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	European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> X. v. THE FEDERAL REPUBLIC OF GERMANY - 2646/65 [1966] ECHR 5 (30 March 1966) URL: http://www.bailii.org/eu/cases/ECHR/1966/2646_65.html Cite as: [1966] ECHR 5

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THE FACTS

Whereas the facts presented by the Applicant may be summarised as
follows:

The Applicant is a German citizen, born in 1927, and at present
detained on remand in Hamburg.

From the statements and documents submitted by the Applicant it appears
that on .. February, 1964 he was arrested on suspicion of having
committed fraud. On .. January, 1965 the Regional Court (Landgericht)
of Hamburg sentenced him to four years' penal servitude. The
Applicant's detention on remand was taken into account. On .. June,
1965 the Federal Court of Justice quashed this decision on a procedural
ground and the case was sent back for retrial to another Chamber of the
same Court. It seems that no further action has taken place yet and
that a new trial fixed in February 1966 was adjourned pending criminal
investigations against certain judges who participated in the decision
of January, 1965.

From his arrest in February, 1964 until his conviction in January,
1965, the Applicant did not request his release from detention on
remand as he did not wish to delay the proceedings. Following the
above-mentioned decision he has repeatedly requested his release and
he also requested his release on bail. His petitions were, however,
rejected by the Regional Court of Hamburg (on ... and ... 1965) and,
on appeal by the Hanseatic Court of Appeal (Hanseatisches
Oberlandesgericht) of Hamburg (on ... and ... 1965), on the grounds
that according to his "trustworthy" confessions during the
investigating proceedings (Ermittlungsverfahren) and his trial he was
"urgently" suspected of having committed the offenses he was charged
with and that, in view of the long term of imprisonment which he had
to expect, he might flee the country (Fluchtgefahr) as indeed he had
tried to do previously. The Court stated that for this last reason his
detention could not be suspended under any conditions.

The Applicant claims that he should have been released as there was no
reason for such a long detention pending trial. He states that there
was no danger that he might flee the country since he wished to live
with his parents in Hamburg. He alleges that it was not in order to
escape his conviction that he left Hamburg in the beginning of
September, 1963, and visited the Netherlands and subsequently until his
arrest, lived and worked under a false name at Essen and Celle. At that
time the warrant for arrest had not yet been issued and he states that
later he never received a summons from the police. Before he left
Hamburg he was heard by the police in regard to a different matter but
although he returned there later when visiting his parents, he never
knew that the police and searched for him. He further submits that the
danger that he might flee the country must not be implied from what
occurred before the warrant for arrest of .. December, 1963 was issued.

Furthermore, since the sentence of the Regional Court of Hamburg was
quashed by the Federal Court of Justice, the Courts should no longer
rely on this sentence when deciding on the further duration of his
detention on remand. X claims that in similar previous cases the Court
of Appeal of Hamburg as well as the Court of Appeal of Frankfort had
released persons from detention on remand and that in his case the
question whether or not his further detention pending trial was really
necessary was not carefully examined.

He complains that, as a result of a false interpretation of the law,
the Court of Appeal of Hamburg did not apply to him Articles 121 and
122 of the Code of Criminal Procedure according to which detention on
remand can only be prolonged for a period exceeding six months provided
that there is a careful examination of the circumstances of the case.
(see decision of the Court of Appeal of ... 1965).

The Applicant further submits that his confession during the
investigation proceedings was very different from that which he made
during his trial under pressure from the Court. He accuses the
authorities of extortion of evidence (Aussagenerpressung), improper
pressure (Nötigung), and perversion of justice (Rechtsbeugung). He
states that after his arrest he had refused to make submissions before
the police but, after the Senior Public Prosecutor Dr. had told him
that in this case it was likely that his detention on remand would not
be taken into account at his final conviction, he has told the police
the actual state of affairs as far as he could remember it after a
recent road accident. At that occasion he has also explained to the
police that he was forced, by extortion and compulsion, to commit some
of these offenses. However, the Applicant alleges, in order to ensure
his being put into preventive detention (Sicherungsverwahrung), the
Office of the Public Prosecutor did not take any action against those
who had extorted and put pressure on him. The President of the Court
later forced him to give false evidence by threatening him with
preventive detention. Thus he says, he confessed to offenses which he
has not committed and, contrary to the truth, withdrew evidence which
he had given before the police. He also alleges that the lawyer who was
appointed ex officio did not defend him properly. The Applicant
apparently complained both about this and the fact that certain
documents had disappeared from his file. The Senior Public Prosecutor
decided on ... 1965 to discontinue the investigation in this matter
but, on appeal, the Attorney-General of Hamburg ordered the re-opening
of the investigation, on ... 1965. This investigation, it seems, is
still going on.

It also appears from the documents submitted that an application
concerning the Applicant's trial was rejected by the Ministry of
Justice (Landesjustizverwaltung) of Hamburg as being inadmissible
(unzuständig).

A letter in which the Applicant wished to inform the German newspaper
"Stern" about his case was not forwarded as the Regional Court of
Hamburg decided on ... 1965, that it contained wrong or grossly
distorting allegations.

The Applicant further complains that all his correspondence with his
lawyer has been subject to censorship. His letter of ... 1965, to the
Commission has been opened and according to a judicial decision
(richterliche Verfügung), been copied. It appears from the text of this
decision that it was only in order not to make "difficult" (erschweren)
the Applicant's correspondence with the Commission, that this letter
was not kept back (angehalten) by the authorities.

X states that his long detention on remand for more than two years was
contrary to several Articles of the Criminal Procedure amending Act
(Gesetz zur Änderung der Strafprozessordnung und des
Gerichtsverfassungsgesetzes) of 19th December, 1964, and violated
Article 5, paragraphs (3) and (4) of the Convention. He alleges also
a violation of Article 3 of the Convention on the ground that one of
the judges (Landgerichtsrat Dr.) who decided upon his conviction also
participated in the decision of ... 1965 concerning his detention on
remand. This, the Applicant alleges, constitutes an arbitrary act
(Willkür).

As the Second Criminal Chamber of the Regional Court of Hamburg which
decided on the question of his detention on remand is charged with his
retrial, the Applicant further alleges a violation of Article 6,
paragraph (2), of the Convention.

THE LAW

Whereas in so far as the Applicant's complaints are directed against
the lawyer who was appointed ex officio for his defence, it results
from Article 19 (Art. 19) of the Convention that the sole task of the
Commission is to ensure the observance of the engagements undertaken
in the Convention by the High Contracting Parties, being those members
of the Council of Europe which have signed the Convention and deposited
their instruments of ratification; whereas, moreover, it appears from
Article 25, paragraph (1) (Art. 25-1), of the Convention that the
Commission can properly admit an application from an individual only
if that individual claims to be the victim of a violation of the rights
set forth in the Convention provided that the Party in question has
accepted this competence of the Commission;

Whereas it results clearly from these Articles that the Commission has
no competence ratione personae to admit applications directed against
private individuals; whereas, in this respect, the Commission refers
to its previous decision No. 1599 (Collection of Decisions 10, page 9);
whereas an examination of the case as it has been submitted, does not
disclose any grounds on which the alleged conduct of the lawyer who was
appointed ex officio for the Applicant's defence could exceptionally
entail the responsibility of the Government of the Federal Republic of
Germany under the Convention; whereas it follows that this part of the
Application is incompatible within the meaning of Article 27, paragraph
(2) (Art. 27-2), of the Convention;

Whereas, in regard to the Applicant's complaints that the Public
Prosecutor induced him to make submissions before the police and that
the President of the Court later forced him to give false evidence and
to confess to offenses which he had not committed, it is to be observed
that the Convention, under the terms of Article 1 (Art. 1), guarantees
only the rights and freedoms set forth in Section 1 of the Convention;
and whereas, under Article 25, paragraph (1) (Art. 25-1), only the
alleged violation of one of those rights and freedoms by a Contracting
Party can be the subject of an individual application; whereas
otherwise its examination is outside the competence of the Commission
ratione materiae; whereas the Commission has noted that, in fact, the
question of the institution of criminal proceedings against the judge
and Public Prosecutor is still under examination; whereas in any event
the right to have criminal proceedings instituted against a judge or
public prosecutor is not as such included among the rights and freedoms
guaranteed by the Convention;

Whereas it follows that this part of the Application is incompatible
with the provisions of the Convention within the meaning of Article 27,
paragraph (2) (Art. 27-2), of the Convention.

Whereas, in regard to the Applicant's complaints concerning his
conviction and the proceedings before the Regional Court of Hamburg,
it is to be observed that, under Article 26 (Art. 26) of the
Convention, the Commission may only deal with a matter after all
domestic remedies have been exhausted according to the generally
recognised rules of international law; and whereas it appears that, on
the Applicant's appeal, the Federal Court of Justice quashed this
decision and sent the case back for retrial to another Chamber of the
same Court where it is still pending; whereas, therefore the
proceedings concerning the Applicant's conviction have not been
terminated and the Applicant has therefore not yet exhausted the
remedies available to him under German law;

Whereas, moreover, an examination made ex officio, does not disclose
the existence of any special circumstances which might absolve the
Applicant, according to the generally recognised rules of international
law, from exhausting the domestic remedies at his disposal; whereas,
therefore, the condition as to the exhaustion of domestic remedies laid
down in Articles 26 and 27, paragraph (3) (Art. 26, 27-3) of the
Convention has not been complied with by the Applicant;

Whereas, in regard to the Applicant's complaints that he should have
been released from detention on remand as there was no reason for his
being detained pending trial for such a long period, an examination of
the case as it has been submitted in regard to the present stage of the
proceedings before the domestic Courts does not disclose any appearance
of a violation of the rights and freedoms set forth in the Convention
and in particular in Article 5, paragraphs (3) and (4) (Art. 5-3, 5-4);
whereas it follows that this part of the Application is, at the present
stage of the proceedings, manifestly ill-founded within the meaning of
Article 27, paragraph (2) (Art. 27-2) of the Convention;

Whereas, in regard to the remainder of the Application i.e. the
Applicant's complaints in regard to his correspondence an to the
composition of the Court which decided on his applications for release
from detention on remand as well as on the criminal charges brought
against him, an examination of the case as it has been submitted does
not disclose any appearance of a violation of the Convention and in
particular Articles 8, 10, 25, paragraph (1) in fine
(Art. 8, 10, 25-1), 3 and 6, paragraph (2) (Art. 3, 6-2);

Whereas it follows that this part too is manifestly ill-founded
(Article 27, paragraph (2) (Art. 27-2) of the Convention);

Now therefore the Commission declares this Application INADMISSIBLE.