[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]