AS TO THE ADMISSIBILITY OF

                      Application No. 28899/95

                      by Hans-Jürgen STIERINGER

                      against Germany

     The European Commission of Human Rights sitting in private on

25 November 1996, the following members being present:

           Mr.   S. TRECHSEL, President

           Mrs.  G.H. THUNE

           Mrs.  J. LIDDY

           MM.   E. BUSUTTIL

                 G. JÖRUNDSSON

                 A.S. GÖZÜBÜYÜK

                 A. WEITZEL

                 H. DANELIUS

                 F. MARTINEZ

                 J.-C. GEUS

                 M.P. PELLONPÄÄ

                 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

           Mr.   H.C. KRÜGER, 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 16 August 1994 by

Hans-Jürgen STIERINGER against Germany and registered on 9 October 1995

under file No. 28899/95;

     Having regard to :

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

     the Commission;

-    the Commission's decision of 21 October 1996 not to communicate

     the applicant's complaint about the alledged lack of independence

     of the probationary judges, sitting at the first instance court;

     Having deliberated;

     Decides as follows:

THE FACTS

     The applicant, born in 1931, is a German national and resident

in Bremen.  He is a lawyer and notary by profession.

A.   Particular circumstances of the case

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

summarised as follows.

     In 1991 criminal proceedings were started against the applicant

on the suspicion of having committed fraudulent conversion.  In these

proceedings the applicant was assisted by defence counsel.

     On 19 October 1992 the applicant was taken into detention on

remand on the basis of an arrest warrant issued by the Berlin-

Tiergarten District Court (Amtsgericht) on 13 October 1992.

     On 16 February 1993 the Berlin Public Prosecutor's Office drew

up the bill of indictment against the applicant and a co-accused.

     In March 1993 the applicant unsuccessfully requested that various

private files, allegedly needed for the preparation of his trial, be

made available to him for consultation in prison.

     On 8 June 1993 the 19th Extended Criminal Chamber (Große

Strafkammer) of the Berlin Regional Court (Landgericht), sitting as

Economic Crimes Chamber (Wirtschaftsstrafkammer) and composed of three

judges and two lay assessors (Schöffen), committed the applicant and

the co-accused for trial.

     On 30 June 1993 the Presiding Committee (Präsidium) of the Berlin

Regional Court, in the exercise of its functions under S. 21e of the

Courts Organisation Act (Gerichtsverfassungsgesetz), set up an

auxiliary criminal chamber (Hilfsstrafkammer) for the purpose of

relieving the 19th Criminal Chamber which, due to its workload, could

not deal with urgent cases, such as the case of the applicant who was

detained on remand.

     The 19b Auxiliary Criminal Chamber was composed of the Presiding

Judge le Viseur and Judges Garz-Holzmann and Appelt-Kurlemann on the

understanding that their functions in the 5th Criminal Chamber had

priority.  On 5 July 1993 the Committee of the Berlin Regional Court

decided that Judge Appelt-Kurlemann who was to leave as from 15 July,

was replaced by Judge von der Decken, who had the status of a

probationary judge (Richter auf Probe).  On 11 October 1993 the

Committee of the Berlin Regional Court, having regard to the heavy

workload of Judge Garz-Holzmann following her appointment as Presiding

Judge of another Criminal Chamber and the priority of her duties in

that Chamber, decided that Judge Kramer, who had the status of a

probationary judge, was assigned as further Judge to the 19b Auxiliary

Criminal Chamber.

     On 2 September 1993 the Presiding Judge of the 19b Auxiliary

Criminal Chamber fixed 1 November as date for the opening of the trial

hearings in the applicant's case.  The trial was to be continued on the

ensuing Thursdays and Mondays.

     On 1 November 1993 the trial against the applicant and the co-

accused opened before the 19b Auxiliary Criminal Chamber of the Berlin

Regional Court, composed of the Presiding Judge le Viseur, Judges von

der Decken and Kramer, as well as Ms. Heiber and Mr. Glässer as lay

assessors.  Ms. Heiber was sitting as principal lay assessor

(Hauptschöffe), drawn by lot for the 19th Extended Criminal Chamber's

session day of 2 November 1993.  Mr. Glässer, initially called as

substitute lay assessor (Ergänzungsschöffe), had replaced the second

principal lay assessor, who was prevented from sitting.

     On 4 November 1993 the applicant complained about the composition

of the 19b Auxiliary Criminal Chamber, namely about the participation

of two probationary judges as well as the participation of Ms. Heiber

and Mr. Glässer as lay assessors.

     At the hearing of 8 November 1993, the 19b Auxiliary Criminal

Chamber dismissed the applicant's complaints.

     The Chamber found in particular that S. 29 of the Law on the

Judiciary, as amended by the Act on the Relief of the Administration

of Justice, allowing for the participation of two probationary judges

in judicial decisions, could not be objected to from a constitutional

point of view nor under the European Convention on Human Rights.  The

Chamber observed that S. 29, as amended, took account of the

circumstances following the German Unification, when the number of

persons brought within the jurisdiction of the courts had considerably

increased while the judiciary had not changed.  Moreover, according to

the Chamber, it was not feasible to assign probationary judges to the

criminal chambers on the basis of fixed quotas. The Chamber further

dismissed the applicant's objections as to the participation of the lay

assessors, drawn by lot to sit on 1 November 1993.  It considered that

the Presiding Judge had brought the regular session of 2 November 1993

forward in time (Terminvorverlegung) to 1 November 1993.

     Judge Kramer was appointed as permanent judge in the course of

the applicant's trial, which continued for twenty-three days until

7 February 1994.

     On 7 February 1994 the applicant was convicted of fraudulent

conversion and sentenced to three years and six months' imprisonment.

The Regional Court found that the applicant, as member of the

supervisory board of a building company, had fraudulently arranged for

the payment of DM 11.6 million to a third person.

     On 14 July 1995 the Federal Court of Justice (Bundesgerichtshof)

dismissed the applicant's appeal on points of law (Revision).  The

Federal Court of Justice found that the review of the judgment of

7 February 1994 in the light of the applicant's appeal submissions had

not disclosed any error of law.

     In its decision, the Federal Court of Justice confirmed its case-

law according to which the independence of probationary judges was

sufficiently ensured under SS. 12, 22 and 78 (4c) of the Law on the

Judiciary.  Accordingly, S. 29 of the Law on the Judiciary, as amended,

which temporarily allowed for the sitting of two probationary judges

in a bench, could not be objected to from a constitutional point of

view.  The requirements established in the case-law of the Federal

Constitutional Court (Bundesverfassungsgericht), namely the existence

of extraordinary circumstances and imperative necessities in the

administration of justice, were met in the transitional period

following the German unification.  Furthermore, taking into account

that Judge Kramer had already been nominated by the Committee for the

Selection of Judges (Richterwahlausschuß) before the opening of the

trial against the applicant and that her appointment had been imminent

- she had been appointed after the seventh day of trial hearings, the

decision on the composition of the 19b Auxiliary Criminal Chamber did

not disclose any appearance of arbitrariness.

     The Federal Court of Justice next examined the applicant's

complaint about the composition of the 19b Auxiliary Criminal Chamber

as far as the lay assessors were concerned.  According to the

applicant, the trial against him had started with an extraordinary

session of the 19b Auxiliary Criminal Chamber, as the 19th Extended

Criminal Chamber had been in session on 2 November 1993.  Accordingly,

auxiliary lay assessors should have participated, or, in the

alternative, the principal lay assessors drawn by lot for the

19th Extended Criminal Chamber's next regular session.

     The Federal Court of Justice noted that the 19b Auxiliary

Criminal Chamber had been set up on 30 June 1993 in order to relieve

the regular 19th Criminal Chamber of the Berlin Regional Court.  The

19b Auxiliary Criminal Chamber held its sessions on Mondays and

Thursdays, whereas the 19th Criminal Chamber held its regular sessions

on Tuesdays and Thursdays.  On 2 September 1993 the Presiding Judge of

the 19b Auxiliary Criminal Chamber had fixed the date of 1 November

1993 for the opening of the trial, which was to be continued on the

following Thursdays and Mondays.  The principal lay assessors drawn by

lot for the 19th Criminal Chamber's regular session of 2 November 1993

were called to sit at the applicant's trial. On that day, the

19th Extended Criminal Chamber had continued trial hearings

(Fortsetzungsverhandlungen) in two other complex cases.

     The Federal Court of Justice considered that in these

circumstances the 19b Auxiliary Criminal Chamber's session of

1 November 1993 was not an extraordinary session, but a regular session

brought forward in time, and the participation of the lay assessors

could not be objected to.

     In this respect, the Federal Court of Justice recalled its

constant jurisprudence regarding regular criminal chambers, according

to which extraordinary sessions with auxiliary lay assessors, pursuant

to S. 47 of the Courts Organisation Act, presupposed a need to hold

sessions in addition to the regular sessions.  However, when the

presiding judge of a criminal chamber fixed another date than a regular

session for the opening of trial hearings, while the regular session

was reserved for other purposes, the trial had opened at the regular

session, "brought forward or put back in time" ("Verlegung nach vorne

oder nach hinten").  Consequently, the principal lay assessors drawn

by lot for the regular session had to sit at the trial hearings

concerned.  Having regard to the constitutional right not to be removed

from the jurisdiction of the lawful judge (gesetzlicher Richter), the

participation of the principal lay assessors determined in advance

pursuant to S. 45 of the Courts Organisation Act had priority over the

recourse to auxiliary lay assessors.  The presiding judge, fixing

hearing dates after due assessment of all circumstances (nach

pflichtgemäßem Ermessen), had first to consider the possibility of

advancing or postponing a regular session, thereby leaving the

composition of the chamber unchanged.  An extraordinary session could

only be held, when no early date for such postponement was available.

Subsequent changes of the circumstances underlying such decisions were

irrelevant.

     The Federal Court of Justice next addressed the question to what

extent these principles also applied to auxiliary criminal chambers.

     In this respect it observed that the setting up of an auxiliary

criminal chamber to relieve a regular criminal chamber was a means of

regulating the organisation of work in cases where judges were

prevented from attending trial hearings.  Thus an auxiliary criminal

chamber substituted for the regular criminal chamber in cases which the

latter was not able to deal with.  An auxiliary criminal chamber could

not, therefore, have its own principal lay assessors; and session days

were assigned to auxiliary criminal chambers merely for practical

purposes, in particular the organisation of administrative and

technical matters regarding hearings. Rather, the principal lay

assessors drawn by lot for particular sessions of the regular criminal

chamber, had, ipso jure, to attend sessions of the auxiliary criminal

chamber if they were not needed by the regular criminal chamber.  When

the regular criminal chamber, on the same session day, continued trial

hearings in another case, started at an earlier date and with other lay

assessors, there was no conflict between the two criminal chambers

which would require the auxiliary criminal chamber to hold an

extraordinary hearing with auxiliary lay assessors.  Only if, at the

time of fixing the date for the opening of trial hearings before the

auxiliary criminal chamber, had these lay assessors already been called

to sit at a trial hearing opening before the regular criminal chamber,

did the session fixed by the presiding judge of the auxiliary criminal

chamber constitute an extraordinary session, pursuant to S. 47 of the

Courts Organisation Act.

     Moreover, apart from considerations of transparency and

practicability, the close link between the auxiliary criminal chamber

and the principal lay assessors of the regular criminal chamber, for

which the auxiliary criminal chamber was a substitute in dealing with

its cases, required that both criminal chambers applied the same

principles regarding the possibility of advancing or postponing a

regular session and the fixing of extraordinary sessions, in order not

to remove the accused from the jurisdiction of the lawful judge.

     Furthermore, the Federal Court of Justice, deviating from one of

its earlier decisions, considered that when a regular session, brought

forward in time, was fixed as the date for the opening of trial

hearings before an auxiliary criminal chamber, the question of whether

the hearings were continued at a regular session was irrelevant.

     The Federal Court of Justice concluded that when the trial

hearings before an auxiliary criminal chamber did not open on the date

of a regular session of the regular criminal chamber, the closest

regular session had to be brought forward or put back.  However, such

practice was only reasonable to the extent that regular sessions were

postponed to the very day preceding or following a regular session.

     The Federal Court of Justice also dismissed the applicant's

procedural complaints concerning the taking of evidence.

     The decision was served on 21 August 1995.

     On 2 September 1995 a panel of three judges of the Federal

Constitutional Court refused to admit the applicant's constitutional

complaint (Verfassungsbeschwerde) of 24 August 1995.

B.   Relevant domestic law and practice

a.   The internal organisation of courts

     According to S. 21e of the Courts Organisation Act

(Gerichtsverfassungsgesetz), the presiding committee of a court

determines, before the beginning of the relevant year, inter alia, the

composition of the benches, the replacement of judges and the

allocation of work; these rules can exceptionally be changed during the

year concerned, if this is necessary inter alia in view of the

excessive workload of a judge or bench.

b.   The lay assessors

     The rules regarding lay assessors sitting in criminal chambers

at regional courts are laid down in S. 77, in conjunction with SS. 30

to 57 of the Courts Organisation Act.

     At a trial, lay assessors exercise the same functions as a judge.

The office of a lay assessor is an honorary one; the qualifications for

this office are laid down in SS. 31 to 35.  Principal lay assessors and

auxiliary lay assessors (Hilfsschöffen) are elected for a period of

four years in accordance with a procedure laid down in SS. 36 to 42.

The names of principal lay assessors and of auxiliary lay assessors are

recorded in separate lists.

     Pursuant to S. 45, the principal lay assessors sitting with the

professional judges of a criminal chamber in a particular case are

appointed to participate at the chamber's regular sessions (ordentliche

Sitzungen), i.e. its weekly session days, which are fixed in advance

for a period of twelve months.  The order in which principal lay

assessors participate in a criminal chamber's regular sessions during

this period is drawn by lot at a public hearing.   The order in which

auxiliary lay assessors replace principal lay assessors prevented from

exercising their office is also decided by lot.  Auxiliary lay

assessors are called upon, inter alia, when cases require the fixing

of extraordinary sessions (außerordentliche Sitzungen), pursuant to

S. 47.  A presiding judge may also call upon auxiliary lay assessors

to attend lengthy trial hearings as substitute lay assessors for the

purpose of replacing, if necessary, a principal lay assessor prevented

from sitting (SS. 48, 192).

c.   The judiciary

     The general rules governing the judiciary are laid down in the

Law on the Judiciary (Richtergesetz).

     Appointment as a permanent judge (Richter auf Lebenszeit)

presupposes that a person, after having obtained the qualification to

exercise the functions of a judge (Befähigung zum Richteramt), has

completed at least three years' service in the judiciary; this period

may be reduced in special circumstances (S. 10 of the Law on the

Judiciary).  According to S. 12, such service in the judiciary may be

completed as a probationary judge (Richter auf Probe).  Probationary

judges have to be appointed as permanent judges after five years of

service at the latest.  The conditions for dismissing probationary

judges are laid down in S. 22; and S. 78 (4c) provides for a right of

recourse to a disciplinary court to challenge such a dismissal.

     S. 25 of the Law on the Judiciary repeats the constitutional

guarantee of the independence of the judiciary, as enshrined in

Article 97 of the Basic Law (Grundgesetz).  The different aspects of

this principle are regulated in SS. 26 to 37 of the Law on the

Judiciary.

     According to S. 28 of the Law of the Judiciary, only permanent

judges may sit as judges in court, unless a federal law provides for

an exception; the presiding judge of a court composed of several judges

has to be a permanent judge.  S. 59 para. 3 of the Courts Organisation

Act provides that probationary judges may sit at the regional courts.

     S. 29 of the Law on the Judiciary, as amended by the Act on the

Relief of the Administration of Justice (Gesetz zur Entlastung der

Rechtspflege) of 11 January 1993, which came into operation on 1 March

1993, provides that altogether not more than two probationary judges,

or delegated judges (Richter kraft Auftrag, delegierte Richter), may

sit as members of a bench.  The amended version of S. 29 of the Courts

Organisation Act expires on 28 February 1998, and as from 1 March 1998,

S. 29 in its previous version will again be operative, limiting the

number of probationary judges or delegated judges to one per bench.

     According to the case-law of the Federal Constitutional Court

(leading decisions of 9 November 1955, BVerfGE 4 p. 331, and of

3 July 1962, BVerfGE 14 p. 156, respectively), on the independence of

the judiciary, Article 97 para. 2 of the Basic Law guarantees the

personal independence of the permanent judges in order to ensure their

requisite objective independence.  Recourse to judges who do not

benefit from the guarantee of personal independence must remain the

exception. Courts with professional judges must in principle be

composed of permanent judges.  Probationary judges may only participate

within the limits set by the necessity to train new judges or other

imperative reasons, such as imperative necessities in the

administration of justice (unumgängliche Bedürfnisse der Rechtspflege).

The existence of a necessity justifying the participation of

probationary judges may vary according to the various branches of the

judiciary, courts or chambers and senates, and must, therefore, be

determined in the particular circumstances of each individual case.

The training of law assessors for the purpose of their permanent

employment, the delegation of permanent judges employed at lower courts

to a higher court for the purpose of testing their abilities, as well

as the necessity to replace permanent judges temporarily prevented from

working in circumstances where the permanent judges determined in

advance as substitute judges are unable to cope with the extra burden

of work, or in cases where a temporarily extraordinary volume of work

has to be handled, are mentioned as examples.  In the latter cases, the

recourse to probationary judges is nevertheless unjustified if the

workload was due to an insufficient number of posts or delays in the

appointment of permanent judges to vacant posts.  Moreover, the

principle of the independence of judges demands that the total number

of probationary judges in a given branch of the judiciary is limited

to what is strictly required and that the distribution of probationary

judges among the courts, chambers and senates must be as fair as

possible.

COMPLAINTS

     The applicant complains that the criminal proceedings against him

have, in several respects, not complied with Article 6 paras. 1

and 3 (b) of the Convention.

     The applicant submits in particular that the 19b Auxiliary

Criminal Chamber was no "tribunal established by law" within the

meaning of Article 6 para. 1.  The setting up of this Auxiliary

Criminal Chamber and its composition had not been regulated in advance,

namely at the beginning of the calendar year.  He also complains about

the composition of this Chamber with regard to the lay assessors.

     The applicant further alleges that, due to the participation of

two probationary judges in the bench of the 19b Auxiliary Criminal

Chamber, the trial had not been conducted by an "independent" tribunal

within the meaning of Article 6 para. 1.

     The applicant finally considers that, as a consequence of the

refusal to put his personal files at his disposal for consultation in

prison, he could not duly prepare his defence and exercise his defence

rights, pursuant to Article 6 para. 3 (b).

THE LAW

1.   The applicant complains about the criminal proceedings against

him before the Berlin Regional Court which resulted in his conviction

of fraudulent conversion.  The invokes Article 6 paras. 1 and 3 (b)

(Art. 6-1, 6-3-b) of the Convention.

     Article 6 (Art. 6), as 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.  ...

     ...

     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;

     ..."

2.   The applicant complains that the 19b Auxiliary Criminal Chamber

was not a "tribunal established by law" within the meaning of Article

6 para. 1 (Art. 6-1).

a.   The Commission recalls that it is the purpose of the requirement

in Article 6 para. 1 (Art. 6-1) that courts shall be "established by

law" that the judicial organisation in a democratic society must not

depend on the discretion of the Executive, but that it should be

regulated by law emanating from Parliament.  However, Article 6 para. 1

(Art. 6-1) does not require the legislature to regulate every detail

in this area by a formal Act of Parliament if the legislature

establishes at least the organisational framework for the judicial

organisation (cf. Zand v. Austria, Comm. Report 12.10.78, D.R. 15, p.

80; see also Eur. Court HR, Piersack v. Belgium judgment of 1 October

1982; Series A no. 53, p. 16, para. 33).

b.   The applicant's first argument relates to the establishment of

the 19b Auxiliary Criminal Chamber of the Berlin Regional Court.  He

considers that he should have been tried by the 19th Extended Criminal

Chamber and not by an auxiliary chamber which, according to him, had

not been set up in accordance with pre-fixed rules.  Moreover, the

19b Auxiliary Criminal Chamber was composed of judges principally

assigned to another criminal chamber.

     The Commission, even assuming that this matter had been properly

raised in the applicant's appeal on points of law with the Federal

Court of Justice, notes that the applicant's case was within the

competence of the 19th Criminal Chamber of the Berlin Regional Court

which committed him for trial in June 1993.  The applicant, who had

been detained on remand since October 1992, was subsequently tried by

the 19b Auxiliary Criminal Chamber of the Berlin Regional Court.  This

Auxiliary Criminal Chamber had been set up by the Presiding Committee

of the Berlin Regional Court for the purpose of relieving the 19th

Criminal Chamber which, due to its workload, could not deal with urgent

cases.

     The Commission finds that the Presiding Committee thereby

exercised its functions under S. 21e of the Courts Organisation Act,

namely to organise the distribution of cases and the replacement of

judges or benches and, if necessary in view of the excessive workload

of a bench, to change the rules governing a particular year.  The

decision of the Presiding Committee setting up the 19b Auxiliary

Criminal Chamber as well as fixing its jurisdiction was therefore taken

on the basis of the relevant legislation.

     Moreover, the Commission considers that in the present

circumstances, there were reasonable grounds to set up an auxiliary

criminal chamber for the purpose of relieving the 19th Criminal Chamber

which, due to its workload, could not deal with urgent cases.  In this

context, the Commission recalls that domestic courts are obliged to

conduct the proceedings within a "reasonable time", and  that Article 6

para. 1 (Art. 6-1) imposes on the Contracting States the duty to

organise their judicial systems in such a way that their courts can

meet each of its requirements (cf. Eur. Court HR, Muti v. Italy

judgment of 23 March 1994, Series A no. 281-C, p. 57, para. 15; Thomann

v. Switzerland judgment of 10 June 1996, para. 36, to be published).

c.   As regards the applicant's further complaint about the lay

assessors, the Commission notes that the applicant was tried by the

19b Auxiliary Criminal Chamber, composed of three judges and Ms. Heiber

and Mr. Glässer as lay assessors.  Ms. Heiber had been drawn by lot for

the 19th Criminal Chamber's session on 2 November 1993, Mr. Glässer,

a substitute lay assessor, had replaced the other principal lay

assessor who had been prevented from sitting.  The principal lay

assessors were called in accordance with SS. 45, 77 of the Courts

Organisation Act, as interpreted by the Federal Court of Justice.

According to this case-law, the rule according to which principal lay

assessors are sitting at particular, previously fixed, session days and

continue to participate in the trial hearings having opened on that

date, covers situations where the date of a regular session, brought

forward or put back in time, was fixed for the opening of trial

hearings, and that this also applies to trial proceedings before an

auxiliary criminal chamber which sits with the principal lay assessors

of the parallel regular criminal chamber.

     The Commission recalls that the logic of the system of safeguards

established by the Convention sets limits to the scope of the power of

review exercisable by the Convention organs in respect of compliance

with the relevant domestic legislation.  It is in the first place for

the national authorities, notably the courts, to interpret and apply

the domestic law: the national authorities are particularly qualified

to settle the issues arising in this connection (Eur. Court HR,

Barthold v. Germany judgment of 25 March 1985, Series A no. 90, p. 22,

para. 48; No. 13274/87, Dec. 6.9.90, D.R. 66, p. 164).

     The Federal Court of Justice based its interpretation of the

relevant provisions of the Courts Organisation Act on the

constitutional principle that no one shall be removed from the

jurisdiction of his or her lawful judge, as well as on considerations

of transparency and practicability.  The applicant's submissions do not

disclose any failure to observe the legislation in question.

d.   In these circumstances the Commission finds no indication that

the criminal proceedings against the applicant were not conducted by

a tribunal "established by law" within the meaning of Article 6 para. 1

(Art. 6-1) 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) of the

Convention.

3.   The applicant further alleges that, due to the participation of

two probationary judges in the bench of the 19b Auxiliary Criminal

Chamber, the trial had not been conducted by an "independent" tribunal

within the meaning of Article 6 para. 1 (Art. 6-1).

     The Commission recalls that, in determining whether a court may

be considered to be "independent" both of the executive and of the

parties to the case, regard must be had to the manner of appointment

of its members and the duration of their term of office, to the

existence of guarantees against outside pressures and to whether the

body presents an appearance of independence (cf. Eur. Court HR,

Campbell and Fell v. the United Kingdom judgment of 28 June 1984,

Series A no. 80, pp. 39-40, para. 78).  In this context, the

irremovability of judges by the executive during their term of office

must be considered as a corollary of their independence and thus

included in the guarantees of Article 6 para. 1 (Art. 6-1) (cf. Eur.

Court HR, Campbell and Fell judgment, loc. cit., p. 40, para. 80; Zand

v. Austria, loc. cit., para. 80).  What is at stake is the confidence

which the courts in a democratic society must inspire in the public

(cf. Eur. Court HR, Sramek v. Austria judgment of 22 October 1984,

Series A no. 84, p. 20, para. 42; De Cubber v. Belgium judgment of

26 October 1984, Series A no. 86, p. 14, para. 26).

     In the present case, the 19b Auxiliary Criminal Chamber of the

Berlin Regional Court, when dealing with the applicant's case, was

composed of the Presiding Judge le Viseur, a permanent judge, and two

probationary judges, Ms. von der Decken and Ms. Kramer.  The latter was

at the time of the opening of the applicant's trial hearings proposed

for appointment as permanent judge; her appointment took place after

seven hearing days.

     The Commission notes that the principle of the independence of

permanent judges is enshrined in Article 97 of the German Basic Law and

further regulated in the Law on the Judiciary.  The appointment as

permanent judge presupposes, in accordance with the relevant provisions

of the Law on the Judiciary, as a rule, a three-year-service in the

administration of justice, e.g. as probationary judge, after having

obtained the qualification to exercise the functions of a judge.  Any

dismissal of judges in the course of their probationary period is

susceptible to judicial review.  The participation of probationary

judges is regulated in the Law on the Judiciary and the Courts

Organisation Act.  These legal instruments reflect the constitutional

limitations on the use of probationary judges in the judiciary, as

established in the jurisprudence of the Federal Constitutional Court.

According to this jurisprudence, recourse to judges who, considering

the possibility of their dismissal during the probationary period, do

not fully benefit from the guarantee of personal independence must

remain the exception, namely if a necessity to train judges or other

imperative reasons, such as reinforcing courts, exist.

     In the present case, the Federal Court of Justice, in its

decision of 14 July 1995, found that, in the light of the above

principles, the independence of probationary judges was sufficiently

ensured under SS. 12, 22 and 78 (4c) of the Law on the Judiciary.

S. 29 of the Law on the Judiciary, as amended, which temporarily

allowed for the sitting of two probationary judges in a bench, was the

solution to the imperative necessities in the administration of justice

in the transitional period following the German unification.

     The Commission finds that, in examining the situation of Judges

von der Decken and Kramer, regard must be had not only to the legal

provisions regarding probationary judges but also to how these

provisions are interpreted and how they actually operate in practice.

Under the German system, the participation of probationary judges

serves at the same time the purposes of training and selecting

candidates for appointment as permanent judges and of allowing the

courts to benefit from the work of these judges who, following legal

studies and training, obtained the general qualification to exercise

the functions of judges.  In the exercise of their function as judges,

they enjoy the full guarantees as to their objective independence. The

fact that for the sole purpose of training, they remain for a period

regularly not longer than three years liable to removal by the judicial

authorities does not justify the conclusion that their objective

independence is no longer established.  Accordingly, in the

Commission's view, this system does not, in itself, amount to a

situation which could seriously affect the confidence which the courts

must inspire in a democratic society.

     The Commission further refers to its above finding that the

decision of the Presiding Committee of the Berlin Regional Court to set

up the 19b Auxiliary Criminal Chamber cannot be objected to under

Article 6 para. 1 (Art. 6-1).  The Commission considers that this

Committee's related decision on the composition of the 19b Auxiliary

Criminal Chamber, in particular the assignment of the two probationary

judges Ms. von der Decken, who was about to be appointed as permanent

judge, and Ms. Kramer does not disclose any concrete reasons to doubt

the independence of the Chamber in question.  Nor does the Chamber's

handling of the applicant's case, and in particular the conduct of

Ms. von der Decken and Ms. Kramer, give rise to any legitimate doubts

as to these persons' independence.

     Against this background, the Commission finds that the

19b Auxiliary Criminal Chamber which determined the criminal charges

against the applicant was an "independent tribunal" within the meaning

of Article 6 para. 1 (Art. 6-1).

     It follows that this complaint is also manifestly ill-founded

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

4.   The applicant finally considers that, as a consequence of the

refusal to put his personal files at his disposal for consultation in

prison, he could not duly prepare his defence and exercise his defence

rights, pursuant to Article 6 para. 3 (b) (Art. 6-3-b) of the

Convention.

     The Commission observes that the applicant, assisted by defence

counsel throughout the criminal proceedings against him, failed to show

how far he pursued the matter at the trial hearings.  His appeal on

points of law did not include any complaint that he had thereby been

unduly restricted in the exercise of his defence rights.  However, even

assuming compliance with Article 26 (Art. 26) of the Convention, the

Commission finds no sufficient grounds to conclude that the applicant

had been prevented from duly preparing his defence and exercising his

defence rights at the trial against him.

     Consequently, these aspects of the applicant's submissions do not

disclose any appearance of a breach of Article 6 (Art. 6), either.

     It follows that this complaint is likewise manifestly ill-founded

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

     For these reasons, the Commission, by a majority,

     DECLARES THE APPLICATION INADMISSIBLE.

        H.C. KRÜGER                         S. TRECHSEL

         Secretary                             President

     to the Commission                    of the Commission