A 24912 COUNCIL OF EUROPE EUROPEAN COMMISSION OF HUMAN RIGHTS DECISION OF THE COMMISSION AS TO THE ADMISSIBILITY of application No. 704/60 lodged by H against the Federal Republic of Germany The European Commission of Human Rights, sitting in private on 4th August 1960 under the presidency of Mr. C.H.M. Wildock and the following members being present: Mr. Thustel Des, Vice-President; J.C. Beaufort, Susterhenn, Jd. Crosbie, Ne. Greif, Eri Cor, C. Stenberg, B. McNulty, Secretary to the Commission Having regard to the application lodged on 31st December 1959 by H against the Federal Republic of Germany and registered on 8th February 1960 under File No. 704/60, Having regard to the report prepared for in Rule 45, paragraph 1 of the Rules of Procedure of the Commission; Having deliberated, THE FACTS Whereas the facts of the case may be summarised as follows: - The applicant is a German citizen born in 1916. He has been convicted on various charges before and after the war and has spent about 20 years in prison. He is at present detained in a prison in Welf, having been convicted in 1956 and sentenced to 12 years imprisonment. In 1940 the applicant was convicted on a charge of homosexuality and detained in a concentration camp in Emsland until the end of the war. After his liberation, he worked as a political informer for the British Occupation Forces in Papenburg, being called "The White Death" (Weisser Tod) by the local population. On 14th August 1945 he was arrested on the suspicion of having murdered four fellow prisoners in the concentration camp on 21st April 1945. The murders had allegedly taken place during the disorganized evacuation from the camp. On 31st January 1947 the applicant was convicted by the Regional Court (Landgericht) of Osnabrück and sentenced to life imprisonment on each of four separate charges. This decision was, however, annulled by the Regional Court of Appeal (Oberlandesgericht) of Oldenburg on 10th August 1947 which ordered a new trial. The result of this re-trial was that on 4th September 1948 the applicant was acquitted by the Jury Court (Schwurgericht) of Bielefeld, the Court holding that reliance could not be placed on the four witnesses who had testified to the applicant's guilt. The Court stated, nevertheless, that it was not entirely convinced that the applicant had not committed the crimes in question, but it acquitted him for lack of proof. The applicant attempted to obtain a revision of his case on two occasions in the following years, but his applications were refused on 4th February 1953 and on 6th November 1959 on the ground that a person already acquitted could not ask for a re-trial. The applicant has at various times requested that criminal proceedings be instituted against one of the four witnesses in the case, but these applications have been unsuccessful. However, as a result of proceedings instituted against him by a third person, the individual concerned was convicted in 1957 on a charge of perjury but no sentence was imposed. The applicant alleges that the proceedings instituted against him in 1945 were the result of neo-Nazi persecution because of his cooperation with the British de-nazification authorities. The applicant furthermore alleges that he was arrested without a warrant issued by competent authorities; that his defense was obstructed in that essential documents "disappeared"; that his free communication with the British military commander was impeded; that he was detained for more than a year without a court decision; that the indictment was not formulated until 18 months after his arrest; that the indictment was not clear and precise; that some of the judges were former Nazis; that he received no compensation for his unjustified detention during a period of three years. The applicant alleges violations of Articles 3, 5, paragraphs (4) and (5), 6, paragraphs (1), (2) and (3), and 14. He claims damages of DM 50,000 for himself, DM 10,000 for his mother, and DM 5,000 for his sister, a re-trial, and rehabilitation of his dignity. On 5th July 1956 the applicant was convicted by the Regional Court of Bielefeld on 54 charges of fraud and on various charges of homosexual practices and sentenced to 6 years imprisonment and subsequent preventive detention as being a habitual criminal. He states that his conviction was the result of the applicant's trial being interrupted because of the illness of the judge. He appealed against his conviction to the Federal Court (Bundesgerichtshof), but this appeal was rejected on 23rd January 1957. On 17th May 1958, an application for a re-trial was rejected by the Regional Court of Bielefeld and this was confirmed on appeal by the Regional Court of Appeal of Hamm on 30th May 1958. On 18th January 1960 the Regional Court of Bielefeld rejected a new application for re-trial. No official document relating to these decisions has been submitted by the applicant. The applicant alleges: - that the judges were biased against him because of his anti-Nazi history; - that the penalty was excessive; - that the court paid no attention to a list of 100 witnesses, submitted by the defense; these witnesses would have been able to confirm that the applicant is constitutionally a homosexual; - that the hearing was not public; - that the public was excluded during the announcement of the judgment of the case; - that he was not presumed innocent in that the presiding judge made derogatory statements about the accused by quoting to the witnesses remarks made by the prison chaplain that the accused was a "fake" (Blender) and an "imposter" (Scheinwerfer); - that the defense requested in vain that the judge should withdraw as he had made biased remarks; - that the same witnesses were not heard during the first and second trials; - that he was subjected to inhuman treatment in that no hot meals were served on the days of court hearings; - that the decision of the court contains numerous mistakes; - that the court called a psychiatric witness although nine other experts had already examined the accused; - that this new examination led to an opinion which conflicted with the opinion obtained from the nine other experts and which was much less favorable to the applicant; - that the judges were former Nazis; - that the institution of proceedings against him was a "revenge" on the part of old Party members. The applicant alleges violations of Articles 3, 5, 6, and 14 of the Convention. He asks that a re-trial be granted and that his human rights be restored. On 16th March 1959 the applicant brought proceedings against the judges of the Regional Court of Bielefeld alleging lack of impartiality. This case has not as yet been decided. The applicant has submitted to the Commission a letter of 1st December 1959 addressed to the German Penal Law Commission and an extract from a textbook on medicine. He requests in his letter that Article 175 of the German Criminal Code be abolished, pointing out that homosexuality is an inherent factor in the personality of certain individuals for which they cannot be blamed or punished. It does not appear clearly whether the applicant raises this question before the Commission. On 6th January 1960 the applicant addressed a complaint to the Federal Constitutional Court (Bundesverfassungsgericht) that his letter submitting the present application to the Commission had been withheld by the prison authorities. This complaint was rejected on 1st February 1960. The applicant does not appear to have experienced any difficulty in corresponding with the Secretariat of the Commission in regard to his application. Whereas the applicant alleges that during the various criminal proceedings instituted against him the German Courts have violated Articles 3, 5, 6, and 14 of the Convention as stated in detail above, Whereas the principal facts alleged relate to a period prior to 4th September 1953, the date of the entry into force of the Convention of Human Rights and Fundamental Freedoms with respect to the Federal Republic of Germany, and whereas in accordance with the generally recognized rules of international law, the said Convention only governs, for each Contracting Party, facts subsequent to its entry into force with respect to that Party; Whereas it follows that the application, insofar as it relates to the said facts, must be rejected ratione temporis; Whereas in regard to the applicant's claim for revision of the two decisions against him, namely those of 8th September 1948 by the Jury Court of Bielefeld and of 23rd January 1957 by the Federal Court respectively, it is to be observed that the Convention, under the terms of Article 1, guarantees only the rights and freedoms set forth in Section 1 of the Convention; and whereas under Article 25 paragraph (1) only the alleged violation of one of those rights and freedoms by a Contracting Party can be the subject of an application admissible by the Commission; Whereas, furthermore, the right of revision claimed by the applicant is not, as such, included among the rights and freedoms guaranteed by the Convention; Whereas it follows that this part of the application is incompatible with the provisions of the Convention and must be rejected in accordance with Article 27, paragraph (2) of the Convention; Whereas in regard to the applicant's complaint of alleged violations of the Convention in respect of the proceedings before the Regional Court of Bielefeld in 1956, an examination of the case as it has been submitted, including an examination ex officio, does not disclose any apparent violation of the rights and freedoms set forth in the Convention and, in particular, in Articles 3, 5, 6, and 14; Whereas it follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 27, paragraph (2), of the Convention; Whereas in regard to the applicant's complaint concerning the proceedings instituted by him on 16th March 1959, against the judges of the Regional Court of Bielefeld, the Commission, under Article 26 of the Convention, may only deal with a matter after all domestic remedies have been exhausted according to the generally recognized rules of international law; and whereas in regard to those proceedings the applicant has not exhausted the remedies available to him under German law, the case still being pending; Whereas, moreover, an examination of the case as it has been submitted, including an examination ex officio, does not disclose the existence of any special circumstances which could have absolved the applicant, according to the generally recognized rules of international law, from exhausting the domestic remedies at his disposal; Whereas it follows that the condition as to the exhaustion of domestic remedies laid down in Article 26 has not been complied with in the present case; Whereas, therefore, this part of the application must be rejected in accordance with Article 27, paragraph (3), of the Convention; Whereas, inasmuch as the applicant appears to allege that Article 175 of the German Criminal Code violates the provisions of the Convention, the Commission in its decisions on the admissibility of applications Nos. 104/55, 167/56, 261/57, and 600/59, has...

previously pointed out that the Convention permits a High Contracting Party in its legislation to make homosexuality a punishable offence and that the right to respect for private and family life may, under Article 8 of the Convention, be made subject in a democratic society to interference by a public authority in the interests of health and morals; and whereas the Commission has accordingly held in the decisions already mentioned that the provisions of Article 175 of the German Criminal Code are not inconsistent with the provisions of the Convention; Whereas it follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 27, paragraph (2), of the Convention. Now therefore the Commission DECLARES THIS APPLICATION INADMISSIBLE Secretary to the President of the Commission Commission (1.8. Mott) (C.H.H. Valdock) Tee