[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]