CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 5 juillet 1994

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                          AS TO THE ADMISSIBILITY OF                         Application No. 22644/93                       by Günther DROZD                       against Germany         The European Commission of Human Rights (First Chamber) sitting in private on 5 July 1994, the following members being present:              MM.    A. WEITZEL, President                  C.L. ROZAKIS                  F. ERMACORA                  E. BUSUTTIL                  A.S. GÖZÜBÜYÜK            Mrs.   J. LIDDY            MM.    M.P. PELLONPÄÄ                  B. MARXER                  G.B. REFFI                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  E. KONSTANTINOV                  G. RESS              Mrs.   M.F. BUQUICCHIO, Secretary to the Chamber         Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;         Having regard to the application introduced on 26 July 1993 by Günther DROZD against Germany and registered on 17 September 1993 under file No. 22644/93;         Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;         Having deliberated;         Decides as follows:   THE FACTS         The applicant is a German citizen born in 1943 and presently detained in Tauberbischoffsheim.   He is represented by Mr. W. Ferner, a lawyer practising in Heidelberg.         It follows from his statements and the documents submitted that on 30 October 1992 the applicant had been remanded in prison and on 16 December 1992 he was convicted by the Tauberbischoffsheim District Court (Amtsgericht) on five counts of fraud (Betrug) and one count of embezzlement (Unterschlagung).   He was sentenced to one year and eight months imprisonment.         According to the findings of the trial court the applicant, who has a long criminal record, has been in constant financial difficulty for years   and is over-indebted.   Nevertheless, he bought and had delivered some expensive goods.   The purchase contracts provided for payment after delivery but the applicant never paid or only made a down-payment while instalment payments were not made.   These findings are based on the evidence given by various witnesses and documentary evidence.   Furthermore, it is stated in the judgment that the applicant had admitted his guilt on all counts.         It appears from the trial record of 16 December 1992 that the applicant's defence counsel, Mr. Ferner, was not present and had on 15 December 1992 challenged the presiding judge, apparently on the ground that he had rejected counsel's request to adjourn the trial hearing.   This request had been faxed to the court on 4 December 1992 and was rejected on 8 December 1992 on the ground that several adjournments had already been granted while another adjournment was not possible for reasons of the court's schedule.   The adjournment was also refused in view of the fact that on 2 October 1992 the court had refused to appoint Mr. Ferner as the defense counsel considering that the matter was not of such importance as to make the assistance by a defence counsel absolutely necessary in accordance with Section 140 para. 2 of the Code on Criminal Procedure (StPO).         As regards the motion of challenge the presiding judge declared, according to the trial record, that the case had to be dealt with speedily given that the applicant was in detention on remand. Therefore he had to reject the request for a further adjournment as the matter had already been adjourned several times and that in view of the court's schedule, in the case of an adjournment, it would not have been possible to bring the applicant to trial before the end of January 1993.   In view of this statement and following the request of the Public Prosecution, the motion of challenge was rejected.         The applicant's counsel then lodged an appeal on points of law (Revision) on behalf of the applicant submitting that contrary to the trial court's opinion, Section 140 (2) in the Code on Criminal Procedure applied in the applicant's case, i.e. presence of a defence counsel had been necessary.         On 10 May 1993 the appeal was dismissed by the Karlsruhe Court of Appeal (Oberlandesgericht).   The court denied a violation of Section 140 (2) of the Code on Criminal Procedure.   It is pointed out that according to that provision, not only the importance of the criminal charge and the possible sanction is of relevance but also the defendant's capacity to defend himself.   As the case did not raise any serious factual or legal issues and as the applicant had given himself up at his own initiative and had confessed to all charges and as furthermore he had the experience of 17 former trials, he was in view of his intellectual capacity and personality in a position to assume his own defence.         A constitutional appeal was rejected by a group of three judges of the Federal Constitutional Court (Bundesverfassungsgericht) on 23 June 1993 as offering no prospects of success.   The group first pointed out that the applicant had omitted to lodge an appeal (Berufung).   The facts and merits of the case would then have been re-examined.   In the appeal hearing an official defense counsel would have had to be appointed in accordance with Sec. 140 (1) No. 5 of the Code on Criminal Procedure. In these circumstances it was doubtful whether ordinary remedies could be considered to have been exhausted. This question needed however no reply as in any event there was no violation of constitutional law.   The group considered that the matter was not of such importance as to have required appointment of an official defence counsel.   Although the sentence was rather serious the Court of Appeal had not interpreted Section 140 (2) of the Code on Criminal Procedure in a manner violating constitutional rights by assuming that the applicant had been in a position to defend himself in an adequate manner.   The reasons stated in this connection by the Court of Appeal did not disclose any arbitrariness.   THE RELEVANT PROVISIONS OF GERMAN LAW   Sec. 140 of the Code on Criminal Procedure (StPO) provides, inter alia,   [Translation]         (1) Assistance by a defence counsel is necessary, if ....         N° 5. the accused has been detained at least three months on the       basis   of a judicial order and has not been released at the       latest two weeks before the hearing.         (2) in other cases where the presiding judge on request or ex       officio appoints a defense counsel if this appears to be       indicated (geboten) in view of the importance of the offence or       the complexity of the matter both as regards the facts and the       law or if it is apparent that the accused cannot defend       himself personally.         Sec. 316 (1) StPO provides that an appeal (Berufung) which was lodged on time stays the time limit for the judgment appealed from becoming final. Under Sec. 449 sentences can be executed only once the judgment has become final.         According to Sec. 318 StPO an appeal (Berufung), may be limited to certain points.   If this is not the case or if nothing is specified then the whole of the contested judgment is considered to be the subject of the appeal.   COMPLAINTS         The applicant complains that in his case defence by an official defence counsel was necessary and therefore Article 6 para. 3 (c) was violated.   THE LAW         The applicant complains that he was refused legal aid for the trial proceedings in his criminal case.   He invokes Article 6 para. 3 (c) (Art. 6-3-c) of the Convention.   However, under Article 26 (Art. 26) of the Convention the Commission may only examine the merits of an application under the condition that domestic remedies have been exhausted.         In the present case it clearly follows from the decision rejecting the applicant's constitutional complaint that the applicant would have been appointed an official defense counsel had he lodged an appeal (Berufung) instead of an appeal on points of law (Revision) as, in the case of an appeal, a hearing would have taken place and both factual and legal issues and on sentence (see Sec. 318 of the Code on Criminal Procedure) would have been reconsidered.   The Commission also notes that in accordance with Secs. 316, 449 of the Code on Criminal Procedure a sentence is not executed before the judgment becomes final. As the applicant failed to avail himself of this possibility he cannot be considered to have exhausted all remedies at his disposal under German law (cf. No. 11210/84, Dec. 16.10.86).   There were no special circumstances absolving the applicant from exhausting the remedy at his disposal.   It follows that the requirements of Article 26 (Art. 26) have not been complied with and the application therefore has to be rejected in accordance with Article 27 para. 3 in connection with Article 26 (Art. 27-3+26) of the Convention.         For these reasons, the Commission by a majority,         DECLARES THE APPLICATION INADMISSIBLE   Secretary to the First Chamber         President of the First Chamber        (M.F. BUQUICCHIO)                        (A. WEITZEL)