THE FACTS

Whereas the facts presented by the Applicant may be summarised as

follows:

The Applicant is a German national, born in 1916 and at present

residing in Hanover.

I. From his statements and from the documents submitted by him, it

appears that he is a Communist and was as such denied the right to

become a candidate for the elections to the German Bundestag in 1961.

On ..., 1963, he was convicted by the High Criminal Chamber of the

Regional Court (Grosse Strafkammer des Landgerichts) at Lüneburg on

charges of contravening the law prescribing the Communist Party,

instigating a subversive association as one of its leading members and

engaging in a secret organisation with an intention hostile to the

State. He was sentenced to one year's imprisonment as well as loss of

the right to hold public office for four years. The Applicant lodged

an appeal (Revision) from this decision with the Federal Court

(Bundesgerichtshof) which was dismissed on ..., 1964. The decision was

communicated to him on ..., 1964. On ..., 1964, the Applicant lodged

a constitutional appeal with the Federal Constitutional Court

(Bundesverfassungsgericht) which was rejected on ..., 1964, on the

ground that the time-limit for lodging an appeal had expired.

The Applicant complains that he was wrongly convicted. He complains in

particular:

- that certain documents tending to incriminate him were placed in his

home by the police on the occasion of a search;

- that he was convicted by a Special Criminal Chamber

(Sonderstrafkammer) whereas such chambers were supposed to have been

abolished by the laws of the Control Council and Article 101 of the

German Basic Law;

- that he was deprived of the possibility to lodge a constitutional

appeal in time as the authorities had refused to grant him a suspension

of the execution of his sentence or a leave of absence from prison for

which he had repeatedly applied in order to collect the material to

support his complaint, as is indicated in a letter from the Office of

the Director of the prison at Oldenburg of ..., 1964; however, a

suspension of the execution of his sentence was in fact granted from

... to ..., 1964; he also had the help of a friend in collecting

material to support his constitutional appeal;

- that he had suffered discrimination by his conviction in that other

German courts did not convict on these political charges;

- that there was no appeal (Berufung) from decisions by the High

Criminal Chamber of the Regional Court and thus no instance to review

such decisions on the facts;

- that he was treated as a political prisoner and, as such, more

severely treated than other prisoners to the extent that he was

transferred from the prison at Wolfenbüttel to the prison at Oldenburg,

where he was kept in solitary confinement and strictly isolated from

other prisoners, where there are no outside activities such as sports,

television and radio, and where visits from friends and relatives are

supervised.

The Applicant alleges a violation of the Preamble as well as Articles

1, 3, 5, 6, 7, 8, 9, 10, 11, 13, 14, 17 and 18 of the Convention.

Following a preliminary examination of the Application by a group of

three members of the Commission on 23rd September, 1966, the Applicant

was invited to inform the Commission as to whether he has raised his

complaint concerning the planting of documents with any German court

and to submit the relevant court decisions. The Applicant has not

submitted any court decisions and states that the cost of having copies

made was more than he could afford.

By letter of 7th January, 1967, however, the Applicant supplied the

following additional and supplementary information:

1. On ..., 1961 a number of citizens in his electoral district

presented a proposal to the competent local Electoral Board (Wahlamt)

for his nomination as a candidate to the German Bundestag. Apparently

this proposal was rejected by the Board on ..., 1961, on the basis of

a circular (Erlass) of the Ministry of the Interior of Lower Saxony

(Niedersächsisches Ministerium des Innern), dated ..., 1961. The

Applicant maintains that he made several protests concerning this

rejection and that he demanded to be supplied with the reasons for the

rejection in writing, but that all his efforts simply led to the

introduction of the criminal proceedings against him and to his

conviction by the Regional Court (Landgericht) of Lüneburg on ...,

1963.The Applicant alleges that the refusal of his candidature to the 1961

election constitutes a violation of Article 3 of the Protocol to the

Convention.

2. With respect to the question of planting incriminating documents in

his home, he states that, when returning home in the evening of ...,

1961, he found a plain envelope which had been pushed into the

letter-box of the flat and not into the letter-box in the main hall of

the building in which his mail was placed ordinarily. The envelope

contained newspaper clippings, among others from an August edition of

the "Neues Deutschland", a newspaper representing the official organ

of the Communist Party in the Soviet-occupied Zone of Germany.

He states that the next day two police officers appeared at his place

of work and presented a search warrant which had been issued four weeks

before this visit. Together with the police officers and a third

person, one Mr. F, the Applicant returned to his home which was then

searched by the police officers. Finally, the police confiscated only

the above envelope and two pamphlets, taking nothing else although the

Applicant had invited them to seize all the election material which had

been prepared by him and which was lying around openly.

The Applicant states that certain material was put in evidence at the

trial, but it was impossible for him to tell whether this was the

material confiscated.

The Applicant alleges that he had raised this point at his trial before

the Regional Court at Lüneburg and had also pointed out to the Court

that these documents had been planted by the police. In his appeal

(Revision) to the Federal Court (Bundesgerichtshof) the Applicant

simply alleged that it had not been established where these documents

came from.

The Applicant finally states that his conviction was substantially

based on evidence given by so-called "expert witnesses" who were

employed by the Federal Office for the Protection of the Constitution

(Bundesamt für Verfassungsschutz) and who testified to events reported

to them by third persons whose identity remained concealed

(Vertrauensleute).

The Applicant complains that he was denied the right to a fair hearing

in that, by the above practice, he was prevented from "examining or

having examined witnesses against him".

In this regard he alleges a violation of Article 6, paragraph (3),

sub-paragraph (d), of the Convention.

THE LAW

Whereas, in regard to the Applicant's complaint under Article 3 of the

Protocol of 20th March, 1952 (P1-3) to the Convention, that the

authorities refused to admit him as a candidate to the 1961 elections

to the Federal Parliament, 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 a constitutional appeal with the Federal

Constitutional Court in accordance with Article 90 of the Act relating

to the Federal Constitutional Court (Gesetz über das

Bundesverfassungsgericht) in conjunction with Article 38 of the Basic

Law (Grundgesetz) and Article 16 of the Act concerning Federal

Elections (Bundeswahlgesetz) of 1956; whereas, therefore, he has not

exhausted the remedies available to him under German law;

Whereas, in regard to the Applicant's complaints that he was wrongly

convicted and sentenced by a Special Criminal Chamber of the Regional

Court at Lüneburg, that he thereby suffered discrimination in relation

to the decision of other German courts in similar cases, that documents

were planted in his home by the police and that his treatment in prison

was unlawful, it is also 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 a constitutional appeal within the time-limit

prescribed; whereas, therefore, he has again 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 in either case

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 complaint relating to the

authorities' refusal to grant a suspension from the execution of his

sentence or leave of absence from prison for the preparation of his

constitutional appeal, the Commission had regard to the fact that a

suspension from the execution of his sentence was in fact granted from

... to ..., 1964 and that the Applicant also had the assistance of a

friend in collecting material to support his constitutional appeal;

whereas, therefore, 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 the Articles invoked by the

Applicant; 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, finally, in regard to the Applicant's complaint as to the lack

of any possibility to appeal (Berufung) from decisions taken by the

High Criminal Chamber of the Regional Court, 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 appeal on the appreciation of

facts in a criminal case is as such included among the rights and

freedoms guaranteed by the Convention; whereas in this respect the

Commission refers to its previous decisions, Nos. 277/57, Yearbook I,

page 219; 1850/63, Collection of Decisions, Volume 19, page 71; 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;

Now therefore the Commission declares this Application INADMISSIBLE.