v. THE FEDERAL REPUBLIC OF GERMANY - 2136/64 [1964] ECHR 3 (18 April 1964)

[هيثم الفقى]

[align=left]THE FACTS

Whereas the facts presented by the Applicant may be summarised
as follows:

The Applicant is a German citizen born in ... and living in A. He is
represented by Y, a lawyer practising in B, who is acting under a power
of attorney dated 7th February, 1964.

On ... 1960, the Applicant was convicted by the District Court
(Amtsgericht) of B on charges under Articles 2 and 71 of the Ordinance
concerning road traffic regulations (Strassenverkehrszulassungsordnung)
combined with Articles 1, 8 and 46 of the Traffic Ordinance
(Strassenverkehrsordnung). He was sentenced to three weeks'
imprisonment. His appeal was rejected on ... 1960 by the Regional
Court (Landgericht) of C.

By a decision of 3rd July 1962 in another case (published in Decisions,
Volume 14, page 174) the Federal Constitutional Court declared Article
71 of the first Ordinance to be unconstitutional as being against
Article 103 of the Basic Law, on 25th July 1962, it also held that
Article 49 of the Traffic Ordinance was unconstitutional as being
against Article 104 of the Basic Law. At the same time, the Court
upheld the constitutional validity of Article 21 of the Traffic Code
(Strassenverkehrsgesetz).

Article 71 provided as follows:

"Whoever deliberately or negligently commits and act in violation of
this Ordinance, or of an order implementing it, is punishable by a fine
of up to 150 marks or by detention (Haft), provided that such act is
not punishable by heavier penalties under other provisions."

Article 49 was drafted in identical terms.

Article 21 of the Traffic Code provided as follows:

"Whoever commits an act contrary to the ordinances which are issued
concerning road traffic for the maintenance of order and safety on
public roads and areas, for the prevention of a use of streets
exceeding general traffic norms or for the prevention of traffic
impediments is punishable by a fine of up to 150 German marks or by
detention (Haft)".

On 15th August 1962, the Ministry of Justice of Niedersachsen issued
a circular letter to all Presidents of Courts of Appeal and all chief
Public Prosecutors, drawing their attention to these two decisions
by the Federal Constitutional Court. It was further stated that, in
accordance with Article 79 of the Act on the Federal Constitutional
Court, all convictions based on the above invalidated provisions should
be revised, in case transferred to the above Article 21 (Umstellung).
It was added that for this purpose an oral hearing was superfluous.

On ... 1962 the Public Prosecutor of C requested that the Applicant's
sentence should be accordingly revalidated on the basis of Article 21
of the Traffic Code. The Applicant, who had not yet served the term
of imprisonment imposed upon him in 1960, lodged a protest and,
invoking Article 6 of the Convention on Human Rights, requested an oral
hearing.

On ... 1963, the Regional Court of C, without hearing the Applicant,
upheld the Public Prosecutor's application and this decision was
confirmed on appeal by the Court of Appeal (Oberlandesgericht) of D on
... 1963. The latter Court held that the Public Prosecutor's
application had been duly communicated to the Applicant who submitted
his reply. The Public Prosecutor had not further intervened in the
case, but the Superior Public Prosecutor (Generalstaatsanwalt) had
submitted to the Court that the Applicant's protests should be
rejected. This submission had not been communicated to the Applicant
but contained, in any event, no new facts or arguments.

The Applicant's request for an oral hearing was rejected, inter alia,
on the grounds that the penalty imposed upon the Applicant was not
affected by the change of legal basis of the conviction (no reformatio
in pejus), that Article 6 of the Convention did not guarantee him an
oral hearing ("does not require at each new stage of proceedings any
new oral hearing"), and that proceedings are not necessarily
invalidated when the legal provisions invoked and applied are
subsequently held null and void.

On ... 1964 the Federal Constitutional Court rejected a constitutional
complaint lodged by the Applicant against the above decisions.

On ... 1964, the Applicant received an order dated ..., under which
he was to start serving the above term of imprisonment within a period
of eight days. On the previous day, the Applicant's lawyer had
requested a suspension of his imprisonment pending the examination of
the present Application by the Commission. This request was rejected
on the same day and on ... the Applicant's lawyer lodged an appeal
(Sofortige Beschwerde). The Commission has not been informed of the
outcome of these proceedings, but it is to be presumed that the appeal
was rejected and that the Applicant has now served his term of
imprisonment.

The legal submissions made by the Applicant's lawyer, as contained
in his letter of 6th February 1964, may be resumed as follows:

1. Article 71 was the only provision of those cited in the decision of
the District Court of B and the Regional Court of C which provided for
a penalty. When this provision was subsequently annulled, the entire
basis for the Applicant's conviction and sentence disappeared.
According to German Constitutional Law, an invalidated provision is
invalid ex tunc: consequently, the indictment and the decisions relying
on provisions which were, legally speaking, non-existent, were null and
void. The Applicant's guilt has never been proved according to law. It
is inherent in proving a person's guilt that such proof is based on a
validly enacted law.

2. Article 79 of the Act on the Federal Constitutional Court stipulates
that a retrial may take place when a provision, upon which a decision
relies, has been invalidated. Only the "convicted" person has the
right to request such a retrial. It also refers to the general
provisions of the Code of Criminal Procedure (Strafprozessordnung)
which, apart from Article 362, not applicable in the present case, does
not provide for retrials (Wiederaufnahme) to the prejudice of a
"convicted" person.
Nevertheless, the Public Prosecutor of C applied for a retrial with a
view to changing the legal foundation of the decision under which the
Applicant was sentenced.

3. The proceedings before the Regional Court of C and the Court of
Appeal of D were held in spite of the requirements of the Convention,
in that the Applicant was denied the right to an oral hearing before
these Courts.

4. The Courts were not independent or impartial as they acted on
the basis of the instructions given to them by the Minister of Justice
in his circular letter of 15th August 1962. This amounted to an
unwarranted and unjustifiable interference on the part of the executive
with the administration of justice by the judiciary.

Whereas the Applicant alleges violations of Articles 3, 5, paragraph
(1) (a); 6, paragraphs (1) and (2); and 7, paragraph (1), of the
Convention.

He also alleges that the execution of the sentence imposed upon him
by these decisions is contrary to Article 25, paragraph (1), in fine
of the Convention.

THE LAW

Whereas, in regard to the Applicant's complaints under Article 6 (Art.
6), the present Application raises for the first time the question to
what extent the provisions of the Convention are applicable to legal
proceedings resulting in a decision which acquired the nature of res
judicata but which have subsequently been re-opened by the
domestic Courts; whereas, in the present case, the proceedings
concerned were re-opened as a result of certain legal provisions
relevant to those proceedings being subsequently found by a Court to
be unconstitutional on a technical ground;

Whereas, Article 6, paragraph (1) (Art. 6-1), provides that: "in the
determination ... of any criminal charge against him, everyone is
entitled to a fair and public hearing ... by an independent and
impartial tribunal ...";

Whereas the Commission has frequently stated that a person who has been
convicted by a Court decision amounting to res judicata is not a person
"charged with a criminal offence" within the meaning of Article 6
(Art. 6), and thus not entitled to the rights guaranteed therein;
whereas it has further held that the provisions of Article 6
(Art. 6) are not applicable to a convicted person during subsequent
revision proceedings initiated by him before a domestic Court, unless
that Court is seized of any criminal charges against him, whether it
be the initial charge or that which a Public Prosecutor might have
newly formulated or repeated if the convicted person's application for
revision had been granted (see decisions in Nos. 913/60, H. v. Austria,
Collection of Decisions, Volume 8, page 43 and 864/60, M. v. Austria,
ibid., Volume 9, page 17);

Whereas the decision of a court which declared unconstitutional certain
legal provisions relied upon by a lower court in a previous decision
might, in certain circumstances, result in new proceedings during which
the question could arise whether or not new charges were being formally
brought against an Applicant; whereas, therefore, the procedure
followed by the German Courts in the present case might, if applied as
a general rule, raise doubts as to whether it was compatible with the
Convention;

Whereas, accordingly, regard must be had to the particular
circumstances of each case; whereas, in the present case, the
Commission finds it essential to distinguish between the Applicant's
conviction and his sentence pursuant to that conviction;

Whereas, the decision of the Federal Constitutional Court, by which it
found Article 71 of the Ordinance concerning Traffic Regulations to be
invalid as being contrary to the Constitution, had the effect of
vitiating the legal basis of the sentence imposed upon the Applicant
but in no way affected the legal or factual basis of his conviction
under Article 2 of the above Ordinance and under Articles 1, 8 and 46
of the Traffic Ordinance;

Whereas it follows that his conviction as such remained res judicata
and was not open to review during the subsequent proceedings before the
Regional Court of C and the Court of Appeal of D; whereas, indeed, the
sole duty of these Courts was to reconsider, under Article 21 of the
Traffic Code, the Applicant's sentence passed under the said Article
71 pursuant to his conviction under the Articles referred to above;
whereas the Applicant, in the proceedings before the said Courts, was
not a person "charged with a criminal offence" within
the meaning of Article 6 (Art. 6);

Whereas the Applicant has lodged complaints under Article 6, paragraph
(1) (Art. 6-1), that he was not accorded an oral hearing and that the
proceedings were conducted before Courts which were not independent,
and further, under Article 6, paragraph (2) (Art. 6-2), that he was not
presumed innocent during these proceedings; whereas, in regard to these
complaints, the Commission has found that the Applicant was not a
person "charged with a criminal offence", whereas this part of the
Application is therefore incompatible with the provisions of the
Convention and must be rejected in accordance with Article 27,
paragraph (2) (Art. 27-2), of the Convention;[/align]

[هيثم الفقى]

[align=left]Whereas, at the same time, the Commission considers that it would be
useful to point out first, that Article 71 and Article 21 of the
Traffic Code were drafted in identical terms and provide for the same
penalties; whereas, indeed, Article 71 was found by the Federal
Constitutional Court to be unconstitutional solely on the ground that,
contrary to Articles 103 and 104 of the Basic Law, it had not been
embodied in a formal Act of Parliament but in an Ordinance which was
thus ultra vires (N.J.W. 1339);

Whereas the Commission secondly observes that the Public Prosecutor did
not apparently request that a sentence under Article 21 should be
imposed upon the Applicant heavier that the one which he had previously
received under Article 71; whereas, in fact, the sentence which the
Applicant received during the proceedings before the Regional Court of
C in 1963 was in no way different from the one which he had received
in 1960;

Whereas, thirdly, the Commission points out that, during the
proceedings concerned, the Applicant was in fact given the opportunity
of submitting arguments in writing to the Courts concerned and that
those Courts took full note of these arguments; whereas, in this
respect, the Commission refers to its decisions Nos. 599/59 (B. v. the
Federal Republic of Germany, Collection of Decisions, Volume 8, page
12) and 1035/61 (G. v. the Federal Republic of Germany, ibid., Volume
10, page 12) in respect of appeal proceedings under Article 349 of the
German Code of Criminal Procedure; whereas, in those decisions the
Commission found that the Public Prosecutor and the Applicant, although
they were not present at the hearing, had availed themselves of the
possibility of presenting their arguments to the Court in writing and
that, in these circumstances, the conduct of the proceedings was not
inconsistent with the provisions contained in Article 6 (Art. 6);

Whereas the Commission finally points out, in regard to the Applicant's
allegation that the Courts were not independent but followed the
instructions of the Minister of Justice of Niedersachsen, that, having
regard to the circular letter of 15th August 1962 and the decisions of
the two Courts in question, no indication exists to show that the
Government of Niedersachsen unduly interfered with the administration
of justice so as to deprive the Courts of their independence;

Whereas, in respect of the alleged violation of Article 5, paragraph
(1) (a) (Art. 5-1-a), it is pointed out that the Applicant was duly
convicted by a competent Court within the meaning of that paragraph;


Whereas, in respect of the alleged violation of Article 7, paragraph
(1) (Art. 7-1), the offence for which the Applicant was convicted
"constituted a criminal offence ... at the time it was committed", and
the penalty imposed upon him under Article 71 was not heavier than the
one provided for in Article 21 which "was applicable at the time the
criminal offence was committed";

Whereas it follows that there is no appearance of a violation of
Articles 5 or 7 (Art. 5, or 7) nor, a fortiori, of Article 3 (Art. 3)
of the Convention;

Whereas these parts of the Application are manifestly ill-founded and
must be rejected in accordance with Article 27, paragraph (2)
(Art. 27-2) of the Convention;

Whereas, finally, in regard to the alleged violation of Article 25,
paragraph (1) (Art. 25-1) in fine of the Convention, it is to be
pointed out that an application to the Commission does not impose,
under the terms of the Convention, any obligation upon the Contracting
Parties to refrain from giving effect to a Court decision pending the
conclusion of the connected proceedings before the Commission; whereas,
in this respect, the Commission refers to the principle laid down in
decision No. 297/57 (H. v. the Federal Republic of Germany, Yearbook
2, page 204);

Whereas, also this part of the Application is manifestly ill-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]