THE FACTS

Whereas the facts of the case may be summarised as follows:

1. The Applicant is a German citizen born in ... and is at present

detained in prison. He has been convicted on 25 previous occasions on

various charges and has served sentences in prison and has been

detained in concentration camps for three years.

In response to the present case, the Applicant was arrested on ... 1958

on suspicion of having committed theft and fraud, inter alia, by

promising marriage to elderly women for the purpose of obtaining money

from them.  He alleges that he was denounced by a woman named Mrs. A.

but admits that he is guilty of certain of the crimes of which he was

charged.

On ... 1958, he informed the Public Prosecutor that he was the victim

of a plot on the part of Mrs. A. and a certain Mr. B.  The Applicant

states that B. was charged with him for the same offenses and that B.

was an "unreliable and untrustworthy person" who had already denounced

several innocent persons to the police in East Germany and, further,

that Mrs. A. with whom he, the Applicant, had lived, had private

grudges against him.

2. The Applicant also states that the sole purpose of the investigation

of the charges against him was to obtain his conviction and not to

find out the true facts. The police officials had told him that a

detailed investigation of the case was superfluous as the facts were

evident from the statements made by Mrs. A. and Mr. B. and would

justify a reduction of his sentence to one of detention for security

purposes (Sicherungsverwahrung). The Applicant now alleges that the

police violated Article 160 of the Criminal Penal Code by not taking

into consideration the circumstances of the case, and, in particular,

those circumstances which were in his favour as an accused person. The

Applicant, therefore, refused to cooperate with the police who had so

far dealt with his case and he was not subjected to any further

interrogation between ... 1959 and his trial in ...1959. The indictment

against him was finally drawn up on ...1959.

3. It is also stated by the Applicant that during a Session of the ...

Chamber of the Regional Court (Landgericht) of C. on ... 1959, a judge

indirectly accused him of murder by asking him, in connection with his

previous attempt to commit suicide by taking luminal, whether he had

not taken a wrong glass. Interpreting this question as implying that

the glass had been designed for somebody else, the Applicant asked on

... 1959 that the Chamber should be declared as having no competence

in the case. This request was refused by the Chamber on ... 1959 and

the Applicant apparently took no further steps in this respect.

4. On ... 1959 the Applicant was apparently refused permission to

attend a court session where witnesses were to be heard, and he states

that these witnesses were informed of his criminal record and that

leading questions were put to them.

On ... 1959, five days before his trial, the Court appointed a lawyer

to defend the Applicant, but on the following day, the Applicant asked

that another lawyer in whom he had more confidence should be appointed.

This request was refused, but in the meanwhile, the lawyer whose

services he had asked for had applied for an adjournment of the case

on the ground that an adequate preparation of the Applicant's defence

was impossible owing to lack of time. This application was also

rejected.

The Applicant alleges that the lawyer appointed to defend him did  not

take any interest in his case, that he did not ask for adjournment

which was necessary for the proper preparation of his defence and  that

he, the Applicant, was consequently deprived of his  constitutional

rights. He further adds that it is absurd that the outcome of a trial

and the fate of an accused person should depend entirely on the whim

of an officially appointed lawyer.

5. The Applicant, during the course of his trial on ..., ... and ...

1959 was ill and states that this was partly due to the drugs

prescribed by the doctors of the prison hospital. He maintains that his

bad health made his defence impossible.

He even alleges that on ... 1959 he was physically attacked in the

Court by a health expert whose medical examination was superficial and

irresponsible and whose appointment on ... 1959 he had refused to

recognise.

The Applicant's various requests to call his own expert evidence  as

to his alleged criminal tendencies were rejected.

6. On ... 1959 the Applicant was convicted by the Regional Court of C.

on certain of the charges mentioned above and sentenced, as a habitual

criminal, to five years' imprisonment, to four separate fines of 10 DM,

to loss of civil rights for five years and to preventive detention

(Sicherungsverwahrung) for five years. He now states that the Court was

biased and in this respect he refers to the passage in its judgment

concerning the Applicant's past convictions. He maintains that the

Court did not take into consideration the extenuating circumstances of

the crimes of which he had been previously accused and he requests that

the Commission asks for and examines all the files regarding his

post-war convictions.

The Applicant also submits that the Court was in error in accepting

Mrs. A's evidence, which was prejudiced and which was different from

the statements given by her to the police during the investigation.

Moreover, the judge posed "subjective questions" which were not

relevant to the case, but which tended to incriminate the Applicant

and, in general, the Court did not apply the generally recognised

doctrine of in dubio pro reo.

7. On ... 1959 the Court's decision was communicated to the Applicant,

who alleges that his lawyer, in spite of the Applicant's being admitted

to hospital on ... 1959, took not steps to appeal from this decision,

but simply stated that he had not time to deal with the Applicant's

case. Consequently, the Applicant himself, on ... 1960, lodged an

appeal without any assistance from his lawyer and on ... 1960 submitted

to the Federal Court (Bundesgerichtshof) a document in support of his

appeal in which he pleaded, inter alia, that the European Convention

on Human Rights had been violated during the proceedings before the

Regional Court.

On ... 1960, the Applicant requested that a lawyer be appointed to

assist him during the appeal proceedings, but in a decision of ...

1960, of which a copy has been submitted to the Secretariat, the

Regional Court refused this request on the ground that legal assistance

was not necessary at that stage of the proceedings. This decision was

upheld by the Chamber Court (...) of C. on ... 1960.

On ... 1960, the Federal Court dismissed the Applicant's appeal after

having heard the Public Prosecutor (nach Anhörung des

Generalbundesanwalts).

8. The Applicant alleges that the minutes of the Court proceedings

were substantially changed seven days after his trial and after they

had been signed. He states further that he was refused permission to

copy certain documents in the file of his case.

The allegations of the applicant:

Whereas the Applicant alleges violations of Articles 3, 5 and 6 of the

Convention;

- in that he was not presumed innocent until proved guilty, according

  to law;

- in that the Regional Court of C. was not impartial in its conduct of

  the proceedings against him;

- in that the witnesses for the prosecution were heard in his absence

  and that this did not constitute a fair hearing of his case;

- in that he was deprived of his right to prepare a proper and adequate

  defence;

- in that the facilities necessary for his defence were not granted to

  him;

- in that evidence requested by the defence was not allowed to be

  called;

- in that he was denied free legal assistance during the appeal

  proceedings;

- in that he was not allowed to be present at the hearing of his case

  before the Federal Court.

The object of the application:

Whereas the Applicant claims a retrial of the charges against him and

an investigation of the methods used by the police and the courts in

C.

Proceedings before the commission:

The Application was submitted to the Commission during its 30th Session

(24th to 28th July 1961) which decided:

(a) to declare inadmissible the parts of the Application which related

to the proceedings before the Regional Court of C. as being manifestly

ill-founded, there being no apparent violation of Articles 3, 5 and 6

of the Convention.

(b) to communicate to the Government of the Federal Republic of

Germany, under Rule 45, paragraph (3) (b) of the Rules of Procedure,

the remaining part of the Application, in which the Applicant alleged

a violation of Article 6 in that he was denied the right to defend

himself in person before the Federal Court, and to invite the

Government to submit its observations in writing as to the

admissibility of that part of the Application.

On 14th November 1961, the Respondent Government submitted its

observations which may be summarised as follows:

(a) In accordance with Article 349, paragraph 2 of the German Code of

Criminal Procedure, the Applicant's appeal was rejected by the Federal

Court in a closed session without an oral hearing of either party. The

appeal proceedings consisted solely of an exchange of written pleadings

and the submissions made by the Public Prosecutor were communicated to

the Applicant and to his lawyer.

(b) The expression "nach Anhörung", as used in the decision, does not

mean that the Public Prosecutor was actually heard in person, but has

a purely formal significance in certifying that Article 33 of the Code

had been observed (This Article provides that the Public Prosecutor

must be given comments on the appeal).

(c) The appointment by the Court of a lawyer to act for the Applicant

was not revoked until ... 1960, namely, after the expiry of the

time-limit fixed for the making of submissions to the Court. The

Applicant had consequently legal assistance during the Spring of 1960

when the exchange of the written pleadings in the case took place.

(d) In general, that there had been no violation of Article 6,

paragraph (3) of the Convention and that the Application was manifestly

ill-founded.

THE LAW

Whereas, in regard to the Applicant's complaints of violations of

Articles 3, 5 and 6 (Art. 3, 5, 6) of the Convention during the

proceedings before the Regional Court of C., namely, that he was not

presumed innocent until proved guilty, in that the Court was not

impartial, that the witnesses for the prosecution were heard in his

absence, that he was deprived of his right to prepare a proper and

adequate defence, that the facilities necessary for his defence were

not granted to him and that evidence requested by the defence was not

allowed to be called, it is to be observed that on 27th July 1961 the

Commission held an examination of the case as it was submitted,

including an examination ex officio, did not disclose any appearance

of a violation of the above Articles of the Convention; whereas the

subsequent submissions by the Applicant, in so far as they relate to

these complaints, do not provide any grounds for a reconsideration of

the finding reached by the Commission on 27th July, 1961; whereas it

follows that these complaints are manifestly ill-founded and must be

rejected in accordance with Article 27, paragraph (2) (Art. 27-2) of

the Convention;

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

free legal assistance during the appeal proceedings before the Federal

Court, it is to be observed that such legal assistance was not refused

until after the Applicant's appeal had been lodged an supporting

arguments had been submitted; whereas, in its decision of ... 1960, the

First Criminal Chamber of the Court of Appeal of C. held that legal

assistance was not necessary at the next stage of the proceedings and

gave as its reason the fact that the time-limit for submitting further

arguments on procedural grounds had expired and based itself, in this

respect, on Article 345, paragraph (1) of the Code of Criminal

Procedure;  whereas in accordance with Article 345, paragraph (2) of

the Code of Criminal Procedure, the Applicant himself still had the

possibility of lodging with the Registrar of the Regional Court of C.

any written submissions which he might wish to make regarding his

complaint that the law had been incorrectly applied by the Regional

Court;

Whereas, in these circumstances, the interests of justice did not

require that the Applicant should be given free legal assistance in

regard to the proceedings before the Federal Court; whereas it follows

that in this respect there has been no violation of Article 6,paragraph

(3) (c) (Art. 6-3-c) of the Convention;

Whereas, in regard to the Applicant's complaints that he was not

allowed to be present at the hearing of his appeal before the Federal

Court on ... 1960, the fact is that the Court did not order an oral

hearing of the case, but rejected the Applicant's appeal in pursuance

of Article 349, paragraph (2) of the Code of Criminal Procedure, which

provides that an appeal may be rejected by the Federal Court without

an oral hearing of the parties in public, where it considers the appeal

to be manifestly ill-founded; whereas the Public Prosecutor and the

Applicant, notwithstanding the fact that they were not present at  the

hearing, had the possibility of presenting their arguments to  the

Court in writing; whereas, indeed, the Applicant, after he had been

notified of the Public Prosecutor's observations, availed himself of

this possibility and submitted full arguments in writing in support of

his appeal; whereas, in these circumstances, the conduct of the

proceedings was not inconsistent with the provision contained in

Article 6, paragraph (1) (Art. 6-1) of the Convention, which guarantees

a fair hearing to a person in the determination of a criminal charge

against him;

Whereas it follows that the complaints made by the Applicant in respect

of the appeal proceedings before the Federal Court are also 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."