Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 12371/86

by B.

against the Federal Republic of Germany

The European Commission of Human Rights sitting in private

on 12 December 1988, the following members being present:

MM. C. A. NØRGAARD, President

J. A. FROWEIN

S. TRECHSEL

G. SPERDUTI

E. BUSUTTIL

G. JÖRUNDSSON

A. WEITZEL

J. C. SOYER

H. G. SCHERMERS

H. DANELIUS

J. CAMPINOS

H. VANDENBERGHE

Mrs. G. H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

Mr. J. RAYMOND, Deputy 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 11 July 1986

by B. against the Federal Republic of Germany and registered on 18

August 1986 under file No. 12371/86;

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 1951 and serving

a life sentence in prison at Stuttgart. He is represented by

Mrs. M. Roell and Mr. J. Schwenn, lawyers in Hamburg.

The facts submitted may be summarised as follows:

On 7 May 1984 the applicant was convicted by the Stuttgart

Court of Appeal (Oberlandesgericht) principally on several counts of

murder in conjunction with the taking of hostages and kidnapping (Mord

in Tateinheit mit Geiselnahme, erpresserischem Menschenraub). He was

given a triple life-sentence and fifteen years' imprisonment (dreimal

lebenslange Freiheitsstrafe sowie fünfzehn Jahre Freiheitsstrafe).

According to the findings of the Court, the applicant was an

underground member of a terrorist organisation known as the Red Army

Fraction (RAF) since the end of December 1976. As a member of this

terrorist organisation the applicant actively participated in the

planning, organisation and execution of the following actions:

In April/May 1977 a commando group of "RAF" members, including

the applicant, decided to kidnap personalities in order to propose to

the German authorities their liberation in exchange for the liberation

of the lawfully detained "RAF" members Baader, Ensslin and Raspe.

It was first planned to kidnap the banker Jürgen Ponto. The

applicant fully accepted and identified himself with the project. On

28 and 29 July 1977 the applicant and other members of the group stole

and prepared two cars for the kidnapping. On 30 July three other

members, namely Susanne Albrecht, the daughter of a friend of Mr.

Ponto's, Brigitte Mohnhaupt and an unidentified male member, visited

the Pontos in their home. When they tried to kidnap Mr. Ponto he

resisted and was then shot by Brigitte Mohnhaupt. The perpetrators

escaped. Subsequently, the "RAF" wrote letters to various press agencies

commenting on the action.

On 25 August 1977 the commando attempted to kill officials

of the Federal Prosecutor's Office (Bundesanwaltschaft) by firing

explosives at the office building from a nearby apartment house.

There they had overwhelmed an elderly couple and installed in that

couple's apartment a rocket-launching device with 42 launchers, which

the applicant had constructed with the help of Susanne Albrecht and

others. The plot failed, because an error was made in setting the

self-timer and the apartment owners eventually succeeded in freeing

themselves and alarming the police. Again the "RAF" sent letters

claiming to be the author of the plot.

On 5 September 1977 a "RAF" commando kidnapped the President of

the Federal Union of German Employer Associations (Bundesvereinigung

der Deutschen Arbeitgeberverbände), Mr. H.-M. Schleyer, when he was

driving home with his escort. Mr. Schleyer's driver and three

policemen were killed by the commando. Mr. Schleyer was later killed

by an unidentified "RAF" member by three shots into his head. The

kidnapping had been prepared with great care during several weeks and

the applicant again took an active part in the plot. Although on

25 September 1977 he travelled to Bagdad, the whole action was, in the

Court's opinion, carried out with his knowledge, consent and approval.

The findings of the Court of Appeal were based on

circumstancial evidence like fingerprints of the applicant and other

"RAF" members, evidence given by police officers to whom one of the

arrested "RAF" members had freely talked about the group's organisation

and activities, the statements made before judicial authorities by two

former members who, however, refused to give evidence at the trial for

fear of reprisals.

The applicant had also admitted to having been an active "RAF"

member. He had, however, denied participating in any of the actions

which resulted in the actual killing of persons. While there was no

evidence to prove the contrary, the Court of Appeal, admitting that

not all "RAF" members were informed about or participated in the various

criminal activities, nevertheless considered the applicant to be an

accomplice (Mittäter), as the killings were only the end-result of

preconceived plans, in the realisation of which the applicant had, as

the evidence obtained proved, taken an active and deliberate part,

knowing and approving the consequences.

In this respect the Court of Appeal referred, inter alia, to

previous trials against other "RAF" members and to the statements of "RAF"

member Stefan Wisniewski made at his trial before the Düsseldorf Court

of Appeal. Wisniewski, who was found guilty of having participated in

the Schleyer kidnapping, had explained that "RAF" actions were decided

and carried out on a basis of mutual agreement and accord between the

participating members.

The Court of Appeal therefore did not consider it necessary to

hear an expert proposed by the applicant's defence on the allegation

that not all "RAF" members were informed about and participated in the

decision-making on the different actions.

The applicant's appeal on points of law (Revision) against

conviction was rejected by the Federal Court (Bundesgerichtshof) on

8 July 1985. However, the Federal Court quashed the applicant's

sentence and sent the case back for a new decision on sentence.

The applicant then lodged a constitutional complaint against

the Federal Court's decision rejecting his appeal against conviction.

He complained, inter alia, that the trial court had refused to hear an

expert on social science on the allegation that an empirical analysis

would show that there did not exist a behavioural pattern of collective

planning and action within the "RAF".

On 23 December 1985 a group of three judges of the Federal

Constitutional Court rejected the complaint as offering no prospects

of success. The decision was received by the applicant's counsel on

13 January 1986. It is stated in the decision that the trial court's

taking and appreciation of evidence was by no means exceptionable.

The trial court, so it is further pointed out, was entitled to take

into consideration under the applicable procedural law facts and

circumstances known to it as a result of other trials. The trial

court had duly informed the defence that certain facts relating to the

"RAF" were known from previous proceedings. Thus the defence did have

the opportunity to submit their comments in this respect. The trial

court finding, based on previous trials, that the "RAF" terrorist

organisation had a collective structure was not arbitrary. It is

noted in this context that the trial court admitted that not all

members were previously informed about every action. Furthermore, so

the Federal Constitutional Court noted, the trial court did not refer

to previous proceedings but to the evidence taken at the applicant's

trial insofar as the particular circumstances concerned related

to the planning and realisation by the group of perpetrators of the

crimes in question. The evidence had been evaluated in accordance

with the trial court's competence to do so.

COMPLAINTS

The applicant complains that he was wrongly convicted of

murder as there was allegedly no evidence that he participated in any

of the killings. He maintains that it violated his right to a fair

trial that no expert was heard on his allegation that, contrary to the

statements of certain "RAF" members, a collective structure did not exist

within the "RAF" but rather a hierarchical structure with executive

groups at different levels which often operated without knowledge of

the aims and plans of the decision-making members. He invokes Article

6 paras. 1 and 3 of the Convention.

THE LAW

The applicant has complained that he was wrongly convicted and

sentenced on 7 May 1984 by the Stuttgart Court of Appeal 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. The Commission refers, on this point, to its established

case-law (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).

It is true that the applicant also complains that

the trial court refused to hear an expert on the allegation that the

terrorist organisation of which he was a member did not have a

collective structure. In this connection he alleges a violation of

Article 6 paras. 1 and 3 (Art. 6-1, 6-3) of the Convention, which provides:

"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. Judgment shall be pronounced publicly but the press

and public may be excluded from all or part of the trial in

the interests of morals, public order or national security

in a democratic society, where the interests of juveniles or

the protection of the private life of the parties so

require, or to the extent strictly necessary in the opinion

of the court in special circumstances where publicity would

prejudice the interests of justice.

2. ...

3. Everyone charged with a criminal offence has the

following minimum rights:

(a) to be informed promptly, in a language which he

understands and in detail, of the nature and cause of the

accusation against him;

(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;

(e) to have the free assistance of an interpreter if he

cannot understand or speak the language used in court."

However, even assuming that the guarantee of a fair trial

interpreted in the light of the special guarantees set out in

paragraph 3 of the Convention, in particular, the right of the accused

to obtain the attendance and examination of witnesses on his behalf

(sub-paragraph (d)), includes a right to have an expert opinion

obtained on questions which necessitate specialised knowledge,

such a right is not an absolute one. As is the case in regard

to the hearing of witnesses, it is, in principle, within the

discretionary power of the national courts of the Contracting States

to establish whether it is necessary that an expert opinion be

obtained for the establishment of the truth (cf. No. 8231/78,

Dec. 6.3.82, D.R. 28 p. 5 [25]). In the present case the Commission

notes that the applicant's conviction is not simply based on the fact

and reasoning that he was a member of a terrorist organisation and

that it followed from the "collective structure" of this organisation

that he was to be considered guilty of the crimes committed by the

organisation. It appears from the carefully and extensively reasoned

decision of the trial court that the evidence taken at the applicant's

trial proved that he took an active and deliberate part in the

planning and realisation of the terrorist plots that led to the

killing of several people.

In these circumstances it cannot be found that the court

failed to respect Article 6 (Art. 6) of the Convention by not accepting the

proposal made by the defence to hear an expert on the question as to

whether or not the terrorist organisation did have a collective

structure.

It follows that 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.

Deputy Secretary to the Commission President of the Commission

(J. RAYMOND) (C.A. NØRGAARD)

Menu

B. v. the FEDERAL REPUBLIC OF GERMANY

B. v. the FEDERAL REPUBLIC OF GERMANY

LEXI