THE FACTS

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

The applicant is a German citizen, born in 1937 and at present detained
in B. prison. He is represented by Mr. G., a lawyer practising in
Munich and acting under a power-of-attorney dated 5 June 1969.

From the statement of his lawyer and several documents submitted, it
appears that on .. August 1969 the applicant was convicted by the
Regional Court (Landgericht) at H. of aggravated theft (schwerer
Diebstahl) and of being in possession of tools for use in connection
with stealing (Diebeswerkzeug). He was sentenced to one year and eight
months' imprisonment (Zuchthaus) with additional preventive detention
(Sicherungsverwahrung) as being a dangerous habitual criminal
(gefährlicher Gewohnheitsverbrecher). The applicant lodged an appeal
(Revision) with the Federal Court (Bundesgerichtshof) which on ..
January 1969 set aside the said decision as far as the sentence was
concerned and referred the case to another chamber of the Regional
Court at H. for a new trial. The applicant was anew convicted and
sentenced to the same term of imprisonment but not to additional
preventive detention.

This decision was allegedly final since a new appeal (Revision) against
that part of the decision which was not set aside by the Federal Court,
did not offer any prospect of success. Besides, according to the
applicant's lawyer, all available domestic remedies have been exhausted
since, although theoretically a constitutional appeal
(Verfassungsbeschwerde) to the Federal Constitutional Court
(Bundesverfassungsgericht) was possible, nonetheless such an appeal
should have been based on the provisions of the Human Rights Convention
which cannot, according to German law, be invoked by means of a
constitutional appeal.

According to the applicant's lawyer the following violations of the
Convention, in particular Article 6, took place:

a. The applicant has not been tried by a tribunal established by law,
because although the applicant's counsel has lodged applications with
the court for further evidence, these have not been treated as formal
applications due to the fact that the court has been absent-minded
during the trial and they have not been put in the record. The fact
that these were formal applications is allegedly proven by the sworn
statement made by the then lawyer of the applicant. He further submits
that, according to German law, a court is not considered to be
established by law (gesetzliches Gericht) if it does not devote the
necessary attention to the pleading of the counsel for the defence and
shows absence of mind.

b. The alleged court's attitude, as explained above, constitutes also
a violation of the presumption of innocence, Article 6, paragraph (2),
of the Convention since it showed that the court had already decided
on the applicant's guilt before this had been proven.

c. The applicant, as allegedly shown by the above submissions, was not
granted a fair hearing. Moreover, because the clerk of the court
(Protokollführer) was not a judge and had not a judge's knowledge and
experience, the verbatim record, on the basis of which the appellant
had to prove his allegations before the Federal Court, has not been
completed. This is due to the fact that it is always in the absolute
discretion of the clerk of the court whether or not to put in the
record the counsel's application for further evidence since the clerk
himself decides what is essential for the record. Thus the applicant
was deprived of an important means of evidence by the action of a
person not vested with the authority of a judge. This, allegedly,
constitutes an unlawful limitation of the applicant's right to a fair
hearing.

d. According to his further submissions, the applicant's right to have
witnesses examined on his behalf under the same conditions as witnesses
against him has been also violated in that, although his counsel
applied for an inspection of the road where the applicant was arrested
and for tracing of witnesses who saw the applicant in a bar the evening
before his arrest, the court did not take these applications into
account and did not decide on them.

e. The Court found against the applicant without adjourning the trial
in order to give him the opportunity to prepare adequately his defence
by bringing further evidence. In particular, it found that:

1. the applicant was in possession of matches which he could have only
had if he had committed the theft;

2. the applicant stated falsely that he bought a certain postcard with
a Black Forest landscape at Frankfurt station;

3. it was the applicant's practice to break automobile windows,
although the Court had knowledge of the applicant's previous
convictions. This was not the practice of the applicant and, according
to criminological opinion, criminals do not change their methods;

4. the purpose of the tools found in possession of the applicant was
only for breaking into houses or cars and not, as the applicant stated,
for use after he found employment as a technician as, according to
common experience, am employer puts tools at the disposal of his
employees.

The applicant alleges violations of Article 6 (1), (2), (3) (b) and (d)
of the Convention.

THE LAW

Whereas, in regard to the applicant's complaints that the Court was
absent-minded during the proceedings against him and that consequently
he was not granted a trial by a tribunal established by law nor a fair
hearing; that, furthermore, he did not have adequate facilities for the
preparation of his defence, 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;

Whereas the mere fact that the applicant has, in pursuance of Article
26 (Art. 26) of the Convention submitted his case to the various
competent courts does not constitute compliance with this rule; whereas
it is also required that any complaint made before the Commission and
relating to lower courts and authorities should have been substantially
raised before the competent higher court or authorities; whereas in
this respect the Commission refers to its constant jurisprudence, e.g.
decisions Nos. 263/57 (X. v. Federal Republic of Germany - Yearbook,
Vol. I, p. 147), 788/60 (Austria v. Italy, ibid. IV, p. 116) and
1103/61 (X. v. Belgium - ibid. V, p. 168);

Whereas in the present case the applicant had the possibility to lodge
a constitutional appeal with the Federal Constitutional Court
(Bundesverfassungsgericht) and to invoke his above-mentioned rights
and, in this connection, to rely upon the relevant provisions in the
Basic Law (Grundgesetz);

Whereas it appears that he has not availed himself of this possibility;

Whereas, furthermore, 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, such as a legal or factual
impossibility or a justified impediment which might have absolved the
applicant, according to the generally recognised rules of international
law from raising his complaints before the Federal Constitutional
Court;

Whereas, therefore, the condition as to the exhaustion of domestic
remedies laid down in Articles 26 and 27 (3) (Art. 26, 27-3) of the
Convention has not been complied with by the applicant;

Whereas, in regard to the applicant's complaint that he was not given
the opportunity to call further witnesses on his behalf, it is to be
observed that the Commission has consistently held that the provision
of Article 6 (3) (d) (Art. 6-3-d) of the Convention does not give an
accused person a general right to call all witnesses on his behalf;

Whereas, in particular, a court is justified in refusing to summon
witnesses when it considers that their statements could not be of any
relevance in the case (see, for instance, Applications Nos. 617/59,
Yearbook, Vol. III, pp. 390-392, 2383/64, Collection of Decisions, Vol.
XXIII, p. 30, 4042/69, X. v. United Kingdom);

Whereas the applicant alleges that although his counsel lodged
applications with the court for further evidence to be heard, these
have not been treated as formal applications due to the fact that the
court has been absent-minded during the trial; whereas, moreover, he
alleges that these applications have not been put in the record;

Whereas the Commission finds that in the present case there has been
no violation of the applicant's right "to obtain the attendance and
examination of witnesses on his behalf under the same conditions as
witnesses against him" as guaranteed by Article 6 (3) (d) (Art. 6-3-d)
of the Convention;

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 complaint that Article 6,
paragraph (2) (Art. 6-2), of the Convention was violated in his case,
it is to be observed that according to this provision "everyone charged
with a criminal offense shall be presumed innocent until proved guilty
according to law"; whereas, according to the Commission's constant
jurisprudence the said provision requires that court judges, in
fulfilling their duties, should not start with the conviction or the
assumption that the accused committed the act with which he is charged
and, in other words, that the onus to prove guilt falls upon the
prosecution, and any doubt is to the benefit of the accused;

Whereas, moreover, the judges must permit the latter to produce
evidence in rebuttal and, in their judgment, they can find him guilty
only on the basis of direct or indirect evidence sufficiently strong
in the eyes of the law to establish his guilt (see Application No.
788/60, Report of the Commission, pp. 201-208);

Whereas the Commission has considered in this context the applicant's
allegations concerning his application to the Court to hear certain
witnesses;

Whereas the Commission has already found that the Court's refusal to
hear the witnesses whom the applicant asked to be called was not
inconsistent with the requirements of Article 6 (3) (d) (Art. 6-3-d)
of the Convention;

Whereas for the same reasons the Commission now finds that the refusal
by the court to treat his applications to call certain witnesses as
formal applications and its consequent refusal to hear the witnesses
concerned do not constitute a violation of Article 6 (2) (Art. 6-2),
of the Convention in its sense described above; 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