THE FACTS

The facts of the case as submitted by the applicant may be summarised
as follows:

The applicant is a German citizen, born in 1902 and resident in St.
Jean-Cap Ferrat.

He has lodged with the Commission a previous application (No. 2257/64)
(1) which related to certain criminal proceedings against him before
the Regional Courts at Munich and Augsburg.
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(1) See Report of the Commission of 3 February 1970 and the resolution
of the Committee of Ministers (D.H. (71) 1) adopted on 19 February 1971.

 The substance of the applicant's complaints in that application
concerned the length of these criminal proceedings, the fact that they
were in the end discontinued in accordance with Article 153 (3) of the
Government Code of Criminal Procedure on the ground that his guilt was
insignificant and consequences of his action unimportant as well as
various other allegations regarding the conduct of his case by the
German courts.

By partial decision of 7 October 1966 the Commission rejected as being
incompatible with the Convention and manifestly ill-founded (Article
27, paragraph (2), of the Convention) the applicant's complaints
relating to the conduct of his case before the German courts but
invited the parties to submit written and oral observations on the
questions of the dismissal of his case under Article 153 (3) of the
Code of Criminal Procedure and the length of the proceedings.
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On 5 April 1968 the Commission took a final decision on the
admissibility of these complaints. It rejected for non-exhaustion of
domestic remedies (Article 27 (3) of the Convention) the applicant's
complaint relating to the termination of the proceedings under the
above provision of the Code of Criminal Procedure finding that the
applicant had failed to put this question before the Federal
Constitutional Court (Bundesverfassungsgericht) invoking Article 013
(1) of the Basic Law by means of a constitutional appeal
(Verfassungsbeschwerde).

On the other hand, the Commission declared admissible the applicant's
complaint under Article 6 (1) of the Convention relating to the length
of the criminal proceedings against him. On 3 February 1970 the
Commission adopted its report on this point and on 19 February 1970 the
Committee of Ministers decided, in accordance with the opinion
expressed by the Commission, that there had been no violation of the
applicant's right under Article 6 (1) of the Convention to a hearing
of his case within a reasonable time.

It appears that, in his present application, the applicant wishes to
complain of the length of two further criminal proceedings against him
one of which has equally been terminated under Article 153 (3) of the
Code of Criminal Procedure. The first of these proceedings was
allegedly instituted against him in 1960 before the District Court
(Schöffengericht) of Hanover as a result of an information laid in 1957
to the effect that the applicant had made false accusations (falsche
Anschuldigungen) against a Mr. B. It appears that the applicant had
accused Mr. B. of having falsely assumed the military rank of "Major".

Certain aspects of these proceedings have been the subject of a further
previous application (No. 2588/65) by the applicant which he had lodged
with the Commission in August 1965. In that case the applicant had
complained to the Commission that the above prosecution against him was
based on trifles and pure misunderstandings, that the Hanover District
Judge was biased, and that a medical examination which had been ordered
to ensure his presence in court at Hanover endangered his life owing
to his generally bad health and allergic reactions to injections. As
the applicant had informed the Commission on 20 November 1967 that he
wished to withdraw this application, the Commission had decided on 1
April 1968 to strike it off its list of cases.

From the statements now submitted in regard to his present application
it appears that, after the above criminal proceedings had been started
against him in 1960 before the District Court of Hanover, three
witnesses were heard by rogatory commissions in Munich and Tettnang.

The applicant states that, since these witnesses had given evidence on
his behalf, the proceedings were afterwards adjourned, in accordance
with Article 205 of the Code of Criminal Procedure, and no further
action was taken with regard to the charges against him until 1969 when
the proceedings were continued upon the request of the Federal Ministry
of Justice. According to the applicant, this was a reprisal against his
having lodged with the European Commission of Human Rights his above
application No. 2257/64. It appears, however, that the District Court
of Hanover decided in 22 April 1970 that the proceedings should be
terminated in accordance with Article 153 (3) of the Code of Criminal
Procedure on the ground that the applicant's guilt was insignificant
and the consequences of his action unimportant. The Court apparently
also noted that the applicant's counsel had been heard with regard to
the termination.

The applicant then lodged a constitutional appeal against this decision
which was declared inadmissible by three judges of the Federal
Constitutional Court on 11 November 1970. The Court found that, as the
proceedings were terminated, the applicant was no longer a victim of
any violation of constitutional rights, and the provisions of the Basic
Law, including Article 103 (1), did not guarantee any right of appeal
to the accused person nor did they impose the obligation on the courts
to continue with the proceedings and obtain further evidence leading
to a possible acquittal. The Court continued that it did not need to
examine the question whether or not Article 153 (3) had been correctly
applied in a particular case unless any violation of constitutionally
guaranteed rights became apparent. This was not so in the present case
and, in particular, Article 103 (1) of the Basic Law did not require
that the applicant should have given his consent to the termination of
the proceedings against him. It was sufficient that the applicant had
an opportunity of being heard and this had been accomplished by reason
of the fact that the intention to terminate had been communicated in
advance to the applicant's lawyer in Hanover who had an opportunity of
making submissions in this respect.

As regards the second proceedings against the applicant it appears that
he was charged in 1967 with an offence of tax evasion
(Steuerhinterziehung) committed in 1953. The applicant states that
subsequently a court order (Strafbefehl) was issued against him by the
District Court in Munich requiring him to pay a fine of 3,000 DM. The
applicant, who considered that he had not committed any offence in this
respect, made an objection (Einspruch) against the above order as a
result of which criminal proceedings were initiated against him before
the Munich District Court and the Court fixed a three-day hearing for
.. to .. July 1969.

It appears that the applicant made an unsuccessful appeal (Beschwerde)
to the Regional Court (Landgericht) in Munich against the decision
fixing a date for trial. He then lodged with the Federal Constitutional
Court a constitutional appeal against these decisions. On .. November
1970 three judges of the Federal Constitutional Court decided that the
appeal was inadmissible on the ground that the decision fixing the date
for trial was an interlocutory decision (Zwischenentscheidung) which
could not be challenged by means of an appeal to the Constitutional
Court. Furthermore, insofar as the appeal was directed against his
being prosecuted for a criminal offense, remedies had not yet been
exhausted.

Complaints

With regard to the Hanover proceedings against him for charges of
making false accusations, the applicant now complains to the Commission
that these proceedings were wrongfully discontinued under Article 153
(3) of the Code of Criminal Procedure after a period of thirteen years.
He explains that the charge concerned was unjustified from the very
beginning and makes various submissions to the effect that he was in
a position to prove that his remarks about Mr. B. were true. In this
connection he also makes again extensive submissions concerning the
proceedings which were the subject matter of his previous application,
No. 2257/64.

The applicant further alleges that the Hanover proceedings against him
were initiated in 1958 only because it would have helped the
prosecution's case in the Munich defamation proceedings if he had a
previous conviction, and they were continued in 1969 only because the
Federal Government repeatedly referred to that case during the
proceedings before the Commission concerning application No. 2257/64.

The applicant complains that the Hanover proceedings should not have
been terminated under Article 153 (3) of the Code of Criminal
Procedure, i.e. on the ground that his guilt was insignificant and the
consequences of his action unimportant. He states that he had given
strict instructions to his lawyer in Hanover not to give his consent
to this termination but the lawyer had failed to abide by his
instructions and thereby violated his duties as a legal aid lawyer.
This, according to the applicant, constituted a violation of Article
6 (3) (c) of the Convention and he requests the Commission generally
to examine the question of the duties of a lawyer who has been
appointed under national legal aid legislation.

On the other hand according to the applicant it would have been proper
procedure to discontinue these proceedings either because criminal
prosecution on the charges concerned was barred by the period of
limitation or because any further action by the court after a period
of thirteen years was inconsistent with his right to a hearing within
a reasonable time as guaranteed by Article 6 (1) of the Convention.

Withe regard to the tax proceedings before the District Court in Munich
the applicant complains again that these have been initiated seventeen
years after the offence was alleged to have been committed. Moreover,
the trial of this charge had deliberately been fixed for .. to .. July
1969 being exactly the dates for which the European Commission had
ordered an oral hearing in Strasbourg on the merits of his application
No. 2257/64. The applicant states that this attempt on the part of the
authorities to prevent him from defending his case before the
Commission failed, however, as the Munich hearing had to be adjourned
owing to a mistake in the summonses.

The applicant alleges violations of Article 6 of the Convention. He
contends that the criminal proceedings against him were the result of
his anti-Nazi opinions and the fact that he was the bearer of secret
information which he had obtained during the war as a former member of
the German Intelligence Service. He further contends that as a
consequence of the length of these proceedings his health and financial
position had been completely ruined.

THE LAW

1. The Commission first considered the applicant's complaints relating
to the criminal proceedings against him before the District Court of
Hanover on charges of making false accusations. In this respect the
applicant has alleged that the proceedings started in 1957 and were
discontinued on .. April 1970 in accordance with Article 153 (3) of the
German Code of Criminal Procedure on the ground that the applicant's
guilt was insignificant and the consequences of his action unimportant.
He has complained under Article 6 (Art. 6) of the Convention of the
length of these proceedings and of their termination on the above grounds.

Article 6 (1) (Art. 6-1) of the Convention provides, inter alia, that
in "the determination of .... any criminal charge against him, everyone
is entitled to a fair .... hearing within a reasonable time by an
independent and impartial tribunal established by law". Furthermore,
Article 153 of the German Code of Criminal Procedure provides:

"(1) Petty offenses are not prosecuted if the guilt of the doer is
minor, unless there is a public interest in obtaining a judicial
decision.

(2)  If in a case of a minor crime the guilt of the doer is
insignificant and if the public interest does not require enforcement,
the prosecution may terminate the proceedings, with consent of the
Court competent for the decision on opening the main proceedings.

(3)  If the public charge has already been preferred, the Court may
at any stage of the proceedings terminate them, with the consent of the
prosecution and after hearing the person charged; the order is not
subject to appeal."

With regard to the applicant's first complaint in this connection, the
Commission refers to its constant jurisprudence that, in regard to any
judicial decisions complained of, it is not competent to deal with an
application alleging that errors of law or fact have been committed by
domestic courts, except where it considers that such errors might have
involved a possible violation of any of the rights and freedoms set
forth in the Convention (see e.g. decision on the admissibility of
applications No. 458/59, Yearbook, Vol. 3, pp. 222, 232 and No.
1140/61, Collection of Decisions, Vol. 8, pp. 57, 62). Consequently,
with regard to the applicant's above complaint, the Commission is only
called upon to examine the question whether or not the termination of
criminal proceedings, in accordance with paragraph (3) of Article 153
of the Code of Criminal Procedure, is consistent, both in principle and
in the particular circumstances of the present case, with the
applicant's right to have criminal charges against him determined by
a tribunal after a fair hearing of his case, as is guaranteed by
Article 6 (1) (Art. 6-1) of the Convention.

Under German law the court has the power to terminate proceedings in
accordance with Article 153 (3) where it finds that the accused
person's guilt is insignificant and the consequences of his actions are
unimportant. The prosecution must give consent but it is not necessary
that the applicant should also agree; he must simply be heard prior to
the termination and he has the possibility, in this connection, to show
that the offense is not punishable, or that it may not be prosecuted
for other reasons, or that there is no guilt on his part and that
proceedings should therefore be closed in another way.

It is true that a decision under Article 153 (3) of the German Code
implies some findings of guilt on the part of the person charged with
a criminal offense. However, contrary to the procedure under paragraph
(2) of that provision where the prosecution authority makes such a
decision, the decision under paragraph (3) is given by a court after
hearing the accused person. Moreover, the Commission finds that the
notion of "determination of a criminal charge" must, in principle, be
understood to give a court the power to terminate proceedings, for
example, where it has no interest in their continuation. It follows
that Article 153 (3) of the German Code of Criminal Procedure is not,
from this point of view, inconsistent with Article 6 (1) (Art. 6-1) of
the Convention.

However, in the opinion of the Commission it is nevertheless
conceivable that, where the Court so determines a criminal charge,
namely by terminating the proceedings against the accused, the
particular circumstances surrounding such decision might give rise to
the question whether or not the accused had received a "fair hearing"
within the meaning of Article 6 (1) (Art. 6-1) of the Convention.

In the present case, the applicant's lawyer received notice of the
proposed termination and was given an opportunity to make submissions
to the Court showing that the criminal charge against the applicant
should be determined in a manner other than by the termination of the
proceedings under Article 153 (3) of the Code of Criminal Procedure.
In fact, the applicant's lawyer apparently made certain submissions
although the applicant states that the substance of these submissions
did not correspond to his instructions. In this connection, the
applicant has made a further complaint which is dealt with below
(paragraphs 2 and 3).

Furthermore, although the applicant has alleged that he had not given
his consent to such decision by the court and apart from the fact that
under the applicable German law such consent is not required, it
emerges clearly from the applicant's previous application No. 2588/65
which he later withdrew, that he himself considered the case against
him as being based on trifles and misunderstandings. It appears,
therefore, somewhat inconsistent on his part that, in his present
application, he should now make objections against the termination of
the proceedings against him by a court finding that the matter was
indeed trivial and should therefore not be further considered.

It follows that, on the facts of the present case, procedure adopted
by the German courts in terminating the proceedings against the
applicant, is not inconsistent with his rights under Article 6 (1)
(Art. 6-1) of the Convention.

As regards the applicant's second complaint concerning the length of
these proceedings the Commission notes that, although the information
against him had been laid in 1957, the proceedings were not initiated
until 1960 and were subsequently stopped in accordance with Article 205
of the Code of Criminal Procedure. This provision states that if "the
main trial cannot be held for a long time because of the absence of the
person charged or because of some other impediment on his part, the
court may by order provisionally discontinue the proceedings. The
Presiding Judge secures the evidence so far as necessary". According
to the applicant, no further action was taken after this order had been
made until the proceedings were continued in 1969 and terminated in
April 1970 but no particulars have been submitted by him in this
regard.

It is, therefore, clear that during a considerable period between 1960
and 1970, being the period under consideration in the present case, it
had not been possible to proceed with the case "because of the absence
of the applicant or because of some other impediment on his part".
Furthermore, it is clear that, when the proceedings were continued in
1959 this order was made for the sole purpose of terminating them
definitely on the grounds already stated. On these facts the Commission
finds that the Hanover District Court cannot be regarded as having
unreasonably delayed the criminal proceedings against the applicant and
examination of the case as it has been submitted, including an
examination made ex officio does not therefore disclose any appearance
of a violation of the rights and freedoms set forth in the Convention
and in particular in Article 6 (Art. 6).

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.

2. The applicant has further made certain complaints about the conduct
of his lawyer who represented him in the Hanover proceedings. However,
under Article 25 (1) (Art. 25-1) of the Convention, the Commission may
only admit an application from a person, non-governmental organisation
or group of individuals, where the applicant alleges a violation by one
of the Contracting Parties of the rights and freedoms set forth in the
Convention and where that party has recognised this competence of the
Commission. The Commission may not, therefore, admit applications
directed against private individuals. In this respect, the Commission
refers to its constant jurisprudence (see e.g. the decisions on the
admissibility of applications No. 172/56, Yearbook, Vol. 1, pp. 211,
215 and No. 1599/62, Yearbook, Vol. 6, pp. 348, 356).

It follows that this part of the application is incompatible ratione
personae with the Convention within the meaning of Article 27 (2)
(Art. 27-2).

3. The Commission has also considered whether the alleged conduct of
the lawyer could have involved the responsibility of the rights and
freedoms guaranteed by the Convention under the Convention. In this
connection, the Commission considered again whether the courts failed,
by reason of the alleged conduct of the applicant's lawyer, to ensure
that the applicant had a fair hearing of his case within the meaning
of Article 6 (1) (Art. 6-1) of the Convention.

However, the Commission found that an examination of the case as it has
been submitted does not disclose any appearance of a violation of this
right. It follows that this part of the application, considered under
Article 6 (1) (Art. 6-1), is manifestly ill-founded within the meaning
of Article 27, paragraph (2) (Art. 27-2), of the Convention.

4. The Commission finally examined the applicant's complaint relating
to the proceedings against him before the District Court of Munich for
having alleged that the proceedings concerned lasted beyond a
reasonable time resulting in a violation of his rights under Article
6 (1) (Art. 6-1) of the Convention. He has further alleged that the
trial had deliberately been fixed by the Munich District Court at a
time in July 1969 when he had other commitments and this had been done
for the sole purpose of preventing him from defending his case.

As regards the latter allegation the Commission notes that, apart form
the fact that the applicant has adduced no evidence to show that his
allegations concerning the court's motives in fixing the date for trial
in July 1969 are true, the applicant has stated himself that the
hearing was subsequently adjourned. Consequently, there can be no
question of his having been prejudiced in the defence of his case at
that time.

As regards the length of these proceedings the Commission notes that
the applicant was charged in 1967 with an offence committed in 1953.
The period which is under consideration in regard to these proceedings
therefore, only started to run in 1967. No particulars have been given
as to the end of the period but it appears that the proceedings were
still pending in November 1970 when the Constitutional Court rejected,
for non-exhaustion of remedies, a constitutional appeal made by the
applicant in regard to these proceedings.

The Commission is therefore called upon to consider a period of about
four and a half years at the most, and finds that, having regard to the
applicant's own conduct in relation to court proceedings in general,
this period does not exceed a reasonable time within the meaning of
Article 6 (1) (Art. 6-1) of the Convention. In this connection, the
Commission points out that the applicant in the present case, invoked
the Federal Constitutional Court merely on the basis of the fact that
the Court fixed a date for a hearing, and also refers to its report of
3 February 1970 on the Soltikow Case (Application No. 2257/64) and the
Committee of Ministers's decision in that case, dated 19 February 1971
(Resolution D.H. (71) 1).

In these circumstances the Commission concludes that an examination of
these complaints as they have been submitted, including an examination
made ex officio, again does not disclose any appearance of a violation
of the rights and freedoms set forth in the Convention and in
particular in Article 6 (Art. 6).

It follows that this part of the application is equally manifestly
ill-founded within the meaning of Article 27, paragraph (2)
(Art. 27-2), of the Convention.

For these reasons, the Commission DECLARES THIS APPLICATION
INADMISSIBLE