AS TO THE ADMISSIBILITY OF

                      Application No. 30047/96

                      by Erich MIELKE

                      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.   M. de SALVIA, Deputy 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 24 January 1996

by Erich MIELKE against Germany and registered on 2 February 1996 under

file No. 30047/96;

     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 1907, is a German national and resident

in Berlin.  He was previously the Minister for State Security (Minister

für Staatssicherheit) of the former German Democratic Republic.  In the

proceedings before the Commission, he is represented by Mr. H. Dreyling

and Mr. S. König, lawyers practising in Berlin.

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

summarised as follows.

a.   The criminal proceedings against the applicant prior to his trial

     In March 1934 the Berlin Public Prosecutor's Office

(Staatsanwaltschaft) preferred an indictment (Anklageerhebung) against

the applicant and several further persons, charging them with two

counts of murder and one count of attempted murder, namely of having,

as accomplices, shot two police officers and seriously wounded a third

police officer in the evening of 9 August 1931 near the "Bülowplatz"

in Berlin.  On 23 April 1934 the Berlin Regional Court (Landgericht)

provisionally discontinued the proceedings against, inter alia, the

applicant on the ground that he had absconded to the former Soviet

Union.  On 19 June 1934 the Berlin Regional Court sentenced three of

the remaining accused to death and others to high sentences of

imprisonment (Zuchthaus), while others were acquitted or the

proceedings against them were discontinued.

     On 7 February 1947 the Berlin District Court (Amtsgericht), upon

the request of the Berlin Director of Public Prosecutions

(Generalstaatsanwalt), quashed the warrant of arrest issued against the

applicant on 23 April 1933, and issued a new warrant of arrest,

indicating the applicant's address in the Soviet Occupied Zone of

Berlin.

     By letter of 8 February 1947, the Director of Public

Prosecutions, having regard to the applicant's position as Vice-

President of the German Central Administration for the Interior

(Zentralverwaltung für das Innere) in the Soviet Occupied Zone,

informed the Berlin Headquarters (Zentralkommandantur) of the Soviet

Armed Forces about the arrest warrant of 7 February 1947 and his

intention to proceed with the case.  By letter of 12 February 1947 the

Director of Public Prosecutions inquired with the Soviet Occupation

Authorities (Besatzungsbehörde) whether German criminal jurisdiction

could be exercised over the applicant.  The letter was sent on

14 February 1947 together with files, further files were sent on

28 February 1947.  Additional inquiries in 1947 and 1949 remained

unanswered, and the files were not returned.  The files in question

were found in 1990 on the occasion of a search of the applicant's

premises, and handed over to the Berlin Prosecutor's Office in November

1990.b.   The trial proceedings before the Berlin Regional Court

     On 28 November 1991 the Berlin Regional Court admitted the 1934

bill of indictment against the applicant (Zulassung der Anklage) and

ordered the trial to be reopened (Eröffnung des Hauptverfahrens).

Furthermore, the Regional Court issued an arrest warrant against the

applicant. On the basis of that arrest warrant, the applicant was

detained on remand as from 2 December 1991.

     The trial against the applicant was held before the 23rd Extended

Criminal Chamber (Große Strafkammer) of the Berlin Regional Court,

sitting as Assize Court (Schwurgericht) on eighty-seven days between

10 February 1992 and 26 October 1993.  In these proceedings, the

applicant was assisted by six defence counsel, inter alia, MM. König

and Dreyling.

     In the course of the trial proceedings, the applicant's defence

counsel repeatedly claimed that the applicant was incapable of taking

part in the proceedings (verhandlungsunfähig). On 26 February 1992 the

Berlin Regional Court, having regard to medical expertise, refused to

discontinue the proceedings on account of the applicant's alleged

incapacity to take part therein. However, having regard to his bad

state of physical health, the court fixed one hour as maximum duration

for a hearing.  On 16 November 1992 the Regional Court dismissed the

request, lodged by the applicant's defence counsel, not to continue the

hearing on that day on the ground that only one witness was to be

questioned.  On 5 July 1993 the Regional Court, referring to its

earlier decision on the question whether the applicant was fit to be

kept in detention (haftfähig), dismissed the applicant's request to

discontinue the trial proceedings on account of his alleged incapacity

to take part therein.  The Regional Court considered that the trial

could be conducted on condition that the hearings did not last too

long.  In this respect, the Regional Court relied on  medical expertise

as to the applicant's health, i.e. on two opinions dating back to 1991

as updated by a third expert in an opinion of 11 May 1993, as explained

in court on 28 May 1993.

     On 26 October 1993 the Regional Court convicted the applicant of

two counts of murder and one count of attempted murder and sentenced

him to six years' imprisonment.

     In its judgment which comprises 180 pages, the Regional Court

found that in 1931 various riots on the "Bülowplatz" had required the

intervention of the police authorities. On several occasions, death

threats had been made against the police officers of the local police

station, in particular against Police Officers B., A. and W.  On

7 August 1931 they had been threatened that their last hour had come,

and that the "R.F.B." ("Rote Frontkämpfer-Bund") would take its

revenge.  On 9 August 1931 a plebiscite had taken place, initiated by

the National Socialists and the Communists for the purpose of

dissolving the Diet of the Land of Prussia and thereby overthrowing the

Social Democrat Government of Prussia.  The Berlin Police Authorities

had expected riots and had regularly checked the streets in the area

of the "Bülowplatz" where the central office of the Communist Party had

been located.  The applicant, who had been active in the German

Communist Party and associated organisations, as well as other members

of the self defence organisation of the Communist Party had been at the

"Bülowplatz", and, when Police Officers A., W. and L. had gone for a

further check in the streets, the applicant, the co-accused Z. and two

other persons had followed them.  After having passed the two brothers

M., the applicant and Z. had shot the Police Officers from behind.

Police Officers A. and L. had died and W. had been seriously injured.

The applicant and Z. had absconded and, still in August 1931, had

emigrated to the Soviet Union.  After having left the Soviet Union, the

applicant had participated in the Spanish War between 1936 and 1939 and

had emigrated to Belgium and France between 1939 and 1945, when he had

returned to the Soviet Occupied Zone of Berlin.  As from April 1949 he

had held several posts in the Ministry for State Security of the former

German Democratic Republic and, in 1957, he had been appointed as

Minister for State Security.

     The Regional Court, in assessing the evidence before it, noted

that the applicant had pleaded not guilty, but had made no further

statements.  The Regional Court's evaluation of evidence was based on

documents and the testimony of two witnesses as far as the applicant's

course of life was concerned.   As regards the situation in the area

of the "Bülowplatz" in August 1931, the Regional Court relied upon the

testimony of the witness M., one of the brothers who had been overtaken

by the applicant and the three others shortly before the shooting, and

the records concerning the questioning by a judge (richterliche

Vernehmung) of Police Officers B. and W. in November 1933, as well as

the records of the statements made to the police on 19 July and

3 August 1933 by the co-accused B. as well as his statements to a judge

on 20 September 1933, respectively.  These records had been read out

at the trial.

     The findings as to the shooting as such were based on the records

concerning the statements made by Police Officer W. as well as three

other witnesses to judges in November 1933, which had been read out at

the trial, the statements made by the witness M. at the trial before

the Regional Court and on the records concerning the statements made

by the co-accused B. in July, August and September 1933.  The Regional

Court found that the testimony of the witness M. was reliable and

consistent with the statements of the other witnesses as recorded in

1933 as well as those of the accused B., who had seen the applicant as

well as Z. closely following Police Officers A., L. and W.   Moreover,

the applicant's participation in the shooting was confirmed by his own

statements as contained in his curriculum vitae which he had drafted

inter alia during his stay in the former Soviet Union and in which he

had referred to his participation in a "Bülowplatz action".  Similar

documents drafted by Z. had also referred to the "Bülowplatz" as last

"action".  The Regional Court regarded the photographs of these

documents as authentic: they had undoubtedly been taken of the

originals kept in Soviet archives and corresponded to photocopies filed

by the Russian Government in proceedings under letters rogatory.  The

Court, on the basis of a graphological expert opinion, found no

indications that the documents were false.

     The Regional Court considered that it was not prevented from

having recourse to the means of evidence obtained in 1933.  Even

considering the situation in Germany at that time there was nothing to

show that the evidence had been obtained in a procedure contrary to the

principle of the rule of law (Rechtsstaatsprinzip).  In particular

there was no indication that the truth had been manipulated.  Having

inter alia heard witnesses, the Regional Court found nothing to show

that the investigating police officers and the examining judge who had

mainly done the questioning had, in examining the case, used methods

contrary to the principle of the rule of law.  This approach did not

conflict with the fact that records concerning the statements of other

co-accused could not be used in evidence as they had been detained by

the SA or the SS and ill-treated during their detention.  Moreover, the

trial in 1934 had not aimed at manipulating the events.  Thus, some of

the co-accused, including the main accused, were acquitted of the

charges of murder.  The same conclusion could be drawn from written

statements of one of the accused on the course of the criminal

investigations.  Furthermore, the Regional Court, having heard an

expert, who had been charged by the Berlin judiciary to investigate

possible manipulation of files, in particular under the Nazi regime,

found no indication that the files, though some parts were missing and

other parts had been renumbered, had been manipulated for the purpose

of distorting the facts.  Considering all circumstances, the Regional

Court had no doubts that the investigations at the relevant time solely

aimed at establishing the truth.  Moreover, the Regional Court, in a

detailed reasoning, came to the conclusion that the means of evidence

used, in particular the records concerning the statements of the

witness C. and the co-accused B., had not been obtained in an unlawful

manner.  Moreover, the Regional Court, weighing some discrepancies in

B.'s statements and between his statements and those of other

witnesses, found them on the whole credible, the more, as his account

regarding the general course of the events coincided with the

statements of the other witnesses.  In this respect, the Regional Court

explained that, to the extent that it had consulted records concerning

statements of some of the co-accused which had been obtained by ill-

treatment, it had done so solely for the purpose of verifying, for the

benefit of the applicant, B.'s credibility.

     The Regional Court further considered the forensic expert

opinions of 12 and 26 August and 18 September 1931, respectively, which

had, inter alia, confirmed that the shots had been fired from behind.

     For the aforesaid reasons, its evaluation of evidence had not

violated the applicant's right to a fair trial, either.

     The Regional Court, on the basis of the established facts, found

that the applicant had been an accomplice to two counts of murder and

one count of attempted murder within the meaning of S. 211 of the Penal

Code (Strafgesetzbuch), as amended in 1941.  Thus, the applicant when

shooting at the police officers, had acted with treachery (Heimtücke)

as he had shot from behind at the unsuspecting and therefore

defenceless police officers.   The Regional Court observed that the

constituent elements of the offence of murder, as defined in the old

version as well as in the 1941 version of S. 211, namely the

intentional killing of a person, had remained unchanged.  However, the

1947 version was applicable as it defined the offence in a more

restrictive manner and imposed a lighter penalty.

     Turning to the question whether the applicant's prosecution was

statute-barred, the Regional Court recalled that the offences committed

by the applicant constituted murder, both under the old and the 1941

version of S. 211 of the Penal Code.  Thus, in 1931 a limitation period

(Verjährung) of 20 years had commenced, pursuant to the old version of

S. 67 of the Penal Code.

     On 23 April 1934, when the proceedings against the applicant had

been provisionally discontinued, the running of this limitation period

had been interrupted (unterbrochen), and had commenced afresh.  As from

1 May 1945, the running of the limitation period had been suspended

(gehemmt) on the ground that no German jurisdiction could be exercised

as a consequence of the Soviet occupation.  It had resumed on

1 November 1945.  Furthermore, even assuming that the arrest warrant

of 7 February 1947 had not again interrupted the running of the

limitation period, the prosecution had not become statute-barred for

the following reason.  In accordance with the old version of S. 69 of

the Penal Code and Article III (d) of the Law No. 4 of the Allied

Control Council (Kontrollrat) of 30 October 1945, the running of the

limitation period had been suspended in February 1947 when the Berlin

Headquarters of the Soviet Armed Forces did not react to the inquiry

of the Berlin Head of Public Investigations and had not returned the

criminal files sent to them.  The Headquarters of the Soviet Armed

Forces had thereby acted in such a manner as to indicate their

unequivocal intention (konkludente Entscheidung) to withdraw this case

from German jurisdiction.  The German judicial authorities had been

prevented from prosecuting the applicant until 1990 when the files were

recovered.  However, under the Code of Criminal Procedure as amended

in 1979, the limitation period for the prosecution of murder had been

abolished.  The Regional Court dismissed the applicant's request to

take further evidence on matters relating to the determination of the

limitation period.  In particular, the question whether or not the

arrest warrant of 1947 had been validly issued, was irrelevant.

     Moreover, in the Regional Court's view, the length of the

proceedings did not bar the applicant's prosecution, as, under the

case-law of the Federal Court of Justice (Bundesgerichtshof), the

violation of an accused's right to a hearing within a reasonable time

did not constitute a technical bar to the proceedings (Verfahrens-

hindernis).  Rather, considerable delays imputable to the judicial

authorities had to be taken into account in fixing the sentence.

However, the applicant, having kept the criminal files in his safe

while under the protection of a dictatorial regime, had himself been

responsible for the length of the proceedings against him.  The German

legislator, when abolishing the limitation period for the prosecution

of murder, had manifested the intention not to accept the lapse of time

as exemption from punishment.  In doing so, the legislator had been

aware of the problems in ascertaining the truth and, as confirmed by

the Federal Constitutional Court (Bundesverfassungsgericht), had been

prepared to accept those problems.

     The applicant's arguments that the evaluation of evidence had

violated his right to a fair trial and that the exercise of his defence

rights had been restricted were also rejected.  On the latter point,

the Regional Court recalled that its evaluation of evidence was not

solely based on the records concerning the questioning of persons who

had died in the meantime.  In any event, pursuant to S. 251 paras. 1

and 2 of the Code of Criminal Procedure, the conviction of an accused

could solely be based on such records.  It was for the trial court to

ascertain whether there was convincing evidence.

     In fixing the sentence, the Regional Court recalled that the

statutory punishment for murder was life imprisonment. However, in

accordance with the case-law of the Federal Constitutional Court, the

criminal court had to decide whether life imprisonment was

exceptionally disproportionate.  Taking into account that 62 years had

elapsed since the commission of the offence and that the applicant was

85 years old, the present case was so exceptional as to warrant a

mitigation of the applicant's sentence.  Weighing all aggravating and

extenuating factors, the Regional Court took the view that a sentence

of six years' imprisonment was adequate.

c.   The proceedings for review on points of law (Revision)

     Both the applicant and the Public Prosecutor's Office lodged

appeals on points of law with the Federal Court of Justice, and

submitted their respective statements on the grounds for appeal

(Revisionsbegründung).  The Federal Court of Justice fixed 8 March 1995

as the date for hearing the appeals.

     Furthermore, the Federal Court of Justice ordered that a

psychiatric expert opinion be prepared on the question whether the

applicant was capable of taking part in the proceedings

(verhandlungsfähig) concerning his appeal on points of law. In this

respect, the Federal Court of Justice had regard to the Berlin Regional

Court's decision of 3 November 1994 to discontinue, on account of the

applicant's permanent incapacity to take part in the trial, a further

set of criminal proceedings which had related to the killing of

refugees at the border between the Federal Republic of Germany and the

former German Democratic Republic. In his  opinion of 15 January 1995,

the psychiatric expert M. stated that the applicant's intellectual

abilities, in particular his cognitive abilities, had deteriorated due

to his age to such an extent that he had to rely on his defence counsel

and to give them wide decision-making powers.  However, he knew about

the importance of the appeal proceedings and his intellectual abilities

were sufficient to achieve a basic understanding with his defence

counsel on the question whether to pursue or to withdraw his appeal on

points of law.

aa.  The interim proceedings relating to the applicant's capacity to

     take part in the proceedings

     On 4 February 1995 the applicant's defence counsel requested the

Federal Court of Justice to set aside the arrest warrant issued against

the applicant.  They claimed that the applicant was incapable of taking

part in the proceedings.

     On 8 February 1995 the Federal Court of Justice dismissed the

applicant's respective requests to discontinue the proceedings and to

set aside the arrest warrant.

     As to its competence, the Federal Court of Justice observed that,

as a rule, the lower court was competent in matters relating to

detention on remand.  The Regional Court had in fact dismissed the

applicant's earlier request to set aside the arrest warrant.  However,

the court deciding on an appeal on points of law could exceptionally

set aside an arrest warrant, if it quashed the conviction and if it was

obvious that the conditions for ordering the accused's detention on

remand were no longer met or if his detention on remand was no longer

proportionate.  Such a decision could be taken prior to the appeal

hearing, if there was a technical bar to the proceedings, such as that

invoked by the applicant's defence counsel.

     The Federal Court of Justice observed that there was no clear

case-law on the question whether and, if so, to what extent an accused

had to be capable of taking part in the proceedings concerning his

appeal on points of law.  Having regard to several decisions of the

Supreme Court of the German Reich (Reichsgericht), the Federal Court

of Justice considered that persons were capable of taking part in

criminal proceedings (strafrechtliche Verhandlungsfähigkeit) as long

as they were capable of safeguarding their interests in and out of

court, of exercising their defence rights in a reasonable and

understandable manner, and of making or receiving procedural

declarations (Prozeßerklärungen).

     There was a difference in standards between the proceedings

before a trial court (Tatgericht) and proceedings on appeals on points

of law.  Thus, in the proceedings before the trial court, the accused's

statements were an important means of evidence, the accused could lodge

procedural requests and put questions to witnesses, and he was heard

in addition to his defence counsel.  The accused could thereby

participate in the proceedings in a position independent of his defence

counsel.  Proceedings concerning appeals on points of law were limited

to reviewing whether the trial court had correctly applied the

substantive and procedural laws.  The accused had only few

possibilities to influence the latter proceedings:  he could, on his

own, only lodge or withdraw his appeal, but had to be assisted by

counsel for the purposes of determining the scope of his appeal and of

submitting the reasons therefor.  Moreover, at the hearing on his

appeal, the accused, if at liberty, merely had a right to be present

and to make a final statement, and, if detained, he or she was not even

entitled to be present in addition to defence counsel.

     The Federal Court of Justice concluded that, as a minimum, the

accused had to be capable of responsibly deciding whether or not to

lodge an appeal on points of law.  In this respect, the Federal Court

of Justice, having taken medical expert evidence as to his state of

health, found that the applicant was capable of understanding the

importance of the appeal proceedings and of achieving a basic agreement

with his defence counsel on the continuation of the proceedings.

     Moreover, the Federal Court of Justice, noting the date for the

appeal hearing, found that the continuation of the applicant's

detention on remand was not disproportionate.

     On 24 February 1995 the Second Senate of the Federal

Constitutional Court, sitting with three judges, refused to entertain

the applicant's constitutional complaint (Verfassungsbeschwerde)

concerning the decision of 8 February 1995.

     The Federal Constitutional Court found that the applicant's

constitutional complaint did not raise any constitutional question of

fundamental importance and had no prospect of success.  The impugned

decision could not be objected to from a constitutional point of view.

     The Federal Constitutional Court considered in particular that

the Federal Court of Justice had applied the general notion of an

accused's capability to take part in criminal proceedings, as developed

in German jurisprudence and legal writings.  This notion met the

demands of the protection of human dignity and of the principle of the

rule of law, according to which accused persons should not be treated

as objects of the proceedings against them.  The principle of the rule

of law did not require that an accused was in fact capable of

exercising his procedural rights fully on his own and without legal

assistance.  As long as restrictions in mental or physical capacities

could, in their negative effects on the exercise of defence rights, be

compensated by procedural assistance (verfahrensrechtliche Hilfen),

e.g. through the assistance of defence counsel or, in case of deaf or

dumb accused, through the assistance of interpreters as well as defence

counsel, there was no reason to consider an accused incapable of taking

part in the proceedings.  The limit had been reached where, even with

procedural assistance, an accused could not responsibly decide on basic

questions regarding his defence or reasonably exercise his personal

procedural rights. Neither the general assumption of an adult accused's

capacity to take part in the criminal proceedings against him, nor the

case-law of the criminal courts according to which only serious mental,

psychological or physical disturbances rendered an accused permanently

incapable of taking part in the proceedings, could be objected to from

a constitutional point of view.

     The Federal Constitutional Court found that the Federal Court of

Justice, in applying particular standards to proceedings concerning an

appeal on points of law, had not gone beyond these constitutional

limits.  In particular, the Federal Court of Justice had not been

required to accede to the defence argument that the applicant would

have to be capable of thoroughly studying a lengthy judgment or of

drawing his counsel's attention to possible deficiencies or

contradictions in the findings of the trial court or its evaluation of

evidence.  In this respect, the Federal Court of Justice had rightly

considered that the accused's defence counsel was responsible for

submitting the reasons for the appeal on points of law and had to check

the trial court judgment for possible procedural mistakes in the

establishment of the facts without being assisted by his client.

Moreover, the Federal Court had conformed to the constitutional demands

when establishing the applicant's capacity to take part in the

proceedings before it.  Thus, the relevant facts had been duly

established on a reliable basis, namely a detailed medical expert

opinion, which had been prepared for the purposes of the proceedings.

Moreover, there were no indications that the conduct of the appeal

hearing would have any repercussions on the applicant's mental or

physical health.

bb.  The resumed appeal proceedings

     On 2 March 1995 the Federal Court of Justice ordered the expert

M. who had already prepared opinions on this case in May 1994 and

January 1995, respectively, to present a supplementary medical expert

opinion on the applicant's capacity to take part in the appeal

proceedings.  The expert examined the applicant on 3 March 1995.  He

submitted his opinion on 5 March 1995.  According to the expert, the

applicant's mental status had been lucid, he had been orientated as to

his identity, had recognised the expert and had known about the appeal

hearing.  He had been able to name his defence counsel and had to some

extent known about the distribution of tasks between them.  He had

stated his expectation that, as a result of the appeal hearing, the

proceedings would be discontinued or he would be acquitted.  Having

read the Court's order concerning his repeated examination, he had

asked whether his defence counsel had been informed; as regards other

procedural questions, he had also referred to his counsel.  The expert

also stated that the decline in the applicant's capabilities had become

more and more obvious.  However, while he was no longer able reasonably

to contribute to the solution of factual issues and apparently left any

decisions to the discretion of his counsel, the applicant was still

capable of achieving a basic understanding with his counsel on the

question whether to withdraw or to pursue his appeal.

     The hearings were held before the Federal Court of Justice

between 8 and 10 March 1995.

     On 10 March 1995 the Federal Court of Justice dismissed both the

applicant's and the Public Prosecutor's appeals on points of law.

     In its decision comprising 51 pages, the Federal Court of

Justice, having summarised the relevant facts, first examined

procedural prerequisites.

     The Federal Court of Justice upheld its legal position, as

confirmed by the Federal Constitutional Court, on the applicant's

capacity to take part in the proceedings before it.  Moreover, the

Federal Court of Justice, based on the expert opinion of 5 March 1995,

found no new facts calling for another conclusion.  The Federal Court

of Justice rejected the counter-arguments of the defence and stressed

that the fact that the applicant could no longer reasonably assist his

defence counsel was irrelevant at this stage of the proceedings.  The

request of the applicant's defence counsel again to hear an expert on

this point was dismissed.

     The Federal Court of Justice also rejected the applicant's claims

that the bill of indictment and the decision to commit him for trial

had not sufficiently specified the time and the place of the offence

and that the bill of indictment had not contained any precise charge

(Anklagesatz).

     As regards the defence arguments concerning the alleged

manipulation of the criminal files to the applicant's detriment, the

Federal Court of Justice accepted that incomplete investigation files

could complicate the preparation of the defence and the finding of the

truth.  However, referring to its case-law, the Court found that such

shortcomings did not constitute a technical bar to the proceedings.

Rather, the trial court had to consider allegations concerning

manipulated files when evaluating the evidence.  In the present case,

the Regional Court had taken the state of the criminal files into

account and, having taken expert evidence, had come to the conclusion

that there was no indication of deliberate manipulation.  The hearing

of an expert on that matter, as requested by the defence at the appeal

hearing, was not necessary.

     The Federal Court of Justice also considered that, contrary to

the applicant's appeal submissions, the fact that the trial court, due

to the lapse of time between the offence charged and the trial, had

largely had recourse to records concerning the earlier questioning of

witnesses and co-accused, did not constitute a technical bar to the

proceedings.  The Code of Criminal Procedure expressly provided for the

use of such records, obliging the trial court to assess of its own the

probative value of such evidence.  The fact that no direct questions

could be put to deceased witnesses or co-accused did not prevent such

records from being used in evidence.

     The Federal Court of Justice next set out in detail that the

prosecution of the applicant was not statute-barred.  The Federal Court

of Justice concurred with the Regional Court's line of reasoning on the

qualification of the offence, the initial limitation period of 20 years

and its interruption in 1934 and its suspension between 1 May 1945 and

30 October 1945.

     Contrary to the Regional Court, the Federal Court of Justice took

the view that the running of the limitation period had again been

interrupted on 7 February 1947 when a new arrest warrant had been

issued against the applicant.  This arrest warrant had, contrary to the

defence arguments, been no specious measure.  While similar to the

arrest warrant of 1933 against the applicant and a co-accused, the new

arrest warrant had solely related to the applicant whose whereabouts

were known, and there had also been a practical reason, namely to avoid

prosecution measures being taken on the basis of an arrest warrant

dating back to 1933.  Moreover, the arrest warrant was not invalid for

having been issued by an "auxiliary" judge (Hilfsrichter) at the

District Court.  At that time, "auxiliary" judges had been charged with

judicial activities, as permanent judges accepted by the Military

Government had not been available in sufficient number, and there was

nothing to show that the judge concerned had not been duly appointed.

Finally, the alleged lack of the District Court's hierarchical

competence could not have tainted the arrest warrant with voidness.

     Following the splitting up of the judicial system in Berlin in

February 1949, the proceedings against the applicant had continued to

be pending before the Regional Court set up in the East Sector of

Berlin where the "Bülowplatz" was situated and where the applicant had

been living.  In this respect, the Federal Court of Justice, in the

absence of any specific rules, relied on the general rules of the forum

delicti and the forum domicilii.  Accordingly, the limitation period

had to be determined in accordance with the laws of the former German

Democratic Republic as lex fori.  Considering in detail the relevant

provisions of the legislation of the former German Democratic Republic,

the Federal Court of Justice concluded that, in the applicant's case,

the limitation period had not yet expired on 3 October 1990, the date

of the German unification.  In this respect, the Federal Court of

Justice found in particular that  the running of the limitation period

had been suspended during the applicant's membership in the People's

Chamber (Volkskammer) between 1958 and 1989.  It further noted that the

limitation period had been extended to 25 years under the 1968 Penal

Code of the former German Democratic Republic.

     Moreover, even assuming that the laws of the Federal Republic of

Germany applied, the prosecution was not statute-barred as, pursuant

to the 1965 Act on the Calculation of Limitation Periods (Gesetz über

die Berechnung strafrechtlicher Verjährungsfristen) and the Penal Code

as amended in 1969 and 1979, the limitation period would have commenced

afresh in 1950 and, having been extended to 30 years in 1969, it had

not yet expired in 1979 when the limitation period for the prosecution

of murder was abolished.

     The Federal Court of Justice next considered in turn the

particular points raised in the applicant's appeal on points of law,

namely the applicant's alleged incapacity to take part in the trial

proceedings as well as various matters regarding the Regional Court's

taking and assessment of evidence.

     In particular, the Federal Court of Justice found nothing to show

that the applicant had been incapable of taking part in the trial

hearing of 16 November 1992, when only one witness had been questioned

for less than a minute; even more so, as the defence had subsequently

not requested the renewed questioning of the witness concerned.  The

Regional Court's further decision of 5 July 1993, dismissing the

applicant's request to discontinue the trial proceedings on account of

his alleged incapacity to take part therein, had been taken on the

basis of medical expert evidence on the applicant's health.  The trial

court had reached its conclusion after careful analysis of the experts'

findings, and the appeal statements did not cast doubt on the trial

court's decision that the applicant's participation, limited in time,

had been possible.  The hearing of an expert on that matter was not

necessary.

     The Federal Court of Justice also rejected various procedural

complaints regarding the taking and evaluation of evidence.  It

confirmed in particular the use in evidence of the statements made by

the co-accused B. as it was unlikely that in 1933 these statements had

been obtained in circumstances contrary to S. 136 (a) of the Code of

Criminal Procedure, prohibiting that statements be obtained by way of

ill-treatment, fatigue, deception or other means affecting the freedom

of the will.  Moreover, the Regional Court had correctly refused to

postpone the trial for the purpose of a Moscow journey by the

applicant's defence counsel, as there had been no point in carrying out

further investigations in Moscow archives.  The Regional Court's

evaluation of evidence had been based on a wide range of material

belonging to two independent elements of corroborating evidence, namely

the curriculum vitae drafted by the applicant and the co-accused Z. and

other related evidence, and the statements of the co-accused B.  The

Regional Court had duly considered the doubts raised by the defence at

the trial and had also been aware of the problems in using evidence

obtained in 1933/34.

     Finally, the Federal Court of Justice rejected the Public

Prosecutor's complaint about the applicant's sentence.

d.   The proceedings relating to the constitutional complaint

     On 8 May 1995 the applicant, assisted by his counsel, lodged a

constitutional complaint with the Federal Constitutional Court against

the Regional Court's judgment of 26 October 1993 and the judgment of

the Federal Court of Justice of 10 March 1995.

     On 18 July 1995 the Second Chamber of the Federal Constitutional

Court, sitting as a panel of three judges, refused to admit the

applicant's constitutional complaint.  The Federal Constitutional Court

found that the complaint raised no question of fundamental importance

and had no prospect of success.  In particular, it was not for the

Constitutional Court to decide upon the establishment of the facts, the

evaluation of the evidence and the interpretation and application of

the general laws, as criticised by the applicant.  In these matters,

the Constitutional Court could only exceptionally intervene in case of

manifest arbitrariness.  However, in the present case, the reasoning

of the Federal Court of Justice in its judgment of 10 March 1995,

concerning the limitation period, the applicant's capacity to take part

in the proceedings, the use in evidence of the statements made by the

co-accused B., the alleged unfairness of the proceedings, was

reasonable (nachvollziehbar), at least not arbitrary and did not breach

any other of the applicant's constitutional rights.  The Federal Court

of Justice had also duly taken into account the doubts raised by the

defence as to the due administration of justice (Justizförmigkeit) in

1933 when the records relating to the questioning of the co-accused B.

had been drawn up.

     The applicant's counsel received the Constitutional Court's

decision on 31 July 1995.

COMPLAINTS

1.   The applicant complains under Article 5 of the Convention that

his detention on remand and his detention after conviction amounted to

an unlawful deprivation of his liberty.  He submits that the

prosecution for the offences concerned had already become statute-

barred.  The German courts had arbitrarily and contrary to the

principle in dubio pro reo decided that the arrest warrant of 1947 had

been valid and had accordingly interrupted the running of the

limitation period.  The applicant claims that the "auxiliary" judge who

had issued the arrest warrant had not been duly appointed by the Allied

Forces, but had merely been a trainee (Referendar).

2.   The applicant further complains under Article 14 of the

Convention that the conduct of the criminal proceedings and his

conviction discriminated against him on account of his political views

and his political background as one of the important and well known

figures of the former German Democratic Republic.  He alleges that his

prosecution on the basis of a bill of indictment dating back to 1933

was pursued for the sole reason that the general public called for the

prosecution of the leading political figures of the former German

Democratic Republic.

3.   The applicant also considers that the criminal proceedings

against him were unfair.  He invokes Article 6 in general and also

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

     He maintains in particular that the criminal files had been

manipulated.  Moreover, according to the applicant, the Regional

Court's judgment was mainly based on the statements of the co-accused

B., as contained in the records on his questioning in the early

thirties.  As the applicant had left Berlin in August 1931 and only

returned in 1947, he had never been able to put questions to the

witness who had died a long time before the trial.  Thus the applicant

and his defence counsel had not been in a position to verify their

doubts as to the credibility of the witness concerned.

     Moreover, the applicant claims that he had not been capable of

taking part in the trial proceedings before the Regional Court or the

proceedings before the Federal Court of Justice.  In particular, the

approach taken by the Federal Court of Justice, as confirmed by the

Federal Constitutional Court, namely substantially to reduce the

requirements for an accused's capacity to take part in the proceedings

on appeal on points of law, had deprived the applicant of his position

as responsible participant (Subjektstellung) in the proceedings and

thereby deprived him of a fair hearing.

THE LAW

1.   The applicant complains under Article 5 (Art. 5) of the

Convention that he had been unlawfully deprived of his liberty.

     Article 5 para. 1 (Art. 5-1), so far as relevant, provides as

follows:

     "1.   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:

           a.    the lawful detention of a person after conviction by

     a competent court;

     ...

           c.    the lawful arrest or 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;

     ..."

     The Commission recalls that the terms "in accordance with a

procedure prescribed by law" and "lawful detention" in Article 5

para. 1 (Art. 5-1) refer to the applicable domestic law. It follows

that disregard of the domestic law may entail a breach of the

Convention.  However, the scope of review by the Convention organs is

limited and it is in the first place for the national authorities,

notably the courts, to interpret and apply domestic law (cf. Eur. Court

HR, Winterwerp v. the Netherlands judgment of 24 October 1979, Series

A no. 33, p. 18, para. 39, p. 20, paras. 45-46; No. 9997/82,

Dec. 7.12.82, D.R. 31, p. 245).

     The Commission notes that, in the context of criminal proceedings

on charges of two counts of murder and one count of attempted murder,

the applicant was detained on remand on the basis of an arrest warrant

issued by the Berlin Regional Court on 28 November 1991.  On 26 October

1993 the Berlin Regional Court convicted the applicant and sentenced

him to six years' imprisonment. This judgment was confirmed by the

Federal Court of Justice.  The Commission considers that the

applicant's submissions, in particular his arguments regarding the

running of the limitation period, do not establish any non-observance

of German penal law, let alone the Convention.  In sum, there is no

ground to conclude that his detention was not "lawful" or not ordered

"in accordance with a procedure prescribed by law" within the meaning

of Article 5 para. 1 (a) and (c) (Art. 5-1-a, 5-1-c) of the Convention.

     It follows that the applicant's complaint under Article 5 para. 1

(Art. 5-1) of the Convention is manifestly ill-founded within the

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

2.   The applicant further complains under Article 14 (Art. 14) of the

Convention that his criminal prosecution amounted to discrimination on

political grounds.

     According to Article 14 (Art. 14), the "enjoyment of the rights

and freedoms set forth in this Convention shall be secured without

discrimination on any ground such as sex, race, colour, language,

religion, political or other opinion, national or social origin,

association with a national minority, property, birth or other status".

     The Commission recalls that Article 14 (Art. 14) complements the

other substantive provisions of the Convention and its Protocols.  It

has no independent existence, since it has effect solely in relation

to the rights and freedoms safeguarded by those provisions.  There can

be no room for application of Article 14 (Art. 14) unless the facts of

the case fall within the ambit of one or more of such provisions (Eur.

Court HR, Inze v. Austria judgment of 28 October 1987, Series A no.

126, p. 17, para. 36).

     The Commission considers that the applicant's complaint about

discrimination relates in substance to his complaints under Articles 5

and 6 (Art. 5, 6) of the Convention about his criminal prosecution, his

conviction and his detention.  His complaint therefore falls within the

ambit of Article 14 (Art. 14).

     Article 14 (Art. 14) safeguards individuals, placed in similar

situations, from discrimination in the enjoyment of the rights and

freedoms set forth in the Convention and its Protocols.  A distinction

is discriminatory if it "has no objective and reasonable

justification".  The Contracting States enjoy a certain margin of

appreciation in assessing whether and to what extent differences in

otherwise similar situations justify a different treatment in law (Eur.

Court HR, Stjerna v. Finland judgment of 25 November 1994, Series A no.

299-B, pp. 63-64, para. 48).

     The Commission finds that the applicant's allegations of

discrimination against him on account of his political views and his

political functions in the former German Democratic Republic are of a

very general and speculative nature.  There is no indication that the

German judicial authorities, in particular the German courts, embarked

upon the continuation of the criminal proceedings against the applicant

on charges of two counts of murder and one count of attempted murder,

which eventually resulted in his conviction, for any other motives than

the investigation and prosecution of crime in general, and in

particular the determination of the criminal charges against the

applicant in accordance with the mandatory provisions of German law.

     It follows that there is no appearance of a violation

of Article 14, taken in conjunction with Article 5 or 6

(Art. 14+5, 14+6) of the Convention.

     Consequently, this part of the application is likewise manifestly

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

Convention.

3.   The applicant also considers that the criminal proceedings

against him were unfair.  He invokes Article 6 in general and also

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

     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. ...

     3.    Everyone charged with a criminal offence has the following

     minimum rights:

     ...

           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;

     ..."

     The Commission finds it appropriate to examine the applicant's

complaints about the alleged unfairness of the proceedings from the

point of view of paragraphs 1 and 3 of Article 6 (Art. 6-1, 6-3) taken

together, especially as the guarantees in paragraph 3 represent aspects

of the concept of a fair trial contained in paragraph 1 (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).

a.   The applicant's arguments concerning the alleged manipulation of

the criminal files in his case as well as the use in evidence of the

records concerning the statements made by the co-accused B. to the

police and a judge in 1933 both relate to the taking and evaluation of

evidence by the Berlin Regional Court.

     The Commission 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.  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).

     As regards the alleged manipulation of the criminal files, the

Commission notes that the Berlin Regional Court, in its judgment of

26 October 1993, examined in detail whether it was prevented from

having recourse to the means of evidence obtained in 1933.  The Court

found that, even considering the situation in Germany at that time,

there was nothing to show that the statements made by several witnesses

as well as by the co-accused B. had been obtained in a procedure

contrary to the principle of the rule of law, or that the truth had

been manipulated.  In this respect, the Regional Court noted, inter

alia, the incompleteness of part of the files and the renumbering of

other parts.  However, having heard an expert, it found no indication

that the files had been manipulated or that the facts had been

distorted.  The Federal Court of Justice, in its judgment of

10 March 1995, confirmed these findings, having due regard to the

applicant's appeal statements.  This approach was approved by the

Federal Constitutional Court in its decision of 18 July 1995.

     On this point, the Commission finds that the Regional Court, as

confirmed by the Federal Court of Justice, carefully examined whether

there had been a manipulation of the relevant criminal files and,

consequently, a distortion of the facts, preventing it from using the

evidence obtained in the initial stage of the proceedings.  There is

nothing to show that relevant material or the arguments in defence were

not taken duly into account or that any arbitrary conclusions were

drawn.

     With regard to the use in evidence of the records of the

statements made by the co-accused B., who had meanwhile died, the

Commission recalls that, although the Berlin Regional Court did not

hear Mr. B., he should, for the purposes of Article 6 para. 3 (d)

(Art. 6-3-d), be regarded as a witness - a term to be given an

autonomous interpretation (cf. Eur. Court HR, Asch v. Austria judgment

of 26 April 1991, Series A no. 203, p. 10, para. 25) - because his

statements, as taken down by the police and a judge in 1933 and read

out at the trial against the applicant, were used in evidence by the

Regional Court.

     The Commission notes that the charges against the applicant to

be determined by the Berlin Regional Court related to criminal offences

committed in August 1931.  While trial was held against various co-

accused in 1934, the proceedings against the applicant and a further

co-accused had to be provisionally discontinued on the ground that they

had absconded.  The applicant had subsequently stayed in the Soviet

Union, in Spain, Belgium and France; in 1947 he had returned to the

East Sector of Berlin.  Prosecution by the German authorities was taken

up in 1990 when the criminal files concerning this case, which had been

forwarded to the Headquarters of the Soviet Armed Forces in 1947, had

been found upon a search at the applicant's premises.

     The Commission recalls that, if there has been no negligence on

the part of the authorities, the impossibility of securing the

appearance of a witness at the trial does not make it in itself

necessary to halt the prosecution.  In such a situation it is open to

the national court, subject to the rights of the defence being

respected, to have regard to the statements obtained by the police and

the investigating judge, in particular if the court can consider those

statements to be corroborated by other evidence before it (cf., mutatis

mutandis, Artner judgment, loc. cit., paras. 20-22; Ferrantelli and

Santangelo v. Italy judgment of 7 August 1996, para. 52, to be

published in Reports 1996).

     The Commission, considering the course of the proceedings against

the applicant, finds that the Berlin Regional Court was allowed to rely

upon the statements made by Mr. B. to the police and a judge in 1933.

In the Commission's view, the Regional Court, in accordance with the

German Code of Criminal Procedure, carefully considered the

conclusiveness of these statements as well as the credibility of the

witness on the basis of all material available.  The doubts, raised by

the applicant's defence, as well as the general problems in using

evidence obtained in 1933/34 were duly taken into account.  Moreover,

as confirmed by the Federal Court of Justice, the Regional Court's

evaluation of evidence had been based on a wide range of material

belonging to two independent groups of corroborating evidence, namely,

apart from the statements of Mr. B., the curriculum vitae drafted by

the applicant and the co-accused Z., in which reference had been made

to the relevant events, and other related evidence.  The Regional Court

further relied on the evidence given by Mr. M., an eye-witness of the

offences, at the trial.

     In these circumstances the fact that the use of Mr. B.'s

statements, despite the fact that Mr. B. could not be examined at the

hearing before the Berlin Regional Court, did not infringe the rights

of the defence in breach of Article 6 paras. 1 and 3 (d)

(Art. 6-1+6-3-d) , taken together.

     The Commission finds no sufficient grounds to conclude that the

Regional Court's taking and assessment of evidence was incompatible

with Article 6 (Art. 6).

b.   Moreover, the applicant claims that he was not capable of taking

part in the trial proceedings before the Regional Court and the

proceedings before the Federal Court of Justice.

     The Commission recalls that, although this is not expressly

mentioned in paragraph 1 of Article 6 (Art. 6-1), the object and

purpose of this provision taken as a whole show that a person charged

with a criminal offence is entitled to take part in the hearing (cf.

Eur. Court HR, Colozza v. Italy judgment of 12 February 1985, Series

A no. 89, p. 14, para. 27; Brozicek v. Italy judgment of 19 December

1989, Series A no. 167, p. 19, para. 45;  F.C.B. v. Italy judgment of

28 August 1991, Series A no. 208-B, p. 21, para. 33; T. v. Italy

judgment of 12 October 1992, Series A no. 245-C, p. 41, para. 26; see

further Helmers v. Sweden judgment of 29 October 1991, Series A no.

212-A, pp 15 et seq., paras 31-39; Kremzow v. Austria judgment of 21

September 1993, Series A no. 268-B, pp. 43 et seq., paras. 57-69).  The

Commission considers that the effective exercise of this right

presupposes that the accused is capable, from a mental and physical

point of view, of taking part in the criminal proceedings against him.

     The Commission notes that, in the practice of the German criminal

courts, persons are regarded as capable of taking part in criminal

proceedings as long as they are capable of safeguarding their interests

in and out of court, of exercising their defence rights in a reasonable

and understandable manner, and of making or receiving procedural

declarations.  The Federal Constitutional Court, in its decision of

24 February 1995, stated that this notion did not infringe

constitutional principles, such as the protection of human dignity and

the principle of the rule of law.  In particular, an accused whose

mental or physical capabilities were restricted to an extent that he

could not exercise his procedural rights fully on his own and without

legal assistance, was nevertheless capable of taking part in criminal

proceedings, if assisted by defence counsel and possibly by an

interpreter.  The limit had been reached where, even with procedural

assistance, an accused could not responsibly decide on basic questions

regarding his defence or reasonably exercise his personal procedural

rights.

     In applying these criteria in the particular circumstances of the

present case, the Commission notes that the Berlin Regional Court

carefully examined the question of the applicant's capacity to take

part in the proceedings in the course of the trial.  As from

26 February 1992 the maximum duration of hearings was limited, on

account of the applicant's bad state of health, to one hour.  However,

the repeated requests raised by the applicant's defence counsel to

discontinue the proceedings were to no avail.  The Regional Court

reached its conclusion that the applicant was, within the fixed time-

limits, capable of taking part in the trial, on the basis of extensive

medical expert opinions.  There are no indications that the Regional

Court, in reaching these findings, which were confirmed upon the

applicant's appeal on points of law by the Federal Court of Justice,

had disregarded the applicant's defence rights or otherwise acted in

a manner incompatible with the right to a fair trial under Article 6

(Art. 6).  In this respect, the Commission notes that at the trial the

applicant had in turn been assisted by six defence counsel.

     With regard to the proceedings before the Federal Court of

Justice, the Commission recalls that in appeal and cassation

proceedings the manner in which paragraphs 1 and 3 (c) of Article 6

(Art. 6-1, 6-3-c) are to be applied depends upon the special features

of the proceedings in question.  Account must be taken of the entirety

of the proceedings conducted in the domestic legal system and the role

of the particular appellate court therein (cf., mutatis mutandis, Eur.

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

Series A no. 115, p. 22, para. 56; Granger v. the United Kingdom of 28

March 1990, Series A no. 174, p. 17, para. 44; Jan-Ã…ke Andersson v.

Sweden of 29 October 1991, Series A no. 212-B, pp. 43-44, para. 22;

Tripodi v. Italy judgment of 22 February 1994, Series A no 281-B, p.

45 para. 27; Kremzow judgment, loc. cit., para. 58).

     In this connection, the Commission observes that the proceedings

before the Federal Court of Justice were limited to points of law as

set out in the respective statements on the grounds for appeal.  The

Federal Court of Justice, in its decision of 8 February 1995, as

confirmed by the Federal Constitutional Court on 24 February 1995,

referred to the differences between trial proceedings and proceedings

concerning appeals on points of law, the latter being limited to a

review of whether the trial court had correctly applied the substantial

and procedural law.  The accused had accordingly few possibilities to

exert influence on the latter proceedings: he could, on his own, only

lodge or withdraw his appeal, but had to be assisted by counsel for the

purposes of determining the range of his appeal and of submitting the

reasons therefor.  Moreover, at the hearing on his appeal, the accused,

if at liberty, merely had a right to be present and to make a final

statement, and, if detained, he or she was not even entitled to be

present in addition to defence counsel.  On the basis of these

considerations, the Federal Court of Justice found that, as a minimum,

the accused had to be capable of responsibly deciding whether or not

to lodge an appeal on points of law.

     In the present case, the Federal Court of Justice, having twice

taken medical expert evidence as to the applicant's state of health,

found that, while he was no longer able reasonably to contribute to the

solution of factual issues and left decisions to the discretion of his

counsel, he was still capable of understanding the importance of the

appeal proceedings and of achieving a basic agreement with his defence

counsel on the continuation of the proceedings.  The Federal Court of

Justice reached this conclusion after careful consideration of the

applicant's capabilities and with due regard to the defence arguments.

The Federal Constitutional Court acceded to the standards applied by

the Federal Court of Justice and also confirmed its establishment of

the relevant facts in the applicant's case.

     The Commission observes that the opportunity to have recourse to

legal or other assistance forms part of the mimimum rights guaranteed

to persons charged with a criminal offence under paragraph 3 (c) and

(e) of Article 6 (Art. 6-3-c, 6-3-e).  In the Commission's view, the

concept that limitations in an accused's capacity to take part in the

proceedings are compensated by means of procedural assistance, in

particular the assistance of defence counsel, is, therefore, not in

itself contrary to Article 6 (Art. 6).  The Commission further finds

no indication that the Federal Court of Justice, either in its decision

on the request to discontinue the proceedings or in its judgment of 10

March 1995, failed to display the diligence required to ensure the

effective enjoyment of the rights guaranteed under Article 6 (Art. 6)

(cf., mutatis mutandis, Eur. Court HR., T. v. Italy judgment, loc.

cit., p. 42, para. 29).

     In these circumstances the Commission finds that the conduct of

the proceedings before the Federal Court of Justice, notwithstanding

the applicant's poor state of health and accordingly limited capacity

to take part in these proceedings, did not infringe the rights of the

defence to such an extent that the applicant did not receive a fair

hearing.

     Accordingly, the applicant's submissions do not disclose any

appearance of a violation of his rights under paragraphs 1 and 3 of

Article 6 (Art. 6) 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, by a majority,

     DECLARES THE APPLICATION INADMISSIBLE.

       M. de SALVIA                         S. TRECHSEL

     Deputy Secretary                         President

     to the Commission                    of the Commission