Lexploria

The European Commission of Human Rights sitting in private on

13 October 1986, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

F. ERMACORA

E. BUSUTTIL

G. JÖRUNDSSON

G. TENEKIDES

S. TRECHSEL

B. KIERNAN

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.C. SOYER

H.G. SCHERMERS

H. DANELIUS

G. BATLINER

J. CAMPINOS

Mrs G.H. THUNE

Sir Basil HALL

Mr. F. MARTINEZ

Mr. H.C. KRÜGER, Secretary to the Commission

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

Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 25 September 1985 by

Z.Y. against the Federal Republic of Germany and registered on 3

January 1986 under file No. 11915/86;

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 Turkish citizen, born in 1947 and living in

Neckarsulm-Obereisesheim, Federal Republic of Germany. She is

represented by Mr N. Wingerter, a lawyer practising in Heilbronn.

In December 1981 private prosecution proceedings (Privatklage) were

instituted against the applicant by a neighbour who alleged to have

been insulted by her. According to the plaintiff the applicant had on

3 July 1981 made a gesture (touching her forehead with her forefinger)

which indicated that she considered the plaintiff to be stupid. On

7 June 1985 the Heilbronn District Court (Amtsgericht) discontinued

the proceedings in accordance with Section 383 (2) of the Code on

Criminal Procedure (Strafprozessordnung)*. The defendant was ordered

to pay the costs of the proceedings while each party had to bear its

necessary expenses.

The reasons given for the order of 7 June 1985 read as follows:

"The private prosecutor (Privatkläger) submits that on 3 July 1981 the

defendant (Privatbeklagte) made a gesture towards her imputing

stupidity (... den "Vogel" gezeigt ...) She named Mrs H as witness

for her allegation. The defendant denies the accusation.

According to a provisional assessment (vorläufige Bewertung) the court

considers the private prosecutor's allegations to be credible

(glaubhaft).

Nevertheless a punishment (Ahndung) does not appear to be necessary.

Rather, the defendant's fault (Verschulden) may be considered

insignificant. Both parties apparently live close to each other.

Quarrels often occurred. The defendant submitted that the private

prosecutor often hit her children.

In these circumstances a trial was not necessary and it could be

proceeded with in accordance with Section 383 (3) Code on Criminal

Procedure given the insignificance of the fault of the offender (...

bei geringer Schuld der Täterin).

However, the costs of the proceedings had to be imposed on the

defendant. In accordance with Section 471 (3) Code on Criminal

Procedure it appeared equitable that each party bear its necessary

expenses."

The applicant's immediate appeal (sofortige Beschwerde) was rejected

by the Heilbronn Regional Court (Landgericht) on 9 July 1985 at the

applicant's expense. Without stating further reasons the Regional

Court simply confirmed the reasons stated in the order appealed from.

_______________

* Which reads: If the defendant's fault is insignificant,

the court may discontinue the proceedings. The proceedings can still

be discontinued after the trial has started. The order can be

appealed from. (Ist die Schuld des Täters gering, so kann das Gericht

das Verfahren einstellen. Die Einstellung ist auch noch in der Haupt-

verhandlung zulässig. Der Beschluss kann mit sofortiger Beschwerde

angefochten werden.)

_______________

COMPLAINTS

The applicant first complains that despite repeated interventions of

her counsel, 42 months elapsed before the trial court considered her

case.

She further complains that the decision on costs violates her right to

be presumed innocent.

She invokes Article 6 paras. 1 and 2 (art. 6-1, art. 6-2) of the

Convention.

Referring to three decisions given by groups of three judges of the

Federal Constitutional Court on 2 February 1982 (2 BvR 1312/81),

20 July 1984 (2 BvR 790/84) and 26 November 1984 (2 BvR 627/84)*,

rejecting similar complaints, the applicant argues that a

constitutional appeal did not in her case constitute an effective

remedy in view of the Federal Constitutional Court's jurisprudence on

the subject matter.

THE LAW

The applicant has complained of the length of private prosecution

proceedings against her and of the decision on costs given in

connection with the order discontinuing these proceedings. This

decision is, according to her argument, similar to a conviction.

It is true that Article 6 paras. 1 and 2 (art. 6-1, art. 6-2) of the

Convention secure to everyone charged with a criminal offence the

rights to a speedy trial and to be considered innocent until final

conviction.

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 applicant failed to raise her complaints

before the Federal Constitutional Court invoking Articles 20 and 103

of the Basic Law (Grundgesetz) and has, therefore, not exhausted the

remedies available to her under German law. Moreover, an examination

of the case as it has been submitted, including an examination made ex

officio, does not disclose the existence of any special circumstances

which might have absolved the applicant, according to the generally

recognised rules of international law, from exhausting the domestic

remedies at her disposal.

The decisions of the Federal Constitutional Court referred to by the

applicant do not show that a constitutional appeal would not, in the

present case, have offered any prospects of success as regards the

alleged violation of the principle of presumption of innocence.

_______________

* Submitted by the applicant's counsel in the cases of Englert

(No. 10282/83), Lutz (No. 9912/82) and K (No. 11585/85).

_______________

The decisions of 2 February 1984 (2 BvR 1312/81) and of 26 November

1984 (2 BvR 627/84) concern orders discontinuing regulatory offence

proceedings (Bussgeldverfahren) and refusing reimbursement of the

defendant's necessary expenses on grounds indicating that a conviction

was likely. The decision of 20 July 1984 (2 BuR 790/84) concerns an

order refusing compensation for prosecution matters.

The present applicant was not only refused reimbursement of her

necessary expenses but she was ordered to pay the costs of the

proceedings. Furthermore, unlike the decisions referred to, the

decision complained of in the present case mentions the applicant's

fault (Verschulden) which is considered to be insignificant.

The case at issue is therefore distinguishable from the facts

underlying the cases cited by the applicant which had previously been

submitted to the Federal Constitutional Court. Moreover, the Federal

Constitutional Court rejected the complaints in question without

considering the merits of those cases.

It cannot, in these circumstances, be concluded from the above

decisions given by groups of three judges of the Federal

Constitutional Court that a constitutional appeal on behalf of the

applicant would not have offered any prospects of success.

It follows that the applicant has not complied with the condition as

to the exhaustion of domestic remedies and her application must

therefore 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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Y. v. THE FEDERAL REPUBLIC OF GERMANY

Y. v. THE FEDERAL REPUBLIC OF GERMANY

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