Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 12725/87

by W.M.

against the Federal Republic of Germany

The European Commission of Human Rights sitting in private

on 2 October 1989, the following members being present:

MM. C.A. NØRGAARD, President

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

G. BATLINER

J. CAMPINOS

Mrs. G.H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

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 17 August 1986

by W.M. against the Federal Republic of Germany and registered on 16

February 1989 under file No. 12725/87;

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 1942 who is serving

a sentence in the prison of Amberg. He complains of the criminal

proceedings which led to his conviction and sentence, as well as

certain subsequent proceedings. The facts as submitted by the applicant

may be summarised as follows.

On 21 October 1983 the applicant was arrested on a suspicion

of fraud. Following lengthy investigations an indictment was

preferred against him on 22 February 1985 in which he was charged with

fraud on numerous counts and with a number of other related offences.

On 10 May 1985 the Regional Court (Landgericht) of Nürnberg-Fürth

admitted the indictment and ordered the opening of the main

proceedings. The trial was to begin on 3 June 1985. On 22 May 1985

the applicant asked the Court to reconsider its decision on the

opening of the main proceedings. He referred to negotiations between

his defence counsel and the prosecution as to possible admissions and

the length of sentence, but observed that the prosecution's proposals

in this context were unacceptable to him. Therefore the trial would

have to be held in the normal way and should be postponed as he had

not yet received all the evidence and disposed of insufficient

preparatory time. He also asked for the hearing of numerous witnesses

and for the discontinuation of the proceedings concerning certain

charges.

However, the trial was not postponed and began on 3 June 1985;

it continued on six days of hearings until 18 June 1985. On the basis

of the agreement negotiated between the prosecution and the defence

with the consent of the Court, the prosecution dropped certain charges

in respect of which the Court discontinued the proceedings. As

regards the remaining charges the Court heard only the applicant, but

no witnesses. The prosecution finally requested a sentence of seven

years and six months. The defence did not oppose the legal arguments

of the prosecution, but asked for a mild sentence. On 18 June 1985,

the Court found the applicant guilty as charged. Noting the

applicant's comprehensive confession as a mitigating circumstance,

it imposed a sentence of six years and six months. It expressly

refrained from imposing a measure of preventive detention.

Immediately following pronouncement of the judgment, the Court

reopened its hearing and took note of declarations by the prosecution

and the defence, i.e. the applicant himself and his counsel, that they

waived the right to appeal (Rechtsmittelverzicht). However, already

on 19 June 1985 the applicant revoked his waiver, announcing that he

wished to appeal against the judgment to the Federal Court of Justice

(Bundesgerichtshof). He submitted that the waiver was invalid for

various reasons: it was inadmissible to reopen the court hearing

after the close of the trial and to require him to make immediately a

binding declaration on the use of remedies; moreover he had acted

under constraint by his official defence counsel (who had threatened

to terminate his mandate) and by the prosecution (who had threatened

that in case of an appeal by the applicant they would also appeal and

request a higher sentence including a measure of preventive

detention); finally the waiver was invalid because he had appended a

condition (that the description of his character as "mean" and

"ruthless" should not appear in the written judgment) and because

certain formalities had not been observed. He also submitted that an

appeal was justified because the Court had not dealt with his request

of 22 May 1985 to discontinue the proceedings concerning certain

charges, and because it had failed to sufficiently clarify the

facts. In September 1985 the applicant developed his grounds of appeal

in detail, in December 1985 he requested to be informed of the

observations of the Federal Attorney General (Generalbundesanwalt)

which, however, were never served upon him.

On 14 January 1986 the Federal Court of Justice rejected the

appeal as being inadmissible, finding that the applicant had validly

waived his right to appeal. Basing itself on official statements by

the professional judges of the Regional Court and by the applicant's

official defence counsel, the Federal Court found it established that

the necessary formalities had been observed, that the applicant had

dropped the condition which he had first appended to his waiver, and

that he had not been urged by the Court to waive his right to

appeal. It could be left open whether an appeal was exceptionally

open in case of constraint as in any event there had been no

constraint by the prosecution or the defence counsel in the present

case.

The applicant then lodged a constitutional appeal which the

Federal Constitutional Court (Bundesverfassungsgericht) rejected on

12 February 1986. Its decision was served on the applicant on

18 February 1986.

The applicant subsequently tried to institute criminal

proceedings against the judges of the Regional Court. However, on

8 October 1986 the Nürnberg Court of Appeal (Oberlandesgericht) refused

him legal aid for an action to enforce such proceedings. Thereupon

the applicant tried to institute criminal proceedings against the

judges of the latter Court. On 21 May 1987 it refused him legal aid

also in this case. The applicant's constitutional complaints against

these two decisions were rejected by the Federal Constitutional Court

on 9 January and 18 August 1987 respectively.

COMPLAINTS

Regarding the criminal proceedings against him, the applicant

alleges violations of Article 6 paras. 1, 2 and 3 (b), (c), and (d) of

the Convention. He claims in particular that his official defence

counsel did not assist him effectively, but instead negotiated an

agreement with the prosecution and the Regional Court which for this

reason was not impartial and disregarded the presumption of innocence.

The applicant was thereby caused to make untrue admissions - he denies

that he actually made a comprehensive confession - and to waive his

right to the hearing and questioning of witnesses. Finally, he was

urged by the Regional Court, in the light of threats by the

prosecution and his own defence counsel, to waive his right of appeal.

The Federal Court of Justice did not respect his right to be heard as

it did not make available the submissions of the Federal Attorney

General and as it refused to deal with the question of constraint.

Finally, the Federal Constitutional Court unfairly denied a violation

of his constitutional rights.

Regarding the subsequent proceedings in which he sought the

criminal prosecution of judges, the applicant alleges violations of

Article 6 para. 1 of the Convention in that he did not have a fair

hearing by an impartial tribunal.

THE LAW

1. The applicant complains of criminal proceedings in which he

was convicted of fraud and other related offences and sentenced to six

years and six months' imprisonment. He invokes Article 6 paras. 1, 2

and 3 (b), (c) and (d) (Art. 6-1, 6-2, 6-3-b, 6-3-c, 6-3-d) of the

Convention which read as follows:

"1. In the determination of his civil rights and

obligations or of any criminal charge against him, everyone

is entitled to a fair and public hearing within a reasonable

time by an independent and impartial tribunal established by

law. ...

2. Everyone charged with a criminal offence shall be

presumed innocent until proved guilty according to law.

3. Everyone charged with a criminal offence has the

following minimum rights:

...

(b) to have adequate time and facilities for the

preparation of his defence;

(c) to defend himself in person or through legal

assistance of his own choosing or, if he has not sufficient

means to pay for legal assistance, to be given it free when

the interests of justice so require;

(d) to examine or have examined witnesses against him

and to obtain the attendance and examination of witnesses on

his behalf under the same conditions as witnesses against

him;

..."

The Commission notes that the applicant's conviction was based

on his confession made following an agreement between the defence and

the prosecution with the consent of the Court. The agreement also

concerned the length of the sentence and the waiver of the right to

appeal. The applicant subsequently nevertheless lodged an appeal,

contending that the waiver was invalid on various grounds. However,

the Federal Court of Justice found it to be valid and therefore

rejected the applicant's appeal as inadmissible. The Federal

Constitutional Court found no violation of the Basic Law in this

way of proceeding.

The Commission recalls that a person may in certain

circumstances validly waive rights under Article 6 (Art. 6) of the

Convention (cf. No. 1197/61, Dec. 5.3.62, Collection 8 pp. 68, 73;

Deweer v. Belgium, Comm. Report 5.10.78, paras. 55 et seq., confirmed

by Eur. Court H.R., Deweer judgment of 27 February 1980, Series A no.

35, p. 25, paras. 49 et seq.; No. 9177/80, Dec. 6.10.81, D.R. 26 pp.

255, 258; No. 10802/84, Pfeifer and Plankl v. Austria, Dec. 8.5.1989,

to be published in D.R.). The Commission is satisfied that the

present applicant had accepted the agreement negotiated by his

official defence counsel and thereby waived a contradictory procedure,

the hearing and questioning of witnesses, and the assertion of his

defence in a different manner. By making a confession regarding the

prosecution case insofar as it was maintained, he is also debarred

from invoking the presumption of innocence in this respect, nor can he

claim that the Regional Court was not impartial or acted unfairly when

accepting his admissions.

The Commission notes that in his appeal to the Federal Court of

Justice the applicant wanted to re-open the above issues. However, the

Federal Court declared the appeal inadmissible because it considered

that the applicant's waiver of his right to appeal was valid. The

applicant contests this, but the Commission finds no indication that

when declaring his waiver the applicant acted under constraint or was

misled as to his legal situation.

The waiver of his right to appeal was part and parcel of the

agreement previously accepted by the applicant who had shown by his

behaviour at the trial that he consented to the procedure. In the

circumstances it was not unreasonable to require him immediately

after the pronouncement of the judgment to fulfil the last part of

the agreement by renouncing an appeal, in particular as the matter had

been previously discussed. Not only his defence counsel but also the

applicant himself declared that they waived the right to appeal. The

applicant thus was not taken by surprise. Nor was unjustified

pressure exerted against him. The Commission here notes the Federal

Court's findings that the necessary formalities were observed, that

the applicant dropped the condition to which he had first wished to

subject his waiver and that the Regional Court did not urge him to

forgo his right of appeal. The Commission also notes the applicant's

submission that his defence counsel urged him to do so, indicating

that otherwise he would terminate his mandate. However, it is

understandable that the defence counsel who had negotiated the

agreement felt bound by it and was not prepared to continue to

represent the applicant if he insisted on filing an appeal. Nor can

it be regarded as a measure of inadmissible constraint that the

prosecution declared that they would no longer feel bound by the

agreement if the applicant appealed, and that in this case they would

also have to consider filing an appeal.

In conclusion the Commission therefore finds that having regard

to the particular circumstances the applicant has had a fair trial in

conformity with the requirements of Article 6 (Art. 6) of the

Convention. This part of the application must accordingly be rejected

as being manifestly ill-founded within the meaning of Article 27 para. 2.

2. The applicant further complains that in the proceedings by

which he tried to enforce a criminal prosecution of certain judges of

the Regional Court and of the Court of Appeal he did not have a fair

hearing by an impartial tribunal as required by Article 6 para. 1

(Art. 6-1) of the Convention. The Commission observes, however, that

this provision is only applicable to proceedings on the determination

of an applicant's civil rights and obligations, or of a criminal

charge against him. The proceedings at issue did not concern the

applicant's civil rights and obligations, nor a criminal charge

against the applicant. The Convention does not guarantee any right to

the institution of criminal proceedings against third persons, nor

does it give procedural guarantees in proceedings whereby the

institution of such proceedings is requested. It follows that the

remainder of the application is incompatible with the provisions of

the Convention, ratione materiae, and that it must also be rejected

under Article 27 para. 2 (Art. 27-2).

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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M. v. THE FEDERAL REPUBLIC OF GERMANY

M. v. THE FEDERAL REPUBLIC OF GERMANY

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