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AS TO THE ADMISSIBILITY OF

Application No. 20493/92

by Heinz STEINHART

against Germany

The European Commission of Human Rights (First Chamber) sitting

in private on 1 December 1993, the following members being present:

MM. A. WEITZEL, President

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

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 11 May 1992 by

Heinz STEINHART against Germany and registered on 13 August 1992 under

file No. 20493/92;

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 1943, is a German national. When lodging

his application, he was detained at a prison in Freiburg. Before the

Commission, he is represented by Mr. Biebelheimer, a lawyer practising

in Frankfurt/Main.

On 11 April 1990 the Mannheim Regional Court (Landgericht)

convicted the applicant of breach of trust on three counts, incitement

to breach of trust and of fraud and sentenced him to six years and nine

months' imprisonment. Two co-accused were convicted of breach of trust

and of having acted as accessory to breach of trust, respectively.

In the course of the trial, the applicant had first been assisted

by three chosen defence counsel. When he had withdrawn their power of

attorney, the Regional Court had appointed two of them as official

defence counsel.

On 21 November 1991 the Federal Court of Justice (Bundes-

gerichtshof) partly declared the applicant's appeal on points of law

(Revision) inadmissible, and dismissed his procedural complaint

regarding the appointment of his official defence counsel.

The Federal Court of Justice accepted the applicant's complaint

regarding the official defence counsel out of time, as, in this

respect, the applicant, through no fault of his own, had been hindered

to comply with the relevant time-limit.

The Federal Court of Justice noted that on the fourteenth day of

the trial, the applicant had simultaneously withdrawn the powers of

attorney of all three defence counsel. As, in the relevant

circumstances, the Code of Criminal Procedure required legal

assistance, the Regional Court had been obliged to appoint an official

defence counsel immediately. The applicant had not made any proposal

regarding the appointment of an official defence counsel. The Federal

Court of Justice considered that, as a matter of principle, the

previously chosen defence counsel could be appointed as official

defence counsel, even if counsel had resigned due to a loss of

confidence, or if the client had withdrawn the power of attorney. At

the time of the appointment of the official defence counsel, the

Presiding Judge at the Regional Court had no concrete and relevant

indications that the confidence between the applicant and his defence

counsel was so seriously disturbed that defence counsel was not in a

position duly to act on behalf of the applicant. In this respect, the

Federal Court of Justice noted that, in a letter of 10 March 1990, the

applicant had merely informed the Regional Court that he did no longer

trust his defence counsel on the ground that they did not sufficiently

visit him in prison and had not given him copies of some relevant

documents. No further reasons had been given in his appeal. Rather,

Mrs. C., one of the two official defence counsel, had appeared at the

next day of the trial and had refrained from presenting a prepared

written request objecting to the appointment. In these circumstances

the appointment of the official defence counsel did not appear

unlawful.

Moreover, the Federal Court of Justice considered that, when

Mr. T., the second official defence counsel, did not appear in court

on the next day of the trial against the applicant and submitted that

he did not intend to act as defence counsel, the Regional Court had not

been obliged to appoint another official defence counsel. The applicant

had been assisted by defence counsel at any stage of the proceedings.

Upon continuation of the trial, his defence counsel Mrs. C. had not

maintained that she was not in a position to secure his defence.

Finally the Federal Court of Justice found that the applicant had

failed duly to present his further complaints about the trial, in

particular the taking of evidence, and that the Regional Court had not

otherwise erroneously applied the relevant provisions of criminal law.

On 7 February 1992 the Federal Constitutional Court (Bundes-

verfassungsgericht) refused to admit the applicant's constitutional

complaint (Verfassungsbeschwerde) on the ground that it offered no

prospects of success.

COMPLAINTS

The applicant complains about his conviction and subsequent

detention, and about the alleged unfairness of the criminal proceedings

against him.

The applicant submits in particular that the Regional Court

wrongly evaluated the evidence. Furthermore, he objects to the

appointment of his former defence counsel as official defence counsel

despite the alleged loss of confidence. He also considers that the

Regional Court should have appointed another official defence counsel

to replace Mr. T., who had refused to continue as official defence

counsel, because Mrs. C. was young and inexperienced. Finally, he

alleges discrimination in that his co-accused had a free choice of

their defence counsel.

He invokes Article 5 para. 1 (a), Article 6 paras. 1 and 3 (d)

and Article 14 of the Convention.

THE LAW

The applicant complains about his conviction by the Mannheim

Regional Court on 11 April 1990 and the court proceedings concerned as

well as his subsequent detention.

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 to 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 (No. 458/59, Dec. 29.3.60, Yearbook 3 pp. 222, 236; No.

7987/77, Dec. 13.12.79, D.R. 18 pp. 31, 45).

In the present case the applicant raises various complaints, in

particular under Article 6 paras. 1 and 3 (d) (Art. 6-1, 6-3-d) about

the alleged unfairness of the court proceedings against him.

As regards the applicant's complaint about the appointment of his

former chosen defence counsel as official defence counsel, the

Commission recalls that Article 6 para. 3 (c) (Art. 6-3-c) does not

guarantee the right to choose, or to be consulted about the choice of,

an officially appointed defence counsel (No. 6946/75, Dec. 6.7.76, D.R.

6 p. 114; No. 12152/86, Dec. 9.5.89, D.R. 61 p. 171). However, the

guarantees under paragraph 3 of Article 6 (Art. 6-3) are specific

aspects of the right to a fair trial set forth in paragraph 1, and the

competent authorities are responsible to ensure that the official

defence counsel is capable of effectively defending the accused (cf.

Eur. Court H.R., Artico judgment of 13 May 1980, Series A no. 37, p.

16, para. 33; No. 12152/86, Dec. 9.5.89, loc. cit.).

In the present case, the applicant withdrew the powers of

attorney of his three chosen defence counsel at the same time. The

Federal Court of Justice, in its decision of 21 November 1991, examined

in detail the applicant's complaint regarding the appointment of his

official defence counsel. It noted in particular that the applicant

himself had not made any proposal. Furthermore, there were no concrete

and relevant indications that the confidence between the applicant and

his previously chosen defence counsel was so seriously disturbed that

defence counsel was not in a position duly to act on his behalf. The

Court of Justice also considered that, in the circumstances, the

applicant had been effectively assisted by defence counsel.

The Commission finds that the applicant failed to show that the

appointed official defence counsel was not qualified to ensure an

effective assistance in his defence, and that the appointment of a

further defence counsel would have been necessary. Moreover, there is

no other indication that the trial, including the taking and assessment

of evidence, was not fair.

The Commission also considers that the applicant's detention

after his conviction was "lawful" and effected "in accordance with a

procedure prescribed by law" within the meaning of Article 5 para. 1

(a) (Art. 5-1-a) of the Convention.

In so far as the applicant also relies on Article 14 (Art. 14)

of the Convention, an examination of his submissions does not reveal

any appearance of discrimination contrary to this Article.

It follows that the application is 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) (A. WEITZEL)

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H.S. v. GERMANY

H.S. v. GERMANY

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