هيثم الفقى
07-16-2009, 01:06 PM
X. v. THE GERMANY - 2366/64 [1967] ECHR 12 (07 April 1967)
THE FACTSWhereas the facts presented by the Applicant may be summarised asfollows:The Applicant is a German national, born in 1916 and at presentresiding in Hanover.I. From his statements and from the documents submitted by him, itappears that he is a Communist and was as such denied the right tobecome a candidate for the elections to the German Bundestag in 1961.On ..., 1963, he was convicted by the High Criminal Chamber of theRegional Court (Grosse Strafkammer des Landgerichts) at Lüneburg oncharges of contravening the law prescribing the Communist Party,instigating a subversive association as one of its leading members andengaging in a secret organisation with an intention hostile to theState. He was sentenced to one year's imprisonment as well as loss ofthe right to hold public office for four years. The Applicant lodgedan appeal (Revision) from this decision with the Federal Court(Bundesgerichtshof) which was dismissed on ..., 1964. The decision wascommunicated to him on ..., 1964. On ..., 1964, the Applicant lodgeda constitutional appeal with the Federal Constitutional Court(Bundesverfassungsgericht) which was rejected on ..., 1964, on theground that the time-limit for lodging an appeal had expired.The Applicant complains that he was wrongly convicted. He complains inparticular:- that certain documents tending to incriminate him were placed in hishome by the police on the occasion of a search;- that he was convicted by a Special Criminal Chamber(Sonderstrafkammer) whereas such chambers were supposed to have beenabolished by the laws of the Control Council and Article 101 of theGerman Basic Law;- that he was deprived of the possibility to lodge a constitutionalappeal in time as the authorities had refused to grant him a suspensionof the execution of his sentence or a leave of absence from prison forwhich he had repeatedly applied in order to collect the material tosupport his complaint, as is indicated in a letter from the Office ofthe Director of the prison at Oldenburg of ..., 1964; however, asuspension of the execution of his sentence was in fact granted from... to ..., 1964; he also had the help of a friend in collectingmaterial to support his constitutional appeal;- that he had suffered discrimination by his conviction in that otherGerman courts did not convict on these political charges;- that there was no appeal (Berufung) from decisions by the HighCriminal Chamber of the Regional Court and thus no instance to reviewsuch decisions on the facts;- that he was treated as a political prisoner and, as such, moreseverely treated than other prisoners to the extent that he wastransferred from the prison at Wolfenbüttel to the prison at Oldenburg,where he was kept in solitary confinement and strictly isolated fromother prisoners, where there are no outside activities such as sports,television and radio, and where visits from friends and relatives aresupervised.The Applicant alleges a violation of the Preamble as well as Articles1, 3, 5, 6, 7, 8, 9, 10, 11, 13, 14, 17 and 18 of the Convention.Following a preliminary examination of the Application by a group ofthree members of the Commission on 23rd September, 1966, the Applicantwas invited to inform the Commission as to whether he has raised hiscomplaint concerning the planting of documents with any German courtand to submit the relevant court decisions. The Applicant has notsubmitted any court decisions and states that the cost of having copiesmade was more than he could afford.By letter of 7th January, 1967, however, the Applicant supplied thefollowing additional and supplementary information:1. On ..., 1961 a number of citizens in his electoral districtpresented a proposal to the competent local Electoral Board (Wahlamt)for his nomination as a candidate to the German Bundestag. Apparentlythis proposal was rejected by the Board on ..., 1961, on the basis ofa circular (Erlass) of the Ministry of the Interior of Lower Saxony(Niedersächsisches Ministerium des Innern), dated ..., 1961. TheApplicant maintains that he made several protests concerning thisrejection and that he demanded to be supplied with the reasons for therejection in writing, but that all his efforts simply led to theintroduction of the criminal proceedings against him and to hisconviction by the Regional Court (Landgericht) of Lüneburg on ...,1963.The Applicant alleges that the refusal of his candidature to the 1961election constitutes a violation of Article 3 of the Protocol to theConvention.2. With respect to the question of planting incriminating documents inhis home, he states that, when returning home in the evening of ...,1961, he found a plain envelope which had been pushed into theletter-box of the flat and not into the letter-box in the main hall ofthe building in which his mail was placed ordinarily. The envelopecontained newspaper clippings, among others from an August edition ofthe "Neues Deutschland", a newspaper representing the official organof the Communist Party in the Soviet-occupied Zone of Germany.He states that the next day two police officers appeared at his placeof work and presented a search warrant which had been issued four weeksbefore this visit. Together with the police officers and a thirdperson, one Mr. F, the Applicant returned to his home which was thensearched by the police officers. Finally, the police confiscated onlythe above envelope and two pamphlets, taking nothing else although theApplicant had invited them to seize all the election material which hadbeen prepared by him and which was lying around openly.The Applicant states that certain material was put in evidence at thetrial, but it was impossible for him to tell whether this was thematerial confiscated.The Applicant alleges that he had raised this point at his trial beforethe Regional Court at Lüneburg and had also pointed out to the Courtthat these documents had been planted by the police. In his appeal(Revision) to the Federal Court (Bundesgerichtshof) the Applicantsimply alleged that it had not been established where these documentscame from.The Applicant finally states that his conviction was substantiallybased on evidence given by so-called "expert witnesses" who wereemployed by the Federal Office for the Protection of the Constitution(Bundesamt für Verfassungsschutz) and who testified to events reportedto them by third persons whose identity remained concealed(Vertrauensleute).The Applicant complains that he was denied the right to a fair hearingin that, by the above practice, he was prevented from "examining orhaving examined witnesses against him".In this regard he alleges a violation of Article 6, paragraph (3),sub-paragraph (d), of the Convention.THE LAWWhereas, in regard to the Applicant's complaint under Article 3 of theProtocol of 20th March, 1952 (P1-3) to the Convention, that theauthorities refused to admit him as a candidate to the 1961 electionsto the Federal Parliament, it is to be observed that, under Article 26(Art. 26) of the Convention, the Commission may only deal with a matterafter all domestic remedies have been exhausted according to thegenerally recognised rules of international law; and whereas theApplicant failed to lodge a constitutional appeal with the FederalConstitutional Court in accordance with Article 90 of the Act relatingto the Federal Constitutional Court (Gesetz über dasBundesverfassungsgericht) in conjunction with Article 38 of the BasicLaw (Grundgesetz) and Article 16 of the Act concerning FederalElections (Bundeswahlgesetz) of 1956; whereas, therefore, he has notexhausted the remedies available to him under German law;Whereas, in regard to the Applicant's complaints that he was wronglyconvicted and sentenced by a Special Criminal Chamber of the RegionalCourt at Lüneburg, that he thereby suffered discrimination in relationto the decision of other German courts in similar cases, that documentswere planted in his home by the police and that his treatment in prisonwas unlawful, it is also to be observed that, under Article 26(Art. 26) of the Convention, the Commission may only deal with a matterafter all domestic remedies have been exhausted according to thegenerally recognised rules of international law; and whereas theApplicant failed to lodge a constitutional appeal within the time-limitprescribed; whereas, therefore, he has again not exhausted the remediesavailable to him under German law; whereas, moreover, an examinationof the case as it has been submitted, including an examination made exofficio, does not disclose the existence of any special circumstanceswhich might have absolved the Applicant, according to the generallyrecognised rules of international law, from exhausting in either casethe domestic remedies at his disposal; whereas, therefore, thecondition as to the exhaustion of domestic remedies laid down inArticles 26 and 27, paragraph (3) (Art. 26, 27-3), of the Conventionhas not been complied with by the Applicant;Whereas, in regard to the Applicant's complaint relating to theauthorities' refusal to grant a suspension from the execution of hissentence or leave of absence from prison for the preparation of hisconstitutional appeal, the Commission had regard to the fact that asuspension from the execution of his sentence was in fact granted from... to ..., 1964 and that the Applicant also had the assistance of afriend in collecting material to support his constitutional appeal;whereas, therefore, an examination of the case as it has beensubmitted, including an examination made ex officio, does not discloseany appearance of a violation of the rights and freedoms set forth inthe Convention and in particular in the Articles invoked by theApplicant; whereas it follows that this part of the Application ismanifestly ill-founded within the meaning of Article 27, paragraph (2)(Art. 27-2), of the Convention;Whereas, finally, in regard to the Applicant's complaint as to the lackof any possibility to appeal (Berufung) from decisions taken by theHigh Criminal Chamber of the Regional Court, it is to be observed thatthe Convention, under the terms of Article 1 (Art. 1), guarantees onlythe rights and freedoms set forth in Section I of the Convention; andwhereas, under Article 25, paragraph (1) (Art. 25-1), only the allegedviolation of one of those rights and freedoms by a Contracting Partycan be the subject of an application presented by a person,non-governmental organisation or group of individuals; whereasotherwise its examination is outside the competence of the Commissionratione materiae; whereas no right to appeal on the appreciation offacts in a criminal case is as such included among the rights andfreedoms guaranteed by the Convention; whereas in this respect theCommission refers to its previous decisions, Nos. 277/57, Yearbook I,page 219; 1850/63, Collection of Decisions, Volume 19, page 71; whereasit follows that this part of the Application is incompatible with theprovisions of the Convention within the meaning of Article 27,paragraph (2) (Art. 27-2), of the Convention;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 national, born in 1916 and at presentresiding in Hanover.I. From his statements and from the documents submitted by him, itappears that he is a Communist and was as such denied the right tobecome a candidate for the elections to the German Bundestag in 1961.On ..., 1963, he was convicted by the High Criminal Chamber of theRegional Court (Grosse Strafkammer des Landgerichts) at Lüneburg oncharges of contravening the law prescribing the Communist Party,instigating a subversive association as one of its leading members andengaging in a secret organisation with an intention hostile to theState. He was sentenced to one year's imprisonment as well as loss ofthe right to hold public office for four years. The Applicant lodgedan appeal (Revision) from this decision with the Federal Court(Bundesgerichtshof) which was dismissed on ..., 1964. The decision wascommunicated to him on ..., 1964. On ..., 1964, the Applicant lodgeda constitutional appeal with the Federal Constitutional Court(Bundesverfassungsgericht) which was rejected on ..., 1964, on theground that the time-limit for lodging an appeal had expired.The Applicant complains that he was wrongly convicted. He complains inparticular:- that certain documents tending to incriminate him were placed in hishome by the police on the occasion of a search;- that he was convicted by a Special Criminal Chamber(Sonderstrafkammer) whereas such chambers were supposed to have beenabolished by the laws of the Control Council and Article 101 of theGerman Basic Law;- that he was deprived of the possibility to lodge a constitutionalappeal in time as the authorities had refused to grant him a suspensionof the execution of his sentence or a leave of absence from prison forwhich he had repeatedly applied in order to collect the material tosupport his complaint, as is indicated in a letter from the Office ofthe Director of the prison at Oldenburg of ..., 1964; however, asuspension of the execution of his sentence was in fact granted from... to ..., 1964; he also had the help of a friend in collectingmaterial to support his constitutional appeal;- that he had suffered discrimination by his conviction in that otherGerman courts did not convict on these political charges;- that there was no appeal (Berufung) from decisions by the HighCriminal Chamber of the Regional Court and thus no instance to reviewsuch decisions on the facts;- that he was treated as a political prisoner and, as such, moreseverely treated than other prisoners to the extent that he wastransferred from the prison at Wolfenbüttel to the prison at Oldenburg,where he was kept in solitary confinement and strictly isolated fromother prisoners, where there are no outside activities such as sports,television and radio, and where visits from friends and relatives aresupervised.The Applicant alleges a violation of the Preamble as well as Articles1, 3, 5, 6, 7, 8, 9, 10, 11, 13, 14, 17 and 18 of the Convention.Following a preliminary examination of the Application by a group ofthree members of the Commission on 23rd September, 1966, the Applicantwas invited to inform the Commission as to whether he has raised hiscomplaint concerning the planting of documents with any German courtand to submit the relevant court decisions. The Applicant has notsubmitted any court decisions and states that the cost of having copiesmade was more than he could afford.By letter of 7th January, 1967, however, the Applicant supplied thefollowing additional and supplementary information:1. On ..., 1961 a number of citizens in his electoral districtpresented a proposal to the competent local Electoral Board (Wahlamt)for his nomination as a candidate to the German Bundestag. Apparentlythis proposal was rejected by the Board on ..., 1961, on the basis ofa circular (Erlass) of the Ministry of the Interior of Lower Saxony(Niedersächsisches Ministerium des Innern), dated ..., 1961. TheApplicant maintains that he made several protests concerning thisrejection and that he demanded to be supplied with the reasons for therejection in writing, but that all his efforts simply led to theintroduction of the criminal proceedings against him and to hisconviction by the Regional Court (Landgericht) of Lüneburg on ...,1963.The Applicant alleges that the refusal of his candidature to the 1961election constitutes a violation of Article 3 of the Protocol to theConvention.2. With respect to the question of planting incriminating documents inhis home, he states that, when returning home in the evening of ...,1961, he found a plain envelope which had been pushed into theletter-box of the flat and not into the letter-box in the main hall ofthe building in which his mail was placed ordinarily. The envelopecontained newspaper clippings, among others from an August edition ofthe "Neues Deutschland", a newspaper representing the official organof the Communist Party in the Soviet-occupied Zone of Germany.He states that the next day two police officers appeared at his placeof work and presented a search warrant which had been issued four weeksbefore this visit. Together with the police officers and a thirdperson, one Mr. F, the Applicant returned to his home which was thensearched by the police officers. Finally, the police confiscated onlythe above envelope and two pamphlets, taking nothing else although theApplicant had invited them to seize all the election material which hadbeen prepared by him and which was lying around openly.The Applicant states that certain material was put in evidence at thetrial, but it was impossible for him to tell whether this was thematerial confiscated.The Applicant alleges that he had raised this point at his trial beforethe Regional Court at Lüneburg and had also pointed out to the Courtthat these documents had been planted by the police. In his appeal(Revision) to the Federal Court (Bundesgerichtshof) the Applicantsimply alleged that it had not been established where these documentscame from.The Applicant finally states that his conviction was substantiallybased on evidence given by so-called "expert witnesses" who wereemployed by the Federal Office for the Protection of the Constitution(Bundesamt für Verfassungsschutz) and who testified to events reportedto them by third persons whose identity remained concealed(Vertrauensleute).The Applicant complains that he was denied the right to a fair hearingin that, by the above practice, he was prevented from "examining orhaving examined witnesses against him".In this regard he alleges a violation of Article 6, paragraph (3),sub-paragraph (d), of the Convention.THE LAWWhereas, in regard to the Applicant's complaint under Article 3 of theProtocol of 20th March, 1952 (P1-3) to the Convention, that theauthorities refused to admit him as a candidate to the 1961 electionsto the Federal Parliament, it is to be observed that, under Article 26(Art. 26) of the Convention, the Commission may only deal with a matterafter all domestic remedies have been exhausted according to thegenerally recognised rules of international law; and whereas theApplicant failed to lodge a constitutional appeal with the FederalConstitutional Court in accordance with Article 90 of the Act relatingto the Federal Constitutional Court (Gesetz über dasBundesverfassungsgericht) in conjunction with Article 38 of the BasicLaw (Grundgesetz) and Article 16 of the Act concerning FederalElections (Bundeswahlgesetz) of 1956; whereas, therefore, he has notexhausted the remedies available to him under German law;Whereas, in regard to the Applicant's complaints that he was wronglyconvicted and sentenced by a Special Criminal Chamber of the RegionalCourt at Lüneburg, that he thereby suffered discrimination in relationto the decision of other German courts in similar cases, that documentswere planted in his home by the police and that his treatment in prisonwas unlawful, it is also to be observed that, under Article 26(Art. 26) of the Convention, the Commission may only deal with a matterafter all domestic remedies have been exhausted according to thegenerally recognised rules of international law; and whereas theApplicant failed to lodge a constitutional appeal within the time-limitprescribed; whereas, therefore, he has again not exhausted the remediesavailable to him under German law; whereas, moreover, an examinationof the case as it has been submitted, including an examination made exofficio, does not disclose the existence of any special circumstanceswhich might have absolved the Applicant, according to the generallyrecognised rules of international law, from exhausting in either casethe domestic remedies at his disposal; whereas, therefore, thecondition as to the exhaustion of domestic remedies laid down inArticles 26 and 27, paragraph (3) (Art. 26, 27-3), of the Conventionhas not been complied with by the Applicant;Whereas, in regard to the Applicant's complaint relating to theauthorities' refusal to grant a suspension from the execution of hissentence or leave of absence from prison for the preparation of hisconstitutional appeal, the Commission had regard to the fact that asuspension from the execution of his sentence was in fact granted from... to ..., 1964 and that the Applicant also had the assistance of afriend in collecting material to support his constitutional appeal;whereas, therefore, an examination of the case as it has beensubmitted, including an examination made ex officio, does not discloseany appearance of a violation of the rights and freedoms set forth inthe Convention and in particular in the Articles invoked by theApplicant; whereas it follows that this part of the Application ismanifestly ill-founded within the meaning of Article 27, paragraph (2)(Art. 27-2), of the Convention;Whereas, finally, in regard to the Applicant's complaint as to the lackof any possibility to appeal (Berufung) from decisions taken by theHigh Criminal Chamber of the Regional Court, it is to be observed thatthe Convention, under the terms of Article 1 (Art. 1), guarantees onlythe rights and freedoms set forth in Section I of the Convention; andwhereas, under Article 25, paragraph (1) (Art. 25-1), only the allegedviolation of one of those rights and freedoms by a Contracting Partycan be the subject of an application presented by a person,non-governmental organisation or group of individuals; whereasotherwise its examination is outside the competence of the Commissionratione materiae; whereas no right to appeal on the appreciation offacts in a criminal case is as such included among the rights andfreedoms guaranteed by the Convention; whereas in this respect theCommission refers to its previous decisions, Nos. 277/57, Yearbook I,page 219; 1850/63, Collection of Decisions, Volume 19, page 71; whereasit follows that this part of the Application is incompatible with theprovisions of the Convention within the meaning of Article 27,paragraph (2) (Art. 27-2), of the Convention;Now therefore the Commission declares this Application INADMISSIBLE.