Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 29801/96

by Manfred LANGER

against Germany

The European Commission of Human Rights (First Chamber) sitting

in private on 27 November 1996, the following members being present:

Mrs. J. LIDDY, President

MM. M.P. PELLONPÄÄ

E. BUSUTTIL

A. WEITZEL

L. LOUCAIDES

B. CONFORTI

N. BRATZA

I. BÉKÉS

G. RESS

C. BÎRSAN

K. HERNDL

M. VILA AMIGÓ

Mrs. M. HION

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 12 December 1995

by Manfred LANGER against Germany and registered on 12 January 1996

under file No. 29801/96;

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 1969, is a German national and resident

in Flensburg. In the proceedings before the Commission he is

represented by Mr. K.-H. Wintzenburg, a lawyer practising in Hannover.

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

summarised as follows.

On 18 January 1994 the Hannover District Court (Amtsgericht)

issued a penal order (Strafbefehl) against the applicant imposing a

fine amounting to DM 1,614 upon him for two counts of obtaining public

transport services under false pretences. The Court found that the

applicant, on two occasions, had deliberately taken the municipal bus

without having had a ticket. The Court noted that it had considered

the applicant's admission of guilt as a mitigating circumstance.

Following the applicant's objection to the penal order, the

District Court conducted the trial hearing against him. In these and

the following proceedings, the applicant was represented by

Mr. Wintzenburg.

At the hearing of 7 September 1994, the District Court convicted

the applicant of one count of having deliberately obtained public

transport services under false pretences and acquitted him of the

remaining charge. The Court found that on 16 December 1992 and on

11 October 1993, respectively, the applicant had taken the municipal

bus without having had a valid ticket with him. The Court noted the

applicant's defence that for both months, he had been in possession of

transferable season tickets, which he had exclusively used and only

forgotten at home on the relevant dates. At the trial, he had produced

in evidence a season ticket for the month of October 1993. The Court

therefore assumed in his favour that he himself had bought and

exclusively used the season ticket for the month of October 1993.

However, regarding the incident in December 1992, he had at no stage

of the proceedings against him been in a position to present such a

monthly season ticket. The statement of the witness for the defence

that, as far as he remembered, the applicant had regularly bought

season tickets, was inconclusive. The Court was therefore convinced

that on the relevant day the applicant had travelled on public

transport without payment.

On 23 December 1994 the Hannover Regional Court (Landgericht)

rejected the applicant's appeal (Berufung) on the ground that it was

obviously ill-founded. The Regional Court confirmed that the District

Court's reasoning was conclusive and convincing. The appeal

submissions did not disclose any new facts or means of evidence which

could possibly warrant a different assessment of the case.

On 3 July 1995 the Federal Constitutional Court (Bundes-

verfassungsgericht) refused to entertain the applicant's constitutional

complaint (Verfassungsbeschwerde).

COMPLAINTS

The applicant complains under Article 6 para. 2 of the Convention

about his conviction of 7 September 1994. He considers that his

defence argument of having been in possession of a monthly season

ticket for December 1992 had not been refuted.

THE LAW

The applicant complains that his conviction by the Hannover

District Court, as confirmed by the Hannover Regional Court, amounts

to a violation of the principle of the presumption of innocence. His

argument relates to the District Court's evaluation of the evidence.

The Commission recalls that, according to Article 19 (Art. 19)

of the Convention, the duty of the Convention organs is to ensure the

observance of the engagements undertaken by the Contracting States in

the Convention. In particular, it is not their function to deal with

errors of fact or of law allegedly committed by a national court unless

and in so far as they may have infringed rights and freedoms protected

by the Convention (cf. Eur. Court HR, Schenk v. Switzerland judgment

of 12 July 1988, Series A no. 140, p. 29, para. 45).

The Commission has found it appropriate to look at the

applicant's complaint about the District Court's evaluation of evidence

from the points of view of paragraphs 1 and 2 of Article 6

(Art. 6-1+6-2) taken together, especially as the guarantees in

paragraph 2 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; Artner v.

Austria judgment of 28 August 1992, Series A no. 242-A, p. 10, para.

19).

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

provides as follows:

"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.

..."

The Commission further recalls that it is not for the Convention

organs to substitute their own assessment of the facts for that of the

domestic courts and, as a general rule, it is for these courts to

assess the evidence before them as well as the relevance of the

evidence which the defendants seek to adduce. The task under the

Convention is to ascertain whether the proceedings in their entirety

were fair (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).

The Commission notes that the Hannover District Court found the

applicant guilty of one count of having obtained public transport

services under false pretences. On the basis of the evidence before

it, the District Court was convinced that the applicant had, on the

particular date, taken the municipal bus without having a valid ticket.

In this respect, the Court duly noted the applicant's defence argument,

namely that he had bought a season ticket for the month concerned,

which he had merely forgotten at home. The District Court also noted

the statements of the defence witness. However, it considered as

decisive that the applicant had been found in the bus without a ticket

and had failed to present the alleged season ticket. The applicant,

assisted by defence counsel, had adequate opportunity to argue the

probative value of the evidence in court.

Having regard to all circumstances, the Commission finds no

sufficient grounds to conclude that the trial court's evaluation of

evidence in the applicant's case was incompatible with Article 6

(Art.6).

The applicant's submissions do not, therefore, disclose any

appearance of a violation of his rights under Article 6 paras. 1 and 2

(Art. 6-1, 6-2) of the Convention.

It follows that the application is manifestly ill-founded within

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

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

M.F. BUQUICCHIO J. LIDDY

Secretary President

to the First Chamber of the First Chamber

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LANGER v. GERMANY

LANGER v. GERMANY

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