AS TO THE ADMISSIBILITY OF

                      Application No. 25534/94

                      by Wilfried POTTS

                      against Germany

     The European Commission of Human Rights (First Chamber) sitting

in private on 29 November 1995, 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 1 September 1994

by Wilfried Potts against Germany and registered on 4 November 1994

under file No. 25534/94;

     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 facts, as they have been submitted by the applicant, may be

summarised as follows.

     The applicant, born in 1945, is a German national.  When lodging

his application he was detained in a prison in Celle.

     Between 10 February and 3 March 1993 the Stade Regional Court

(Landgericht) tried the applicant on a charge of murder, namely of

having killed his wife, a teacher.  In these and the following

proceedings, the applicant was assisted by defence counsel of his own

choosing.  It appears that the applicant's mother-in-law joined the

proceedings as associated prosecutor (Nebenklägerin).

     At the hearing of 22 February 1993 the Regional Court decided to

hear as witnesses three pupils, all born in 1985, who had been present

in the class room when the crime at issue was committed.  The Presiding

Judge informed the parties that the Court, having heard the parents of

the children concerned and a school psychologist, intended to exclude

the public during the questioning of the children.

     Having heard the parties, the Regional Court decided to exclude

the public during the questioning of the children.  In its decision,

the Regional Court stated that the exclusion of the public was

necessary in the interest of the children, in accordance with S. 172

(4) of the Court Organisation Act (Gerichtsverfassungsgesetz).  In this

respect, the Regional Court considered in particular that there was a

risk that, due to the publicity of the case in the press and the

audience, the children might be at the centre of public interest which

would be harmful to their development.  Furthermore, the establishment

of the truth was easier as the children would most likely give evidence

without feeling any constraints.  In agreement with the parties, the

parents of the children concerned, the school psychologist as well as

three legal trainees were permitted to attend the questioning.

     After having excluded the public, the Presiding Judge informed

the parties that the school psychologist had expressed the view that

the applicant should not be present while the children were giving

evidence.  The applicant's defence counsel objected.  Having

deliberated, the Regional Court decided to exclude the applicant during

the questioning of the three children concerned.  Referring to S. 247

of the Code of Criminal Procedure (Strafprozeßordnung), the Court

considered that, according to the opinion of the school psychologist,

the children were still suffering from the events at issue.  If

questioned in the applicant's presence, the children might not feel

free to give evidence, and furthermore their old fears might be

revived.

     The applicant was removed from the court room during the

questioning of the first of the three children.  The child's mother was

heard as to her son's personal data, i.e. his name, date of birth and

any relationship to the applicant, after which the child gave his

testimony.  The applicant was afterwards brought back and informed

about the statements made by the witness.  The applicant declared that

he did not have any questions.  The same course of action was followed

as regards the second witness.  The third witness had not appeared.

Thereupon the public and the applicant were again admitted, and the

trial continued.

     On 3 March 1993 the Stade Regional Court convicted the applicant

of homicide (Totschlag) and unlawful possession of firearms and

sentenced him to ten years' imprisonment.  The Court found that the

applicant had shot his wife, who had instituted divorce proceedings,

in the course of a lesson at the school premises.  The Court, in

establishing the facts, had regard to the applicant's own statements,

in particular admitting the offence as such.  Furthermore, the Court,

having heard a forensic expert, a psychiatric expert and a sociologist,

considered that the applicant had been criminally responsible at the

time of the events.  In particular, despite the applicant's high blood

alcohol content level, his appearance and conduct at the relevant time,

as described by several witnesses, excluded the possibility of a total

intoxication.  However, due to deficiencies in his personality the

applicant had not been capable of understanding the reprehensible

nature of his actions.  His offence could not, therefore, be qualified

as murder, but only as homicide.

     The applicant lodged an appeal on points of law (Revision) with

the Federal Court of Justice (Bundesgerichtshof).  He submitted in

particular that at the trial the public had been unlawfully excluded

during the part of the proceedings relating to the question whether he

should be present during the questioning of the children.  He also

complained that he had not been present during parts of the proceedings

not covered by the Regional Court's decision to remove him, such as the

questioning of the parents as to the personalities of their children.

He finally challenged the Regional Court's findings as to his criminal

responsibility.

     The associated prosecutor also appealed on points of law,

challenging the Regional Court's finding that the applicant had not

committed murder as well as the fixing of the sentence.

     The General Prosecutor (Generalbundesanwalt), in his written

observations of 26 November 1993 on the above appeals, considered that,

as far as the question of the applicant's presence during the

questioning of the children had been discussed and his removal had been

decided, the public had been excluded to an extent not covered by the

Court Organisation Act.

     On 21 December 1993 the Federal Court of Justice rejected the

associated prosecutor's appeal on points of law.

     On 22 December 1993 the Federal Court of Justice issued a summons

for the hearing on the applicant's appeal on points of law which had

been scheduled for 25 January 1994, indicating that the applicant,

being incarcerated, was not entitled to be present.

     On 25 January 1994 the Federal Court of Justice held the hearing

on the applicant's appeal on points of law in the presence of a

representative of the General Prosecutor's Office, the applicant's two

defence counsel, but in the absence of the applicant.

     At the hearing, Mrs. B., the sister of the victim, presented

herself as representative of the associated prosecutor, claiming to be

orally appointed.  In agreement with the defence counsel and the

representative of the General Prosecutor's Office, the Federal Court

of Justice granted Mrs. B. the right to make oral observations.

     On 25 January 1994 the Federal Court of Justice rejected the

applicant's appeal on points of law.

     In its decision, the Federal Court of Justice considered in

particular the exclusion of the public during the questioning of minors

as witnesses pursuant to S. 172 (4) of the Court Organisation Act

covered all procedural steps closely related to the questioning or

resulting from the questioning and therefore forming part of that phase

of the proceedings.  These considerations applied in particular to the

decision under S. 247 of the Code of Criminal Procedure, i.e. on

whether the accused was to be removed from court during the questioning

concerned, and the preceding discussion of this question as well as the

information of the accused on the contents of the testimony given by

the minor witness.  Moreover, the parents had not been heard as

independent witnesses but only as regards the personal data of the

children.  The Federal Court of Justice also confirmed the Regional

Court's findings as to the applicant's criminal responsibility.

     On 18 August 1994 the Federal Constitutional Court (Bundesver-

fassungsgericht) refused to admit the applicant's constitutional

complaint (Verfassungsbeschwerde).

     By letter of 1 February 1995, one of the applicant's defence

counsel present at the hearing before the Federal Court of Justice,

upon the applicant's inquiry as regards the course of the hearing,

explained to him that doubts had been raised as to allowing Mrs. B. to

comment at the hearing.  However, the defence had finally considered

it appropriate not to object to the hearing of Mrs. B.

COMPLAINTS

1.   The applicant complains under Article 6 para. 1 of the Convention

that at the trial before the Stade Regional Court the public was

excluded to an extent which was not covered by the Court's decision

which only related to the questioning of minor witnesses, and was not

strictly necessary.

2.   The applicant further complains under Article 6 para. 3 (d) of

the Convention that, while Mrs. B., a witness against him, had been

given the opportunity to be heard at the hearing on his appeal on

points of law, he had not been entitled to be personally present, and

the defence could not therefore effectively put questions to Mrs. B.

THE LAW

1.   The applicant complains that the trial before the Stade Regional

Court did not comply with the requirement as to a public hearing

pursuant to Article 6 para. 1 (Art. 6-1) of the Convention.

     Article 6 para. 1 (Art. 6-1), as far as relevant, provides:

     "In the determination of ... any criminal charge against him,

     everyone is entitled to a ... public hearing ... by [a] ...

     tribunal ... the press and public may be excluded from all or

     part of the trial ... where the interests of juveniles ... so

     require, or to the extent strictly necessary in the opinion of

     the court in special circumstances where publicity would

     prejudice the interests of justice."

     The Commission notes that the Stade Regional Court, at the

hearing of 22 February 1992, decided to hear as witnesses three pupils,

born in 1985, who had been present in the class room when the crime was

committed.  Having heard the parents of the children concerned and a

school psychologist as well as the parties, the Regional Court decided

to exclude the public during the questioning of the children, finding

such exclusion necessary in the interest of the children and also for

the purpose of establishing the truth.  After having excluded the

public, the Regional Court dealt with the question of the applicant's

presence during the questioning of the children, and, having heard the

parties, decided to exclude the applicant during the questioning of the

three children concerned.  Following the applicant's removal from the

court room, the two children present at court were heard successively,

the children's personal data being indicated by their parents.  After

each questioning, the applicant was brought back into court and

informed about the statements made.  Subsequently the public was again

admitted, and the trial continued.

     The Commission finds that in these circumstances the public was

excluded from part of the applicant's trial in the interest of

juveniles who at the time of their questioning were seven years old and

were supposed to give testimony on incidents relating to a charge of

murder.  Taking into account the reasons advanced by the Regional

Court, there is no indication that the interests of the minor witnesses

did not require the exclusion of the public from this part of the

trial.

     The Commission has further considered the applicant's argument

that the public was excluded for more than the "extent strictly

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

Commission observes that this test of "strict necessity" is limited to

the case where in the opinion of the court, in special circumstances,

publicity would prejudice the interests of justice.  Furthermore, the

Commission notes the findings of the Federal Court of Justice that,

while the Regional Court's decision to exclude the public related to

the questioning of the children, it also covered any other procedural

step closely linked to the questioning of the children such as the

procedural question of the applicant's presence.  In this context, the

Commission had also regard to the absence of any request by the defence

to have the public admitted during this part of the proceedings.

     In these circumstances, the Commission finds that there were

sufficient reasons justifying the exclusion of the public during the

part of the hearing before the Stade Regional Court which followed the

decision to hear the children concerned as witnesses until the

completion of their testimony.

     Accordingly, there is no appearance of a violation of Article 6

para. 1 (Art. 6-1) in this respect.

     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.

2.   The applicant further complains under Article 6 para. 3 (d)

(Art. 6-3-d) of the Convention that, while Mrs. B., a witness against

him, had been given the opportunity to be heard at the hearing on his

appeal on points of law, he had not been entitled to be personally

present, and the defence could not therefore effectively put questions

to Mrs. B.

     The Commission observes that the applicant's submissions relate

both to the issue of his presence at the hearing before the Federal

Court of Justice as well as the intervention of a person on behalf of

the associated prosecutor.  It seems appropriate to look at these

complaints from the points of view of paragraphs 1 and 3 of Article 6

taken together (Art. 6-1+6-3), especially as the guarantees in

paragraph 3 represent aspects of the concept of a fair trial contained

in paragraph 1 (Eur. Court H.R., Unterpertinger judgment of

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

     As regards the question of the applicant's presence at the

hearing on his appeal on points of law, the Commission considers that,

having regard to the nature of review exercised by the Federal Court

of Justice, the presence of the accused, who is legally represented,

is not generally required either by paragraph 1 or 3 (c) of Article 6

(Art. 6-1, 6-3-c) (cf., mutatis mutandis, Eur. Court H.R., Kremzow

judgment of 21 September 1993, Series A no. 268-B, p. 44, para. 63).

     In the present case, the hearing before the Federal Court of

Justice related to the applicant's appeal on points of law - the appeal

lodged by the associated prosecutor having been rejected at an earlier

date - and was confined to legal questions relating to procedural

matters, namely the exclusion of the public during part of the trial,

and to the question whether the Regional Court had correctly found him

criminally responsible.  No matters relating to the applicant's

character or otherwise necessitating his personal presence were at

issue (cf., Eur. Court H.R., Kremzow judgment, loc. cit., p. 45,

paras. 67-68).

     The Commission also noted that Mrs. B., the sister of the victim,

was given, as representative of the associated prosecutor, the

opportunity to make oral submissions at the hearing concerned.

However, bearing in mind the legal nature of the issues to be decided

by the Federal Court of Justice and the presence of his two defence

counsel, who were consulted and did not object to Mrs. B. being heard,

the Commission finds no indication that the applicant's absence on the

occasion of these submissions infringed his defence rights.

     In these circumstances, the applicant's submissions do not

disclose any appearance of a violation of his right to a fair trial

within the meaning of Article 6 paras. 1 and 3 (Art. 6-1, 6-3) in the

proceedings before the Federal Court of Justice.

     It follows that this part of the application is likewise

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

(Art. 27-2) of the Convention.

     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)