Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 25493/94

by Rocco TARANTINO

against Germany

The European Commission of Human Rights (First Chamber) sitting

in private on 18 October 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

G.B. REFFI

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 5 September 1994

by Rocco TARANTINO against Germany and registered on 26 October 1994

under file No. 25493/94;

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 1955, is an Italian national. He is a

welder by profession. When lodging his application he was detained at

a prison in Freiburg. In the proceedings before the Commission he is

represented by Mr. M. Schubert, a lawyer practising in Freiburg.

On 29 January 1993 the Freiburg Regional Court (Landgericht),

having held a trial between 21 October 1992 and 29 January 1993,

convicted the applicant of aggravated arson, arson and bodily assault

as well as of having simulated the commission of a punishable offence

and committed fraud. The applicant was sentenced to three year's and

four months' imprisonment.

The Regional Court found that on 28 December 1988, between noon

and 1 p.m., the applicant had returned from a christmas holiday in

Italy, while his wife - the spouses had separated - and son had

continued to stay there. He had arrived at the spouses's apartment in

the early morning of 29 December 1988 where he simulated a burglary and

afterwards set fire. He had intended to claim insurance payments for

the damage caused and various valuables which had either previously

been taken away or were taken along by him on that occasion. The

applicant, when questioned by the police as a victim, according to his

plan had maintained that a burglary had been committed and various

valuables been stolen. Furthermore he had claimed about DM 120,000

from his insurance company for his alleged losses. The insurance

company had subsequently paid shares of altogether DM 90,000. As to

the applicant's financial situation in 1987 and 1988, the Regional

Court found that the applicant had earned about DM 35,000 in 1987 and

about DM 88,000 in 1988, that his cheque accounts at two banking

institutes were mostly in debit and that he had to pay a debt of

DM 40,000 by monthly instalments.

The Regional Court stated that its factual findings were based

partly upon the applicant's statements and the statements of witnesses,

inter alia the applicant's wife and his mistress as well as his former

employer, in particular as to the applicant's financial situation. As

regards the offences as such, the Regional Court noted that the

applicant had denied any guilt. The Regional Court proceeded from the

testimony of some other tenants in the house concerned, who had seen

somebody entering the house, and heard noise in the applicant's

apartment, on 29 December 1988, at about 1.15 a.m. Having regard to

the opinion of an engineer and employee of the German automobile club

(ADAC), the Regional Court considered that the applicant when returning

from Italy on 28 December 1988, between noon and 1 p.m., had been able

to return and arrive in Freiburg in the early morning of

29 December 1988, between 1.15 and 1.20 a.m. Both the expert and the

Regional Court, in this respect, took the possible average speed, speed

limits, the traffic and weather situation at the relevant time into

account. As to the weather conditions, the Regional Court heard a

meteorologist from the German weather forecast (Deutscher Wetterdienst)

as expert. The Regional Court did not give credence to the statements

of some of the applicant's relatives from Italy, who had indicated a

later time of the applicant's departure in Italy.

Considering all relevant circumstances, the Regional Court was

also convinced that the applicant had set fire to the apartment. In

this respect, the Regional Court, having regard to the opinion of a

further expert and the statements of a police officer as to the

possibilities to open the main entrance door as well as the door of the

applicant's apartment, concluded that these doors had been opened with

one of the three original keys, one owned by the applicant. Even

assuming that one of the original keys had been lost in 1981, it could

reasonably be excluded that a third person had kept such a key until

December 1988 in order to commit a burglary. Moreover, the state of

the apartment, the kind of damage caused to the entrance door of the

apartment rather excluded a burglary. The Regional Court considered

that the applicant's motive to commit the offences in question had been

his poor financial situation at the relevant time.

In these and the ensuing proceedings the applicant was assisted

by defence counsel.

On 30 November 1993 the Federal Court of Justice (Bundesgerichts-

hof), upon the applicant's appeal on points of law (Revision), amended

the Regional Court's judgment as to the legal qualification of the

offence as aggravated arson only, and dismissed the remainder of the

appeal on points of law.

As regards the applicant's procedural complaint that the Regional

Court had refused to hear two witnesses on their impression that he had

plenty of money at the relevant time, the Federal Court of Justice

considered that the Regional Court had proceeded from the truth of this

statement and, on the basis of the applicant's own statements, assumed

that he had earned about DM 35,000 in 1987 and about DM 88,000 in 1988.

His subsequent financial situation had been irrelevant.

The Federal Court of Justice further considered that the

complaint about the Regional Court's refusal to hear the applicant's

son on the question whether, upon the family's departure, the entrance

door of the apartment had been closed by key was inadmissible. In this

respect, the Federal Court of Justice observed that the applicant had

failed to show that his son had at all been present.

The Federal Court of Justice also regarded as inadmissible the

complaint that the interpreter present when the applicant's wife had

been heard by the police had not been heard by the Regional Court as

to alleged insufficiencies in that questioning. The applicant had

failed to submit the contents of the record on that questioning.

Furthermore, no taking of evidence had been necessary on the

question whether one or two original keys had been lost in 1981 on the

ground that the Regional Court had proceeded on the assumption of the

loss of one of the keys which was valid also for the possible loss of

two keys in 1981.

The Federal Court of Justice also approved that the Regional

Court had read out at the trial the record on the questioning, in

proceedings under letters rogatory in Bari, Italy, of the applicant's

mother, and, for age and health reasons, refrained from summoning her

as witness at the trial. Furthermore, as regards the applicant's

complaint that his counsel had not been summoned to participate in the

questioning in Bari, the Federal Court of Justice noted that the

applicant had not objected to the record concerned being read out. The

fact that this witness had not been sworn was regarded as irrelevant

on the ground that the credibility of the applicant's mother had not

been called into question. Furthermore, the Regional Court had not

been obliged to hear a particular meteorologist as expert on the

weather conditions at the relevant time. The applicant's further

complaints as to the Regional Court's taking of evidence were also

regarded as unfounded for failure to show the relevance of the evidence

in question.

The Federal Court of Justice confirmed the Regional Court's

assessment of evidence. However, as the applicant's offence of

aggravated arson had only concerned one building, he could not also be

convicted of simple arson.

On 28 February 1994 the Federal Constitutional Court (Bundes-

verfassungsgericht) refused to admit the applicant's constitutional

complaint (Verfassungsbeschwerde). The decision was served on

10 March 1994.

COMPLAINTS

The applicant complains under Article 6 of the Convention about

his conviction by the Freiburg Regional Court of 29 January 1993 and

the alleged unfairness of the court proceedings concerned. He

considers in particular that the Regional Court unduly dismissed the

applicant's requests to take further evidence on his behalf. In this

respect, he submits that the Regional Court's findings as to his guilt

was only based on circumstantial evidence.

THE LAW

The applicant complains about his conviction by the Freiburg

Regional Court of 29 January 1993, as confirmed by the Federal Court

of Justice, and also of the court 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-B, 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, in particular that the

Regional Court did not duly take evidence on his behalf.

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 applicant's submissions about the conduct of the proceedings

relate in particular to the taking and assessment of evidence. It

seems appropriate to look at these complaints 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 (Art. 6-3) represent

aspects of the concept of a fair trial contained in paragraph 1

(Art. 6-1) (Eur. Court H.R., Unterpertinger judgment of

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

The Commission recalls that as a general rule, it is for the

national courts to assess the evidence before them as well as the

relevance of the evidence which the defendants seek to adduce. More

specifically, Article 6 para. 3 (d) (Art. 6-3-d) leaves it to them,

again as a general rule, to assess whether it is appropriate to call

witnesses, in the "autonomous" sense given to that word in the

Convention system; it does not require the attendance and examination

of every witness on the accused's behalf (cf., Eur. Court H.R.,

Bricmont judgment of 7 July 1989, Series A no. 158, p. 31, para. 89;

Vidal judgment of 22 April 1992, Series A no. 235-B, pp. 32-33,

para. 33).

The Commission notes that the Regional Court, as confirmed by the

Federal Court of Justice, dismissed the applicant's requests for the

taking of further evidence, in particular the hearing of witnesses. The

statements of these witnesses were either found to relate to irrelevant

facts, or the Regional Court proceeded on the assumption of the truth

of the fact concerned. Further complaints as regards the taking of

evidence by the Regional Court, raised by the applicant in his appeal

on points of law, were dismissed by the Federal Court of Justice in a

detailed and careful reasoning as to the applicant's arguments and the

requirements of a fair trial. The Federal Court of Justice observed

that the applicant had partly failed to substantiate his procedural

complaints and that other issues he had failed to raise at the trial.

As regards the assessment of evidence, the Commission finds that

the Freiburg Regional Court carefully examined all the evidence before

it. There is nothing to show that relevant material or arguments in

defence were not taken into due account or that any arbitrary

conclusions were drawn.

In these circumstances, the Commission finds no sufficient

grounds to form the view that there were any special circumstances in

the present case which could prompt the conclusion that the Freiburg

Regional Court's taking and assessment of evidence, as confirmed by the

Federal Court of Justice, was incompatible with Article 6 (Art. 6) of

the Convention.

Moreover, having regard to the conduct of the proceedings against

the applicant as a whole, the Commission finds no other indication of

unfairness. In particular his submissions do not show that, assisted

by counsel, he could not duly present his arguments in defence or could

not effectively exercise his defence rights.

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

(Art. 6) of the Convention.

It follows that the application is manifestly ill-founded within

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

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the First Chamber President of the First Chamber

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

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TARANTINO v. GERMANY

TARANTINO v. GERMANY

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