THE FACTS

Whereas the facts as presented by the applicant may be summarised as

follows:

The first applicant is a German citizen, born in 1911 and at present

living in B. (Netherlands).

The second applicant is a citizen of the United States of America, born

in 1941 and also resident at B.. He is the son-in-law of the first

applicant. The whole case has been presented to the Commission by the

second applicant who is acting for the first applicant under an

authority dated 25 October 1968.

1. Complaints relating to the first applicant

From statements and documents submitted, it appears that on .. November

1967 the first applicant was convicted by the Regional Court

(Landgericht) at A. for fraud (Betrug) in seven cases and sentenced to

23 months' imprisonment. It seems that the Regional Court found him

guilty on the ground that, as Head of a Trade Company, he had caused

damage to the property of banks and private persons by giving and

maintaining the impression that his company was still solvent when he

would have known it was going bankrupt.

The applicant appealed against this decision (Revision) to the Federal

Court (Bundesgerichtshof) which on 23 August 1968 dismissed his appeal

as being ill-founded.

On .. November 1968 he made a constitutional appeal

(Verfassungsbeschwerde) to the Federal Constitutional Court

(Bundesverfassungsgericht), submitting the grounds of his appeal in

English. By letter of 15 November 1968 a judge of the Federal

Constitutional Court informed him that the appeal would not be accepted

since it had not been made by a lawyer or a professor of law, since the

appeal had not been submitted in German, and it had been lodged out of

time.

On 23 September 1968 the applicant received notification to report to

prison (Strafantritt) on 30 September 1968.

Before the date he left Germany for the Netherlands.

The applicant states that he was wrongly convicted and sentenced and

that the Convention was violated by reason of the court proceedings

concerned. In this respect he gives the following explanations:

(i) He alleges that the Regional Court of A. had denied him adequate

facilities for the preparation of his defence in that it had failed to

give him access to the files, transcripts and written judgments of the

proceedings which were necessary for the preparation of his grounds of

appeal (Revisionsbegründung). These files were necessary for the

preparation of adequate and specific grounds of appeal since,

otherwise, his appeal would be rejected as being clearly ill-founded.

The right to submit to a higher court an accurate and comprehensive

appeal (Revision) in order to challenge the reasoning and the

appreciation of facts and evidence by the lower court was necessary for

the defence of a person who was charged with a criminal offence.

(ii) The applicant further alleges that the Regional Court of A.

together with the Federal Court denied him adequate time for the

preparation of his defence. According to the applicant, he was told

that the files concerning his case were away from A. during the period

from 7 April to 5 May 1968, without the Court's knowledge of their

location. He states that the time limit for submitting the grounds of

appeal expired on 7 May 1968. He was obliged himself to go to the

Registrar's Office of the Federal Court and quickly put together the

grounds of his appeal. Subsequently, on 7 August 1968 he received a

motion submitted to the Court of the Federal Attorney General

(Generalbundesanwalt) to reject the applicant's appeal as being

ill-founded. The applicant was invited to answer, if he wished, within

14 days, i.e. before 21 August 1968. But only two days later the

Federal Court convened and rejected his appeal, allegedly without ever

having examined the case-files.

The applicant is of the opinion that the combination of his above

complaints amounted to denying him any appeal at all.

(iii) The applicant also alleges that he did not have a fair hearing

by the A. Regional Court in that the presiding judge of the Court,

Judge S., intimidated him prior to the trial. He explains that Judge

S., through his lawyer, Mr. F., indicated that if the applicant would

not cause any difficulties, he would receive a fair trial ("Herr X.

möchte während des Prozesses bitte nicht ausfallend werden, so wird ihm

ein fairer Prozess geliefert"). This he considered as being bias on the

part of Judge S. who, in any event, had relied to a considerable extent

on certain press reports when arriving at his verdict of guilty.

Furthermore, the Court had suppressed evidence in the applicant's

favour prior to and during the trial since all the files concerning the

company concerned had been confiscated at the beginning of the

investigations. He explains that the prosecuting authority had used

several letters out of these files to show fraud committed against

third persons. However, other correspondence which would have benefited

the applicant's had been absent from the files by the time the trial

was opened.

Finally, according to the applicant, the Regional Court had conducted

the trial and arrived at its judgment in an unlawful and illogical

manner. For instance, during the hearing no mention had been made of

a written contract which existed between the company and a certain

third person, and Judge S. had neglected to ask for that contract which

could have cleared up the conflicting evidence with regard to the terms

of that agreement. Judge S. also failed to tell the full Court of

certain evidence which he had obtained from a witness by hearing him

at the witness's home, nor was any mention thereof made in the trial

transcript or the written judgment. According to the applicant, Judge

S. furthermore arrived at a verdict of guilty without having

established a beneficiary of the alleged fraud. The definition of fraud

required that a person should have been deceived, the deceipt inducing

such person to dispose of his possessions to the benefit of some other

person or persons or organisation. However, the Court had simply stated

in the written judgment that the applicant was an "expert in economics"

who knew that his company would collapse any day but who wished to

continue to receive his salary as long as possible.  The applicant was

in no case ever accused of having taken money for his own use or

benefit and neither he nor the company itself could be considered as

being the beneficiary since the money was proved to have been deposited

in the company's bank account. The applicant alleges that,

consequently, he should not have been found guilty of fraud.

(iv) The applicant further complains that the Regional Court of A.

denied him the right to defend himself in person or through legal

assistance. He explains that the Court had initially informed him that

it would not be possible to appoint counsel to defend him, since he was

intelligent enough to defend himself. Later this decision had been

reconsidered but the lawyer appointed by the Court, Mr. F., had, in

fact, assisted the prosecuting authorities and the Court rather than

the applicant and had prevented him from submitting a proper appeal

against his conviction and sentence.

(v) The applicant finally complains that he did not have a hearing of

his case within a reasonable time in that it had taken the A. Regional

Court more than six years to bring him to trial. He explains that the

police started to investigate the charges against him in July 1961, and

in 1963 a preliminary investigation was held before the investigating

judge. The trial opened on .. October 1967 and ended on .. November

1967. The applicant alleges that this delay of more than six years had

not been necessary since the investigation by the police had taken one

year at the most and the preliminary investigation had lasted eight

weeks only. Moreover, having had to wait for his trial during that

period had been detrimental to his health and his financial position

as well as to his case since the witness's memory had become more and

more unreliable.

The applicant states that he is able to prove his allegations by the

evidence of his lawyer, Mr. F., by newspaper articles concerning his

trial at A., and by the files concerning his case.

2. Complaints relating to the second applicant

The second applicant is the son-in-law of the first applicant. With

reference to the terms of Article 25 of the Convention, he claims that

status of a victim of violations of the first applicant's human rights.

He gives the following explanations:

(i) On 26 September 1968 as a result of the allegedly abrupt and

unsuspected action on the part of the Federal Court and the notice to

the first applicant to report to prison immediately, the second

applicant was obliged to transport his family from the United States

of America to Germany, even though he and his daughter were seriously

ill.

(ii) For a period of ten days during this critical period the second

applicant was obliged to be absent from his place of employment, to the

detriment of the project he was working on and to the detriment of his

own personal position.

(iii) During the past two years, the applicant's wife had been

suffering from the effects of a nervous disorder, in the form of

allergies and a possible stomach ulcer. She had just been released from

hospital when they had been obliged to go to Germany and had since

suffered continually from the aggravations and strain brought about by

the above situation which according to the applicant resulted from the

unlawful proceedings before the Regional Court in A..

(iv) As a result of the absence of their husband and father the second

applicant was now obliged to assume at least partial support of the

first applicant's wife and son. This imposed an additional hardship on

the second applicant and his family since he was really not in a

financial position to do so.

3. Both applicants allege violations of Article 6, (1), (2) and (3)

(b), (c) and (d) of the Convention. They contend that they have

satisfied the requirements of Article 26 of the Convention because they

had been prevented from appealing to the Federal Constitutional Court

within the time-limit prescribed. They explain that neither the

authorities not the lawyer had informed them about the one month's

time-limit for making such appeal. In fact, it had been the result of

Mr. F.'s misleading advice which had prevented them from submitting the

case to the Federal Constitutional Court immediately upon receiving the

Federal Court's decision rejecting the appeal. Consequently, it had in

fact been the lawyer's fault that his constitutional appeal had not

been accepted.

The applicants request the Commission to order a thorough investigation

of the facts, and to instruct the authorities in the Federal Republic

of Germany to grant a fair hearing before an impartial tribunal. They

also request full compensation for the injuries inflicted and

punishment for the persons who are responsible for the injuries

committed against them.

THE LAW

I. Whereas, the Commission first considered the complaints made by the

first applicant;

Whereas, insofar as the applicant complains that he has been wrongly

convicted and sentenced, 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 and especially in the Articles invoked by the applicant;

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 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 -

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

appearance of any such violation in the present case; 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, the applicant also complains, under Article 6, paragraph (1)

(Art. 6-1), of the Convention that he did not have a fair hearing of

his case by the Regional Court of A. in that Judge S., who was the

presiding judge of that Court, had been biased; whereas, he further

complains, under Article 6 (3) (b) (Art. 6-3-b), of the Convention,

that he did not have adequate time and facilities for the preparation

of his defence;

Whereas, in these respects, 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; and whereas the

applicant failed to lodge within the time-limit prescribed a

constitutional appeal with the Federal Constitutional Court alleging

violations of Article 103 (1) of the Basic Law (Grundgesetz); whereas,

therefore, he had 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, form 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;

Whereas, insofar as the applicant's complaints are directed against his

lawyer, Mr. F., it results from Article 19 (Art. 19) of the Convention

that the sole task of the Commission is to ensure the observance of the

engagements undertaken in the Convention by the High Contracting

Parties, being those Members of the Council of Europe which have signed

the Convention and deposited their instruments of ratification;

whereas, moreover, it appears from Article 25 (1) (Art. 25-1), of the

Convention that the Commission can properly admit an application from

an individual only if that individual claims to be the victim of a

violation of the rights and freedoms set forth in the Convention

provided that the Party in question has accepted this competence of the

Commission; whereas it results clearly from these Articles that the

Commission has no competence ratione personae to admit applications

directed against private individuals; whereas, in this respect, the

Commission refers to its previous decision No. 1599/63 'Yearbook, Vol.

VI, pages 348, 356); whereas an examination of the case as it has been

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

any grounds on which the alleged conduct of Mr. F., could exceptionally

entail the responsibility of the Government of the Federal Republic of

Germany under the Convention;  whereas it follows that this part of the

application is incompatible with the provisions within the meaning of

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

Whereas, insofar as the above complaint might give rise to the question

whether the courts failed to ensure that the applicant's defence was

properly carried out with the consequence that he was not given a fair

hearing within the meaning of Article 6 (Art. 6) of the Convention, 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 this right; whereas it follows that, in this respect, the

application is manifestly ill-founded within the meaning of Article 27,

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

Whereas, the applicant finally complains that his case has not been

heard within a reasonable time in that first charges were levelled

against him in July 1961, charges which were finally determined by

decision of the Federal Court of 23 August 1968, i.e. after a period

of more than seven years.

Whereas the Commission considers that this complaint may give rise to

a question under Article 6, paragraph (1) (Art. 6-1), of the Convention

which provides, inter alia, that, in the determination of any criminal

charge against him, everyone is entitled to a hearing within a

reasonable time;

Whereas the Commission finds that an examination of the file at the

present stage does not give the information required for determining

the question of admissibility; whereas, therefore, the Commission

decides, in accordance with Rule 45, 2b of its Rules of Procedure, to

give notice of the above complaint to the Government of the Federal

Republic of Germany and to invite the Government to submit its

observations on the question of admissibility; whereas, in the

meanwhile, the Commission decides to adjourn its examination of this

part of the application;

II. Whereas, the Commission next considered the complaints made by the

second applicant;

Whereas according to Article 25 (1) (Art. 25-1), of the Convention "the

Commission may receive petitions .... from any person, non-governmental

organisation or group of individuals claiming to be the victim of a

violation by one of the High Contracting Parties of the rights set

forth in this Convention, provided that the High Contracting Parties

against which the complaint has been lodged has declared that it

recognises the competence of the Commission to receive such petitions",

Whereas the Commission has already held that the term "victim" means

not only the direct victim or victims of the alleged violations but

also, any person who might be an indirect victim either by inevitably

suffering damage as a result of such violation or by having a valid

personal interest in securing the cessation of such violations (see,

for instance, Decision No. 282/57, Yearbook, Vol. I, page 166);

Whereas, in the present case, the second applicant makes certain

allegations with regard to his and his family's situation; whereas

certain hardships which he allegedly suffered in connection with the

transfer of his family from the United States to Europe are attributed

by him to the alleged unlawful acts committed against the first

applicant;  whereas, for these reasons, he claims himself to be a

victim of a violation of the Convention;

Whereas, however, the Commission finds that an examination of the case

as it has been submitted does not disclose, as regards this applicant,

any appearance of a violation, either direct nor indirect, of the

provisions of the Convention; whereas, consequently, the applicant

cannot be considered as being a direct or indirect victim, within the

meaning of Article 25 (1) (Art. 25-1), of the Convention, of the rights

and freedoms set forth in the Convention, and, in particular, of the

Articles invoked by him; whereas it follows that in this respect, the

application is manifestly ill-founded and must be rejected in

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

Convention;

Now therefore the Commission

1. Declares inadmissible the first applicant's complaints set out under

1 (i) to (iv) of the statement of facts;

2. Decides to adjourn its examination of the admissibility of the first

applicant's complaint set out under 1 (v) of the statement of facts;

3. Declares inadmissible all the complaints made by the second

applicant.