THE FACTS

Whereas the facts presented by the Applicant may be summarised

as follows:

The Applicant is a German citizen born in ... and living in A.  He is

represented by Y, a lawyer practising in B, who is acting under a power

of attorney dated 7th February, 1964.

On ... 1960, the Applicant was convicted by the District Court

(Amtsgericht) of B on charges under Articles 2 and 71 of the Ordinance

concerning road traffic regulations (Strassenverkehrszulassungsordnung)

combined with Articles 1, 8 and 46 of the Traffic Ordinance

(Strassenverkehrsordnung). He was sentenced to three weeks'

imprisonment.  His appeal was rejected on ... 1960 by the Regional

Court (Landgericht) of C.

By a decision of 3rd July 1962 in another case (published in Decisions,

Volume 14, page 174) the Federal Constitutional Court declared Article

71 of the first Ordinance to be unconstitutional as being against

Article 103 of the Basic Law, on 25th July 1962, it also held that

Article 49 of the Traffic Ordinance was unconstitutional as being

against Article 104 of the Basic Law.  At the same time, the Court

upheld the constitutional validity of Article 21 of the Traffic Code

(Strassenverkehrsgesetz).

Article 71 provided as follows:

"Whoever deliberately or negligently commits and act in violation of

this Ordinance, or of an order implementing it, is punishable by a fine

of up to 150 marks or by detention (Haft), provided that such act is

not punishable by heavier penalties under other provisions."

Article 49 was drafted in identical terms.

Article 21 of the Traffic Code provided as follows:

"Whoever commits an act contrary to the ordinances which are issued

concerning road traffic for the maintenance of order and safety on

public roads and areas, for the prevention of a use of streets

exceeding general traffic norms or for the prevention of traffic

impediments is punishable by a fine of up to 150 German marks or by

detention (Haft)".

On 15th August 1962, the Ministry of Justice of Niedersachsen issued

a circular letter to all Presidents of Courts of Appeal and all chief

Public Prosecutors, drawing their attention to these two decisions

by the Federal Constitutional Court.  It was further stated that, in

accordance with Article 79 of the Act on the Federal Constitutional

Court, all convictions based on the above invalidated provisions should

be revised, in case transferred to the above Article 21 (Umstellung).

It was added that for this purpose an oral hearing was superfluous.

On ... 1962 the Public Prosecutor of C requested that the Applicant's

sentence should be accordingly revalidated on the basis of Article 21

of the Traffic Code.  The Applicant, who had not yet served the term

of imprisonment imposed upon him in 1960, lodged a protest and,

invoking Article 6 of the Convention on Human Rights, requested an oral

hearing.

On ... 1963, the Regional Court of C, without hearing the Applicant,

upheld the Public Prosecutor's application and this decision was

confirmed on appeal by the Court of Appeal (Oberlandesgericht) of D on

... 1963. The latter Court held that the Public Prosecutor's

application had been duly communicated to the Applicant who submitted

his reply.  The Public Prosecutor had not further intervened in the

case, but the Superior Public Prosecutor (Generalstaatsanwalt) had

submitted to the Court that the Applicant's protests should be

rejected.  This submission had not been communicated to the Applicant

but contained, in any event, no new facts or arguments.

The Applicant's request for an oral hearing was rejected, inter alia,

on the grounds that the penalty imposed upon the Applicant was not

affected by the change of legal basis of the conviction (no reformatio

in pejus), that Article 6 of the Convention did not guarantee him an

oral hearing ("does not require at each new stage of proceedings any

new oral hearing"), and that proceedings are not necessarily

invalidated when the legal provisions invoked and applied are

subsequently held null and void.

On ... 1964 the Federal Constitutional Court rejected a constitutional

complaint lodged by the Applicant against the above decisions.

On ... 1964, the Applicant received an order dated ..., under which

he was to start serving the above term of imprisonment within a period

of eight days.  On the previous day, the Applicant's lawyer had

requested a suspension of his imprisonment pending the examination of

the present Application by the Commission.  This request was rejected

on the same day and on ... the Applicant's lawyer lodged an appeal

(Sofortige Beschwerde).  The Commission has not been informed of the

outcome of these proceedings, but it is to be presumed that the appeal

was rejected and that the Applicant has now served his term of

imprisonment.

The legal submissions made by the Applicant's lawyer, as contained

in his letter of 6th February 1964, may be resumed as follows:

1. Article 71 was the only provision of those cited in the decision of

the District Court of B and the Regional Court of C which provided for

a penalty.  When this provision was subsequently annulled, the entire

basis for the Applicant's conviction and sentence disappeared.

According to German Constitutional Law, an invalidated provision is

invalid ex tunc: consequently, the indictment and the decisions relying

on provisions which were, legally speaking, non-existent, were null and

void. The Applicant's guilt has never been proved according to law. It

is inherent in proving a person's guilt that such proof is based on a

validly enacted law.

2. Article 79 of the Act on the Federal Constitutional Court stipulates

that a retrial may take place when a provision, upon which a decision

relies, has been invalidated.  Only the "convicted" person has the

right to request such a retrial.  It also refers to the general

provisions of the Code of Criminal Procedure (Strafprozessordnung)

which, apart from Article 362, not applicable in the present case, does

not provide for retrials (Wiederaufnahme) to the prejudice of a

"convicted" person.

Nevertheless, the Public Prosecutor of C applied for a retrial with a

view to changing the legal foundation of the decision under which the

Applicant was sentenced.

3. The proceedings before the Regional Court of C and the Court of

Appeal of D were held in spite of the requirements of the Convention,

in that the Applicant was denied the right to an oral hearing before

these Courts.

4. The Courts were not independent or impartial as they acted on

the basis of the instructions given to them by the Minister of Justice

in his circular letter of 15th August 1962.  This amounted to an

unwarranted and unjustifiable interference on the part of the executive

with the administration of justice by the judiciary.

Whereas the Applicant alleges violations of Articles 3, 5, paragraph

(1) (a);  6, paragraphs (1) and (2);  and 7, paragraph (1), of the

Convention.

He also alleges that the execution of the sentence imposed upon him

by these decisions is contrary to Article 25, paragraph (1), in fine

of the Convention.

THE LAW

Whereas, in regard to the Applicant's complaints under Article 6 (Art.

6), the present Application raises for the first time the question to

what extent the provisions of the Convention are applicable to legal

proceedings resulting in a decision which acquired the nature of res

judicata but which have subsequently been re-opened by the

domestic Courts; whereas, in the present case, the proceedings

concerned were re-opened as a result of certain legal provisions

relevant to those proceedings being subsequently found by a Court to

be unconstitutional on a technical ground;

Whereas, Article 6, paragraph (1) (Art. 6-1), provides that: "in the

determination ... of any criminal charge against him, everyone is

entitled to a fair and public hearing ... by an independent and

impartial tribunal ...";

Whereas the Commission has frequently stated that a person who has been

convicted by a Court decision amounting to res judicata is not a person

"charged with a criminal offence" within the meaning of Article 6

(Art. 6), and thus not entitled to the rights guaranteed therein;

whereas it has further held that the provisions of Article 6

(Art. 6) are not applicable to a convicted person during subsequent

revision proceedings initiated by him before a domestic Court, unless

that Court is seized of any criminal charges against him, whether it

be the initial charge or that which a Public Prosecutor might have

newly formulated or repeated if the convicted person's application for

revision had been granted (see decisions in Nos. 913/60, H. v. Austria,

Collection of Decisions, Volume 8, page 43 and 864/60, M. v. Austria,

ibid., Volume 9, page 17);

Whereas the decision of a court which declared unconstitutional certain

legal provisions relied upon by a lower court in a previous decision

might, in certain circumstances, result in new proceedings during which

the question could arise whether or not new charges were being formally

brought against an Applicant; whereas, therefore, the procedure

followed by the German Courts in the present case might, if applied as

a general rule, raise doubts as to whether it was compatible with the

Convention;

Whereas, accordingly, regard must be had to the particular

circumstances of each case; whereas, in the present case, the

Commission finds it essential to distinguish between the Applicant's

conviction and his sentence pursuant to that conviction;

Whereas, the decision of the Federal Constitutional Court, by which it

found Article 71 of the Ordinance concerning Traffic Regulations to be

invalid as being contrary to the Constitution, had the effect of

vitiating the legal basis of the sentence imposed upon the Applicant

but in no way affected the legal or factual basis of his conviction

under Article 2 of the above Ordinance and under Articles 1, 8 and 46

of the Traffic Ordinance;

Whereas it follows that his conviction as such remained res judicata

and was not open to review during the subsequent proceedings before the

Regional Court of C and the Court of Appeal of D; whereas, indeed, the

sole duty of these Courts was to reconsider, under Article 21 of the

Traffic Code, the Applicant's sentence passed under the said Article

71 pursuant to his conviction under the Articles referred to above;

whereas the Applicant, in the proceedings before the said Courts, was

not a person "charged with a criminal offence" within

the meaning of Article 6 (Art. 6);

Whereas the Applicant has lodged complaints under Article 6, paragraph

(1) (Art. 6-1), that he was not accorded an oral hearing and that the

proceedings were conducted before Courts which were not independent,

and further, under Article 6, paragraph (2) (Art. 6-2), that he was not

presumed innocent during these proceedings; whereas, in regard to these

complaints, the Commission has found that the Applicant was not a

person "charged with a criminal offence", whereas this part of the

Application is therefore incompatible with the provisions of the

Convention and must be rejected in accordance with  Article 27,

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

Whereas, at the same time, the Commission considers that it would be

useful to point out first, that Article 71 and Article 21 of the

Traffic Code were drafted in identical terms and provide for the same

penalties; whereas, indeed, Article 71 was found by the Federal

Constitutional Court to be unconstitutional solely on the ground that,

contrary to Articles 103 and 104 of the Basic Law, it had not been

embodied in a formal Act of Parliament but in an Ordinance which was

thus ultra vires (N.J.W. 1339);

Whereas the Commission secondly observes that the Public Prosecutor did

not apparently request that a sentence under Article 21 should be

imposed upon the Applicant heavier that the one which he had previously

received under Article 71; whereas, in fact, the sentence which the

Applicant received during the proceedings before the Regional Court of

C in 1963 was in no way different from the one which he had received

in 1960;

Whereas, thirdly, the Commission points out that, during the

proceedings concerned, the Applicant was in fact given the opportunity

of submitting arguments in writing to the Courts concerned and that

those Courts took full note of these arguments; whereas, in this

respect, the Commission refers to its decisions Nos. 599/59 (B. v. the

Federal Republic of Germany, Collection of Decisions, Volume 8, page

12) and 1035/61 (G. v. the Federal Republic of Germany, ibid., Volume

10, page 12) in respect of appeal proceedings under Article 349 of the

German Code of Criminal Procedure; whereas, in those decisions the

Commission found that the Public Prosecutor and the Applicant, although

they were not present at the hearing, had availed themselves of the

possibility of presenting their arguments to the Court in writing and

that, in these circumstances, the conduct of the proceedings was not

inconsistent with the provisions contained in Article 6 (Art. 6);

Whereas the Commission finally points out, in regard to the Applicant's

allegation that the Courts were not independent but followed the

instructions of the Minister of Justice of Niedersachsen, that, having

regard to the circular letter of 15th August 1962 and the decisions of

the two Courts in question, no indication exists to show that the

Government of Niedersachsen unduly interfered with the administration

of justice so as to deprive the Courts of their independence;

Whereas, in respect of the alleged violation of Article 5, paragraph

(1) (a) (Art. 5-1-a), it is pointed out that the Applicant was duly

convicted by a competent Court within the meaning of that paragraph;

Whereas, in respect of the alleged violation of Article 7, paragraph

(1) (Art. 7-1), the offence for which the Applicant was convicted

"constituted a criminal offence ... at the time it was committed", and

the penalty imposed upon him under Article 71 was not heavier than the

one provided for in Article 21 which "was applicable at the time the

criminal offence was committed";

Whereas it follows that there is no appearance of a violation of

Articles 5 or 7 (Art. 5, or 7) nor, a fortiori, of Article 3 (Art. 3)

of the Convention;

Whereas these parts of the Application are manifestly ill-founded and

must be rejected in accordance with Article 27, paragraph (2)

(Art. 27-2) of the Convention;

Whereas, finally, in regard to the alleged violation of Article 25,

paragraph (1) (Art. 25-1) in fine of the Convention, it is to be

pointed out that an application to the Commission does not impose,

under the terms of the Convention, any obligation upon the Contracting

Parties to refrain from giving effect to a Court decision pending the

conclusion of the connected proceedings before the Commission; whereas,

in this respect, the Commission refers to the principle laid down in

decision No. 297/57 (H. v. the Federal Republic of Germany, Yearbook

2, page 204);

Whereas, also this part of the Application is manifestly ill-founded

and must be rejected in accordance with Article 27, paragraph (2)

(Art. 27-2) of the Convention;

Now therefore the Commission declares this Application inadmissible.