several offenses. One was thathe explained to prospective customers that the abbreviation marked oncertain order forms stood for "Blätter" (pages) and then carried outthe order as "Blöcke" (blocks of 100 pages). The result was that thecustomers received and were forced to pay for printed matter 100 timesmore than their original order. Other offenses were that the writtenorder forms differed from the oral agreement, the Applicant relying onthe fact that many persons would not read the text of the forms beforesigning 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 morethan 50 witnesses had not been heard on the grounds that theirtestimony was not relevant to the charges or that the questions onwhich they would give evidence were not in dispute. On ... 1959 theFederal Court rejected his application for "Revision" as being"manifestly unfounded". The Applicant complains that his appeal wasdecided upon without a public hearing and that no reasons were givenby the Court for its decision.Whereas the Applicant alleges that his conviction is unjust and thatit is a result of religious persecution and discrimination. He asks fora reconsideration of his case and for his social rehabilitation. Healleges violations of the Convention as follows:- of Article 3, in that the Regional Court did not respect Jewishholidays and in that on these days he was unable, for religiousreasons, to undertake his defence;- of Article 6, paragraph (3) (b), in that the police confiscatedcertain documents needed for his defence and these documents werereturned to him when it was too late for an adequate preparation of hisdefence;- of Article 6, paragraph (3) (d), in that he was refused leave to calla number of witnesses;- of Article 9, in that the practice of his religion was obstructed bythe Court, no time for prayer being allowed to him;- of Article 14, in that he was subjected to discrimination onreligious grounds.Whereas the Applicant alleges, furthermore, that a certain policeofficial made anti-semitic statements, that the judges were formermembers of the Nazi Party and that one of the witnesses for theprosecution was responsible for the arrest and subsequent exterminationof the Applicant's parents in the camp of C.Proceedings before the CommissionThe 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 manifestlyill-founded, insofar as the Applicant alleged a violation of Article6 of the Convention; and(2) to instruct the Secretariat to seek information from the Applicantas to whether or not he had raised the issues of the alleged violationsof Articles 3, 9 and 14 on appeal before the Federal Court.On 13th June 1960 the Secretariat wrote to the Applicant requesting himto submit proof that the following allegations had been raised by himbefore the Federal Court on appeal:(1) that the Regional Court of D. had not respected Jewish holidays andthat the Applicant was consequently unable for religious reasons toundertake his defence on those particular days;(2) that the practice by the Applicant of his religion was obstructedby 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 thecase before the Commission as he had in the meanwhile lodged anapplication 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 statingthat the religious issues had not been raised on appeal because he andhis lawyer had feared that, in view of the influence of former Nazisin German courts, it might prejudice his case and lead to anunfavourable decision. He considered, however, that Article 26 had beencomplied with as his allegations concerned not only the question ofJewish holidays but the entire course of proceedings before theRegional Court which had been the object of his appeal.In subsequent correspondence with the Secretariat, the Applicant'slawyer stated that the Applicant had been released from prison onprobation but wished to maintain his Application before the Commission.The Secretariat asked the lawyer for his comments on the question ofexhaustion of domestic remedies and, in spite of several reminders, ofwhich the latest was on 4th December 1961, has received no explanationon this issue.THE LAWWhereas, in regard to the Applicant's complaints that certain documentsneeded for the Applicant's defence were confiscated by the police andreturned to him at a time when it was too late for him to make use ofthem, and that the Regional Court of D. did not allow him to call anumber of witnesses, it is to be observed that in its decision of 31stMay 1960 the Commission has already held that an examination of thecase as it was submitted, including an examination ex officio, did notdisclose any appearance of a violation of Article 6 (Art. 6) of theConvention; whereas the subsequent submissions by the Applicant insofaras they relate to these complaints, do not provide any grounds for thereconsideration of the decision reached by the Commission on 31st May1960; whereas it follows that these complaints are manifestlyill-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 proceedingsbefore the Regional Court of D. were conducted in a manner whichconstituted a violation of Articles 3, 9 and 14 (Art. 3, 9, 14) of theConvention, under Article 26 (Art. 26) of the Convention the Commissionmay only deal with a matter after all domestic remedies have beenexhausted according to the generally recognised rules of internationallaw; and whereas the Applicant has acknowledged that these issues werenot raised by him on appeal before the Federal Court and whereasaccordingly on his own admission, he had failed to exhaust the remediesavailable to him under German law; whereas the Applicant has contendedthat the question of respect for Jewish religious holidays and ritesmight, if raised, have been prejudicial to his appeal in view of thealleged influence in the German courts of persons once closelyconnected with the Nazi regime;Whereas in spite of numerous requests by the Secretariat, the Applicanthas not given any further explanation as to his failure to exhaust thedomestic remedies available to him; whereas, therefore, in thecircumstances of the present case, it cannot be considered that therewas any special ground which, under the generally recognised rules ofinternational law, might have absolved him from raising the questionon appeal and thus pursuing the domestic remedies laid down in Article26 (Art. 26) have not been complied with in the present case;Whereas, therefore, this part of the Application must be rejected inaccordance with Article 27, paragraph (3) (Art. 27-3), of theConvention;Now therefore the Commission declares this Application INADMISSIBLE.
THE FACTSWhereas the facts presented by the Applicant may be summarised asfollows:The Applicant is a German citizen born in ... He is of Jewish originand practises the Jewish Orthodox religion.The Applicant states that his father owned before the war awell-established printing firm in A. and that he himself was educatedas a printer. The firm was destroyed during the so-called "CrystalNight" in November 1938.He further states that he spent several years in the Ghetto of B. andin various concentration camps. He was liberated from C. by theRussians in 1945 and was the only survivor of his family, having seenall his relatives taken to the gas-chamber.After his liberation the Applicant ran the printing firm which hadbelonged to his parents. This firm was situated in A., but in ... theApplicant had to reorganise the firm in D. after his escape from theDDR. He apparently specialised in printing stationery, receipts,orders, bills, etc.On ... 1956 the Applicant was arrested on charges of fraud, perjury andfalsification of documents in more than 150 cases. After a trial of 47days he was convicted on ... 1958 by the Regional Court (Landgericht)of D., whose judgment ran to ... pages and which sentenced him to 6years' imprisonment, 6 years loss of civil rights and barred for 5years from carrying on his occupation as a printer.The Applicant had apparently committed several offenses. One was thathe explained to prospective customers that the abbreviation marked oncertain order forms stood for "Blätter" (pages) and then carried outthe order as "Blöcke" (blocks of 100 pages). The result was that thecustomers received and were forced to pay for printed matter 100 timesmore than their original order. Other offenses were that the writtenorder forms differed from the oral agreement, the Applicant relying onthe fact that many persons would not read the text of the forms beforesigning 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 morethan 50 witnesses had not been heard on the grounds that theirtestimony was not relevant to the charges or that the questions onwhich they would give evidence were not in dispute. On ... 1959 theFederal Court rejected his application for "Revision" as being"manifestly unfounded". The Applicant complains that his appeal wasdecided upon without a public hearing and that no reasons were givenby the Court for its decision.Whereas the Applicant alleges that his conviction is unjust and thatit is a result of religious persecution and discrimination. He asks fora reconsideration of his case and for his social rehabilitation. Healleges violations of the Convention as follows:- of Article 3, in that the Regional Court did not respect Jewishholidays and in that on these days he was unable, for religiousreasons, to undertake his defence;- of Article 6, paragraph (3) (b), in that the police confiscatedcertain documents needed for his defence and these documents werereturned to him when it was too late for an adequate preparation of hisdefence;- of Article 6, paragraph (3) (d), in that he was refused leave to calla number of witnesses;- of Article 9, in that the practice of his religion was obstructed bythe Court, no time for prayer being allowed to him;- of Article 14, in that he was subjected to discrimination onreligious grounds.Whereas the Applicant alleges, furthermore, that a certain policeofficial made anti-semitic statements, that the judges were formermembers of the Nazi Party and that one of the witnesses for theprosecution was responsible for the arrest and subsequent exterminationof the Applicant's parents in the camp of C.Proceedings before the CommissionThe 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 manifestlyill-founded, insofar as the Applicant alleged a violation of Article6 of the Convention; and(2) to instruct the Secretariat to seek information from the Applicantas to whether or not he had raised the issues of the alleged violationsof Articles 3, 9 and 14 on appeal before the Federal Court.On 13th June 1960 the Secretariat wrote to the Applicant requesting himto submit proof that the following allegations had been raised by himbefore the Federal Court on appeal:(1) that the Regional Court of D. had not respected Jewish holidays andthat the Applicant was consequently unable for religious reasons toundertake his defence on those particular days;(2) that the practice by the Applicant of his religion was obstructedby 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 thecase before the Commission as he had in the meanwhile lodged anapplication 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 statingthat the religious issues had not been raised on appeal because he andhis lawyer had feared that, in view of the influence of former Nazisin German courts, it might prejudice his case and lead to anunfavourable decision. He considered, however, that Article 26 had beencomplied with as his allegations concerned not only the question ofJewish holidays but the entire course of proceedings before theRegional Court which had been the object of his appeal.In subsequent correspondence with the Secretariat, the Applicant'slawyer stated that the Applicant had been released from prison onprobation but wished to maintain his Application before the Commission.The Secretariat asked the lawyer for his comments on the question ofexhaustion of domestic remedies and, in spite of several reminders, ofwhich the latest was on 4th December 1961, has received no explanationon this issue.THE LAWWhereas, in regard to the Applicant's complaints that certain documentsneeded for the Applicant's defence were confiscated by the police andreturned to him at a time when it was too late for him to make use ofthem, and that the Regional Court of D. did not allow him to call anumber of witnesses, it is to be observed that in its decision of 31stMay 1960 the Commission has already held that an examination of thecase as it was submitted, including an examination ex officio, did notdisclose any appearance of a violation of Article 6 (Art. 6) of theConvention; whereas the subsequent submissions by the Applicant insofaras they relate to these complaints, do not provide any grounds for thereconsideration of the decision reached by the Commission on 31st May1960; whereas it follows that these complaints are manifestlyill-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 proceedingsbefore the Regional Court of D. were conducted in a manner whichconstituted a violation of Articles 3, 9 and 14 (Art. 3, 9, 14) of theConvention, under Article 26 (Art. 26) of the Convention the Commissionmay only deal with a matter after all domestic remedies have beenexhausted according to the generally recognised rules of internationallaw; and whereas the Applicant has acknowledged that these issues werenot raised by him on appeal before the Federal Court and whereasaccordingly on his own admission, he had failed to exhaust the remediesavailable to him under German law; whereas the Applicant has contendedthat the question of respect for Jewish religious holidays and ritesmight, if raised, have been prejudicial to his appeal in view of thealleged influence in the German courts of persons once closelyconnected with the Nazi regime;Whereas in spite of numerous requests by the Secretariat, the Applicanthas not given any further explanation as to his failure to exhaust thedomestic remedies available to him; whereas, therefore, in thecircumstances of the present case, it cannot be considered that therewas any special ground which, under the generally recognised rules ofinternational law, might have absolved him from raising the questionon appeal and thus pursuing the domestic remedies laid down in Article26 (Art. 26) have not been complied with in the present case;Whereas, therefore, this part of the Application must be rejected inaccordance with Article 27, paragraph (3) (Art. 27-3), of theConvention;Now therefore the Commission declares this Application INADMISSIBLE.