The European Commission of Human Rights sitting in private on

17 July 1986 the following members being present:

                 MM. C.A. NØRGAARD, President

                      J.A. FROWEIN

                      F. ERMACORA

                      G. TENEKIDES

                      S. TRECHSEL

                      B. KIERNAN

                      A.S. GÖZÜBÜYÜK

                      A. WEITZEL

                      J.C. SOYER

                      H.G. SCHERMERS

                      H. DANELIUS

                      G. BATLINER

                      H. VANDENBERGHE

                  Mrs G.H. THUNE

                  Sir Basil HALL

                   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 14 November 1984 by

H.F. against the Federal Republic of Germany and registered

on 20 November 1984 under file No. 11255/84;

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 apparently not in dispute between the parties may be

summarised as follows.

The applicant is a German citizen, born in 1933 and living in Kedem.

He is represented by Messrs H. Millinger and Partners, lawyers in

Essen.

1. Original charge and first trial

On 15 June 1981 the applicant was convicted by the Regional Court

(Landgericht) in Duisburg of attempted continued tax evasion

(versuchte fortgesetzte Steuerhinterziehung) and of bankruptcy

(Bankrott) in two cases and sentenced to a global sentence of two

years and six months' imprisonment.  He was acquitted on another

charge of bankruptcy.  A co-accused, Mr W, was convicted of attempted

tax evasion and acquitted on other charges, and another co-accused, Mr

B, was acquitted.  Following an appeal on points of law (Revision)

lodged by the Public Prosecutor, the Federal Court (Bundesgerichtshof)

amended the judgment of 15 June 1981 to the effect that the applicant

was guilty of two cases of fraudulent breach of trust (Untreue)

instead of bankruptcy.  Therefore the Federal Court quashed the

sentence concerning the two cases as well as the global sentence.

It also quashed the judgment in so far as it acquitted the applicant

of a further charge of bankruptcy, and the two co-accused of a charge

of being accomplices to bankruptcy.  To the extent the judgment was

quashed the cases were sent back for a new trial.  The Federal Court's

decision was given on 24 March 1982.

2. The remaining charge which had to be determined in a second

trial

The charge of bankruptcy of which the applicant had been acquitted in

first instance, and which had to be retried according to the Federal

Court, related to the following facts.  In November 1973 the applicant

had taken over shares of a company dealing with petrol. In his

capacity of Managing Director of this company, called Union-Mineralöl

GmbH (hereinafter called "Union"), he concluded a contract with a

foreign company called Intercommercial and Finance Corporation

(hereinafter called "Intercommercial"), based in Panama, on 2 February

1974, by which Intercommercial undertook to supply Union with 600,000

tons of ordinary petrol and 600,000 tons of four-star petrol

(Superbenzin) in monthly part deliveries of 10,000 tons each. As a

guarantee for its buyer obligations, Union accepted to deposit six

million DM abroad immediately. 4,200,000 DM were accordingly

transferred.  The remainder could not be transferred as Union's German

accounts were eventually seized on account of important tax arrears.

The trial court in its jugment of 15 June 1981 found that there was

not sufficient evidence that the applicant knew when concluding the

contract of 2 February 1974 that Union was already heavily indebted.

It could not be excluded that he considered the company's debts to be

outbalanced by its real-estate properties. Therefore, although the

company was in difficulties, and although an increase of its turnover,

in the circumstances, would only have increased its losses, it could

not be concluded that the applicant accepted the agreement of

2 February 1974 knowing that his company was near to insolvency

(Zahlungsunfähigkeit).

The Federal Court considered that the transaction in question might

have constituted a breach of trust (Untreue).  The Court pointed out

that the contract of 2 February 1974 was possibly fictitious but in

any event appeared to be commercially disadvantageous for Union. The

risk of losing the guarantee deposit of six million DM was high in

view of Union's financial difficulties.  It therefore had to be

examined whether or not the applicant had, by concluding the contract

of 2 February 1974, exceeded the limits of customary (verkehrsübliche)

risks normally connected with comparable transactions.  In this

connection it was of little importance whether other companies

accepted similar conditions at the relevant time.  Rather, account had

to be taken of Union's bad financial situation and of the applicant's

strategy to expand the business by concluding contracts which in the

end only caused financial losses to his company.  Even if at the

relevant time he did not yet reckon with the company's insolvency he

already knew about the possibility of measures being taken by the tax

authorities against the company on account of tax arrears.  Therefore,

the payment of the guarantee appeared to be a transaction of which the

applicant knew that it was likely to cause damage to Union.  In fact

when the company went bankrupt in June 1974 the sum of 4.2 million DM

already transferred abroad could no longer be recuperated.

Therefore, even if there was not enough evidence to convict the

applicant on another count of bankruptcy it had to be examined whether

the transaction in question constituted a breach of trust committed to

the disadvantage of Union.

3. The second trial

On 11 November 1982 the applicant was summoned to attend the new trial

the beginning of which was fixed for 28 February 1983. Further

hearings were envisaged for 2, 9, 11, 14, 18, 25 and 31 March and 8

and 15 April.  About two weeks before the beginning of the trial the

applicant's chosen defence counsel, Mr Hütsch, who was, as the

applicant submits, acquainted with the case and its economic

background, fell ill and his office so informed the trial court.

On 21 February 1983 the trial court's presiding judge, Mr Rutsch,

telephoned Mr François, a partner of Mr Hütsch, to find out whether Mr

Hütsch would be able to attend the trial.  He was informed that Mr

Hütsch would probably not be fit to attend the trial on 28 February

and that no other lawyer was prepared to defend the applicant.  On

Friday 25 February the trial court informed Mr Hütsch's office by

telephone that the applicant should appear on Monday 28 February and

that a legal aid defence counsel would be appointed for him.

On 28 February the applicant requested to suspend the trial but his

request was rejected and the appointment, made on that day, of a legal

aid counsel, Mrs Heck-Kammerichs, was maintained.  The applicant

complained and requested the court to appoint Mr François as his

official defence counsel.  This request was rejected as Mr François

had declared he was too busy to take on a new case.  The trial was,

however, adjourned until 9 March 1983 in order to allow the official

counsel to acquaint herself with the case.

After hearings on 28 Februay, 9, 14 and 18 March 1983 the applicant

was convicted on an additional count of breach of trust in relation to

the transaction of 2 February 1974.  The Court found that the

applicant knew at the end of 1973 that Union was heavily indebted.

Nevertheless he increased the turnover selling at losses in order to

pay off arrears of taxes, increasing however the current tax

obligations.  It later turned out that the losses as per 22 July 1974

amounted to 17,600,000 DM.  In these circumstances the Court

considered that the applicant was aware that the contract of 2

February 1974 created an unusual risk for his company (Union) and the

danger of substantial damages.  Consequently the transaction

constituted a breach of trust.  The Court refused to hear an expert on

the question whether the contract of 2 February 1974 was economically

reasonable.  It considered itself to be sufficiently experienced to

decide this question without the aid of an expert and found that in

the given circumstances the unreasonableness of the contract in

question was obvious to any economically minded person.

The global result of the criminal proceedings consequently was that

the applicant was convicted of attempted continued tax evasion and of

breach of trust (Untreue) in three cases.  In fixing the sentence the

Court considered in the applicant's favour that he had never been

convicted before and had not committed further offences since.  The

important damages caused by the applicant were considered as an

aggravating factor.  He was again given a global sentence of two years

and six months' imprisonment.

His appeal on points of law was rejected by the Federal Court on

6 July 1984 as being unfounded.

4. Constitutional appeal

The applicant then lodged a constitutional appeal

(Verfassungsbeschwerde) complaining that at the second trial he was

not defended by counsel of his choice and that he was not adequately

defended due to lack of time for the preparation of his defence and

lack of experience of the official defence counsel.

On 13 September 1984 a group of three judges of the Federal

Constitutional Court (Bundesverfassungsgericht) rejected the

applicant's constitutional appeal as offering no prospects of success.

It is pointed out in the decision that the facts and legal issues had

already been clarified in the previous criminal proceedings and that

the matter had been narrowed down by the preceding judgment of

15 June 1981 and the Federal Court's decision of 24 March 1982, and

that in these circumstances the trial court did not act arbitrarily

considering that the time given to the official defence counsel for

the preparation of the defence was sufficient.  In this context the

trial court not only had to consider the applicant's interest in

having adequate time for the preparation of his defence and in being

defended by a chosen counsel but also the general interest, and the

interest of the co-accused to have the charges determined within a

reasonable time.

COMPLAINTS

The applicant complains that shortly before the second trial started

he was imposed an official counsel who did not have sufficient time to

prepare his defence.  He also alleges that his official defence

counsel was young and  inexperienced.  He submits that due to other

business his official defence counsel had on 14 March 1983 still not

had the time to examine the files.  He alleges a violation of

Article 6 paras. 1 and 3 (a) - (c) (Art. 6-1, art. 6-3-a, art. 6-3-c)

of the Convention.

He further complains that the trial court rejected his request to

obtain an expert opinion on the question whether the contract of

2 February 1974 between Union and Intercommercial was reasonable from

an economic point of view.

The applicant considers that the trial court did not have the expert

knowledge to decide the issue in question.  As, furthermore, he was

not in a position to defend himself adequately, he concludes that his

conviction violates Article 6 para. 1 (Art. 6-1) of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

On 21 March 1985 the Commission's Rapporteur, having made a

preliminary examination of the case, requested further information

from the applicant in accordance with Rule 40 para. 2 (a) of the

Commission's Rules of Procedure.  Subsequently the Commission decided

on 1 July 1985 to communicate the application to the respondent

Government for observations on admissibility and merits.  The

Government's observations were, after extension of the time limit,

submitted on 5 December 1985 and the applicant's reply arrived on

30 January 1986.

SUMMARY OF THE PARTIES' OBSERVATIONS

I. The respondent Government

1. As to the facts

It is pointed out that when the Federal Court partially quashed the

first judgment of 15 June 1981 and sent the case back for a new trial,

this new trial only concerned the transaction of 2 February 1984 and

the fixing of a new global sentence.  Thus the fact finding task of

the trial court as well as the remaining issue as such were

considerably narrowed down.  Therefore the trial took less time than

expected, only three days of hearings were needed.

It is further pointed out that on 17 January 1983 the trial court

asked the defence and the Public Prosecutor whether they wished that

witnesses be summoned for the trial.  The applicant's counsel replied

on 21 January 1983 that he would submit comments after his return from

holiday on 5 February 1982.  No such comments were however submitted

while at the Public Prosecutor's request three witnesses were

summoned.  Having received on 17 February 1983 the information that

the applicant's defence counsel had fallen ill the trial court's

president, according to a written statement signed by him, telephoned

counsel's office on 21 February 1983 and discussed the matter with Mr

François, the applicant's counsel's partner.  He was told that the

applicant's counsel, Mr Hütsch, was suffering from lumbo-sciatica and

would probably not be able to work for about two months.

The President discussed the possibility of disjoining the applicant's

case from that of the co-accused and of postponing it.  He states that

he no longer remembers the exact contents of the conversation but

excludes that he gave any binding assurance that the applicant's case

would be dealt with separately at a later stage.  The President

further points out in his statement that at the trial of

9, 14 and 18 March 1983 the applicant pleaded on the merits and no

longer repeated his former objections concerning the official defence

counsel and the lack of time for the preparation of the defence.

2. Exhaustion of domestic remedies

The applicant did not raise the complaint about the refusal to hear an

expert on the reasonableness of the contract of 2 February 1974

(between Union and Intercommercial) before the Federal Constitutional

Court.

As regards the complaint on the alleged insufficiency of the

applicant's defence it is pointed out that the applicant failed,

during the trial, to repeat his complaint that - despite the

adjournment from 28 February 1983 to 9 March 1983 - his defence

counsel had neither adequate time nor sufficient experience to prepare

his defence.

Therefore domestic remedies were not exhausted, with regard to both

complaints.

3. On the merits

As the trial court carefully considered all the circumstances relating

to the conclusion of the agreement of 2 February 1974, it was in a

position to decide whether or not Union's undertaking to deposit a

guarantee of six million DM was reasonable.  The refusal to hear an

expert on this question was lawful and justified and in no way

arbitrary.

The applicant did have sufficient time and opportunity to prepare his

defence.  As was already pointed out by the Federal Constitutional

Court the facts and issues had been narrowed down by the first trial

and the Federal Court's judgment.

The applicant knew from the previous proceedings which questions had

to be dealt with at the new trial.  He was summoned for this trial

three months in advance.  After having been informed that his chosen

defence counsel was ill he could and should have prepared his defence

himself.  Furthermore the offical defence counsel had sufficient time

from 28 February until 9 March 1893 to prepare the defence.  In view

of the first trial court judgment of 15 June 1981 and the Federal

Court's decision of 24 March 1982, it was easy for the official

defence counsel to familiarise herself with the case and the factual

or legal problems it still raised.

As the proceedings not only concerned the applicant but also two

co-accused, the necessity to determine the charges within a reasonable

time excluded a further adjournment, which was in any event not

requested after this trial started on 9 March 1983.

There was nothing to show that the official defence counsel neglected

her obligation to defend the applicant in an effective manner.  She

submitted several motions for the taking of evidence and thus did all

which she and also the applicant himself considered necessary for the

defence.

The applicant was not prevented from choosing himself another defence

counsel or from complaining to the court that the official defence

counsel neglected her obligation to defend him in an adequate manner.

He did not, however, raise any such objections during the trial.

II. The applicant

1. As to the facts

The applicant submits a statement of counsel Helge Millinger according

to which the applicant's official defence counsel repeatedly told him

at the trial that she did not have sufficient time to prepare the

case.  He also refers to a statement of his chosen counsel's partner,

Mr François, according to which the time given to the official defence

counsel for the preparation of the defence was insufficient.

Mr François furthermore states that the trial court's presiding judge

told him during the telephone conversation on 21 February 1983 that he

saw no other solution than to sever the proceedings against the

applicant from those against the co-accused and to hold the

applicant's trial at a later date as in view of the complexity of the

case there was not sufficient time to have the defence prepared by an

official defence counsel.

2. Exhaustion of domestic remedies

Domestic remedies were fully exhausted by way of a constitutional

appeal.

It is alleged that the constitutional appeal having been directed

against the judgments given in the criminal proceedings the Federal

Constitutional Court could and should have examined ex officio whether

or not the refusal to hear an expert violated constitutional rights.

3. On the merits

The trial court failed to establish all circumstances which would have

been relevant to decide the question whether the contract of 2

February 1974 had, from an economical point of view, been reasonable.

Therefore it violated the right to a fair trial by not obtaining an

expert opinion on this question.

As the applicant had no personal confidence in his official defence

counsel, who was not sufficiently experienced to deal with a

complicated commercial matter, the court should have granted his

request to adjourn the proceedings.  In any event he cannot be blamed

for not having himself prepared his defence as he first trusted that

he would be defended by Mr Hütsch, and when this counsel fell ill, he

trusted that the trial court would adjourn his case, in accordance

with the assurance given to Mr François by the trial court's

President.  The applicant argues that in his statement submitted by

the Government the President has not clearly denied having given the

assurance in question.

He submits that the second trial in 1983 concerned complex events

which took place many years before.  Therefore an adequate defence was

possible only after careful examination of the files and sufficient

experience with regard to commercial activities in the petrol market.

The official defence counsel had neither sufficient time nor

sufficient experience to deal with his case.  It was therefore

necessary and also possible to sever his case and adjourn the trial

against him.

Finally he argues that the alleged violation does not depend on the

establishment of concrete disadvantages sustained as a consequence of

the insufficiency of his defence.

THE LAW

1. The applicant has first complained under Article 6 (Art. 6) of

the Convention that he did not have adequate time and opportunity to

prepare his defence at the second trial which had been fixed to begin

on 28 February 1983.  He complains that the trial court's decision to

appoint an official defence counsel for him against his will took him

by surprise because he had expected that the trial against him would

be adjourned until his chosen defence counsel was fit to take up the

defence again.

The respondent Government argue that the applicant's objections raised

on 28 February 1983 were taken into consideration in that the trial

was adjourned until 9 March 1983 in order to give the official defence

counsel the opportunity to examine the case and prepare the defence.

When the trial eventually began on 9 March 1983 and continued on

14 and 18 March the applicant pleaded his case and no longer

complained that it had not been possible to prepare his defence in an

adequate manner.  He therefore did not exhaust all available domestic

remedies, as under Section 265 (4) of the Code on Criminal Procedure

he could have made a request to stay the proceedings.

The Commission notes however that the applicant raised the present

complaint before the Federal Constitutional Court.  This Court did not

reject the constitutional appeal on the formal ground of

non-exhaustion of available ordinary remedies but on the ground that

it lacked chances of success.  The complaint was consequently

considered by the Federal Constitutional Court and the applicant must

in these circumstances be considered to have exhausted domestic

remedies in accordance with Article 26 (Art. 26) of the Convention.

As regards the substance of his complaint the Commission agrees with

the Federal Constitutional Court and the respondent Government's

submissions that the remaining charge which had to be determined at

the second trial no longer raised manifold and complex issues of fact

or law.  The facts had to a great extent been established at the

preceding trial and the Federal Court had in its judgment of

24 March 1982 delimited the legal problem which remained to be

examined.

On the basis of the Federal Court's decision it must have been clear

to any lawyer but also to the applicant as an experienced businessman

what would be the subject-matter of the second trial.  The Commission

notes that the applicant was already informed on 2 November 1982 of

the date on which the second trial would begin, i.e. on 28 February

1983.  He therefore had sufficient time personally to prepare his

defence.  It is true that he had chosen a defence counsel and that a

defendant can rely on his defence counsel to prepare the defence.

Such preparation will, however, normally require a certain

collaboration between the defendant and his counsel.  In the present

case the main question which remained to be resolved at the second

trial related to the appreciation of a business transaction carried

out by the applicant in his capacity of Managing Director of a

company.  It is evident that in these circumstances the preparation of

the defence could hardly be effected without the applicant's active

participation.

As an experienced businessman the applicant must have been perfectly

familiar with the general market situation at the relevant time and

being a party to the incriminated business transaction he must also

have been able to indicate the circumstances which from his point of

view justified this transaction commercially.  The applicant therefore

was in a position to assist the official defence counsel in the

preparation of his defence.

There was reasonable time to do this as the trial was adjourned from

28 February until 9 March 1983 leaving counsel more than a full week

to work on the case.  Although normally a time-limit of eight days may

appear to be insufficient for an official defence counsel to

familiarise himself with a case the present applicant has not shown

that in the particular circumstances of his case it had been

impossible for the official defence counsel to prepare his defence. As

already stated, the case was in any event no longer of a very

complicated and complex nature.  It has also to be noted in this

context that the applicant's chosen defence counsel, who suffered from

lumbo-sciatica, was not by the nature of his illness prevented from

giving advice either in writing or orally to the official defence

counsel about the handling of the case.

It has finally to be noted that after the period of preparation given

to the official defence counsel neither the applicant nor his official

defence counsel alleged that despite the adjournment of the trial from

28 February to 9 March 1983 it had not been possible to prepare the

defence.

In these circumstances it is of no relevance whether or not during the

telephone conversation of 21 February 1983 with Mr François, partner

of the applicant's chosen counsel, Mr Hütsch, the trial court's

presiding judge gave the impression he would adjourn the proceedings

against the applicant.  The trial court informed Mr Hütsch's office on

25 February 1983 that the date for the beginning of the trial was

maintained.  The applicant then still had time either to choose and

instruct another lawyer or to instruct the officially appointed

defence counsel.

As the applicant did not, on 28 February 1983, designate a defence

counsel of his own choice, the trial court was free to appoint an

official defence counsel.  The right to free legal assistance provided

for by Article 6 para. 3 (c) (Art. 6-3-c) of the Convention does not

guarantee to the accused the right to choose the official defence

counsel (No. 6946/75, Dec. 6.7.76, D.R. 6, p. 114).  It is true that

under German law the court would to a certain extent have had to take

into account the defendant's preference for a particular lawyer.

However, the applicant was not in a position to name a lawyer willing

to act as his official defence counsel.  On the other hand there is

nothing to show that the trial court's choice was arbitrary or that

the trial court had in the course of the trial any reason to replace

the official defence counsel.  The applicant had more than a week at

his disposal to prepare his defence with the official defence counsel.

At the trial he was defended by the official defence counsel and he

did not not, during the trial, allege that the preparation of this

defence was insufficient on account either of lack of time or lack of

interest on the part of the official defence counsel.

An examination by the Commission of this complaint does not therefore

disclose any appearance of a violation of the rights and freedoms set

out in the Convention and in particular in Article 6 (Art. 6).

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 applicant has further complained that his request to

obtain an expert opinion on the reasonableness of the business

transaction of 2 February 1974 was rejected by the trial court.

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

to everyone the right to a fair trial, which includes the right of the

accused that the trial court take into account all relevant evidence.

However, the Commission is not required to decide whether or not the

facts alleged by the applicant disclose any appearance of a violation

of this provision 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 this particular

complaint before the Federal Constitutional Court.  In the grounds of

his constitutional appeal he only complained that he was not given

sufficient time and opportunity to prepare his defence and that an

official defence counsel was appointed against his will shortly before

the beginning of the trial.  He failed, however, to substantiate his

present complaint, in accordance with Section 92 of the Act on the

Federal Constitutional Court.  He cannot, therefore, be considered to

have exhausted the remedies available to him under German law.

Moreover an examination of the case 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 his disposal.

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

to the exhaustion of domestic remedies and his application must in

this respect be rejected under Article 27 para. 3 (Art. 27-3) of the

Convention.

In any event the applicant has not shown that the determination of the

remaining charge at the second trial depended on particular knowledge

which was not available to the trial court without the help of an

expert.

The above complaint would therefore have had to be rejected as being

manifestly ill-founded if domestic remedies had been exhausted.

For these reasons, the Commission

DECLARES THE APPLICATION INADMISSIBLE.

Deputy Secretary to the Commission           President of the Commission

(J. RAYMOND)                                 (C.A. NØRGAARD)