# أحكام المحاكم الأجنبية Decisions of Foreign Courts > أحكام المحكمة الأوروبية لحقوق الإنسان > Decisions of The European Court of Human Rights >  X. v. THE FEDERAL REPUBLIC OF GERMANY - 2472/65 [1967] ECHR 22 (07 April 1967)

## هيثم الفقى

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X. v. THE FEDERAL REPUBLIC OF GERMANY - 2472/65 [1967] ECHR 22 (07 April 1967) 
THE FACTSWhereas the facts presented by the Applicant may be summarised asfollows:The Applicant is an American citizen, born in 1922 in Germany. He isa management consultant by profession and at present residing atFarmington, Michigan, USA.On 20th May, 1963, he lodged an Application (No. 1908/63) with theCommission which was declared inadmissible on 8th July, 1964, fornon-exhaustion of domestic remedies, all proceedings in which theApplicant was involved, at that time still pending before the Germancourts. He now presents his case again as follows:I. He states that in 1959 he took up employment under a two-yearcontract with the Volkswagenwerke A.G. at a monthly salary of 4,000 DM.Due to differences of opinion as to certain management problems, it wasdecided that the Applicant's employment should be discontinued. It wasfurther agreed in writing that he should be fully remunerated for theremainder of the two-year period.As the Company allegedly failed to honour this agreement and as otherdisputes arose, the Applicant filed in November, 1960, a suit beforethe Labour Court (Arbeitsgericht) of Braunschweig claiming damages of70,000 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 immediatelyreleased on bail of 10,000 DM. On his arrest all his papers were seizedalthough no valid search warrant had been issued. These papers weresubsequently 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 RegionalCourt (Landgericht) at Hildesheim on charges of fraud and making falsestatements and sentenced to one year's imprisonment. The above bail wasdeclared forfeit as security for costs.(2) On .. October, 1962, the Applicant was arrested in Austria, hi***tradition to Germany having been requested by the German authoritiesin pursuance of an order of the local judge at Wolfsburg, dated ..October, 1962.(3) It appears that the Applicant had lodged an appeal (Revision) withthe Federal Court (Bundesgerichtshof) with regard to his conviction onthe charge of fraud, but had failed to appeal against his convictionfor making false statements.On January, 1963, the Federal Court quashed the conviction for fraudand ordered a new hearing before the Regional Court at Braunschweig.(4) On .. February, 1963, the Applicant was extradited from Austria toGermany where, without having ever been heard by a judge, he wassuddenly released on .. March, 1963. He was then informed that adeportation order would be issued to bar permanently his entry intoGermany, but that the Public Prosecutor would discontinue the criminalproceedings against him on condition that he did not pursue his claimsagainst the Volkswagenwerke. This he refused to do.After his release on .. March, 1963, the Applicant returned toInnsbruck and, on .. May, 1963, the Mayor (Regierungspr&Atilde;¤sident) ofL&Atilde;¼neburg (Germany) issued a deportation order against him in hisabsence.(5) On .. October, 1963, the Regional Court at Braunschweig heard thecase referred to it by the Federal Court and convicted the Applicanton the charge of fraud, presumably in his absence. On the same day theRegional Court gave a decision declaring the bail of 10,000 DM forfeit,allegedly without having issued an order of forfeiture and withouthaving given the Applicant an opportunity to be heard, and although thelocal judge at Wolfsburg, in 1962, had allegedly ordered the bail tobe returned to him.(6) It appears that the Applicant lodged an appeal (Revision) againsthis conviction of .. October, 1963 with the Federal Court and anotherappeal (Beschwerde) against the order of forfeiture of the bail withthe Court of Appeal at Celle.The latter appeal was dismissed by the Court of Appeal on .. January,1964, and a constitutional appeal (Verfassungsbeschwerde) lodgedagainst this decision with the Federal Constitutional Court(Bundesverfassungsgericht) was rejected on .. February, 1965, as beingclearly ill-founded.By decision of .. November, 1964, the Federal Court, however, againquashed his conviction for fraud and decided that no furtherproceedings should be taken on this count.(7) The Applicant states that he also lodged an application for retrialconcerning his conviction for making false statements and that this wasdismissed by the Court of Appeal of Celle on .. August, 1965.(8) In September, 1963, the Applicant had unsuccessfully requested thatcriminal proceedings should be instituted against the above judge atWolfsburg, another judge, the Public Prosecutor and six witnesses.(9) The Applicant ascribes the actions taken against him to theinfluence of Volkswagenwerke then owned by the Government, and of thelocal judge at Wolfsburg, a former SS officer. The same intriguescaused his dismissal from employment by another management consultantat Siegburg. In September, 1961, he instituted legal proceedingsagainst this second employer before the Labour Court in Cologne, buthe does not indicate what decision was given by this court.The Applicant alleges that, as a result of his illegal and unfoundedprosecutions, he lost his property and employment and suffered injuriesto his health;  that since his arrest his case against theVolkswagenwerke has been deliberately sabotaged;  that his deportationprevents him from visiting his parents living in Germany and caused thebreakdown of his marriage.III. Consequently, it appears that the Applicant was finally convictedonly in respect of the charge of making false statements. Thisconviction was pronounced by the Regional Court of Hildesheim on ..June, 1962 and the Applicant did not appeal against it. In respect ofthe charges of fraud, his conviction was finally quashed by the FederalCourt on .. November, 1964. It seems, therefore, that the Applicant'scomplaints concern primarily his final conviction in 1962 with regardto making false statements but that he also considers the subsequentproceedings to be objectionable.IV. The Applicant's complaints may be set out as follows :Frown: 1) In December, 1960 his papers were seized without a valid searchwarrant 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 gavefalse and misleading statements to the Press which contributed todestroying whatever chances he might have had for future employment inGermany;(3) His conviction and sentence as well as the court proceedingsconcerned were unlawful. In this respect it appears that he complainsnot only of his conviction for making false statements in June, 1962,but also of his subsequent conviction for fraud which was quashed bythe Federal Court. He alleges in particular :Frown: a) that he was wrongly convicted;(b) that the court proceedings in June, 1962 were unlawful in that :Frown: aa) new facts were introduced by the prosecution so late that he hadno 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 thecourts had refused to hear witnesses and check documents attesting tohis innocence;(4) The refusal of a retrial with respect to his conviction for makingfalse statements was unlawful;(5) The Convention had been violated in that :Frown: a) his arrest in Austria on .. October, 1962 leading to hi***tradition to Germany was unlawful, and(b) there was no danger of flight which could have justified hisdetention pending extradition in Austria from .. October, 1962 to ..February, 1963;(6) Subsequent to his extradition the German authorities had violatedthe Convention in that :Frown: a) he was unlawfully detained in prison in Germany from .. February,1963 to .. March, 1963 and was neither heard by a judge during thatperiod nor informed of the reasons for his detention;(b) there was no danger of flight justifying his detention in Germanyfrom .. February to .. March, 1963;(7) During his detention(a) the prison authorities refused to give him writing materials andthe mail from his lawyer and the American Consulate was held back (itis not clear whether this allegation concerns his detention in Austriaor in Germany);(b) he was subjected to degrading and inhuman treatment in that theprison authorities refused him medical treatment, he had to sleep onthe floor for several weeks, and was occasionally locked in a cold cell(it is not clear whether this allegation concerns his detention inAustria or in Germany);(8) He was deprived of his possessions in that the bail was declaredforfeit and moreover the decision of .. October, 1963 by which the bailwas declared forfeit was unlawful and that there was no hearing and nocourt decision published in this regard;(9) The German authorities discriminated against him by reason of hisanti-Nazi opinions.V. The Applicant alleges a violation of Articles 3, 5, 6, 8, 13, 14 and16 of the Convention as well as Article 1 of the Protocol to theConvention. He also claims damages of 613,000 DM.THE LAWWhereas, in regard to the Applicant's complaints that his papers wereseized in 1960 (see IV, (1) of the Facts) and that the PublicProsecutor made statements to the press prior to and during the trialin 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 onlydeal with a matter after all domestic remedies have been exhaustedaccording to the generally recognised rules of international law;  andwhereas the Applicant failed to show that he has raised these pointswith any German court; whereas, therefore, he has not exhausted theremedies available to him under German law; whereas, moreover, anexamination of the case as it has been submitted, including anexamination made ex officio, does not disclose the existence of anyspecial circumstances which might have absolved the Applicant,according to the generally recognised rules of international law, fromexhausting the domestic remedies at his disposal; whereas, therefore,the condition as to the exhaustion of domestic remedies laid down inArticles 26 and 27, paragraph (3) (Art. 26, 27-3), of the Conventionhas not been complied with by the Applicant;Whereas the Applicant apparently complains of his conviction andsentence by the Hildesheim Regional Court on .. June, 1962, on chargesof making false statements and of fraud;Whereas, first in regard to his complaints relating to his convictionand sentence for making false statements and the court proceedingsrelating to this charge, the Applicant failed to appeal from thedecision of the Regional Court at Hildesheim, dated .. June, 1962;whereas, therefore, he has again not exhausted the remedies availableto him under German law, and no special circumstance is to him underGerman law, and no special circumstance is disclosed which might haveabsolved him from exhausting such remedies; whereas, therefore, thecondition as to the exhaustion of domestic remedies laid down inArticles 26 and 27, paragraph (3) (Art. 26, 27-3), of the Conventionhas not been complied with by the Applicant;Whereas, secondly, as regards his complaints concerning his convictionand 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 wassuccessful in that, on .. November, 1964, the Federal Court quashed hisconviction by the former court and decided that no further proceedingsshould be taken on this count; whereas, even assuming that hisallegations in respect of the above proceedings might raise a questionunder the Convention, the alleged maladministration of justice on thepart of the Regional Court at Hildesheim must be regarded as havingbeen remedied by the decision of the Federal Court; whereas it followsthat this part of the Application is manifestly ill-founded within themeaning of Article 27, paragraph (2) (Art. 27-2), of the Convention;Whereas, in regard to the Applicant's complaints relating to his claimfor a retrial of the case against him for making false statements andthe court proceedings concerned (see IV, (4) of the Facts), it is tobe observed that the Convention, under the terms of Article 1 (Art. 1),guarantees only the rights and freedoms set forth in Section I of theConvention; and whereas, under Article 25, paragraph (1) (Art. 25-1),only the alleged violation of one of those rights and freedoms by aContracting Party can be the subject of an application presented by aperson, non-governmental organisation or group of individuals;Whereas otherwise its examination is outside the competence of theCommission ratione materiae; whereas the right to a retrial is not assuch included among the rights and freedoms guaranteed by theConvention; and whereas, in accordance with the Commission's constantjurisprudence, proceedings concerning applications for retrial falloutside the scope of Article 6 (Art. 6) of the Convention (seeApplications 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 incompatiblewith 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 hisarrest and detention in Austria (see IV, (5) of the Facts) and hisalleged bad treatment in prison during his detention in Austria (seeIV, (7) of the Facts) it is to be observed that the present Applicationis directed solely against the Federal Republic of Germany; whereas hisabove complaints relating to events which have occurred in Austria, canin no way be held to involve any responsibility under the Conventionof the Federal Republic of Germany;  whereas, therefore, the Commissionhas no competence ratione personae to examine these complaints in sofar as they relate to the Applicant's detention in Austria; whereas itfollows that, in this respect, the Application is incompatible with theprovisions 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 wronglydetained in prison in Germany from .. February, 1963 to .. March, 1963following his extradition (see IV, (6) of the Facts) and also in regardto his complaints relating to his alleged bad treatment which heunderwent in prison in Germany (see IV, (7) of the Facts), it is to beobserved that, under Article 26 (Art. 26) of the Convention, theCommission may only deal with a matter after all domestic remedies havebeen exhausted according to the generally recognised rules ofinternational law; and whereas the Applicant failed to show that he hasraised these points before any German Court; whereas, therefore, he hasnot 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 theexistence of any special circumstances which might have absolved theApplicant, according to the generally recognised rules of internationallaw, from exhausting the domestic remedies at his disposal; whereas,therefore, the condition as to the exhaustion of domestic remedies laiddown in Articles 26 and 27, paragraph (3) (Art. 26, 27-3), of theConvention has not been complied with by the Applicant;Whereas, in regard to the Applicant's complaints that, as a result ofthe forfeiture of his bail, he was deprived of his possessions, and tohis complaints relating to the court proceedings concerned (see IV, (8)of the Facts), it is to be observed that, even assuming that suchproceedings should fall under Article 6, paragraph (1) (Art. 6-1), ofthe Convention, an examination of the case as it has been submitted,including an examination made ex officio, does not disclose anyappearance of a violation of the rights and freedoms set forth in theConvention or the Protocol and in particular in the Articles of thesaid Protocol;Whereas it follows that this part of the Application is manifestlyill-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 suffereddiscriminating treatment by reason of his anti-Nazi opinions (see IV,(9) of the Facts), an examination of the case as it has been submitteddoes equally not disclose any appearance of a violation of the rightsand freedoms set forth in the Convention and in particular in Article14 (Art. 14); whereas it follows that this part of the Application isalso 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 thelength of the proceedings before the Labour Court at Braunschweigconcerning his claim against the Volkswagenwerke A.G. (see I of theFacts), 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 areasonable time by an independent and impartial tribunal establishedby law";Whereas the Applicant alleges that he filed his action in the LabourCourt 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 notyet been fixed; whereas it is pointed out that the right to have one'scase heard within a reasonable time is, particularly in civil cases,dependent on the interested Party taking himself the necessary stepsduly to pursue the action; whereas, in the present case, the Applicanthas failed to show in what way he has taken any steps to expedite theproceedings before the Labour Court of Braunschweig;Whereas the Commission is satisfied that an examination of the case asit has been submitted, including an examination made ex officio, doesnot disclose any element indicating that it was the Court which wasresponsible for the delay; whereas, consequently, the Commission findsno appearance of a violation of the rights and freedoms set forth inthe Convention and in particular in Article 6 (Art. 6);Whereas it follows that this part of the Application is manifestlyill-founded within the meaning of Article 27, paragraph (2)(Art. 27-2), of the Convention.Now therefore the Commission declares this Application INADMISSIBLE.[/align]

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