Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 14453/88

by I.H.

against the Federal Republic of Germany

The European Commission of Human Rights sitting in private

on 12 February 1990, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

G. BATLINER

H. VANDENBERGHE

Mrs. G.H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

Mr. L. LOUCAIDES

Mr. H.C. KRÜGER, 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 1988

by I.H. against the Federal Republic of Germany and registered on 29

November 1988 under file No. 14453/88;

Having regard to the report provided for in Rule 40 of the

Rules of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a German citizen, born in 1913 and living in

Köln-Marienburg. He is represented by Mr. H. Millinger and partners,

lawyers in Essen.

The applicant complains that, in connection with the crash of

a bank which he ran under his name, he was convicted and sentenced

although he was allegedly at least partly unfit to stand trial.

On 16 December 1984 the applicant was convicted by the Cologne

Regional Court (Landgericht) of bankruptcy and breach of trust

(Bankrott und Untreue). He was sentenced to four years' imprisonment.

On appeal on points of law (Revision) the Federal Court

(Bundesgerichtshof) found on 16 October 1985 that the applicant was

guilty only of breach of trust and therefore quashed the sentence and

referred the case back to the Regional Court for the purpose of

determining a new sentence.

On 21 May 1987 the Regional Court sentenced the applicant to

two years' imprisonment and granted a stay of execution on probation.

As a mitigating factor the Court took into account, inter alia, that

the applicant might possibly have been affected at the relevant time

by the first signs of his present Pickwick syndrome complaints but not

to such an extent as to exclude his criminal reponsibility. The hearings

of this trial were held on 5, 7, 11, 13, 15, 19 and 21 May 1987.

The applicant's final submission (Schlusswort) that his bank's

balance sheets had been tampered with by employees without his

knowledge was not taken into account by the Regional Court. The Court

pointed out that in this respect it was bound by the findings in the

previous judgment of 16 December 1984. The allegations in question

had then been considered to be contradicted by other available

evidence. These previous findings, so the Regional Court pointed out,

had become binding in that the Federal Court confirmed the applicant's

conviction of breach of trust. The conviction thereby became final.

The applicant lodged another appeal on points of law

(Revision) against the Regional Court's judgment of 21 May 1987

sentencing him to two years' imprisonment. This appeal was rejected

by the Federal Court on 20 April 1988 as being clearly ill-founded.

The applicant then lodged a constitutional complaint alleging

that in consequence of his Pickwick syndrome complaints, which were

discovered subsequent to his conviction in 1984, he had been unfit for

trial both in 1984 and 1987.

On 27 July 1988 a group of three judges of the Federal

Constitutional Court (Bundesverfassungsgericht) rejected the complaint

as being partly inadmissible and as lacking prospects of success as to

the remainder. The inadmissible part concerned the conviction which

had become final on 16 October 1985 and had not been complained of

within the time-limit provided for in Sec. 93 (1) of the Federal

Constitutional Court Act (BVerfGG). Insofar as the applicant

complained of the new proceedings before the Regional and the Federal

Courts relating to the determination of another sentence, the

Constitutional Court considered that there was nothing to show that

these Courts had arbitrarily considered the applicant fit to stand trial.

COMPLAINTS

The applicant maintains that he was unfit for trial because he

allegedly already suffered from the Pickwick syndrome during his first

trial in 1984 which, however, was only discovered later. He submits

that the Pickwick syndrome has only been known of since 1956. It affects

a person at night-time in that, whilst asleep, breathing stops from time

to time. The lack of oxygen supply then affects the brain and causes

blackouts as well as difficulties to concentrate and judge complex

situations.

According to an expert report of 17 May 1987 submitted by the

applicant in connection with his second appeal on grounds of law, the

applicant has been suffering from the Pickwick syndrome since 1970 and

his fitness to stand trial had been limited (eingeschränkt) but not

permanently excluded.

The applicant alleges that due to his illness he was not in

a position to follow great parts of his first trial in 1984. This

situation, so he submits, was not remedied by the second trial as the

Regional Court then considered itself bound by the prior findings on

which his conviction for breach of trust had been based.

He also complains that great parts of the trial in 1984 took

place in his absence as the Court wrongly considered an operation he

underwent at the time to have a pace-maker implanted as a delaying

manoeuvre and refused to adjourn the proceedings.

For all these reasons the applicant considers he did not

receive a fair trial within the meaning of Article 6 of the

Convention.

He considers that domestic remedies have been exhausted by his

complaint to the Federal Constitutional Court of the Federal Court's

second decision of 20 April 1988. A constitutional complaint against

the Federal Court's first decision of 16 October 1985 would in his

opinion have had no chances of success because the criminal

proceedings were not terminated by that decision and consequently

the ordinary remedies were not yet exhausted at that moment.

THE LAW

1. Insofar as the applicant complains that great parts of the

trial against him in 1984 were conducted in his absence, the

Commission is not required to decide whether or not the facts alleged

by him disclose any appearance of a violation of Article 6 (Art. 6) of the

Convention (fair hearing), as Article 26 (Art. 26) of the Convention provides

that the Commission "may only deal with a matter after all domestic

remedies have been exhausted according to the generally recognised

rules of international law ...".

In the present case the applicant failed to lodge a

constitutional complaint on time. Therefore the Federal

Constitutional Court rejected his constitutional complaint as being

inadmissible insofar as it related to his conviction which became

final when the Federal Court held on 16 October 1985 that he was

guilty of breach of trust. In these circumstances he cannot be

considered as having exhausted the remedies available to him under

German law. Moreover, an examination of the case does not disclose

the existence of any special circumstances which might have absolved

the applicant, according to the generally recognised rules of

international law, from exhausting the domestic remedies at his

disposal.

2. The applicant further complains that, both at the trial

proceedings in 1984 leading to his conviction and in the proceedings in

1987 relating to the determination of sentence, he was unfit to defend

himself adequately in consequence of the complaints caused by the

so-called Pickwick syndrome. This syndrome was only recently

discovered, namely in 1987, when it was no longer possible to lodge

a constitutional complaint against the Federal Court's decision of

16 October 1985 finalising the applicant's conviction of breach of

trust.

In view of these particular circumstances, the Commission

considers that the applicant can be considered as having exhausted

domestic remedies in that he invoked his Pickwick syndrome complaint in

his second appeal on points of law and his subsequent constitutional

complaint.

However, insofar as the right to a fair trial is at issue the

applicant has not shown that the Pickwick syndrome rendered him unfit

to stand trial. It follows from the medical reports submitted by him

that his capacity to attend the hearings was possibly limited but not

excluded. This was duly taken into account by the trial court which

held the hearings at intervals.

Furthermore, the applicant was defended by counsel. He has

himself not alleged that he has not been able to instruct his defence

counsel in order to be defended in an adequate manner. The applicant

has also been able himself to make use of the right to finalise

submissions.

In these circumstances there is nothing to show that the

defence was prevented from submitting all facts and arguments it

considered relevant and that the applicant was denied a fair hearing.

It follows that this part of 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

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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I.H. v. THE FEDERAL REPUBLIC OF GERMANY

I.H. v. THE FEDERAL REPUBLIC OF GERMANY

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