THE FACTS

Whereas the basic facts which are uncontested by the parties may be

summarised as follows:

The Applicant is a German citizen born in 1902, living in Munich and

having a second residence at St. Jean-Cap-Ferrat in the South of

France. He is a journalist and writer.

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(1)  Partial decision of 7th October, 1966, Collection 21, p. 72.

--------------------------------------------

On the basis of documentation assembled by the applicant, a Nuremberg

weekly magazine published in February and March, 1952, two articles on

the assassination of Ernst vom Rath, an official at the German Embassy

in Paris, which, in 1938, led to the Nazi action against the Jewish

community in Germany known as "Reichskristallnacht". It was stated in

these articles that the assassin, the 17-year old Herschel Grynspan,

had not acted for political motives as an agent of world Jewry, as

alleged by the Nazi authorities, but for purely private reasons as,

according to his own defence, he had homosexual relations with Ernst

vom Rath.

On 4th July, 1952, Günter vom Rath, a brother of the deceased, brought

charges against the applicant and the publisher of the paper for

defamation of the memory of the deceased (Verunglimpfung des Andenkens

Verstorbener, Article 189 of the German Penal Code). On these charges,

the applicant was indicated by the Public Prosecutor

(Staatsanwaltschaft) on 23rd March, 1954. But, after a preliminary

investigation, the Regional Court (Landgericht) of Munich I on 10th

July, 1957, refused to proceed further at there was not sufficient

evidence of a criminal offence. On an appeal lodged by the Public

Prosecutor, however, the Court of Appeal (Oberlandesgericht), on 27th

January, 1958, ordered trial proceedings to be opened before the

Regional Court of Munich.

In this trial, held from 14th November to 21st December, 1960, the

Applicant was found guilty and sentenced to five months' imprisonment,

the sentence being, however, suspended on probation. The Applicant

appealed from this decision (Revision) and on 3rd October, 1961, the

Federal Court (Bundesgerichtshof) set aside the judgment, inter alia,

on the ground that certain witnesses of the Applicant had not been

called, and referred the case to the Regional Court of Augsburg for a

new trial.

This Court, after having heard a number of witnesses at Augsburg and,

by rogatory commissions in France, Italy and Israel, decided, on 13th

March, 1964, to discontinue the proceedings under the Amnesty Act of

1954. Upon request of the Applicant, however, the proceedings had to

be resumed according to the provisions of the Amnesty Act.

The Court then fixed 9th June, 1964, as the date for the commencement

of the trial in which more than 60 witnesses were to be heard. But when

the Applicant requested before the trial that additional evidence,

mostly from abroad, should be examined, the Court cancelled the trial

and decided, on 8th July, 1964, to dismiss the case on the ground that,

in any event, the Applicant's guilt and the consequences of his act

were insignificant (Article 153, para. 3 of the Code of Criminal

Procedure). The Court argued, inter alia, that the case did not justify

any further time-consuming and expensive investigations and

proceedings. It appears that at that time the files contained already

3,500 pages. The expenses of the proceedings were declared to be at the

charge of the State but the Applicant was not reimbursed for his

lawyer's fees.

The Applicant did not appeal from this decision as no appeal is

provided for by the Code of Criminal Procedure in case of a termination

under Article 153, paragraph (3). He states that he was advised by his

lawyer that not even a Constitutional Appeal (Verfassungsbeschwerde)

lies from such a decision.

Whereas the Applicant originally made a number of complaints as to the

manner in which the above court proceedings had been conducted. The

Applicant referred to Article 6 of the Convention and complained, inter

alia, of the extreme length of the proceedings amounting to a total

period of 12 years. He alleged that he was seriously impeded in

exercising his profession as long as the charge of defamation was

pending against him and that he suffered considerable prejudice. He

further complained that by the termination of the proceedings as being

insignificant he was deprived of his right to a hearing and a

determination of the case.

By its partial decision of 7th October, 1966, the Commission, while

declaring the remainder of the application inadmissible, decided, in

accordance with Rule 45, paragraph 3 (b) of its Rules of Procedure to

give notice to the Federal Government and to invite it to submit its

observations in writing on the question of admissibility insofar as the

application related to the termination of the case by the Regional

Court of Augsburg on 8th July, 1964, and the length of the proceedings.

HISTORY OF THE PROCEEDINGS BEFORE THE COMMISSION

Whereas the proceedings before the Commission may be summarised as

follows:

On 28th February, 1967, the Federal Government submitted its written

observations and the Applicant replied on 29th March - 6th May, 1967.

Further submissions were made by the Federal Government on 26th May,

1967, and by the Applicant on 9th - 20th and 25th - 29th May, 1967.

On 31st May, 1967, the Commission decided to invite the Federal

Government to submit information as to whether Article 153 of the Code

of Criminal Procedure had ever been challenged before the Federal

Constitutional Court (Bundesverfassungsgericht) as well as more

detailed information on the various stages of the proceedings.

The Federal Government submitted its further written observations on

31st July, 1967, and the Applicant replied on 12th August, 1967. On 4th

October, 1967 the Commission decided to invite the Applicant to

withdraw or amend certain abusive terms made in his submission of 12th

August, 1967, and on 19th October, 1967, he withdrew the abusive terms

concerned.

On 15th December, 1967, the Commission decided to ask the parties to

make oral explanations with regard to the question whether the

Applicant had exhausted the domestic remedies in respect of the

termination of the proceedings. At the same time the Commission decided

to grant the Applicant legal aid in accordance with a request made by

him provided that the general conditions were satisfied. The Commission

also decided to adjourn until the oral hearing its decision as to the

admissibility of the complaint concerning the length of the

proceedings.

On 27th December, 1967, the Applicant withdrew his application for

legal aid.

The oral hearing was held on 2nd and 3rd April, 1968.

SUBMISSIONS OF THE PARTIES

Whereas the written and oral submissions by the parties may be

summarised as follows:

A. As to the length of the proceedings

I. 1. The Federal Government submitted on 28th February, 1967, the

following report prepared by the Bavarian State Ministry of Justice

concerning the question of the length of the proceedings:

"(1)  Investigations by the Public Prosecutor

On 18th July, 1952, the Public Prosecutor, on a charge brought by the

brother of the assassinated against the Applicant, Graf Soltikow, on

4th July, 1952, instituted the investigations and indicted the

Applicant on this charge with Landgericht München I on 23rd March,

1954.In the course of the investigating proceedings, the Public Prosecutor

had twelve witnesses heard by eight different courts (Amtsgerichte) in

the Federal Republic of Germany and one court in Paris. In addition to

this, written testimony was obtained from two witnesses who live in

Germany. It was impossible to take the evidence of all the witnesses

at one and the same time because at the beginning of the proceedings

their names were not yet known;  for the evidence taken often contained

indications to persons who might come in question as witnesses to

testify in the matter, the subject of the investigations. The

examination of witnesses was also delayed because the investigations

necessary for tracing the whereabouts of certain witnesses took a

considerable time.

Another reason for the length of the proceedings was, besides these

time-consuming investigations, the applicant's complaint to the Public

Prosecutor General in München and, subsequently, to the Bavarian State

Ministry of Justice, about the initiation of the proceedings. To give

an example, it took nearly three months, before the applicant himself

could be heard, since he was not in Munich all the time.

After the public charge had been preferred by the prosecutor, the

applicant challenged the members of the 1st Penal Chamber of

Landgericht München I, the court having jurisdiction in this case, on

the ground of bias. This challenge was dealt with and dismissed in

proceedings before three instances, which lasted from 29th April, 1954,

to 7th December, 1954.

Apart from this, the applicant filed an application for a preliminary

judicial investigation. This application was dismissed by Landgericht

München I by a decision, dated 22nd January, 1955. On the applicant's

appeal, the Bayerisches Oberstes Landesgericht, by decision of 7th

April, 1955, ordered the preliminary investigation proceedings to be

opened for the purpose of clarifying the facts.

In the meantime, the court had given the deceased's brother leave to

join the proceedings as intervenor. This, too, was challenged by the

applicant without success. At this stage of the proceedings, the Court

(Penal Chamber) had ordered a judicial examination of three witnesses

in the Federal Republic and of three further witnesses in Paris and San

Francisco, respectively.

(2)  Preliminary investigation by the court

The preliminary investigation by the court at first lasted from 2nd

May, 1955, to 13th March, 1956. The judge carrying on the investigation

ordered ten witnesses to be examined to be examined in the Federal

Republic and one abroad. Five witnesses, residents of München, were

examined by him personally; the applicant was heard by him three times.

The supplementary preliminary investigation subsequently applied for

the Public Prosecutor lasted from 18th July, 1956, to 5th February,

1957. The reason given by the Public Prosecutor for this application

was that it was necessary to hear three new witnesses for the defence

whom the applicant had named.

During this stage of the preliminary investigation proceedings several

witnesses were heard and the testimony of a witness living in South

America obtained. The judge secured information from the Institut für

Zeitgeschichte in München; he made enquiries with the Government of the

Land Schleswig-Holstein, and, finally, searched for the whereabouts of

the deputy president of the former Volksgerichtshof.

During these preliminary investigation proceedings, too, the witnesses

could not be heard all at once, since they became known to the court

only by and by.

(3)  The trial proceedings before Landgericht München I

On 13th May, 1957, the Public Prosecutor applied for the trial to be

opened by filing the bill of indictment (Anklageschrift) with

Landgericht München I. By its decision of 10th July, 1957, this court

refused to open the trial proceedings on the ground that there was no

evidence proving that 'subjectively', i.e. from the applicant's

perspective, the elements of a punishable act within the meaning of

Article 189 of the German Criminal Code (paragraph 189 StGB) had been

present. On the immediate objection of the intervenor the trial

proceedings were opened by an order of Oberlandesgericht München, dated

7th January, 1958.

Before fixing the date of the trial, the Penal Chamber had nine further

witnesses examined. In addition to this, it had to decide on a number

of applications by the applicant for further evidence to be taken, for

the appointment of official counsel for his defence, and for a

reopening of the preliminary investigation proceedings.

The Appeal Court (Oberlandesgericht) of München rejected an application

by the applicant for a rectification of the order opening the trial

proceedings.

Finally, on 4th July, 1960, the date for the trial could be fixed; the

trial took place before the 5th Penal Chamber of Landgericht München

I from 14th November, 1960, to 21st December, 1960 the hearing going

on for 12 days. The applicant was found guilty of a misdemeanour of

defamation of the memory of a deceased person and sentenced to 5

months' imprisonment, the sentence being suspended on probation.

(4)  The review proceedings (Revision)

On the applicant's appeal filed on 23rd December, 1960, the Federal

Court of Justice set the judgment of Landgericht München I aside on

procedural grounds on 3rd October, 1961, and remitted the case to

Landgericht Augsburg for reconsideration and new decision.

After filing his appeal, the applicant challenged, though without

success, three judges of the 5th Penal Chamber of Landgericht München

I on the ground of bias and also applied - again without success - for

a restoration of the status quo ante in order to be able to submit

further complaints in connection with his appeal.

(5)  Proceedings before Landgericht Augsburg

The files in the applicant's case arrived at Landgericht Augsburg on

19th December, 1961. In preparation of the trial the Court ordered a

judicial examination of three witnesses in the Federal Republic and of

fifteen witnesses abroad (France, Israel, Italy). In addition to this,

a commissioned judge took the testimony of four witnesses; a fifth

witness was requested by him to make a statement in writing. He,

finally, called for the production of the "Grünspan-Files" kept with

the Federal Ministry of Justice, the Document Centre, and the Public

Prosecutor of the former Soviet Zone of Occupation.

The Court in Augsburg, furthermore, had to deal with several procedural

applications and complaints by the applicant and the intervenor.

In December 1963, the officially appointed counsel for the defence was

replaced by another counsel.

By decision of 13th March, 1964, the Court in Augsburg terminated the

criminal proceedings under Article 2, paragraph 2, of the Amnesty Act

1954 (Straffreiheitsgesetz 1954) of 17th July, 1954, (BGBl. I, page

203) on the ground that a sentence of more than three months'

imprisonment was not to be expected. But on the request of the

applicant who claimed to be innocent, the proceedings were resumed

(Article 17 of the Amnesty Act 1954).

Thereupon the Court informed the applicant's counsel on 1st April,

1964, that the trial was scheduled for June 1954 and requested him to

submit concise applications with regard to the evidence he wished to

be taken.

On 22nd April, 1964, the date for the trial was fixed for 9th June,

1964. It was intended to summon sixty-eight witnesses - eleven of these

from abroad (France, Italy, Monaco, Israel).

On 21st May, 1964, Landgericht Augsburg cancelled the trial date

because it had been found in the meantime that the then addresses of

several witnesses, who had already been named and some of whom had

already been examined at an earlier date, were unknown and because the

applicant had applied for further witnesses to be heard (some of them

from Israel, Monaco, Hungary), the names of some of whom had not even

been given. The Court considered that it could not do without

an examination of these witnesses and that in certain cases a

confrontation of these witnesses was necessary. In its view, a trial

without these witnesses being present did not premise success.

Finally, the criminal proceedings were terminated by Landgericht

Augsburg on 8th July, 1964, under Article 153 (3) of the Code of

Criminal Procedure (para. 153 (3) StPO) on the ground that the guilt

was negligible and the consequences insignificant."

In its submission of 28th February, 1967, the Federal Government made

the following observations on the different parts of these proceedings:

"Ref. paragraph (1):  (Investigations by the Public Prosecutor)

(a)  During the period 18th July, 1952, to 23rd March, 1954, fourteen

witnesses had to be heard in all. Not only had the whereabouts of some

of these witnesses to be ascertained, sometimes the names of new

witnesses cropped up and these had first to be traced. The courts

seized of these witnesses' examinations had to be provided with the

necessary material on record in each case. One witness was heard by

rogatory commission in Paris; it is generally known that it takes a

certain time for such letters rogatory to be dealt with.

It must be added that the applicant himself entered two complaints

against the initiation of the criminal proceedings and that the files

and records were needed for the consideration of those complaints. In

addition to this, the applicant's own hearing was delayed by nearly

three months as a result of his changes of address.

(b)  After his indictment, the applicant challenged the judges of the

1st Penal Chamber of Landgericht München I on the ground of bias in

proceedings before the courts of the first, second and third instance.

These proceedings took until 7th December, 1954. In view of their wide

scope and the fact that the courts of three instances had to deal with

them, a period of a little over seven months cannot be regarded as

inadequately long.

(c)  The applicant, furthermore, objected to the brother of the

deceased being allowed to join the proceedings as intervenor. This

objection delayed the beginning of the trial proceedings still further.

Ref. paragraph (2):  (Preliminary investigation by the Court)

At this stage of the proceedings eleven witnesses had to be heard both

in the Federal Republic and abroad, some of them being witnesses for

the defence whom the applicant had named. These witnesses, too, had not

been known from the very beginning of the proceedings; their existence

an the necessity of hearing their testimony was not revealed until

during the preliminary investigation proceedings. The other

investigations made also consumed time since they had to be carried out

conscientiously. In addition to all this, the Public Prosecutor had to

acquaint himself, before the trial proceedings were opened, with the

contents of the quite voluminous record and files drawn up during the

preliminary investigation proceedings. The Federal Government is of the

view that if all these circumstances are taken into consideration, the

preliminary investigation proceedings, which lasted from 2nd May, 1955,

until 13th May, 1957, did not take an unreasonably long time.

Ref. paragraph (3):  (Trial proceedings before Landgericht München I)

Also during this stage of the proceedings, Landgericht München I, and

also the Oberlandesgericht of München, where the intervenor had filed

an objection (Beschwerde) against the Landgericht's refusal to open

trial proceedings, had to examine in great detail all the material

piled up so far, in order to be able to decide whether or not the trial

proceedings should be opened. The mere fact that the trial took twelve

days shows what quantities of material had to be dealt with in the

proceedings and that this mass of material had also been decisive for

the course and the duration of the investigation proceedings and the

preliminary proceedings.

Ref. paragraph (4):  (Review proceedings - Revisionsverfahren)

The reason why the Federal Court of Justice could not decide the

petition for review filed on 23rd December, 1960, until 3rd October,

1961, is also to be found in the large quantities of material that had

to be dealt with in the proceedings and in the fact that during this

time, the applicant filed two new applications, both of which were not

connected with the review proceedings immediately.

Ref. paragraph (5):  (Proceedings before Landgericht Augsburg)

Up to 13th March, 1964, this Court alone ordered the hearing of

twenty-three witnesses, fifteen of them in foreign countries. The fact

that it was intended to summon sixty-eight witnesses for the trial,

which had been scheduled for 9th June, 1964, again proves what

quantities of material had to be coped with in these proceedings. The

pace of the proceedings was determined also by the difficulties

experienced in ascertaining the names and addresses of witnesses."

The Federal Government submitted that, with regard to the special

circumstances of the case and to the fact that many of these

circumstances resulted form the applicant's own conduct, the

applicant's complaint that the proceedings took an unduly long time was

manifestly ill-founded.

2. The Federal Government's further observations of 31st July, 1967,

included a long and detailed list of decisions taken by the various

courts and authorities concerned during the course of the criminal

proceedings against the applicant. The Federal Government submitted

that this summary, which was based on facts communicated by the

Bavarian State Ministry of Justice, clearly revealed that the

proceedings had been considerably prolonged by the applicant's

complaints and numerous application, which included requests for the

hearing of further witnesses.

II. 1. The applicant in his observation in reply of 20th March - 6th

May, 1967, also referred to the five stages of the proceedings

mentioned by the Federal Government and commented on them as follows:

(1)  Investigations by the Public Prosecutor

In this respect the applicant pointed out in particular that the Public

Prosecutor already in a letter of 13th July, 1954, to the Regional

Court of Munich referred to Dr. X, a judge at the Federal Court, as an

"important new witness" who ought to be heard. The applicant alleged

that this judge, who later was appointed a Presiding Judge

(Senatspräsident) of the Federal Court, was the same person as an

Assessor X, in the service of the ill-famed SD and the Gestapo who in

1941-1942 had interrogated Grünspan with regard to the assassination

of vom Rath. The applicant complained that the judicial authorities,

although being informed of these facts by the letter, never heard X.

during the following ten years of proceedings.

All other witnesses heard by the prosecutor, except three, could give

no decisive evidence and were only heard to delay the proceedings and

avoid involving X., which would cause a "world-wide scandal".

(2)  Preliminary investigation by the Court

The applicant immediately informed the investigating judge that the

hearing of other witnesses, with a few exceptions, could be suspended

until X. had been heard. The applicant offered extensive evidence as

to the identity of X. and his own knowledge of the original Grünspan

files. The investigating judge, however, refused to record statements

by the applicant to this effect and warned him that the applicant could

expect charges of defamation if he repeated these allegations against

Senatspräsident X. in his written submissions. In order to drag out the

proceedings the investigating judge had numerous unimportant witnesses

examined with regard to "non-essential, secondary matters, but

studiously avoided hearing the all-important witness X."

(3)  The trial proceedings before the Regional Court of Munich

The Court did its utmost to protract the proceedings and gain time. The

applicant lived under constant pressure during these interminable

proceedings. In particular, the Court had numerous witnesses examined

by rogatory commissions outside Munich, although these witnesses were

only remotely associated with the case and their testimony had already

been recorded by the investigating judge. The applicant had requested

that all witnesses should be heard directly by the trial court so he

would have a chance to cross-examine them and, in fact, many of the

witnesses were heard again at the trial and thus the proceedings had

been unnecessarily delayed.

(4)  The appeal proceedings (Revision)

The improper proceedings of the trial court resulted in 117 points of

appeal which had to be examined carefully by the Federal Court and thus

"entailed delays and an enormous loss of time".

(5)  Proceedings before the Regional Court of Augsburg

In the course of these proceedings the intent to delay became

particularly obvious. According to the applicant's lawyer the Presiding

Judge (Landgerichtsdirektor) had stated that he was due to retire and

"that as long as he remained in office he would under no circumstances

conduct these highly unpleasant proceedings". The Presiding Judge did,

however, not retire until the end of April 1963. The Court refused to

call X. as a witness and the applicant and his lawyer were even

threatened by a prosecution officer with charges of defamation if they

insisted on this witness being called.

2. On 12th August, 1967, the applicant stated in reply to the Federal

Government's further observations of 31st July, 1967, that the summary

of the proceedings against him submitted by the Government was, in

fact, misleading. The summary should properly only have listed orders

and decision by the Public Prosecutor's Office or the Courts. Such a

summary would show that during twelve years only 123 "orders or

decisions " were issued, i.e. an average of ten decisions per year,

more than half of which in no way contributed to further the criminal

proceedings. In this respect, the applicant quotes several examples of

decisions by the Regional Court which were later set aside on his

appeal.

The applicant alleges in particular the following procedural

irregularities which, in his opinion, contributed to the length of the

proceedings:

(a)  In April, 1954, the applicant requested the opening of a formal

preliminary investigation (gerichtliche Voruntersuchung) by the

Regional Court of Munich but his application was refused on 22nd

January, 1955, by the Court. This decision was set aside by the

Bavarian Supreme Court (Oberstes Landesgericht) of Munich on 7th April,

1955. Thus, the proceedings had been delayed for almost a year.

(b)  On 1st March, 1958, the applicant requested the investigating

judge to appoint a defence counsel. His application was refused and

this decision was upheld by the Criminal Chamber but set aside, on the

applicant's further appeal, by the Court of Appeal (Oberlandesgericht)

of Munich. As a result, the defence counsel was not appointed until

28th August, 1958.

(c)  The case files were then sent to the applicant's lawyer, but the

Court omitted to set any time-limit for the return of the files and

also failed to order their return within a reasonable time. The

applicant's lawyer was thus allowed to keep the files for five months

and during this time the Court took no action with regard to the case.

In tolerating this enormous delay the Court clearly showed its

intention to retard the proceedings.

(d)  In spite of the applicant's protests the investigating judge

ordered the hearing of witnesses at their residence by letters

rogatory. After the closure of the preliminary investigation the

Regional Court of Munich also had a large number of witnesses examined

at their place of residence, several of whom had already been heard

during the preliminary investigation although not under oath. These

witnesses were then only asked to confirm their previous statements and

the long time actually spent at this stage was not justified. This

delay was particularly unnecessary since the applicant had made it

clear that he wished the witnesses to be heard again at the trial in

order to be able to cross-examine them. It was obvious that the judges

wanted to delay the trial as long as possible in the hope that they by

then would have been transferred from the Criminal Chamber concerned

with the case.

(e)  When the case later was referred to the Regional Court of Augsburg

for a new trial this Court resorted to similar means of delay. For this

purpose a Single Judge was commissioned to hear certain witnesses,

while other witnesses were heard by rogatory commission at their

residence in Germany or abroad. Since the applicant again requested

that all witnesses should be heard at the trial, it was obvious that

the delay caused by these hearings could have been avoided. The

principal reason was that the Presiding Judge wanted to defer the trial

until his retirement.

(f)  In spite of the applicant's repeated requests, the Augsburg Court

refused to call Dr. X. as a witness. Instead, the Court incurred

further delay by asking the American Document Centre in Berlin to

submit information as to the identity of the Assessor X. who had been

in the service of the Gestapo. Following receipt of information on this

point from the Ministry of Justice more time was lost in tracing a

cousin of X., called Y., who also had worked for the Gestapo and,

according to the Prosecution, was the official concerned with the

Grünspan case. However, neither of the two cousins was ever heard as

a witness. The judges were afraid that Y., if heard under oath, might

have incriminated his cousin and the applicant's request that he should

be called as a witness was therefore rejected.

(g)  The applicant asked the Presiding Judge at the Regional Court in

Augsburg to give him advice with regard to the choice of counsel

(Pflichtverteidiger) and at the applicant's request the lawyer

recommended by the judge, Dr. Z., was eventually appointed. This lawyer

was, however, a former prominent Nazi leader which the judge must have

known and was merely appointed as a matter of form. In fact, the lawyer

had the instructions from the Court and Public Prosecutor to "impede

and obstruct" the applicant's defence and the applicant was later

forced to ask for a new counsel. After Dr. Z. had been appointed the

Court refused to take action on motions for evidence to be heard

emanating from the applicant himself. In this respect, the applicant

refers to a letter from the Court dated 23rd May, 1962, which speaks

of an agreement whereby all communications from the applicant would

first be passed on to the defence counsel for an examination whether

or not the evidence offered was relevant and likely to serve the

proceedings.. Numerous requests for evidence to be heard which he

addressed to his defence counsel were suppressed.

B. As to the termination of the proceedings under Article 153 of the

Code of Criminal Procedure

I. 1. The Federal Government's written observations of 28th February,

1967, stated in this respect as follows:

"The dismissal of the case by Landgericht Augsburg on 8th July, 1964,

under Article 153 (3) of the German Code of Criminal Procedure, in no

way violates the applicant's right of being presumed innocent until

proved guilty according to law (Article 6 (2) of the Convention). No

sentence was imposed on the applicant. The Court did not dismiss his

case on the ground that his guilt 'was insignificant'; it merely said:

'His guilt therefore appears to be insignificant'. The Court did not

find him guilty. The applicant, therefore, is doubtlessly innocent

within the meaning of Article 6 (2) of the Convention. The decision by

which his proceedings were terminated did not raise a presumption of

guilt.

The principle of presuming a person to be innocent until found guilty

does not allow the anticipation of a sentence, by an imposition of any

measures tantamount to punishment. This has been made quite clear by

the Federal Constitutional Court (in its decision BVerfGE 19, page

347).

No such measures were taken with regard to the applicant; by the

decision under Article 153 (3) of the German Code of Criminal Procedure

his proceedings were terminated without any such findings being made

or any such measures being taken against him as might prejudice his

legal position of being deemed innocent. Thus the applicant as not

suffered any disadvantage from the decision.

The applicant has not lodged a constitutional complaint with the

Federal Constitutional Court against the termination of the criminal

proceedings. The Federal Government, it is true, takes the view that

both the legal provision contained in Article 153 of the Code of

Criminal Procedure and the application of this provision in the

applicant's concrete case are consistent with the Basic Law and with

Article 6 of the Convention. But if the applicant was of the opinion

that the termination under Article 153 (3) of the Code of Criminal

Procedure was inconsistent with the entitlement to a fair hearing and

the presumption of innocence, the obvious thing for him to do would

have been to try and challenge the view and its legal basis by lodging

a constitutional complaint. As the Federal Government takes up the

above-mentioned position with regard to the merits of such a

constitutional complaint, it leaves open the question whether or not

the applicant - at least from his own point of view -  could have

relied on Article 103 of the Basic Law for the admissibility of a

constitutional complaint. In view of all this, the application, as far

as the above-mentioned complaints with regard to Article 6 of the

Convention are concerned, appears to be inadmissible also for the

further reason that the applicant has not exhausted the domestic

remedies within the meaning of Article 25 of the Convention for the

Protection of Human Rights and Fundamental Freedoms.

.........

Insofar as the application must not be regarded as inadmissible for the

mere reason that the domestic remedies were not exhausted, it is in any

case manifestly ill-founded and therefore inadmissible."

2. The Federal Government, having been invited by the Commission to

submit further information as to whether Article 153 of the Code of

Criminal Procedure had ever been challenged before the Federal

Constitutional Court, in this respect stated in its written

observations of 31st July, 1967, as follows:

"Out of the decisions in which the Federal Constitutional Court has

taken a position, from the substantive point of view, on the question

of the compatibility of Section 153 of the Code of Criminal Procedure

(StPO para. 153) with the Basic Law or the application of that

provision, the Federal Government has been able to trace only that

published on page 320 of Volume 14 of the published decisions of the

Federal Constitutional Court.

By that decision the Federal Constitutional Court granted a

constitutional appeal (Verfassungsbeschwerde) which had been filed on

the following facts:  the plaintiff in a libel action had applied for

the prosecution of a certain respondent and for himself to be joined

in the proceedings as a Third Party (Nebenklägerin). After the

indictment had been preferred, the District Court (Amtsgericht), which

had not adjudicated on the plaintiff's application for being admitted

as a Third Party, terminated the proceedings under StPO para. 153

(III). The plaintiff first lodged an appeal (Beschwerde) against that

decision with the Regional Court (Landgericht). That Court rejected the

appeal on the ground that, according to StPO U 153 (III) final clause,

the decision of the District Court was not open to appeal.

The Federal Constitutional Court set aside the District Court's

decision on the termination of the proceedings on the ground that

Article 103, paragraph 1, of the Basic Law (right to be heard in court)

had been violated and remitted the case to the District Court. For

details of the observations of the Federal Constitutional Court,

reference is made to the above-mentioned published decision.

The Federal Government, furthermore, has obtained knowledge of a

decision by the District Court Berlin-Tiergarten, in the criminal

matter 274 Cs 12/64, whereby that court, under Article 100 (1) of the

Basic Law, laid before the Federal Constitutional Court, for the

latter's decision, the question whether or not in that case the

requirement of consent by the public prosecutor at the District Court

(Amtsanwaltschaft) to the proposed termination of the proceedings under

StPO U 153 (III) was compatible with the independence of judges as

guaranteed by Article 97 of the Basic Law and with the principle of

separation of power provided for in Article 20 of the Basic Law.

In that case no decision was made by the Federal Constitutional Court

because the District Court Tiergarten set aside its decision of 31st

March, 1965, by which it had suspended the proceedings and referred the

case to the Federal Constitutional Court, and the proceedings before

the Federal Constitutional Court thus came to an end.

To conclude, the Federal Government may be permitted to refer once

again to its observations of May 1967 on the question of Article 26 of

the Convention. As may be seen from the Federal Constitutional Court's

decision on the problem of the right of being heard in court then

mentioned by the Federal Government, that Court's practice in this

question is constantly developing. It was, therefore, not at all

unreasonable to expect the applicant to file a constitutional appeal

in accordance with the principle of international law which requires

domestic remedies to be exhausted first."

II:  1. The applicant's complaints with regard to the termination of

the proceedings, as set out in his written submissions, may be

summarised as follows:

(a)  He was entitled to a hearing and determination of the case, as

expressly ordered by the Federal Court, and eventually to an acquittal

and he was deprived of this right by the termination of the case as

being insignificant. The termination was unwarranted taking into

consideration the length and extent of the previous examination as well

as the great historical importance of the events involved.

(b)  The courts did not content themselves with the proof that Grünspan

had stated before the French and German authorities that homosexual

relations with Ernst vom Rath were the basic reason of his act, but

required the proof that such relations had, in fact, existed. This

exceeded the universal standard of professional diligence required of

journalists in countries recognising the freedom of the press.

(c)  The Augsburg Court has in fact found that he was guilty even if

his guilt was said to be minor. He refers to certain evidence which was

known to the Court and should have led to his immediate acquittal.

2. The applicant's written submissions with regard to the question

whether he has exhausted the domestic remedies available to him under

German law may be summarised as follows:

(a)  The Code of Criminal Procedure does not provide for an appeal

against a decision to terminate proceedings under Article 153 of the

Code. In July 1964, the applicant asked, however, W., a well-known

lawyer with long experience of constitutional law, whether a decision

to terminate proceedings under this Article had ever been challenged

in the Federal Constitutional Court, or, in any event, whether there

was any prospect of success if he lodged a constitutional appeal

against the decision of the Augsburg Court of 8th July, 1964. W., as

well as two of his previous three counsels and a further lawyer whom

he also consulted, gave a negative answer to these questions.

(b)  Nevertheless, the applicant personally enquired at the Federal

Constitutional Court but was told by a "high official" in the

President's Office that a constitutional appeal would have no chance

of success and that in case of such an appeal even a punitive fee of

1,000 DM might be imposed. The applicant stated that he could not

indicate the name of the official in question but that he would

certainly recognise him.

(c)  The applicant further submitted that, considering the length of

the previous proceedings in his particular case and his bad state of

health, he could not have been expected to lodge a constitutional

appeal which itself would have taken several years to be decided. As

an example he referred to a recent case where the Federal

Constitutional Court concluded after seven years of proceedings that

there had been a violation of the Basic Law.

(d)  With regard to the decision of the Federal Constitutional Court

of 23rd October, 1962, (Collection of Decisions, Vol. 14, page 320)

cited by the Federal Government in its observations of 31st July, 1967,

the applicant submitted that this decision  was not published in July,

1964, and was at that time obviously unknown to both W. and the high

official at the Federal Constitutional Court. In this respect, the

applicant also referred to a letter dated 5th July, 1967, in which he

was informed by an official of the President's Office (Präsidialrat),

having asked whether Article 153, paragraph 3, of the Criminal Code had

been the subject of a decision by the Federal Constitutional Court,

that no decision with supporting reasons (begründete Sachentscheidung)

had yet been issued by the Court with regard to this question).

III. 1. The oral arguments made by the Agent of the Federal Government

may be summarised as follows:

(a)  It is true that the Federal Constitutional Court has not yet given

any reasoned judgment in a case where Article 153, paragraph 3,of the

Code of Criminal Procedure has been applied in a similar way.

The applicant could, however, undoubtedly have based a constitutional

appeal on Articles 2 and 103, paragraph 1 of the Basic Law. It should,

in particular, be noted that the jurisprudence of the Federal

Constitutional Court with regard to the interpretation of the right to

a "hearing in accordance with the law" (rechtliches Gehör) guaranteed

by Article 103 is constantly developing. The Federal Government in this

respect refers to several decisions by the Federal Constitutional

Court, inter alia, to the decision of 23rd October, 1962, already cited

in the written observations. This decision which appears in the

Collection of Decisions (Vol. 14, page 320) was published already in

1963.(b)  As to the applicant's statements that he was advised by one, or

possibly a number of lawyers, that a constitutional appeal would be

without any prospect of success, the Federal Government points out

that, according to the Commission's previous jurisprudence, the

applicant is obliged to bear the risk of failure to avail himself of

the domestic remedies which might have been successful. Consequently,

the applicant cannot excuse himself by saying that he was wrongly

advised by his lawyers.

(c)  The Federal Government has made enquiries with regard to the

alleged conversation in July 1964 with a "high official" at the Federal

Constitutional Court. The President of the Court has informed the

Federal Government that all visitors to the Court have to obtain a

visitor's ticket. This ticket gives details of the time when the visit

starts and ends and has to be signed by the official visited. According

to the President's investigations, no such ticket was ever issued to

the applicant in 1964. Neither have the officials of the Court, who

have been heard by the President, been able to confirm that the

applicant visited the Court at that time. It is significant that the

applicant in his latest submissions to the Commission has considerably

toned down his previous allegations on this point and the information

concerned is now said to have been given during a casual meeting in the

Court building.

The applicant has not been able to specify whether the official

concerned was a judge, an official at the President's Office, or one

of the numerous assistants employed at the Court.

(d)  The applicant's statement that he could not in the circumstances

have been expected to lodge a constitutional appeal, considering the

long time normally required for such proceedings, is contradicted by

his own experience. He had, prior to July 1964, already lodged three

appeals with the Federal Constitutional Court, one in 1952 and two in

1958, and the decisions in all three cases were given within six

months. The Federal Government could cite a large number of cases

concerned with the interpretation of Article 103, paragraph 1, of the

Basic Law which have been dealt with by the Federal Constitutional

Court within a comparatively short time.

(e)  When considering whether the applicant could have been expected

to lodge a constitutional appeal against the decision of the Augsburg

court of 8th July, 1964, the Federal Government refers to the

applicant's attitude in certain other court proceedings roughly at the

same time.

In  1960, criminal proceedings had been brought against the applicant

in the District Court of Hannover on a charge of having made defamatory

remarks about another author. In the course of these proceedings the

applicant repeatedly requested that the proceedings should be

terminated under Article 153, paragraph 3, of the Code of Criminal

Procedure which the Court refused to do. The applicant asserted that

for health reasons he was unable to appear at a hearing. Finally, the

District Court ordered that he should undergo a medical examination in

this respect. On 14th July, 1964, the applicant without assistance of

a lawyer lodged an appeal with the Federal Constitutional Court against

the decision of the Hannover Court, whereas at exactly the same time

he failed to do so with regard to the decision of the Augsburg Court

which is in issue before the Commission. In the proceedings before the

Federal Constitutional Court, the medical expert consulted did not

confirm the applicant's assertions about his health. His complaint was

subsequently rejected by the Federal Constitutional Court as being

lodged out of time.

In August 1964 thus only a few weeks after the decision of the Augsburg

Court, the applicant tried to raise the matter again by means of a

civil action against Günther von Rath. He then claimed damages and

stated that he had assigned his claim to the B...., a company founded

by the applicant and over which he obviously still exerted decisive

influence. When von Rath refused to pay proceedings were instituted

against him by the company. This case is still pending in the Regional

Court of Wiesbaden.

IV. The applicant's submissions in reply to the oral arguments made by

the Agent of the Federal Government may be summarised as follows:

(a)  With regard to the decision of the Federal Constitutional Court

of 23rd October, 1963, (Collection of Decisions, Vol. 14, page 320) the

applicant considers that this case could easily be distinguished from

his own. The procedural situation was entirely different since the

other case concerned an appeal by a third party wishing to act as a

co-plaintiff and not by the accused and was based on the fact that the

third party had not been heard before the proceedings were terminated.

The applicant emphasises that he had been heard before the termination

of the proceedings and he was therefore advised that no constitutional

appeal could be based on an allegation that he had been denied a

hearing.

(b)  As to the question concerning the time required for a

constitutional appeal, the Federal Government has referred to his own

experience. The appeals he lodged with the Federal Constitutional Court

were, however, all rejected at a preliminary stage without having been

examined as to the merits. The proceedings in cases which have been

examined thoroughly by the court have, on the other hand, taken six or

seven years. He had not the possibility to wait for such a long period

since the witnesses who could give evidence of the events of 1938 were

dying one after the other.

(c)  The applicant submits that, after twelve years of proceedings, he

was at the time of the ultimate decision of the Augsburg Court brought

to financial destitution. He suffered from bad health and was in a

state of deep depression. On 2nd November, 1962, and again

subsequently, he had been told by his lawyer, Dr. Z., who was acting

on information, or instruction, from the Public Prosecutor and one of

the judges, that he would be prosecuted for defamation if he pursued

the case in such a way that Dr. X. became involved. He seriously

believed in this treat and in this situation he considered it as

suicide to lodge a constitutional appeal which necessarily would have

implicated X., a colleague of the judges of the Federal Constitutional

Court. He could therefore hardly be expected to institute such

proceedings.

V. During the oral hearing the Commission decided to invite the Agent

of the Federal Government to comment on the applicant's statements with

regard to the alleged threat of prosecution if he continued the matter

in such a way as to implicate Dr. X.

In reply, the Agent of the Federal Government referred to a number of

letters submitted by the applicant between August 1963 and June 1964,

to the Regional Court of Augsburg and the Court of Appeal in Munich.

In these letters the applicant, inter alia, repeatedly requested the

hearing of Dr. X. and made frequent statements to the effect that the

latter was identical with the Assessor X. who had interrogated

Grünspan. Reference was also made to a letter of 9th June, 1964, in

which the applicant asked the Federal Court to transfer the proceedings

from the Augsburg Court to another court. In this letter the applicant

commented at great length on the X. question. It should be noted that

Dr. X. at that time was still a Presiding Judge of the Federal Court.

THE LAW

Whereas Article 6, paragraph (1) (Art. 6-1) of the Convention states

that in "the determination of .... any criminal charge against him,

everyone is entitled to a fair and public hearing within a reasonable

time";

Whereas it is not disputed that on 4th July, 1952, criminal charges

were brought against the applicant for defamation of the memory of the

deceased, that he was indicated by the Public Prosecutor on 23rd March,

1954, and that the ensuing proceedings against the applicant lasted

until 8 July 1964, when the Regional Court of Augsburg, acting under

Article 153, paragraph (3), of the Code of Criminal Procedure,

discontinued the case on the ground that the applicant's guilt was

insignificant and the consequences of his action unimportant;

Whereas the applicant complains of the extreme length of the

proceedings which amounted to a total period of twelve years and

alleges that this constitutes a violation of Article 6 (Art. 6) of the

Convention;

Whereas the Federal Government has submitted that, having regard to the

special complexities of the case, many of which resulted from the

applicant's own conduct, the applicant's complaint that the proceedings

took an unduly long time must be rejected as manifestly ill-founded;

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

requiring the Commission to declare inadmissible any application from

an individual, which it considers to be "manifestly ill-founded", does

not permit the Commission to reject a complaint whose lack of

foundation cannot be so described (cf. Application No. 2294/64 -

Gericke v. the Federal Republic of Germany, Yearbook of the European

Convention on Human Rights, Vol. 7, pages 348, 354);

Whereas in the present case the Commission has carried out a

preliminary examination of the information and arguments submitted to

it by the parties with regard to the applicant's complaint that he was

denied a determination of the criminal charge against him within a

reasonable time as is required by Article 6, paragraph (1) (Art. 6-1),

of the Convention;

Whereas the Commission finds that this complaint is of such complexity

that its determination should depend upon an examination of its merits;

Whereas it follows that it cannot be regarded as manifestly ill-founded

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

Convention;

Whereas, therefore, it cannot be declared inadmissible on that ground;

Whereas, in regard to the applicant's complaint concerning the

termination of the case against him under Article 153, paragraph (3),

of the Code of Criminal Procedure 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 it is further to be observed that the said Article 153, in

fine, provides that a decision to terminate proceedings under paragraph

(3) of that Article is not subject to appeal;

Whereas it follows that the applicant could not have attacked the

decision of the Regional Court of Augsburg of 8th July, 1964, by way

of appeal to a higher criminal court;

Whereas, however, the Federal Government has submitted that the

applicant could have lodged an appeal with the Federal Constitutional

Court against this decision and that such a constitutional appeal could

have been based in particular on Article 103, paragraph (1), of the

Basic Law which stipulates that "in the Courts everyone has the right

to a hearing in accordance with the law";  whereas the Government has

emphasised that the applicant, by failing to exhaust this remedy, has

not complied with Article 26 (Art. 26) of the Convention;

Whereas both parties have agreed that the Federal Constitutional Court

has as yet not given a decision concerning a similar appeal of an

accused person against a decision to terminate the proceedings against

him under Article 153, paragraph (3), of the Code of Criminal

Procedure;  whereas this is a fact directly relevant to a consideration

of the question whether or not the applicant would have had any

prospect of success if he had lodged a constitutional appeal;

Whereas the Federal Government has, however, referred to a number of

decisions of the Federal Constitutional Court and stated that the

jurisprudence of the Court with regard to the application of Article

103, paragraph (1), of the Basic Law is constantly developing and that

its provision requiring a "hearing in accordance with the law" can be

regarded as the equivalent of the notion of "fair trial" in the sense

of the requirements of Article 6, paragraph (1) (Art. 6-1),of the

Convention;

Whereas the question whether Article 103, paragraph (1), of the Basic

Law could have been invoked by the applicant by way of a constitutional

appeal is a question of German constitutional law which, as a matter

of principle, lies within the competence of the Federal Constitutional

Court and is not a question for determination by the Commission;

whereas the Commission is obliged to confine itself to recording that,

although this question has apparently not yet been settled by the

German courts, the applicant has nevertheless not clearly established

that it was impossible for him to appeal to the Federal Constitutional

Court on this ground (see Application No. 712/60 - Retimag S.A. v. the

Federal Republic of Germany, Yearbook, Vol. 4,p. 384, 406);

Whereas, further, the Commission finds generally that, in order to

comply with the requirements of Article 26 (Art. 26) of the Convention,

an applicant is obliged to exhaust every domestic remedy which cannot

clearly be said to lack any chance of success;  whereas, in this

context, the Commission observes that the applicant has himself

repeatedly stated that both the decision to terminate the case against

him under Article 153, paragraph (3), of the Code of Criminal Procedure

and the conduct of the proceedings leading to that decision violated

the rights guaranteed under the Basic Law; whereas, therefore, it

cannot be said that a constitutional appeal would have been without any

prospect of success;

Whereas, accordingly, the applicant must in principle be considered to

have been under the obligation to avail himself of this remedy;

Whereas, however, the applicant has submitted that in view of certain

special circumstances he should be absolved from the obligation to

resort to a constitutional appeal; whereas the Commission has

recognised in its jurisprudence that in particular circumstances an

applicant may exceptionally be absolved from exhausting a domestic

remedies available to him; whereas in this connection the Commission

has further held that the appreciation of such circumstances falls

within the competence of the Commission (e.g. Application No. 222/56

- X. v. the Federal Republic of Germany, Yearbook, Vol. ", p. 344, 351

and the Commission's decision of 22nd December, 1967, on the

admissibility of application No. 2396/65); whereas it is, therefore,

necessary for the Commission to examine whether the particular

submissions by the applicant in this respect reveal any such

circumstances as could validly have absolved the applicant from

exhausting all domestic remedies at his disposal;

Whereas, firstly, the applicant has submitted that he was advised by

several lawyers that a constitutional appeal would have no prospect of

success; whereas in this respect the Commission has constantly held

that advice by lawyers as to the possibility of success on appeal does

not constitute a valid excuse for not exhausting a particular remedy

(cf. application No. 1488/62 - X v. Belgium, Collection of Decisions,

Vol. 13, p. 93, 96); whereas the Commission specifically refers to its

decision in this sense of 22nd March, 1958, declaring inadmissible

Application No. 272/57, which concerned the advice of a lawyer as to

the possible result of a constitutional appeal in the Federal Republic

of Germany;

Whereas the applicant has further submitted that about July 1964 he

personally enquired at the Federal Constitutional Court and was told

by a "high official" that his appeal would have no success;  whereas

the Federal Government has submitted in reply that no record of such

a conversation existed; whereas the applicant at the oral hearing has

elaborated his original statements and now maintains that the

conversation concerned took place during a casual meeting in the Court

building; whereas, even assuming that such a conversation occurred, the

Commission finds that statements made by an unidentified official

during the course of a casual meeting cannot absolve the applicant from

the requirement to exhaust all available remedies;

Whereas the applicant also claims that having regard to the long time

normally required for proceedings on a constitutional appeal, he could

not have been expected to lodge such appeal; whereas the Federal

Government has referred, by way of example, to several cases in which

the Federal Constitutional Court has dealt with constitutional appeals

of a similar kind within a year; and whereas the Federal Government,

in particular, has pointed out that the applicant's previous

constitutional appeals had been dealt with within that period; whereas

it is true that the Commission in its jurisprudence has recognised that

alleged delay of proceedings in the Federal Constitutional Court, if

proved, could possibly excuse an applicant from the obligation to seize

that Court; whereas, however, the Commission finds that in the present

case, the applicant has failed also in this respect to show that the

existence of any such circumstances which would validly have absolved

him from the duty to avail himself of a constitutional appeal;

Whereas, finally, the applicant has referred to his bad state of health

and financial distress at the time when a constitutional appeal could

have been lodged; whereas he has also submitted that in November, 1962

and again subsequently, he had been told by his counsel, allegedly

acting on information, or instruction, from a prosecution officer and

a judge, that he would be prosecuted for defamation if he pursued the

case in such a way that Dr. X., a Presiding Judge of the Federal Court,

became involved and that he therefore considered it tantamount to

"suicide" if he lodged a constitutional appeal in which he set out

details of the X. question; whereas the Federal Government has,

however, referred to a number of letters written by the applicant to

different courts, including a letter of 9th June, 1964, to the Federal

Court, in which the applicant repeatedly requested the hearing of Dr.

X. as a witness or stated that the latter was identical with an

Assessor X. who had been in the service of the Nazi regime; whereas the

Federal Government has submitted that such conduct both before and

during the period when he could still lodge a constitutional appeal

clearly indicates that he was not afraid of ventilating this opinion

and therefore of bringing the matter before the Federal Constitutional

Court;

Whereas the Commission finds that, even assuming that the applicant was

threatened with prosecution if he pursued his case by way of a

constitutional appeal, the applicant's activities during the period

concerned shows that the reason he abstained from lodging a

constitutional appeal was not because of any fear of repercussions;

nor does the Commission consider that the applicant has shown that

other elements in his personal situation amounted to such circumstances

as could have absolved him from the need to exhaust this remedy;

Whereas, therefore, the condition as to the exhaustion of domestic

remedies laid down in Articles 26 and 27, paragraph (3) (Art. 26, 27-

3), of the Convention has not been complied with by the applicant as

regards this part of the application;

For these reasons and without in any way prejudging the merits of the

case, the Commission

1. Declares admissible the part of the application that relates to the

length of the criminal proceedings against the applicant (Article 6,

paragraph (1) (Art. 6-1), of the Convention);

2. Declares the remainder of the application inadmissible.