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مشاهدة النسخة كاملة : X. v. THE FEDERAL REPUBLIC OF GERMANY - 2646/65 [1966] ECHR 5 (30 March 1966)



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07-15-2009, 12:36 AM
X. v. THE FEDERAL REPUBLIC OF GERMANY - 2646/65 [1966] ECHR 5 (30 March 1966)
THE FACTSWhereas the facts presented by the Applicant may be summarised asfollows:The Applicant is a German citizen, born in 1927, and at presentdetained on remand in Hamburg.From the statements and documents submitted by the Applicant it appearsthat on .. February, 1964 he was arrested on suspicion of havingcommitted fraud. On .. January, 1965 the Regional Court (Landgericht)of Hamburg sentenced him to four years' penal servitude. TheApplicant's detention on remand was taken into account. On .. June,1965 the Federal Court of Justice quashed this decision on a proceduralground and the case was sent back for retrial to another Chamber of thesame Court. It seems that no further action has taken place yet andthat a new trial fixed in February 1966 was adjourned pending criminalinvestigations against certain judges who participated in the decisionof January, 1965.From his arrest in February, 1964 until his conviction in January,1965, the Applicant did not request his release from detention onremand as he did not wish to delay the proceedings. Following theabove-mentioned decision he has repeatedly requested his release andhe also requested his release on bail. His petitions were, however,rejected by the Regional Court of Hamburg (on ... and ... 1965) and,on appeal by the Hanseatic Court of Appeal (HanseatischesOberlandesgericht) of Hamburg (on ... and ... 1965), on the groundsthat according to his "trustworthy" confessions during theinvestigating proceedings (Ermittlungsverfahren) and his trial he was"urgently" suspected of having committed the offenses he was chargedwith and that, in view of the long term of imprisonment which he hadto expect, he might flee the country (Fluchtgefahr) as indeed he hadtried to do previously. The Court stated that for this last reason hisdetention could not be suspended under any conditions.The Applicant claims that he should have been released as there was noreason for such a long detention pending trial. He states that therewas no danger that he might flee the country since he wished to livewith his parents in Hamburg. He alleges that it was not in order toescape his conviction that he left Hamburg in the beginning ofSeptember, 1963, and visited the Netherlands and subsequently until hisarrest, lived and worked under a false name at Essen and Celle. At thattime the warrant for arrest had not yet been issued and he states thatlater he never received a summons from the police. Before he leftHamburg he was heard by the police in regard to a different matter butalthough he returned there later when visiting his parents, he neverknew that the police and searched for him. He further submits that thedanger that he might flee the country must not be implied from whatoccurred before the warrant for arrest of .. December, 1963 was issued.Furthermore, since the sentence of the Regional Court of Hamburg wasquashed by the Federal Court of Justice, the Courts should no longerrely on this sentence when deciding on the further duration of hisdetention on remand. X claims that in similar previous cases the Courtof Appeal of Hamburg as well as the Court of Appeal of Frankfort hadreleased persons from detention on remand and that in his case thequestion whether or not his further detention pending trial was reallynecessary was not carefully examined.He complains that, as a result of a false interpretation of the law,the Court of Appeal of Hamburg did not apply to him Articles 121 and122 of the Code of Criminal Procedure according to which detention onremand can only be prolonged for a period exceeding six months providedthat there is a careful examination of the circumstances of the case.(see decision of the Court of Appeal of ... 1965).The Applicant further submits that his confession during theinvestigation proceedings was very different from that which he madeduring his trial under pressure from the Court. He accuses theauthorities of extortion of evidence (Aussagenerpressung), improperpressure (Nötigung), and perversion of justice (Rechtsbeugung). Hestates that after his arrest he had refused to make submissions beforethe police but, after the Senior Public Prosecutor Dr. had told himthat in this case it was likely that his detention on remand would notbe taken into account at his final conviction, he has told the policethe actual state of affairs as far as he could remember it after arecent road accident. At that occasion he has also explained to thepolice that he was forced, by extortion and compulsion, to commit someof these offenses. However, the Applicant alleges, in order to ensurehis being put into preventive detention (Sicherungsverwahrung), theOffice of the Public Prosecutor did not take any action against thosewho had extorted and put pressure on him. The President of the Courtlater forced him to give false evidence by threatening him withpreventive detention. Thus he says, he confessed to offenses which hehas not committed and, contrary to the truth, withdrew evidence whichhe had given before the police. He also alleges that the lawyer who wasappointed ex officio did not defend him properly. The Applicantapparently complained both about this and the fact that certaindocuments had disappeared from his file. The Senior Public Prosecutordecided on ... 1965 to discontinue the investigation in this matterbut, on appeal, the Attorney-General of Hamburg ordered the re-openingof the investigation, on ... 1965. This investigation, it seems, isstill going on.It also appears from the documents submitted that an applicationconcerning the Applicant's trial was rejected by the Ministry ofJustice (Landesjustizverwaltung) of Hamburg as being inadmissible(unzuständig).A letter in which the Applicant wished to inform the German newspaper"Stern" about his case was not forwarded as the Regional Court ofHamburg decided on ... 1965, that it contained wrong or grosslydistorting allegations.The Applicant further complains that all his correspondence with hislawyer has been subject to censorship. His letter of ... 1965, to theCommission has been opened and according to a judicial decision(richterliche Verfügung), been copied. It appears from the text of thisdecision that it was only in order not to make "difficult" (erschweren)the Applicant's correspondence with the Commission, that this letterwas not kept back (angehalten) by the authorities.X states that his long detention on remand for more than two years wascontrary to several Articles of the Criminal Procedure amending Act(Gesetz zur Änderung der Strafprozessordnung und desGerichtsverfassungsgesetzes) of 19th December, 1964, and violatedArticle 5, paragraphs (3) and (4) of the Convention. He alleges alsoa violation of Article 3 of the Convention on the ground that one ofthe judges (Landgerichtsrat Dr.) who decided upon his conviction alsoparticipated in the decision of ... 1965 concerning his detention onremand. This, the Applicant alleges, constitutes an arbitrary act(Willkür).As the Second Criminal Chamber of the Regional Court of Hamburg whichdecided on the question of his detention on remand is charged with hisretrial, the Applicant further alleges a violation of Article 6,paragraph (2), of the Convention.THE LAWWhereas in so far as the Applicant's complaints are directed againstthe lawyer who was appointed ex officio for his defence, it resultsfrom Article 19 (Art. 19) of the Convention that the sole task of theCommission is to ensure the observance of the engagements undertakenin the Convention by the High Contracting Parties, being those membersof the Council of Europe which have signed the Convention and depositedtheir instruments of ratification; whereas, moreover, it appears fromArticle 25, paragraph (1) (Art. 25-1), of the Convention that theCommission can properly admit an application from an individual onlyif that individual claims to be the victim of a violation of the rightsset forth in the Convention provided that the Party in question hasaccepted this competence of the Commission;Whereas it results clearly from these Articles that the Commission hasno competence ratione personae to admit applications directed againstprivate individuals; whereas, in this respect, the Commission refersto its previous decision No. 1599 (Collection of Decisions 10, page 9);whereas an examination of the case as it has been submitted, does notdisclose any grounds on which the alleged conduct of the lawyer who wasappointed ex officio for the Applicant's defence could exceptionallyentail the responsibility of the Government of the Federal Republic ofGermany under the Convention; whereas it follows that this part of theApplication is incompatible within the meaning of Article 27, paragraph(2) (Art. 27-2), of the Convention;Whereas, in regard to the Applicant's complaints that the PublicProsecutor induced him to make submissions before the police and thatthe President of the Court later forced him to give false evidence andto confess to offenses which he had not committed, it is to be observedthat the Convention, under the terms of Article 1 (Art. 1), guaranteesonly the rights and freedoms set forth in Section 1 of the Convention;and whereas, under Article 25, paragraph (1) (Art. 25-1), only thealleged violation of one of those rights and freedoms by a ContractingParty can be the subject of an individual application; whereasotherwise its examination is outside the competence of the Commissionratione materiae; whereas the Commission has noted that, in fact, thequestion of the institution of criminal proceedings against the judgeand Public Prosecutor is still under examination; whereas in any eventthe right to have criminal proceedings instituted against a judge orpublic prosecutor is not as such included among the rights and freedomsguaranteed by the Convention;Whereas it follows that this part of the Application is incompatiblewith the provisions of the Convention within the meaning of Article 27,paragraph (2) (Art. 27-2), of the Convention.Whereas, in regard to the Applicant's complaints concerning hisconviction and the proceedings before the Regional Court of Hamburg,it is to be observed that, under Article 26 (Art. 26) of theConvention, the Commission may only deal with a matter after alldomestic remedies have been exhausted according to the generallyrecognised rules of international law; and whereas it appears that, onthe Applicant's appeal, the Federal Court of Justice quashed thisdecision and sent the case back for retrial to another Chamber of thesame Court where it is still pending; whereas, therefore theproceedings concerning the Applicant's conviction have not beenterminated and the Applicant has therefore not yet exhausted theremedies available to him under German law;Whereas, moreover, an examination made ex officio, does not disclosethe existence of any special circumstances which might absolve theApplicant, according to the generally recognised rules of internationallaw, from exhausting the domestic remedies at his disposal; whereas,therefore, the condition as to the exhaustion of domestic remedies laiddown in Articles 26 and 27, paragraph (3) (Art. 26, 27-3) of theConvention has not been complied with by the Applicant;Whereas, in regard to the Applicant's complaints that he should havebeen released from detention on remand as there was no reason for hisbeing detained pending trial for such a long period, an examination ofthe case as it has been submitted in regard to the present stage of theproceedings before the domestic Courts does not disclose any appearanceof a violation of the rights and freedoms set forth in the Conventionand in particular in Article 5, paragraphs (3) and (4) (Art. 5-3, 5-4);whereas it follows that this part of the Application is, at the presentstage of the proceedings, manifestly ill-founded within the meaning ofArticle 27, paragraph (2) (Art. 27-2) of the Convention;Whereas, in regard to the remainder of the Application i.e. theApplicant's complaints in regard to his correspondence an to thecomposition of the Court which decided on his applications for releasefrom detention on remand as well as on the criminal charges broughtagainst him, an examination of the case as it has been submitted doesnot disclose any appearance of a violation of the Convention and inparticular Articles 8, 10, 25, paragraph (1) in fine(Art. 8, 10, 25-1), 3 and 6, paragraph (2) (Art. 3, 6-2);Whereas it follows that this part too is manifestly ill-founded(Article 27, paragraph (2) (Art. 27-2) of the Convention);Now therefore the Commission declares this Application INADMISSIBLE.