W. v. THE FEDERAL REPUBLIC OF GERMANY
Doc ref: 12008/86 • ECHR ID: 001-428
Document date: October 15, 1987
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AS TO THE ADMISSIBILITY OF
Application No. 12008/86
by G.W.
against the Federal Republic of Germany
The European Commission of Human Rights sitting in private
on 15 October 1987, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
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
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 18 December 1985
by G.W. against the Federal Republic of Germany and
registered on 18 February 1986 under file N° 12008/86;
Having regard to the report provided for in Rule 40 of the
Rules of Procedure of the Commission;
Having deliberated;
Decides as follows:
12008/86
THE FACTS
The applicant, a German citizen born in 1924, is an economist
resident in Troisdorf in the Federal Republic of Germany.
In criminal proceedings instituted against a certain Mr. K., the
Recklinghausen District Court (Amtsgericht) ordered the psychiatric
examination of K. Thereupon the present applicant, who was not
involved in the proceedings, wrote a letter to judge W. at that Court
in which he complained of the examination.
The letter stated, inter alia, that if judge W. had not
realised that K. was an honourable gentleman perhaps he had become
blind in his business and should let an objective testing agency
examine whether he was in full possession of his mental abilities. The
letter continued:
"You are wasting in a wretched way scarce tax money if you
are taking the terror against Mr. K. so far and misuse a
psychiatrist in that he should ruin, with his uncontradictable
arguments, the difficult critic in order to calumniate
him according to the Soviet method. This has even less to
do with the administration of the rule of law than the
infamous cow with the Sunday! You should be ashamed of
your manner of thinking which is hostile to law."
"Sie vergeuden in mieser Weise knappe Steuermittel, wenn
Sie den Terror gegen Herrn K. so weit treiben, einen
Psychiater dazu zu missbrauchen, dass er den unbequemen Mahner
mit seinen unwiderleglichen Argumenten kaputtschreiben soll,
um ihn nach sowjetischem Vorbild zu diffamieren. Mit
rechtsstaatlicher Rechtspflege hat das noch weniger zu tun,
als die berüchtigte Kuh mit dem Sonntag! Schämen Sie sich
Ihrer rechtsfeindlichen Denkweise!"
On 22 November 1984 the Recklinghausen District Court
convicted the applicant of insulting remarks (Beleidigung) and
sentenced him to a fine of 1,500 DM. After recapitulating the letter
as well as the applicant's subsequent explanations therefor, the Court
concluded that the criticism in fact intended solely to insult the
judge. The Court also found that it was unnecessary to consider
further evidence proposed by the applicant.
The applicant's appeal (Berufung) was dismissed by the Bochum
Regional Court (Landgericht) on 3 June 1985, though the fine was
reduced to 750 DM, inter alia in view of the applicant's apology to
judge W. His appeal on points of law (Revision) was dismissed by the
Hamm Court of Appeal (Oberlandesgericht) on 23 September 1985. On
29 November 1985 the Federal Constitutional Court (Bundesverfassungs-
gericht) declared the applicant's constitutional complaint
inadmissible as insufficiently substantiated.
COMPLAINTS
The applicant now complains inter alia under Article 3 of the
Convention that he was sentenced to an inhuman punishment. Under
Article 6 he submits, inter alia, that he could not put questions to
witnesses. Under Article 10 he complains that he was punished for
having stated his opinion about the judge. He also invokes
Articles 7 and 13 of the Convention.
THE LAW
The applicant now complains of the allegedly unfair
proceedings in which he was involved and of the resulting sentence. He relies
on Articles 3, 6, 7, 10 and 13 (Art. 3, 6, 7, 10, 13) of the Convention.
However, the Commission recalls that there is no exhaustion of
domestic remedies within the meaning of Article 26 (Art. 26) of the Convention
where a domestic appeal is not admitted because of a procedural mistake
(see No. 6878/75, Dec. 6.10.76, D.R. 6 p. 79). In the instant case,
the Federal Constitutional Court declared the applicant's
constitutional complaint inadmissible as it had not been sufficiently
substantiated. Hence, the applicant has not exhausted the domestic
remedies available to him under German law. It follows that the
applicant has not complied with the condition as to the exhaustion of
domestic remedies.
In any event, after considering the case as a whole, the
Commission finds that it does not disclose any appearance of a
violation of the rights and freedoms set out in the Convention and
must also be rejected as being manifestly ill-founded.
It follows that the application must be rejected under
Article 27 paras. 2 and 3 (Art. 27-2, 27-3) 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)