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	European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> X. v. THE GERMANY - 2366/64 [1967] ECHR 12 (07 April 1967) URL: http://www.bailii.org/eu/cases/ECHR/1967/2366_64.html Cite as: [1967] ECHR 12

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THE FACTS

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

The Applicant is a German national, born in 1916 and at present
residing in Hanover.

I. From his statements and from the documents submitted by him, it
appears that he is a Communist and was as such denied the right to
become a candidate for the elections to the German Bundestag in 1961.

On ..., 1963, he was convicted by the High Criminal Chamber of the
Regional Court (Grosse Strafkammer des Landgerichts) at Lüneburg on
charges of contravening the law prescribing the Communist Party,
instigating a subversive association as one of its leading members and
engaging in a secret organisation with an intention hostile to the
State. He was sentenced to one year's imprisonment as well as loss of
the right to hold public office for four years. The Applicant lodged
an appeal (Revision) from this decision with the Federal Court
(Bundesgerichtshof) which was dismissed on ..., 1964. The decision was
communicated to him on ..., 1964. On ..., 1964, the Applicant lodged
a constitutional appeal with the Federal Constitutional Court
(Bundesverfassungsgericht) which was rejected on ..., 1964, on the
ground that the time-limit for lodging an appeal had expired.

The Applicant complains that he was wrongly convicted. He complains in
particular:

- that certain documents tending to incriminate him were placed in his
home by the police on the occasion of a search;

- that he was convicted by a Special Criminal Chamber
(Sonderstrafkammer) whereas such chambers were supposed to have been
abolished by the laws of the Control Council and Article 101 of the
German Basic Law;

- that he was deprived of the possibility to lodge a constitutional
appeal in time as the authorities had refused to grant him a suspension
of the execution of his sentence or a leave of absence from prison for
which he had repeatedly applied in order to collect the material to
support his complaint, as is indicated in a letter from the Office of
the Director of the prison at Oldenburg of ..., 1964; however, a
suspension of the execution of his sentence was in fact granted from
... to ..., 1964; he also had the help of a friend in collecting
material to support his constitutional appeal;

- that he had suffered discrimination by his conviction in that other
German courts did not convict on these political charges;

- that there was no appeal (Berufung) from decisions by the High
Criminal Chamber of the Regional Court and thus no instance to review
such decisions on the facts;

- that he was treated as a political prisoner and, as such, more
severely treated than other prisoners to the extent that he was
transferred from the prison at Wolfenbüttel to the prison at Oldenburg,
where he was kept in solitary confinement and strictly isolated from
other prisoners, where there are no outside activities such as sports,
television and radio, and where visits from friends and relatives are
supervised.

The Applicant alleges a violation of the Preamble as well as Articles
1, 3, 5, 6, 7, 8, 9, 10, 11, 13, 14, 17 and 18 of the Convention.

Following a preliminary examination of the Application by a group of
three members of the Commission on 23rd September, 1966, the Applicant
was invited to inform the Commission as to whether he has raised his
complaint concerning the planting of documents with any German court
and to submit the relevant court decisions. The Applicant has not
submitted any court decisions and states that the cost of having copies
made was more than he could afford.

By letter of 7th January, 1967, however, the Applicant supplied the
following additional and supplementary information:

1. On ..., 1961 a number of citizens in his electoral district
presented a proposal to the competent local Electoral Board (Wahlamt)
for his nomination as a candidate to the German Bundestag. Apparently
this proposal was rejected by the Board on ..., 1961, on the basis of
a circular (Erlass) of the Ministry of the Interior of Lower Saxony
(Niedersächsisches Ministerium des Innern), dated ..., 1961. The
Applicant maintains that he made several protests concerning this
rejection and that he demanded to be supplied with the reasons for the
rejection in writing, but that all his efforts simply led to the
introduction of the criminal proceedings against him and to his
conviction by the Regional Court (Landgericht) of Lüneburg on ...,
1963.
The Applicant alleges that the refusal of his candidature to the 1961
election constitutes a violation of Article 3 of the Protocol to the
Convention.

2. With respect to the question of planting incriminating documents in
his home, he states that, when returning home in the evening of ...,
1961, he found a plain envelope which had been pushed into the
letter-box of the flat and not into the letter-box in the main hall of
the building in which his mail was placed ordinarily. The envelope
contained newspaper clippings, among others from an August edition of
the "Neues Deutschland", a newspaper representing the official organ
of the Communist Party in the Soviet-occupied Zone of Germany.
He states that the next day two police officers appeared at his place
of work and presented a search warrant which had been issued four weeks
before this visit. Together with the police officers and a third
person, one Mr. F, the Applicant returned to his home which was then
searched by the police officers. Finally, the police confiscated only
the above envelope and two pamphlets, taking nothing else although the
Applicant had invited them to seize all the election material which had
been prepared by him and which was lying around openly.
The Applicant states that certain material was put in evidence at the
trial, but it was impossible for him to tell whether this was the
material confiscated.

The Applicant alleges that he had raised this point at his trial before
the Regional Court at Lüneburg and had also pointed out to the Court
that these documents had been planted by the police. In his appeal
(Revision) to the Federal Court (Bundesgerichtshof) the Applicant
simply alleged that it had not been established where these documents
came from.

The Applicant finally states that his conviction was substantially
based on evidence given by so-called "expert witnesses" who were
employed by the Federal Office for the Protection of the Constitution
(Bundesamt für Verfassungsschutz) and who testified to events reported
to them by third persons whose identity remained concealed
(Vertrauensleute).

The Applicant complains that he was denied the right to a fair hearing
in that, by the above practice, he was prevented from "examining or
having examined witnesses against him".

In this regard he alleges a violation of Article 6, paragraph (3),
sub-paragraph (d), of the Convention.

THE LAW

Whereas, in regard to the Applicant's complaint under Article 3 of the
Protocol of 20th March, 1952 (P1-3) to the Convention, that the
authorities refused to admit him as a candidate to the 1961 elections
to the Federal Parliament, 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 the
Applicant failed to lodge a constitutional appeal with the Federal
Constitutional Court in accordance with Article 90 of the Act relating
to the Federal Constitutional Court (Gesetz über das
Bundesverfassungsgericht) in conjunction with Article 38 of the Basic
Law (Grundgesetz) and Article 16 of the Act concerning Federal
Elections (Bundeswahlgesetz) of 1956; whereas, therefore, he has not
exhausted the remedies available to him under German law;

Whereas, in regard to the Applicant's complaints that he was wrongly
convicted and sentenced by a Special Criminal Chamber of the Regional
Court at Lüneburg, that he thereby suffered discrimination in relation
to the decision of other German courts in similar cases, that documents
were planted in his home by the police and that his treatment in prison
was unlawful, it is also 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 the
Applicant failed to lodge a constitutional appeal within the time-limit
prescribed; whereas, therefore, he has again not exhausted the remedies
available to him under German law; whereas, 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 in either case
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 complaint relating to the
authorities' refusal to grant a suspension from the execution of his
sentence or leave of absence from prison for the preparation of his
constitutional appeal, the Commission had regard to the fact that a
suspension from the execution of his sentence was in fact granted from
... to ..., 1964 and that the Applicant also had the assistance of a
friend in collecting material to support his constitutional appeal;
whereas, therefore, an examination of the case as it has been
submitted, including an examination made ex officio, does not disclose
any appearance of a violation of the rights and freedoms set forth in
the Convention and in particular in the Articles invoked by the
Applicant; whereas it follows that this part of the Application is
manifestly ill-founded within the meaning of Article 27, paragraph (2)
(Art. 27-2), of the Convention;

Whereas, finally, in regard to the Applicant's complaint as to the lack
of any possibility to appeal (Berufung) from decisions taken by the
High Criminal Chamber of the Regional Court, 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 I 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 application presented by a person,
non-governmental organisation or group of individuals; whereas
otherwise its examination is outside the competence of the Commission
ratione materiae; whereas no right to appeal on the appreciation of
facts in a criminal case is as such included among the rights and
freedoms guaranteed by the Convention; whereas in this respect the
Commission refers to its previous decisions, Nos. 277/57, Yearbook I,
page 219; 1850/63, Collection of Decisions, Volume 19, page 71; 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;

Now therefore the Commission declares this Application INADMISSIBLE.