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AS TO THE ADMISSIBILITY OF

Application No. 22644/93

by Günther DROZD

against Germany

The European Commission of Human Rights (First Chamber) sitting

in private on 5 July 1994, the following members being present:

MM. A. WEITZEL, President

C.L. ROZAKIS

F. ERMACORA

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

Mrs. J. LIDDY

MM. M.P. PELLONPÄÄ

B. MARXER

G.B. REFFI

B. CONFORTI

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

G. RESS

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 26 July 1993 by

Günther DROZD against Germany and registered on 17 September 1993 under

file No. 22644/93;

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 is a German citizen born in 1943 and presently

detained in Tauberbischoffsheim. He is represented by Mr. W. Ferner,

a lawyer practising in Heidelberg.

It follows from his statements and the documents submitted that

on 30 October 1992 the applicant had been remanded in prison and on

16 December 1992 he was convicted by the Tauberbischoffsheim District

Court (Amtsgericht) on five counts of fraud (Betrug) and one count of

embezzlement (Unterschlagung). He was sentenced to one year and eight

months imprisonment.

According to the findings of the trial court the applicant, who

has a long criminal record, has been in constant financial difficulty

for years and is over-indebted. Nevertheless, he bought and had

delivered some expensive goods. The purchase contracts provided for

payment after delivery but the applicant never paid or only made a

down-payment while instalment payments were not made. These findings

are based on the evidence given by various witnesses and documentary

evidence. Furthermore, it is stated in the judgment that the applicant

had admitted his guilt on all counts.

It appears from the trial record of 16 December 1992 that the

applicant's defence counsel, Mr. Ferner, was not present and had on

15 December 1992 challenged the presiding judge, apparently on the

ground that he had rejected counsel's request to adjourn the trial

hearing. This request had been faxed to the court on 4 December 1992

and was rejected on 8 December 1992 on the ground that several

adjournments had already been granted while another adjournment was not

possible for reasons of the court's schedule. The adjournment was also

refused in view of the fact that on 2 October 1992 the court had

refused to appoint Mr. Ferner as the defense counsel considering that

the matter was not of such importance as to make the assistance by a

defence counsel absolutely necessary in accordance with Section 140

para. 2 of the Code on Criminal Procedure (StPO).

As regards the motion of challenge the presiding judge declared,

according to the trial record, that the case had to be dealt with

speedily given that the applicant was in detention on remand.

Therefore he had to reject the request for a further adjournment as the

matter had already been adjourned several times and that in view of the

court's schedule, in the case of an adjournment, it would not have been

possible to bring the applicant to trial before the end of January

1993. In view of this statement and following the request of the

Public Prosecution, the motion of challenge was rejected.

The applicant's counsel then lodged an appeal on points of law

(Revision) on behalf of the applicant submitting that contrary to the

trial court's opinion, Section 140 (2) in the Code on Criminal

Procedure applied in the applicant's case, i.e. presence of a defence

counsel had been necessary.

On 10 May 1993 the appeal was dismissed by the Karlsruhe Court

of Appeal (Oberlandesgericht). The court denied a violation of Section

140 (2) of the Code on Criminal Procedure. It is pointed out that

according to that provision, not only the importance of the criminal

charge and the possible sanction is of relevance but also the

defendant's capacity to defend himself. As the case did not raise any

serious factual or legal issues and as the applicant had given himself

up at his own initiative and had confessed to all charges and as

furthermore he had the experience of 17 former trials, he was in view

of his intellectual capacity and personality in a position to assume

his own defence.

A constitutional appeal was rejected by a group of three judges

of the Federal Constitutional Court (Bundesverfassungsgericht) on

23 June 1993 as offering no prospects of success. The group first

pointed out that the applicant had omitted to lodge an appeal

(Berufung). The facts and merits of the case would then have been

re-examined. In the appeal hearing an official defense counsel would

have had to be appointed in accordance with Sec. 140 (1) No. 5 of the

Code on Criminal Procedure. In these circumstances it was doubtful

whether ordinary remedies could be considered to have been exhausted.

This question needed however no reply as in any event there was no

violation of constitutional law. The group considered that the matter

was not of such importance as to have required appointment of an

official defence counsel. Although the sentence was rather serious the

Court of Appeal had not interpreted Section 140 (2) of the Code on

Criminal Procedure in a manner violating constitutional rights by

assuming that the applicant had been in a position to defend himself

in an adequate manner. The reasons stated in this connection by the

Court of Appeal did not disclose any arbitrariness.

THE RELEVANT PROVISIONS OF GERMAN LAW

Sec. 140 of the Code on Criminal Procedure (StPO) provides, inter alia,

[Translation]

(1) Assistance by a defence counsel is necessary, if ....

N° 5. the accused has been detained at least three months on the

basis of a judicial order and has not been released at the

latest two weeks before the hearing.

(2) in other cases where the presiding judge on request or ex

officio appoints a defense counsel if this appears to be

indicated (geboten) in view of the importance of the offence or

the complexity of the matter both as regards the facts and the

law or if it is apparent that the accused cannot defend

himself personally.

Sec. 316 (1) StPO provides that an appeal (Berufung) which was

lodged on time stays the time limit for the judgment appealed from

becoming final. Under Sec. 449 sentences can be executed only once the

judgment has become final.

According to Sec. 318 StPO an appeal (Berufung), may be limited

to certain points. If this is not the case or if nothing is specified

then the whole of the contested judgment is considered to be the

subject of the appeal.

COMPLAINTS

The applicant complains that in his case defence by an official

defence counsel was necessary and therefore Article 6 para. 3 (c) was

violated.

THE LAW

The applicant complains that he was refused legal aid for the

trial proceedings in his criminal case. He invokes Article 6 para. 3

(c) (Art. 6-3-c) of the Convention. However, under Article 26

(Art. 26) of the Convention the Commission may only examine the merits

of an application under the condition that domestic remedies have been

exhausted.

In the present case it clearly follows from the decision

rejecting the applicant's constitutional complaint that the applicant

would have been appointed an official defense counsel had he lodged an

appeal (Berufung) instead of an appeal on points of law (Revision) as,

in the case of an appeal, a hearing would have taken place and both

factual and legal issues and on sentence (see Sec. 318 of the Code on

Criminal Procedure) would have been reconsidered. The Commission also

notes that in accordance with Secs. 316, 449 of the Code on Criminal

Procedure a sentence is not executed before the judgment becomes final.

As the applicant failed to avail himself of this possibility he cannot

be considered to have exhausted all remedies at his disposal under

German law (cf. No. 11210/84, Dec. 16.10.86). There were no special

circumstances absolving the applicant from exhausting the remedy at his

disposal. It follows that the requirements of Article 26 (Art. 26)

have not been complied with and the application therefore has to be

rejected in accordance with Article 27 para. 3 in connection with

Article 26 (Art. 27-3+26) of the Convention.

For these reasons, the Commission by a majority,

DECLARES THE APPLICATION INADMISSIBLE

Secretary to the First Chamber President of the First Chamber

(M.F. BUQUICCHIO) (A. WEITZEL)

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DROZD v. GERMANY

DROZD v. GERMANY

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