THE FACTS

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

The applicant is a German citizen, born in 1933 and at present detained
in prison at W.. The applicant, who has previously been convicted of
rape and robbery, complains that the German courts committed procedural
errors when convicting him of rape on .. May 1968.

On 19 August 1967, the applicant was arrested by the police of C.,
since a 22 year old woman, H., had accused him of having raped her the
night before. On 20 August the District Court (Amtsgericht) of O.
issued a warrant for the applicant's arrest on suspicion of rape. On
7 November 1967 the Public Prosecutor filed the indictment against the
applicant with the Regional Court (Landgericht) of D.; the applicant
was indicted for the crime of rape. The indictment was subsequently
served on the applicant and on his ex officio counsel, who had been
appointed under the legal aid system. The applicant did not object to
the indictment and the trial proceedings before the court consequently
started on 12 December 1967.

On 13 December 1967, the applicant's counsel requested that further
evidence should be taken before the applicant's trial. Applicant's
counsel asked in particular

-  that the panties worn by the applicant's victim and which had been
seized by the police, should be examined in a medical forensic
laboratory, since an analysis of spots of sperm and of pubic hair
possibly found could prove the applicant's innocence;

-  that his seventeen year old nephew should be heard as a witness,
since he could corroborate the applicant's statement that he had
returned home on the night concerned at about 3 a.m., that was only 20
minutes after the rape had taken place and that it was therefore
impossible that the applicant was the author, since his home was rather
far away from the scene of the crime;

-  that a waiter of the public house where the applicant had drunk late
at night should be heard as he could name two women who had been in the
company of the applicant and who could give evidence that the applicant
was drunk when leaving the public house.

On 5 January 1968, counsel insisted on the examination of the
above-mentioned parties. He referred in this context to commentaries
on this subject and maintained the view that this examination could
give suitable results, in particular as to the applicant's identity
with the offender. Counsel further suggested that it would be
appropriate to obtain an opinion on the credibility of the victim since
her statements had been contradictory and since her attitude had been
strange. He also informed the Court as to the address of the
applicant's nephew and requested that inquiries be made with the staff
of the public house concerned in order to get hold of the addresses of
the two women mentioned above. These inquiries were made and the waiter
who had been on duty was summoned for the trial as well as the
applicant's nephew.

The applicant's trial opened on 17 May 1968. Apparently the applicant's
nephew could not appear in Court since he was ill and the applicant
waived examination of this witness. The applicant indicates, however,
that he did not voluntarily waive the examination of this witness, but
only because the latter had been ill. The above-mentioned waiter, when
heard as a witness, stated that he did not know the applicant at all.
The applicant alleges in this respect that this waiter was not the one
who had seen him on 19 August 1967 and that this was consequently not
the right witness.

The applicant's counsel, during the trial, requested again that
additional evidence should be taken by the Court, namely that the scene
of the crime should be visited since it appeared impossible that the
applicant had raped H. on a row of garbage cans as it had been
described by her to the police inspector. He also asked for the
forensic examination of her panties and that an expert opinion should
be obtained on H.'s credibility, and that a certain Mr. Z. should be
heard, since he could prove that the applicant left the bus near his
home at 2.30 a.m. and that he could consequently not be the man who had
raped H.. He indicated that the address of this witness should be found
by means of further investigations.

On .. May 1968 the Regional Court convicted the applicant of rape and
gave him three years sentence and ordered his subsequent preventive
detention. With regard to counsel's requests as regards the taking of
further evidence the Court stated that a visit to the scene was not
necessary since the statement of H. said she had been raped lying on
the garbage cans proved as a simple misunderstanding. The Court also
refused the examination of the victim's panties since this would not
prove that the accused could not be the offender, but at most that she
also had intercourse with another man. The Court furthermore did not
find it necessary to hear an expert on the victim's credibility since
it had no doubt thereupon.

The applicant lodged an appeal (Revision) against this decision with
the Federal Court (Bundesgerichtshof). In the memorial stating the
reasons for the appeal the applicant's lawyer alleged that the Regional
Court had wrongly refused to take the above evidence. In particular,
he pointed out that the victim of the crime had stated at the trial
that she had put on the panties concerned on the morning of 18 August
and that she had no sexual intercourse until she had been raped.
Consequently the examination of those panties would have been an
important means of proof of the applicant's innocence. The lawyer also
pointed out that the trial had shown that no credibility should be
given to the victim's statements and that it was indispensable to
obtain an expert's opinion on this point. Finally, it was stated that
the above-mentioned Mr. Z. had not been heard of, since the Court could
not obtain his address; the applicant's lawyer, however, stated that
the Court has by negligence not found the applicant's address since it
had not made enough inquiries.

On 7 February 1969 the Federal Attorney General (Generalbundesanwalt)
gave his opinion on the applicant's appeal and requested the Federal
Court to dismiss it by decision (Beschluss) under Article 349 (2) of
the Code of Criminal Procedure. He stated that the examination of the
victim's panties had not been essential and that the Court had been
capable, without expert opinion, to determine the victim's credibility.
As to the hearing of Mr. Z. the Attorney General referred to reasons
set forth in the Regional Court's judgment.

In his reply, the applicant's lawyer on 10 February 1969 emphasised
again that the above-mentioned supplementary evidence would be
essential.

On .. March 1969 the Federal Court dismissed the applicant's appeal by
decision (Beschluss) under Article 349 (2) (3) of the German Code of
Criminal Procedure for being ill-founded. The Federal Court gave no
reasons for this decision.

In the proceedings before the Commission, the applicant complains that
he was innocent, and that the courts did not hear the witnesses for his
defence, and that the courts based their decisions on incomplete
evidence.

Proceedings before the Commission

A group of three members of the Commission examined the question of
admissibility of the application on 29 January 1970 and reported
unanimously that it appeared to be admissible. The application was
consequently communicated to the respondent Government for its
observations in writing on the admissibility of the application, in
accordance with Rule 45 (2) of the Commission's Rules of Procedure.

The Government submitted its observations on 20 April 1970. The
applicant 's observations in reply were received on 5 May 1970.

Submissions of the Parties

The respondent Government maintains that the applicant's allegation
that the Court did not hear the witnesses for his defence is wrong. At
the trial on 17 May 1970, the applicant waived examination of his
nephew. The other witnesses mentioned by the applicant could not be
traced since their domiciles were not known to the Court and since
investigations as to their abodes made by the Court had no result.

As concerns the applicant's contention that the Court failed to have
a forensic examination made of the victim's panties the Federal
Government maintains that Article 6 (3) (d) of the Convention merely
guarantees an accused person's right to obtain the attendance and
examination of witnesses on his behalf. It must be concluded therefrom
that an accused person's right of adduction of other evidence is not
included in the human rights expressly guaranteed by the Convention.
Moreover, it appears from the observations made in the judgment of the
Regional Court of D. .. May 1968, that the question whether an
examination of the panties was necessary has been carefully considered.
As a result of such careful consideration the Court held that it should
abstain from having the panties examined, and it is exactly this
careful consideration that cannot be regarded as a denial of the
general right to be entitled to a fair hearing. Besides, the Commission
has repeatedly held that it cannot in the manner of a superior court
review any errors of fact or of law incurred in the national courts,
provided that such errors do not in themselves constitute violations
of the Convention.

In view of all this, the Federal Government is of the opinion that the
application is manifestly ill-founded and, therefore, requests that it
be considered inadmissible.

THE LAW

Whereas, in regard to the applicant's complaint that the German Courts
wrongly convicted him of rape 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; whereas, in respect of the judicial decisions
complained of, the Commission has frequently stated that, in accordance
with Article 19 (Art. 19) of the Convention, its only task is to ensure
the observance of the obligations undertaken by the Parties in the
Convention; whereas, in particular, it is not competent to deal with
an application alleging that errors of law or fact have been committed
by domestic courts, except where the Commission considers that such
errors might have involved a possible violation of any of the rights
and freedoms limitatively listed in the Convention; whereas, in this
respect, the Commission refers to its decisions Nos. 458/59 (X. v.
Belgium - Yearbook, Vol. III, p. 233) and 1140/61 (X. v. Austria -
Collection of Decisions, Vol. 8, p. 57); and whereas there is no
appearance of a violation in the proceedings complained of; whereas it
follows that this part of the application is manifestly ill-founded
within the meaning of Article 27, paragraph (2), of the Convention;

Whereas, the applicant further complains that the German Courts refused
to hear several witnesses on his behalf and to take additional
evidence, i.e. to have the panties of his victim examined by an expert;

Whereas the Commission has considered these complaints both under
Article 6, paragraph (1) (Art. 6-1), of the Convention which guarantees
to everyone a fair hearing and in the determination of a criminal
charge against him under Article 6 paragraph (3) (d) (Art. 6-3-d) which
guaranteed the right of a person charged with a criminal offence to
obtain the attendance and examination of witnesses on his behalf under
the same conditions as witnesses against him;

Whereas as regards the hearing of the witnesses, the Commission is
satisfied that the Regional Court made all possible efforts to hear the
witnesses requested by the applicant; whereas two of these witnesses
were in fact called and examined by the Court, while the applicant
himself waived the examination of a further witness who was ill and
unable to attend the trial; whereas as regards the remaining witness
Mr. Z., the Commission has noted that the latter was not summoned for
the sole reason that his whereabouts were unknown and, despite every
effort by the Court, could not be found out;

Whereas it is, in principle, on the responsibility of the accused
person to inform the trial court of the name and the address of the
witnesses for his defence; whereas the Commission refers in this
respect mutatis mutandis to its decisions on the admissibility of
Application No. 3566/68 (Collection of Decisions, Vol. 31, p. 34);

Whereas, moreover, the Commission finds that, regarding the proceedings
as a whole, the applicant has had a "fair trial" within the meaning of
Article 6 (Art. 6) of the Convention, and that no problem as regards
the taking of additional evidence arose;

Now therefore the Commission DECLARES THIS APPLICATION INADMISSIBLE