THE FACTS

Whereas the facts presented by the applicant may be summarised as

follows:

The applicant is a German citizen, born in 1929 and at present detained

in prison at K.. In the proceedings before the Commission the applicant

is represented by Mr. G., a lawyer practising in Munich, who acts under

a power-of-attorney of 3 June 1969.

The application deals with the question whether or not the applicant,

who had been convicted of homosexuality on several charges, has had a

fair trial and whether or not the courts have given the applicant the

opportunity to have all the witnesses on his behalf examined.

On .. November 1967 the Regional Court (Landgericht) of F. in Germany

convicted the applicant of homosexuality with dependent persons and of

seduction of minors to homosexuality (Unzucht mit Abhängigen mit

Verführung männlicher Minderjähriger zur gleichgeschlechtlichen

Unzucht). The applicant was given an overall sentence of 18 months'

imprisonment. The Court found the applicant guilty of having had sexual

relations with two boys, then aged 15 and 14 years respectively, who

lived in the boarding school of which the applicant was the director.

The Court based its judgment mainly on the evidence given by the

victims of the applicant. The Court was of the opinion that both boys

were credible and that their statements were most likely true.

The applicant denied any guilt and alleged that one boy, O., acted in

a feeling of vengeance against him, since other persons had turned the

boy against him. He also stated that he knew that the boy had been a

male prostitute for some time. As regards the other boy, T., the

applicant maintained that he had been mentally unstable and that he had

on several occasions expressed his intention to commit suicide; thus

the applicant was of the opinion that T. was also not credible.

The Court rejected these allegations in its judgment. It stated that

O. had not acted in revenge; this the Court concluded from the attitude

of O. showed when he was first examined by the police. The Court

further held that O.'s credibility was beyond doubt. It had heard in

this respect the employer of O. who confirmed that O. was not a liar.

Finally it was stated that O. had not had any homosexual experiences

before.

With respect to the other witness T., the Court declared that this boy

was also fully worthy of belief, since his statements made before the

police and at the trial were in no way contradictory. The Court also

heard several witnesses in respect of the credibility of T. and it was

satisfied that this principal witness was also trustworthy. The Court

finally concluded that, under the circumstances given, it was not

necessary to ask for an expert opinion as to the credibility of the two

principal witnesses.

The applicant appealed against this decision to the Federal Court

(Bundesgerichtshof); the memorial stating the grounds for this appeal

(Revisionsbegründung) was filed with the Federal Court on 22 May 1968.

The applicant complained that the Regional Court failed to hear an

expert and to ask for a psychological expert opinion as to the

credibility of the two principal witnesses, despite the fact that it

was almost obvious that both suffered from serious psychic injuries

which were caused by the environment in which they were brought up. It

was also maintained that the statements of both the witnesses had often

been contradictory so that they were not really credible. The applicant

also indicted that the school of which he had been the director was an

institution for the education of boys who had difficulties in normal

schools. With respect to O. it was maintained that he had been very

uncertain of his statements when he was interrogated at the trial.

Without searching questions of the presiding judge the witness

certainly had not made the statements which incriminated the applicant.

Moreover, there was a difference between his statements given to the

police and those he gave at the trial. It was further indicated from

a letter written by O. to his mother, that he had often been in the

company of two men who had invited him for lunch and that he had

homosexual relations with another boy who had already been convicted

of homosexual offenses.

As regards the other witness, T., the applicant complained that this

boy should also be examined by an expert in order to establish whether

he was a witness worthy of belief.

The applicant also complains that important witnesses for his defence

have not been heard by the Court. The applicant had requested the Court

to hear Mr. V., who had been in the school of which the applicant was

a director, together with the two principal witnesses, O. and T.. It

was indicated that V. could state that he had never noticed that the

applicant had any particular relations with the two boys and that due

to the situation in the school and in the rooms where they lived, he

would certainly have recognised such relations, if existing. The Court

had refused to hear V. since O. and T. had already stated that they had

such relations with the applicant.

The applicant complained that other witnesses for his defence had not

been heard by the Court, in particular:

-  the mother of O. who could have given evidence as to the homosexual

relations which O. had before he went to the school of the applicant;

-  A Catholic monk, who was the director of a school in Austria, who

could have given evidence that O. had written to one of his pupils

stating that he would like to go back to the school again, if possible;

-  two other persons who could have given evidence that the foster

mother of T., who had been heard in the trial, was not credible.

By judgment of .. January 1969 the Federal Court dismissed the

applicant's appeal. The Court held that it was not indispensable that

the Regional Court need have asked for expert opinions on the

credibility of the two victims, since the Court had enough experience

dealing with similar cases. The Court further held in this respect that

this was a question of the evaluation of the evidence and that this

could not be the substance of any appeal before it. As regards the

refusal of the Regional Court to hear V. as a witness for the

applicant's defence, the Court stated that the Regional Court had based

its decision on the assumption that V. had indeed never recognised any

relations between the applicant and his victims. Consequently it was

not necessary to hear this witness.

As regards the hearing of the mother of O. the Court held that it was

not important to hear her, since she could only give vague information

which would not have been valuable. The Court furthermore declared that

the two other persons could not have helped the applicant's defence,

since the credibility of the foster mother of T. did not play a role

in the court proceedings.

The applicant now complains that his rights under Article 6 (3) (d) of

the Convention were violated. He alleges that he was not given a fair

trial and that he could not obtain the attendance and examination of

witnesses of his behalf.

The applicant points out in this respect that it was indispensable for

the Courts to hear experts on the credibility of the two principal

witnesses. He indicates in this respect, that the Commission in

previous cases has held already that the right to hear experts for the

defence of the applicant was covered by Article 6 (3) (d).

The applicant furthermore complains that several other witnesses for

his defence were not heard and that this violated the above provision

of the Convention.

The applicant, finally, indicates that he has exhausted all the

domestic remedies available under German law. He alleges that a

constitutional appeal to the Federal Constitutional Court

(Bundesverfassungsgericht) was not effective, since such appeals cannot

be based on the European Convention on Human Rights, which has the rank

of an ordinary law only and does not form part of the German Basic Law.

THE LAW

Whereas the applicant complains that he was denied a fair hearing since

the German Courts refused to hear several witnesses on his behalf or

to hear experts on the credibility of the principal witnesses called

by the prosecution and consequently violated Article 6 (3)(d)

(Art. 6-3-d) of the Convention; whereas the said Article provides that

"Everyone charged with a criminal offense has the following minimum

rights: ... (d) to examine or have examined witnesses against him and

to obtain the attendance and examination of witnesses on his behalf

under the same conditions as witnesses against him"; whereas the

Commission has also considered his complaint under Article 6, paragraph

(1) (Art. 6-1), of the Convention which guarantees a "fair hearing" to

everyone;

Whereas, however, the question first arises whether the applicant has

exhausted the domestic remedies available to him under German law and

thus complied with Article 26 (Art. 26) of the Convention which

provides that the Commission may only deal with a matter after all

domestic remedies have been exhausted according to the generally

recognised rules of international law; whereas the applicant did not

avail himself of the possibility of appealing to the Federal

Constitutional Court (Bundesverfassungsgericht) against the said

decision of the Federal Court of 14 January 1969; whereas, however, he

alleges in this respect that such appeal would not have been effective

since constitutional appeals cannot be based on the European Convention

on Human Rights, but only on the Basic Law (Grundgesetz) of the Federal

Republic;

Whereas, in this respect, the Commission has observed that, according

to Article 103 (1) of the said Basic Law, everyone has the right to a

hearing "in accordance with the law" (Recht auf rechtliches Gehör);

Whereas, indeed, there is a controversy in German legal writing and

practice as to whether a constitutional appeal concerning the hearing

of witnesses and experts on an appellants behalf, as in the present

case, might be considered under the said Article; whereas, however, the

Commission finds that, even assuming that the applicant has exhausted

the domestic remedies, his above-mentioned complaints are manifestly

ill-founded; whereas the said Article 6 (3)(d) (Art. 6-3-d) does not

give the accused person a right to call witnesses without restriction;

whereas in this respect the Commission refers to its decisions on the

admissibility of Applications No. 788/60 (Austria v. Italy), Yearbook,

Vol. III, p. 370, and No. 1134/6?, Yearbook, Vol. IV, p. 382 and

3848/68 of 15 December 1969; whereas it is in principle within the

discretionary power of the national courts of the Contracting states

to establish whether the hearing of a witness for the defence is likely

to be of assistance in discovering the truth and, if not, decide

against calling such witness; whereas the Commission notes the reasons

why the German Courts considered that the evidence of the witnesses

requested by the applicant would have been irrelevant and finds that

the Courts have not thereby acted inconsistently with the provisions

of Article 6, paragraphs (1) and (3) (d) (Art. 6-1, 6-3-d),

Whereas it follows that the application must be rejected in accordance

with Article 27, paragraph (2) (Art. 27-2), of the Convention;

Now therefore the Commission DECLARES THIS APPLICATION INADMISSIBLE