[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]