Dr. M. G. SOLTIKOW v. the FEDERAL REPUBLIC OF GERMANY - 2257/64 [1968] ECHR 5 (05 Apr

[هيثم الفقى]

THE FACTS

Whereas the basic facts which are uncontested by the parties may be
summarised as follows:

The Applicant is a German citizen born in 1902, living in Munich and
having a second residence at St. Jean-Cap-Ferrat in the South of
France. He is a journalist and writer.
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(1) Partial decision of 7th October, 1966, Collection 21, p. 72.
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On the basis of documentation assembled by the applicant, a Nuremberg
weekly magazine published in February and March, 1952, two articles on
the assassination of Ernst vom Rath, an official at the German Embassy
in Paris, which, in 1938, led to the Nazi action against the Jewish
community in Germany known as "Reichskristallnacht". It was stated in
these articles that the assassin, the 17-year old Herschel Grynspan,
had not acted for political motives as an agent of world Jewry, as
alleged by the Nazi authorities, but for purely private reasons as,
according to his own defence, he had homo***ual relations with Ernst
vom Rath.

On 4th July, 1952, Günter vom Rath, a brother of the deceased, brought
charges against the applicant and the publisher of the paper for
defamation of the memory of the deceased (Verunglimpfung des Andenkens
Verstorbener, Article 189 of the German Penal Code). On these charges,
the applicant was indicated by the Public Prosecutor
(Staatsanwaltschaft) on 23rd March, 1954. But, after a preliminary
investigation, the Regional Court (Landgericht) of Munich I on 10th
July, 1957, refused to proceed further at there was not sufficient
evidence of a criminal offence. On an appeal lodged by the Public
Prosecutor, however, the Court of Appeal (Oberlandesgericht), on 27th
January, 1958, ordered trial proceedings to be opened before the
Regional Court of Munich.

In this trial, held from 14th November to 21st December, 1960, the
Applicant was found guilty and sentenced to five months' imprisonment,
the sentence being, however, suspended on probation. The Applicant
appealed from this decision (Revision) and on 3rd October, 1961, the
Federal Court (Bundesgerichtshof) set aside the judgment, inter alia,
on the ground that certain witnesses of the Applicant had not been
called, and referred the case to the Regional Court of Augsburg for a
new trial.

This Court, after having heard a number of witnesses at Augsburg and,
by rogatory commissions in France, Italy and Israel, decided, on 13th
March, 1964, to discontinue the proceedings under the Amnesty Act of
1954. Upon request of the Applicant, however, the proceedings had to
be resumed according to the provisions of the Amnesty Act.

The Court then fixed 9th June, 1964, as the date for the commencement
of the trial in which more than 60 witnesses were to be heard. But when
the Applicant requested before the trial that additional evidence,
mostly from abroad, should be examined, the Court cancelled the trial
and decided, on 8th July, 1964, to dismiss the case on the ground that,
in any event, the Applicant's guilt and the consequences of his act
were insignificant (Article 153, para. 3 of the Code of Criminal
Procedure). The Court argued, inter alia, that the case did not justify
any further time-consuming and expensive investigations and
proceedings. It appears that at that time the files contained already
3,500 pages. The expenses of the proceedings were declared to be at the
charge of the State but the Applicant was not reimbursed for his
lawyer's fees.

The Applicant did not appeal from this decision as no appeal is
provided for by the Code of Criminal Procedure in case of a termination
under Article 153, paragraph (3). He states that he was advised by his
lawyer that not even a Constitutional Appeal (Verfassungsbeschwerde)
lies from such a decision.

Whereas the Applicant originally made a number of complaints as to the
manner in which the above court proceedings had been conducted. The
Applicant referred to Article 6 of the Convention and complained, inter
alia, of the extreme length of the proceedings amounting to a total
period of 12 years. He alleged that he was seriously impeded in
exercising his profession as long as the charge of defamation was
pending against him and that he suffered considerable prejudice. He
further complained that by the termination of the proceedings as being
insignificant he was deprived of his right to a hearing and a
determination of the case.

By its partial decision of 7th October, 1966, the Commission, while
declaring the remainder of the application inadmissible, decided, in
accordance with Rule 45, paragraph 3 (b) of its Rules of Procedure to
give notice to the Federal Government and to invite it to submit its
observations in writing on the question of admissibility insofar as the
application related to the termination of the case by the Regional
Court of Augsburg on 8th July, 1964, and the length of the proceedings.

HISTORY OF THE PROCEEDINGS BEFORE THE COMMISSION

Whereas the proceedings before the Commission may be summarised as
follows:

On 28th February, 1967, the Federal Government submitted its written
observations and the Applicant replied on 29th March - 6th May, 1967.
Further submissions were made by the Federal Government on 26th May,
1967, and by the Applicant on 9th - 20th and 25th - 29th May, 1967.

On 31st May, 1967, the Commission decided to invite the Federal
Government to submit information as to whether Article 153 of the Code
of Criminal Procedure had ever been challenged before the Federal
Constitutional Court (Bundesverfassungsgericht) as well as more
detailed information on the various stages of the proceedings.

The Federal Government submitted its further written observations on
31st July, 1967, and the Applicant replied on 12th August, 1967. On 4th
October, 1967 the Commission decided to invite the Applicant to
withdraw or amend certain abusive terms made in his submission of 12th
August, 1967, and on 19th October, 1967, he withdrew the abusive terms
concerned.

On 15th December, 1967, the Commission decided to ask the parties to
make oral explanations with regard to the question whether the
Applicant had exhausted the domestic remedies in respect of the
termination of the proceedings. At the same time the Commission decided
to grant the Applicant legal aid in accordance with a request made by
him provided that the general conditions were satisfied. The Commission
also decided to adjourn until the oral hearing its decision as to the
admissibility of the complaint concerning the length of the
proceedings.

[هيثم الفقى]

On 27th December, 1967, the Applicant withdrew his application for
legal aid.

The oral hearing was held on 2nd and 3rd April, 1968.

SUBMISSIONS OF THE PARTIES

Whereas the written and oral submissions by the parties may be
summarised as follows:

A. As to the length of the proceedings

I. 1. The Federal Government submitted on 28th February, 1967, the
following report prepared by the Bavarian State Ministry of Justice
concerning the question of the length of the proceedings:

"(1) Investigations by the Public Prosecutor
On 18th July, 1952, the Public Prosecutor, on a charge brought by the
brother of the assassinated against the Applicant, Graf Soltikow, on
4th July, 1952, instituted the investigations and indicted the
Applicant on this charge with Landgericht München I on 23rd March,
1954.
In the course of the investigating proceedings, the Public Prosecutor
had twelve witnesses heard by eight different courts (Amtsgerichte) in
the Federal Republic of Germany and one court in Paris. In addition to
this, written testimony was obtained from two witnesses who live in
Germany. It was impossible to take the evidence of all the witnesses
at one and the same time because at the beginning of the proceedings
their names were not yet known; for the evidence taken often contained
indications to persons who might come in question as witnesses to
testify in the matter, the subject of the investigations. The
examination of witnesses was also delayed because the investigations
necessary for tracing the whereabouts of certain witnesses took a
considerable time.

Another reason for the length of the proceedings was, besides these
time-consuming investigations, the applicant's complaint to the Public
Prosecutor General in München and, subsequently, to the Bavarian State
Ministry of Justice, about the initiation of the proceedings. To give
an example, it took nearly three months, before the applicant himself
could be heard, since he was not in Munich all the time.

After the public charge had been preferred by the prosecutor, the
applicant challenged the members of the 1st Penal Chamber of
Landgericht München I, the court having jurisdiction in this case, on
the ground of bias. This challenge was dealt with and dismissed in
proceedings before three instances, which lasted from 29th April, 1954,
to 7th December, 1954.

Apart from this, the applicant filed an application for a preliminary
judicial investigation. This application was dismissed by Landgericht
München I by a decision, dated 22nd January, 1955. On the applicant's
appeal, the Bayerisches Oberstes Landesgericht, by decision of 7th
April, 1955, ordered the preliminary investigation proceedings to be
opened for the purpose of clarifying the facts.

In the meantime, the court had given the deceased's brother leave to
join the proceedings as intervenor. This, too, was challenged by the
applicant without success. At this stage of the proceedings, the Court
(Penal Chamber) had ordered a judicial examination of three witnesses
in the Federal Republic and of three further witnesses in Paris and San
Francisco, respectively.

(2) Preliminary investigation by the court
The preliminary investigation by the court at first lasted from 2nd
May, 1955, to 13th March, 1956. The judge carrying on the investigation
ordered ten witnesses to be examined to be examined in the Federal
Republic and one abroad. Five witnesses, residents of München, were
examined by him personally; the applicant was heard by him three times.

The supplementary preliminary investigation subsequently applied for
the Public Prosecutor lasted from 18th July, 1956, to 5th February,
1957. The reason given by the Public Prosecutor for this application
was that it was necessary to hear three new witnesses for the defence
whom the applicant had named.

During this stage of the preliminary investigation proceedings several
witnesses were heard and the testimony of a witness living in South
America obtained. The judge secured information from the Institut für
Zeitgeschichte in München; he made enquiries with the Government of the
Land Schleswig-Holstein, and, finally, searched for the whereabouts of
the deputy president of the former Volksgerichtshof.

During these preliminary investigation proceedings, too, the witnesses
could not be heard all at once, since they became known to the court
only by and by.

(3) The trial proceedings before Landgericht München I
On 13th May, 1957, the Public Prosecutor applied for the trial to be
opened by filing the bill of indictment (Anklageschrift) with
Landgericht München I. By its decision of 10th July, 1957, this court
refused to open the trial proceedings on the ground that there was no
evidence proving that 'subjectively', i.e. from the applicant's
perspective, the elements of a punishable act within the meaning of
Article 189 of the German Criminal Code (paragraph 189 StGB) had been
present. On the immediate objection of the intervenor the trial
proceedings were opened by an order of Oberlandesgericht München, dated
7th January, 1958.

Before fixing the date of the trial, the Penal Chamber had nine further
witnesses examined. In addition to this, it had to decide on a number
of applications by the applicant for further evidence to be taken, for
the appointment of official counsel for his defence, and for a
reopening of the preliminary investigation proceedings.

The Appeal Court (Oberlandesgericht) of München rejected an application
by the applicant for a rectification of the order opening the trial
proceedings.

Finally, on 4th July, 1960, the date for the trial could be fixed; the
trial took place before the 5th Penal Chamber of Landgericht München
I from 14th November, 1960, to 21st December, 1960 the hearing going
on for 12 days. The applicant was found guilty of a misdemeanour of
defamation of the memory of a deceased person and sentenced to 5
months' imprisonment, the sentence being suspended on probation.

(4) The review proceedings (Revision)
On the applicant's appeal filed on 23rd December, 1960, the Federal
Court of Justice set the judgment of Landgericht München I aside on
procedural grounds on 3rd October, 1961, and remitted the case to
Landgericht Augsburg for reconsideration and new decision.

After filing his appeal, the applicant challenged, though without
success, three judges of the 5th Penal Chamber of Landgericht München
I on the ground of bias and also applied - again without success - for
a restoration of the status quo ante in order to be able to submit
further complaints in connection with his appeal.

(5) Proceedings before Landgericht Augsburg
The files in the applicant's case arrived at Landgericht Augsburg on
19th December, 1961. In preparation of the trial the Court ordered a
judicial examination of three witnesses in the Federal Republic and of
fifteen witnesses abroad (France, Israel, Italy). In addition to this,
a commissioned judge took the testimony of four witnesses; a fifth
witness was requested by him to make a statement in writing. He,
finally, called for the production of the "Grünspan-Files" kept with
the Federal Ministry of Justice, the Document Centre, and the Public
Prosecutor of the former Soviet Zone of Occupation.

The Court in Augsburg, furthermore, had to deal with several procedural
applications and complaints by the applicant and the intervenor.

In December 1963, the officially appointed counsel for the defence was
replaced by another counsel.

By decision of 13th March, 1964, the Court in Augsburg terminated the
criminal proceedings under Article 2, paragraph 2, of the Amnesty Act
1954 (Straffreiheitsgesetz 1954) of 17th July, 1954, (BGBl. I, page
203) on the ground that a sentence of more than three months'
imprisonment was not to be expected. But on the request of the
applicant who claimed to be innocent, the proceedings were resumed
(Article 17 of the Amnesty Act 1954).

Thereupon the Court informed the applicant's counsel on 1st April,
1964, that the trial was scheduled for June 1954 and requested him to
submit concise applications with regard to the evidence he wished to
be taken.

On 22nd April, 1964, the date for the trial was fixed for 9th June,
1964. It was intended to summon sixty-eight witnesses - eleven of these
from abroad (France, Italy, Monaco, Israel).

On 21st May, 1964, Landgericht Augsburg cancelled the trial date
because it had been found in the meantime that the then addresses of
several witnesses, who had already been named and some of whom had
already been examined at an earlier date, were unknown and because the
applicant had applied for further witnesses to be heard (some of them
from Israel, Monaco, Hungary), the names of some of whom had not even
been given. The Court considered that it could not do without
an examination of these witnesses and that in certain cases a
confrontation of these witnesses was necessary. In its view, a trial
without these witnesses being present did not premise success.

Finally, the criminal proceedings were terminated by Landgericht
Augsburg on 8th July, 1964, under Article 153 (3) of the Code of
Criminal Procedure (para. 153 (3) StPO) on the ground that the guilt
was negligible and the consequences insignificant."

In its submission of 28th February, 1967, the Federal Government made
the following observations on the different parts of these proceedings:

"Ref. paragraph (1): (Investigations by the Public Prosecutor)

(a) During the period 18th July, 1952, to 23rd March, 1954, fourteen
witnesses had to be heard in all. Not only had the whereabouts of some
of these witnesses to be ascertained, sometimes the names of new
witnesses cropped up and these had first to be traced. The courts
seized of these witnesses' examinations had to be provided with the
necessary material on record in each case. One witness was heard by
rogatory commission in Paris; it is generally known that it takes a
certain time for such letters rogatory to be dealt with.

It must be added that the applicant himself entered two complaints
against the initiation of the criminal proceedings and that the files
and records were needed for the consideration of those complaints. In
addition to this, the applicant's own hearing was delayed by nearly
three months as a result of his changes of address.

(b) After his indictment, the applicant challenged the judges of the
1st Penal Chamber of Landgericht München I on the ground of bias in
proceedings before the courts of the first, second and third instance.
These proceedings took until 7th December, 1954. In view of their wide
scope and the fact that the courts of three instances had to deal with
them, a period of a little over seven months cannot be regarded as
inadequately long.

(c) The applicant, furthermore, objected to the brother of the
deceased being allowed to join the proceedings as intervenor. This
objection delayed the beginning of the trial proceedings still further.

Ref. paragraph (2): (Preliminary investigation by the Court)

At this stage of the proceedings eleven witnesses had to be heard both
in the Federal Republic and abroad, some of them being witnesses for
the defence whom the applicant had named. These witnesses, too, had not
been known from the very beginning of the proceedings; their existence
an the necessity of hearing their testimony was not revealed until
during the preliminary investigation proceedings. The other
investigations made also consumed time since they had to be carried out
conscientiously. In addition to all this, the Public Prosecutor had to
acquaint himself, before the trial proceedings were opened, with the
contents of the quite voluminous record and files drawn up during the
preliminary investigation proceedings. The Federal Government is of the
view that if all these circumstances are taken into consideration, the
preliminary investigation proceedings, which lasted from 2nd May, 1955,
until 13th May, 1957, did not take an unreasonably long time.

Ref. paragraph (3): (Trial proceedings before Landgericht München I)

Also during this stage of the proceedings, Landgericht München I, and
also the Oberlandesgericht of München, where the intervenor had filed
an objection (Beschwerde) against the Landgericht's refusal to open
trial proceedings, had to examine in great detail all the material
piled up so far, in order to be able to decide whether or not the trial
proceedings should be opened. The mere fact that the trial took twelve
days shows what quantities of material had to be dealt with in the
proceedings and that this mass of material had also been decisive for
the course and the duration of the investigation proceedings and the
preliminary proceedings.

Ref. paragraph (4): (Review proceedings - Revisionsverfahren)

The reason why the Federal Court of Justice could not decide the
petition for review filed on 23rd December, 1960, until 3rd October,
1961, is also to be found in the large quantities of material that had
to be dealt with in the proceedings and in the fact that during this
time, the applicant filed two new applications, both of which were not
connected with the review proceedings immediately.

Ref. paragraph (5): (Proceedings before Landgericht Augsburg)

Up to 13th March, 1964, this Court alone ordered the hearing of
twenty-three witnesses, fifteen of them in foreign countries. The fact
that it was intended to summon sixty-eight witnesses for the trial,
which had been scheduled for 9th June, 1964, again proves what
quantities of material had to be coped with in these proceedings. The
pace of the proceedings was determined also by the difficulties
experienced in ascertaining the names and addresses of witnesses."

The Federal Government submitted that, with regard to the special
circumstances of the case and to the fact that many of these
circumstances resulted form the applicant's own conduct, the
applicant's complaint that the proceedings took an unduly long time was
manifestly ill-founded.

[هيثم الفقى]

2. The Federal Government's further observations of 31st July, 1967,
included a long and detailed list of decisions taken by the various
courts and authorities concerned during the course of the criminal
proceedings against the applicant. The Federal Government submitted
that this summary, which was based on facts communicated by the
Bavarian State Ministry of Justice, clearly revealed that the
proceedings had been considerably prolonged by the applicant's
complaints and numerous application, which included requests for the
hearing of further witnesses.

II. 1. The applicant in his observation in reply of 20th March - 6th
May, 1967, also referred to the five stages of the proceedings
mentioned by the Federal Government and commented on them as follows:
(1) Investigations by the Public Prosecutor

In this respect the applicant pointed out in particular that the Public
Prosecutor already in a letter of 13th July, 1954, to the Regional
Court of Munich referred to Dr. X, a judge at the Federal Court, as an
"important new witness" who ought to be heard. The applicant alleged
that this judge, who later was appointed a Presiding Judge
(Senatspräsident) of the Federal Court, was the same person as an
Assessor X, in the service of the ill-famed SD and the Gestapo who in
1941-1942 had interrogated Grünspan with regard to the assassination
of vom Rath. The applicant complained that the judicial authorities,
although being informed of these facts by the letter, never heard X.
during the following ten years of proceedings.

All other witnesses heard by the prosecutor, except three, could give
no decisive evidence and were only heard to delay the proceedings and
avoid involving X., which would cause a "world-wide scandal".

(2) Preliminary investigation by the Court

The applicant immediately informed the investigating judge that the
hearing of other witnesses, with a few exceptions, could be suspended
until X. had been heard. The applicant offered extensive evidence as
to the identity of X. and his own knowledge of the original Grünspan
files. The investigating judge, however, refused to record statements
by the applicant to this effect and warned him that the applicant could
expect charges of defamation if he repeated these allegations against
Senatspräsident X. in his written submissions. In order to drag out the
proceedings the investigating judge had numerous unimportant witnesses
examined with regard to "non-essential, secondary matters, but
studiously avoided hearing the all-important witness X."

(3) The trial proceedings before the Regional Court of Munich

The Court did its utmost to protract the proceedings and gain time. The
applicant lived under constant pressure during these interminable
proceedings. In particular, the Court had numerous witnesses examined
by rogatory commissions outside Munich, although these witnesses were
only remotely associated with the case and their testimony had already
been recorded by the investigating judge. The applicant had requested
that all witnesses should be heard directly by the trial court so he
would have a chance to cross-examine them and, in fact, many of the
witnesses were heard again at the trial and thus the proceedings had
been unnecessarily delayed.

(4) The appeal proceedings (Revision)

The improper proceedings of the trial court resulted in 117 points of
appeal which had to be examined carefully by the Federal Court and thus
"entailed delays and an enormous loss of time".

(5) Proceedings before the Regional Court of Augsburg

In the course of these proceedings the intent to delay became
particularly obvious. According to the applicant's lawyer the Presiding
Judge (Landgerichtsdirektor) had stated that he was due to retire and
"that as long as he remained in office he would under no circumstances
conduct these highly unpleasant proceedings". The Presiding Judge did,
however, not retire until the end of April 1963. The Court refused to
call X. as a witness and the applicant and his lawyer were even
threatened by a prosecution officer with charges of defamation if they
insisted on this witness being called.

2. On 12th August, 1967, the applicant stated in reply to the Federal
Government's further observations of 31st July, 1967, that the summary
of the proceedings against him submitted by the Government was, in
fact, misleading. The summary should properly only have listed orders
and decision by the Public Prosecutor's Office or the Courts. Such a
summary would show that during twelve years only 123 "orders or
decisions " were issued, i.e. an average of ten decisions per year,
more than half of which in no way contributed to further the criminal
proceedings. In this respect, the applicant quotes several examples of
decisions by the Regional Court which were later set aside on his
appeal.

The applicant alleges in particular the following procedural
irregularities which, in his opinion, contributed to the length of the
proceedings:

(a) In April, 1954, the applicant requested the opening of a formal
preliminary investigation (gerichtliche Voruntersuchung) by the
Regional Court of Munich but his application was refused on 22nd
January, 1955, by the Court. This decision was set aside by the
Bavarian Supreme Court (Oberstes Landesgericht) of Munich on 7th April,
1955. Thus, the proceedings had been delayed for almost a year.

(b) On 1st March, 1958, the applicant requested the investigating
judge to appoint a defence counsel. His application was refused and
this decision was upheld by the Criminal Chamber but set aside, on the
applicant's further appeal, by the Court of Appeal (Oberlandesgericht)
of Munich. As a result, the defence counsel was not appointed until
28th August, 1958.

(c) The case files were then sent to the applicant's lawyer, but the
Court omitted to set any time-limit for the return of the files and
also failed to order their return within a reasonable time. The
applicant's lawyer was thus allowed to keep the files for five months
and during this time the Court took no action with regard to the case.
In tolerating this enormous delay the Court clearly showed its
intention to retard the proceedings.

(d) In spite of the applicant's protests the investigating judge
ordered the hearing of witnesses at their residence by letters
rogatory. After the closure of the preliminary investigation the
Regional Court of Munich also had a large number of witnesses examined
at their place of residence, several of whom had already been heard
during the preliminary investigation although not under oath. These
witnesses were then only asked to confirm their previous statements and
the long time actually spent at this stage was not justified. This
delay was particularly unnecessary since the applicant had made it
clear that he wished the witnesses to be heard again at the trial in
order to be able to cross-examine them. It was obvious that the judges
wanted to delay the trial as long as possible in the hope that they by
then would have been transferred from the Criminal Chamber concerned
with the case.

(e) When the case later was referred to the Regional Court of Augsburg
for a new trial this Court resorted to similar means of delay. For this
purpose a Single Judge was commissioned to hear certain witnesses,
while other witnesses were heard by rogatory commission at their
residence in Germany or abroad. Since the applicant again requested
that all witnesses should be heard at the trial, it was obvious that
the delay caused by these hearings could have been avoided. The
principal reason was that the Presiding Judge wanted to defer the trial
until his retirement.

(f) In spite of the applicant's repeated requests, the Augsburg Court
refused to call Dr. X. as a witness. Instead, the Court incurred
further delay by asking the American Document Centre in Berlin to
submit information as to the identity of the Assessor X. who had been
in the service of the Gestapo. Following receipt of information on this
point from the Ministry of Justice more time was lost in tracing a
cousin of X., called Y., who also had worked for the Gestapo and,
according to the Prosecution, was the official concerned with the
Grünspan case. However, neither of the two cousins was ever heard as
a witness. The judges were afraid that Y., if heard under oath, might
have incriminated his cousin and the applicant's request that he should
be called as a witness was therefore rejected.

[هيثم الفقى]

(g) The applicant asked the Presiding Judge at the Regional Court in
Augsburg to give him advice with regard to the choice of counsel
(Pflichtverteidiger) and at the applicant's request the lawyer
recommended by the judge, Dr. Z., was eventually appointed. This lawyer
was, however, a former prominent Nazi leader which the judge must have
known and was merely appointed as a matter of form. In fact, the lawyer
had the instructions from the Court and Public Prosecutor to "impede
and obstruct" the applicant's defence and the applicant was later
forced to ask for a new counsel. After Dr. Z. had been appointed the
Court refused to take action on motions for evidence to be heard
emanating from the applicant himself. In this respect, the applicant
refers to a letter from the Court dated 23rd May, 1962, which speaks
of an agreement whereby all communications from the applicant would
first be passed on to the defence counsel for an examination whether
or not the evidence offered was relevant and likely to serve the
proceedings.. Numerous requests for evidence to be heard which he
addressed to his defence counsel were suppressed.

B. As to the termination of the proceedings under Article 153 of the
Code of Criminal Procedure

I. 1. The Federal Government's written observations of 28th February,
1967, stated in this respect as follows:

"The dismissal of the case by Landgericht Augsburg on 8th July, 1964,
under Article 153 (3) of the German Code of Criminal Procedure, in no
way violates the applicant's right of being presumed innocent until
proved guilty according to law (Article 6 (2) of the Convention). No
sentence was imposed on the applicant. The Court did not dismiss his
case on the ground that his guilt 'was insignificant'; it merely said:
'His guilt therefore appears to be insignificant'. The Court did not
find him guilty. The applicant, therefore, is doubtlessly innocent
within the meaning of Article 6 (2) of the Convention. The decision by
which his proceedings were terminated did not raise a presumption of
guilt.

The principle of presuming a person to be innocent until found guilty
does not allow the anticipation of a sentence, by an imposition of any
measures tantamount to punishment. This has been made quite clear by
the Federal Constitutional Court (in its decision BVerfGE 19, page
347).

No such measures were taken with regard to the applicant; by the
decision under Article 153 (3) of the German Code of Criminal Procedure
his proceedings were terminated without any such findings being made
or any such measures being taken against him as might prejudice his
legal position of being deemed innocent. Thus the applicant as not
suffered any disadvantage from the decision.

The applicant has not lodged a constitutional complaint with the
Federal Constitutional Court against the termination of the criminal
proceedings. The Federal Government, it is true, takes the view that
both the legal provision contained in Article 153 of the Code of
Criminal Procedure and the application of this provision in the
applicant's concrete case are consistent with the Basic Law and with
Article 6 of the Convention. But if the applicant was of the opinion
that the termination under Article 153 (3) of the Code of Criminal
Procedure was inconsistent with the entitlement to a fair hearing and
the presumption of innocence, the obvious thing for him to do would
have been to try and challenge the view and its legal basis by lodging
a constitutional complaint. As the Federal Government takes up the
above-mentioned position with regard to the merits of such a
constitutional complaint, it leaves open the question whether or not
the applicant - at least from his own point of view - could have
relied on Article 103 of the Basic Law for the admissibility of a
constitutional complaint. In view of all this, the application, as far
as the above-mentioned complaints with regard to Article 6 of the
Convention are concerned, appears to be inadmissible also for the
further reason that the applicant has not exhausted the domestic
remedies within the meaning of Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms.
.........
Insofar as the application must not be regarded as inadmissible for the
mere reason that the domestic remedies were not exhausted, it is in any
case manifestly ill-founded and therefore inadmissible."

2. The Federal Government, having been invited by the Commission to
submit further information as to whether Article 153 of the Code of
Criminal Procedure had ever been challenged before the Federal
Constitutional Court, in this respect stated in its written
observations of 31st July, 1967, as follows:

"Out of the decisions in which the Federal Constitutional Court has
taken a position, from the substantive point of view, on the question
of the compatibility of Section 153 of the Code of Criminal Procedure
(StPO para. 153) with the Basic Law or the application of that
provision, the Federal Government has been able to trace only that
published on page 320 of Volume 14 of the published decisions of the
Federal Constitutional Court.

By that decision the Federal Constitutional Court granted a
constitutional appeal (Verfassungsbeschwerde) which had been filed on
the following facts: the plaintiff in a libel action had applied for
the prosecution of a certain respondent and for himself to be joined
in the proceedings as a Third Party (Nebenklägerin). After the
indictment had been preferred, the District Court (Amtsgericht), which
had not adjudicated on the plaintiff's application for being admitted
as a Third Party, terminated the proceedings under StPO para. 153
(III). The plaintiff first lodged an appeal (Beschwerde) against that
decision with the Regional Court (Landgericht). That Court rejected the
appeal on the ground that, according to StPO U 153 (III) final clause,
the decision of the District Court was not open to appeal.

[هيثم الفقى]

The Federal Constitutional Court set aside the District Court's
decision on the termination of the proceedings on the ground that
Article 103, paragraph 1, of the Basic Law (right to be heard in court)
had been violated and remitted the case to the District Court. For
details of the observations of the Federal Constitutional Court,
reference is made to the above-mentioned published decision.

The Federal Government, furthermore, has obtained knowledge of a
decision by the District Court Berlin-Tiergarten, in the criminal
matter 274 Cs 12/64, whereby that court, under Article 100 (1) of the
Basic Law, laid before the Federal Constitutional Court, for the
latter's decision, the question whether or not in that case the
requirement of consent by the public prosecutor at the District Court
(Amtsanwaltschaft) to the proposed termination of the proceedings under
StPO U 153 (III) was compatible with the independence of judges as
guaranteed by Article 97 of the Basic Law and with the principle of
separation of power provided for in Article 20 of the Basic Law.

In that case no decision was made by the Federal Constitutional Court
because the District Court Tiergarten set aside its decision of 31st
March, 1965, by which it had suspended the proceedings and referred the
case to the Federal Constitutional Court, and the proceedings before
the Federal Constitutional Court thus came to an end.

To conclude, the Federal Government may be permitted to refer once
again to its observations of May 1967 on the question of Article 26 of
the Convention. As may be seen from the Federal Constitutional Court's
decision on the problem of the right of being heard in court then
mentioned by the Federal Government, that Court's practice in this
question is constantly developing. It was, therefore, not at all
unreasonable to expect the applicant to file a constitutional appeal
in accordance with the principle of international law which requires
domestic remedies to be exhausted first."

II: 1. The applicant's complaints with regard to the termination of
the proceedings, as set out in his written submissions, may be
summarised as follows:

(a) He was entitled to a hearing and determination of the case, as
expressly ordered by the Federal Court, and eventually to an acquittal
and he was deprived of this right by the termination of the case as
being insignificant. The termination was unwarranted taking into
consideration the length and extent of the previous examination as well
as the great historical importance of the events involved.

(b) The courts did not content themselves with the proof that Grünspan
had stated before the French and German authorities that homo***ual
relations with Ernst vom Rath were the basic reason of his act, but
required the proof that such relations had, in fact, existed. This
exceeded the universal standard of professional diligence required of
journalists in countries recognising the freedom of the press.

(c) The Augsburg Court has in fact found that he was guilty even if
his guilt was said to be minor. He refers to certain evidence which was
known to the Court and should have led to his immediate acquittal.

2. The applicant's written submissions with regard to the question
whether he has exhausted the domestic remedies available to him under
German law may be summarised as follows:

(a) The Code of Criminal Procedure does not provide for an appeal
against a decision to terminate proceedings under Article 153 of the
Code. In July 1964, the applicant asked, however, W., a well-known
lawyer with long experience of constitutional law, whether a decision
to terminate proceedings under this Article had ever been challenged
in the Federal Constitutional Court, or, in any event, whether there
was any prospect of success if he lodged a constitutional appeal
against the decision of the Augsburg Court of 8th July, 1964. W., as
well as two of his previous three counsels and a further lawyer whom
he also consulted, gave a negative answer to these questions.

(b) Nevertheless, the applicant personally enquired at the Federal
Constitutional Court but was told by a "high official" in the
President's Office that a constitutional appeal would have no chance
of success and that in case of such an appeal even a punitive fee of
1,000 DM might be imposed. The applicant stated that he could not
indicate the name of the official in question but that he would
certainly recognise him.

(c) The applicant further submitted that, considering the length of
the previous proceedings in his particular case and his bad state of
health, he could not have been expected to lodge a constitutional
appeal which itself would have taken several years to be decided. As
an example he referred to a recent case where the Federal
Constitutional Court concluded after seven years of proceedings that
there had been a violation of the Basic Law.

(d) With regard to the decision of the Federal Constitutional Court
of 23rd October, 1962, (Collection of Decisions, Vol. 14, page 320)
cited by the Federal Government in its observations of 31st July, 1967,
the applicant submitted that this decision was not published in July,
1964, and was at that time obviously unknown to both W. and the high
official at the Federal Constitutional Court. In this respect, the
applicant also referred to a letter dated 5th July, 1967, in which he
was informed by an official of the President's Office (Präsidialrat),
having asked whether Article 153, paragraph 3, of the Criminal Code had
been the subject of a decision by the Federal Constitutional Court,
that no decision with supporting reasons (begründete Sachentscheidung)
had yet been issued by the Court with regard to this question).

III. 1. The oral arguments made by the Agent of the Federal Government
may be summarised as follows:

(a) It is true that the Federal Constitutional Court has not yet given
any reasoned judgment in a case where Article 153, paragraph 3,of the
Code of Criminal Procedure has been applied in a similar way.

The applicant could, however, undoubtedly have based a constitutional
appeal on Articles 2 and 103, paragraph 1 of the Basic Law. It should,
in particular, be noted that the jurisprudence of the Federal
Constitutional Court with regard to the interpretation of the right to
a "hearing in accordance with the law" (rechtliches Gehör) guaranteed
by Article 103 is constantly developing. The Federal Government in this
respect refers to several decisions by the Federal Constitutional
Court, inter alia, to the decision of 23rd October, 1962, already cited
in the written observations. This decision which appears in the
Collection of Decisions (Vol. 14, page 320) was published already in
1963.

(b) As to the applicant's statements that he was advised by one, or
possibly a number of lawyers, that a constitutional appeal would be
without any prospect of success, the Federal Government points out
that, according to the Commission's previous jurisprudence, the
applicant is obliged to bear the risk of failure to avail himself of
the domestic remedies which might have been successful. Consequently,
the applicant cannot excuse himself by saying that he was wrongly
advised by his lawyers.

(c) The Federal Government has made enquiries with regard to the
alleged conversation in July 1964 with a "high official" at the Federal
Constitutional Court. The President of the Court has informed the
Federal Government that all visitors to the Court have to obtain a
visitor's ticket. This ticket gives details of the time when the visit
starts and ends and has to be signed by the official visited. According
to the President's investigations, no such ticket was ever issued to
the applicant in 1964. Neither have the officials of the Court, who
have been heard by the President, been able to confirm that the
applicant visited the Court at that time. It is significant that the
applicant in his latest submissions to the Commission has considerably
toned down his previous allegations on this point and the information
concerned is now said to have been given during a casual meeting in the
Court building.

The applicant has not been able to specify whether the official
concerned was a judge, an official at the President's Office, or one
of the numerous assistants employed at the Court.

(d) The applicant's statement that he could not in the circumstances
have been expected to lodge a constitutional appeal, considering the
long time normally required for such proceedings, is contradicted by
his own experience. He had, prior to July 1964, already lodged three
appeals with the Federal Constitutional Court, one in 1952 and two in
1958, and the decisions in all three cases were given within six
months. The Federal Government could cite a large number of cases
concerned with the interpretation of Article 103, paragraph 1, of the
Basic Law which have been dealt with by the Federal Constitutional
Court within a comparatively short time.

(e) When considering whether the applicant could have been expected
to lodge a constitutional appeal against the decision of the Augsburg
court of 8th July, 1964, the Federal Government refers to the
applicant's attitude in certain other court proceedings roughly at the
same time.

In 1960, criminal proceedings had been brought against the applicant
in the District Court of Hannover on a charge of having made defamatory
remarks about another author. In the course of these proceedings the
applicant repeatedly requested that the proceedings should be
terminated under Article 153, paragraph 3, of the Code of Criminal
Procedure which the Court refused to do. The applicant asserted that
for health reasons he was unable to appear at a hearing. Finally, the
District Court ordered that he should undergo a medical examination in
this respect. On 14th July, 1964, the applicant without assistance of
a lawyer lodged an appeal with the Federal Constitutional Court against
the decision of the Hannover Court, whereas at exactly the same time
he failed to do so with regard to the decision of the Augsburg Court
which is in issue before the Commission. In the proceedings before the
Federal Constitutional Court, the medical expert consulted did not
confirm the applicant's assertions about his health. His complaint was
subsequently rejected by the Federal Constitutional Court as being
lodged out of time.

In August 1964 thus only a few weeks after the decision of the Augsburg
Court, the applicant tried to raise the matter again by means of a
civil action against Günther von Rath. He then claimed damages and
stated that he had assigned his claim to the B...., a company founded
by the applicant and over which he obviously still exerted decisive
influence. When von Rath refused to pay proceedings were instituted
against him by the company. This case is still pending in the Regional
Court of Wiesbaden.

IV. The applicant's submissions in reply to the oral arguments made by
the Agent of the Federal Government may be summarised as follows:

(a) With regard to the decision of the Federal Constitutional Court
of 23rd October, 1963, (Collection of Decisions, Vol. 14, page 320) the
applicant considers that this case could easily be distinguished from
his own. The procedural situation was entirely different since the
other case concerned an appeal by a third party wishing to act as a
co-plaintiff and not by the accused and was based on the fact that the
third party had not been heard before the proceedings were terminated.
The applicant emphasises that he had been heard before the termination
of the proceedings and he was therefore advised that no constitutional
appeal could be based on an allegation that he had been denied a
hearing.

(b) As to the question concerning the time required for a
constitutional appeal, the Federal Government has referred to his own
experience. The appeals he lodged with the Federal Constitutional Court
were, however, all rejected at a preliminary stage without having been
examined as to the merits. The proceedings in cases which have been
examined thoroughly by the court have, on the other hand, taken six or
seven years. He had not the possibility to wait for such a long period
since the witnesses who could give evidence of the events of 1938 were
dying one after the other.

[هيثم الفقى]

(c) The applicant submits that, after twelve years of proceedings, he
was at the time of the ultimate decision of the Augsburg Court brought
to financial destitution. He suffered from bad health and was in a
state of deep depression. On 2nd November, 1962, and again
subsequently, he had been told by his lawyer, Dr. Z., who was acting
on information, or instruction, from the Public Prosecutor and one of
the judges, that he would be prosecuted for defamation if he pursued
the case in such a way that Dr. X. became involved. He seriously
believed in this treat and in this situation he considered it as
suicide to lodge a constitutional appeal which necessarily would have
implicated X., a colleague of the judges of the Federal Constitutional
Court. He could therefore hardly be expected to institute such
proceedings.

V. During the oral hearing the Commission decided to invite the Agent
of the Federal Government to comment on the applicant's statements with
regard to the alleged threat of prosecution if he continued the matter
in such a way as to implicate Dr. X.

In reply, the Agent of the Federal Government referred to a number of
letters submitted by the applicant between August 1963 and June 1964,
to the Regional Court of Augsburg and the Court of Appeal in Munich.
In these letters the applicant, inter alia, repeatedly requested the
hearing of Dr. X. and made frequent statements to the effect that the
latter was identical with the Assessor X. who had interrogated
Grünspan. Reference was also made to a letter of 9th June, 1964, in
which the applicant asked the Federal Court to transfer the proceedings
from the Augsburg Court to another court. In this letter the applicant
commented at great length on the X. question. It should be noted that
Dr. X. at that time was still a Presiding Judge of the Federal Court.

THE LAW

Whereas Article 6, paragraph (1) (Art. 6-1) of the Convention states
that in "the determination of .... any criminal charge against him,
everyone is entitled to a fair and public hearing within a reasonable
time";

Whereas it is not disputed that on 4th July, 1952, criminal charges
were brought against the applicant for defamation of the memory of the
deceased, that he was indicated by the Public Prosecutor on 23rd March,
1954, and that the ensuing proceedings against the applicant lasted
until 8 July 1964, when the Regional Court of Augsburg, acting under
Article 153, paragraph (3), of the Code of Criminal Procedure,
discontinued the case on the ground that the applicant's guilt was
insignificant and the consequences of his action unimportant;

Whereas the applicant complains of the extreme length of the
proceedings which amounted to a total period of twelve years and
alleges that this constitutes a violation of Article 6 (Art. 6) of the
Convention;

Whereas the Federal Government has submitted that, having regard to the
special complexities of the case, many of which resulted from the
applicant's own conduct, the applicant's complaint that the proceedings
took an unduly long time must be rejected as manifestly ill-founded;

Whereas Article 27, paragraph (2) (Art. 27-2), of the Convention, in
requiring the Commission to declare inadmissible any application from
an individual, which it considers to be "manifestly ill-founded", does
not permit the Commission to reject a complaint whose lack of
foundation cannot be so described (cf. Application No. 2294/64 -
Gericke v. the Federal Republic of Germany, Yearbook of the European
Convention on Human Rights, Vol. 7, pages 348, 354);

Whereas in the present case the Commission has carried out a
preliminary examination of the information and arguments submitted to
it by the parties with regard to the applicant's complaint that he was
denied a determination of the criminal charge against him within a
reasonable time as is required by Article 6, paragraph (1) (Art. 6-1),
of the Convention;

Whereas the Commission finds that this complaint is of such complexity
that its determination should depend upon an examination of its merits;

Whereas it follows that it cannot be regarded as manifestly ill-founded
within the meaning of Article 27, paragraph (2) (Art. 27-2), of the
Convention;

Whereas, therefore, it cannot be declared inadmissible on that ground;

Whereas, in regard to the applicant's complaint concerning the
termination of the case against him under Article 153, paragraph (3),
of the Code of Criminal Procedure it is to be observed that, under
Article 26 (Art. 26) of the Convention, the Commission may only deal
with a matter after all domestic remedies have been exhausted according
to the generally recognised rules of international law;

Whereas it is further to be observed that the said Article 153, in
fine, provides that a decision to terminate proceedings under paragraph
(3) of that Article is not subject to appeal;

Whereas it follows that the applicant could not have attacked the
decision of the Regional Court of Augsburg of 8th July, 1964, by way
of appeal to a higher criminal court;

Whereas, however, the Federal Government has submitted that the
applicant could have lodged an appeal with the Federal Constitutional
Court against this decision and that such a constitutional appeal could
have been based in particular on Article 103, paragraph (1), of the
Basic Law which stipulates that "in the Courts everyone has the right
to a hearing in accordance with the law"; whereas the Government has
emphasised that the applicant, by failing to exhaust this remedy, has
not complied with Article 26 (Art. 26) of the Convention;

Whereas both parties have agreed that the Federal Constitutional Court
has as yet not given a decision concerning a similar appeal of an
accused person against a decision to terminate the proceedings against
him under Article 153, paragraph (3), of the Code of Criminal
Procedure; whereas this is a fact directly relevant to a consideration
of the question whether or not the applicant would have had any
prospect of success if he had lodged a constitutional appeal;

Whereas the Federal Government has, however, referred to a number of
decisions of the Federal Constitutional Court and stated that the
jurisprudence of the Court with regard to the application of Article
103, paragraph (1), of the Basic Law is constantly developing and that
its provision requiring a "hearing in accordance with the law" can be
regarded as the equivalent of the notion of "fair trial" in the sense
of the requirements of Article 6, paragraph (1) (Art. 6-1),of the
Convention;

Whereas the question whether Article 103, paragraph (1), of the Basic
Law could have been invoked by the applicant by way of a constitutional
appeal is a question of German constitutional law which, as a matter
of principle, lies within the competence of the Federal Constitutional
Court and is not a question for determination by the Commission;
whereas the Commission is obliged to confine itself to recording that,
although this question has apparently not yet been settled by the
German courts, the applicant has nevertheless not clearly established
that it was impossible for him to appeal to the Federal Constitutional
Court on this ground (see Application No. 712/60 - Retimag S.A. v. the
Federal Republic of Germany, Yearbook, Vol. 4,p. 384, 406);

Whereas, further, the Commission finds generally that, in order to
comply with the requirements of Article 26 (Art. 26) of the Convention,
an applicant is obliged to exhaust every domestic remedy which cannot
clearly be said to lack any chance of success; whereas, in this
context, the Commission observes that the applicant has himself
repeatedly stated that both the decision to terminate the case against
him under Article 153, paragraph (3), of the Code of Criminal Procedure
and the conduct of the proceedings leading to that decision violated
the rights guaranteed under the Basic Law; whereas, therefore, it
cannot be said that a constitutional appeal would have been without any
prospect of success;

Whereas, accordingly, the applicant must in principle be considered to
have been under the obligation to avail himself of this remedy;

[هيثم الفقى]

Whereas, however, the applicant has submitted that in view of certain
special circumstances he should be absolved from the obligation to
resort to a constitutional appeal; whereas the Commission has
recognised in its jurisprudence that in particular circumstances an
applicant may exceptionally be absolved from exhausting a domestic
remedies available to him; whereas in this connection the Commission
has further held that the appreciation of such circumstances falls
within the competence of the Commission (e.g. Application No. 222/56
- X. v. the Federal Republic of Germany, Yearbook, Vol. ", p. 344, 351
and the Commission's decision of 22nd December, 1967, on the
admissibility of application No. 2396/65); whereas it is, therefore,
necessary for the Commission to examine whether the particular
submissions by the applicant in this respect reveal any such
circumstances as could validly have absolved the applicant from
exhausting all domestic remedies at his disposal;

Whereas, firstly, the applicant has submitted that he was advised by
several lawyers that a constitutional appeal would have no prospect of
success; whereas in this respect the Commission has constantly held
that advice by lawyers as to the possibility of success on appeal does
not constitute a valid excuse for not exhausting a particular remedy
(cf. application No. 1488/62 - X v. Belgium, Collection of Decisions,
Vol. 13, p. 93, 96); whereas the Commission specifically refers to its
decision in this sense of 22nd March, 1958, declaring inadmissible
Application No. 272/57, which concerned the advice of a lawyer as to
the possible result of a constitutional appeal in the Federal Republic
of Germany;

Whereas the applicant has further submitted that about July 1964 he
personally enquired at the Federal Constitutional Court and was told
by a "high official" that his appeal would have no success; whereas
the Federal Government has submitted in reply that no record of such
a conversation existed; whereas the applicant at the oral hearing has
elaborated his original statements and now maintains that the
conversation concerned took place during a casual meeting in the Court
building; whereas, even assuming that such a conversation occurred, the
Commission finds that statements made by an unidentified official
during the course of a casual meeting cannot absolve the applicant from
the requirement to exhaust all available remedies;

Whereas the applicant also claims that having regard to the long time
normally required for proceedings on a constitutional appeal, he could
not have been expected to lodge such appeal; whereas the Federal
Government has referred, by way of example, to several cases in which
the Federal Constitutional Court has dealt with constitutional appeals
of a similar kind within a year; and whereas the Federal Government,
in particular, has pointed out that the applicant's previous
constitutional appeals had been dealt with within that period; whereas
it is true that the Commission in its jurisprudence has recognised that
alleged delay of proceedings in the Federal Constitutional Court, if
proved, could possibly excuse an applicant from the obligation to seize
that Court; whereas, however, the Commission finds that in the present
case, the applicant has failed also in this respect to show that the
existence of any such circumstances which would validly have absolved
him from the duty to avail himself of a constitutional appeal;

Whereas, finally, the applicant has referred to his bad state of health
and financial distress at the time when a constitutional appeal could
have been lodged; whereas he has also submitted that in November, 1962
and again subsequently, he had been told by his counsel, allegedly
acting on information, or instruction, from a prosecution officer and
a judge, that he would be prosecuted for defamation if he pursued the
case in such a way that Dr. X., a Presiding Judge of the Federal Court,
became involved and that he therefore considered it tantamount to
"suicide" if he lodged a constitutional appeal in which he set out
details of the X. question; whereas the Federal Government has,
however, referred to a number of letters written by the applicant to
different courts, including a letter of 9th June, 1964, to the Federal
Court, in which the applicant repeatedly requested the hearing of Dr.
X. as a witness or stated that the latter was identical with an
Assessor X. who had been in the service of the Nazi regime; whereas the
Federal Government has submitted that such conduct both before and
during the period when he could still lodge a constitutional appeal
clearly indicates that he was not afraid of ventilating this opinion
and therefore of bringing the matter before the Federal Constitutional
Court;

Whereas the Commission finds that, even assuming that the applicant was
threatened with prosecution if he pursued his case by way of a
constitutional appeal, the applicant's activities during the period
concerned shows that the reason he abstained from lodging a
constitutional appeal was not because of any fear of repercussions;
nor does the Commission consider that the applicant has shown that
other elements in his personal situation amounted to such circumstances
as could have absolved him from the need to exhaust this remedy;

Whereas, therefore, the condition as to the exhaustion of domestic
remedies laid down in Articles 26 and 27, paragraph (3) (Art. 26, 27-
3), of the Convention has not been complied with by the applicant as
regards this part of the application;

[هيثم الفقى]

For these reasons and without in any way prejudging the merits of the
case, the Commission

1. Declares admissible the part of the application that relates to the
length of the criminal proceedings against the applicant (Article 6,
paragraph (1) (Art. 6-1), of the Convention);

2. Declares the remainder of the application inadmissible.