AS TO THE ADMISSIBILITY OF

                      Application No. 13666/88

                      by H.B.

                      against the Federal Republic of Germany

        The European Commission of Human Rights sitting in private

on 19 January 1989, the following members being present:

              MM. C.A. NØRGAARD, President

                  G. SPERDUTI

                  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

             Mrs.  J. LIDDY

             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 November 1987

by H.B. against the Federal Republic of Germany and registered

on 18 February 1988 under file No. 13666/88;

        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 1940 and living in

Lindlor.  He is represented by Messrs.  Millinger and Partners, lawyers

in Essen.

        The facts, as submitted by the applicant, may be summarised as

follows:

        The application relates to criminal proceedings against the

applicant in which he was defended by a defence counsel of his own

choice.  In addition the court had appointed an official defence

counsel for the applicant's defence.

        On 23 May 1984 the applicant was convicted by the Cologne

Regional Court (Landgericht) of evasion of income tax, turnover

tax, four counts of breach of trust (Untreue), attempted fraud,

embezzlement (Unterschlagung), five violations of an obligation to

respect confidentiality (Verletzung der Vertraulichkeit des Wortes)

and a violation of the Act on Detention of Weapons (Waffengesetz).

He was sentenced to three years and nine months' imprisonment.

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

(Bundesgerichtshof) quashed the conviction for embezzlement and the

whole sentence on 22 January 1985.  To this extent it sent the case

back to another chamber of the Regional Court for a new trial.  The

Federal Court also considered that the applicant's conviction for tax

evasion had to be limited to evasion of turnover tax.  Furthermore,

the Federal Court discontinued the proceedings insofar as they related

to charges of violation of an obligation to respect confidentiality.

        In view of these amendments the applicant remained convicted

of tax evasion, four counts of breach of trust, attempted fraud and a

violation of the Act on Detention of Weapons.

        In the course of the new trial the Cologne Regional Court

provisionally discontinued the proceedings in relation to the charge

of embezzlement and convicted the applicant only to the extent that

the Federal Court had confirmed the previous conviction.  It sentenced

the applicant on 29 December 1986 to three years and nine months'

imprisonment.  This sentence comprised another sentence imposed on the

applicant on 29 August 1985 by the Cologne District Court (Amtsgericht),

namely several fines which were transformed into part of the prison

sentence.

        The fact-finding of the second trial before the Regional Court

was limited to circumstances relevant for fixing the sentence, such as

the applicant's personal and financial situation.

        In this context the Regional Court decided on 6 August 1986,

at the request of the defence, to hear a medical expert on the question

whether or not the applicant's criminal responsibility had been

affected on account of events he lived through as a child in

connection with Nazi persecution directed against his family.  The

applicant's brother, a member of the resistance movement, had been

executed by the Gestapo in 1944 and his parents and sister were

detained and ill-treated in a concentration camp-like detention

centre.  The defence furthermore alleged that the applicant's actions

had been provoked by disloyal behaviour of his former friend and

partner.

        In view of the preparation of the expert opinion the trial

was adjourned for an undetermined period.  On 28 November 1986 the

trial court's president ordered that the trial be continued on 12, 16,

18, 22 and 29 December.  This order was based on oral information

received by telephone from the medical expert.  He told the presiding

judge that he had the applicant examined and invited for a final

examination on 11 December 1986.

        On 9 December 1986 the applicant's chosen defence counsel

informed the court that, for professional and health reasons, they

were prevented from attending the hearings of 16, 18 and 22 December.

Therefore they requested an adjournment pointing out that they had not

yet been informed of any results of the medical examination.  This

request was rejected the same day.

        At the oral hearing on 12 December the applicant's chosen

defence counsel again requested that the trial be adjourned.  The

request was rejected on the ground that the proceedings had to be

terminated within a reasonable time.

        The hearing of 12 December was not attended by the official

defence counsel.  However, this counsel attended the hearings of 16,

18 and 22 December while the chosen defence counsel was prevented on

these three days.

        On 15 December 1986 the applicant's chosen defence counsel

received the written expert opinion.

        On 16 December 1986 the applicant himself read out a

preformulated request for an adjournment.  He pointed out that the

official defence counsel had neither attended all previous hearings at

the first trial nor participated in the preparation and hearing of his

appeal.  He therefore considered that only his chosen defence counsel

could assure his defence in an adequate manner.  The applicant's

request was also rejected.

        At the hearing of 16 December 1986 the official defence

counsel suggested that the expert be heard on 29 December 1986 when

the chosen defence counsel would again be able to attend.  The expert,

however, was heard on 18 December 1986.

        The chosen defence counsel eventually participated at the

final hearing of 29 December which lasted from 9.15 to 18.25 hrs.  The

official defence counsel only attended until 10.55.  On 29 December

the taking of evidence was terminated with the hearing of three

witnesses.  The applicant's chosen defence counsel allegedly renounced

their pleading.

        They considered that they were not in a position to comment

on the result of the taking of evidence and to defend the applicant in

an adequate manner as they had not attended the hearings of 16, 18 and

22 December.

        The trial court stated in its judgment of 29 December 1986

that it had no doubts as to the applicant's criminal responsibility

given that the medical expert had not found any indication of a severe

personality disorder or any other serious mental disturbance, despite

a thorough examination of the applicant himself, a medical report

established by other doctors who had previously examined the

applicant, and the description of the applicant's personal

circumstances in the submissions of his defence - circumstances

which were considered to be proven.

        The applicant's appeal on points of law against the judgment of

29 December 1986 was rejected by the Federal Court on 21 August 1987

as being ill-founded.  The applicant's complaint that the request for

adjournment as repeated by his chosen defence counsel on 12 December 1986

had been wrongly rejected was held to be inadmissible because the

contents of this request had not been stated in the grounds given for

the appeal.  The further complaint concerning the refusal of the

request for an adjournment made by the applicant himself on

16 December 1986 was considered to be ill-founded.

        The applicant then lodged a constitutional complaint (Ver-

fassungsbeschwerde) against the judgment of 29 January 1986 and the

Federal Court's decision of 21 August 1987.  This complaint was

rejected by a group of three judges of the Federal Constitutional

Court (Bundesverfassungsgericht) on 14 December 1987 as offering no

prospects of success.  It is stated in the decision that the

constitutional complaint was inadmissible insofar as the applicant

failed to exhaust ordinary remedies in respect of the dismissal of the

request of adjournment made on 12 December 1986.  As to the remainder

of his complaints, it is pointed out that throughout the hearings of

the second trial the applicant had been assisted by at least one

defence counsel.  The Constitutional Court also stated that, in

deciding on a request for adjournment, the trial court had to weigh

the interest in speedy proceedings on the one hand and the defendant's

interest in being assisted by his chosen defence counsel on the other.

There was nothing to show that in deciding on the conflicting

interests the trial court disregarded constitutional standards.

COMPLAINTS

        The applicant alleges that his official defence counsel had

practically not been involved in his case since May 1984.  In

particular, the official defence counsel did not participate at the

hearings of 4 and 6 August 1986 when the reasons for obtaining a

medical expert opinion were discussed.  Furthermore, he allegedly never

contacted the applicant nor did he inspect the files for the

preparation of the defence.

        As the chosen and the official defence counsel did not work as

a team replacing each other mutually, the applicant considers that he

was not adequately defended because only his chosen defence counsel was

sufficiently informed about his case but could not attend important

parts of the trial as a consequence of the trial court's refusal to

adjourn the hearings.  He alleges a violation of Article 6 of the

Convention.

THE LAW

        The applicant complains of the refusal of his request for an

adjournment of the final hearings in his second trial which took place

on 12, 16, 18, 22 and 29 December 1986.  Therefore his chosen defence

counsel was unable to attend the hearings of 16, 18 and 22 December.

The applicant argues that, as a consequence, he was not adequately

defended because his official defence counsel who was present at the

hearings of 16, 18 and 22 December was allegedly not sufficiently

familiar with the case, while his chosen counsel who attended the

last day of the hearings, on 29 December, was then not in a position to

sum up the defence's arguments in final submissions because he had not

attended the preceding hearings.

        It is true that Article 6 para. 1 (Art. 6-1) of the Convention

guarantees the right to a fair trial and paragraph 3(c) of Article 6 (Art.

6-3-c), which enumerates one of the constituent elements of this general

notion, provides for the accused's right "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".

        However, admitting that an accused has a legitimate interest to be

defended by his chosen counsel, there may arise situations where the chosen

counsel is prevented from assuming the defence while it is in the interest of

justice, and normally also in the interest of the accused, to speed up the

proceedings.

        In such cases an adequate defence may also be provided by an officially

appointed defence counsel.  The Commission's competence of control is, in this

respect, limited to ascertaining whether the accused had the benefit of a

defence that was "practical and effective" (Eur.  Court H.R., Goddi judgment of

9 April 1984, Series A no. 76, p. 11, para. 27).

        As regards the circumstances of the present case the Commission notes

that the criminal proceedings against the applicant were pending for several

years.  He was first convicted on 23 May 1984.  The conviction became final to

the extent that it was confirmed by the Federal Court on 22 January 1985.  The

Federal Court only quashed the conviction insofar as it related to a charge of

embezzlement.  At the second trial the Cologne Regional Court did not determine

this remaining charge as it discontinued the proceedings provisionally. Thus

the new trial before the Cologne Regional Court was limited to the

determination of a new sentence as the Federal Court had also quashed the

sentence imposed on the applicant by judgment of 23 May 1984.  This issue

involved the question whether or not the applicant was criminally responsible.

In this respect the applicant had mainly alleged that as a child he had been

seriously affected by Nazi persecution to which his family had been exposed.

The written medical expert opinion on the question of the applicant's criminal

responsibility was communicated to the applicant's chosen defence counsel on 15

December 1986.  The expert explained his opinion at the

hearing of 18 December 1986 when the applicant was defended by the official

defence counsel who had already been appointed for the first trial.  The

Commission finds no indication that the question on which the expert was

consulted raised complex problems which only the chosen defence counsel would

have been able to deal with.  In fact both the medical expert and the trial

court accepted as true the applicant's description of the events which

allegedly affected him psychologically. In any event the applicant's chosen

defence counsel was informed about the dates of the December hearings on 28

November 1986.  On 9 December 1986 his request for an adjournment was rejected.

He thus disposed of several days to instruct the official defence counsel with

regard to the factual situation relevant for the medical expert opinion.

Furthermore there is nothing to show that the expert's written report, which

was communicated to the chosen defence counsel on 15 December 1986 and which

was explained orally by the expert at the hearing of 18 December, was of such a

complicated nature that the applicant's defence would have needed more time to

prepare its comments on this report.

        Between the hearings of 16, 18 and 22 December and the last hearing of

29 December, when the applicant's chosen counsel was again attending the trial,

the defence again disposed of several days during which the official defence

counsel, who had attended these hearings, could inform the chosen defence

counsel about what had been discussed or said at the hearings which the latter

had been prevented from attending.  The applicant alleged that the two counsel

did not collaborate.  However,the two defence counsel had a duty to see to it

that the applicant was adequately defended and there is nothing to show that an

exchange of information between them had not been possible, either in view of

the complexity of the matter dealt with or for any other justified reasons.

        In these circumstances the Commission cannot find that the trial

court's repeated refusal to adjourn the December hearings deprived the

applicant of the benefit of a practical and effective defence.

        It follows that there is no appearance of a violation of the Convention

and, in particular, of Article 6 (Art. 6) and consequently 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)