THE FACTS

Whereas the facts presented by the applicant may be summarised as

follows:

The applicant is a German citizen, born in 1937 and at present detained

in B. prison. He is represented by Mr. G., a lawyer practising in

Munich and acting under a power-of-attorney dated 5 June 1969.

From the statement of his lawyer and several documents submitted, it

appears that on .. August 1969 the applicant was convicted by the

Regional Court (Landgericht) at H. of aggravated theft (schwerer

Diebstahl) and of being in possession of tools for use in connection

with stealing (Diebeswerkzeug). He was sentenced to one year and eight

months' imprisonment (Zuchthaus) with additional preventive detention

(Sicherungsverwahrung) as being a dangerous habitual criminal

(gefährlicher Gewohnheitsverbrecher). The applicant lodged an appeal

(Revision) with the Federal Court (Bundesgerichtshof) which on ..

January 1969 set aside the said decision as far as the sentence was

concerned and referred the case to another chamber of the Regional

Court at H. for a new trial. The applicant was anew convicted and

sentenced to the same term of imprisonment but not to additional

preventive detention.

This decision was allegedly final since a new appeal (Revision) against

that part of the decision which was not set aside by the Federal Court,

did not offer any prospect of success. Besides, according to the

applicant's lawyer, all available domestic remedies have been exhausted

since, although theoretically a constitutional appeal

(Verfassungsbeschwerde) to the Federal Constitutional Court

(Bundesverfassungsgericht) was possible, nonetheless such an appeal

should have been based on the provisions of the Human Rights Convention

which cannot, according to German law, be invoked by means of a

constitutional appeal.

According to the applicant's lawyer the following violations of the

Convention, in particular Article 6, took place:

a. The applicant has not been tried by a tribunal established by law,

because although the applicant's counsel has lodged applications with

the court for further evidence, these have not been treated as formal

applications due to the fact that the court has been absent-minded

during the trial and they have not been put in the record. The fact

that these were formal applications is allegedly proven by the sworn

statement made by the then lawyer of the applicant. He further submits

that, according to German law, a court is not considered to be

established by law (gesetzliches Gericht) if it does not devote the

necessary attention to the pleading of the counsel for the defence and

shows absence of mind.

b. The alleged court's attitude, as explained above, constitutes also

a violation of the presumption of innocence, Article 6, paragraph (2),

of the Convention since it showed that the court had already decided

on the applicant's guilt before this had been proven.

c. The applicant, as allegedly shown by the above submissions, was not

granted a fair hearing. Moreover, because the clerk of the court

(Protokollführer) was not a judge and had not a judge's knowledge and

experience, the verbatim record, on the basis of which the appellant

had to prove his allegations before the Federal Court, has not been

completed. This is due to the fact that it is always in the absolute

discretion of the clerk of the court whether or not to put in the

record the counsel's application for further evidence since the clerk

himself decides what is essential for the record. Thus the applicant

was deprived of an important means of evidence by the action of a

person not vested with the authority of a judge. This, allegedly,

constitutes an unlawful limitation of the applicant's right to a fair

hearing.

d. According to his further submissions, the applicant's right to have

witnesses examined on his behalf under the same conditions as witnesses

against him has been also violated in that, although his counsel

applied for an inspection of the road where the applicant was arrested

and for tracing of witnesses who saw the applicant in a bar the evening

before his arrest, the court did not take these applications into

account and did not decide on them.

e. The Court found against the applicant without adjourning the trial

in order to give him the opportunity to prepare adequately his defence

by bringing further evidence. In particular, it found that:

1. the applicant was in possession of matches which he could have only

had if he had committed the theft;

2. the applicant stated falsely that he bought a certain postcard with

a Black Forest landscape at Frankfurt station;

3. it was the applicant's practice to break automobile windows,

although the Court had knowledge of the applicant's previous

convictions. This was not the practice of the applicant and, according

to criminological opinion, criminals do not change their methods;

4. the purpose of the tools found in possession of the applicant was

only for breaking into houses or cars and not, as the applicant stated,

for use after he found employment as a technician as, according to

common experience, am employer puts tools at the disposal of his

employees.

The applicant alleges violations of Article 6 (1), (2), (3) (b) and (d)

of the Convention.

THE LAW

Whereas, in regard to the applicant's complaints that the Court was

absent-minded during the proceedings against him and that consequently

he was not granted a trial by a tribunal established by law nor a fair

hearing; that, furthermore, he did not have adequate facilities for the

preparation of his defence, it is to be observed that, under Article

26 (Art. 26) of the Convention, 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 mere fact that the applicant has, in pursuance of Article

26 (Art. 26) of the Convention submitted his case to the various

competent courts does not constitute compliance with this rule; whereas

it is also required that any complaint made before the Commission and

relating to lower courts and authorities should have been substantially

raised before the competent higher court or authorities; whereas in

this respect the Commission refers to its constant jurisprudence, e.g.

decisions Nos. 263/57 (X. v. Federal Republic of Germany - Yearbook,

Vol. I, p. 147), 788/60 (Austria v. Italy, ibid. IV, p. 116) and

1103/61 (X. v. Belgium - ibid. V, p. 168);

Whereas in the present case the applicant had the possibility to lodge

a constitutional appeal with the Federal Constitutional Court

(Bundesverfassungsgericht) and to invoke his above-mentioned rights

and, in this connection, to rely upon the relevant provisions in the

Basic Law (Grundgesetz);

Whereas it appears that he has not availed himself of this possibility;

Whereas, furthermore, 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, such as a legal or factual

impossibility or a justified impediment which might have absolved the

applicant, according to the generally recognised rules of international

law from raising his complaints before the Federal Constitutional

Court;

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;

Whereas, in regard to the applicant's complaint that he was not given

the opportunity to call further witnesses on his behalf, it is to be

observed that the Commission has consistently held that the provision

of Article 6 (3) (d) (Art. 6-3-d) of the Convention does not give an

accused person a general right to call all witnesses on his behalf;

Whereas, in particular, a court is justified in refusing to summon

witnesses when it considers that their statements could not be of any

relevance in the case (see, for instance, Applications Nos. 617/59,

Yearbook, Vol. III, pp. 390-392, 2383/64, Collection of Decisions, Vol.

XXIII, p. 30, 4042/69, X. v. United Kingdom);

Whereas the applicant alleges that although his counsel lodged

applications with the court for further evidence to be heard, these

have not been treated as formal applications due to the fact that the

court has been absent-minded during the trial; whereas, moreover, he

alleges that these applications have not been put in the record;

Whereas the Commission finds that in the present case there has been

no violation of the applicant's right "to obtain the attendance and

examination of witnesses on his behalf under the same conditions as

witnesses against him" as guaranteed by Article 6 (3) (d) (Art. 6-3-d)

of the Convention;

Whereas it follows that this part of the application is manifestly

ill-founded within the meaning of Article 27, paragraph (2)

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

Whereas, in regard to the applicant's complaint that Article 6,

paragraph (2) (Art. 6-2), of the Convention was violated in his case,

it is to be observed that according to this provision "everyone charged

with a criminal offense shall be presumed innocent until proved guilty

according to law"; whereas, according to the Commission's constant

jurisprudence the said provision requires that court judges, in

fulfilling their duties, should not start with the conviction or the

assumption that the accused committed the act with which he is charged

and, in other words, that the onus to prove guilt falls upon the

prosecution, and any doubt is to the benefit of the accused;

Whereas, moreover, the judges must permit the latter to produce

evidence in rebuttal and, in their judgment, they can find him guilty

only on the basis of direct or indirect evidence sufficiently strong

in the eyes of the law to establish his guilt (see Application No.

788/60, Report of the Commission, pp. 201-208);

Whereas the Commission has considered in this context the applicant's

allegations concerning his application to the Court to hear certain

witnesses;

Whereas the Commission has already found that the Court's refusal to

hear the witnesses whom the applicant asked to be called was not

inconsistent with the requirements of Article 6 (3) (d) (Art. 6-3-d)

of the Convention;

Whereas for the same reasons the Commission now finds that the refusal

by the court to treat his applications to call certain witnesses as

formal applications and its consequent refusal to hear the witnesses

concerned do not constitute a violation of Article 6 (2) (Art. 6-2),

of the Convention in its sense described above; whereas it follows that

this part of the application is manifestly ill-founded within the

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

Now therefore the Commission DECLARES THIS APPLICATION INADMISSIBLE