Lexploria

Application No. 9999/82

Serif COLAK

against

the FEDERAL REPUBLIC OF GERMANY

REPORT OF THE COMMISSION

adopted on 6 October 1987

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1-20) ......................................... 1

A. The application

(paras. 2-5) .................................. 1

B. The proceedings

(paras. 6-15) ................................. 1

C. The present Report

(paras. 16-20) ................................ 2

II. ESTABLISHMENT OF THE FACTS

(paras. 21-73) ........................................ 4

A. The particular circumstances of the case

(paras. 21-52) ................................ 4

1) The applicant's arrest and detention

(paras. 21-25) ........................... 4

2) The pre-trial proceedings - in particular

the proceedings on the admission of the

indictment

(paras. 26-30) ........................... 5

3) The trial proceedings

(paras. 31-43) ........................... 6

4) The appeal proceedings

(paras. 44-46) ........................... 8

5) The constitutional appeal proceedings

(paras. 47-52) ........................... 8

B. The relevant law and practice in the

Federal Republic of Germany

(paras. 53-91) ................................ 10

1) Criminal offences

(paras. 53-57) ........................... 10

2) Conditions of the commission of

the offence

(paras. 58-66) ........................... 11

3) Provisions on the competent court

(paras. 67-68) ........................... 12

4) Provisions on the Bill of Indictment

(para. 69-70) ............................ 12

5) Provisions on the admission of the

charges (Eröffnungsverfahren)

(paras. 71-75) ........................... 12

6) Relevant provisions on the trial

proceedings

(paras. 76-83) ........................... 13

7) Provisions on the judgment, in particular

if it differs from the admitted charge

(paras. 84-87) ........................... 14

8) Practice concerning out-of-court

arrangements

(paras. 88-91) ........................... 15

III. SUBMISSIONS OF THE PARTIES

(paras. 92-131) ....................................... 16

A. The applicant

(paras. 92-106) ............................... 16

B. The Government

(paras. 107-131) .............................. 19

IV. OPINION OF THE COMMISSION

(paras. 132-158) ...................................... 27

A. Point at issue

(para. 132) ................................... 27

B. Article 6 of the Convention

(paras. 133-157) .............................. 27

C. Conclusion

(para. 158) ................................... 32

Individual opinion of MM. Weitzel, Soyer,

Schermers and Danelius and Mrs. Thune ................. 33

Dissenting opinion of Sir Basil Hall .................. 34

APPENDIX I : HISTORY OF THE PROCEEDINGS ................. 35

APPENDIX II : DECISION ON THE ADMISSIBILITY .............. 37

I. INTRODUCTION

1. The following is an outline of the case as submitted to the

European Commission of Human Rights, and of the procedure before the

Commission.

A. The application

2. The applicant is a Turkish citizen born in 1935 who at the

time of filing the application was serving a five-year sentence at the

prison of Butzbach, and who after completion of that sentence has now

returned to Turkey. He is represented by Rechtsanwalt Adam Rosenberg

of Frankfurt.

3. The application is directed against the Federal Republic of

Germany whose Government were represented by their Agent, Frau

Ministerialdirigentin Irene Maier of the Federal Ministry of Justice.

4. The case concerns criminal proceedings in which the applicant

was charged with attempted homicide. The Regional Court of

Frankfurt refused to admit this charge and decided to open trial

proceedings only in respect of a charge of causing grievous bodily

harm, but that decision was quashed by the Frankfurt Court of Appeal

which admitted the charge of attempted homicide. During the trial

the Regional Court indicated in accordance with Section 265 of the

Code of Criminal Procedure that a conviction of causing bodily harm

instead of attempted homicide was possible. The applicant alleges

that the Presiding Judge in a conversation with defence counsel in the

corridor outside the courtroom interpreted this indication as meaning

that the Court would actually proceed on the basis of the alternative

charge of bodily harm. The applicant was nevertheless convicted of

attempted homicide.

5. The applicant now complains that the proceedings were unfair

and contrary to Article 6 para. 1 of the Convention in that the

Regional Court disregarded the Presiding Judge's above assurance and

that, as a result, counsel was unable to defend the applicant against

the charge of attempted homicide of which he was ultimately

convicted. The Government contest the applicant's allegation

concerning the Presiding Judge's statement and submit that, in any

event, Article 6 para. 1 of the Convention has not been violated.

B. The proceedings

6. The application was introduced on 7 June 1982 and registered

on 16 July 1982.

7. On 14 May 1984 the Commission decided in accordance with

Rule 42 para. 2 (b) of its Rules of Procedure to give notice of the

application to the respondent Government and to invite them to

present before 27 July 1984 their observations in writing on the

admissibility and merits of the application.

8. The Government submitted their observations on 7 August 1984

and the applicant replied on 13 September 1984.

9. On 6 March 1985 the Commission considered the state of

proceedings and decided to request certain additional information from

the applicant's lawyer. This information was submitted on 28 March 1985

and the Government commented thereon on 18 April 1985.

10. On 8 May 1985 the Commission decided to hold an oral hearing

on the admissibility and merits of the application.

11. The hearing took place on 9 December 1985. The parties were

represented as follows:

- the applicant by his counsel, Rechtsanwalt Adam Rosenberg of

Frankfurt;

- the Government by their Agent, Ministerialdirigentin Irene

Maier of the Federal Ministry of Justice, who was assisted by

Ministerialrat Dr. Wolfgang Sturmhöfel of the same Ministry,

and Staatsanwalt Joachim Wenzel of the Frankfurt Public

Prosecutor's Office, as Advisers.

12. Following the hearing, the Commission declared the application

admissible. The text of this decision, approved by the Commission on

7 March 1986, was on 14 March 1986 transmitted to the parties who were

invited to submit before 1 May 1986 any supplementary observations on

the merits which they wished to make. The Government submitted such

observations on 24 April 1986, requesting, inter alia, an

investigation. The applicant submitted observations in reply on

27 June 1986.

13. On 14 July 1986 the Commission decided to invite the

Government to specify in what manner the proposed investigation should

be carried out. The Government replied on 4 September 1986 without

making concrete proposals.

14. On 11 October 1986 the Commission decided not to hold an

investigation.

15. After declaring the case admissible, the Commission, acting in

accordance with Article 28 (b) of the Convention, also placed itself

at the disposal of the parties with a view to securing a friendly

settlement. In the light of the parties' reaction, the Commission now

finds that there is no basis on which such a settlement can be

effected.

C. The present Report

16. The present Report has been drawn up by the Commission in

pursuance of Article 31 of the Convention and after deliberations and

votes, the following members being present:

MM. E. BUSUTTIL, Acting President

J.A. FROWEIN

B. KIERNAN

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.C. SOYER

H.G. SCHERMERS

H. DANELIUS

G. BATLINER

J. CAMPINOS

Mrs G.H. THUNE

Sir Basil HALL

17. The text of this Report was adopted on 6 October 1987

and is now transmitted to the Committee of Ministers of the Council of

Europe, in accordance with Article 31 para. 2 of the Convention.

18. The purpose of the Report, pursuant to Article 31 of the

Convention, is:

i) to establish the facts, and

ii) to state an opinion as to whether the facts found

disclose a breach by the State concerned of its

obligations under the Convention.

19. A schedule setting out the history of the proceedings before

the Commission is attached hereto as Appendix I and the Commission's

decision on the admissibility of the application as Appendix II.

20. The full text of the parties' submissions, together with

the documents lodged as exhibits, are held in the archives of the

Commission.

II. ESTABLISHMENT OF THE FACTS

A. The particular circumstances of the case&S

1) The applicant's arrest and detention&S

21. On 27 April 1979, following a fight between several Turks in a

Turkish restaurant in Frankfurt during which the applicant allegedly

injured another person with a knife, he was arrested by the police on

suspicion of attempted homicide (versuchter Totschlag).

22. On 28 April 1979, the District Court (Amtsgericht) of

Frankfurt issued a warrant of arrest which, however, was based

only on a suspicion of causing grievous bodily harm (schwere

Körperverletzung).

23. At the request of the prosecution and after having heard the

applicant, the District Court modified the warrant on 29 May 1979 to

the effect that, as a result of the statements made by witnesses

and of police investigations, the applicant was under a strong

suspicion of attempted homicide. The Court observed that, if

convicted, the applicant could expect a very severe punishment.

24. This modified warrant of arrest remained the basis of the

applicant's detention until his final conviction. It was expressly

maintained by the decision of the Regional Court (Landgericht) of

Frankfurt of 13 May 1980 by which, in view of the interruption of the

trial, the applicant was released on bail after having paid DM 40,000

into court. A subsequent request to reduce bail to DM 20,OOO was

refused by the Regional Court on 3 October 1980 on the ground that a

security in the amount of DM 40,OOO appeared indispensable in view of

the seriousness of the offence with which he was charged.

25. On 10 February 1981, following the applicant's conviction at

first instance, the Regional Court revoked the bail and ordered that

the former warrant should again be enforced. The applicant appealed

against the revocation of bail claiming that his situation had not

essentially changed after the conviction as he had already earlier

been charged with an offence (i.e. attempted homicide) punishable by

imprisonment of up to fifteen years, but he had not fled the

jurisdiction. This appeal was rejected by the Frankfurt Court of

Appeal (Oberlandesgericht) on 6 March 1981. The applicant thus

continued to be detained on remand until the decision of the Federal

Court of Justice (Bundesgerichtshof) of 10 February 1982 which

confirmed his conviction and sentence. Thereafter he served the

remainder of his sentence as a convicted prisoner (cf. para. 39

below).

2) The pre-trial proceedings - in particular the

proceedings on the admission of the indictment&S

26. Immediately after his arrest, at the first police

interrogation, the applicant was informed that he was suspected of

attempted homicide. During the subsequent investigation conducted by

the prosecution authority he was fully aware of this charge and was

repeatedly given an opportunity to state his position in the presence

of his defence counsel and an interpreter. On 29 May 1979 he was also

informed by the competent judge of the modification of the arrest

warrant (cf. para. 23 above).

27. On 13 October 1979, the prosecution, having terminated its

investigation, submitted a bill of indictment to the Regional Court

of Frankfurt. It qualified the applicant's offence as the crime of

attempted homicide (versuchter Totschlag), within the meaning of

Sections 212, 22 of the Criminal Code (Strafgesetzbuch). Accordingly,

the prosecutor requested the opening of the trial proceedings

(Hauptverfahren) before the Specialised Chamber for Serious Crimes

(Schwurgericht) which is competent for this type of offence by virtue

of Section 74 para. 2 of the Courts Organisation Act (Gerichts-

verfassungsgesetz).

28. The bill of indictment was served on the applicant both in

German and Turkish on 20 November 1979. In accordance with

Section 201 para. 1 of the Code of Criminal Procedure (Straf-

prozessordnung) the applicant was granted a hearing by the

Presiding Judge of the Specialised Chamber and afforded the

opportunity of responding to the statements made in the bill. The

applicant did not object to the case being returned for trial

on the basis of this indictment.

29. However, by a decision of 18 December 1979, the Specialised

Chamber, sitting without lay assessors (Section 76 para. 1 of the

Courts Organisation Act), declined jurisdiction to deal with the

case as it did not share the prosecution's qualification of the

charge, i.e. attempted homicide. Considering that the charge must

be qualified differently, namely as causing grievous bodily harm

(schwere Körperverletzung) within the meaning of Sections 223 and

223 (a) of the Criminal Code, it decided that the case should be set

down for trial before another Criminal Chamber (Grosse Strafkammer)

of the Regional Court in accordance with Section 74 para. 1 of the

Courts Organisation Act.

30. Following an appeal by the prosecution, the Frankfurt Court of

Appeal decided on 31 January 1980 to quash the Specialised Chamber's

decision insofar as it had denied its own competence. In the Court of

Appeal's view there was sufficient suspicion that the applicant had

acted with the intention of killing and thus had committed the

offence of attempted homicide. Although the qualification of the

charges by the Regional Court in the decision to open the trial

proceedings could not normally be challenged by the prosecution, it

could be so challenged in the present case where the issue was

decisive for determining the competent Criminal Chamber. The trial

should therefore take place before the Specialised Chamber.

3) The trial proceedings&S

31. A first trial took place before the Specialised Criminal

Chamber of the Regional Court between 28 April and 13 May 1980.

32. The applicant and his defence counsel were informed on

5 May 1980, in accordance with Section 265 of the Code of Criminal

Procedure, that a conviction for causing bodily harm as opposed to

attempted homicide was possible. The applicant apparently did not ask

for an adjournment as provided for in Section 265 para. 4 of the Code.

33. However, on 13 May 1980 the trial was interrupted because the

principal witness, i.e. the victim, could not be contacted. As

already mentioned, the applicant was then released on bail (cf.

para. 24 above).

34. Because of the length of the time which elapsed before the

above witness was available, a retrial took place before the

Specialised Chamber sitting with a different composition. This second

trial lasted from 15 January until 10 February 1981.

35. The transcript of 16 January mentions that defence counsel was

again informed under Section 265 of the Code of Criminal Procedure of

the possibility of a conviction for bodily harm as opposed to

attempted homicide, and that he was given an opportunity to prepare

his defence accordingly.

36. The applicant alleges that, following this intimation by the

Court, his defence counsel was told by the Presiding Judge in the

corridor outside the court room that he could assume that the Court

would actually proceed on the basis of a charge of bodily harm; he

would inform him in good time if the position changed (cf. para. 93

below). This allegation is contested by the respondent Government (cf.

paras. 107 et seq. below).

37. The applicant's subsequent defence did not specifically deal

with the homicide issue. The applicant remained silent and his

defence counsel pleaded that there was a possibility that another

person had caused the injury or, if the applicant had caused it

himself, that he had done so in a state of reduced criminal

responsibility due to his drunkenness. He requested a conviction

on the offence of drunkenness according to Section 330 (a) of the

Criminal Code.

38. On 23 January 1981 the prosecution likewise pleaded that a

state of reduced criminal responsibility could be assumed and that

because of his drunkenness an intention to kill could not be imputed

to the applicant. The prosecution requested a three-year sentence

for grievous bodily harm.

39. However, on 10 February 1981 the Regional Court convicted the

applicant of attempted homicide and sentenced him to five years'

imprisonment.

40. The Court noted that the applicant had denied the stabbing and

that he had restricted his testimony to his personal circumstances

and his consumption of alcohol on the night of the offence. However,

it considered that his guilt was established by the evidence.

41. The Court's findings were largely based on the testimony of

the victim which was considered credible by reason of various

circumstances despite the fact that this witness, as victim and

co-prosecutor, might have had an interest in giving evidence

unfavourable to the applicant.

42. On the basis of the established facts, the Court concluded

that the applicant had attempted to kill a person in circumstances not

amounting to murder, and was thus guilty of attempted homicide.

He had acted with intent in the form of dolus eventualis

(bedingter Vorsatz). The intent had been to stab the witness once in

retaliation for the latter's stabbing of a friend with a fork. The

applicant's state of knowledge was sufficient for him to know that

stabbing someone in the upper part of the abdomen with a blade as long

as a man's hand could kill even if medical assistance was immediately

available. He carried out the stabbing in full knowledge of the

possible fatal outcome, a possibility in which he acquiesced. The

Court inferred his acquiescence from the fact that the applicant had

used a long knife with considerable force, without being able to

direct the thrust in such a way as to make the fatal outcome less

likely.

43. The Court further concluded on the basis of expert evidence

that at the time of the offence the applicant did not lack criminal

responsibility in the sense of Section 20 of the Criminal Code.

However, the Court assumed in the applicant's favour that his ability

to control himself was considerably diminished by his consumption of

alcohol and the anger about the injury caused to his friend. The

Court therefore applied Section 21 of the Criminal Code (reduced

criminal responsibility). The sentence was consequently mitigated in

accordance with Section 49 of the Criminal Code.

4) The appeal proceedings&S

44. The applicant lodged an appeal on points of law (Revision)

against the above judgment. He claimed, inter alia, the nullity of

the proceedings on the ground that despite the assurances allegedly

given by the Presiding Judge the defence was not informed again,

according to Section 265 of the Code of Criminal Procedure, of a

change of the Chamber's view, and therefore could not prepare the

defence accordingly.

45. In his reply of 1 December 1981, the Federal Attorney

(Generalbundesanwalt) denied a violation of the above provision. In

his opinion it was not decisive that the opening of the proceedings on

the basis of attempted homicide had originally been refused. The

indictment based on this offence had in the last resort been admitted

and had thus become the basis of the proceedings. The conviction for

attempted homicide was not excluded by the fact that the Presiding

Judge had indicated during the trial that a conviction for bodily harm

was also possible. This did not create an obligation for the Court to

proceed only on this latter basis. Even the assurance allegedly given

by the Presiding Judge to the defence outside the court room could not

change the situation. The Presiding Judge alone was not competent to

give such assurances. This could only be done by the Chamber as a

whole which, moreover, could form an opinion only at the end of the

proceedings as a result of its deliberations. The Federal Attorney

therefore proposed the rejection of the applicant's appeal, inter

alia, on this point.

46. By a decision of 10 February 1982, the Federal Court of

Justice (Bundesgerichtshof) rejected the appeal as a whole, without

giving detailed reasons. It simply stated that a review of the

judgment on the basis of the appeal arguments did not disclose any

error of law to the detriment of the accused.

5) The constitutional appeal proceedings&S

47. The applicant then filed a constitutional appeal based on

Articles 20 para. 3 and 103 of the Basic Law (Grundgesetz). He

claimed that the principles of fair trial had been disregarded in

particular by the Court's failure to safeguard the applicant's

procedural rights (prozessuale Fürsorgepflicht). The assurance given

by the Presiding Judge must have been understood by the defence as

binding the Court as a whole, and the Court's subsequent failure to

inform the defence of its different view consequently violated the

applicant's rights of defence.

48. However, the Federal Constitutional Court, acting through a

three-judge committee according to Section 93 (a) para. 2 of the

Federal Constitutional Court Act (Gesetz über das Bundesverfassungs-

gericht), decided on 17 May 1982 to reject the constitutional appeal

as lacking sufficient prospects of success.

49. In the reasons it was stated that the proceedings had not been

unconstitutional. The applicant could not assume that he would not be

convicted for homicide. Neither the Regional Court's original

refusal to open the proceedings on this basis, nor its subsequent

intimation at the trial that a conviction for bodily harm was also

possible, nor the fact that at the trial the prosecution applied for a

conviction for bodily harm could justify such an expectation. As the

charge of attempted homicide had been admitted by the Court of Appeal,

the applicant ought to have assumed that a conviction on this basis

was possible and should have prepared his defence accordingly.

50. Even assuming the applicant's statement was correct that the

Presiding Judge had informed defence counsel out of court that he

could assume that the Court would envisage merely a conviction for

grievous bodily harm and that he would inform him in good time if the

position changed, a legitimate expectation could only arise if such

information had been given in open court or, if given out of court, if

it had been notified on behalf of the whole Court to all those

involved in the trial. However, the applicant did not claim that this

had been the case. He had merely referred to an informal conversation

between his defence counsel and the Presiding Judge in which the

latter was alleged to have communicated the Criminal Chamber's

provisional assessment of the facts and the legal position, but not in

such a way that it was plainly possible to regard him as having been

empowered to do so by the Criminal Chamber. No such unofficial

assurance was provided for in the law of criminal procedure. Without

official confirmation by the Court, which defence counsel was bound to

seek if he wanted to conduct the defence on the assumption that the

assurance would be adhered to, such an assurance was not apt to give

rise to a legitimate expectation which, if disregarded, would have

made the trial unfair.

51. In the view of the Federal Constitutional Court there was

accordingly no need to take evidence concerning the applicant's

allegation even if it were to be corroborated by the official

statement of the Presiding Judge made for the purpose of the review

proceedings. ("Einer Beweiserhebung über die Behauptung des

Beschwerdeführers, für deren Richtigkeit die im Revisionsverfahren

abgegebene dienstliche Erklärung des Strafkammervorsitzenden sprechen

mag, bedurfte es mithin nicht.") The Presiding Judge had stated on

19 June 1981: "I cannot now recollect details of out-of-court

conversations with defence counsel". The fact that in the

circumstances the failure to abide by the "assurance" - and perhaps

even the unauthorised assurance itself - could give rise to objections

from the point of view of disciplinary regulations could not found a

claim that the constitution had been breached in the criminal

proceedings against the applicant.

52. The Federal Constitutional Court finally observed that there

was no indication that the Federal Court of Justice, when examining

the applicant's appeal, had disregarded the applicant's plea in this

respect, and thus the applicant's constitutional right to be heard.

Under constitutional law, the Federal Court was not obliged to give

detailed reasons for its decision.

B. The relevant law and practice in the Federal Republic

of Germany&S

1) Criminal offences&S

53. The applicant was charged with and convicted of the crime

(Verbrechen) of attempted homicide under Section 212 para. 1 of the

German Criminal Code. This provision reads as follows:

"Anyone who kills a person in circumstances not

amounting to murder shall be punished by not less

than 5 years' imprisonment for homicide."

54. According to Section 38 of the Criminal Code, the maximum

penalty for this crime is 15 years.

55. The provisions on particularly serious or less serious cases

of homicide (Section 212 para. 2 and Section 213), for which

different penalties are stipulated, were not applied or considered.

56. The alternative charge considered in the present case was the

criminal offence (Vergehen) of causing grievous bodily harm. Section

223 para. 1 of the Criminal Code defines the offence of causing bodily

harm (Körperverletzung) in the following terms:

"Anyone who physically ill-treats a person or

damages his health ..."

The aggravated offence of causing grievous bodily harm is

regulated in Section 223 (a) which stipulates in para. 1:

"Where the bodily harm has been committed by means of

a weapon, in particular a knife or other dangerous

instrument, or by means of a treacherous assault or

by several persons jointly or by treatment likely to

endanger life, the punishment shall be imprisonment

for not more than five years or a fine."

57. The alternative suggested by the defence was the offence

of drunkenness (Vollrausch) which, until 1980, was regulated in

Section 330 (a) of the Criminal Code (now Section 323 (a)). It

read as follows:

"1) Anyone who wilfully or by negligence becomes

intoxicated through consuming alcoholic beverages or

other intoxicants shall be punishable by imprisonment

for not more than five years or a fine if in this

state he commits an offence and cannot be punished

for it as such because his criminal responsibility was

precluded by his intoxication or because that possibility

cannot be excluded.

2) The penalty shall not be more severe than that

attaching to the offence committed in a state of

intoxication."

2) Conditions for the commission of the offence&S

58. The offences of homicide and grievous bodily harm are

punishable only if committed with intent (Vorsatz, cf. Section 15 of

the Criminal Code) which, according to the case-law, includes dolus

eventualis (bedingter Vorsatz). The intent must concern the result

of the offence as defined in the relevant provision of the Criminal

Code, i.e. in the case of homicide it must be an intent to kill,

in the case of causing bodily harm an intent to occasion physical

injury.

59. The offences are punishable if they have been completed. In

the present case the offence of causing grievous bodily harm would

have been completed while this condition clearly was not met as

regards the offence of homicide. The applicant was charged with,

and convicted of, attempted homicide.

60. Section 22 defines an attempt (Versuch) as follows:

"Anyone who, in accordance with his conception of the

act, makes direct preparations for carrying out an

offence shall be guilty of an attempt."

61. Section 23 further provides that an attempt to commit a crime

(i.e. an offence for which the law stipulates a minimal penalty of at

least one year imprisonment, cf. Section 12) shall always be

punishable. However, in such a case the penalty may be mitigated in

accordance with the principles of Section 49 of the Criminal Code (see

para. 66 below).

62. In the present case a mitigation of the penalty on this basis

was considered, but not applied.

63. Irrespective of the applicable substantive provision of the

Criminal Code, the courts also had to consider the question of the

applicant's criminal responsibility.

64. The applicant could not have been convicted if he had been

found lacking criminal responsibility by reason of mental

disturbance (Schuldunfähigkeit wegen seelischer Störungen). In this

respect Section 20 of the Criminal Code provides as follows:

"Anyone who when committing an offence is, by reason of

a mental disturbance or a far-reaching disturbance affecting

his awareness or by reason of mental deficiency or some

other serious mental abnormality, incapable of knowing

that he is acting contrary to law or of acting in

accordance with such knowledge shall not be criminally

responsible."

65. However, in case of diminished criminal responsiblity

(verminderte Schuldfähigkeit) a conviction was not excluded. In this

respect Section 21 of the Criminal Code provides as follows:

"Where the capacity of the offender to know that he is

acting contrary to law or to act in accordance with such

knowledge is diminished on one of the grounds set out in

Section 20, the penalty may be reduced in accordance with

Section 49 para. 1."

66. In a case of mitigation under Section 49 para. 1 the maximum

penalty shall be reduced by one quarter (i.e. from 15 years to

11 years and 3 months in a case of homicide, and from 5 years to

3 years and 9 months in a case of grievous bodily harm); if there is

a high minimum penalty of 10 or 5 years (as in the case of

homicide) it shall be reduced to two years.

3) Provisions on the competent court&S

67. Homicide and grievous bodily harm are both offences which,

according to Section 74 para. 1 of the Courts Organisation Act

(Gerichtsverfassungsgesetz), come within the jurisdiction of a Criminal

Chamber (Strafkammer) of the Regional Court. However, homicide is

included in the list of those offences where, under Section 74 para. 2,

the competent Chamber is a Specialised Chamber for Serious Crimes, a

so-called "Jury Court" (Schwurgericht). Grievous bodily harm, on the

other hand, is covered by the general clause in Section 74 para. 1,

and accordingly is to be dealt with by a normal Chamber of the

Regional Court, a so-called "Grand Criminal Chamber" (Grosse

Strafkammer).

68. Both the Specialised Chamber and the normal Chamber have the

same composition. At the trial, they are composed of three

professional judges, including the Presiding Judge (Vorsitzender) and

two lay assessors (Schöffen)(Section 76 para. 2). Decisions outside

the trial, such as the decision to open the trial proceedings, are

taken by only three members including the Presiding Judge (Section 76

para. 1).

4) Provisions on the Bill of Indictment&S

69. According to Section 200 para. 1 of the Code of Criminal

Procedure, the bill of indictment (Anklageschrift) shall indicate the

accused, the criminal act imputed to him, the time and place of its

commission as well as the legal elements of the offence and the

applicable criminal provisions (the charge = Anklagesatz). It shall

also indicate the means of evidence, the court of trial and the

defence counsel. According to para. 2 the indictment shall further

contain the main result of the investigation proceedings.

70. According to Section 201 para. 1 the Presiding Judge shall

communicate the bill of indictment to the accused and invite him to

state within a fixed time-limit whether or not he requests the taking

of additional evidence before the decision on the opening of the trial

proceedings, or whether he wishes to raise objections against the

opening of the trial proceedings. According to para. 2 the decision

on such requests or objections lies with the Court, i.e. in the

present case the Chamber composed of three members.

5) Provisions on the admission of the charges (Eröffnungsverfahren)&S

71. In the Federal Republic of Germany, the trial proceedings in

criminal cases are regularly preceded by interim proceedings on the

admission of the charges.

72. According to Section 203 of the Code of Criminal Procedure the

Court shall decide to return the accused for trial if according to the

results of the investigation (or other preliminary proceedings) there

appears to be sufficient suspicion of the accused having committed a

criminal offence. Otherwise the proceedings shall be definitely or

provisionally discontinued (Sections 203, 204 and 206a). In taking

the relevant decision, the Court is not bound by the submissions of

the prosecution (Section 206).

73. According to Section 207 para. 1 of the Code of Criminal

Procedure the decision to open the trial proceedings shall contain a

statement on the admission of the charges and shall indicate the Court

where the trial is to take place. Para. 2 of the same Section

provides that the Court may admit the charges subject to certain

amendments, including, inter alia, a qualification of the criminal

act which differs from the bill of indictment. It follows from the

wording of para. 3 that in such a case the prosecution is not required

to submit a new bill of indictment.

74. Where, as in the present case, the decision is taken by a

Regional Court, it may under Section 209 para. 1 of the Code of

Criminal Procedure decide to open the proceedings before any Court,

except a Court of Appeal. Under Section 210 para. 1 this decision

cannot be challenged by the accused. However, under Section 210 para. 2

the prosecution may appeal (sofortige Beschwerde) if the Court decides

to open the trial proceedings before a Court of inferior rank (Gericht

niederer Ordnung) to that suggested by the prosecution. For the

purposes of this provision, a normal Criminal Chamber is regarded as

a Court of inferior rank in relation to a Specialised Chamber (cf.

paras. 67-68 above). In such a case, the Court of Appeal's decision

on the prosecution's remedy finally determines the competent Court and

the charges which shall form the basis of the trial.

75. The decision on the opening of the trial proceedings shall be

notified to the accused not later than his summons to the trial

(Section 215).

6) Relevant provisions on the trial proceedings&S

76. The trial and its preparation are regulated in Sections 213 et

seq. of the Code of Criminal Procedure.

77. Throughout the trial, the Court may not change its composition

(Section 226). However, the trial may be interrupted (Aussetzung) by

the Court proprio motu or at the request of the parties for

important reasons (Section 228 para. 1 as interpreted in constant

practice). The proceedings must be resumed on the eleventh day after

the interruption at the latest, otherwise the trial as a whole must be

repeated (Section 229).

78. According to Section 238 para. 1 of the Code, it is the task

of the Presiding Judge to conduct the proceedings, to examine the

accused and to take the evidence. Various provisions furthermore

assign specific functions to the Presiding Judge. If a ruling of the

Presiding Judge is challenged as being inadmissible, it is for the

full Court to decide (Section 238 para. 2).

79. At the beginning of the trial the prosecution is required to

read out the charges. In a case where the decision returning the

accused for trial differs from the charge in the bill of indictment,

(cf. para 72 above) the decision shall be read out by the prosecution

which may add their own comments (Section 243 para. 3).

80. The accused is then given an opportunity to state whether or

not he wishes to answer the charges. If he is ready to answer, he

shall be examined first before the Court proceeds to the taking of

other evidence (Section 243 para. 4).

81. The examination of the evidence is subject to various

specific rules which are laid down in Sections 244 et seq. of the

Code.

82. After the examination of the evidence, the Court hears the

final submissions (Schlussvorträge) of the prosecution and of the

defence (Section 258).

83. At the end of the trial, the Court holds its deliberations,

votes and finally pronounces the judgment (Section 260). The

deliberations and votes take place in camera (Section 193 of the

Courts Organisation Act) in the presence of all judges (Section 192).

The Presiding Judge conducts the deliberations, puts the questions and

collects the votes, but where a dispute arises a decision must be

taken by the full Court (Section 194). In general, the Court decides

by an absolute majority of votes (Section 196), but decisions

unfavourable to the accused which concern his guilt and the length of

his sentence require a two-thirds majority (Section 263 of the Code of

Criminal Procedure).

7) Provisions on the judgment, in particular if it differs

from the admitted charge&S

84. The subject-matter of the judgment shall be the offence

specified in the indictment as it shall appear in the light of the

outcome of the trial. The Court is not bound by the qualification of

the offence as it appears in the decision on the opening of the trial

proceedings (Section 264 of the Code of Criminal Procedure).

85. However, according to Section 265 para. 1 the accused may not

be convicted on the basis of any other criminal provision than the one

referred to in the judicial decision admitting the indictment unless

his attention has previously been drawn specifically to the change in

the legal assessment and he has been given an opportunity to defend

himself.

86. Under Section 265 para. 3 the accused has a right to request

an adjournment if the alternative charge which is laid is more

serious than the one in the admitted indictment. Under paragraph 4

the Court shall likewise adjourn the trial upon an application or of

its own motion in other circumstances where this appears appropriate in

order to allow sufficient preparation of the case by the prosecution

or the defence following any changes in the circumstances.

87. The case-law concerning Section 265 has clarified that it is

for the Presiding Judge, on behalf of the Court, to indicate a

possible alternative charge. Such an indication must be made in time

and with sufficient precision so as to enable the accused to conduct

his defence concerning the new charge effectively. In certain cases

it may be required to make a second indication if the circumstances

have changed again. Failure to make an indication where required may

be challenged in an appeal on points of law to the Federal Court of

Justice under Section 337 of the Code of Criminal Procedure.

8) Practice concerning out-of-court arrangements&S

88. In principle, the provisions of the Code of Criminal Procedure

are to be strictly applied. No provision is made in the law for any

informal arrangements concerning the conduct of the proceedings.

89. However, it appears that in practice some sort of

plea-bargaining may nevertheless take place.

90. Thus it seems to be a frequent practice that decisions to

discontinue criminal proceedings are made by a court following

informal consultations with both parties. Informal arrangements may

also be made concerning the evidence to be produced at a trial or the

order of its presentation.

91. In all these cases the informal arrangement does not replace

the application of the relevant provisions of the Code of Criminal

Procedure. It consists of an agreement between the court and the

parties concerned to make a specific use of these provisions.

III. SUBMISSIONS OF THE PARTIES

A. The applicant&S

92. The applicant bases his complaint essentially on the Regional

Court's non-compliance with the assurance which the Presiding Judge

had allegedly given his defence counsel in January 1981, two days

after the Court's official indication under Section 265 of the Code of

Criminal Procedure that a conviction for grievous bodily harm instead

of one for attempted homicide was a possibility to be considered

(cf. para. 36 above).

93. According to the applicant, the Presiding Judge's statement

was - almost literally - couched in the following terms:

"Sie brauchen sich keine Sorgen zu machen. Nach dem

Hinweis auf die mögliche Verurteilung wegen gefährlicher

Körperverletzung können Sie davon ausgehen, dass auch nur

insoweit die Verurteilung in Betracht kommt. Die Kammer

dreht sich nicht. Sollte die Kammer sich dennoch drehen,

sagen wir Ihnen rechtzeitig Bescheid."

("You need not worry. Now the Court has indicated that a

conviction for grievous bodily harm is possible, you can

proceed on the assumption that the conviction will indeed

only be on that basis. The Chamber will not change its

views. If in fact it does, we will inform you in good

time.")

94. Concerning the circumstances of the defence counsel's relevant

conversation with the Presiding Judge, it is submitted that it took

place in the corridor outside the courtroom. The above statement was

a reaction to a question by counsel.

95. According to the applicant the conversation was not limited to

this subject. The Presiding Judge allegedly also suggested that the

applicant should reach an agreement with the injured person on the

payment of compensation, a proposal which defence counsel subsequently

discussed with the applicant. The applicant, however, relying on the

Presiding Judge's assurance that he would only be convicted for bodily

harm, rejected the proposal which, in the opinion of defence counsel,

could even have laid the basis for a decision to discontinue the

proceedings.

96. The applicant refutes the Government's argument according to

which the Presiding Judge's statement has not been made or has not

been proven. He observes that the Presiding Judge did not deny that

he had had a conversation with defence counsel. In his official

declaration of 19 June 1981, he only said that he had no detailed

recollection of out-of-court conversations with defence counsel, but

he did not expressly contest the correctness of the applicant's

allegations concerning these conversations.

97. As regards the way in which the German courts dealt with the

applicant's allegations, it is submitted that they started from the

assumption that these allegations were true. On the level of the

Federal Court of Justice there exists a consistent practice, both in

civil and criminal cases, to presume the correctness of factual

allegations which the lower courts considered as irrelevant but which

turn out to be relevant for the legal assessment of an appeal on

points of law. For this reason it was not necessary to take evidence

on the truth of the applicant's allegation. The same approach

was taken by the Federal Constitutional Court in the present case.

The applicant refers in particular to the Federal Constitutional

Court's observation that the applicant's allegation might be regarded

as corroborated by the official statement of the Presiding Judge

(cf. para. 51 above).

98. The applicant considers that the Commission based its

admissibility decision on the assumption that the Presiding Judge's

statement had been made as alleged.

99. The applicant further submits that, according to its terms,

the alleged statement of the Presiding Judge could be understood as

having been made on behalf of the Chamber as a whole. The Presiding

Judge expicitly stated that the Chamber would not change its views,

and that the hint given by the Chamber as to a possible alternative

qualification of the offence meant that, without further notice, the

Chamber would proceed only on that basis. The defence was therefore

reasonably entitled to trust that the Chamber would feel bound by that

statement.

100. In these circumstances the statement of the Presiding

Judge that the Court would consider the case on the basis of the

alternative charge of grievous bodily harm was more than a mere

promise. It amounted to an agreement with the Presiding Judge that

the Court would act according to that statement if the defence in

turn refrained from burdening the trial with unnecessary arguments

concerning the original homicide charge.

101. As to the Government's argument that the Presiding Judge was

not authorised under the applicable provisions of criminal procedure

to make the statement in question, the applicant submits that even an

unauthorised statement could lead to a violation of his rights of

defence because in the circumstances he could trust that the Court

would act in accordance with that statement. In this connection he

invokes a practice in the Federal Republic and in other States

according to which agreements concerning the conduct of criminal

proceedings are frequently made without a legal basis. He refers in

particular to the practice under Section 153 of the Code of Criminal

Procedure to discontinue proceedings with the agreement of the

parties.

102. The applicant does not claim that in view of the pre-trial

proceedings he could trust there would be no conviction for attempted

homicide. He observes, however, that the Chamber, under the

presidency of an experienced judge, first refused to open the

proceedings on this basis although the nature of the injury had in

fact been known at the relevant time from the medical reports included

in the file. It is true that the Court of Appeal subsequently quashed

this decision and admitted the charge of attempted homicide. However,

despite this fact the Chamber twice indicated under Section 265 of the

Code of Criminal Procedure that a conviction for bodily harm was also

possible. Again, the Chamber was fully aware of the nature of the

injury when it gave those intimations. In particular during the second

trial the indication was made after the injured person and the medical

expert had been examined. Also the essential evidence to be heard at

the trial was known to the Presiding Judge from the file already at

the beginning of the trial, i.e. before the above intimation was given.

103. Thus, even without the subsequent statement of the Presiding

Judge the applicant could trust that the Court would consider the case

primarily on the basis of the alternative charge of bodily harm. This

view is confirmed by a decision of the Frankfurt Court of Appeal on

the applicant's appeal against detention following the judgment. The

Court of Appeal stated that prior to that judgment the applicant was

entitled to expect a less severe sanction having regard to the

intimations given in the course of the trial under Section 265 of the

Code of Criminal Procedure that a conviction for causing bodily harm

was possible, and also having regard to the original refusal to open

the trial on the basis of the homicide charge. This interpretation is

in line with a constant practice of the courts where an intimation is

given under Section 265 to limit the subsequent examination of the

case to the offence designated in the hint. The Federal Court of

Justice held in 1972 that a new indication was necessary if the court

wished to revert to the original charges which it had stated would be

left aside for the time being.

104. If the defence lawyer had anticipated the applicability of the

homicide provision, he would first of all have persuaded his

client to make a deposition himself, in particular to state that he

had had no intention to kill his adversary, but only to injure him.

Assuming that the case would be dealt with as an offence of bodily

harm, the defence lawyer had advised his client to remain silent.

The defence would further have stressed that the applicant's

intention to kill could not be proved. The applicant had been at a

considerable distance from the injured person when he stabbed him with

his knife. Even if he had intended to kill him, he had subsequently

abandoned the attempt to commit the offence of homicide because he

had not repeated his attack although he could not be sure that the

first blow was sufficient to kill, and as he had subsequently

suggested to take the injured person to hospital. His alleged threats

to injure other persons had only been reported by hearsay, but there

was no direct evidence that he had actually made the remarks in

question. He abandoned his attempt to kill of his own free will

- a fact which would have led to an acquittal.

The defence finally would have requested the hearing of

further witnesses, in particular the witness who had first been

injured by the victim of the applicant's attack and who had been a

guest of the applicant at his table. This person whom the applicant

had meant to defend in the spirit of Turkish hospitality was not

called as a witness and only his written statement was read out with

the consent of the defence.

105. If the defence had used all these arguments despite the

assurance given by the Presiding Judge it might have annoyed the Court

and might have given the impression that the defence itself considered

that homicide was the appropriate provision to be applied to this

case.

106. The applicant disagrees with the Government's submission that,

in view of the Federal Constitutional Court's decision, he would have

been required to introduce the Presiding Judge's statement in the

trial if he wished to draw any conclusion therefrom. Contrary to the

Government's assertion, confidential agreements between the parties

are not foreign to the system of German criminal procedure, and such

agreements would be devoid of any meaning if they must subsequently be

introduced in the trial. The law does not expressly stipulate that

such agreements are inadmissible, nor that they must be introduced in

the trial. On the other hand it is provided in the guidelines for

criminal procedure (Richtlinien für das Strafverfahren - former

version of 1978) that the collaboration with the defence lawyer shall

be based on understanding and trust, and legal writers affirm that

there are many kinds of gentlemen agreements between the judge and the

parties. The applicant also refers to the English and American

practice of plea bargaining. In his submission it is self-evident

that such agreements must be complied with in good faith, and he

considers that a breach of such agreements makes the trial unfair and

constitutes a breach of Article 6 para. 1 of the Convention.

B. The Government&S

107. The Government contest that the conversation between the

Presiding Judge and the applicant's defence counsel took place at all

or - if a private conversation is deemed to have taken place - that it

had the content alleged. The Government criticise the Commission's

decision on admissibility insofar as it may create the impression that

the Commission regards the alleged conversation as an established

fact.

108. It is submitted that the relevant facts have neither been

established in the domestic proceedings, nor in the proceedings before

the Commission.

109. The Government refer to the lack of precision in the

allegations of the applicant's lawyer concerning the date, place and

actual context of his conversation with the Presiding Judge. They

also stress that the lawyer gave some particulars only at a very late

stage of the Commission's proceedings, in the second round of oral

submissions at the hearing on 9 December 1985, after the Government

had referred to the matter and a member of the Commission had put an

appropriate question. These circumstances are in striking contrast

with the precise indication of the wording of the Presiding Judge's

alleged statement.

110. The fact that according to his official statement of 19 June 1981

the Presiding Judge himself did not recall the details of a conversation

in the corridor, does not give the Government any cause for assuming

the correctness of the applicant's allegation. One cannot expect a

judge at the Frankfurt Regional Court to remember whether and - if so -

by whom he was addressed on the stairs or in the corridor outside the

court and to remember what the content of such a conversation was.

After all, there are more than 2000 lawyers admitted to practise in

the Frankfurt Regional Court. The judge did not only have contacts

with many persons during the trial, but also outside the trial and

there might have been some misunderstanding of his words on the part

of the applicant's lawyer.

111. During the domestic proceedings there was no clarification

concerning the alleged conversation going beyond the official

statement obtained from the Presiding Judge by the public prosecution

office in Frankfurt.

112. Before the national courts no evidence was taken on this

alleged conversation because this fact was not a matter of importance

having regard to the legal position. Both the Federal Attorney

and the Federal Constitutional Court denied the relevance of this

allegation because - even if it was assumed to be true ("Richtigkeit

unterstellt") - it was without any significance for the criminal

proceedings.

113. The Federal Attorney did not assume that the Presiding Judge

had actually given an assurance outside the trial, he merely

assumed the applicant's submission to be true and stated as follows:

"This also applies if the Presiding Judge - as submitted - possibly

gave the impression that there would only be a conviction for grievous

bodily harm". The Federal Court of Justice, dismissing the

applicant's appeal on points of law, followed the Federal Attorney on

this point. If the Court had not done so, it would have had to remit

the case for a new trial and the taking of evidence.

114. The judicial committee of the Federal Constitutional Court

adopted the same approach. It simply assumed the applicant's

submission as true (cf. summary of the decision, paras. 49 et seq.

above). This is shown by the wording of its decision, in particular

the following passages:

"Nothing else can apply if the complainant's

allegation were to be true, .....

The complainant does not make such a submission

of fact. He refers solely to an informal con-

versation between defence counsel and the

Presiding Judge, during which the latter is

said to have given the Criminal Chamber's

provisional assessment of the facts and legal

position .........

There was consequently no need for evidence to

be taken concerning the complainant's allegation,

the correctness of which may be indicated by the

official statement made by the Presiding Judge of

the Chamber."

"Nichts anders kann für den Fall gelten, daß die

Behauptung des Beschwerdeführers zuträfe,

......

Einen solchen Sachverhalt trägt der Beschwerdeführer

nicht vor. Er bezieht sich lediglich auf ein informelles

Gespräch zwischen Verteidiger und Vorsitzendem, in dem

dieser zwar eine vorläufige Einschätzung der Sach- und

Rechtslage durch die Strafkammer mitgeteilt haben soll

.....

Einer Beweiserhebung über die Behauptung des

Beschwerdeführers, für deren Richtigkeit die im

Revisionsverfahren abgegebene dienstliche Erklärung des

Strafkammer-Vorsitzenden sprechen mag, bedurfte es

mithin nicht."

The Federal Constitutional Court thus saw no violation of

constitutional law in the allegation that was assumed to be true and

expressly stated that there was consequently no need for evidence to

be taken with regard to the applicant's allegation.

115. The Government, too, base their arguments before the

Commission on the mere assumption that the applicant's allegations

concerning the Presiding Judge's statement are true while maintaining

that in fact they are not. The Government's observations on the legal

consequences of a confidential conversation between the Presiding Judge

and defence counsel only concern the question whether the applicant's

submission in this respect is legally relevant, whether it can

substantiate the alleged violation of the right to fair proceedings.

In conformity with the national court decisions, the Government's

answer to this question is in the negative.

116. If, contrary to the Government's opinion, the Commission

should consider the alleged statement of the Presiding Judge as

relevant under Article 6, the Government do not agree to this disputed

fact forming the basis of a finding that the Convention has been

violated. In this eventuality, the Government requested the

Commission to take evidence on the applicant's allegation.

117. In this respect, the Government's Agent has submitted the

following arguments in her letter of 4 September 1986:

"... I called for such evidence to be taken only

on condition that this allegation of fact is

regarded by the Commission as being at all relevant

to its decision .... It is hardly acceptable to the

Federal Government that findings of violations of the

Convention should be founded on unproven and disputed

facts and, moreover, that on examination of domestic

decisions in regard to their compatibility with the

Convention reference should be made to questions which

- because of the legal irrelevance - were not the

subject of the decision concerned. Furthermore, it

is not reasonable for disputed and unproven allegations

of fact made by the applicant simply to be assumed to

be true to the detriment of the Contracting State and

for there to be an assumption - in a case of doubt -

of a violation of the Convention by the State concerned.

For this reason evidence must also be taken in the

proper manner if the question is considered to be rel-

evant to the law of the Convention.

In the present case it must be added that the legal

irrelevance of the question is quite clear in the

opinion of the Federal Government, for defence counsel

must be aware that a criminal judgment is handed down

only after evidence has been taken and after

secret deliberation by the court. Moreover, the

submissions made by the applicant's counsel concerning

the manner in which he had defended the applicant also

show that the disputed question was without significance

for the applicant's defence.

I ask you to bear with me for insisting on adherence to

the evidence and to the subject of the actual domestic

court proceedings, for this is the idea behind the

requirement that all domestic remedies must be exhausted.

Our courts, whose proceedings and decisions are here

subjected to control by organs of the Convention, must

be assured and must themselves be able to arrive at the

conviction that the examination is based on an accurate

and correct analysis of the factual and legal position

and that their actions are being assessed in a just manner."

118. The Government recall the principle that the question of fair

trial must be determined having regard to the proceedings as a whole

and not on the basis of individual stages of the proceedings or

isolated incidents. The applicant in the present case submits that,

given the particular circumstances of his trial, he was entitled to

trust that he would not be convicted on the basis of attempted

homicide. The Government deny this. The applicant was indicted

for attempted homicide, and this offence was the subject-matter of

the trial. At no point of time during the proceedings has there been

a state of affairs attributable to the court which entitled the

applicant to trust that the charge contained in the bill of indictment

had been dropped.

119. First, such expectation could not be based on the state of

affairs at the time when the charge was preferred and the trial

opened. This was admitted by the applicant himself. It is true that

in the opening decision the Specialised Criminal Chamber held the view

that, according to the state of investigations, intent to kill could

not be proved and that the act could at best be qualified as causing

grievous bodily harm, and that for this reason it opened the

proceedings before the lower-ranking general Criminal Chamber instead

of the Specialised Chamber itself. That decision was apparently based

on an error concerning the nature of the injury which had been

described in an imprecise way in a medical report. However, upon the

prosecution's appeal, this decision was quashed by the Court of

Appeal which admitted the charge of attempted homicide and opened

the proceedings before the Specialised Chamber. Although that decision

was based only on a preliminary assessment of the act, it nevertheless

finally determined the subject-matter of the main proceedings. From

this it was clear to the applicant on the basis of which charges he

had to prepare his defence on points of fact and law. He could not

trust that the Criminal Chamber would adhere to its initial legal

assessment. On the contrary, the Court was bound to deal with the

alleged charge of attempted homicide during the main proceedings.

120. An expectation of conviction for bodily harm only could not be

based on the legal information given by the Chamber pursuant to

Section 265 of the Code of Criminal Procedure that such a conviction

was also possible. As a matter of principle, only the acts specified

by the bill of indictment are subject to the decision-making process

of the court, although the court is not bound by the legal

qualification stated in the bill of indictment. It is therefore

possible that the court arrives at the conclusion that the acts

specified in the indictment must be assessed differently in fact or in

law. In such a case, the court is bound pursuant to Section 265 to

inform the defendant of the change in the legal aspects. This serves

as safeguard against the defendant being surprised by a different

legal qualification of the act, and ensures his possibility to defend

himself properly even against the allegations based on a less serious

law. This does not mean, however, that the Criminal Chamber may no

longer investigate the case on the basis of the original charge

contained in the bill of indictment. This charge remains unchanged in

spite of the legal information referring to a possible different

qualification of the offence. The applicant in the present case

therefore was not entitled to trust that the Criminal Chamber would

forthwith proceed only on the basis of the new legal assessment. Both

the intent to kill and the intent to inflict bodily harm were the

subject-matter of the trial.

121. In this context, the Government further submit that the

indication under Section 265 concerning a possible different legal

qualification was given to the defence in both trials at a relatively

early stage, i.e on the fourth day of seven days of hearing in 1980,

and on the second day of eight days of hearing in 1981. This was long

before the taking of evidence by the Court had been completed, and

also for this reason the defence could not draw any conclusions as to

the later decision of the Court which necessarily presupposed the

assessment of the evidence as a whole. The Government further observe

that the situation was fundamentally different from that considered in

No. 8490/79, Dec. 12.3.81 Zimmermann v. Austria (D.R. 22, p. 140), to

which the Commission referred in the decision on admissibility. In

that case the applicant contended that he had learnt for the first

time from the court's judgment what the additional legal viewpoint -

not embodied in the indictment - had been, on which the court had based

his conviction.

122. Insofar as the applicant invokes the decision of the Frankfurt

Court of Appeal of 6 March 1981 concerning the detention issue as

confirming his view that because of the intimation made under Section 265

he could rely on a conviction only being possible for bodily harm, the

Government refer to the exact wording of this decision and claim that

it does not support his view. The Court in fact stated the following:

"Während der Dauer des bisherigen Verfahrens durfte

der Angeklagte im Hinblick auf die während des

Verlaufes beider Hauptverhandlungen vom Gericht

gegebenen Hinweise gem. § 265 StPO, daß auch eine

Verurteilung gem. § 223 a StGB in Betracht komme,

sowie im Hinblick darauf, daß die erkennende

Strafkammer zunächst eine Eröffnung des Haupt-

verfahrens wegen versuchten Totschlags abgelehnt

hatte, die zu erwartenden Rechtsfolgen weniger

schwerwiegend einschätzen als sie nunmehr durch

das Urteil der zweiten Strafkammer .... hervorge-

treten sind ...... Die damalige Haftverschonung stand

ersichtlich unter dem Eindruck der Strafkammer, eine

Verurteilung wegen gefährlicher Körperverletzung komme

ernsthaft in Betracht. Diese rechtliche Beurteilung

hat sich nach dem Ergebnis der Beweisaufnahme geändert."

("During the course of proceedings to date the

defendant has probably assessed the expected

legal consequences as being less serious than

the form ... they have taken in the judgment given

by the second Criminal Chamber - in view of the

references made by the Court pursuant to Section 265

of the Code of Criminal Procedure during both trials

to the effect that a conviction in terms of

Section 223 (a) of the Criminal Code was also

possible, and also in view of the fact that the

adjudicating court had initially refused to open

the main proceedings for attempted homicide. ...

The granting of bail at that time was clearly due

to the Criminal Chamber's impression that a conviction

for grievous bodily harm was a serious possibility.

This view of the law changed following the results

of the evidence taken.")

It thus was not stated that the applicant could rely on there

being a specific conviction.

123. Nor can the applicant rely on the decision of the Federal

Court of Justice of 19 July 1972 (Monatsschrift für deutsches Recht,

1972, p. 925). In that decision the Federal Court of Justice

held that the defence cannot rely on an impression gained from the

Presiding Judge alone to the effect that "in his opinion there can no

longer be a conviction based on the provision to be applied by virtue

of the bill of indictment". The Federal Court of Justice stated that

"the court as a whole (and not the Presiding Judge alone) has to

decide ... which of the two statutory offence definitions has been

fulfilled. The final decision can only be given when deliberations

have been concluded. The defendant and defence counsel have to take

this into account."

124. The commentary on this in the "Karlsruher Kommentar zur

Strafprozessordnung", margin note 20 concerning Section 265 of the

Code of Criminal Procedure, reads as follows: "Only where the court

(not the Presiding Judge) has stated that it will no longer give

further consideration to the original view of the law does the duty to

safeguard the defendant's procedural rights require a new reference if

the court still wishes to revert to the original charge ..." The

applicant's defence counsel knew this legal situation as he himself

referred to this passage of the commentary.

125. Finally, a legitimate expectation of conviction only for

bodily harm could, in the Government's view, not be based on the

alleged statement of the Presiding Judge, even assuming that the

applicant's allegations concerning this statement are correct. The

Government stress that the applicant refers to no more than a

confidential conversation conducted by his defence counsel with the

Presiding Judge outside the trial in a corridor. The German law of

criminal procedure does not make provision for such confidential

conversations. The strict rules of criminal procedure, which include

the principle of oral presentation and direct taking of evidence in

court, rule out the possibility of any conclusions being drawn in

respect of the course of the proceedings and in respect of the

judgment itself from such conversations. A confidential conversation

with the Presiding Judge can only have legal consequences where its

content is introduced into the trial and is brought to the attention

of all parties to the proceedings. The applicant does not contend

that this has happened.

126. The core of the criminal procedure is the trial, the oral

hearing in the court of decision. In making its decision, the court

is not permitted to consider anything that has not been dealt with in

the hearing. No material which has not been introduced in the trial

and brought to the notice of all parties concerned may be taken into

account in the court's decision on the merits. Therefore if the

applicant or his defence lawyer wanted to draw any conclusions

concerning the future course of the trial from a statement made by the

Presiding Judge outside the hearing, they would have been bound to

introduce these conclusions in the trial, i.e. to present them in

court and bring them to the notice of the parties concerned. But

neither the applicant nor his defence lawyer did so.

127. Even if defence counsel should have gathered from the

alleged statement that it reflected the opinion of all members of the

Criminal Chamber, it could not under the principles of criminal

procedure influence the future course of the proceedings and the

decision-making process of the court as such. The court takes the

decision on the merits after the obligatory deliberations and votes of

all members of the Chamber which can only take place after the final

pleadings of the parties, having regard to all matters dealt with in

the trial. In this procedure, which is subject to detailed legal

provisions, the President acts merely as a "primus inter pares", he

holds no privileged position as regards the subject-matter of the

decision. His powers are prescribed, in detail, by law. In essence

they include the formal conduct of the proceedings and the external

order of the trial, but he cannot by himself take any decisions on the

merits. Any decisions which affect the legal position of a party

require a decision by all members of the court.

128. In the present case, the subject-matter of the trial up to the

pronouncement of judgment therefore remained the charge of attempted

homicide contained in the bill of indictment together with the

alternative charge of causing grievous bodily harm. The applicant's

lawyer was not entitled to draw any conclusions in this respect from

an out-of-court statement made by the Presiding Judge. It was part of

his duties to defend the accused against all charges brought in the

criminal trial and see to it that the judicial procedure was strictly

observed. Since the provisions concerning judicial criminal

procedure do not include any "assurances" or "agreements" given or

reached unofficially, i.e. outside the trial, with regard to the

decision-making process of the court, the applicant, who was

represented by a lawyer, was not entitled to assume that the Criminal

Chamber as a whole would reach a specific legal conclusion.

129. Nor could any expectations in this respect be raised by the

fact that no further information was given by the Court after the

final motions and the defendant's final submission. Since the more

serious charge of attempted homicide contained in the bill of

indictment had not been dropped at any stage in the course of the oral

proceedings and consequently continued to be the subject-matter of the

decision-making process of the Court after the final pleadings, there

was no reason for the Criminal Chamber to give any information again

as to the possible legal qualification of the act as already contained

in the bill of indictment.

130. The Government stress that the court practice on confidential

agreements to which the applicant has referred is limited to

agreements between the court, the public prosecutor and defence

counsel. Nothing else can be inferred from the publications cited by

the applicant. In none of these publications is there any reference

to legal consequences of a confidential conversation with a Presiding

Judge held in a corridor. It is, however, true that outside the trial

conversations between the court, the public prosecution office and the

defence may be held, e.g. with regard to the setting down of trial

dates, to applications for evidence to be taken and to the further

preparation of the trial, as well as on the subject of a discontin-

uance of proceedings in terms of Sections 153 and 153 (a) of the Code

of Criminal Procedure. The applicant, however, has not made any

submissions concerning agreements between all parties to the

proceedings.

131. The Government conclude that in these circumstances there can

be no question of a violation of the right to a fair trial as laid

down in Article 6 para. 1 of the Convention.

IV. OPINION OF THE COMMISSION

A. Point at issue

132. The only point at issue is whether or not in the determination

of the criminal charges against him the applicant has had a "fair

hearing" within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention.

B. Article 6 (Art. 6) of the Convention

133. The relevant part of Article 6 para. 1 (Art. 6-1) of the Convention

reads as follows:

"In the determination ... of any criminal charge against

him, everyone is entitled to a fair ... hearing by an ...

impartial tribunal ...".

Moreover, according to Article 6 para. 3 (a) (Art. 6-3-a) everyone

charged with a criminal offence is entitled

"to be informed promptly, in a language which he understands

and in detail, of the nature and cause of the accusation against him;"

134. The applicant considers that he has not had a "fair hearing" in the

sense of Article 6 para. 1 (Art. 6-1) because he was convicted of the charge of

attempted homicide without having defended himself against that charge. He

claims that the circumstances entitled him to assume that the Court would

proceed only on the basis of the alternative charge of grievous bodily harm.

In substance, therefore, the applicant alleges to have been misled as to the

charge against him, and the corresponding requirements of his defence.

135. The applicant does not claim that any information was withheld to which

he was entitled under Article 6 para. 3 (a) (Art. 6-3-a) of the Convention. It

is not contested that he was informed both of the charge of attempted homicide,

on which the bill of indictment and the final decision to open the trial

proceedings were based, and of the alternative charge of grievous bodily harm

to which the Court referred him by way of an indication under Section 265 of

the Code of Criminal Procedure.

136. In the Commission's view it is relevant for the interpretation of

Article 6 para. 1 (Art. 6-1) in the present case that the circumstances which

the applicant invokes as creating a justified expectation on his part relate to

information given to him in application of the more specific provision of

Article 6 para. 3 (a) (Art. 6-3-a). Under that provision the accused has the

right to be informed not only of the grounds of the accusation, i.e. the acts

with which he is charged and on which the indictment is based, but also of the

nature of the accusation, i.e. the legal qualification of the acts in question

(cf. No. 524/59, Ofner v. Austria, Dec. 19.12.60, Yearbook 3, pp. 322, 344,

Comm. Report Ofner and Hopfinger v. Austria, 23.11.62, Yearbook 6, pp. 676,

694, and No. 8490/79, Zimmermann v. Austria, Dec. 12.3.81, D.R. 22, pp. 140,

142).

137. It is the aim and purpose of this information to give the accused a

fair chance to prepare his defence properly and in full knowledge of the legal

provisions which the court might find applicable to the facts of the case. It

is therefore essential for the fairness of the trial that it should be

conducted in strict conformity with the information given, without misleading

the accused as to the actual intentions of the court.

138. The applicant does not claim that the pre-trial proceedings created any

legitimate expectation for the defence that the homicide provision would not be

applied. Although the Regional Court first refused to open the proceedings on

this basis, the Court of Appeal later reversed the relevant decision and

admitted the homicide charge with final and binding effect for the Regional

Court. Therefore the applicant knew at the beginning of his trial that he had

to defend himself against a charge of homicide.

139. The applicant claims that the situation changed subsequently when,

during the trial, the Regional Court indicated to him on two occasions, under

Section 265 of the Code of Criminal Procedure, that a conviction for grievous

bodily harm was possible. According to the applicant there exists a court

practice to the effect that such intimations must be understood as meaning

that, without further notice, the court will only proceed on the basis of the

alternative charge. He submits that such an expectation was all the more

justified in the present case having regard to the pre-trial proceedings.

140. However, the applicant has failed to show that such a court practice

actually exists. The Government (at para. 123 above) have explained that the

decision of the Federal Court of Justice of 19 July 1972, on which the

applicant relies in this respect, cannot be interpreted in the way suggested by

him. The Federal Court held that a further intimation of the possible

application of the initial charge is only required if the trial court has

previously indicated its intention to abandon that charge.

141. The Commission notes that, in the present case, the trial court's

intimation of the additional charge of grievous bodily harm was not accompanied

by any indication that the original charge of attempted homicide would no

longer be considered. In the Commission's view the applicant therefore could

not, solely on the basis of that intimation, and against the background of the

pre-trial proceedings, expect that the homicide charge would be dropped. His

defence counsel must have been fully aware of this legal situation, and was

thus required to defend the applicant against both charges.

142. The Commission has next examined whether a different view could be

taken in the light of the statement allegedly made by the Presiding Judge in a

conversation with defence counsel in the corridor outside the courtroom. The

Government contest the applicant's allegations concerning this statement and

have requested the Commission to take evidence if, contrary to the Government's

view, it should consider the alleged statement as relevant for the

determination of the issue under Article 6 para. 1 (Art. 6-1) of the

Convention. The Government's view that the alleged statement is irrelevant

corresponds to the opinion of the competent national courts which did not hear

evidence on this allegation but took their decisions on the assumption that the

applicant's allegations concerning this statement were true.

143. Under Article 28 para. a (Art. 28-a) of the Convention the Commission

shall, in its examination of the merits of the application, ascertain the facts

of the case, if need be, by an investigation to be carried out with the

assistance of the parties and in particular the respondent State. The

Commission agrees with the Government that the establishment of a contested

fact is required only insofar as this fact might possibly be relevant for the

determination of the legal issues under the Convention.

144. In judging whether or not a particular fact might be relevant, the

Commission must give due consideration to the arguments of the parties

including any reference to the opinion of the competent national authorities.

However, as it is the specific purpose of the Commission's proceedings to

control the decisions of these authorities as to their conformity with the

Convention, the Commission cannot be bound by these decisions nor are its

powers of investigation limited to facts on which evidence has been taken on

the domestic level. The Commission must be free, in the exercise of its duties

under Article 28 para. a (Art. 28-a) of the Convention, to investigate any

facts which it considers as possibly relevant for the determination of the

Convention issues before it, and to subject the evidence obtained to

independent assessment taking due account of the findings of the national

authorities.

145. In the present case the Commission has come to the conclusion that,

contrary to the Government's position, the alleged statement of the Presiding

Judge cannot prima facie be regarded as irrelevant to the issue under Article 6

para. 1 (Art. 6-1) of the Convention. As was stated in the decision on

admissibility (para. 3 of The Law) "a problem under Article 6 para. 1 (Art.

6-1) of the Convention would indeed arise if the Presiding Judge's above

statement could be understood as an indication that the Court would not proceed

with the manslaughter case".(1)

146. The Commission has therefore considered the Government's subsidiary

plea to take evidence concerning the alleged statement of the Presiding Judge

and has accordingly invited the Government to specify in what way an

investigation of this matter could be carried out. In this context, the

Commission did not find it appropriate to hear the Presiding Judge himself as,

in his official statement (dienstliche Erklärung) of 19 June 1981, he had

declared to have "no recollection of details of his conversations with defence

counsel in the corridor".

147. In responding to this invitation by the Commission the Government,

while maintaining their subsidiary request for an investigation, have not made

any specific proposals concerning the form it should take. Such proposals were

not made by the applicant either, who merely suggested that the Commission

should adopt the same approach as the national courts, namely to proceed on the

assumption that his allegations were true. Contrary to the Government, the

applicant seems to regard this assumption to be not merely of a hypothetical

nature, but to corroborate the truth of his allegations.

148. In the light of the position taken by the parties the Commission has

come to the conclusion that an investigation would not produce fresh evidence.

The Commission must therefore assess the facts on the basis of the material

before it.

---------- (1) The term "manslaughter", used in the admissibility decision,

has in the present Report been replaced by the term "homicide".

149. The Commission considers the following facts to be established:

- the fact that in the domestic proceedings the applicant

consistently maintained his allegations concerning the contents and

circumstances of the Presiding Judge's alleged statement;

- the fact that in his official declaration of 19 June 1981

the Presiding Judge himself did not contest that he had held private

conversations with the applicant's defence counsel outside the

courtroom and that he stated to have no recollection of details of

these conversations;

- the fact that the competent authorities, including the

Federal Attorney and the Federal Constitutional Court, proceeded on

the assumption that the applicant's allegations were true, and the

further fact that the Federal Constitutional Court accepted the

possibility that these allegations "might be regarded as being

corroborated by the official statement of the Presiding Judge";

- the fact that the competent authorities did not find it

necessary to take evidence on the alleged statement of the Presiding

Judge because they considered that statement as legally irrelevant;

- the fact that in the applicant's case the Federal

Constitutional Court considered that statements of the Presiding

Judge made on behalf of the court as a whole could "possibly"

("allenfalls") produce such effects even if they were made out of

court, provided that they were brought to the attention of all

parties concerned;

- the fact that the Federal Constitutional Court discussed

the possible disciplinary consequences of unauthorised statements of

the Presiding Judge, and the fact that no disciplinary action was

taken against the Presiding Judge in the present case concerning his

alleged statement.

150. On the basis of these facts the Commission finds that there has indeed

been a conversation between the Presiding Judge and the applicant's defence

counsel which referred to the intimation given by the Court at the trial that a

conviction for grievous bodily harm was possible. The Commission does not find

it established that this conversation actually took the form alleged by the

applicant. However, it cannot be excluded that this was the case, given the

fact that the Presiding Judge did not make a protest against the allegation

that the statement had been made (which could have entailed disciplinary

consequences for him), but only stated that he could not recall details of

out-of-court conversations with defence counsel. The fact that no disciplinary

action was actually taken is not conclusive in this respect. It can be

explained by the consideration that the alleged statement was in any event

regarded as irrelevant, and also by the difficulties of proof. Like the

Federal Constitutional Court, the Commission therefore considers that the

reaction of the Presiding Judge tends to confirm the correctness of the

applicant's allegation. That statements of this kind are not wholly unusual is

also shown by the case which the Federal Court of Justice had to decide in 1972

(cf. para. 123 above).

151. However, even if the Presiding Judge's statement was made as alleged,

it must have been clear to the applicant's defence counsel, having regard to

the established court practice in the Federal Republic of Germany, that he

could rely on this statement only if two conditions were met:

- the statement must have expressed the views of the Court as

a whole, and

- the views of the Court must have been brought to the

attention of the parties.

152. As observed by the Federal Constitutional Court (see para. 114 above),

the Presiding Judge allegedly communicated the Criminal Chamber's provisional

assessment of the facts and the legal position, but did not clearly state that

he was empowered to do so by the Criminal Chamber. The Commission agrees that

the text of the alleged statement, as submitted by the applicant, taken

together with the circumstances in which it was allegedly made, does not allow

the conclusion that this was a communication or confirmation of the Court's

official views on the case. The alleged statement rather creates the

impression that the Presiding Judge expressed his own appreciation of the

Court's attitude. As there was at least room for doubt in this respect, the

applicant's defence counsel could reasonably be expected to seek a

clarification of this point.

153. Similarly, the applicant's defence counsel could not be sure on the

basis of the alleged statement and the circumstances in which it was made that

the prosecution and the victim were informed. It has not been shown that prior

to the decision in the applicant's case there existed a court practice which

recognised the validity of informal arrangements between the court and the

accused alone. The applicant has not cited any case in which an arrangement

between the court and the defence alone was regarded as binding. Therefore, if

the applicant in the present case sought to rely on the Presiding Judge's

alleged statement, he could be reasonably expected to ensure that the other

parties were also informed of its content. However, it appears that the other

parties were not informed by the Court of the Presiding Judge's alleged

statement to the applicant's defence counsel, and that the latter did nothing

to make them aware of this statement either.

154. The alleged statement of the Presiding Judge therefore did not,

according to the German law and practice, create a binding obligation on the

Court to give a new indication to the applicant under Section 265 of the Code

of Criminal Procedure if it wished to apply the homicide provision. The

Commission has noted that the final decision as to which legal qualification is

to be applied to specific facts is always taken at the end of the trial during

the deliberations of the court. Section 265 only ensures that the accused is

informed about all possibilities, not about which provision is more likely to

be applied.

155. However, even if there was no such legal obligation of the Court

resulting from the alleged statement of the Presiding Judge as such, it could

still be unfair to leave the defence in error about the actual intentions of

the Court if such an error, whether based on the alleged statement of the

Presiding Judge or on any other grounds, was manifest from the pleadings of the

defence and could be clearly perceived by the Court. The Commission has

therefore sought to obtain clarification from the parties as to what was

actually pleaded before the Court and what would have been the defence if the

applicant had not assumed that his conviction would only be based on the

offence of grievous bodily harm.

156. From the arguments submitted in this respect, it does not appear that

the Court could have been aware of an error of the defence as to the legal

basis of the case. It could not be deduced from the applicant's silence that

he believed he would be convicted of the lesser charge of grievous bodily harm.

The defence arguments submitted by counsel appear to have concentrated on

factual circumstances and the plea that the offence of drunkenness should also

be considered. From a legal point of view, nothing was actually submitted

which could not also be relevant in regard to the homicide charge.

157. In these circumstances, the Commission considers that the applicant

must have been aware that neither the Presiding Judge's statement as such, nor

the manner in which his defence was actually conducted because of this alleged

statement, justified a legitimate expectation on his part that the homicide

charge would not be applied by the Court, which, as he knew, could give its

final decision only as a result of its deliberations following the trial.

C. Conclusion

158. The Commission therefore concludes by ten votes to two that there has

been no breach of Article 6 para. 1 (Art. 6-1) of the Convention in the present

case.

Secretary to the Commission Acting President of the Commission

(H.C. KRÜGER) (E. BUSUTTIL)

&_Individual opinion of MM. Weitzel, Soyer,

Schermers and Danelius and Mrs. Thune&S

Although we agree with the majority of the Commission in

finding that Article 6 para. 1 of the Convention has not been violated

in the present case, we have arrived at this conclusion on different

grounds.

The applicant, who was convicted of attempted homicide

(versuchter Totschlag), alleges that he did not have a fair trial,

since he had been misled by the Presiding Judge of the Regional Court

to believe that the Court would only proceed on the basis of the

alternative, and less serious, charge of causing bodily harm (Körper-

verletzung). The applicant refers in this regard to a conversation in

the corridor outside the court room between his defence counsel and

the Presiding Judge. He submits that in the course of this

conversation the Presiding Judge told the defence counsel that he

could assume that the Court would actually proceed on the basis of the

charge of causing bodily harm, and that, if the position changed in

this regard, the Presiding Judge would inform the applicant's counsel

in good time.

In considering the fairness of the trial, we find it to be of

crucial importance whether or not such a statement was actually made

by the Presiding Judge.

In this regard, we first note that the respondent Government

contest that the conversation between the applicant's counsel and the

Presiding Judge took place at all or, at least, that it had the

content alleged by the applicant. We further note that the Presiding

Judge himself, in an official statement of 19 June 1981, declared that

he had no recollection of any details of an out-of-court conversation

with the defence counsel.

According to Article 28 para. a of the Convention, it is the

task of the Commission, once a case has been declared admissible, to

undertake an examination of the petition and, if need be, an

investigation with a view to ascertaining the facts of the case.

However, in regard to the crucial matter of the alleged assurances

given by the Presiding Judge, we consider that a further investigation

could not be expected to clarify what actually happened. In

particular, a hearing of the Presiding Judge would not, in view of the

contents of his declaration of 19 June 1981, serve any useful purpose.

In the majority opinion, reference is made to a certain number

of facts which, in the majority's view, give some support to the

applicant's submission regarding the alleged conversation (paras. 149-150

of Opinion of the Commission). In our view, however, these facts are

not sufficient to justify the conclusion that the Presiding Judge did

in fact give the applicant's counsel the assurances which are the

very basis of the complaint in the present case.

Since this basic fact has not been established, and could not

be established even if a further investigation was made, we are unable

to conclude that Article 6 para. 1 of the Convention has been violated

in the present case.

&_Dissenting opinion of Sir Basil Hall&S

With regret I find myself unable to agree with the opinion of

the majority of the Commission that there has been no violation of

Article 6 para. 1 of the Convention.

In my view, the evidence before the Commission shows that, on

the balance of the probabilities, a statement was made by the Presiding

Judge to the effect alleged by the applicant. I accept that an

informal statement of this kind does not bind the Court. It may none

the less affect the presentation of the defendant's case. There is

much force in the argument of the applicant (para. 105 of the

Commission's Report) that if the defence had made submissions on the

charge of attempted homicide "it might have annoyed the Court and

might have given the impression that the defence itself considered

that homicide was the appropriate provision to be applied". To my

mind if, even informally, the presiding judge in a case tells defence

counsel that he can proceed on the assumption that there will be no

conviction for attempted homicide, but only grievous bodily harm, and

that counsel will be told if there is any change in the court's view,

the interests of the accused person would ordinarily require that

defending counsel will present the case for the defence in accordance

with the intimation of the presiding judge.

I do not regard it as significant that nothing in the

proceedings before the Court gave rise to the expectation that there

would not be a conviction on the attempted homicide charge. It is of

equal importance that, as I understand what happened at the hearing,

nothing in the proceedings indicated that the Court were contemplating

a conviction on that charge. In this connection I note that the

prosecution invited the Court to convict on the alternative lesser

offence.

My conclusion is that the statement made by the Presiding Judge

would have affected defence counsel's conduct of the defence, that

fairness demanded that it should have been made clear to him that the

Court were, notwithstanding that statement, still considering whether

the applicant should be found guilty on the charge of attempted

homicide so that he might if he thought fit make submissions on that

particular charge, and that since this did not happen the applicant

did not receive a fair hearing.

&_APPENDIX I&S

HISTORY OF PROCEEDINGS BEFORE THE COMMISSION

Date Item

______________________________________________________________________

7 June 1982 Introduction of the application

16 July 1982 Registration of the application

A. Examination of the admissibility&S

14 May 1984 Commission's decision to give notice

of the application to the respondent

Government (Rule 42 para. 2 (b) of the

Rules of Procedure)

7 August 1984 Respondent Government's observations

on the admissibility and merits of the

application

13 September 1984 Applicant's observations in reply on

the admissibility and merits of the

application

6 March 1985 Commission's decision to request

additional information from the

applicant

28 March 1985 Applicant submits information as

requested

18 April 1985 Government's comments

8 May 1985 Commission's decision to hold an

oral hearing with the parties on

the admissibility and merits.

9 December 1985 Hearing on the admissibility and

merits. Commission's decision to

declare the application admissible.

7 March 1986 Commission approves text of decision

on admissibility

B. Examination of the merits&S

Date Item

______________________________________________________________________

24 April 1986 Government's observations on the merits

and request for an investigation

27 June 1986 Applicant's observations on the merits

14 July 1986 Commission invites the Government to

propose methods of investigation

4 September 1986 Government's reply

11 October 1986 Commission's decision not to hold an

investigation

6 October 1987 Commission's deliberations, vote

pursuant to Rule 52 (2) of the

Commission's Rules of Procedure, and

adoption of the Report, provided for

in Article 31 of the Convention

Menu

COLAK v. GERMANY

COLAK v. GERMANY

LEXI