[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]