[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.
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