Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 28631/95

by Tamer SALAMEH

against Germany

The European Commission of Human Rights (First Chamber) sitting

in private on 15 May 1996, the following members being present:

Mr. C.L. ROZAKIS, President

Mrs. J. LIDDY

MM. E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

M.P. PELLONPÄÄ

B. MARXER

B. CONFORTI

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

Mrs. M.F. BUQUICCHIO, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 13 February 1991

by Tamer SALAMEH against Germany and registered on 21 September 1995

under file No. 28631/95;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

FACTS

The applicant, born in 1964, is a German national and resident

in Berlin.

The facts of the case, as they have been submitted by the

applicant, may be summarised as follows.

On 14 September 1987 the Berlin-Tiergarten District Court

(Amtsgericht), sitting as a lay magistrate's court (Schöffengericht),

convicted the applicant of tax evasion regarding smuggled cigarettes

and imposed a fine of 45 daily rates (Tagessätze) of DM 50. The seized

cigarettes were confiscated. The District Court found that in 1986 the

applicant, when travelling from East-Berlin to West-Berlin, had failed

to declare altogether 247.000 cigarettes. The District Court observed

that the applicant chose to remain silent and based its findings on the

testimony of several witnesses, in particular the customs officers

concerned and his superior at the relevant time.

In these and the following proceedings the applicant was assisted

by defence counsel.

On 6 February 1990 the Berlin Regional Court (Landgericht)

dismissed the applicant's appeal (Berufung). The Regional Court,

following a full trial, confirmed the findings by the District Court.

The Regional Court considered in particular that the applicant's

defence that his father had asked him to take over an urgent transport

of cigarettes and that the car had already been loaded when he had

taken it together with transport papers, was refuted by the other

evidence available. The applicant's statements in this respect and the

testimony of his father as well as of a further witness were

inconsistent and contradictory.

On 10 September 1990 the Berlin Court of Appeal (Kammergericht),

referring to S. 349 para. 2 of the Code of Criminal Procedure

(Strafprozeßordnung), dismissed the applicant's appeal on points of law

(Revision) on the ground that it was obviously unfounded.

S. 349 para. 2 of the German Code of Criminal Procedure provides

that the court determining an appeal on points of law

(Revisionsgericht) may, upon the request of the public prosecutor's

office ..., take its decision without holding a hearing if it

unanimously considers that the appeal is obviously unfounded.

COMPLAINTS

The applicant complains under Articles 3, 6 and 7 of the

Convention about his conviction and also of the proceedings concerned.

He claims that he could not duly defend himself and that his statements

and the testimony of witnesses were ignored.

THE LAW

1. The Commission observes that the applicant lodged the above

complaints in his submissions of 13 February 1991. As the applicant

did not pursue the application, the provisional file opened in his name

was destroyed, in accordance with the usual practice, on 1 March 1995.

By letter of 19 April 1995 the applicant requested information on the

state of his application of 13 February 1991 and subsequently filed

again a copy of his first submissions as well as of the relevant

documents and other material. The question arises whether the absence

of any action on the part of the applicant in pursuing his application

might affect the running of the period of six-months under Article 26

(Art. 26) of the Convention. However, the Commission need not resolve

this matter as the application is in any event inadmissible for the

following reasons.

2. The applicant complains about his conviction by the Berlin-

Tiergarten District Court, as confirmed by the Berlin Regional Court

and Court of Appeal as well as of the proceedings concerned.

With regard to the judicial decisions of which the applicant

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

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

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

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

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

except where it considers that such errors might have involved a

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

Convention (cf. No. 21283/93, Dec. 5.4.94, D.R. 77.13 pp. 81, 88 and

Eur. Court H.R., Van de Hurk judgment of 19 April 1994, Series A

no. 288, p. 20, para. 61; Klaas judgment of 22 September 1993, Series A

no. 269, p. 17, para. 29.

The applicant alleges a violation of Article 6 (Art. 6) of the

Convention in that he did not have a fair trial.

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

tribunal ...

3. Everyone charged with a criminal offence has the following

minimum rights:

...

b. to have adequate time and facilities for the

preparation of his defence;

c. to defend himself in person or through legal

assistance ...

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 notes that the applicant was assisted by defence

counsel throughout the criminal proceedings against him. At first

instance, the applicant chose to remain silent and the District Court

findings were based on the statements of various witnesses. The

Regional Court, following a further trial hearing, had regard to the

applicant's defence statements which were to some extent confirmed by

the statements of two witnesses and explained in detail that these

statements were refuted on the basis of the evidence as a whole. There

is no indication that the applicant, assisted by defence counsel, could

not duly exercise his defence rights or that the proceedings before the

District Court and the Regional Court were otherwise unfair.

As regards the applicant's complaint about the decision of the

Berlin Court of Appeal, the Commission recalls that Article 6 para. 1

(Art. 6-1) obliges the courts to give reasons for their judgments, but

cannot be understood to require a detailed answer to every argument.

The extent to which this duty to give reasons applies may vary

according to the nature of the decision. It is moreover necessary to

take into account, inter alia, the diversity of the submissions that

a litigant may bring before the courts and the differences existing in

the Contracting States with regard to statutory provisions, customary

rules, legal opinion and the presentation and drafting of judgments

(Eur. Court H.R., Ruiz Torija and Hiro Balani judgments of 9 December

1994, Series A nos. 303 A/B, p. 12, para. 29 and pp. 29-30, para. 27,

respectively).

The Commission considers that, if the relevant domestic law

authorises an appeal court to reject an appeal on the ground that it

raises no legal issue of fundamental importance and offers no prospect

of success, it may be sufficient for that court simply to refer to the

provision authorising this procedure (cf. No. 8769/79, Dec. 16.7.81,

D.R. 25 p. 240).

In the instant case, the Berlin Court of Appeal, in referring to

S. 349 para. 2 of the Code of Criminal Procedure and stating that the

applicant's appeal on points of law was obviously unfounded,

sufficiently indicated the reasons of its decision. In these

circumstances, there is no appearance of a violation of the right to

a fair hearing guaranteed by Article 6 para. 1 (Art. 6-1).

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. With regard to his complaints about his conviction and the

proceedings concerned, the applicant has further invoked Articles 3

and 7 (Art. 3, 7) of the Convention. However, the Commission, having

regard to all material before it and referring to its above findings

under Article 6 (Art. 6), considers that the applicant's submissions

do not disclose any appearance of a violation of his rights under the

above provisions. This part of the application is, therefore, also

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

(Art. 27-2).

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the First Chamber President of the First Chamber

(M.F. BUQUICCHIO) (C.L. ROZAKIS)

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SALAMEH v. GERMANY

SALAMEH v. GERMANY

LEXI