THE FACTS

Whereas the facts presented by the Applicant may be summarised as

follows:

The Applicant is an American citizen, born in 1922 in Germany. He is

a management consultant by profession and at present residing at

Farmington, Michigan, USA.

On 20th May, 1963, he lodged an Application (No. 1908/63) with the

Commission which was declared inadmissible on 8th July, 1964, for

non-exhaustion of domestic remedies, all proceedings in which the

Applicant was involved, at that time still pending before the German

courts. He now presents his case again as follows:

I. He states that in 1959 he took up employment under a two-year

contract with the Volkswagenwerke A.G. at a monthly salary of 4,000 DM.

Due to differences of opinion as to certain management problems, it was

decided that the Applicant's employment should be discontinued. It was

further agreed in writing that he should be fully remunerated for the

remainder of the two-year period.

As the Company allegedly failed to honour this agreement and as other

disputes arose, the Applicant filed in November, 1960, a suit before

the Labour Court (Arbeitsgericht) of Braunschweig claiming damages of

70,000 DM. The case is still pending and, according to the Applicant,

a hearing of the Parties has not been fixed in 4 1/2 years.

II. (1) In December, 1960, the Applicant was arrested but immediately

released on bail of 10,000 DM. On his arrest all his papers were seized

although no valid search warrant had been issued. These papers were

subsequently turned over to the Volkswagenwerke for inspection.

In April, 1962 he moved to Innsbruck.

It appears that on .. June,. 1962, he was convicted by the Regional

Court (Landgericht) at Hildesheim on charges of fraud and making false

statements and sentenced to one year's imprisonment. The above bail was

declared forfeit as security for costs.

(2) On .. October, 1962, the Applicant was arrested in Austria, his

extradition to Germany having been requested by the German authorities

in pursuance of an order of the local judge at Wolfsburg, dated ..

October, 1962.

(3) It appears that the Applicant had lodged an appeal (Revision) with

the Federal Court (Bundesgerichtshof) with regard to his conviction on

the charge of fraud, but had failed to appeal against his conviction

for making false statements.

On January, 1963, the Federal Court quashed the conviction for fraud

and ordered a new hearing before the Regional Court at Braunschweig.

(4) On .. February, 1963, the Applicant was extradited from Austria to

Germany where, without having ever been heard by a judge, he was

suddenly released on .. March, 1963. He was then informed that a

deportation order would be issued to bar permanently his entry into

Germany, but that the Public Prosecutor would discontinue the criminal

proceedings against him on condition that he did not pursue his claims

against the Volkswagenwerke. This he refused to do.

After his release on .. March, 1963, the Applicant returned to

Innsbruck and, on .. May, 1963, the Mayor (Regierungspräsident) of

Lüneburg (Germany) issued a deportation order against him in his

absence.

(5) On .. October, 1963, the Regional Court at Braunschweig heard the

case referred to it by the Federal Court and convicted the Applicant

on the charge of fraud, presumably in his absence. On the same day the

Regional Court gave a decision declaring the bail of 10,000 DM forfeit,

allegedly without having issued an order of forfeiture and without

having given the Applicant an opportunity to be heard, and although the

local judge at Wolfsburg, in 1962, had allegedly ordered the bail to

be returned to him.

(6) It appears that the Applicant lodged an appeal (Revision) against

his conviction of .. October, 1963 with the Federal Court and another

appeal (Beschwerde) against the order of forfeiture of the bail with

the Court of Appeal at Celle.

The latter appeal was dismissed by the Court of Appeal on .. January,

1964, and a constitutional appeal (Verfassungsbeschwerde) lodged

against this decision with the Federal Constitutional Court

(Bundesverfassungsgericht) was rejected on .. February, 1965, as being

clearly ill-founded.

By decision of .. November, 1964, the Federal Court, however, again

quashed his conviction for fraud and decided that no further

proceedings should be taken on this count.

(7) The Applicant states that he also lodged an application for retrial

concerning his conviction for making false statements and that this was

dismissed by the Court of Appeal of Celle on .. August, 1965.

(8) In September, 1963, the Applicant had unsuccessfully requested that

criminal proceedings should be instituted against the above judge at

Wolfsburg, another judge, the Public Prosecutor and six witnesses.

(9) The Applicant ascribes the actions taken against him to the

influence of Volkswagenwerke then owned by the Government, and of the

local judge at Wolfsburg, a former SS officer. The same intrigues

caused his dismissal from employment by another management consultant

at Siegburg. In September, 1961, he instituted legal proceedings

against this second employer before the Labour Court in Cologne, but

he does not indicate what decision was given by this court.

The Applicant alleges that, as a result of his illegal and unfounded

prosecutions, he lost his property and employment and suffered injuries

to his health;  that since his arrest his case against the

Volkswagenwerke has been deliberately sabotaged;  that his deportation

prevents him from visiting his parents living in Germany and caused the

breakdown of his marriage.

III. Consequently, it appears that the Applicant was finally convicted

only in respect of the charge of making false statements. This

conviction was pronounced by the Regional Court of Hildesheim on ..

June, 1962 and the Applicant did not appeal against it. In respect of

the charges of fraud, his conviction was finally quashed by the Federal

Court on .. November, 1964. It seems, therefore, that the Applicant's

complaints concern primarily his final conviction in 1962 with regard

to making false statements but that he also considers the subsequent

proceedings to be objectionable.

IV. The Applicant's complaints may be set out as follows:

(1) In December, 1960 his papers were seized without a valid search

warrant and only a part of these papers were returned to him so far;

(2) Prior to and during the trial in 1962, the Public Prosecutor gave

false and misleading statements to the Press which contributed to

destroying whatever chances he might have had for future employment in

Germany;

(3) His conviction and sentence as well as the court proceedings

concerned were unlawful. In this respect it appears that he complains

not only of his conviction for making false statements in June, 1962,

but also of his subsequent conviction for fraud which was quashed by

the Federal Court. He alleges in particular:

(a) that he was wrongly convicted;

(b) that the court proceedings in June, 1962 were unlawful in that:

(aa) new facts were introduced by the prosecution so late that he had

no possibility of preparing his defence;

(bb) he was called a gangster before and during the trial;

(cc) that he was not allowed any assistance by counsel;

(c) that in the 1962 proceedings and the subsequent proceedings the

courts had refused to hear witnesses and check documents attesting to

his innocence;

(4) The refusal of a retrial with respect to his conviction for making

false statements was unlawful;

(5) The Convention had been violated in that:

(a) his arrest in Austria on .. October, 1962 leading to his

extradition to Germany was unlawful, and

(b) there was no danger of flight which could have justified his

detention pending extradition in Austria from .. October, 1962 to ..

February, 1963;

(6) Subsequent to his extradition the German authorities had violated

the Convention in that:

(a) he was unlawfully detained in prison in Germany from .. February,

1963 to .. March, 1963 and was neither heard by a judge during that

period nor informed of the reasons for his detention;

(b) there was no danger of flight justifying his detention in Germany

from .. February to .. March, 1963;

(7) During his detention

(a) the prison authorities refused to give him writing materials and

the mail from his lawyer and the American Consulate was held back (it

is not clear whether this allegation concerns his detention in Austria

or in Germany);

(b) he was subjected to degrading and inhuman treatment in that the

prison authorities refused him medical treatment, he had to sleep on

the floor for several weeks, and was occasionally locked in a cold cell

(it is not clear whether this allegation concerns his detention in

Austria or in Germany);

(8) He was deprived of his possessions in that the bail was declared

forfeit and moreover the decision of .. October, 1963 by which the bail

was declared forfeit was unlawful and that there was no hearing and no

court decision published in this regard;

(9) The German authorities discriminated against him by reason of his

anti-Nazi opinions.

V. The Applicant alleges a violation of Articles 3, 5, 6, 8, 13, 14 and

16 of the Convention as well as Article 1 of the Protocol to the

Convention. He also claims damages of 613,000 DM.

THE LAW

Whereas, in regard to the Applicant's complaints that his papers were

seized in 1960 (see IV, (1) of the Facts) and that the Public

Prosecutor made statements to the press prior to and during the trial

in June, 1962 (see IV, (2) of the Facts), 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 show that he has raised these points

with any German court; whereas, therefore, he has 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, from

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, paragraph (3) (Art. 26, 27-3), of the Convention

has not been complied with by the Applicant;

Whereas the Applicant apparently complains of his conviction and

sentence by the Hildesheim Regional Court on .. June, 1962, on charges

of making false statements and of fraud;

Whereas, first in regard to his complaints relating to his conviction

and sentence for making false statements and the court proceedings

relating to this charge, the Applicant failed to appeal from the

decision of the Regional Court at Hildesheim, dated .. June, 1962;

whereas, therefore, he has again not exhausted the remedies available

to him under German law, and no special circumstance is to him under

German law, and no special circumstance is disclosed which might have

absolved him from exhausting such remedies; 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;

Whereas, secondly, as regards his complaints concerning his conviction

and sentence for fraud by the same Court (see IV, (3) of the Facts),

it is pointed out that, finally, his appeal from the above decision was

successful in that, on .. November, 1964, the Federal Court quashed his

conviction by the former court and decided that no further proceedings

should be taken on this count; whereas, even assuming that his

allegations in respect of the above proceedings might raise a question

under the Convention, the alleged maladministration of justice on the

part of the Regional Court at Hildesheim must be regarded as having

been remedied by the decision of the Federal Court; 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 complaints relating to his claim

for a retrial of the case against him for making false statements and

the court proceedings concerned (see IV, (4) of the Facts), 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 the right to a retrial is not as

such included among the rights and freedoms guaranteed by the

Convention; and whereas, in accordance with the Commission's constant

jurisprudence, proceedings concerning applications for retrial fall

outside the scope of Article 6 (Art. 6) of the Convention (see

Applications Nos. 864/60 - M v. Austria - Collection of Decisions,

Volume 9, page 17, and 1237/61 - T. v. Austria - Yearbook V, page 96);

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, with regard to the Applicant's complaints concerning his

arrest and detention in Austria (see IV, (5) of the Facts) and his

alleged bad treatment in prison during his detention in Austria (see

IV, (7) of the Facts) it is to be observed that the present Application

is directed solely against the Federal Republic of Germany; whereas his

above complaints relating to events which have occurred in Austria, can

in no way be held to involve any responsibility under the Convention

of the Federal Republic of Germany;  whereas, therefore, the Commission

has no competence ratione personae to examine these complaints in so

far as they relate to the Applicant's detention in Austria; whereas it

follows that, in this respect, 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 complaints that he was wrongly

detained in prison in Germany from .. February, 1963 to .. March, 1963

following his extradition (see IV, (6) of the Facts) and also in regard

to his complaints relating to his alleged bad treatment which he

underwent in prison in Germany (see IV, (7) of the Facts), 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 show that he has

raised these points before any German Court; whereas, therefore, he has

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, from 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, paragraph (3) (Art. 26, 27-3), of the

Convention has not been complied with by the Applicant;

Whereas, in regard to the Applicant's complaints that, as a result of

the forfeiture of his bail, he was deprived of his possessions, and to

his complaints relating to the court proceedings concerned (see IV, (8)

of the Facts), it is to be observed that, even assuming that such

proceedings should fall under Article 6, paragraph (1) (Art. 6-1), 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 the rights and freedoms set forth in the

Convention or the Protocol and in particular in the Articles of the

said Protocol;

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 complaints that he suffered

discriminating treatment by reason of his anti-Nazi opinions (see IV,

(9) of the Facts), an examination of the case as it has been submitted

does equally not disclose any appearance of a violation of the rights

and freedoms set forth in the Convention and in particular in Article

14 (Art. 14); whereas it follows that this part of the Application is

also manifestly ill-founded within the meaning of Article 27, paragraph

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

Whereas, with regard to the Applicant's complaints relating to the

length of the proceedings before the Labour Court at Braunschweig

concerning his claim against the Volkswagenwerke A.G. (see I of the

Facts), it is to be observed that Article 6, paragraph (1) (Art. 6-1),

provides that "in the determination of his civil rights and obligations

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

reasonable time by an independent and impartial tribunal established

by law";

Whereas the Applicant alleges that he filed his action in the Labour

Court of Braunschweig in 1960, where the case is still pending, and,

after a period of 4 1/2 years, a hearing of the Parties has still not

yet been fixed; whereas it is pointed out that the right to have one's

case heard within a reasonable time is, particularly in civil cases,

dependent on the interested Party taking himself the necessary steps

duly to pursue the action; whereas, in the present case, the Applicant

has failed to show in what way he has taken any steps to expedite the

proceedings before the Labour Court of Braunschweig;

Whereas the Commission is satisfied that an examination of the case as

it has been submitted, including an examination made ex officio, does

not disclose any element indicating that it was the Court which was

responsible for the delay; whereas, consequently, the Commission finds

no appearance of a violation of the rights and freedoms set forth in

the Convention and in particular in Article 6 (Art. 6);

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.