Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 11863/85

by A.B.

against the Federal Republic of Germany

The European Commission of Human Rights sitting in private

on 4 May 1987 the following members being present:

MM. C. A. NØRGAARD, President

E. BUSUTTIL

G. JÖRUNDSSON

S. TRECHSEL

B. KIERNAN

A. S. GÖZÜBÜYÜK

A. WEITZEL

H. G. SCHERMERS

H. DANELIUS

G. BATLINER

Mrs. G. H. THUNE

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 17 October 1985

by A.B. against the Federal Republic of Germany and registered

on 27 November 1985 under file N° 11863/85.

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 applicant is a German citizen born in 1954 and residing in

Oldenburg. He is represented before the Commission by Mr D. Kaut, a

lawyer practising in Hamburg.

On 9 November 1977, the applicant was convicted by the Berlin

Regional Court (Landgericht) of several cases of robbery and

sentenced to ten years' imprisonment. A request for retrial (Antrag

auf Wiederaufnahme) was admitted by the Regional Court, but finally

rejected as being unfounded on 29 January 1982. The applicant's

appeal was of no avail.

A second request for retrial was filed on 9 September 1985.

After the termination of the first proceedings for retrial,

the Public Prosecutor's Office (Staatsanwaltschaft) in Berlin

instituted preliminary investigations against witnesses and also

against the applicant on suspicion of instigation of false testimony.

It is unclear when the applicant was informed for the first time of

these charges. In any event, after having consulted the file

concerning these investigations the applicant's lawyer reported to the

applicant by letter of 23 January 1984.

On 26 June 1984 a certain K, who was charged with being an

accomplice of the applicant in the robbery cases, gave evidence in the

new investigation proceedings directed against the applicant. K

stated that only after a confrontation with the applicant would he be

able to tell whether the person who had introduced himself to K as

"Brumme" was in fact identical with the applicant.

Thereupon, on 23 August 1984, the applicant's lawyer requested

the Public Prosecutor's Office in Berlin that K be confronted with the

applicant. This request was repeated several times, the applicant's

lawyer pointing out that the result of this confrontation might be of

relevance not only to the investigation proceedings but also to a

possible request for retrial relating to the applicant's conviction

for robbery.

By letter of 8 February 1985 the Public Prosecutor's Office

informed the applicant's lawyer that it did not, for the time being,

envisage confronting K with the applicant. Thereupon, on 14 February

1985, the applicant's lawyer lodged a hierarchical complaint with the

Chief Public Prosecutor (Generalstaatsanwalt), which was rejected on

23 April 1985. He complained about this decision to the Berlin

Minister of Justice and Federal Affairs (Senator für Justiz und

Bundesangelegenheiten) on 26 April 1984, again requesting that the

applicant be confronted with K.

This complaint was again rejected by the Chief Public

Prosecutor on 10 July 1985. In the meantime, on 26 June 1985, the

Public Prosecutor's Office had informed the applicant's lawyer of its

reasons for not carrying out the requested confrontation. It

considered that even a favourable result of such a confrontation would

be of no relevance to the preliminary investigation against the

applicant.

Following the rejection of his complaint by the Chief Public

Prosecutor, the applicant's lawyer, on 12 August 1985, applied to the

Berlin Court of Appeal (Kammergericht) for a court decision in

accordance with S. 23 of the Introductory Act to the Judicature Act

(Einführungsgesetz zum Gerichtsverfassungsgesetz). However, the Court

of Appeal dismissed this application as inadmissible, stating that the

confrontation requested by the applicant was not an act of judicial

administration subject to its review by virtue of this provision.

Rather, it was a step in the course of the investigation proceedings,

which are to be considered, as a whole, by the courts after formal

indictment.

By February 1986, the Public Prosecutor's Office, after having

resumed its investigations which had been discontinued in the

meantime, had formally indicted the applicant for instigation of false

testimony, and by the end of March 1987 it has been decided that the

case should go to trial before the Tiergarten District Court

(Amtsgericht).

COMPLAINTS

The applicant complains that the Public Prosecutor's Office

refused to accede to his repeated requests to be confronted with K.

He submits that a possible favourable result, viz. that he would not

be recognised by K, would be reduced in value in view of the time

factor if the confrontation was carried out later or only at the

trial. However, the Public Prosecutor's Office was under a duty also

to collect exonerating evidence. Moreover, if he was not recognised

by K, this result would be of relevance also to his request for

retrial relating to his conviction for robbery.

The applicant invokes Article 6 of the Convention.

THE LAW

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

refusal by the Public Prosecutor's Office to confront him with a

certain witness.

1. In so far as the applicant submits that this confrontation

could be of relevance to his request for a retrial in relation to an

offence of which he had previously been convicted, the Commission

recalls its constant case-law according to which Article 6 (Art. 6) of the

Convention does not apply to proceedings concerning requests for

retrial, given that someone who applies for his case to be re-opened

after his conviction has become final, is not someone "charged with a

criminal offence" within the meaning of the said Article (see e.g. No.

864/60, Dec. 10.3.62, C.D. 9 p. 17 <21>; No. 1237/61, Dec. 5.3.62,

Yearbook 5 p. 96 <102>; No. 7761/77, Dec. 8.5.78, D.R. 14 p. 171

<173>).

Accordingly, the application falls outside the scope of the

Convention in so far as the complaints relate to the question of a

retrial. In this respect, it must therefore be rejected as

incompatible ratione materiæ with the Convention within the

meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

2. The Commission notes, however, that the request for

confrontation was made by the applicant in the course of a preliminary

investigation directed against him. The applicant must have been

informed of this investigation by January 1984 at the latest.

Accordingly, he may, in respect of these proceedings, be considered as

a person charged with a criminal offence within the meaning of

Article 6 (Art. 6) from that time.

Article 6 (Art. 6) of the Convention, in its first paragraph, secures

to everyone charged with a criminal offence the right to a fair and

public hearing within a reasonable time by an independent and

impartial tribunal established by law. Additionally, Article 6 para. 3

(Art. 6-3) provides for certain minimum rights of an accused person.

However, the Commission is not required to decide whether or

not the facts alleged by the applicant disclose any appearance of a violation

of these provisions as, under Article 26 (Art. 26) of the Convention, it may

only deal with a matter after all domestic remedies have been exhausted

according to the generally recognised rules of international law.

In the present case the criminal charge against the applicant

has not yet been determined. However, the question of compliance with

the requirements of fair trial must be decided on the basis of an

evaluation of the trial as a whole, and not on the basis of an

isolated consideration of one particular aspect of the trial or one

particular incident (cf. Nielsen v. Denmark, Comm. Report 15.3.61,

Yearbook 4 p. 494 <548, 550>; No. 4991/71, Dec. 18.7.73, Collection

45 p. 1 <12>; No. 5574/72, Dec. 21.3.75, D.R. 25 p. 10 <16>; Can v.

Austria, Comm. Report 12.7.84, para. 48, Eur. Court H.R., Series A No.

96 p. 48). This principle holds true not only for the application of the

concept of fair trial as such, as laid down in Article 6 para. 1 (Art. 6-1),

but also for the application of the specific guarantees laid down in Article 6

para. 3 (Art. 6-3) (Can v. Austria, supra).

It follows from these considerations that in the present case

the question whether the fairness of the trial is impaired by the

refusal of the applicant's request to be confronted with K. at this

stage of the preliminary investigation has to be decided by the trial

court. In the proceedings before that court, the applicant has the

opportunity of raising any complaints about the deficiencies in the

preliminary investigation, including the failure to confront him with

K. As long as this matter has not been brought before the trial

court, the applicant has not exhausted the domestic remedies at his

disposal.

It follows that the application must in this respect be

rejected under Article 27 para. 3 (Art. 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)

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A. B. v. THE FEDERAL REPUBLIC OF GERMANY

A. B. v. THE FEDERAL REPUBLIC OF GERMANY

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