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

  1. #1

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

    [align=left]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.
    --------------------------------------------
    (1) Partial decision of 7th October, 1966, Collection 21, p. 72.
    --------------------------------------------

    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.[/align]
    مكتب
    هيثم محمود الفقى
    المحامى بالاستئناف العالى ومجلس الدولة
    المستشار القانونى لنقابة التمريض ا مساعد أمين الشباب لدى منظمة الشعوب العربية لحقوق الانسان ودعم الديمقراطية ا مراقب عام دائم بمنظمة الشعوب والبرلمانات العربية ا مراسل ومحرر صحفى ا

  2. #2

    افتراضي

    [align=left]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.[/align]
    مكتب
    هيثم محمود الفقى
    المحامى بالاستئناف العالى ومجلس الدولة
    المستشار القانونى لنقابة التمريض ا مساعد أمين الشباب لدى منظمة الشعوب العربية لحقوق الانسان ودعم الديمقراطية ا مراقب عام دائم بمنظمة الشعوب والبرلمانات العربية ا مراسل ومحرر صحفى ا

  3. #3

    افتراضي

    [align=left]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.[/align]
    مكتب
    هيثم محمود الفقى
    المحامى بالاستئناف العالى ومجلس الدولة
    المستشار القانونى لنقابة التمريض ا مساعد أمين الشباب لدى منظمة الشعوب العربية لحقوق الانسان ودعم الديمقراطية ا مراقب عام دائم بمنظمة الشعوب والبرلمانات العربية ا مراسل ومحرر صحفى ا

  4. #4

    افتراضي

    [align=left](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.[/align]
    مكتب
    هيثم محمود الفقى
    المحامى بالاستئناف العالى ومجلس الدولة
    المستشار القانونى لنقابة التمريض ا مساعد أمين الشباب لدى منظمة الشعوب العربية لحقوق الانسان ودعم الديمقراطية ا مراقب عام دائم بمنظمة الشعوب والبرلمانات العربية ا مراسل ومحرر صحفى ا

  5. #5

    افتراضي

    [align=left]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.
    [/align]
    مكتب
    هيثم محمود الفقى
    المحامى بالاستئناف العالى ومجلس الدولة
    المستشار القانونى لنقابة التمريض ا مساعد أمين الشباب لدى منظمة الشعوب العربية لحقوق الانسان ودعم الديمقراطية ا مراقب عام دائم بمنظمة الشعوب والبرلمانات العربية ا مراسل ومحرر صحفى ا

  6. #6

    افتراضي

    [align=left](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;[/align]
    مكتب
    هيثم محمود الفقى
    المحامى بالاستئناف العالى ومجلس الدولة
    المستشار القانونى لنقابة التمريض ا مساعد أمين الشباب لدى منظمة الشعوب العربية لحقوق الانسان ودعم الديمقراطية ا مراقب عام دائم بمنظمة الشعوب والبرلمانات العربية ا مراسل ومحرر صحفى ا

  7. #7

    افتراضي

    [align=left]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;[/align]
    مكتب
    هيثم محمود الفقى
    المحامى بالاستئناف العالى ومجلس الدولة
    المستشار القانونى لنقابة التمريض ا مساعد أمين الشباب لدى منظمة الشعوب العربية لحقوق الانسان ودعم الديمقراطية ا مراقب عام دائم بمنظمة الشعوب والبرلمانات العربية ا مراسل ومحرر صحفى ا

  8. #8

    افتراضي

    [align=left]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.[/align]
    مكتب
    هيثم محمود الفقى
    المحامى بالاستئناف العالى ومجلس الدولة
    المستشار القانونى لنقابة التمريض ا مساعد أمين الشباب لدى منظمة الشعوب العربية لحقوق الانسان ودعم الديمقراطية ا مراقب عام دائم بمنظمة الشعوب والبرلمانات العربية ا مراسل ومحرر صحفى ا

المواضيع المتشابهه

  1. X. & CO. (ENGLAND) LTD v. THE FEDERAL REPUBLIC OF GERMANY - 3147/67 [1968] ECHR 1
    بواسطة هيثم الفقى في المنتدى Decisions of The European Court of Human Rights
    مشاركات: 0
    آخر مشاركة: 07-19-2009, 12:26 AM
  2. X. v. THE FEDERAL REPUBLIC OF GERMANY - 3011/67 [1967] ECHR 32 (20 December 1967)
    بواسطة هيثم الفقى في المنتدى Decisions of The European Court of Human Rights
    مشاركات: 1
    آخر مشاركة: 07-16-2009, 01:53 PM
  3. H.G. and W.G. v. THE FEDERAL REPUBLIC OF GERMANY - 2294/64 [1964] ECHR 11 (16 Decemb
    بواسطة هيثم الفقى في المنتدى Decisions of The European Court of Human Rights
    مشاركات: 0
    آخر مشاركة: 07-15-2009, 12:29 AM
  4. X. v. THE FEDERAL REPUBLIC OF GERMANY - 2077/63 [1964] ECHR 6 (08 July 1964)
    بواسطة هيثم الفقى في المنتدى Decisions of The European Court of Human Rights
    مشاركات: 0
    آخر مشاركة: 07-15-2009, 12:23 AM
  5. WEMHOFF v. THE FEDERAL REPUBLIC OF GERMANY - 2122/64 [1964] ECHR 4 (02 July 1964)
    بواسطة هيثم الفقى في المنتدى Decisions of The European Court of Human Rights
    مشاركات: 0
    آخر مشاركة: 07-15-2009, 12:20 AM

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