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AS TO THE ADMISSIBILITY OF

Application No. 18825/91

by F.P.

against the Federal Republic of Germany

The European Commission of Human Rights (First Chamber) sitting

in private on 14 October 1992, the following members being present:

MM. F. ERMACORA, Acting President of the First Chamber

J. A. FROWEIN

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

Sir Basil HALL

Mr. C.L. ROZAKIS

Mrs. J. LIDDY

MM. M. PELLONPÄÄ

B. MARXER

Mr. M. de SALVIA, Secretary to the First 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 30 August 1991 by

F.P. against the Federal Republic of Germany and registered on 19

September 1991 under file No. 18825/91;

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 1966 and presently

detained in prison in Saarbrücken. He is represented by Mr. René

Scholtes, lawyer in Saarbrücken.

It follows from his statements and documents submitted that on

5 October 1989 the applicant was convicted by the Saarbrücken Regional

Court (Landgericht) of rape and offering resistance to public

officials. He was sentenced to four years and eight months

imprisonment.

The applicant's appeal on points of law (Revision) was rejected

by the Federal Court (Bundesgerichtshof) on 26 April 1990.

Insofar as the applicant had complained of the composition of the

trial court alleging a violation of procedural rights in respect of the

election of the lay judges the Federal Court considered his appeal to

be unfounded. The Court stated that according to Section 36 (3) of the

Judicature Act (Gerichtsverfassungsgesetz - GVG) the list with proposed

lay judges has to be accessible for examination by the public during

one week. The beginning of the examination period has to be publicized.

Judicial control was limited as to whether these rules had been

respected. However, the applicant did not allege in his appeal that any

of these rules had been disregarded. He only alleged that the Local

Community Statutes (Gemeindesatzung), which inter alia contained

provisions as to how publications of the community have to be effected,

have themselves not been publicized in the correct manner. The Federal

Court considered this argument to be irrelevant as it related only to

possible errors or faults in mere preparatory works for the

presentation of lists of lay judges. Such errors or faults could in

principle not affect the legality of the composition of a court

chamber.

For the same reasons the applicant's further argument, that the

second lay judge wrongly participated in the trial court's

deliberations on his objection about the composition of the trial

court, was considered to be unfounded.

The applicant then lodged a constitutional complaint

(Verfassungsbeschwerde) which was rejected by the Federal

Constitutional Court (Bundesverfassungsgericht) on 19 February 1991 as

being clearly ill-founded.

The Court pointed out that the principle, requiring that a court

of law had to be established in accordance with the law, served to

guarantee the independence of the judiciary. In particular it served

to avoid the danger that in a given case the decision-making could be

manipulated by the choice of a judge ad hoc. A possible error committed

by the administration in the course of the elaboration and

communication of Local Community Statutes could in no way influence the

independence of the judiciary. Furthermore the applicant had not shown

that in his case the choice of the lay judges was in any way affected

by arbitrariness.

Furthermore, the fact that contrary to Section 222 (b), para. 2,

first sentence, of the Code on Criminal Procedure (Strafprozeßordnung -

StPO), the second lay judge had participated in the trial court's

decision rejecting the applicant's objections against the composition

of this court was irrelevant, as a simple error in procedure

constituted a violation of the principle of a fair trial only when it

disclosed arbitrariness. There was however no indication that the lay

judge's competence to participate in the decision in question had been

arbitrarily assumed.

COMPLAINTS

The applicant considers that the local communities in electing

lay judges assume functions of the judiciary. Therefore he is of the

opinion that contrary to the Federal Constitutional Court's opinion the

error committed by a community in connection with the preparation of

the election of a lay judge who participated in the trial against him

was relevant and amounted to a violation of Article 6 of the

Convention. He also considers Article 6 of the Convention to be

violated by the fact that contrary to the German Code on Criminal

Procedure a lay judge participated in the trial court's deliberation

and decision rejecting his objections against the composition of the

trial court.

THE LAW

The applicant submits that his case was not heard by a tribunal

duly "established by law" because certain Local Community Statutes

containing rules on how publications of the community have to be

effected, had themselves allegedly not been publicised in a correct

manner. He invokes Article 6 para. 1 (Art. 6-1) of the Convention

which provides that "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".

The Commission notes that according to the Federal Court the

relevant provision of the domestic law in the present case is Section

36 (3) of the Judicature Act which provides that the list with proposed

lay judges has to be accessible for examination by the public during

one week and the beginning of the examination period has to be

publicised. According to the Federal Court the applicant had not

alleged that any of these rules were violated in his case.

He only complained of alleged errors made in connection with the

publication of the Local Community Statutes which contain, inter alia,

rules on how publications of the community have to be effected. The

question as to the manner in which these Statutes had to be publicised

is however an administrative matter which does not, as such, concern

the "establishment" of the court. Any administrative error in this

respect would have to be taken into account only insofar as the error

might have caused such prejudice to the applicant as to amount to a

denial of justice. In the present case it is not shown that the

alleged technical errors in the community administration did in any way

affect the composition of the court and thereby the outcome of the

trial. Consequently, the Commission finds that whatever mistake might

have been made did not result in a violation of Article 6 (Art. 6).

The application is therefore manifestly ill-founded and has to be

rejected in accordance with Article 27 para. 2 (Art. 27-2) of the

Convention.

For these reasons, the Commission by a majority

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the First Chamber Acting President of the First Chamber

(M. de SALVIA) (F. ERMACORA)

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