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X. v. THE FEDERAL REPUBLIC OF GERMANY

Doc ref: 4046/69 • ECHR ID: 001-3092

Document date: July 14, 1970

Inbound citations: 0
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Cited paragraphs: 0
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Outbound citations: 0

X. v. THE FEDERAL REPUBLIC OF GERMANY

Doc ref: 4046/69 • ECHR ID: 001-3092

Document date: July 14, 1970

Cited paragraphs only

THE FACTS

Whereas the facts presented by the applicant may be summarised as

follows:

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

in prison in B..

By decision of .. July 1968, the Regional Court (Landgericht) of B.

convicted the applicant of joint murder and attempted joint robbery

which was followed by the death of the victim (gemeinschaftlicher Mord

und versuchter gemeinschaftlicher Raub mit Todesfolge). The applicant

was given a life sentence. The Court found the applicant guilty of

having killed on 24 May 1964 a money changer in his chalet near Cannes.

Since the authors of this crime feared that the police had immediately

discovered their crime they left immediately after the murder without

having robbed their victim and crossed the border into Spain.

It appears that the applicant and one of his accomplices were convicted

on .. December 1965 by the Grand Jury of the Département Alpes

Maritimes at G., France, after proceedings in absentia; apparently the

applicant, who then lived in Columbia, was sentenced to death. At the

trial in B. the applicant stated that he had not killed the

money-changer, but that he had only protected the actual murderer,

namely his accomplice Z.. He also alleged that he had acted under the

influence of alcohol and that he was consequently not responsible for

what had happened. The applicant was legally represented in the

proceedings at the Regional Court by Mr. Sch., a lawyer practising in

B., who had been allotted to him as an ex officio counsel under the

legal aid system.

The applicant subsequently lodged an appeal (Revision) to the Federal

Court (Bundesgerichtshof) and it appears that he was still assisted by

the above counsel. The applicant complains that the Regional Court had

been biased against him and that too much importance had been given to

the statements of his co-accused Z.. He also suggests that the

President of the jury and the Public Prosecutor had incited the above

Z. to give evidence against him. The applicant maintains in this

respect that Z., who had already been given a 20 years' sentence

before, had acted in a spirit of vengeance since his conviction had

been the result of previous statements made by the applicant.

Immediately after his being convicted at first instance the applicant

wrote twice to his counsel and asked him to visit him in prison in

order to discuss the grounds of his appeal which, under German law,

have to be given by the counsel. Apparently he got no reply, but the

counsel paid him a five minutes visit in prison several months later.

He promised the applicant that he would see him again as soon as the

Federal Attorney General (Generalbundesanwalt) had filed his memorial

on his appeal. The applicant, however, has never seen his counsel again

and it appears that the latter also failed to reply in time to the

Federal Attorney General's memorial.

By decision (Beschluss) of .. October 1968, the Federal Court dismissed

the applicant's appeal as being manifestly ill-founded under Article

349 (2) of the German Code of Penal Procedure (Strafprozessordnung).

The applicant subsequently complained to the Federal Court, stating

that he has not been represented in the proceedings before that Court

since his counsel had continuously neglected his duties. The President

of the Senate which had decided the applicant's appeal replied on 20

February 1969.

He stated that the applicant's allegations were untrue since his

counsel had acted for him in the proceedings before the Federal Court.

He admitted, however, that the counsel's reply to the Federal Attorney

General's memorial of 23 September 1968 was filed after the Court had

taken its decision. The President further stated that no appeal laid

(weder eine Beschwerde, noch eine erneute Revision) against the Court's

decision of .. October 1969.

The applicant subsequently instituted proceedings in order to obtain

a re-trial, but this was apparently not granted.

The applicant now complains:

- that the Regional Court was biased against him;

- that he was not given adequate legal assistance throughout the

appeal proceedings;

- that he had no effective remedy against the negligence of his ex

officio counsel.

The applicant alleges violations of Articles 6 and 13 of the

Convention.

THE LAW

Whereas the applicant complains that the German Courts were biased

against him since they did not ensure that his ex officio counsel

adequately represented him throughout the appeal proceedings;

Whereas, he alleges in this respect that his counsel had filed his

reply to the Federal Attorney General's memorial after the Federal

Court, on .. October 1969 had taken its decision; whereas the

Commission finds that this procedure was most unsatisfactory having

regard to the terms of Article 6 (3)(c) (Art. 6-3-c) of the Convention

which provides that: "Everyone charged with a criminal offense has the

following minimum rights: ... (c) to defend himself in person or

through legal assistance of his own choosing or, if he has not

sufficient means to pay for legal assistance, to be given it free when

the interests of justice so require";

Whereas, however, the question arises whether the applicant has

exhausted the domestic remedies available to him under German law and

thereby 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;

Whereas, according to Article 103 (1) of the Basic Law (Grundgesetz),

everyone has the right to a hearing "in accordance with the law" (Recht

auf rechtliches Gehör);

Whereas the Commission is satisfied that the present complaint of the

applicant might have been considered by the Federal Constitutional

Court under the above Article of the Basic Law;

Whereas, therefore, he has not exhausted the remedies available to him

under German law;

Whereas, moreover, an examination of the case as it has been submitted,

including an examination made ex officio, does not disclose the

existence of any special circumstances which might have absolved the

applicant, according to the generally recognised rules of international

law, from exhausting the domestic remedies at his disposal; whereas,

therefore, the condition as to the exhaustion of domestic remedies laid

down in Articles 26 and 27 (3) (Art. 26, 27-3), of the Convention has

not been complied with by the applicant;

Now therefore the Commission DECLARES THIS APPLICATION INADMISSIBLE

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