Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 18889/91

by E.E.

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 6 August 1991 by

E.E. against the Federal Republic of Germany and registered on 3

October 1991 under file No. 18889/91;

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 facts of the case, as they have been submitted by the

applicant, may be summarised as follows.

The applicant is a Turkish national and resident at Bergkamen.

He was allegedly born in May or June 1969 in Turkey. Before the

Commission he is represented by Mr. P. Budde, a lawyer practising in

Dortmund.

A. Particular circumstances of the case

On 6 December 1990 the Fourth Criminal Chamber (IV. große Straf-

kammer) at the Dortmund Regional Court (Landgericht) convicted the

applicant of grave robbery and sentenced him to five years'

imprisonment. The Criminal Chamber found the applicant guilty of

having robbed a gambling establishment on 26 January 1990. As to his

personal particulars it noted inter alia that he had been born in

Turkey on 1 January 1969. In these proceedings the applicant was

defended by counsel R.

On 13 February 1991 the applicant, represented by Mr. Budde,

filed a statement of the grounds of his appeal on points of law

(Revision) with the Federal Court of Justice (Bundesgerichtshof). He

stated in particular that the Criminal Chamber had incorrectly assumed

jurisdiction, he should have been tried by a juvenile court under the

Juvenile Court Act (Jugendgerichtsgesetz). He alleged that his date

of birth as indicated in his passport was wrong, he had in fact been

born in May or June 1969. Turkish authorities would not attach great

importance to the correct date of birth. At the trial he had not known

about the importance of this circumstance. In later submissions he

also filed confirmations by his relatives.

On 17 May 1991 the Federal Court of Justice dismissed the

applicant's appeal on points of law. It considered that the

applicant's submissions did not show any error in law to his

disadvantage.

On 21 June 1991 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 Constitutional Court considered in particular that the right

not to be removed from the jurisdiction of one's lawful judge under

S. 101 para. 1, second sentence, of the Basic Law (Grundgesetz) did not

imply a safeguard against errors. The Courts had not arbitrarily

assumed the jurisdiction of the adult criminal court. According to the

applicant's submissions the Regional Court, on the basis of the

allegedly incorrect entry in his passport which he had not rectified,

had assumed a wrong date of birth, treated him as an adult and thus

erroneously assumed its jurisdiction instead of that of a juvenile

court. The decision of the Federal Court of Justice not to accept the

applicant's allegation raised for the first time in the statement of

his grounds of appeal was not arbitrary. In case of variance between

an entry in the passport and confirmations by close relatives, the

conclusion that the lack of jurisdiction had not been proven could not

be objected to.

B. Relevant domestic law

In accordance with S. 74 para. 1 of the Court Organisation Act

(Gerichtsverfassungsgesetz), Criminal Chambers at Regional Courts

decide at first instance in all criminal cases which do not come within

the jurisdiction of the District Court or the Court of Appeal, i.e. in

cases of a serious nature, in particular where a sentence of more than

three years is likely to be imposed.

The German Juvenile Court Act (Jugendgerichtsgesetz) contains

particular provisions, if a juvenile or adolescent person commits

criminal offences.

S. 1 para. 2 defines a juvenile person as somebody who was

fourteen but not yet eighteen years old at the time of the offence in

question, and an adolescent person is somebody who was eighteen but not

yet twenty-one at the time of the offence in question.

SS. 3 to 32 concern offences committed by juveniles and their

consequences. SS. 33 to 104 regulate the jurisdiction of the juvenile

courts and the proceedings in juvenile cases.

SS. 105 to 112 relate to adolescent persons. According to

S. 105 para. 1 particular provisions governing juvenile cases are

applicable, if an adolescent person has committed a criminal offence

and (1), taking his personality as a whole in connection with

surrounding social factors into account, he could be compared to a

juvenile person regarding his moral and mental development at the time

of the offence in question, or (2) the offence, having regard to its

nature, circumstances or motives, constituted a juvenile offence. S.

108 refers to the provisions of SS. 39 seq. as to the jurisdiction of

the juvenile courts even if normal criminal law should be applicable.

COMPLAINTS

The applicant complains under Article 6 para. 1 of the Convention

that he did not receive a trial by a tribunal established by law. He

submits that the Criminal Chamber at the Dortmund Regional Court had

no jurisdiction under German law. He should have been tried by a

juvenile court on the ground that he had in fact been adolescent at the

time of the offence concerned.

THE LAW

The applicant complains about his conviction by the Dortmund

Regional Court on 13 February 1991, confirmed by the Federal Court of

Justice on 17 May 1991, 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 (see e.g. No. 458/59, Dec. 29.3.60, Yearbook 3 pp. 222, 236;

No. 5258/71, Dec. 8.2.73, Collection 43 pp. 71, 77; No. 7987/77, Dec.

13.12.79, D.R. 18 pp. 31, 45).

The applicant also complains under Article 6 para. 1

(Art. 6-1) that he did not receive a trial by "a tribunal established

by law" on the ground that the Regional Court incorrectly assumed its

jurisdiction. According to his true date of birth, he should have been

tried by a juvenile court.

The Commission observes that the term "a tribunal established by

law" envisages the whole organisational set-up of the courts including

questions of jurisdiction and the establishment of individual courts.

It is the object and purpose of this clause in Article 6 para. 1

(Art. 6-1) that the court organisation in a democratic society must not

depend on the discretion of the Executive, but should be regulated by

law emanating from Parliament (cf. Zand v. Austria, Comm.Report

12.10.78, D.R. 15 p. 70; No. 8743/79, Dec. 12.3.81, D.R. 26 p. 145).

The Commission notes that the German courts, on the basis of the

entry in the applicant's passport as to his birth date, supposed that

the applicant was adult at the time of the offence in question and that

the Juvenile Court Act was thus not applicable. The applicant only

raised the issue of his birth date on the occasion of his appeal on

points of law. The Federal Court of Justice did not follow his

submissions, as confirmed by his relatives. The Federal Constitutional

Court, assuming the correctness of the applicant's submissions,

considered that the right not to be removed from the jurisdiction of

one's lawful judge did not imply a safeguard against errors, and that

the criminal courts had not arbitrarily assumed the applicability of

adult criminal law.

The Commission finds that it was for the German courts to examine

the question of their jurisdiction under domestic law. The

jurisdiction of the Criminal Chamber at the Dortmund Regional Court was

regulated in the Court Organisation Act. In the proceedings at first

instance, there was no reason for questioning the jurisdiction of the

Criminal Chamber and for considering the applicability of the Juvenile

Court Act. The decision of the Federal Court of Justice not to follow

the applicant's new allegations as to his true age, which were at

variance with the entry in his passport, does not appear arbitrary.

It follows that the application is manifestly ill-founded within

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

Accordingly, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the First Chamber Acting President of the First Chamber

(M. de SALVIA) (F. ERMACORA)

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