Lexploria

AS TO THE ADMISSIBILITY

Application No. 11669/85

by A. A.

against the Federal Republic of Germany

The European Commission of Human Rights sitting in private

on 7 December 1987, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

G. SPERDUTI

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

G. BATLINER

Mrs. G.H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

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 4 March 1985

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

on 31 July 1985 under file N° 11669/85;

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, born in Teheran in 1931, acquired German

nationality in 1971. He is a medical doctor and a lawyer and runs

a private institute for forensic medicine in Düsseldorf. His

application was introduced by Messrs. Krumbiegel and Biron, lawyers

practising in Düsseldorf.

On 26 March 1983 the applicant was formally charged

(angeklagt) with fraud. In 1978 the applicant, who at that time was

employed at the Institute of Forensic Medicine of the Düsseldorf

University, had been appointed as expert by the Schleswig-Holstein

Court of Appeal (Oberlandesgericht) in the proceedings concerning the

retrial of a murder case. However, according to the indictment, the

applicant had based his opinion which he delivered in 1979 on

experiments which may never have been carried out or, at least, were

not carried out in the way described in his opinion.

The applicant commented on the indictment on 20 September 1983

and on 3 October 1983.

On 28 February 1984 the Düsseldorf District Court (Amtsgericht)

refused to commit the applicant for trial (lehnte die Eröffnung des

Hauptverfahrens ab).

On 19 March 1984 the Public Prosecution (Staatsanwaltschaft)

appealed from that order (sofortige Beschwerde).

Thereupon, on 22 June 1984, the Düsseldorf Regional Court

(Landgericht) ordered that the case should go to trial before the

Düsseldorf District Court.

Thereafter the applicant requested leave to submit additional

comments to the Regional Court, in view of the fact that the District

Court had refused to commit him for trial on legal grounds and that

evidence disproving the factual allegations of the indictment had not

yet been offered in detail. This request was granted by the Regional

Court on 22 October 1984. The time-limit for submission of the

applicant's comments was 20 November 1984.

The applicant submitted comments dated 19 November 1984

(nine pages) and 20 November 1984 (one page); the comments dated

20 November 1984 were received by the Regional Court in the evening

of that day.

The 21 November 1984 was a public holiday (Buss- und Bettag);

the 24 November was a Saturday.

On Monday, 26 November 1984 the Düsseldorf Regional Court

refused to reverse or modify its decision of 22 June 1984.

On 20 December 1984 the applicant lodged a constitutional

complaint (Verfassungsbeschwerde) with the Federal Constitutional

Court (Bundesverfassungsgericht). On 14 January 1985 this complaint

was rejected by a committee of three judges as lacking prospects of

success.

COMPLAINTS

The applicant complains about the decision of the Regional

Court of 26 November 1984. He submits that this Court, on 22 June

1984, decided to commit him for trial without having been able to

comment on the indictment. Thus, his right under Article 6 para. 1

first sentence that his case be heard fairly and publicly within a

reasonable time was violated.

He further alleges that the opportunity to subsequently submit

comments did not comply with the requirements of fair trial, as

guaranteed by the said provision, as the Regional Court had not

sufficiently motivated its decision of 26 November 1984. The

applicant also contends that the judges of the chamber concerned of

the Regional Court were unable to consider the applicant's submissions

on the two working days between the end of the time-limit and the day

of their decision.

The applicant further complains that his case was not decided

by his lawful judge. He argues that, after the District Court's

decision which was based on legal grounds was reversed by the Regional

Court, this Court was not competent to decide itself whether or not

the case should go to trial but was obliged to send the case back to

the District Court.

The applicant also alleges violations of Articles 3 and 14 of

the Convention.

THE LAW

1. The applicant complains that the Düsseldorf Regional Court, in

committing him for trial before the Düsseldorf District Court, violated

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

The first sentence of this provision stipulates:

"1. In the determination ... of any criminal charge against

him, everyone is entitled to a fair and public hearing within

a reasonable time by an independent and impartial tribunal

established by law. ..."

(In French:

"1. Toute personne a droit à ce que sa cause soit

entendue équitablement, publiquement et dans un délai

raisonnable, par un tribunal indépendant et impartial,

établi par la loi, qui décidera ... du bien-fondé de

toute accusation en matière pénale dirigée contre elle.")

The Commission notes that the decision complained of, while

relating to a "criminal charge" in the sense of the above provision,

concerned exclusively the question of whether or not the case should

go to trial. Although such a decision implies a finding as to whether

there is a sufficient suspicion against the accused, it does not

involve a finding of guilt which is to be proven during the trial. A

decision to commit the accused for trial does not therefore constitute

a "determination of a criminal charge" (décision sur le bien-fondé

d'une accusation en matière pénale) within the meaning of Article 6

para. 1 (Art. 6-1) first sentence, and it follows that this provision is not

applicable to the proceedings in question here. Consequently, this

part of the application must be rejected as incompatible ratione

materiae with the provisions of the Convention in accordance with

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

2. Insofar as the applicant alleges violations of Articles 3 and

14 (Art. 3, 14) of the Convention the Commission finds no issue under these

provisions. This part of the application must accordingly be

rejected as 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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