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X. v. THE FEDERAL REPUBLIC OF GERMANY - 599/59 [1961] ECHR 3 (14 December 1961)
THE FACTSWhereas the facts of the case may be summarised as follows:1. The Applicant is a German citizen born in ... and is at presentdetained in prison. He has been convicted on 25 previous occasions onvarious charges and has served sentences in prison and has beendetained in concentration camps for three years.In response to the present case, the Applicant was arrested on ... 1958on suspicion of having committed theft and fraud, inter alia, bypromising marriage to elderly women for the purpose of obtaining moneyfrom them. He alleges that he was denounced by a woman named Mrs. A.but admits that he is guilty of certain of the crimes of which he wascharged.On ... 1958, he informed the Public Prosecutor that he was the victimof a plot on the part of Mrs. A. and a certain Mr. B. The Applicantstates that B. was charged with him for the same offenses and that B.was an "unreliable and untrustworthy person" who had already denouncedseveral innocent persons to the police in East Germany and, further,that Mrs. A. with whom he, the Applicant, had lived, had privategrudges against him.2. The Applicant also states that the sole purpose of the investigationof the charges against him was to obtain his conviction and not tofind out the true facts. The police officials had told him that adetailed investigation of the case was superfluous as the facts wereevident from the statements made by Mrs. A. and Mr. B. and wouldjustify a reduction of his sentence to one of detention for securitypurposes (Sicherungsverwahrung). The Applicant now alleges that thepolice violated Article 160 of the Criminal Penal Code by not takinginto consideration the circumstances of the case, and, in particular,those circumstances which were in his favour as an accused person. TheApplicant, therefore, refused to cooperate with the police who had sofar dealt with his case and he was not subjected to any furtherinterrogation between ... 1959 and his trial in ...1959. The indictmentagainst him was finally drawn up on ...1959.3. It is also stated by the Applicant that during a Session of the ..****amber of the Regional Court (Landgericht) of C. on ... 1959, a judgeindirectly accused him of murder by asking him, in connection with hisprevious attempt to commit suicide by taking luminal, whether he hadnot taken a wrong glass. Interpreting this question as implying thatthe glass had been designed for somebody else, the Applicant asked on... 1959 that the Chamber should be declared as having no competencein the case. This request was refused by the Chamber on ... 1959 andthe Applicant apparently took no further steps in this respect.4. On ... 1959 the Applicant was apparently refused permission toattend a court session where witnesses were to be heard, and he statesthat these witnesses were informed of his criminal record and thatleading questions were put to them.On ... 1959, five days before his trial, the Court appointed a lawyerto defend the Applicant, but on the following day, the Applicant askedthat another lawyer in whom he had more confidence should be appointed.This request was refused, but in the meanwhile, the lawyer whoseservices he had asked for had applied for an adjournment of the caseon the ground that an adequate preparation of the Applicant's defencewas impossible owing to lack of time. This application was alsorejected.The Applicant alleges that the lawyer appointed to defend him did nottake any interest in his case, that he did not ask for adjournmentwhich was necessary for the proper preparation of his defence and thathe, the Applicant, was consequently deprived of his constitutionalrights. He further adds that it is absurd that the outcome of a trialand the fate of an accused person should depend entirely on the whimof an officially appointed lawyer.5. The Applicant, during the course of his trial on ..., ... and ...1959 was ill and states that this was partly due to the drugsprescribed by the doctors of the prison hospital. He maintains that hisbad health made his defence impossible.He even alleges that on ... 1959 he was physically attacked in theCourt by a health expert whose medical examination was superficial andirresponsible and whose appointment on ... 1959 he had refused torecognise.The Applicant's various requests to call his own expert evidence asto his alleged criminal tendencies were rejected.6. On ... 1959 the Applicant was convicted by the Regional Court of C.on certain of the charges mentioned above and sentenced, as a habitualcriminal, to five years' imprisonment, to four separate fines of 10 DM,to loss of civil rights for five years and to preventive detention(Sicherungsverwahrung) for five years. He now states that the Court wasbiased and in this respect he refers to the passage in its judgmentconcerning the Applicant's past convictions. He maintains that theCourt did not take into consideration the extenuating circumstances ofthe crimes of which he had been previously accused and he requests thatthe Commission asks for and examines all the files regarding hispost-war convictions.The Applicant also submits that the Court was in error in acceptingMrs. A's evidence, which was prejudiced and which was different fromthe statements given by her to the police during the investigation.Moreover, the judge posed "subjective questions" which were notrelevant to the case, but which tended to incriminate the Applicantand, in general, the Court did not apply the generally recogniseddoctrine of in dubio pro reo.7. On ... 1959 the Court's decision was communicated to the Applicant,who alleges that his lawyer, in spite of the Applicant's being admittedto hospital on ... 1959, took not steps to appeal from this decision,but simply stated that he had not time to deal with the Applicant'scase. Consequently, the Applicant himself, on ... 1960, lodged anappeal without any assistance from his lawyer and on ... 1960 submittedto the Federal Court (Bundesgerichtshof) a document in support of hisappeal in which he pleaded, inter alia, that the European Conventionon Human Rights had been violated during the proceedings before theRegional Court.On ... 1960, the Applicant requested that a lawyer be appointed toassist him during the appeal proceedings, but in a decision of ...1960, of which a copy has been submitted to the Secretariat, theRegional Court refused this request on the ground that legal assistancewas not necessary at that stage of the proceedings. This decision wasupheld by the Chamber Court (...) of C. on ... 1960.On ... 1960, the Federal Court dismissed the Applicant's appeal afterhaving heard the Public Prosecutor (nach Anhörung desGeneralbundesanwalts).8. The Applicant alleges that the minutes of the Court proceedingswere substantially changed seven days after his trial and after theyhad been signed. He states further that he was refused permission tocopy certain documents in the file of his case.The allegations of the applicant:Whereas the Applicant alleges violations of Articles 3, 5 and 6 of theConvention;- in that he was not presumed innocent until proved guilty, according to law;- in that the Regional Court of C. was not impartial in its conduct of the proceedings against him;- in that the witnesses for the prosecution were heard in his absence and that this did not constitute a fair hearing of his case;- in that he was deprived of his right to prepare a proper and adequate defence;- in that the facilities necessary for his defence were not granted to him;- in that evidence requested by the defence was not allowed to be called;- in that he was denied free legal assistance during the appeal proceedings;- in that he was not allowed to be present at the hearing of his case before the Federal Court.The object of the application:Whereas the Applicant claims a retrial of the charges against him andan investigation of the methods used by the police and the courts inC.Proceedings before the commission:The Application was submitted to the Commission during its 30th Session(24th to 28th July 1961) which decideda) to declare inadmissible the parts of the Application which relatedto the proceedings before the Regional Court of C. as being manifestlyill-founded, there being no apparent violation of Articles 3, 5 and 6of the Convention.(b) to communicate to the Government of the Federal Republic ofGermany, under Rule 45, paragraph (3) (b) of the Rules of Procedure,the remaining part of the Application, in which the Applicant allegeda violation of Article 6 in that he was denied the right to defendhimself in person before the Federal Court, and to invite theGovernment to submit its observations in writing as to theadmissibility of that part of the Application.On 14th November 1961, the Respondent Government submitted itsobservations which may be summarised as followsa) In accordance with Article 349, paragraph 2 of the German Code ofCriminal Procedure, the Applicant's appeal was rejected by the FederalCourt in a closed session without an oral hearing of either party. Theappeal proceedings consisted solely of an exchange of written pleadingsand the submissions made by the Public Prosecutor were communicated tothe Applicant and to his lawyer.(b) The expression "nach Anhörung", as used in the decision, does notmean that the Public Prosecutor was actually heard in person, but hasa purely formal significance in certifying that Article 33 of the Codehad been observed (This Article provides that the Public Prosecutormust be given comments on the appeal).(c) The appointment by the Court of a lawyer to act for the Applicantwas not revoked until ... 1960, namely, after the expiry of thetime-limit fixed for the making of submissions to the Court. TheApplicant had consequently legal assistance during the Spring of 1960when the exchange of the written pleadings in the case took place.(d) In general, that there had been no violation of Article 6,paragraph (3) of the Convention and that the Application was manifestlyill-founded.THE LAWWhereas, in regard to the Applicant's complaints of violations ofArticles 3, 5 and 6 (Art. 3, 5, 6) of the Convention during theproceedings before the Regional Court of C., namely, that he was notpresumed innocent until proved guilty, in that the Court was notimpartial, that the witnesses for the prosecution were heard in hisabsence, that he was deprived of his right to prepare a proper andadequate defence, that the facilities necessary for his defence werenot granted to him and that evidence requested by the defence was notallowed to be called, it is to be observed that on 27th July 1961 theCommission held an examination of the case as it was submitted,including an examination ex officio, did not disclose any appearanceof a violation of the above Articles of the Convention; whereas thesubsequent submissions by the Applicant, in so far as they relate tothese complaints, do not provide any grounds for a reconsideration ofthe finding reached by the Commission on 27th July, 1961; whereas itfollows that these complaints are manifestly ill-founded and must berejected in accordance with Article 27, paragraph (2) (Art. 27-2) ofthe Convention;Whereas, in regard to the Applicant's complaints that he was refusedfree legal assistance during the appeal proceedings before the FederalCourt, it is to be observed that such legal assistance was not refuseduntil after the Applicant's appeal had been lodged an supportingarguments had been submitted; whereas, in its decision of ... 1960, theFirst Criminal Chamber of the Court of Appeal of C. held that legalassistance was not necessary at the next stage of the proceedings andgave as its reason the fact that the time-limit for submitting furtherarguments on procedural grounds had expired and based itself, in thisrespect, on Article 345, paragraph (1) of the Code of CriminalProcedure; whereas in accordance with Article 345, paragraph (2) ofthe Code of Criminal Procedure, the Applicant himself still had thepossibility of lodging with the Registrar of the Regional Court of C.any written submissions which he might wish to make regarding hiscomplaint that the law had been incorrectly applied by the RegionalCourt;Whereas, in these circumstances, the interests of justice did notrequire that the Applicant should be given free legal assistance inregard to the proceedings before the Federal Court; whereas it followsthat in this respect there has been no violation of Article 6,paragraph(3) (c) (Art. 6-3-c) of the Convention;Whereas, in regard to the Applicant's complaints that he was notallowed to be present at the hearing of his appeal before the FederalCourt on ... 1960, the fact is that the Court did not order an oralhearing of the case, but rejected the Applicant's appeal in pursuanceof Article 349, paragraph (2) of the Code of Criminal Procedure, whichprovides that an appeal may be rejected by the Federal Court withoutan oral hearing of the parties in public, where it considers the appealto be manifestly ill-founded; whereas the Public Prosecutor and theApplicant, notwithstanding the fact that they were not present at thehearing, had the possibility of presenting their arguments to theCourt in writing; whereas, indeed, the Applicant, after he had beennotified of the Public Prosecutor's observations, availed himself ofthis possibility and submitted full arguments in writing in support ofhis appeal; whereas, in these circumstances, the conduct of theproceedings was not inconsistent with the provision contained inArticle 6, paragraph (1) (Art. 6-1) of the Convention, which guaranteesa fair hearing to a person in the determination of a criminal chargeagainst him;Whereas it follows that the complaints made by the Applicant in respectof the appeal proceedings before the Federal Court are also manifestlyill-founded and must be rejected in accordance with Article 27,paragraph (2) (Art. 27-2) of the Convention.Now therefore the Commission declares this Application inadmissible."[/align]