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X. v. THE FEDERAL REPUBLIC OF GERMANY

Doc ref: 3139/67 • ECHR ID: 001-3045

Document date: February 6, 1968

Inbound citations: 0
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Cited paragraphs: 0
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X. v. THE FEDERAL REPUBLIC OF GERMANY

Doc ref: 3139/67 • ECHR ID: 001-3045

Document date: February 6, 1968

Cited paragraphs only

THE FACTS

Whereas the facts presented by the Applicant may be summarised as

follows:

The Applicant is a German national born in 1924 and at present detained

in the prison at Tegel.

On .. May, 1966, the Applicant was convicted of theft by Regional Court

(Landgericht) in Berlin and sentenced to three years penal servitude.

His appeal (Revision) was rejected by the Federal Court

(Bundesgerichtshof) in Berlin on .. October, 1966. The sentence of the

court provided that the period of detention on remand pending appeal,

less three months, should be counted as part of the Applicant's

sentence.

The Applicant's complaint is directed against the courts failure to

order that this period of three months should also be counted as part

of his sentence. He maintains that the failure to do so is equivalent

to an increase of sentence which he alleges is not justified by the

provisions of any law and is contrary to Article 358, paragraph 2 of

the Code of Criminal Procedure which he quotes as follows:

"The judgment appealed against may not be altered to the prejudice of

the accused with regard to the type or extent of the punishment, if

only the accused or his legal representative have appealed."

He maintains that the failure to count this period constitutes a

discrimination against an appellant who is in prison as compared to an

appellant who is at liberty. He complains that when he was informed by

the court of the possibility of an appeal he was not warned of the

danger that the length of his imprisonment might be so increased if he

was unsuccessful.

He also complains that the decision was taken in camera in the absence

of the accused and his lawyer:

The Applicant invokes Article 7, paragraph (1) and Article 5, paragraph

(5) of the Convention.

THE LAW

Whereas, in regard to the Applicant's complaint that the Federal Court

in fixing his sentence failed to give credit for three months of the

period which he had spent in detention on remand pending his appeal,

it is to be observed that the Convention, under the terms of Article

1 (Art. 1), guarantees only the rights and freedoms set forth in

Section I of the Convention; and whereas, under Article 25, paragraph

(1) (Art. 25-1), only the alleged violation of one of those rights and

freedoms by a Contracting Party can be the subject of an application

presented by a person, non-governmental organisation or group of

individuals,

Whereas otherwise its examination is outside the competence of the

Commission ratione materiae; whereas no right to obtain credit for a

period spent in detention on remand is as such included among the

rights and freedoms guaranteed by the Convention; whereas in this

respect the Commission refers to its previous decision, No. 2720/66 -

X. v. Federal Republic of Germany; whereas it follows that this part

of the Application is incompatible with the provisions of the

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

of the Convention;

Whereas, in regard to the Applicant's complaint that the decision of

the Federal Court was taken in camera in the absence of himself and his

lawyer; 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

in particular in Article 6 (Art. 6); whereas neither the prosecution

nor the defence was represented at the appeal proceedings and there

was accordingly no violation of the principle of equality of arms which

is an inherent element of a fair hearing within the meaning of Article

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

Whereas the Commission has also considered the written proceedings

relating to the prosecution's application for summary proceedings in

the determination of the Applicant's appeal; whereas the Applicant was

entitled under paragraph (3) of Article 349 of the Code of Criminal

Procedure to reply in writing to the submissions filed by the

prosecution; 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.

LEXI

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