المساعد الشخصي الرقمي

مشاهدة النسخة كاملة : X. v. THE GERMANY - 2566/65 [1967] ECHR 25 (06 February 1967)



هيثم الفقى
07-16-2009, 12:56 PM
X. v. THE GERMANY - 2566/65 [1967] ECHR 25 (06 February 1967)
THE FACTSWhereas the facts presented by the Applicant may be summarised asfollows:The Applicant is a German citizen born in 1902 and at present detainedin the prison at Butzbach.On ... 1964, the Applicant was convicted of a homo***ual offence withan 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 Frankfurtto prosecute one of the witnesses for perjury and procuration ofperjury in his trial. The Applicant was acquitted on the count on whichthis witness gave evidence. This count related to homo***ual behaviourwith the witness's son who had given evidence, which the Applicantstates to be false, of homo***ual acts by the Applicant. The Applicantconsiders that although he was acquitted on this count the evidencegiven may have affected his sentence.The Applicant complains particularly that he has been sentenced topreventive detention (Sicherungsverwahrung) and considers that he hassuffered injustice in that - the court refused to grant an applicationof the defence to call a second psychiatrist as an expert witnessbecause, in the opinion of the Applicant, the psychiatrist called didnot show the necessary understanding of the case and had a negativeattitude towards homo***uality;a statement appeared in the judgment which is not true and which wasnot at any stage of the proceedings put to the Applicant so that he hadno opportunity of disproving it, namely: that the Applicant haddiscussed ***ual subjects with the adolescent with whom he wasconvicted of committing homo***ual acts before these acts werecommitted 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 werenot given sufficient attention: in particular the motives, tendenciesand personality of the accused seen as a whole;his five former convictions were taken into account in fixing thesentence and ordering preventive detention without proper attentionbeing given to the fact that the first two convictions (1938 and 1940)occurred during the period of National Socialist Government and wereaffected by the political circumstances. It was impossible for him toapply for retrial and prove his innocence because the competent courtwas in East Berlin where the offenses were treated as having beeneffaced by prescription. For this reason the Applicant considers thatthey were improperly taken into consideration by the trial court.With regard to the other convictions the Applicant (who in one caseconsiders that he was innocent) objects that they have been taken intoaccount without proper consideration being given to the mitigatingfactors which were present in each case.The Applicant complains that the court had treated his opinion that anaffectionate relationship between men and youths in the Socratictradition was justified as a negative factor in assessing hispunishment.The Applicant also complains that a letter which he sent to a witnesson the count on which he was acquitted was not forwarded on groundsthat it was liable to influence the proceedings. He appealed to theCourt and the Court of Appeal (Oberlandesgericht) on this point but hisappeals 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 LAWWhereas, in regard to the Applicant's complaint concerning hisconviction and subsequent detention, an examination of the case as ithas been submitted, including an examination made ex officio, does notdisclose any appearance of a violation of the rights and freedoms setforth in the Convention and especially in the Articles invoked by theApplicant;Whereas, in respect of the judicial decisions complained of, theCommission, has frequently stated that in accordance with Article 19(Art. 19) of the Convention its only task is to ensure observance ofthe obligations undertaken by the Parties in the Convention; whereas,in particular, it is not competent to deal with an application allegingthat errors of law or fact have been committed by domestic courts,except where the Commission considers that such errors might haveinvolved a possible violation of any of the rights and freedomslimitatively listed in the Convention; whereas, in this respect, theCommission refers to its decisions Nos. 458/59 (X v. Belgium - YearbookIII, page 233) and 1140/61 (X v. Austria - Collection of Decisions,Volume 8, page 57); and whereas there is no appearance of a violationin the proceedings complained of; whereas it follows that this part ofthe Application is manifestly ill-founded within the meaning of Article27, paragraph (2) (Art. 27-2), of the Convention;Whereas, in regard to the Applicant's complaint that a letter addressedby him to a witness was not forwarded, an examination of the case asit has been submitted, including an examination made ex officio, doesnot disclose any appearance of a violation of the rights and freedomsset forth in the Convention and in particular in Article 8 since thestopping of a letter calculated to influence a witness is justified asa measure aimed at the prevention of crime and thus falls within theterms of paragraph (2) of Article 8 (Art. 8-2); whereas it follows thatthis part of the Application is manifestly ill-founded within themeaning of Article 27, paragraph (2) (Art. 27-2), of the Convention.Now therefore the Commission declares this Application INADMISSIBLE.