THE FACTS

Whereas the facts presented by the applicant may be summarised as

follows:

The applicant is a German citizen, born in 1933 and at present detained

in prison at W.. The applicant, who has previously been convicted of

rape and robbery, complains that the German courts committed procedural

errors when convicting him of rape on .. May 1968.

On 19 August 1967, the applicant was arrested by the police of C.,

since a 22 year old woman, H., had accused him of having raped her the

night before. On 20 August the District Court (Amtsgericht) of O.

issued a warrant for the applicant's arrest on suspicion of rape. On

7 November 1967 the Public Prosecutor filed the indictment against the

applicant with the Regional Court (Landgericht) of D.; the applicant

was indicted for the crime of rape. The indictment was subsequently

served on the applicant and on his ex officio counsel, who had been

appointed under the legal aid system. The applicant did not object to

the indictment and the trial proceedings before the court consequently

started on 12 December 1967.

On 13 December 1967, the applicant's counsel requested that further

evidence should be taken before the applicant's trial. Applicant's

counsel asked in particular

-  that the panties worn by the applicant's victim and which had been

seized by the police, should be examined in a medical forensic

laboratory, since an analysis of spots of sperm and of pubic hair

possibly found could prove the applicant's innocence;

-  that his seventeen year old nephew should be heard as a witness,

since he could corroborate the applicant's statement that he had

returned home on the night concerned at about 3 a.m., that was only 20

minutes after the rape had taken place and that it was therefore

impossible that the applicant was the author, since his home was rather

far away from the scene of the crime;

-  that a waiter of the public house where the applicant had drunk late

at night should be heard as he could name two women who had been in the

company of the applicant and who could give evidence that the applicant

was drunk when leaving the public house.

On 5 January 1968, counsel insisted on the examination of the

above-mentioned parties. He referred in this context to commentaries

on this subject and maintained the view that this examination could

give suitable results, in particular as to the applicant's identity

with the offender. Counsel further suggested that it would be

appropriate to obtain an opinion on the credibility of the victim since

her statements had been contradictory and since her attitude had been

strange. He also informed the Court as to the address of the

applicant's nephew and requested that inquiries be made with the staff

of the public house concerned in order to get hold of the addresses of

the two women mentioned above. These inquiries were made and the waiter

who had been on duty was summoned for the trial as well as the

applicant's nephew.

The applicant's trial opened on 17 May 1968. Apparently the applicant's

nephew could not appear in Court since he was ill and the applicant

waived examination of this witness. The applicant indicates, however,

that he did not voluntarily waive the examination of this witness, but

only because the latter had been ill. The above-mentioned waiter, when

heard as a witness, stated that he did not know the applicant at all.

The applicant alleges in this respect that this waiter was not the one

who had seen him on 19 August 1967 and that this was consequently not

the right witness.

The applicant's counsel, during the trial, requested again that

additional evidence should be taken by the Court, namely that the scene

of the crime should be visited since it appeared impossible that the

applicant had raped H. on a row of garbage cans as it had been

described by her to the police inspector. He also asked for the

forensic examination of her panties and that an expert opinion should

be obtained on H.'s credibility, and that a certain Mr. Z. should be

heard, since he could prove that the applicant left the bus near his

home at 2.30 a.m. and that he could consequently not be the man who had

raped H.. He indicated that the address of this witness should be found

by means of further investigations.

On .. May 1968 the Regional Court convicted the applicant of rape and

gave him three years sentence and ordered his subsequent preventive

detention. With regard to counsel's requests as regards the taking of

further evidence the Court stated that a visit to the scene was not

necessary since the statement of H. said she had been raped lying on

the garbage cans proved as a simple misunderstanding. The Court also

refused the examination of the victim's panties since this would not

prove that the accused could not be the offender, but at most that she

also had intercourse with another man. The Court furthermore did not

find it necessary to hear an expert on the victim's credibility since

it had no doubt thereupon.

The applicant lodged an appeal (Revision) against this decision with

the Federal Court (Bundesgerichtshof). In the memorial stating the

reasons for the appeal the applicant's lawyer alleged that the Regional

Court had wrongly refused to take the above evidence. In particular,

he pointed out that the victim of the crime had stated at the trial

that she had put on the panties concerned on the morning of 18 August

and that she had no sexual intercourse until she had been raped.

Consequently the examination of those panties would have been an

important means of proof of the applicant's innocence. The lawyer also

pointed out that the trial had shown that no credibility should be

given to the victim's statements and that it was indispensable to

obtain an expert's opinion on this point. Finally, it was stated that

the above-mentioned Mr. Z. had not been heard of, since the Court could

not obtain his address; the applicant's lawyer, however, stated that

the Court has by negligence not found the applicant's address since it

had not made enough inquiries.

On 7 February 1969 the Federal Attorney General (Generalbundesanwalt)

gave his opinion on the applicant's appeal and requested the Federal

Court to dismiss it by decision (Beschluss) under Article 349 (2) of

the Code of Criminal Procedure. He stated that the examination of the

victim's panties had not been essential and that the Court had been

capable, without expert opinion, to determine the victim's credibility.

As to the hearing of Mr. Z. the Attorney General referred to reasons

set forth in the Regional Court's judgment.

In his reply, the applicant's lawyer on 10 February 1969 emphasised

again that the above-mentioned supplementary evidence would be

essential.

On .. March 1969 the Federal Court dismissed the applicant's appeal by

decision (Beschluss) under Article 349 (2) (3) of the German Code of

Criminal Procedure for being ill-founded. The Federal Court gave no

reasons for this decision.

In the proceedings before the Commission, the applicant complains that

he was innocent, and that the courts did not hear the witnesses for his

defence, and that the courts based their decisions on incomplete

evidence.

Proceedings before the Commission

A group of three members of the Commission examined the question of

admissibility of the application on 29 January 1970 and reported

unanimously that it appeared to be admissible. The application was

consequently communicated to the respondent Government for its

observations in writing on the admissibility of the application, in

accordance with Rule 45 (2) of the Commission's Rules of Procedure.

The Government submitted its observations on 20 April 1970. The

applicant 's observations in reply were received on 5 May 1970.

Submissions of the Parties

The respondent Government maintains that the applicant's allegation

that the Court did not hear the witnesses for his defence is wrong. At

the trial on 17 May 1970, the applicant waived examination of his

nephew. The other witnesses mentioned by the applicant could not be

traced since their domiciles were not known to the Court and since

investigations as to their abodes made by the Court had no result.

As concerns the applicant's contention that the Court failed to have

a forensic examination made of the victim's panties the Federal

Government maintains that Article 6 (3) (d) of the Convention merely

guarantees an accused person's right to obtain the attendance and

examination of witnesses on his behalf. It must be concluded therefrom

that an accused person's right of adduction of other evidence is not

included in the human rights expressly guaranteed by the Convention.

Moreover, it appears from the observations made in the judgment of the

Regional Court of D. .. May 1968, that the question whether an

examination of the panties was necessary has been carefully considered.

As a result of such careful consideration the Court held that it should

abstain from having the panties examined, and it is exactly this

careful consideration that cannot be regarded as a denial of the

general right to be entitled to a fair hearing. Besides, the Commission

has repeatedly held that it cannot in the manner of a superior court

review any errors of fact or of law incurred in the national courts,

provided that such errors do not in themselves constitute violations

of the Convention.

In view of all this, the Federal Government is of the opinion that the

application is manifestly ill-founded and, therefore, requests that it

be considered inadmissible.

THE LAW

Whereas, in regard to the applicant's complaint that the German Courts

wrongly convicted him of rape an examination of the case as it has been

submitted, including an examination made ex officio, does not disclose

any appearance of a violation of the rights and freedoms set forth in

the Convention; whereas, in respect of the judicial decisions

complained of, the Commission has frequently stated that, in accordance

with Article 19 (Art. 19) of the Convention, its only task is to ensure

the observance of the obligations undertaken by the Parties in the

Convention; whereas, in particular, it is not competent to deal with

an application alleging that errors of law or fact have been committed

by domestic courts, except where the Commission considers that such

errors might have involved a possible violation of any of the rights

and freedoms limitatively listed in the Convention; whereas, in this

respect, the Commission refers to its decisions Nos. 458/59 (X. v.

Belgium - Yearbook, Vol. III, p. 233) and 1140/61 (X. v. Austria -

Collection of Decisions, Vol. 8, p. 57); and whereas there is no

appearance of a violation in the proceedings complained of; whereas it

follows that this part of the application is manifestly ill-founded

within the meaning of Article 27, paragraph (2), of the Convention;

Whereas, the applicant further complains that the German Courts refused

to hear several witnesses on his behalf and to take additional

evidence, i.e. to have the panties of his victim examined by an expert;

Whereas the Commission has considered these complaints both under

Article 6, paragraph (1) (Art. 6-1), of the Convention which guarantees

to everyone a fair hearing and in the determination of a criminal

charge against him under Article 6 paragraph (3) (d) (Art. 6-3-d) which

guaranteed the right of a person charged with a criminal offence to

obtain the attendance and examination of witnesses on his behalf under

the same conditions as witnesses against him;

Whereas as regards the hearing of the witnesses, the Commission is

satisfied that the Regional Court made all possible efforts to hear the

witnesses requested by the applicant; whereas two of these witnesses

were in fact called and examined by the Court, while the applicant

himself waived the examination of a further witness who was ill and

unable to attend the trial; whereas as regards the remaining witness

Mr. Z., the Commission has noted that the latter was not summoned for

the sole reason that his whereabouts were unknown and, despite every

effort by the Court, could not be found out;

Whereas it is, in principle, on the responsibility of the accused

person to inform the trial court of the name and the address of the

witnesses for his defence; whereas the Commission refers in this

respect mutatis mutandis to its decisions on the admissibility of

Application No. 3566/68 (Collection of Decisions, Vol. 31, p. 34);

Whereas, moreover, the Commission finds that, regarding the proceedings

as a whole, the applicant has had a "fair trial" within the meaning of

Article 6 (Art. 6) of the Convention, and that no problem as regards

the taking of additional evidence arose;

Now therefore the Commission DECLARES THIS APPLICATION INADMISSIBLE