هيثم الفقى
07-15-2009, 12:26 AM
THE FACTSWhereas the facts presented by the Applicant may be summarised asfollows:The Applicant is a Polish citizen born in 1927. He has several previousconvictions.It appears that he was arrested in 1962 under suspicion of havingcommitted theft and that in 1963, he was convicted by the RegionalCourt (Landgericht) of H and sentenced to 3 years and 6 monthsimprisonment.He alleges that his is not guilty of the crimes concerned and that,even if he were, he should have been convicted for embezzlement(Fundunterschlagung) and not for theft (Diebstahl). He further allegesthat one of the lay judges went to sleep during the hearing and thatthe Court refused to hear six witnesses whom the defence wished tocall. In his reply of 1963 to the Applicant's appeal, the PublicProsecutor, having heard witnesses, stated that the lay judge inquestion had been fully awake during the entire hearing of the case andhad, indeed, put several questions to the parties. He further statedthat the lawyer acting on behalf of the Applicant expressly renouncedhis right to call the above witnesses.In 1963 the Federal Court (Bundesgerichtshof) of A rejected theApplicant's appeal and in 1964 the Federal Constitutional Courtrejected a constitutional complaint lodged by him.In the meanwhile, the Applicant lodged a complaint against the judgesof the Regional Court of H accusing them of illegally depriving him ofhis liberty. This complaint was rejected by the Public Prosecutor ofH in 1963 and by the Supreme Public Prosecutor (General-Staatsanwalt)of A in 1964.Whereas, in respect of the above proceedings, the Applicant allegesviolations of Articles 5 and 6 of the Convention and he states that thelawyer appointed by the Court to act on his behalf grossly neglectedhis professional duties.Furthermore, he states that in 1963 he gave to the prison authoritiesa letter for dispatch to the Secretary to the Commission. In 1963 hewas informed that the letter had been confiscated (beschlagnahmt) bya decision of the above Court on the ground that it containedslanderous statements. He maintains that he did no more than expose thetruth in respect of the proceedings which led to his conviction.In 1964 the Respondent Government admitted that the Applicant's aboveletter had, in fact, been confiscated. It forwarded to the Commissionat the same time, a copy of the letter concerned.THE LAWWhereas, in regard to the proceedings before the Regional Court of A,the Federal Court and the Constitutional Court, an examination of thecase as it has been submitted, including an examination made exofficio, does not disclose any appearance of a violation of the rightsand freedoms set forth in the Convention and, in particular, theprovisions of Articles 5 and 6 (Art. 5, 6) invoked by the Applicant;Whereas it follows that the Application is manifestly ill-founded andmust be rejected in accordance with Article 27, paragraph (2)(Art. 27-2) of the Convention;Whereas, in respect of the confiscation of the Applicant's letter bythe decision of the Regional Court of H in 1963, the Commission hascarefully considered this question in the light of the last sentenceof Article 25, paragraph (1) (Art. 25-1);Whereas the Commission considers that this confiscation hindered theApplicant in the presentation of his petition and thereby constituteda violation of this provision of Article 25 (Art. 25);Whereas, however, the Commission has had regard to the facts that theRespondent Government had at a later date forwarded to the Commissionthe said letter and had itself taken appropriate measures to ensure inthe future the full observance of Article 25 (Art. 25) by the domesticauthorities concerned;Whereas the Commission does not consider that the Applicant had finallybeen frustrated in the submission of his present Application andtherefore decides in this case to take no further steps.Now therefore the Commission declares this Application INADMISSIBLE.