AS TO THE ADMISSIBILITY OF

                      Application No. 37998/97

                      by Roland Meerbrey

                      against Germany

      The European Commission of Human Rights sitting in private on

12 January 1998, the following members being present:

           Mr    S. TRECHSEL, President

           MM    J.-C. GEUS

                 E. BUSUTTIL

                 G. JÖRUNDSSON

                 A.S. GÖZÜBÜYÜK

                 A. WEITZEL

                 J.-C. SOYER

                 H. DANELIUS

                 F. MARTINEZ

                 C.L. ROZAKIS

           Mrs   J. LIDDY

           MM    L. LOUCAIDES

                 M.A. NOWICKI

                 I. CABRAL BARRETO

                 B. CONFORTI

                 N. BRATZA

                 I. BÉKÉS

                 J. MUCHA

                 D. SVÁBY

                 G. RESS

                 A. PERENIC

                 C. BÎRSAN

                 P. LORENZEN

                 K. HERNDL

                 E. BIELIUNAS

                 E.A. ALKEMA

                 M. VILA AMIGÓ

           Mrs   M. HION

           MM    R. NICOLINI

                 A. ARABADJIEV

           Mr    M. de SALVIA, Secretary to the Commission

      Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

      Having regard to the application introduced on 25 February 1997

by Roland Meerbrey against Germany and registered on 2 October 1997

under file No. 37998/97;

      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.  When lodging

his application, he was detained at a prison in Heilbronn, but he was

later transferred to the ambulatory of the Asperg Prison.

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

summarised as follows.

      On 19 January 1995 the applicant was arrested on suspicion of

murder and detained on remand on 20 January 1995.  In the ensuing

proceedings the applicant was assisted by defence counsel.  His

repeated requests for release were to no avail.  The Stuttgart Public

Prosecutor's Office (Staatsanwaltschaft) drew up the bill of indictment

on 7 August 1995.  The applicant was committed for trial before the

Stuttgart Regional Court (Landgericht).  The date of 9 January 1996 was

fixed for the opening of the trial.

      On 3 January 1996 the Stuttgart Regional Court dismissed the

applicant's request that the question of his capacity to take part in

the trial (Verhandlungsfähigkeit) be examined by the medical

practitioner Dr. U. on the ground that Dr. U. had refused to carry out

the examination.

      On 5 January 1996 the Presiding Judge at the Stuttgart Regional

Court ordered that the applicant be transferred from the Stuttgart

Prison to the Hohenasperg Ambulatory Prison on the ground that he had

refused food and constituted a danger to himself.  Furthermore, the

Presiding Judge ordered the applicant's compulsory feeding, if need be.

He finally ordered that the applicant's presence at the hearings

starting on 9 January 1996 be ensured (Vorführung) even against his

will, and with the necessary security measures, if necessary, being

brought on a stretcher (aufgebahrt).

      The trial opened before the Stuttgart Regional Court, sitting as

Assize Court (Schwurgericht) with three professional judges and two lay

assessors, on 9 January 1996.  Furthermore, a psychiatric expert was

present. In the course of the trial the applicant was assisted by two

defence counsel.

      The applicant's presence in court was ensured by his being

brought on a stretcher and he was covered by a blanket.  According to

the applicant, his right leg was tied to the right side of the

stretcher, his left leg to the left side; his arms were tied crosswise;

his body was covered by two sheets and strapped to the stretcher.  The

applicant's account is further that he remained in this position

throughout the hearings and also during hearing breaks and during his

transfers between the prison and the court building; that he could not

eat or drink or go to the toilet.

        The applicant's challenge of the Presiding Judge and of one of

the other judges for bias was rejected as having been lodged out of

time.  On 26 January 1996 the applicant's repeated request that he be

excused from the trial was dismissed.

      On 15 March 1996 the Stuttgart Regional Court, following several

hearings, convicted the applicant of murder in conjunction with

attempted murder and robbery and sentenced him to life imprisonment.

      In its judgment, the Regional Court found that in the course of

a burglary the applicant had ill-treated an elderly married couple,

tied their hands behind their backs and had further tied a sweater

around the woman's head.  The woman was suffocated and died some hours

later; the man's health deteriorated and he needed constant care and

attention.

      The Regional Court had regard to the applicant's personal

background and his numerous previous convictions since 1969.  His

convictions related, inter alia, to the following offences: causing

grievous bodily harm (gefährliche Körperverletzung) and obstructing

public officers in the execution of their duties (Widerstand gegen

Vollstreckungsbeamte), robbery and extortion with menaces (räuberische

Erpressung), intimidation (Bedrohung) of prison guards and causing

grievous bodily harm to an investigating judge in the course of a

hearing in 1990.  The Court also noted that the applicant was  HIV

(Human Immunodeficiency Virus) positive, and that he had, according to

his own allegations, developed AIDS (acquired immunodeficiency

syndrome) with a future life expectancy of two or three years.

      As regards the course of the trial, the Regional Court observed

that the applicant had refused to participate voluntarily.  The Court

stated that, taking into account the applicant's known dangerousness

and his HIV-infection, and in order to avoid exposing the guards to any

risks, it had refrained from enforcing his presence by means of

coercion which would have been applied to other remand prisoners.  The

applicant had therefore been brought before the Court on a stretcher,

although this had not been necessary for medical reasons.  The Regional

Court further noted that the applicant had refused to comply with the

rules of conduct under the Code of Criminal Procedure

(Strafprozeßordnung) and had generally not behaved in a civilised

manner (menschenwürdiger Umgang).  In particular, he had insulted and

disparaged the Court and compared it to the judiciary under the Nazi

regime, had made threats to commit murder and had even spat at the

court.  Finally, in the cell where he stayed during the hearing breaks,

plastic bags were found which were filled with his urine and could have

been used as projectiles, although it had remained unclear whether he

had intended to do so.  The applicant repeatedly offended against the

good order in court proceedings and had to be removed from the court

room.  To a large extent, the trial had to be conducted in his absence.

      The Regional Court, having regard to information obtained by the

infirmary of the Stuttgart Prison and also psychiatric expert advice,

further found that the applicant was capable of taking part in the

proceedings.

      As regards the assessment of the evidence before it, the Regional

Court considered that the applicant had simply denied the charges

against him and had repeatedly stated that the judiciary had always

aimed at ruining his life.  He had also unsuccessfully attempted to

establish an alibi or to question the credibility of witnesses.

      Moreover, the Regional Court established the applicant's guilt

on the basis of the statements made by the witness E. whom the

applicant had told about the offences during the following day.  The

Regional Court examined in detail the witness's credibility, bearing

in mind that at the early stage of the investigations, she herself had

been suspected of the offences in question and that she then had given

wrong indications.  However, a further witness, as well as a detail of

the offence which had not been known to the general public, had

confirmed her final account.  Moreover, part of a particular firearm

had been found at the place of the offences and, as confirmed by

several witnesses, the applicant had owned a weapon of this kind.  The

Court finally observed that two further witnesses, Mr. J.M. and

Ms. B.M., had stated that the applicant was guilty. However,

considering that they were suspected of having acted as accomplices in

the offences in question, their statements had to be assessed

cautiously.

      Finally, the Court dismissed the applicant's requests for the

taking of further evidence as to his physical health, which the Court

accepted to be bad, or his state of mental health, which had been

sufficiently explored by the first psychiatric expert.  Numerous other

requests concerned irrelevant or proven events or other matters which

were assumed to be true.

      A German newspaper reported on the trial against the applicant

and its report, dated 16 March 1996, on the applicant's conviction was

accompanied by a photograph showing the applicant on the stretcher.

      On 18 March 1996 the applicant's defence counsel lodged an appeal

on points of law (Revision), and submitted grounds for the appeal

relating to both procedural aspects and the merits on 3 July 1996.  The

applicant had further grounds recorded at the Registry (Rechtsantrag-

stelle) of the Stuttgart-Bad Cannstadt District Court (Amtsgericht) on

numerous days between 15 July and 9 September 1996, and applied for

leave to submit these reasons out of time.  This recording had been

preceded by a dispute between legal officers (Rechtspfleger) at the

District Court and the Stuttgart Regional Court as to the competence

for recording the statements in question which had only been settled

on 10 July 1996.

      On 4 October 1996 the Federal Public Prosecutor (General-

bundesanwalt) submitted his comments on the applicant's appeal on

points of law.  He considered in particular that the applicant's

grounds for the appeal were mostly inadmissible, unsubstantiated or did

not appeal to violate any procedural rules.  As regards his complaint

that he had been brought to the hearings on a stretcher, the Federal

Public Prosecutor considered that he had failed to prove his

allegations as to the way he was tied to the stretcher and on not being

able to eat.  In any event, he had been able to communicate with his

counsel and had lodged numerous requests.  Moreover, he himself was

responsible for his enforced presence as he had refused to participate

voluntarily.

      On 23 January 1997 the Federal Court of Justice (Bundesgerichts-

hof) dismissed the applicant's appeal on points of law.  His requests

for a late submission of grounds for the appeal were partly admitted,

namely to the extent that they had been submitted within one month of

the cessation of the impediment, i.e. termination of the above-

mentioned competence conflict.  The Court of Justice, considered that

the appeal submissions, in particular the Regional Court's taking and

assessment of evidence could not be objected to.

      The applicant apparently received a copy of the decision of

23 January 1997 in the Stuttgart Prison on 15 February 1997.  Some days

later he was transferred to the Heilbronn Prison, where he consulted

his counsel on the question of lodging a constitutional complaint.  On

4 March 1997 he was transferred to the Hohenasperg Ambulatory Prison.

      On 14 March 1997 the applicant made submissions to the Federal

Constitutional Court (Bundesverfassungsgericht) with a view to lodging

a constitutional complaint (Verfassungsbeschwerde) about his conviction

and the proceedings concerned.  Moreover, referring to his problems in

contacting his counsel and consulting the relevant files, he applied

for an extension to supplement his complaint.  By letter of

19 March 1997 his counsel informed him that a constitutional complaint

would have no prospect of success.  By letter of 20 March 1997, the

President's Office (Präsidialrat) of the Federal Constitutional Court

generally informed the applicant about the conditions for lodging a

constitutional complaint.  Moreover, the applicant's attention was

drawn to specific doubts as to the admissibility of his constitutional

complaint as he had failed to substantiate the alleged violations of

his constitutional rights and in particular failed to file copies of

the relevant criminal court decisions. Having received the relevant

files in prison on 9 April 1997, the applicant supplemented his

constitutional complaint, and his submissions were apparently sent to

the Constitutional Court on 22 April 1997.  His constitutional

complaint was registered on 29 April 1997.

      On 15 May 1997 the Federal Constitutional Court refused to

entertain the applicant's constitutional complaint.  The Federal

Constitutional Court found that his constitutional complaint was

inadmissible on the ground that the applicant had failed to

substantiate a violation of any of his constitutional rights within the

one-month's time-limit, as required under the relevant provisions of

the Federal Constitutional Court Act (Bundesverfassungsgerichtsgesetz).

As regards the applicant's request to lodge his complaint out of time

(Wiedereinsetzung in den vorigen Stand), the Constitutional Court found

that no decision was required as the applicant's initial complaint had

not been lodged out of time.

COMPLAINTS

      The applicant complains about his conviction and also of the

criminal proceedings against him.  He submits that he was ill-treated

by the police upon his arrest.  He further complains about the fact

that he had to attend the trial on a stretcher.  He generally alleges

an arbitrary persecution by the German judiciary.  According to him,

he did not have a hearing by an independent and impartial tribunal and

he could not effectively exercise his defence rights.  He also

complains about the taking and assessment of evidence.  He invokes

Articles 3, 5, 6 paras. 1 and 3 (b), (c) and (d) and Article 14 of the

Convention.

THE LAW

1.    The applicant complains about ill-treatment upon his arrest.

      However, in accordance with Article 26 (Art. 26) of the

Convention, the Commission may only deal with the 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.

      In the present case, the applicant failed to take any judicial

remedies with regard to his allegations of ill-treatment.  Moreover,

the applicant was arrested in January 1995, and he lodged his present

application on 25 February 1997 which is more than six months later.

      This part of the application must, therefore, be rejected under

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

2.    The applicant further raises various complaints under Article 6

(Art. 6) of the Convention about the criminal proceedings and his

conviction.

      Article 6 (Art. 6) of the Convention, as far as relevant, reads:

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

      him, everyone is entitled to a fair ... hearing ... by an

      independent and impartial tribunal established by law.  ...

      2.   Everyone charged with a criminal offence shall be presumed

      innocent until proved guilty according to law.

      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;

      ..."

a.    The Commission notes at the outset that the Federal

Constitutional Court refused to entertain the applicant's

constitutional complaint on the ground that he had failed to

substantiate a violation of any of his constitutional rights within the

one-month's time-limit, as required under the relevant provisions of

the Federal Constitutional Court Act.  However, considering the

applicant's situation, in particular his repeated transfers between

prisons, his state of health and the facts that he did not have the

files at his disposal, it might be open to doubt whether the lack of

substantiation in due time can be held against the applicant for the

purposes of Article 26 (Art. 26).  However, this problem need not be

resolved, as these parts of the application are in any event

inadmissible for the following reasons.

b.    As regards the conduct of the trial, the applicant complains in

particular that he was forced to appear in court on a stretcher.

      The Commission has examined this complaint from the point of view

of paragraphs 1, 2 and 3 (b) and (c) of Article 6 taken together

(Art. 6-1+6-2+6-3-b+6-3-c), especially as the guarantees in paragraphs

2 and 3 represent aspects of the concept of a fair trial contained in

paragraph 1 (cf. Eur. Court HR, Unterpertinger v. Austria judgment of

24 November 1986, Series A no. 110, p. 14, para. 29).

      The Commission recalls that, in a case concerning the appearance

of an accused before a criminal court in a "glass cage", no violation

of the right to a fair trial or of the presumption of innocence was

found.  In this case the Commission noted that this was a constant

security measure used for other criminal cases, that the applicant was

able to communicate confidentially with his lawyer, that he was able

to communicate with the court and that he was not in an unfavourable

position in relation to the prosecution or the jury (No. 11837/85,

Auguste v. France, Comm. Report 7.6.90, D.R. 69, p. 104; see also

No. 23331/94, Dec. 26.2.97, unpublished, on close surveillance during

the trial).

      In the present case, the Presiding Judge of the Regional Court

ordered that the applicant's presence at the trial be ensured, if need

be, by his being brought on a stretcher.  Considering the context of

this decision, it was motivated by the applicant's refusal of food and

his refusal to participate in the proceedings.  Moreover, the Regional

Court in its judgment explained that the applicant's dangerousness and

his HIV-infection had made it necessary to apply a means of coercion

which was not usually applied to other remand prisoners.  Indeed, the

applicant's previous convictions, as set out in the said judgment,

confirm the applicant's disposition to violence and his aggressiveness

towards public officials.  The Commission also notes the applicant's

conduct throughout the trial, i.e. his offences against good order in

court proceedings and his generally bad behaviour.

      The Commission finds that the applicant could freely communicate

with defence counsel and with the Court.  There is no indication that

the applicant's being fixed to the stretcher could have placed him at

a disadvantage in relation to the prosecution or in an unfavourable

position in relation to the court and could have thereby interfered

with the proper conduct of the proceedings.  The Commission also

considers that the manner in which the applicant appeared before the

Regional Court did not affect his rights of defence.

      Moreover, being justified by the applicant's past criminal

behaviour, the security measure imposed upon him did not suggest that

the Regional Court regarded him as guilty.  Accordingly, there is no

appearance of a breach of the presumption of innocence.

c.    As regards the applicant's further complaints about the alleged

unfairness of the proceedings, in particular the taking and assessment

of evidence, the Commission recalls that, as a general rule, it is for

the national courts to assess the evidence before them as well as the

relevance of the evidence which the defendant seeks to adduce.  More

specifically, Article 6 para. 3 (d) (Art. 6-3-d) leaves it to them,

again as a general rule, to assess whether it is appropriate to call

witnesses, in the "autonomous" sense given to that word in the

Convention system; it does not require the attendance and examination

of every witness on the accused's behalf (cf. Eur. Court HR, Bricmont

v. Belgium judgment of 7 July 1989, Series A no. 158, p. 31, para. 89;

Vidal v. Belgium judgment of 22 April 1992, Series A no. 235-B, pp.

32-33, para. 33).

      In the present case, the applicant's requests to take further

evidence were refused on the grounds that the alleged facts were

regarded as true or as irrelevant, taking into account the evidence

before the Regional Court's as a whole.

      Having regard to all material before it, the Commission finds no

sufficient grounds to conclude that the decision not to take further

evidence was incompatible with Article 6 (Art. 6).

d.    As to the applicant's complaints about the alleged lack of

impartiality of the judges at the Stuttgart Regional Court, the

Commission has had regard to the relevant criteria established in the

case-law of the Convention organs (Eur. Court HR, Hauschildt v. Denmark

judgment of 24 May 1989, Series A no. 154, p. 21, para. 46; Fey

v. Austria judgment of 24 February 1993, Series A no. 255-A, p. 12,

para. 28). The Commission, having also regard to the above

considerations relating to the security measures imposed upon the

applicant, finds no element in the file to doubt the impartiality of

the judges at the Regional Court who had conducted the proceedings

against him.

      Considering the circumstances of the case as a whole, the

Commission finds no appearance of a violation of the applicant's rights

under Article 6 paras. 1, 2 and 3 (Art. 6-1, 6-2, 6-3) of the Convention.

      It follows that this part of the application is manifestly

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

3.    The applicant also invokes Article 3 (Art. 3) with regard to the

manner in which his presence in court was ensured.

      Article 3 (Art. 3) of the Convention provides as follows:

      "No one shall be subjected to torture or to inhuman or degrading

      treatment or punishment."

      As to whether there are particular factors in the present case

which would bring the applicant's situation at the trial within the

scope of Article 3 (Art. 3), the Commission recalls that, according to

the constant case-law of the Convention organs, the treatment in

respect of which an applicant complains must attain a minimum level of

severity if it is to fall within the scope of this provision of the

Convention. The assessment of this minimum is relative and depends,

therefore, on all the circumstances of the case (cf. Eur. Court HR,

Ireland v. United Kingdom judgment of 18 January 1978, Series A no. 25,

p. 65, para. 162).

      The Commission, having found above that the manner in which the

applicant appeared in court did not infringe his rights under Article 6

(Art. 6), likewise considers that the applicant's situation did not go

beyond the inevitable element of suffering and humiliation connected

with the legitimate security measure applied to him.

      In these circumstances, the Commission finds that the applicant

was not subjected to inhuman or degrading treatment within the meaning

of Article 3 (Art. 3) of the Convention.

      It follows that this part of the application is also manifestly

ill-founded within the meaning of Article 27 para. 3 (Art. 27-3).

      For these reasons, the Commission, unanimously,

      DECLARES THE APPLICATION INADMISSIBLE.

        M. DE SALVIA                        S. TRECHSEL

         Secretary                           President

     to the Commission                    of the Commission