AS TO THE ADMISSIBILITY OF

                      Application No. 23505/94

                      by L.N.

                      against Germany

     The European Commission of Human Rights (First Chamber) sitting

in private on 6 September 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

                 G.B. REFFI

                 B. CONFORTI

                 N. BRATZA

                 I. BÉKÉS

                 E. KONSTANTINOV

                 G. RESS

                 A. PERENIC

           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 16 December 1993

by L.N. against Germany and registered on

16 February 1994 under file No. 23505/94;

     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 of the case, as they have been submitted by the

applicant, may be summarised as follows.

     The applicant, born in 1969, is a German national and resident

in Voerde.  In the proceedings before the Commission, he is represented

by Mr. B. Eichhorn, a lawyer practising in Cologne.

     In May 1990 preliminary investigations were started against the

applicant on the suspicion of rape.

     On 22 June 1990 the Duisburg Public Prosecutor's Office

(Staatsanwaltschaft) preferred the bill of indictment (Anklageschrift),

charging the applicant with rape.

     On 20 March 1991 the First Criminal Chamber (I. Große Straf-

kammer) of the Duisburg Regional Court (Landgericht), following further

investigations, admitted the bill of indictment (Zulassung der Anklage)

and ordered that the trial open (Eröffnung des Hauptverfahrens).

     On 8 October 1991 the First Criminal Chamber of the Regional

Court informed the Office of the Prosecutor General in Düsseldorf

(Generalstaatsanwaltschaft), the Office superior to the Duisburg Public

Prosecutor's Office that no date for a hearing had been fixed in the

applicant's case so far.  Pointing at its workload, the Chamber stated

that a hearing could be fixed at the earliest in December 1991,

however, a later date was more probable.

     The applicant's case was thereupon transferred to the Second

Criminal Chamber of the Duisburg Regional Court, a Chamber which had

been newly created.

     In the beginning of 1992, the Second Criminal Chamber fixed the

dates of 27 and 30 April 1992 for the trial hearings.  The hearings

were later postponed and eventually conducted on 20 and 21 July 1992.

The applicant was assisted by a defence counsel.  At the hearing of

21 July 1992 one witness for the defence did not appear in court,

though duly summoned.  Having heard the parties to the proceedings, the

Court imposed a fine upon the witness.

     On 21 July 1992, following the hearing, the Second Criminal

Chamber of the Duisburg Regional Court convicted the applicant of rape

(Vergewaltigung), indecent assault (sexuelle Nötigung) and bodily

assault (Körperverletzung), and sentenced him to one year's

imprisonment.  The execution of the sentence was suspended on

probation.

     The Regional Court, having heard the applicant, the victim of the

offences and several other witnesses, found that the applicant had

raped his former girlfriend.  The applicant had met her on the occasion

of a birthday party.  When she had expressed the wish to talk to him,

he had proposed to leave the party, and they had sat down in his car.

He had then decided to drive to a nearby parking place where he

forcibly had sexual intercourse with her.  The Regional Court found

that the statements of the victim were coherent and conclusive, and

that no contradictions had occurred.  The Regional Court considered in

particular that her indications as to the duration of the applicant's

absence from the party were confirmed by statements of other witnesses

who had been present at the party.  The Court further had regard to the

statements of two medical practitioners.

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

complaining in particular about procedural matters concerning the

taking and assessment of evidence and the establishment of the relevant

facts, and generally about the violation of substantive law.  He

complained inter alia that the witness who had not appeared in court,

had only been fined, but had not been summoned for another hearing.

Moreover, the applicant's request to order the preparation of an expert

opinion on the credibility of the victim had remained unsuccessful.

     On 20 January 1993 the Federal Court of Justice (Bundes-

gerichtshof) amended the Regional Court's judgment to the effect that

the applicant was convicted of rape and bodily assault, and dismissed

the remainder of his appeal.  The Federal Court of Justice considered

that the indecent assault had formed part of the rape and could not be

regarded as a separate criminal offence.  The decision was served on

9 February 1993.

     On 25 June 1993 the Federal Constitutional Court (Bundesver-

fassungsgericht) refused to admit the applicant's constitutional

complaint (Verfassungsbeschwerde) on the ground that it offered no

prospect of success.  The Federal Constitutional Court considered in

particular that the taking and assessment of evidence by the Regional

Court did not appear arbitrary.  In particular the conduct of the

Regional Court not to summon again the witness who had not appeared in

court and not to order expert evidence on the credibility of another

witness could not be objected to.  Furthermore, there was no indication

that the applicant's right to be heard in the proceedings against him

had been disregarded.  Finally, the Constitutional Court found that the

applicant's complaint that the Second Criminal Chamber of the Duisburg

Regional Court had not been competent to conduct the trial against him

and that he had thus been removed from the jurisdiction of the lawful

judge in his case, had been lodged out of time.  The Constitutional

Court noted that the applicant had first raised this issue in his

submissions of 19 May 1993, and thus more than one month after the

decision of the Federal Court of Justice had been served.

     In the context of the present application, the applicant also

refers to criminal proceedings which were conducted against him from

199O on charges of fraud in connection with the lease of an apartment

in his parents' house and for having failed to submit necessary

declarations of income.  At first instance the applicant was acquitted

of fraud and fined for failure to make the necessary declarations of

income.  The appeal proceedings were discontinued in view of the

applicant's conviction for rape.  The circumstances of these

proceedings had attracted the attention of the press, the applicant's

father having been a high ranking official in the North-Rhine

Westphalia Government at the relevant time.

COMPLAINTS

1.   The applicant complains under Article 6 paras. 1 and 3 (d) of the

Convention that the Regional Court failed to summon for another hearing

one of the witnesses who had not appeared in court following a first

summons.  He considers that the relevance of her statements in the

context of the proceedings was shown by the fact that the Regional

Court fined the witness concerned for not having appeared in court.

     The applicant also complains that the Regional Court did not

order, in accordance with his request, the preparation of an expert

opinion regarding the credibility of the alleged victim.  The applicant

is of the opinion that the Regional Court failed to consider, and duly

to decide upon, the above requests.  In this respect, he also refers

to the circumstances of the earlier criminal proceedings against him

on the suspicion of fraud.

2.   The applicant further complains under Article 6 para. 1 of the

Convention that the criminal charges against him had not been

determined by a tribunal established by law.  He submits that, in

accordance with the internal rules on the distribution of cases at the

Duisburg Regional Court that First Criminal Chamber had been competent

to conduct the trial proceedings.  The transfer of the proceedings to

the Second Criminal Chamber had been contrary to the internal rules and

not been based on any decision of the President of the Duisburg

Regional Court.

     As to the exhaustion of domestic remedies, the applicant submits

that the corresponding complaint was lodged with the Federal

Constitutional Court at a later stage, after his counsel for the

purposes of the Constitutional Court proceedings had obtained relevant

information from the defence counsel.  He considers that he cannot be

blamed for the conduct of his defence counsel.

THE LAW

1.   The applicant complains about his conviction by the Duisburg

Regional Court, and also of the proceedings concerned.  He invokes

Article 6 para. 1 and para. 3 (d) (Art. 6-1, 6-3-d) of the Convention

which, so far as relevant, provide 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:

     ...

           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 complaints relate in particular to the taking of

evidence by the Duisburg Regional Court as well as to the competence

of the Second Criminal Chamber, according to the internal rules on the

distribution of cases, to conduct the proceedings against the

applicant.

2.   In the present case, it seems appropriate to look at the

applicant's complaints about the taking of evidence from the points 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 H.R.,

Unterpertinger judgment of 24 November 1986, Series A no. 110, p. 14,

para. 29).

a.   The applicant considers that the Regional Court failed to summon

for another hearing one of the witnesses who had not appeared in court

following a first summons.  According to the applicant, the relevance

of her statements was shown by the fact that the Regional Court fined

the witness concerned for not having appeared in court.

     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 convicted the

applicant on 21 July 1992 after having heard, apart from himself, the

victim of the offence and a number of other persons, including two

medical practitioners as witnesses.  At the hearing of 21 July 1992,

one of the witnesses for the defence had not appeared in court, though

duly summoned.  The Regional Court imposed a fine on the witness, after

having heard the parties.  The applicant's defence counsel, when heard

as to the imposition of a fine, in particular did not request that the

witness be summoned again or that her appearance in court be enforced,

and the Regional Court did not decide so on its own motion.  The

applicant's appeal on points of law and his constitutional complaint

remained unsuccessful.

     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 failure to hear the witness concerned

was incompatible with Article 6 (Art. 6).  The Commission considers in

particular that the Regional Court's decision to summon the witness

concerned for the trial of 21 July 1992 is, in itself, not decisive as

to the relevance of the evidence which might have been obtained from

this witness.  The applicant failed to show the relevance of the

statements of this witness, taking into account the results of the

Regional Court's taking of evidence as a whole.  Moreover, the

applicant, assisted by defence counsel, did not request the Regional

Court to summon the witness again or to enforce her appearance, when

being heard as to the imposition of a fine for failure to appear in

court or at the close of the taking of evidence.

     Accordingly, the failure to hear the said witness did not unduly

restrict the rights of the defence, and did not render the proceedings,

considered as a whole, unfair.

b.   The applicant also complains that the Regional Court did not

grant his request to obtain an expert opinion regarding the credibility

of the victim.  The applicant is of the opinion that the Regional Court

failed to consider, and duly to decide upon, the above requests.  In

this respect, he also submits that the circumstances of the further

criminal proceedings against him on the suspicion of fraud would have

required the Regional Court to deal with his procedural request with

particular care.

     The Commission notes that the Regional Court, in the reasoning

of its judgment of 21 July 1992, stated that the statements of the

victim were coherent and conclusive and that no contradictions had

occurred.  The Regional Court considered in particular that her

indications as to the length of the applicant's absence from the party

were confirmed by statements of other witnesses who had been present

at the party.  The applicant's submissions do not disclose any

circumstance according to which the failure to take expert advice

regarding the credibility of the witness concerned could be reasonably

regarded as incompatible with Article 6 (Art. 6).

     The applicant's complaints about the Regional Court's taking of

evidence do not, therefore, disclose any appearance of a violation of

his rights under Article 6 paras. 1 and 3 (d) (Art. 6-1, 6-3-d) of the

Convention.

     It follows that this part of the application is manifestly

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

2.   The applicant further complains under Article 6 para. 1

(Art. 6-1) that the criminal charges against him had not been

determined by a tribunal established by law.  He submits that, in

accordance with the internal rules on the distribution of cases at the

Duisburg Regional Court that First Criminal Chamber had been competent

to conduct the trial proceedings.  The transfer of the proceedings to

the Second Criminal Chamber had been contrary to the internal rules and

not been based on any decision of the President of the Duisburg

Regional Court.

     The Commission observes that, in accordance with Article 26

(Art. 26), it may only deal with the matter after all domestic remedies

have been exhausted, according to the generally recognised rules of

international law, and within a period of six months from the date on

which the final decision was taken.

     The Commission recalls that the requirements as to the exhaustion

of domestic remedies have not been satisfied where failure to respect

procedural rules constitutes the reason for the refusal of a remedy

(No. 10636/83, Dec. 1.7.85, D.R. 43 p. 171; No. 10785/84, Dec. 18.7.86,

D.R. 48 p. 102).

     The Commission notes that on 25 June 1993 the Federal

Constitutional Court refused to admit the applicant's constitutional

complaint on the ground that it offered no prospect of success.  As

regards the applicant's complaint that the Second Criminal Chamber of

the Duisburg Regional Court had not been competent to conduct the trial

against him, the Constitutional Court found that it had been lodged out

of time.  The Constitutional Court noted that the applicant had first

raised this issue in his submissions of 19 May 1993, i.e. more than one

month after the decision of the Federal Court of Justice had been

served on him.

     In these circumstances, the Commission finds that the applicant

has not validly exhausted the domestic remedies with regard to his

complaint concerning the competence of the Second Criminal Chamber of

the Duisburg Regional Court.

     Moreover, the Commission is of the opinion that the applicant's

submissions concerning the belated lodging of this particular complaint

with the Federal Constitutional Court do not disclose any special

circumstance which would have absolved him from exhausting the remedies

at his disposal according to the procedural rules.  In particular, it

cannot accept the applicant's argument that he could not be blamed for

his counsel's conduct.

     It follows that this part of the application must be rejected

under Article 27 para. 3 (Art. 27-3) 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)