COUNCIL OF EUROPE EUROPEAN COMMISSION OF HUMAN RIGHTS DECISION OF THE COMMISSION AS TO THE ADMISSIBILITY of Application No. 986/61 by G K B against the Federal Republic of Germany The European Commission of Human Rights sitting in private on 7th May 1962, under the presidency of H. S. PETREN and the following members being present: M. P. FABER L.d.C. BUAUPORT 4. SUSTERHENY Mrs. G. JAMSSEN-PEVTSCHIM MM. W. ERIM B. DRIMACORL F. CASTBURG G. SPERDUTI M. MAGUIRE S. SIGURJONSSON J.E.S. PACED? Having regard to the Application lodged on 21st January 1961 by G K B against the Federal Republic of Germany and registered on 30th January 1961 under file No. 986/61; Having regard to the report provided for in Rule 45, paragraph (1) of the Rules of Procedure of the Commission; Having deliberated, - 72.052 986/61 -~2 THE FACTS whereas the facts presented by the Applicant may be summarized as follows; The Applicant is a German citizen born in 1923 and living in Hattingen. He states that in the autumn of 1958 he was arrested under suspicion of having committed a violation of Article 175 of the German Penal Code (homosexual relations). He was previously convicted for similar offences in 1941 and 1953. The Applicant denied his guilt and requested on two occasions, on 20th October and 18th November 1958, that a lawyer should be appointed to assist him during the investigation of the case by the police but he received no reply to these requests. It does not appear from the file when a lawyer was assigned to act for his defence. On 2nd January 1959 the Applicant was convicted by the Regional Court (Landgericht) of Bochum and sentenced to two years' imprisonment. He appealed against this decision, alleging in his pleading of 17th November 1959, that the Convention had been violated during the proceedings before the Regional Court of Bochum. On 12th February 1960 the Federal Court (Bundesgerichtshof) set aside his conviction and returned the case to the Regional Court of Dortmund, where it is apparently still pending. The text of the decision of the Federal Court has not been submitted by the Applicant in spite of requests from the Secretariat and the grounds for the setting aside of the conviction are not known. On 6th July 1960 the Regional Court ordered an examination of the Applicant to be carried out by the Institute for Sexual Research in Hamburg in order to ascertain whether the Applicant's homosexual tendencies were comparable to a mental defect (krankhafte Störung) which might be considered to amount to an extenuating circumstance. The Applicant was opposed to the carrying out of that examination and appealed to the Court of Appeal (Oberlandesgericht) of Hamm and twice to the Federal Constitutional Court (Bundesverfassungsgericht). He submitted that the Court of Dortmund was not entitled to order such an examination until it had decided whether or not he was guilty of the crime on which he was charged. The possible existence of extenuating circumstances was irrelevant until the question of his guilt had been decided in the affirmative. The Order indicated not only that the Court accepted that the Applicant was guilty, although his original conviction had been quashed by the Federal Court, but also that it was prepared to pass sentence without giving him a chance to contest his guilt in a fair hearing. He stressed that the examination had not been ordered with the purpose of determining whether or not he was mentally defective but simply to see whether there were extenuating circumstances by reason of his homosexual tendencies. These Courts rejected his appeal on 31st August, 16th December 1960 and 1st February 1961 respectively. whereas the Applicant brings the following complaints: 1. that the Regional Court of Bochum was not impartial and refused to hear evidence as requested by him. In September and October 1958 he addressed letters to the Court in which he asked that he should be subjected to a psychological test, that medical evidence should be obtained in order to establish both his truthfulness and that of the witness for the prosecution and that a professor from Cologne should give evidence as to his sexual tendencies. Apparently these demands were ignored by the Court; 2. that his defence before that Court was obstructed by the fact that a lawyer for the defence was not appointed during the investigation of the case, in particular, in view of the state of nervous tension and stress to which an innocent person is subjected by being detained under suspicion of having committed a crime punishable by an imprisonment of up to ten years. It is vital that a person should benefit from legal advice from the outset of proceedings against him, in particular, in the case of the Applicant whose record was against him. It is against the spirit of the Convention of Human Rights that a lawyer is normally appointed at such a late stage that he has scarcely time to prepare his client's defence; 3. that his appeal to the Federal Court did not have the effect of suspending his sentence and he was detained until released after quashing of his conviction by the Court of first instance; 4. that during his detention he was, on account of the nature of the charge against him, subjected to ill-treatment by the prison officials, in particular, by a guard by the name of Georg. After his release he requested that criminal proceedings should be initiated against this guard but, on 26th October 1960, the Public Prosecutor of Hamm refused his request. On 16th January 1961 the Court of Appeal of Hamm upheld this decision on the grounds that the appeal was manifestly ill-founded and, in any event, not introduced by a lawyer; 5. that the examination ordered by the Regional Court of Dortmund is an example of degrading treatment. He refers, furthermore, to the damages inherent in being officially classified as a homosexual, in view particularly of the fate meted out to homosexuals during the Nazi period when mass liquidations of such persons in concentration camps were an established feature and in view partly of the present German legislation on the matter; 6. that the order is, furthermore, as stated above, in violation of the principle that an accused is presumed innocent until proven guilty. whereas the Applicant alleges violations of Articles 3, 5 and 6 of the Convention. whereas, insofar as the Applicant's complaints relate to the original proceedings before the Regional Court of Bochum, it is pointed out that the Applicant's appeal from the decision of that Court to the Federal Court was successful in that on 12th February 1960 his conviction by the former Court was set aside and the case sent back to the Regional Court of Dortmund; whereas any alleged misadministration of justice on the part of the former Court must be regarded as having been rectified by the decision of the Federal Court; whereas, in pursuance of Article 25, paragraph (1) of the Convention, the Commission may only receive an individual application where the applicant claims that he is a victim of a violation by one of the High Contracting Parties of the rights and freedoms set forth in the Convention; whereas, as a result of the decision of the Federal Court, these complaints appear to have lost their pertinence for the purpose of the present Application and whereas in these circumstances the Applicant has failed to show in what manner he may now be considered to be the victim of the alleged misadministration of justice; whereas these complaints are therefore incompatible with the provisions of the Convention, in particular, with the provisions of Article 25 governing the conditions under which the Commission may receive an application from an individual; whereas it follows that this part of the Application must be rejected in accordance with Article 27, paragraph (2) of the Convention; Whereas the Applicant also alleges violations of Articles 3, 5 and 6 of the Convention in that he was ordered by the Regional Court of Dortmund to undergo a medical examination and that the order itself infringed the rule laid down in Article 6, paragraph (2), that an accused person should be presumed innocent until proved guilty; whereas, in this respect, it is to be observed that medical examinations of accused persons constitute a normal and often desirable part of a thorough and conscientious investigation of a case; whereas the Commission has taken note of the text of the above order submitted by the Applicant and whereas it has arrived at the conclusion that this order is in no way framed in terms which might be considered to be prejudicial to the establishment of the Applicant's innocence or guilt; whereas, consequently, an examination of the case as it has been submitted, including an examination ex officio, does not disclose any appearance of a violation of the provisions of the Convention and, in particular, of the articles invoked by the Applicant; 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, insofar as the Applicant alleges violation of Article 3 of the Convention in that he was subjected to ill-treatment during his detention in prison, it is to be pointed out that three judicial instances within the Federal Republic of Germany have refused to institute criminal proceedings against the person alleged to be responsible on the ground that the Applicant's complaint was without foundation; whereas, furthermore, the Applicant has not satisfied the Commission that these allegations are substantially true; whereas an examination of the case as it has been submitted, including an examination ex officio, does not disclose any appearance of a violation of the provisions of the Convention and, in particular, of Article 3; 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