E. v. THE FEDERAL REPUBLIC OF GERMANY
Doc ref: 12866/87 • ECHR ID: 001-493
Document date: December 9, 1987
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AS TO THE ADMISSIBILITY OF
Application No. 12866/87
by H.E.
against the Federal Republic of Germany
The European Commission of Human Rights sitting in private
on 9 December 1987, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
G. SPERDUTI
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
G. BATLINER
Mrs. G.H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
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 11 March 1987
by H.E. against the Federal Republic of Germany and registered
on 13 April 1987 under file N° 12866/87;
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&S
The applicant is a German citizen, born in 1926 and living in
Freudenberg-Oberholzklau. He is represented in the proceedings before
the Commission by Curt Freiherr v. Stackelberg, a lawyer with a right
of audience before the Federal Court (Bundesgerichtshof), whose
practice is in Karlsruhe.
In a previous application (No. 8130/78) the applicant
complained of the length of criminal proceedings against him. On
15 July 1982 the European Court of Human Rights found that the
criminal proceedings against the applicant carried out by the judicial
authorities in Trier and Cologne had exceeded a reasonable time and
therefore violated Article 6 para. 1 of the Convention (Series A,
Vol. 65).
On 21 June 1983 the European Court of Human Rights (Series A,
Vol. 65) awarded the applicant just satisfaction to the amount of nine
thousand six hundred and forty-one Marks and ten Pfennigs (9,641.10 DM)
in respect of costs and expenses and rejected the remainder of the
applicant's claims.
On the basis of the aforementioned judgment of 15 July 1982,
the applicant made a request for retrial arguing that his conviction
pronounced by the Trier Regional Court on 17 March 1972, judgment that
has become final in the meantime, had to be quashed as in view of the
unreasonable length of the proceedings they should have been
discontinued. He argued that the violation of Article 6 para. 1 of
the Convention, which had been established only subsequent to the
criminal proceedings, was a "new fact" in the sense of Section 359 (5)
of the Code on Criminal Procedure (StPO) and therefore his request for
a retrial should be granted.
On 6 December 1985 the Regional Court (Landgericht) in Koblenz
rejected the request. On 12 August 1986 the Koblenz Court of Appeal
(Oberlandesgericht) confirmed the Regional Court's decision. The
appellate court pointed out that the length of the proceedings was
known to the trial court and considered as being a mitigating
circumstance. Consequently, the legal requirements to re-open the
criminal proceedings were not given.
The applicant's constitutional appeal was rejected by a group
of three judges of the Federal Constitutional Court (Bundesverfassungs-
gericht) on 24 September 1986 as offering no prospects of success.
&_COMPLAINTS&S
The applicant complains that his request for a retrial was
rejected although a retrial would, in his opinion, have offered the
possibility to remedy the violation of Article 6 para. 1 found by the
European Court of Human Rights. He submits in this respect that the
trial court's statement that the length of the criminal proceedings
had been considered as a mitigating factor was an empty formula.
Therefore, so he argues, the only remedy at his disposal was a request
for a retrial. The denial of this request consequently violated
Articles 6, 13, 50 and 53 of the Convention.
THE LAW
1. The applicant has complained that his claim for a retrial was
refused. However, under Article 25 para. 1 (Art. 25-1) of the Convention, it is
only the alleged violation of one of the rights and freedoms set out
in the Convention that can be the subject of an application presented
by a person, non-governmental organisation or group of individuals.
With regard to the present complaint, no right to a retrial is as such
included among the rights and freedoms guaranteed by the Convention
(See No. 7761/77, Dec. 8.5.78, DR 14 p. 171).
The Commission leaves open the question of whether a
Convention issue could arise where an act found to be in violation of
the Convention by a judgment of the European Court of Human Rights continues to
negatively affect the victim (Articles 52, 53, 54 (Art. 52, 53, 54) of the
Convention). Such a situation is, however, not given in the present case. The
judgment determining the criminal charges in the criminal proceedings against
the applicant was not, in the previous application proceedings (No. 8130/78),
found to have violated any Convention right. It was only the length of the
criminal proceedings that were considered to have exceeded a reasonable time
and therefore to have violated Article 6 para. 1 (Art. 6-1). However, this did
not affect the substance of the applicant's conviction.
It follows that this part of the application is incompatible
ratione materiae with the provisions of the Convention within the
meaning of Article 27 para. 2 (Art. 27-2).
2. Insofar as the applicant invokes Article 13 of the Convention
and even assuming that this complaint has not essentially the same
content as the applicant's previous application No. 8130/78, it has to
be noted that the applicant could complain of the length of the
criminal proceedings, both to the criminal courts that determined the
charges to which these proceedings related and to the Federal
Constitutional Court. As the applicant considered that these courts
did not deal with his complaint of the length of the criminal
proceedings in an adequate manner, he lodged his previous application
No. 8130/78. He obtained just satisfaction in the proceedings
relating to this previous application (Eur. Court H.R., judgment of
21.6.1983, Series A, Vol. 65). In these circumstances there is no
appearance of a violation of Article 13 (Art. 13) of the Convention. 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)