Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 26070/94

by Harald OSTHOFF

against Luxembourg

The European Commission of Human Rights (First Chamber) sitting

in private on 14 January 1998, the following members being present:

MM M.P. PELLONPÄÄ, President

N. BRATZA

E. BUSUTTIL

A. WEITZEL

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 30 September 1993

by Harald OSTHOFF against Luxembourg and registered on 21 December 1994

under file No. 26070/94;

Having regard to:

- the reports provided for in Rule 47 of the Rules of Procedure of

the Commission;

- the observations submitted by the respondent Government on

3 January 1996 and the observations in reply submitted by the

applicant on 5 March 1996;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a German citizen, born in 1944, and resides in

Hannover (Germany). He is an independent broker.

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

summarised as follows.

On 18 May 1990, in the course of criminal investigations on

charges of misappropriation of money belonging to private clients, the

Investigating Judge at the Luxembourg District Court (tribunal

d'arrondissement) issued a warrant of arrest against the applicant.

On 22 May 1990 the applicant and W., the director of the

applicant's company, were arrested in Luxembourg and charged with

illegal financial activities, fraud and misappropriation.

From the beginning of the pre-trial investigations the applicant

was represented by a Luxembourg lawyer. On 27 February 1991, the

applicant informed the Investigating Judge that his defence counsel had

resigned from representing him. As from April 1991 the applicant was

represented by another defence counsel.

On 11 December 1991 the Luxembourg District Court committed the

applicant and W. for trial charging them with misappropriation of more

than LF 70,000,000.

On 30 January 1992 the Public Prosecutor summoned the applicant

and W. to appear at hearings fixed before the Luxembourg District Court

on 10 and 17 March 1992. These hearings were adjourned because W. was

unable to be present for health reasons.

On 6 May 1992 the applicant and W. were summoned to appear before

the same court at hearings fixed on 16, 17 and 18 June 1992.

On 16 June 1992 W. was again unable to be present, invoking

health reasons. On that day the Luxembourg District Court ordered the

severance of the applicant's case from W.'s case and decided to

continue the proceedings against the applicant.

By a judgment of 13 July 1992 the Luxembourg District Court

convicted the applicant of fraud and the illegal exercise of a

financial profession, sentenced him to five years' imprisonment and

fined him LF 300,000.

On 19 August 1992 the applicant, assisted by defence counsel,

appealed against this judgment. The applicant contested in particular

the charges of fraud brought against him. He stressed that he was not

responsible for the activities of his German partner who had convinced

the German clients to invest their money in the applicant's company.

He would always have been able to respect the contractual obligations

undertaken.

The applicant's appeal was dismissed by the Luxembourg Court of

Appeal on 9 February 1993.

Thereafter the applicant was summoned to appear as a witness at

a hearing fixed on 9 March 1993 before the Luxembourg District Court

in the proceedings against W.

On 2 March 1993 the applicant informed his defence counsel that

he had received the judgment of the Court of Appeal of 9 February 1993

and the summons to appear in the proceedings against W. In view of W.'s

absence from his own trial, he considered the obligation to give

evidence in the proceedings against W. to be in breach of the principle

of equality (Verletzung der Gleichbehandlung meiner Person). For this

reason, he instructed his defence counsel to appeal against the

judgment of 9 February 1993 to the Court of Cassation.

On 5 March 1993 the applicant submitted a declaration of appeal

on points of law in person to the clerk of the prison.

At the same date, he submitted also the grounds of his appeal to

the Public Prosecutor. These grounds may be summarised as follows:

- it was unfair that, as a result of the severance of

the proceedings, he was summoned to appear as a

witness in the proceedings against W., although the

latter had not appeared at his trial;

- criminal liability involved not only him, but two more

persons who had also signed the contracts, namely, W.

and the German partner;

- various other persons were charged with the keeping of

the company's records; there were therefore no reasons

for believing that he had acted in bad faith;

- with regard to future contracts with American and

other partners, he would undoubtedly have been able to

respect the terms of the contracts with his clients;

- according to the terms of the contracts, any dispute

fell under the jurisdiction of the Munich courts, thus

establishing in the first place the criminal liability

of his German partner;

- he had not taken money from his clients as was shown

by the fact that he was unable to pay the requested

amount of bail to be released pending trial.

By a letter of 4 March 1993, which the applicant received on

5 March 1993, his defence counsel advised him against raising the same

objections as in the appeal proceedings and informed him that in the

absence of any substantive point of law, an appeal to the Court of

Cassation would have no chances of success. However, if he so wished,

he could himself submit a declaration of appeal to the prison clerk.

On 23 March 1993 the applicant's defence counsel informed the

applicant that he would no longer act for him and advised him to

instruct a different lawyer to conduct his appeal before the Court of

Cassation.

By a letter of 30 March 1993 the applicant brought this situation

to the attention of the President of the Bar and asked to be assigned

a new defence counsel.

According to the applicant, he never received a reply to this

letter.

The time-limit for submitting the grounds of appeal expired on

5 April 1993.

On 8 July 1993 the Court of Cassation dismissed the applicant's

appeal on points of law because no memorial signed by a lawyer and

setting out the grounds for his appeal had been submitted within the

one month time-limit following the introduction of his appeal.

On 22 April 1995 he applicant was released from prison.

COMPLAINTS

1. The applicant complains that, contrary to Article 5 para. 1 (c)

of the Convention, his detention on remand was ordered by an

incompetent court and his release illegally refused.

2. The applicant further complains of the court decisions concerned

and that he was denied the right to a fair trial. He alleges that the

courts have incorrectly interpreted certain facts and erroneously

concluded that he had acted with fraudulent intent. He alleges a

violation of Article 6 paras. 1 and 3 (b), (c) and (d) of the

Convention.

a) The applicant complains in particular that he was refused the

right to have his case examined by the Luxembourg Court of Cassation,

since he was given no opportunity to be represented by official defence

counsel before that Court. He claims that he did not have the means to

pay a lawyer of his own choice. He also invokes Article 2 para. 1 of

Protocol No. 7 in this context.

b) The applicant further complains that he has had no possibility

to adequately prepare his defence in the proceedings before the

Luxembourg District Court.

c) The applicant also complains that he could not interrogate the

co-accused W. and that witnesses on his behalf were not heard. In this

connection, he complains that he was summoned to appear as a witness

at W.'s trial, whereas the latter was not heard as a witness at his own

trial.

3. The applicant finally complains that the charges brought against

him did not constitute criminal offences under the existing criminal

law and that, even if they did, a heavier penalty was imposed on him

than the one that was applicable at the time the contested criminal

offences were committed. He submits in this context, that the existing

criminal law, based on the Code Napoleon, has not been adapted to the

evolution in financial matters and has been interpreted in his case to

such an extent as to be in breach of Article 7 of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 30 September 1993 and

registered on 21 December 1994.

On 18 October 1995 the Commission decided to communicate the

application to the respondent Government, pursuant to Rule 48

para. 2 (b) of the Rules of Procedure with regard to the applicant's

complaints under Article 6 para. 3 (c) and (d).

The Government's written observations were submitted on 3 January

1996. The applicant replied on 5 March 1996.

THE LAW

1. The applicant complains that his detention from 22 May 1990 to

13 July 1992 infringed Article 5 para. 1 (c) (Art. 5-1-c) of the

Convention. This provision reads:

"Everyone has the right to liberty and security of person. No one

shall be deprived of his liberty save in the following cases and

in accordance with a procedure prescribed by law:

...

c. the lawful arrest and detention of a person effected for the

purpose of bringing him before the competent legal authority on

reasonable suspicion of having committed an offence or when it

is reasonably considered necessary to prevent his committing an

offence or fleeing after having done so ... ".

However, the Commission is not required to decide whether or not

the facts alleged by the applicant disclose any appearance of a

violation of Article 5 (Art. 5) of the Convention as, under Article 26

(Art. 26) of the Convention, it may only deal with a matter after all

domestic remedies have been exhausted according to the generally

recognised rules of international law, and within a period of six

months from the date on which the final decision was taken.

The Commission observes that, even assuming that the applicant

had exhausted domestic remedies, he failed to comply with the time-

limit stipulated by Article 26 (Art. 26) of the Convention as his

detention on remand ended with his conviction by the Luxembourg

District Court on 13 July 1992, which is more than six months before

the date on which the application was submitted.

It follows that this part of the application must be rejected in

accordance with Article 27 para. 3 (Art. 27-3) of the Convention.

2. The applicant further complains that he was wrongly convicted and

sentenced by the Luxembourg District Court and the Court of Appeal. He

alleges that the courts have incorrectly interpreted certain facts and

erroneously concluded that he had acted with fraudulent intent.

With regard to the judicial decisions of which the applicant

complains, the Commission recalls that, in accordance with Article 19

(Art. 19) of the Convention, its only task is to ensure the observance

of the obligations undertaken by the Parties in the Convention. In

particular, it is not competent to deal with an application alleging

that errors of law or fact have been committed by domestic courts,

except where it considers that such errors might have involved a

possible violation of any of the rights and freedoms set out in the

Convention. The Commission refers on this point to its established

case-law (see, for example, No. 12013/86, Dec. 10.3.89, D.R. 59, p.

100, No. 21283/93, Dec. 5.4.94, D.R. 77, p. 81).

It is true that the applicant also complains that he was denied

the right to a fair trial as guaranteed by Article 6 (Art. 6) of the

Convention which , insofar as relevant, reads as follows:

"1. In the determination ... of any criminal charge

against him, everyone is entitled to a fair and public

hearing ... by an ... impartial tribunal ...

...

3. Everyone charged with a criminal offence has the

following minimum rights:

...

b. to have adequate time and facilities for the

preparation of his defence;

c. to defend himself in person or through legal

assistance of his own choosing or, if he has not

sufficient means to pay for legal assistance, to be

given it free when the interests of justice so

require;

d. to examine or have examined witnesses against

him and to obtain the attendance and examination of

witnesses on his behalf under the same conditions as

witnesses against him;

..."

As the requirements of paragraph 3 of Article 6 (Art. 6-3)

represent particular aspects of the right to a fair trial guaranteed

in paragraph 1, the Commission will examine the applicant's complaints

from the point of view of these two provisions taken together (see, for

example, Eur. Court HR, Lala v. the Netherlands judgment of

22 September 1994, Series A no. 297-A, p. 12, para. 26; Foucher

v. France judgment of 18 March 1997, Reports 1997-II, No. 33,

para. 30).

a) The applicant complains in particular that the lack of legal

representation in the proceedings before the Court of Cassation

deprived him of his right of access to that court.

The Government submit that the requirement to be represented by

a lawyer in the proceedings before the Court of Cassation was

introduced in the Luxembourg legal system in the interests of the

accused and does not infringe the right to access to that court. The

applicant was assisted by defence counsel from the beginning of the

proceedings. Two jurisdictions have examined the charges brought

against the applicant as to questions of fact and law. In the absence

of any substantial points of law, his lawyer resigned from representing

the applicant before the Court of Cassation. In view of the limited

scope of the proceedings before the Court of Cassation involving only

legal issues and the lack of prospect of the applicant's appeal on

points of law, the Government consider that this refusal was justified.

Moreover, the applicant had requested to be assigned a new defence

counsel only towards the end of the time-limit for submitting his

grounds of appeal. Even if the President of the Bar had acted

immediately, a new defence counsel would not have been able to

effectively ensure the defence of the applicant's interests within such

a short time. In any event, legal assistance has to be refused if an

appeal, as in the present case, appears to be manifestly inadmissible

or ill-founded.

The applicant contests the view expressed by the defendant

Government according to which his appeal on points of law would have

had no chances of success. According to him, this is an unacceptable

ex tunc statement.

The Commission recalls that Article 6 para. 1 (Art. 6-1) of the

Convention does not require States to establish courts of appeal or

cassation, but if such courts are created, the requirements of Article

6 (Art. 6) must be respected. However, Article 6 para. 1 (Art. 6-1) of

the Convention does not debar Contracting States from making

regulations, in the interests of the good administration of justice,

concerning access to courts (No. 6916/75, Dec. 8.10.76, D.R. 6, p. 107;

No. 8407/78, Dec. 6.5.80, D.R. 20, p. 179) and in particular access to

the final instance in the domestic legal system, such as to a Court of

Cassation. The Commission recalls in particular that the requirement

to be represented by a lawyer in the proceedings before a higher court

is not incompatible with Article 6 (Art. 6) of the Convention (see No.

16598/90, Dec. 6.5.80, D.R. 66, p. 261).

The Commission further points out that, although not absolute,

the right of everyone charged with a criminal offence to be effectively

defended by a lawyer, assigned officially if need be, is one of the

fundamental features of a fair trial (see Eur. Court HR, Quaranta

v. Switzerland judgment of 24 May 1991, Series A no. 205, p. 16,

para. 27; Pham Hoang v. France judgment of 25 September 1992, Series A

no. 205, p. 23, para. 39; Poitrimol v. France judgment of 23 November

1993, Series A no. 277- A, p. 14, para. 34).

In this connection, the Commission reiterates that the manner in

which paragraph 3 (c) of article 6 (Art. 6-3-c) of the Convention is

to be applied in relation to appellate or cassation courts depends upon

the special features of the proceedings involved; account must be taken

of the entirety of the proceedings conducted in the domestic legal

order and of the role of the appellate or cassation court therein (see

Eur. Court HR, Boner v. the United Kingdom judgment of 28 October 1994,

Series A no. 300-B, p. 74, para. 37 and Maxwell v. the United Kingdom

judgment of 28 October 1994, Series no. A 300-C, p. 96, para. 33).

The Commission observes that under Luxembourg law legal aid in

proceedings before the Court of Cassation can be granted upon a special

request submitted either to the President of the Court of Cassation or

the President of the Bar. If legal aid is granted, the official defence

counsel is personally responsible for submitting the grounds of appeal

within a one month time-limit, unless he considers that such an appeal

has no chances of success.

In the present case, the applicant did not avail himself of the

first possibility. Having been informed on 23 March 1993 that his

defence counsel would not assist him any longer, he did, however,

submit a request for legal aid to the President of the Bar on 30 March

1993, i.e. six days before the expiry of the one month time-limit.

According to him, he did not receive a reply to that request. The

Commission does not consider it necessary to determine whether in these

circumstances the President of the Bar disregarded the specific

safeguard of legal assistance under paragraph 3 (c) of Article 6

(Art. 6-3-c) or the general safeguard of a fair trial under paragraph

1 for the following reasons.

The Commission recalls that the interests of justice, within the

meaning of Article 6 para. 3 (c) (Art. 6-3-c) of the Convention, cannot

be taken to require an automatic grant of legal aid whenever a

convicted person, with no objective likelihood of success, wishes to

appeal after having received a fair trial at first instance in

accordance with Article 6 (Art. 6) of the Convention (see Eur. Court

HR, Monnell and Morris v. the United Kingdom judgment of 2 March 1987,

Series A no. 115, p. 25, para. 67).

The Commission notes that in the present case the applicant had

full legal assistance from the beginning of the pre-trial proceedings

to the end of the proceedings before the Luxembourg Court of Appeal,

extending to the obtaining of counsel's opinion on the prospects of an

appeal on points of law which opinion had been negative. The Commission

has no cause to doubt that the defence counsel's opinion was based on

a full and thorough evaluation of the relevant factors. The Commission

observes in this context that the appeal on points of law to the Court

of Cassation is an extraordinary remedy limited to legal and procedural

issues. However, the applicant's complaints concern essentially the

assessment of the facts and there is no indication in the case-file

that there were any legal questions in issue for the purposes of an

appeal on points of law to the Court of Cassation.

The Commission therefore finds that the particular circumstances

of the present case does not reveal a failure to provide legal

assistance as required by paragraph 3 (c) of Article 6 (Art. 6-3-c) of

the Convention or a denial of a fair hearing under paragraph 1.

Insofar as the applicant complains under Article 2 of Protocol

No. 7 (P7-2) that he was refused the right to have his case reviewed

by the Court of Cassation, the Commission sees no need to examine this

complaint as a separate issue.

It follows that this part of the application is manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

b) The applicant complains, under Article 6 para. 3 (b)

(Art. 6-3-b) of the Convention, that he was deprived of adequate

facilities in the preparation of his defence in the proceedings before

the Luxembourg District Court.

However, the Commission observes that the applicant was

represented by counsel from the beginning of the investigations. There

is no indication in the file that the applicant did not have the

opportunity to organise his defence in an appropriate way and without

restriction as to the possibility to put all relevant defence arguments

before the trial court.

Consequently, the Commission finds no appearance of a violation

of Article 6 para. 3 (b) (Art. 6-3-b) of the Convention in this

respect.

It follows that this part of the application is manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

c) The applicant also complains that the co-accused W. and witnesses

on his behalf were not heard in the proceedings against him.

The Government submit that, during the entire proceedings before

the Investigating Judge, the Luxembourg District Court and the Court

of Appeal, neither the applicant nor his defence counsel have ever

requested that the co-accused or particular witnesses be heard.

Moreover, the facts on which the applicant's conviction was based, had

to a large extent been admitted by the applicant. The Government

consider that this complaint should be dismissed as being abusive

within the meaning of article 27 para. 2 (Art. 27-2) of the Convention,

for failure to comply with the condition as to the exhaustion of

domestic remedies, and in any event as being manifestly ill-founded.

The applicant maintains that he had never been informed of the

declarations made by W. before the Investigating Judge. Once having

been released, W. did not appear at his trial. He therefore had no

opportunity to interrogate W. The applicant also complains that he

could not question his German partner who was tried in separate

proceedings before the Munich courts.

The Commission first observes that the applicant's complaint is

not of such a nature as to constitute an abuse of the right of petition

within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

The Commission next recalls that, even assuming that the

applicant has exhausted the domestic remedies at his disposal under

Luxembourg law, Article 6 paras. 1 and 3 (d) (Art. 6-1, 6-3-d) of the

Convention do not give the right to an unlimited number of witnesses,

and that the domestic courts may refuse to call witnesses requested by

the defence if, for example, it is considered that their evidence would

be irrelevant (see, for example, No. 10563/83, Ekbatani v. Sweden,

Dec. 5.7.85, D.R. 44, pp. 113, 117; No. 10486/83, Hauschildt

v. Denmark, Dec. 1.10.86, D.R. 49, pp. 86, 102).

The Commission notes that the applicant, who was assisted by a

lawyer throughout the domestic proceedings, had ample opportunity to

state his case and to request the trial courts to hear the witnesses

named by him. However, it does not appear from the case-file that the

applicant made such a request. Furthermore, the applicant has not

substantiated to what extent the witnesses named by him could have

contributed to the finding of the truth or established his innocence.

In these circumstances, the Commission finds no appearance that

the criminal proceedings against the applicant in respect of the

hearing of witnesses or in any other respect were unfair.

There is consequently no appearance of a violation of Article 6

paras. 1 and 3 (d) (Art. 6-1, 6-3-d) of the Convention and it follows

that this part of the application has to be rejected as being

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

(Art. 27-2) of the Convention.

3. The applicant finally complains under Article 7 (Art. 7) of the

Convention that the charges brought against him did not constitute

criminal offenses under the existing criminal law and that, even if

they did, a heavier penalty was imposed on him than the one that was

applicable at the time the alleged criminal offences were committed.

Article 7 para. 1 (Art. 7-1) of the Convention provides:

"No one shall be held guilty of any criminal offence on

account of any act or omission which did not constitute a

criminal offence under national or international law at the

time when it was committed. Nor shall a heavier penalty be

imposed than the one that was applicable at the time the

criminal offence was committed."

The Commission recalls that Article 7 para. 1 (Art. 7-1) is to

be construed and applied, as follows from its object and purpose, in

such a way as to provide effective safeguards against arbitrary

prosecution, conviction and punishment (see Eur. Court HR, S.W. v. the

United Kingdom judgment of 22 November 1995, Series A no. 335-B, p 41,

para. 34 and C.R. v. the United Kingdom judgment of 22 November 1995,

Series A no. 335-C, p. 68, para. 32). Thus what Article 7 para. 1

(Art. 7-1) prohibits is the development of the law in a way such that

acts not previously punishable are held to entail criminal liability,

or existing offences extended to include acts which it is clear did not

previously constitute a criminal offence (see No. 8710/79, Dec. 7.5.82,

D.R. 28, p. 81).

The Commission further recalls that it is in the first place for

the courts to apply and interpret domestic law since they are in the

nature of things particularly qualified to settle issues arising in

this connection (see Eur. Court HR, Kemmache (No. 3) v. France judgment

of 24 November 1994, Series A no. 296-C, p. 87, para. 37).

However, the applicant does not adduce any argument which would

indicate that in the present case, as a consequence of the evolution

in financial matters, existing domestic law has been extended to acts

which did not previously constitute a criminal offence or that a

heavier penalty was imposed on him than the one that was applicable at

the time the criminal offences were committed. Accordingly, the

Commission finds that the applicant's complaints are unsubstantiated

and do not disclose any appearance of a violation of Article 7 para. 1

(Art. 7-1) of the Convention.

It follows that this part of the application is also manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

M.F. BUQUICCHIO M.P. PELLONPÄÄ

Secretary President

to the First Chamber of the First Chamber

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OSTHOFF v. LUXEMBOURG

OSTHOFF v. LUXEMBOURG

LEXI