Lexploria

The European Commission of Human Rights sitting in private on

1 December 1986, the following members being present:

MM. C.A. NØRGAARD, President

E. BUSUTTIL

G. JÖRUNDSSON

S. TRECHSEL

B. KIERNAN

A. WEITZEL

J.C. SOYER

H.G. SCHERMERS

H. DANELIUS

G. BATLINER

Mrs G.H. THUNE

Sir Basil HALL

Mr F. MARTINEZ

Mr J. RAYMOND, Deputy Secretary to the Commission

Having regard to Article 25 (Art. 25) of the Convention for the

Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 12 February 1981 by

R.I. and L.S. against the Federal Republic of Germany and registered on

20 December 1984 under file No. 11320/85;

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 R.S. is a German citizen, born in 1940 and

living in Frankfurt/M.

The applicants I. and L.S., both German citizens, are apparently the

parents of R.S. and are represented by him. They were born in 1913 and

1907 respectively and are also living in Frankfurt/M.

I. The first applicant's submissions as regards his complaints

may be summarised as follows:

1. On 8 February 1977 the Regional Labour Court (Landesarbeits-

gericht) in Frankfurt/M. rejected an appeal lodged by the first

applicant against a judgment of the Frankfurt Labour Court

(Arbeitsgericht) dismissing his action by which he had contested the

lawfulness of the notice given to him by his employer. His further

appeal to the Federal Labour Court (Bundesarbeitsgericht) was declared

inadmissible on 6 March 1979. On 24 August 1980 the Federal

Constitutional Court (Bundesverfassungsgericht) rejected the first

applicant's constitutional complaint (Verfassungsbeschwerde) as

inadmissible, being lodged out of time.

2. On 29 October 1980 the Frankfurt Labour Court dismissed

another action brought by the first applicant against his former

employer claiming outstanding wages.

The first applicant lodged a constitutional complaint concerning the

fact that the Labour Court had disregarded his request to adjourn the

examination of his action. The Federal Constitutional Court informed

him by letter of 29 December 1980 that a constitutional complaint

would not be admissible as long as the ordinary remedies had not been

exhausted.

3. On 12 January 1982 the Frankfurt Regional Court (Landgericht)

rejected an appeal lodged by the first applicant concerning the forced

sale of certain real estate at the request of creditors.

The first applicant's constitutional complaint against the forced sale

and the decision of 12 January 1982 was rejected on 15 February 1982

as being inadmissible for lack of substantiation.

4. On 17 March 1982 the first applicant was fined (Strafbefehl)

by the Frankfurt District Court (Amtsgericht) ten rates of 30 DM for

having committed fraud by sending seven letters to the Federal

Constitutional Court upon which already utilised stamps had been

attached. The first applicant lodged an appeal (Einspruch) and was

summoned to appear at a hearing which was to take place on

18 June 1982. It is stated in the summons that the appeal may be

rejected without taking of evidence if the defendant does not attend

the hearing without being excused.

On 18 June 1982 the case was adjourned and another hearing fixed for

30 July 1982. The summons for this hearing contained the warning that

in case the accused failed to attend without justification, a warrant

to appear in court or even a warrant of arrest could be issued.

Meanwhile the first applicant had also been summoned to attend a

hearing on 11 June 1982 concerning a charge of having caused bodily

harm to his father.

In both matters the first applicant's requests to be defended by an

official defence counsel were rejected on the ground that the cases

did not raise any difficult factual or legal issues. His appeals were

to no avail.

The first applicant did not attend the hearing of 11 June 1982. The

District Court fixed a new hearing which was also to take place on

30 July 1982. The Court furthermore ordered that the applicant be

taken to this hearing by police force. In consequence of this order

the applicant was apparently not summoned as it was left to the police

to take him to the hearing.

On 30 July 1982 the first applicant neither appeared at the hearing

concerning the fraud charge, nor was it possible for the police to

arrest him at his home with a view of assuring his attendance at the

hearing on the charge of having caused bodily harm. Consequently a

warrant of arrest was issued on 2 August 1982 stating that the first

applicant was strongly suspected of having committed fraud and bodily

harm and that he had not appeared at the oral hearings of

30 July 1982, although he had been properly summoned. The warrant of

arrest was based on S. 230 para. 2 of the Code on Criminal Procedure

(Strafprozessordnung) providing detention on remand if a defendant

fails without justification to attend his trial. Apparently the two

proceedings had in the meantime been joined by the District Court.

The first applicant appealed against the warrant of arrest stating

that he intended to attend the hearing in the fraud case. As this

hearing was fixed for 12.00 hours he was surprised to hear from

neighbours that the police came to his home early in the morning. The

news disturbed him to such an extent that he felt unable to attend the

hearing in the fraud case. Allegedly he sent someone to the Court

with his excuses but this message did not reach the Court in time. The

appeal was rejected on 20 September 1982 by the Regional Court

(Landgericht). The Court stated that the warrant of arrest was

justified as the first applicant, although summoned, had not attended

the trial fixed for 11 June 1982 and subsequently it had not been

possible to execute an order providing his being taken to court by the

police for the hearing on 30 July 1982.

The first applicant lodged a further appeal (weitere Beschwerde). On

18 October 1982 the Regional Court maintained its decision of

20 September 1982.

The first applicant was arrested on 1 November 1982 on the authority

of the warrant of arrest of 2 August 1982. On 2 November 1982 the

District Court ordered that the applicant's detention should continue.

A hearing was fixed for 15 November and later postponed until

23 November 1982.

It appears that in view of this order of 2 November 1982 the Court of

Appeal no longer considered the applicant's further appeal concerning

the warrant of arrest of 2 August 1982 and stated that the applicant

should now appeal to the Regional Court from the order of

2 November 1982. The applicant's appeal against the order of

2 November 1982 was rejected by the Regional Court on

19 November 1982. The Court stated that the question could be left

undecided whether or not it had been proportionate (verhältnismässig)

to arrest the applicant on 1 November 1982 while the trial was not to

start before 23 November 1982. In any event it was not

disproportionate to maintain the detention four days before the trial

started.

At the hearing on 23 November 1982 he was represented by a chosen

counsel. His request to have his chosen counsel appointed as official

defence counsel was rejected. An appeal against this refusal was

rejected by the Regional Court on 14 December 1982. It appears that

in consequence of the hearing of 23 November 1982 the proceedings

concerning the charge of bodily harm were discontinued while with

regard to the remaining charge of fraud the Court ordered a medical

expert to submit an expert opinion on the question whether the

applicant was criminally responsible.

On 8 February 1985 the first applicant's constitutional complaint

against the warrant of arrest and the Regional Court's decision of

19 November 1982 was rejected by the Federal Constitutional Court as

offering no prospect of success. The Court found that the warrant of

arrest was justified under S. 230 para. 2 of the Code of Criminal

Procedure and that there was nothing to show that the measure was

arbitrary. The length of the first applicant's detention was not, in

the light of all circumstances of the case, disproportionate.

Another constitutional complaint concerning the decisions not to

appoint official defence counsels was rejected as being inadmissible.

5. On 17 February 1984 the first applicant was fined by the

Frankfurt District Court for having insulted certain administrative

court judges. On 26 June 1984 the Frankfurt Regional Court rejected

the applicant's appeal as the applicant did not attend the hearing.

On 10 July 1984 the same Court rejected the first applicant's request

to appoint an official defence counsel. His appeals were to no avail.

On 29 November 1983 the first applicant was likewise fined for insult

of certain witnesses in criminal proceedings against him. His appeal

remained unsuccessful.

The first applicant's constitutional complaint against the

aforementioned decisions was declared inadmissible on 18 November 1985

as lacking substantiation.

The first applicant then unsuccessfully tried to have criminal

proceedings instituted against several persons involved in the

aforementioned proceedings.

II. The first applicant submits the following complaints on behalf

of I. and L.S.:

On 30 August 1983 the Frankfurt District Court, in two separate

decisions containing identical reasons, ordered, in accordance with

the relevant law (Hessisches Freiheitsentziehungsgesetz), that the two

applicants, who had been heard personally, be provisionally committed

to a closed ward of a mental hospital. The Court stated that

according to a medical expert opinion the two applicants were in a bad

state of health and also suffered from senile dementia.

The first applicant lodged appeals on behalf of I. and L.S. against

the orders of 30 August 1983. On 31 October 1983 the Regional Court

decided that the appeals had become without object as the period of

the provisional detention had ended. The two further appeals were

rejected by the Frankfurt Court of Appeal on 15 November 1983 as being

inadmissible. The constitutional complaint was rejected on 16

December 1983 as inadmissible because ordinary remedies were not

properly exhausted.

COMPLAINTS

I. 1. The first applicant complains under Article 5 (Art. 5)

of the Convention of his detention on remand from 1 November to

23 November 1982. He points out that the warning given in the summons

for the hearing of 30 July 1982 was insufficient and irrelevant. The

courts wrongly considered that there had been no valid excuse for his

absence from the oral hearing of 30 July 1982. In these circumstances

his arrest and detention were unlawful and arbitrary.

2. Furthermore he complains under Article 6 (Art. 6) of the

Convention that in the various proceedings before the German labour,

civil and criminal courts he had no fair hearing by an impartial

tribunal. Moreover no action was taken with regard to criminal charges

lodged by him against certain persons. He also invokes Articles 3,

14, 17, 18 (Art. 3, art. 14, art. 17, art. 18) of the Convention and

Article 1 of Protocol No. 1 (P1-1).

II. The applicants I. and L.S. complain that they were

wrongly and arbitrarily committed to a mental hospital. They allege

violations of Articles 3, 5, 6, 13, 14, 17, 18 (Art. 3, art. 5,

art. 6, art. 13, art. 14, art. 17, art. 18) of the Convention and

Article 1 of Protocol No. 1 (P1-1).

THE LAW

1. The applicant complains under Article 5 (Art. 5) of the

Convention of his detention on remand from 1 November to

23 November 1982 in order to enforce his attendance at the trial

of 23 November 1982.

It is true that the arrest and detention of a person effected for the

purpose of bringing him before the competent legal authority on

reasonable suspicion of having committed an offence must be "lawful"

and "in accordance with a procedure prescribed by law" within the

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

However, the scope of review by the Convention organs is limited and

it is in the first place for the national authorities, notably the

courts, to interpret and apply domestic law (see Eur. Court H.R.,

Winterwerp judgment of 24 October 1979, Series A No. 33, paras. 39 and

45/46; Bonazzi v. Italy, Comm. Report 19.3.81, para. 6, D.R. 24

p. 33; No. 9997/82, Dec. 7.12.82, D.R. 31 p. 245).

In the present case the German courts found that the first applicant's

detention on remand was lawful under S. 230 para. 2 of the German Code

of Criminal Procedure. The Frankfurt Regional Court found in

particular that the first applicant had not shown that he had valid

reasons not to attend the hearings on 11 June 1982 and 30 July 1982.

The Commission does not find these decisions to be unreasonable and

is, therefore, satisfied that the first applicant's detention on

remand from 1 to 23 November 1982 was lawful within the meaning of

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

Moreover, the period of the first applicant's detention on remand

which lasted 23 days must not have exceeded the "reasonable time"

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

Commission, in this respect, observes that the first applicant's

detention on remand was ordered to enforce his attendance at a trial

concerning charges of fraud and assault on the grounds that he had

twice failed to attend hearings though duly summoned and that on

30 July 1982 the police could not enforce the order that he be taken to

court. The Federal Constitutional Court found in particular that the

length of the first applicant's detention on remand was not, in the

light of all circumstances of the case, disproportionate. The

Commission considers that there is nothing in the case-file to

indicate that the length of the first applicant's detention on remand

was disproportionate and thus contrary to Article 5 para. 3

(Art. 5-3) 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.

2. The Commission has examined the applicant's further

complaints and the other applicants' complaints as they have been

submitted by them. However, the Commission finds no appearance of a

violation of the rights and freedoms set out in the Convention.

It follows that the application is, in these respects, manifestly

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

of the Convention.

For this reason, the Commission

DECLARES THE APPLICATION INADMISSIBLE.

Deputy Secretary to the Commission President of the Commission

(J. RAYMOND) (C.A. NØRGAARD)

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S. v. THE FEDERAL REPUBLIC OF GERMANY

S. v. THE FEDERAL REPUBLIC OF GERMANY

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