AS TO THE ADMISSIBILITY OF

                      Application No. 11853/85

                      by P.V.

                      against the Federal Republic of Germany

        The European Commission of Human Rights sitting in private

on 13 July 1987 the following members being present:

              MM. C. A. NØRGAARD, President

                  J. A. FROWEIN

                  S. TRECHSEL

                  F. ERMACORA

                  E. BUSUTTIL

                  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 13 August 1984

by P.V. against the Federal Republic of Germany and registered

on 15 November 1985 under file N° 11853/85.

        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 facts of the case, as submitted by the applicant, may be

summarised as follows:

        The applicant is an Austrian national born in 1950 and a

plumber by profession.  He is presently serving a sentence in Kaisheim

prison (Federal Republic of Germany).  Before the Commission he is

represented by Dr.  T. Rübsaamen, a lawyer practising in Augsburg.

        On 21 May 1982 the applicant was arrested on the ground of

suspicion of illegal drug trafficking.  On the following day an arrest

warrant was issued, and the applicant was then detained on remand.

        On 18 August 1982 the Augsburg Regional Court (Landgericht)

decided to open the main proceedings.

        The trial before this court was fixed for 14 October 1982.

However, the hearing could not take place, as one of the witnesses, C,

was not present.  C, who was suspected of having bought about 6

kilograms of hashish from the applicant on several occasions between

the beginning of 1981 and the applicant's arrest on 21 May 1982, had

incriminated the applicant in statements to the Augsburg police on 4

and 28 May 1982.  Apparently C had confirmed these statements before

the Augsburg District Court (Amtsgericht) on 28 May 1982.

        C revoked these statements in a letter of 1 November 1982

after having left Germany for Turkey in August 1982.

        On 9 November 1982 the Augsburg Regional Court requested the

competent Turkish authority by letters rogatory to examine C in a

Turkish court and also to summon him to appear as a witness before the

Augsburg Regional Court at the trial fixed for 17 May 1983.

        On 20 January 1983 the Munich Court of Appeal

(Oberlandesgericht) ordered that the applicant's detention on remand

should continue.  Subsequent orders for further extension of the

applicant's detention pursuant to Sections 121 para. 1 and 122 para. 4

of the Code of Criminal Procedure (Strafprozessordnung) were made by

this Court on 27 June 1983 and 14 October 1983, respectively.

        On 14 April 1983 C, who was at that time performing his

military service in Izmir, was examined in the Izmir Criminal Court in

pursuance of the request by the Augsburg Regional Court.  C confirmed

that his previous statements to the Augsburg police which were read

out by the court were true and correct.  However, the minutes of this

examination were not received by the Augsburg Regional Court until

24 October 1983.

        On 8 May 1983 the applicant's defence counsel interrogated

C in a hotel in Izmir.  C stated that his evidence given before the

Augsburg police was not true and that he had bought the hashish not

from the applicant and another person accused but from two Turks whose

surnames he did not know.  A transcript of this interrogation was

submitted to the Augsburg Regional Court on 16 May 1983.

        On 17 May 1983 the hearing before the Augsburg Regional Court

was due to take place.  Again, C was not present and as the applicant

persisted in an examination of C in court, the hearing was adjourned.

        Thereupon the Court, noting that the minutes of C's

examination in the Izmir Criminal Court had not yet arrived, again

requested the competent Turkish authority by letters rogatory of 26

May 1983 to examine C in a Turkish court and to summon him to appear

as a witness before the Augsburg Regional Court at the hearing then

fixed for 8 December 1983.  Attached to the summons was a safe-conduct

for C issued on 18 May 1983 by another chamber of the Augsburg

Regional Court.

        On 14 June 1983 the applicant's defence counsel requested the

Augsburg Regional Court to have C examined by a judge appointed by

this court in Istanbul on 22 June 1983.  The defence counsel stated

that C who was still performing his military service would be

available on that day but that he was about to be transferred to

another place and that consequently he could not be summoned to appear

before the Court in Augsburg any more.  This request was rejected on

15 June 1983 on the ground that German judges were not authorised to

perform official acts in Turkey.

        On 24 October 1983 the Regional Court received the minutes of

C's examination in the Izmir Criminal Court.

        On 8 December 1983 the trial before the Augsburg Regional

Court was opened.  As C was again not present the Court ordered that

his evidence given in the Izmir Criminal Court on 14 April 1983 as

well as his statements to the Augsburg police of 4 and 28 May 1982 be

read out.

        On 13 December 1983 the Court delivered its judgment, basing

itself on these statements confirmed by C before the Court in Izmir

and which had been corroborated by the testimony given by another

witness at the trial.  The Court considered these statements to be

true while C's statements to the contrary, made in his letter of

1 November 1982 and during his interrogation by the applicant's

defence counsel in Izmir on 8 May 1983, were not credible.  The

applicant was convicted of illegal drug trafficking and sentenced to

four years' imprisonment.

        On 5 July 1984 the Federal Court (Bundesgerichtshof) dismissed

the applicant's appeal on points of law (Revision) as being unfounded.

COMPLAINTS

        Invoking Article 5 para. 3 of the Convention, the applicant

complains of the length of his detention on remand, which lasted

nineteen months and therefore considerably exceeded the time-limit of

six months, provided for in S. 121 para. 1 of the German Code of

Criminal Procedure beyond which continued detention may only be

authorised in exceptional cases.

        The applicant further complains under Article 6 para. 3 (b)

that he did not have adequate time and facilities for the preparation

of his defence.

        Additionally, he raises various complaints under Article 6

para. 3 (d), alleging that he could not examine or have examined the

witness against him nor could he obtain the attendance and examination

of witnesses on his behalf under the same conditions as witnesses

against him.

        In this respect the applicant submits that the Regional Court,

by considering that the applicant's wife called on C in the morning of

22 May 1982 and told him about the applicant's arrest and a search

carried out at her home, based its reasoning on facts which had not

been brought before the Court.  However, had the defence known that

the Court would use these facts for its reasoning, it could have named

another witness who was present at the search of the applicant's

wife's home.

        The applicant also alleges that the statement made by C to

the Augsburg police on 28 May 1982, which C confirmed before the Izmir

Criminal Court on 14 April 1983, was not translated by a sworn

translator.  A translation by a sworn translator would have been more

accurate and the evidence would therefore have been more favourable

to the applicant.

        The applicant further alleges that only C's statement of

28 May 1982 was read out at his examination in the Izmir Criminal

Court on 14 April 1983, but not his statement of 4 May 1982.

Therefore C's examination was incomplete.

        The applicant finally complains that the Court essentially

based its judgment on the statements of C who never gave evidence

before the trial court.  Moreover, as the defence was not informed of

the date of C's examination in the Izmir Criminal Court, the

applicant's defence counsel was unable to attend this hearing although

both the German and the Turkish Codes of Criminal Procedure provide

for the presence of defence counsel at the examination of witnesses in

court.  Likewise, his defence counsel was not informed of C's

examination in the Augsburg District Court on 28 May 1982, despite the

fact that he had given notice, on 26 May 1982, of having assumed the

applicant's defence.  Therefore, neither the applicant himself nor his

defence counsel ever had the opportunity of directly examining C in

court.  In this context the applicant also submits that C would have

appeared at the trial in December 1983 if a safe-conduct had already

been attached to the first letters rogatory.  The applicant also

argues that C, who was at that time performing his military service in

Turkey, could not be expected to give evidence in Turkey contradicting

his previous statements to the German authorities.

THE LAW

l.  The Commission does not find it necessary to determine whether or

not the applicant can be considered to have exhausted the domestic

remedies at his disposal in accordance with Article 26 (Art. 26) of the

Convention despite the fact that he did not lodge a constitutional

complaint (Verfassungsbeschwerde) with the Federal Constitutional

Court (Bundesverfassungsgericht).  In any event the application is

manifestly ill-founded for the following reasons.

2.  The applicant complains about the length of his detention on remand.  Under

Article 5 para. 3 (Art. 5-3) of the Convention "(e)everyone ... detained in

accordance with the provisions of paragraph 1(c) of this Article shall be

entitled to trial within a reasonable time or to release pending trial".

        The applicant was detained on remand from 21 May 1982 until

13 December 1983, that is 18 months and 22 days.  In this respect the

Commission first observes that the Munich Court of Appeal ordered in

accordance with Section 121 para. 2 of the Code of Criminal Procedure

that in the exceptional circumstances of the case the applicant's

detention should continue after the time limit of six months provided

for in Section 121 para. 1 of the Code of Criminal Procedure had

expired.  Subsequently the Court of Appeal made orders on 27 June 1983

and 14 October 1983 for further extension of the applicant's detention

in accordance with Sections 121 para. 1 and 122 para. 4 of the Code of

Criminal Procedure.  The Commission is therefore satisfied that the

applicant's detention was lawful according to German law and that

consequently the applicant was lawfully detained in accordance with

the provisions of Article 5 para. 1 (c) (Art. 5-1-c) of the Convention.

        It is then necessary to examine the question whether the

length of detention on remand can be regarded as "reasonable"

within the meaning of Article 5 para. 3 (Art. 5-3) of the Convention.  In

determining this question, regard must not only be had to the absolute

time spent in detention but also to the circumstances of the

individual case.

     In the present case, the indictment against the applicant had

been admitted by the Regional Court on 18 August 1982 and the trial

fixed for 14 October 1982, i.e. less than five months after the

applicant's arrest.  It is true that finally the trial did not take

place until December 1983.  However, this postponement was due to C's

non-appearance at the hearings fixed for October 1982 and for May 1983

and the applicant persisting in his examination.  Moreover, the

minutes of C's examination in the Izmir Criminal Court were not

received by the Augsburg Regional Court until 24 October 1983, i.e.

almost one year after the request for C's examination on commission

had been formulated.

      The Commission is unable to conclude that this delay was caused

by the Augsburg Regional Court or any other German authority or that

it is imputable to the Federal Republic of Germany on other grounds.

The trial court had expressly mentioned in its letters rogatory that

the applicant was detained and that a date for the trial had already

been fixed and that therefore an expeditious execution was requested.

The fact that C's examination on commission was further delayed

because of his being called up for military service in Izmir was

neither foreseeable nor imputable to the German authorities.  In

particular, it does not appear that the address of C given by the

Augsburg Court to the Turkish authorities was incorrect at that time

as C had himself indicated this address in his letter of 1 November

1982.     In these circumstances, and also having regard to the charge laid

against the applicant, the Commission cannot find that the length of

the applicant's detention on remand until the trial actually took

place in December 1983 exceeded the "reasonable time" provided for in

Article 5 para. 3 (Art. 5-3) of the Convention.

      It follows that this part of the application must be rejected as

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

(Art. 27-2) of the Convention.

3.    The applicant also complains that he did not have adequate

facilities to prepare his defence as provided for by Article 6 para. 3 (b)

(Art. 6-3-b) of the Convention.  However, he has not at all substantiated this

complaint.

      It follows that this part of the application is also manifestly

ill-founded and must be rejected in accordance with Article 27 para. 2

(Art. 27-2) of the Convention.

4.   The applicant further complains that he could not obtain the

attendance and examination of certain witnesses and that he could not

examine or have examined the principal witness against him.

     Article 6 para. 3 (d) (Art. 6-3-d) of the Convention states that everyone

charged with a criminal offence "has the right 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".  More

generally, Article 6 para. 1 (Art. 6-1) of the Convention provides that, in the

determination of any criminal charge against him, everyone is entitled to a

"fair hearing".

     The Commission has examined the applicant's separate complaints

as they have been submitted by him under both provisions.

      a)  The applicant complains that the Augsburg Regional Court

relied in its judgment on the fact that the applicant's wife informed

C about the search carried out at her home; he alleges that this fact

has not been brought before the Court.

      The Commission notes that this fact was mentioned by C in his

statement made to the police on 28 May 1982 and read out during the

trial whereby it became part of the oral proceedings.  Therefore, the

Commission finds the applicant's allegation to be without factual

basis.

      Moreover, Article 6 para. 3 (d) (Art. 6-3-d) of the Convention does not

grant the defence total freedom to call any potential witness at any time in

the proceedings, but allows a refusal to call witnesses whose statements are

not likely to assist in ascertaining the truth (cf. e.g.  No. 8231/78, Dec.

6.3.82, D.R. 28 p. 1 [25];  No. 9000/80, Dec. 11.3.82, D.R. 28 p. 127 [135]).

The applicant did not specify what the witness whose appearance in court the

defence would have requested would have stated if he had been examined.

Therefore, the Commission is unable to conclude that his evidence could have

been of any relevance to the applicant's defence or that the applicant's

conviction could have rested on the failure to hear this witness.

       It follows that this part of the application is again manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention and must accordingly be rejected.

        b)  The applicant also alleges that the statement made by C

on 28 May 1982 to which C had been referred during his examination in the

Izmir Criminal Court was not translated by a sworn translator.  He

further submits that only this statement but not C's previous

statement of 4 May 1982 was read out by that court.

        However, the applicant does not allege that the translation -

assuming it was not drawn up by a sworn translator - was incorrect.

In any event, he does not specify which parts were incorrectly

translated.  Likewise, he does not specify on which parts of C's

statement of 4 May 1982 allegedly not read out by the Izmir Criminal

Court the Augsburg Regional Court based its reasoning.  Therefore, the

Commission is unable to conclude that the principle of fair trial as

laid down in Article 6 para. 1 (Art. 6-1) of the Convention has not been

complied with or that any of the applicant's rights under Article 6 para. 3

(Art. 6-3) were violated.

         c)  The applicant finally complains that the Augsburg

Regional Court essentially based its judgment on the testimony of C

who was never examined in this court and whom the applicant or his

defence counsel could not directly examine in court.

         The Commission recalls that Article 6 para. 3 (d)

(Art. 6-3-d) of the Convention does not grant the accused an unlimited

right to secure the appearance of witnesses in court.  Its purpose is

rather to ensure equality between the defence and the prosecution as

regards the summoning and examining of witnesses (cf. e.g.  No.

4428/70, Dec. 1.6.72, CD 40 p. 1[8]; No. 8417/78, Dec. 4.5.79, D.R. 16

p. 200 [207]).  It does not exclude that witnesses residing abroad

whose presence at the trial cannot be enforced by the trial court are

examined on commission by a court at their place of residence.  This

is a well-established practice provided for in numerous bilateral and

multilateral international conventions.  Its very purpose is to assure

to the greatest possible extent the availability of evidence which

cannot be collected otherwise.

          It is true that in the present case neither the applicant

himself nor his defence counsel were informed of the date of C's

examination in Izmir and that they could not therefore be present

during his examination and put questions to him.  The Commission notes

that no representative of the Augsburg Public Prosecutor's Office

(Staatsanwaltschaft) was present either.  In any event, assuming that

the Turkish law provides for the presence of the accused or his

defence counsel at the examination of a witness on commission, the

German authorities cannot be held responsible for the non-observance

of provisions of the Turkish law by a Turkish court (cf. the analogous

situation in No. 5049/71, Dec. 5.2.73, CD 43 p. 38 [42]).  Moreover,

the Commission notes that the Augsburg Regional Court in its letters

rogatory expressly requested the Turkish authorities to inform it of

the date of C's examination on commission.  Furthermore, Article 6 para. 3 (d)

(Art. 6-3-d) does not require that the defence must always have the opportunity

of directly examining a witness.  According to this provision, the accused has

the right to examine "or have examined" witnesses.  The Commission finds that

this requirement is not only complied with if the accused or his defence

counsel have the opportunity of putting questions to the witnesses themselves,

but also if they can request that certain questions are put to the witness by

the court.  Especially, this holds true if witnesses are to be examined on

commission (cf.  No. 5049/71, supra, p. 43).

        The applicant does not allege that it was impossible or

inappropriate for him to request that in case the applicant or

his defence counsel could not attend the hearing certain specific

questions should be put to C by the Turkish court examining him on

commission regarding C's previous statements to the police which the

applicant's defence counsel had a right to consult.  Nor does the

applicant allege that he made such a request which was then denied.  In these

circumstances, the Commission cannot find that the applicant's right under

Article 6 para. 3(d) (Art. 6-3-d) to have witnesses examined was in any way

impaired.

        Insofar as the applicant submits that his defence counsel was

not informed of the date of C's examination in the Augsburg District

Court on 28 May 1982, the Commission - assuming that this examination

was part of the preliminary investigation directed against the

applicant and not part of a preliminary investigation against C -

points out that the Augsburg Regional Court did not rely on the

evidence taken at that examination.  Consequently, the applicant was

not prejudiced by the absence of his defence counsel.

        The Commission has also examined the question whether, in

respect of the witness C, the applicant's right to a fair hearing of his case

under Article 6 para. 1 (Art. 6-1) of the Convention has been observed by the

Augsburg Regional Court.

         Although this court was not responsible for the examination

of C on commission it is in principle conceivable that the use of the

evidence thereby obtained could be contrary to that provision.

However, the Commission has already found that the applicant's rights

under Article 6 para. 3(d) (Art. 6-3-d) were respected with regard to the

examination of C on commission.  Therefore, the Commission concludes

that the use of his evidence by the Augsburg Regional Court was also

in conformity with the requirements of a fair trial.

         The Commission notes in this respect that C's evidence

before the Turkish court was limited to confirming his previous

statements to the Augsburg police and that the Augsburg Regional Court relied

essentially on those statements.  However, neither Article 6 para. 1

(Art. 6-1) nor Article 6 para. 3(d) (Art. 6-3-d) of the Convention

excludes that the trial court, in order to establish the truth, relies

on indirect evidence (cf. e.g.  No. 8414/78, Dec. 4.7.79, D.R. 17 p.

231 [233]). In particular, neither provision excludes the use of

previous statements which subsequently are confirmed in court.

Moreover, in the present case, the Augsburg Regional Court also took

into account and weighed evidence presented by the defence, viz.  C's

letter of 1 November 1982 and the transcript of C's interrogation by

the applicant's defence counsel in Izmir on 8 May 1983.  The court

also found that C's previous statements which the court considered to

be credible were corroborated by the testimony of another witness.  In

these circumstances, the Commission finds that the trial was fair and

that there has consequently been no violation of Article 6 para. 1

(Art. 6-1) of the Convention.

          The Commission finally finds that there is no appearance of a

violation of either Article 6 para. 1 or Article 6 para. 3(d) (Art. 6-1, 6-3-d)

of the Convention by the fact that the first letters rogatory requesting to

summon C to appear before the Augsburg Regional Court were not accompanied by a

safe-conduct, or by the rejection of the applicant's request to have C examined

by a judge of the Augsburg Regional Court in Istanbul; as the Court correctly

pointed out, foreign authorities may not take evidence in another state unless

prior consent is granted.

          It follows that this part of the application is also

manifestly ill-founded and must be rejected in accordance with 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)