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M. B. v. THE FEDERAL REPUBLIC OF GERMANY

Doc ref: 12668/87 • ECHR ID: 001-485

Document date: May 8, 1987

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Cited paragraphs: 0
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M. B. v. THE FEDERAL REPUBLIC OF GERMANY

Doc ref: 12668/87 • ECHR ID: 001-485

Document date: May 8, 1987

Cited paragraphs only

AS TO THE ADMISSIBILITY OF

Application No. 12668/87

by M.B.

against the Federal Republic of Germany

The European Commission of Human Rights sitting in private on

8 May 1987, the following members being present:

MM. C.A. NØRGAARD, President

G. SPERDUTI

F. ERMACORA

G. JÖRUNDSSON

S. TRECHSEL

B. KIERNAN

A.S. GÖZÜBÜYÜK

A. WEITZEL

H.G. SCHERMERS

G. BATLINER

H. VANDENBERGHE

Mrs G.H. THUNE

Sir Basil HALL

Mr. F. MARTINEZ

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 25 November 1986

by M.B. against the Federal Republic of Germany and

registered on 26 January 1987 under file No. 12668/87;

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

The facts of the case, as they have been submitted by the

applicant, may be summarised as follows.

The applicant, born in 1965, is a German national and resident

at B. He is a baker by profession. Before the Commission he is

represented by Mr. W. Both, a lawyer practising at Rotenburg.

On 24 July 1985 the Rotenburg District Court (Amtsgericht)

fined the applicant for aggression and reckless driving (Nötigung und

gefährlicher Eingriff in den Strassenverkehr) committed in October

1984. The Court moreover prohibited the applicant from driving motor

vehicles for the period of one month. In these and the following

proceedings the applicant was represented by Mr. Both.

On 27 November 1985 the Rotenburg District Court fined the

applicant again for aggression and reckless driving (Nötigung und

fahrlässige Gefährdung des Strassenverkehrs) committed in March 1985.

Furthermore the Court withdrew the applicant's driving licence and

ordered that he should not be issued a new driving licence until the

expiry of six months.

On 19 March 1986 the Kassel Regional Court (Landgericht)

dismissed the applicant's appeals (Berufungen) against the judgments

of 24 July and 27 November 1985. The Court confirmed the withdrawal

of the driving licence and the order that no new licence should be

issued until the expiry of further six months. The Court, having

regard to the particular circumstances of the applicant's case,

refused to credit the period of time, which had elapsed since the

judgment of 27 November 1985, towards this blocking period

(Sperrfrist). Under S. 69 (a) para. 5 of the German Criminal Code

(Strafgesetzbuch) the blocking period starts after the final judgment.

However, the Court cancelled the one month's prohibition on driving

motor vehicles.

On 15 May 1986 the Federal Constitutional Court (Bundesver-

fassungsgericht) refused to admit the applicant's constitutional

complaint (Verfassungsbeschwerde) on the ground that it offered no

prospect of success.

COMPLAINTS

The applicant complains under Article 6 of the Convention that

the Regional Court's judgment of 19 March 1986 was unfair on the

ground that the blocking period was in fact prolonged. He considers

that his right to appeal was thereby prejudiced.

THE LAW

The applicant complains under Article 6 (Art. 6) of the Convention of

the Regional Court's judgment of 19 March 1986. He considers that the

Court's decision not to credit the period of the appeal proceedings

towards the blocking period rendered the proceedings unfair and

prejudiced his right to appeal.

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

to everyone charged with a criminal offence the right to a fair hearing.

The Commission recalls that Article 6 para. 1 (Art. 6-1) is in

principle applicable to proceedings before courts of appeal or of cassation

(Eur. Court H.R., Axen judgment of 8 December 1983, Series A no. 72 p. 12).

However, the Commission has already held that, in appeal proceedings, the risk

of a factual prolongation of a blocking period concerning a driving licence,

which follows from S. 69 (a) para. 5 of the German Criminal Code, does not

constitute a factor contrary to Article 6 para. 1 (Art. 6-1) of the Convention

affecting the accused's decision on the pursuit of his appeal, at least if, as

in the present case, appeal proceedings do not last longer than the blocking

period (No. 9177/80, Dec. 6.10.1981, D.R. 26 p. 255).

In the present case, the Commission notes in particular that

the applicant had the possibility of lodging an appeal against his

conviction and sentence and that he has availed himself of that

remedy. The Commission finds nothing in the case-file to indicate

that the applicant, who was represented by a defence counsel, could

not properly avail himself of his right to appeal or, in particular,

could not properly present his arguments as regards the decision on

the blocking period. Furthermore, he does not allege that the appeal

proceedings were otherwise unfairly conducted.

The Commission concludes that there is no appearance of a violation of

the applicant's rights under Article 6 (Art. 6) of the Convention. It follows

that his 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)

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