X. proti Německu



THE FACTS

Whereas the facts presented by the Applicant may be summarised as

follows:

The Applicant is a German citizen born in 1902 and at present detained

in the prison at Butzbach.

On ... 1964, the Applicant was convicted of a homosexual offence with

an adolescent by the Criminal Chamber of the Regional Court

(Strafkammer des Landgerichts) in Frankfurt.

His appeal (Revision) was rejected by the Federal Court

(Bundesgerichtshof) on ... 1965.

On ... 1965, the Applicant requested the Public Prosecutor in Frankfurt

to prosecute one of the witnesses for perjury and procuration of

perjury in his trial. The Applicant was acquitted on the count on which

this witness gave evidence. This count related to homosexual behaviour

with the witness's son who had given evidence, which the Applicant

states to be false, of homosexual acts by the Applicant. The Applicant

considers that although he was acquitted on this count the evidence

given may have affected his sentence.

The Applicant complains particularly that he has been sentenced to

preventive detention (Sicherungsverwahrung) and considers that he has

suffered injustice in that - the court refused to grant an application

of the defence to call a second psychiatrist as an expert witness

because, in the opinion of the Applicant, the psychiatrist called did

not show the necessary understanding of the case and had a negative

attitude towards homosexuality;

a statement appeared in the judgment which is not true and which was

not at any stage of the proceedings put to the Applicant so that he had

no opportunity of disproving it, namely: that the Applicant had

discussed sexual subjects with the adolescent with whom he was

convicted of committing homosexual acts before these acts were

committed with the intention of causing erotic stimulation;

the proceedings were rushed and the court sat for an unduly long time

(from 9.15 a.m. to 9.35 p.m.) with the result that certain matters were

not given sufficient attention: in particular the motives, tendencies

and personality of the accused seen as a whole;

his five former convictions were taken into account in fixing the

sentence and ordering preventive detention without proper attention

being given to the fact that the first two convictions (1938 and 1940)

occurred during the period of National Socialist Government and were

affected by the political circumstances. It was impossible for him to

apply for retrial and prove his innocence because the competent court

was in East Berlin where the offenses were treated as having been

effaced by prescription. For this reason the Applicant considers that

they were improperly taken into consideration by the trial court.

With regard to the other convictions the Applicant (who in one case

considers that he was innocent) objects that they have been taken into

account without proper consideration being given to the mitigating

factors which were present in each case.

The Applicant complains that the court had treated his opinion that an

affectionate relationship between men and youths in the Socratic

tradition was justified as a negative factor in assessing his

punishment.

The Applicant also complains that a letter which he sent to a witness

on the count on which he was acquitted was not forwarded on grounds

that it was liable to influence the proceedings. He appealed to the

Court and the Court of Appeal (Oberlandesgericht) on this point but his

appeals were rejected.

The Applicant relies on the following Articles of the Convention: 1,

5 (2), 5 (5), 6 (1), 6 (3) (a), 6 (3) (b), 6 (3) (d), 9 (1), 14.

THE LAW

Whereas, in regard to the Applicant's complaint concerning his

conviction and subsequent detention, 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 and especially in the Articles invoked by the

Applicant;

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 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

III, page 233) and 1140/61 (X v. Austria - Collection of Decisions,

Volume 8, page 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) (Art. 27-2), of the Convention;

Whereas, in regard to the Applicant's complaint that a letter addressed

by him to a witness was not forwarded, 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 and in particular in Article 8 since the

stopping of a letter calculated to influence a witness is justified as

a measure aimed at the prevention of crime and thus falls within the

terms of paragraph (2) of Article 8 (Art. 8-2); 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.