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P.S. v. GERMANY

Doc ref: 33900/96 • ECHR ID: 001-4327

Document date: July 2, 1998

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P.S. v. GERMANY

Doc ref: 33900/96 • ECHR ID: 001-4327

Document date: July 2, 1998

Cited paragraphs only

AS TO THE ADMISSIBILITY OF

Application No. 33900/96

by P. S.

against Germany

The European Commission of Human Rights (First Chamber) sitting

in private on 2 July 1998, the following members being present:

MM M.P. PELLONPÄÄ, President

N. BRATZA

E. BUSUTTIL

A. WEITZEL

C.L. ROZAKIS

Mrs J. LIDDY

MM L. LOUCAIDES

B. MARXER

B. CONFORTI

I. BÉKÉS

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

M. VILA AMIGÓ

Mrs M. HION

Mr R. NICOLINI

Mrs M.F. BUQUICCHIO, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 9 July 1996 by

P.S. against Germany and registered on 19 November 1996 under file

No. 33900/96;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows: THE FACTS

The applicant, born in 1952, is a German national and resident

in Cottbus. He is a businessman by profession.

The facts of the case, as submitted by the applicant, may be

summarised as follows.

I. The criminal proceedings against the applicant

On 10 January 1994 the Künzelsau District Court (Amtsgericht)

convicted the applicant of having sexually abused S., an eight-year-old

girl, and sentenced him to seven months' imprisonment on probation. In

establishing the relevant facts, the Court relied on the statements of

the girl's mother as well as of a police officer who had questioned S.

shortly after the offence in April 1993. The single judge at the

District Court dismissed the applicant's request for a psychological

expert opinion regarding the credibility of the girl's statements on

the ground of his own experience in evaluating statements made by

children. Moreover, he observed that it had not been reasonable to hear

S. herself, as she had meanwhile repressed her recollection of the

event in question and would seriously suffer if reminded thereof.

On 17 March 1995 the Heilbronn Regional Court (Landgericht)

dismissed the applicant's appeal. The Regional Court found that the

applicant's guilt could be established on the basis of the evidence

before it, i.e. the statements made by the girl's mother and the police

officer as well as a psychological expert opinion on the girl's

credibility. The expert had questioned S. in October 1994. The Regional

Court found that the taking of evidence suffered from the absence of

S.'s testimony in court. In this respect, the Court noted the parents'

refusal to bring their daughter to court on account of her illness

(neurodermitis). Considering the psychological expert opinion which

confirmed that S.'s state of health would most likely again deteriorate

if she were to be heard on the event in question, the Court, in a

detailed reasoning, reached the conclusion that S. was to be regarded

as a witness who could not be called.

On 2 August 1995 the Stuttgart Court of Appeal

(Oberlandesgericht) dismissed the applicant's appeal on points of law

(Revision).

On 18 January 1996 the Federal Constitutional Court (Bundes-

verfassungsgericht) refused to entertain the applicant's constitutional

complaint (Verfassungsbeschwerde), leaving open the question whether

the complaint had been lodged in time.

II. Remuneration for work performed by the applicant during his

imprisonment

While serving a sentence of imprisonment in prisons in Cottbus

and Brandenburg, the applicant performed work between 17 June 1996 and

1 July 1997 and again between 1 October and 30 October 1997. He was

paid for this work, in accordance with the relevant provisions of the

Execution of Sentences Act (Strafvollzugsgesetz). His request for

supplementary payments on the basis of general wage scales was

dismissed by the Brandenburg Prison Authorities on 10 February 1998.

COMPLAINTS

1. The applicant complains under Article 6 para. 3 (d) of the

Convention about his conviction and the alleged unfairness of the

proceedings, in particular that he could not put questions to the main

prosecution witness, i.e. the girl.

2. The applicant further complains that his work performed in the

course of his detention was inadequately paid. He does not invoke any

provision of the Convention.

THE LAW

1. The applicant complains about his conviction and the alleged

unfairness of the proceedings concerned, in particular that he could

not put questions to the main prosecution witness. He invokes

Article 6 para. 3 (d) (Art. 6-3-d) of the Convention.

The Commission considers it cannot, on the basis of the file

determine the admissibility of this complaint and that it is therefore

necessary, in accordance with Rule 48 para. 2 (b) of the Rules of

Procedure, to give notice of this complaint to the Government.

2. As regards the applicant's complaint about the allegedly

insufficient remuneration for work performed by him in the course of

his detention after conviction, the Commission, assuming compliance

with Article 26 (Art. 26) of the Convention, considers that Article 4

para. 3 (a) (Art. 4-3-a) allows for work required to be done in the

ordinary course of detention imposed according to the provisions of

Article 5 (Art. 5). There is no right to remuneration of a particular

amount comparable to normal wage scales. The applicant's submissions

do not disclose any appearance of a violation of the applicant's

Convention rights. This part of the application is, therefore,

manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

For these reasons, the Commission,

DECIDES TO ADJOURN the examination of the applicant's

complaint that he did not have a fair hearing in the

determination of the criminal charge against him;

unanimously,

DECLARES INADMISSIBLE the remainder of the application.

M.F. BUQUICCHIO M.P. PELLONPÄÄ

Secretary President

to the First Chamber of the First Chamber

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