Lexploria

PARTIAL

AS TO THE ADMISSIBILITY OF

Application No. 13882/88

by Siegfried and Ludwig GRITSCHNEDER

against the Federal Republic of Germany

The European Commission of Human Rights sitting in private on

2 December 1991, the following members being present:

MM.C.A. NØRGAARD, President

J.A. FROWEIN

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H. DANELIUS

Mrs.G. H. THUNE

SirBasil HALL

Mrs.J. LIDDY

MM.L. LOUCAIDES

A.V. ALMEIDA RIBEIRO

M.P. PELLONPÄÄ

B. MARXER

Mr. H.C. KRÃœGER, Secretary to the Commission

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 13 September 1991

by Siegfried and Ludwig GRITSCHNEDER against the Federal Republic of

Germany and registered on 20 May 1988 under file No. 13882/88;

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

applicants, may be summarised as follows.

The first applicant, born in 1940, is a German national and

resident in Wuppertal. He is a jurist. The second applicant, the

first applicant's father born in 1915, is also a German national and

resident in Wuppertal. Before the Commission the first applicant

represents the second applicant.

In October 1983 criminal proceedings were instituted against the

applicants on the charge of defamation.

On 19 April 1984 the Augsburg Public Prosecutor's Office

(Staatsanwaltschaft) preferred the indictment (Anklageschrift) against

the applicants. The Office charged them with defamation, committed in

the course of civil proceedings relating to guardianship and hereditary

matters in respect of the second applicant's deceased brother. It

found that they had, in several letters to the former custodian, the

President of the Augsburg Regional Court (Landgericht) and the

President of the Munich Court of Appeal (Oberlandesgericht), reproached

the custodian concerned as well as the Neustadt District Court

(Amtsgericht) with misuse of powers.

On 27 February 1985, in the course of proceedings concerning the

applicants' hierarchical complaints (Dienstaufsichtsbeschwerden)

against judges and other members of staff at the Neustadt District

Court, the President of the Augsburg District Court unsuccessfully

attempted to settle all disputes between the applicants, the custodian,

the judges and other staff at the Neustadt District Court involved in

the above-mentioned civil proceedings. The proposed friendly

settlement which also provided for termination of the criminal

proceedings by withdrawal of the charges (Rücknahme der Strafanträge)

failed. The hierarchical complaints were dismissed in November and

December 1985.

On 16 January 1986 the Neustadt District Court committed the

applicants for trial (Eröffnung des Hauptverfahrens). In the following

proceedings the applicants were assisted by counsel.

On 14 April 1986 the Neustadt District Court, upon hearings on

24 and 26 March, 7 and 14 April 1986, convicted the applicants of

defamation on two counts and imposed fines of DM 2000 each, namely

50 daily rates à DM 40.

The District Court, having heard several witnesses, found that

the applicants, in various letters, had wrongly reproached the former

custodian of the second applicant's deceased brother and staff of the

Neuburg District Court, in particular the judicial assistant (Rechts-

pfleger) in charge of custody matters, with misuse of powers and

irregularities, inter alia, in respect of the sale of a collection of

coins. The applicants' defamatory remarks were not justified for

protection of their rightful interests (Wahrnehmung berechtigter

Interessen). In view of the circumstances of the case they were

inappropriate and disproportionate means to clarify the allegations.

The applicants' request to hear the custodian was dismissed on

the ground of his lasting bad health. Their request to consult internal

files of the Director of the Neustadt District Court was dismissed on

account of the Director's refusal to hand over these documents destined

for internal use only.

The judgment was served on 16 June 1986.

On 30 January 1987 the Augsburg Regional Court, upon the

applicants' appeal (Berufung), quashed the District Court's judgment

of 14 April 1986 and acquitted the applicants. The Regional Court,

proceeding on the basis of the same facts as the District Court,

considered that the applicants' defamatory remarks were justified on

the ground that they had acted in order to protect their rightful

interests. Despite official information to the contrary, the

applicants had been convinced of the alleged irregularities at Neustadt

to the disadvantage of the second applicant's deceased brother. As

relatives and heirs, they could not be blamed for having addressed

themselves to all possible authorities in order to have the alleged

criminal offences prosecuted.

The judgment was served on 19 June 1987.

On 22 October 1987 the Bavarian Court of Appeal (Oberlandes-

gericht), upon the appeal on points of law (Revision) of the Augsburg

Public Prosecutor's Office, quashed the judgment of the Augsburg

Regional Court. However, the establishment of the material facts

(tatsächliche Feststellungen zum äußeren Tatgeschehen) was upheld. The

case was sent back to another Chamber at the Augsburg Regional Court.

The Court of Appeal considered that a person could not claim to have

protected his rightful interests, if he had already been officially

informed about the incorrectness of his defamatory remarks. The

Regional Court had not duly taken this consideration into account when

it had referred to correct information given to the applicants.

On 15 January 1988 the Bavarian Court of Appeal declared the

first applicant's appeal (Beschwerde) against its judgment of 22

October 1987 inadmissible.

On 7 March 1988 the Federal Constitutional Court (Bundesver-

fassungsgericht) refused to admit the applicants' constitutional

complaint (Verfassungsbeschwerde) concerning the judgment of the

Bavarian Court of Appeal of 22 October 1987 and the delay of the

criminal proceedings against them. The Constitutional Court found that

the second applicant had failed to pay the advance court fees. The

first applicant's complaints were inadmissible on the grounds that he

had not suffered any immediate prejudice due to the Court of Appeal's

judgment, and that, having regard to the subsidiary character of the

constitutional complaint, he had to raise the complaint about the

length of the criminal proceedings first in the proceedings as such,

in particular at the trial and possibly in his appeal on points of law.

The competent courts had first to establish whether or not proceedings

had lasted unreasonably long, and what consequences had to be drawn.

On 29 July 1988, in the course of the trial before another

Chamber at the Augsburg Regional Court, the proceedings against the

second applicant were discontinued with regard to his minor guilt. The

cost of the proceedings and the second applicant's necessary expenses

were to be borne by the Treasury.

At the same day, the Regional Court dismissed the first

applicant's appeal against the judgment of 14 April 1986. The fine was

reduced to DM 1400 (35 daily rates à DM 40).

The Regional Court found that the first applicant had made

defamatory remarks about the above-mentioned custodian and the judicial

assistant at the Neustadt District Court, the truth of which he had

failed to prove. As regards one of his letters containing such

defamatory passages, he could claim to have acted in order to protect

his rightful interests, whereas a further letter only contained

insulting remarks. However, subsequently the first applicant had been

informed by the Director of the Neustadt District Court about the

incorrectness of his allegations, he had been informed about the

comments of the custodian and the judicial assistant upon the charges

against them and he had received the decision of the Public

Prosecutor's Office to discontinue prosecution of the persons

concerned. After this official information by the competent

authorities, he could no longer claim to have acted in order to protect

his rightful interests, although he might still have been convinced of

the truth of his allegations.

In fixing the sentence the Regional Court noted that the

proceedings had been conducted very slowly, partly due to the first

applicant's numerous submissions. Balancing all aggravating and

mitigating circumstances, it found a fine calculated on the basis of

35 daily rates to be appropriate and sufficient.

On 15 March 1989 the Bavarian Court of Appeal dismissed the first

applicant's appeal on points of law against the Regional Court's

judgment of 29 July 1988. The second applicant's appeal on points of

law was declared inadmissible on the ground that there was no appeal

against the decision to discontinue the criminal proceedings against

him.

On 25 September 1989 the Federal Constitutional Court refused to

admit the second applicant's constitutional complaint on the ground

that it had been lodged out of time.

On 27 February 1990 the Federal Constitutional Court refused to

admit the first applicant's constitutional complaint on the ground that

it offered no prospect of success. The Constitutional Court considered

in particular that the judgments complained of could not be objected

to under constitutional law. The reasoning of the trial courts did not

disclose any arbitrariness. The Regional Court had taken the length

of the proceedings duly into account when considering all relevant

circumstances in fixing the sentence.

Further proceedings in 1989 concerned the compensation of the

second applicant's necessary expenses.

COMPLAINTS

The applicants complain about the length of the criminal

proceedings against them. They also complain that the proceedings were

unfair. They submit in particular that the Neustadt District Court at

the trial in 1986, and the Augsburg Regional Court at the trial in 1988

had not duly taken evidence. Furthermore the second applicant submits

that despite his hardness of hearing, no official defence counsel had

been appointed. They invoke Articles 5, 6 and 10 of the Convention.

THE LAW

1.As regards the first applicant's complaints about the criminal

proceedings against him, in particular their length, the Commission

finds that further information is required and accordingly reserves the

examination of the admissibility of this part of the application.

2.The Commission is not required to decide whether or not the facts

submitted by the second applicant disclose any appearance of a

violation of the Convention as the applicant has not, in accordance

with Article 26 (Art. 26) of the Convention, exhausted the remedies

available under German law. In this respect the Commission recalls

that there is no exhaustion of domestic remedies where a domestic

appeal is not admitted because of a procedural mistake (cf. No.

6878/75, Dec. 6.10.76, D.R. 6 p. 79). In the present case, the Federal

Constitutional Court declared the second applicant's constitutional

complaint inadmissible as having been lodged out of time. It follows

that his complaints must be rejected under Article 27 para. 3

(Art. 27-3) of the Convention.

For these reasons, the Commission, unanimously,

1.DECIDES TO ADJOURN THE EXAMINATION OF THE FIRST APPLICANT'S

COMPLAINTS;

2.DECLARES INADMISSIBLE THE SECOND APPLICANT'S COMPLAINTS.

(Secretary to the Commission) (President of the Commission)

(H. C. KRÜGER) (C. A. NØRGAARD)

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GRITSCHNEDER v. GERMANY

GRITSCHNEDER v. GERMANY

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