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You are here: BAILII >> Databases >> European Court of Human Rights >> X. v. THE FEDERAL REPUBLIC OF GERMANY - 2472/65 [1967] ECHR 22 (07 April 1967)
URL: http://www.bailii.org/eu/cases/ECHR/1967/2472_65.html
Cite as: [1967] ECHR 22
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X. v. THE FEDERAL REPUBLIC OF GERMANY - 2472/65 [1967] ECHR 22 (07 April 1967)
THE FACTS Whereas the facts presented by the Applicant may be summarised as follows: The Applicant is an American citizen, born in 1922 in Germany. He is a management consultant by profession and at present residing at Farmington, Michigan, USA. On 20th May, 1963, he lodged an Application (No. 1908/63) with the Commission which was declared inadmissible on 8th July, 1964, for non-exhaustion of domestic remedies, all proceedings in which the Applicant was involved, at that time still pending before the German courts. He now presents his case again as follows: I. He states that in 1959 he took up employment under a two-year contract with the Volkswagenwerke A.G. at a monthly salary of 4,000 DM. Due to differences of opinion as to certain management problems, it was decided that the Applicant's employment should be discontinued. It was further agreed in writing that he should be fully remunerated for the remainder of the two-year period. As the Company allegedly failed to honour this agreement and as other disputes arose, the Applicant filed in November, 1960, a suit before the Labour Court (Arbeitsgericht) of Braunschweig claiming damages of 70,000 DM. The case is still pending and, according to the Applicant, a hearing of the Parties has not been fixed in 4 1/2 years. II. (1) In December, 1960, the Applicant was arrested but immediately released on bail of 10,000 DM. On his arrest all his papers were seized although no valid search warrant had been issued. These papers were subsequently turned over to the Volkswagenwerke for inspection. In April, 1962 he moved to Innsbruck. It appears that on .. June,. 1962, he was convicted by the Regional Court (Landgericht) at Hildesheim on charges of fraud and making false statements and sentenced to one year's imprisonment. The above bail was declared forfeit as security for costs. (2) On .. October, 1962, the Applicant was arrested in Austria, his extradition to Germany having been requested by the German authorities in pursuance of an order of the local judge at Wolfsburg, dated .. October, 1962. (3) It appears that the Applicant had lodged an appeal (Revision) with the Federal Court (Bundesgerichtshof) with regard to his conviction on the charge of fraud, but had failed to appeal against his conviction for making false statements. On January, 1963, the Federal Court quashed the conviction for fraud and ordered a new hearing before the Regional Court at Braunschweig. (4) On .. February, 1963, the Applicant was extradited from Austria to Germany where, without having ever been heard by a judge, he was suddenly released on .. March, 1963. He was then informed that a deportation order would be issued to bar permanently his entry into Germany, but that the Public Prosecutor would discontinue the criminal proceedings against him on condition that he did not pursue his claims against the Volkswagenwerke. This he refused to do. After his release on .. March, 1963, the Applicant returned to Innsbruck and, on .. May, 1963, the Mayor (Regierungspräsident) of Lüneburg (Germany) issued a deportation order against him in his absence. (5) On .. October, 1963, the Regional Court at Braunschweig heard the case referred to it by the Federal Court and convicted the Applicant on the charge of fraud, presumably in his absence. On the same day the Regional Court gave a decision declaring the bail of 10,000 DM forfeit, allegedly without having issued an order of forfeiture and without having given the Applicant an opportunity to be heard, and although the local judge at Wolfsburg, in 1962, had allegedly ordered the bail to be returned to him. (6) It appears that the Applicant lodged an appeal (Revision) against his conviction of .. October, 1963 with the Federal Court and another appeal (Beschwerde) against the order of forfeiture of the bail with the Court of Appeal at Celle. The latter appeal was dismissed by the Court of Appeal on .. January, 1964, and a constitutional appeal (Verfassungsbeschwerde) lodged against this decision with the Federal Constitutional Court (Bundesverfassungsgericht) was rejected on .. February, 1965, as being clearly ill-founded. By decision of .. November, 1964, the Federal Court, however, again quashed his conviction for fraud and decided that no further proceedings should be taken on this count. (7) The Applicant states that he also lodged an application for retrial concerning his conviction for making false statements and that this was dismissed by the Court of Appeal of Celle on .. August, 1965. (8) In September, 1963, the Applicant had unsuccessfully requested that criminal proceedings should be instituted against the above judge at Wolfsburg, another judge, the Public Prosecutor and six witnesses. (9) The Applicant ascribes the actions taken against him to the influence of Volkswagenwerke then owned by the Government, and of the local judge at Wolfsburg, a former SS officer. The same intrigues caused his dismissal from employment by another management consultant at Siegburg. In September, 1961, he instituted legal proceedings against this second employer before the Labour Court in Cologne, but he does not indicate what decision was given by this court. The Applicant alleges that, as a result of his illegal and unfounded prosecutions, he lost his property and employment and suffered injuries to his health; that since his arrest his case against the Volkswagenwerke has been deliberately sabotaged; that his deportation prevents him from visiting his parents living in Germany and caused the breakdown of his marriage. III. Consequently, it appears that the Applicant was finally convicted only in respect of the charge of making false statements. This conviction was pronounced by the Regional Court of Hildesheim on .. June, 1962 and the Applicant did not appeal against it. In respect of the charges of fraud, his conviction was finally quashed by the Federal Court on .. November, 1964. It seems, therefore, that the Applicant's complaints concern primarily his final conviction in 1962 with regard to making false statements but that he also considers the subsequent proceedings to be objectionable. IV. The Applicant's complaints may be set out as follows: (1) In December, 1960 his papers were seized without a valid search warrant and only a part of these papers were returned to him so far; (2) Prior to and during the trial in 1962, the Public Prosecutor gave false and misleading statements to the Press which contributed to destroying whatever chances he might have had for future employment in Germany; (3) His conviction and sentence as well as the court proceedings concerned were unlawful. In this respect it appears that he complains not only of his conviction for making false statements in June, 1962, but also of his subsequent conviction for fraud which was quashed by the Federal Court. He alleges in particular: (a) that he was wrongly convicted; (b) that the court proceedings in June, 1962 were unlawful in that: (aa) new facts were introduced by the prosecution so late that he had no possibility of preparing his defence; (bb) he was called a gangster before and during the trial; (cc) that he was not allowed any assistance by counsel; (c) that in the 1962 proceedings and the subsequent proceedings the courts had refused to hear witnesses and check documents attesting to his innocence; (4) The refusal of a retrial with respect to his conviction for making false statements was unlawful; (5) The Convention had been violated in that: (a) his arrest in Austria on .. October, 1962 leading to his extradition to Germany was unlawful, and (b) there was no danger of flight which could have justified his detention pending extradition in Austria from .. October, 1962 to .. February, 1963; (6) Subsequent to his extradition the German authorities had violated the Convention in that: (a) he was unlawfully detained in prison in Germany from .. February, 1963 to .. March, 1963 and was neither heard by a judge during that period nor informed of the reasons for his detention; (b) there was no danger of flight justifying his detention in Germany from .. February to .. March, 1963; (7) During his detention (a) the prison authorities refused to give him writing materials and the mail from his lawyer and the American Consulate was held back (it is not clear whether this allegation concerns his detention in Austria or in Germany); (b) he was subjected to degrading and inhuman treatment in that the prison authorities refused him medical treatment, he had to sleep on the floor for several weeks, and was occasionally locked in a cold cell (it is not clear whether this allegation concerns his detention in Austria or in Germany); (8) He was deprived of his possessions in that the bail was declared forfeit and moreover the decision of .. October, 1963 by which the bail was declared forfeit was unlawful and that there was no hearing and no court decision published in this regard; (9) The German authorities discriminated against him by reason of his anti-Nazi opinions. V. The Applicant alleges a violation of Articles 3, 5, 6, 8, 13, 14 and 16 of the Convention as well as Article 1 of the Protocol to the Convention. He also claims damages of 613,000 DM. THE LAW Whereas, in regard to the Applicant's complaints that his papers were seized in 1960 (see IV, (1) of the Facts) and that the Public Prosecutor made statements to the press prior to and during the trial in June, 1962 (see IV, (2) of the Facts), 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 show that he has raised these points with any German court; whereas, therefore, he has 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 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 the Applicant apparently complains of his conviction and sentence by the Hildesheim Regional Court on .. June, 1962, on charges of making false statements and of fraud; Whereas, first in regard to his complaints relating to his conviction and sentence for making false statements and the court proceedings relating to this charge, the Applicant failed to appeal from the decision of the Regional Court at Hildesheim, dated .. June, 1962; whereas, therefore, he has again not exhausted the remedies available to him under German law, and no special circumstance is to him under German law, and no special circumstance is disclosed which might have absolved him from exhausting such remedies; 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, secondly, as regards his complaints concerning his conviction and sentence for fraud by the same Court (see IV, (3) of the Facts), it is pointed out that, finally, his appeal from the above decision was successful in that, on .. November, 1964, the Federal Court quashed his conviction by the former court and decided that no further proceedings should be taken on this count; whereas, even assuming that his allegations in respect of the above proceedings might raise a question under the Convention, the alleged maladministration of justice on the part of the Regional Court at Hildesheim must be regarded as having been remedied by the decision of the Federal Court; 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, in regard to the Applicant's complaints relating to his claim for a retrial of the case against him for making false statements and the court proceedings concerned (see IV, (4) of the Facts), 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 the right to a retrial is not as such included among the rights and freedoms guaranteed by the Convention; and whereas, in accordance with the Commission's constant jurisprudence, proceedings concerning applications for retrial fall outside the scope of Article 6 (Art. 6) of the Convention (see Applications Nos. 864/60 - M v. Austria - Collection of Decisions, Volume 9, page 17, and 1237/61 - T. v. Austria - Yearbook V, page 96); 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, with regard to the Applicant's complaints concerning his arrest and detention in Austria (see IV, (5) of the Facts) and his alleged bad treatment in prison during his detention in Austria (see IV, (7) of the Facts) it is to be observed that the present Application is directed solely against the Federal Republic of Germany; whereas his above complaints relating to events which have occurred in Austria, can in no way be held to involve any responsibility under the Convention of the Federal Republic of Germany; whereas, therefore, the Commission has no competence ratione personae to examine these complaints in so far as they relate to the Applicant's detention in Austria; whereas it follows that, in this respect, 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 that he was wrongly detained in prison in Germany from .. February, 1963 to .. March, 1963 following his extradition (see IV, (6) of the Facts) and also in regard to his complaints relating to his alleged bad treatment which he underwent in prison in Germany (see IV, (7) of the Facts), 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 show that he has raised these points before any German Court; whereas, therefore, he has 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 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, as a result of the forfeiture of his bail, he was deprived of his possessions, and to his complaints relating to the court proceedings concerned (see IV, (8) of the Facts), it is to be observed that, even assuming that such proceedings should fall under Article 6, paragraph (1) (Art. 6-1), of the Convention, 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 or the Protocol and in particular in the Articles of the said Protocol; 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, in regard to the Applicant's complaints that he suffered discriminating treatment by reason of his anti-Nazi opinions (see IV, (9) of the Facts), an examination of the case as it has been submitted does equally not disclose any appearance of a violation of the rights and freedoms set forth in the Convention and in particular in Article 14 (Art. 14); whereas it follows that this part of the Application is also manifestly ill-founded within the meaning of Article 27, paragraph (2) (Art. 27-2), of the Convention; Whereas, with regard to the Applicant's complaints relating to the length of the proceedings before the Labour Court at Braunschweig concerning his claim against the Volkswagenwerke A.G. (see I of the Facts), it is to be observed that Article 6, paragraph (1) (Art. 6-1), provides that "in the determination of his civil rights and obligations ... everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law"; Whereas the Applicant alleges that he filed his action in the Labour Court of Braunschweig in 1960, where the case is still pending, and, after a period of 4 1/2 years, a hearing of the Parties has still not yet been fixed; whereas it is pointed out that the right to have one's case heard within a reasonable time is, particularly in civil cases, dependent on the interested Party taking himself the necessary steps duly to pursue the action; whereas, in the present case, the Applicant has failed to show in what way he has taken any steps to expedite the proceedings before the Labour Court of Braunschweig; Whereas the Commission is satisfied that an examination of the case as it has been submitted, including an examination made ex officio, does not disclose any element indicating that it was the Court which was responsible for the delay; whereas, consequently, the Commission finds no appearance of a violation of the rights and freedoms set forth in the Convention and in particular in Article 6 (Art. 6); 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. Now therefore the Commission declares this Application INADMISSIBLE.