W. v. the Federal Republic of Germany



AS TO THE ADMISSIBILITY OF

Application No. 12008/86

by G.W.

against the Federal Republic of Germany

The European Commission of Human Rights sitting in private

on 15 October 1987, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

G. BATLINER

J. CAMPINOS

Mrs. G.H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

Mr. H.C. KRÜGER, Secretary to the Commission

Having regard to Article 25 of the Convention for the

Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 18 December 1985

by G.W. against the Federal Republic of Germany and

registered on 18 February 1986 under file N° 12008/86;

Having regard to the report provided for in Rule 40 of the

Rules of Procedure of the Commission;

Having deliberated;

Decides as follows:

12008/86

THE FACTS

The applicant, a German citizen born in 1924, is an economist

resident in Troisdorf in the Federal Republic of Germany.

In criminal proceedings instituted against a certain Mr. K., the

Recklinghausen District Court (Amtsgericht) ordered the psychiatric

examination of K. Thereupon the present applicant, who was not

involved in the proceedings, wrote a letter to judge W. at that Court

in which he complained of the examination.

The letter stated, inter alia, that if judge W. had not

realised that K. was an honourable gentleman perhaps he had become

blind in his business and should let an objective testing agency

examine whether he was in full possession of his mental abilities. The

letter continued:

<Translation>

"You are wasting in a wretched way scarce tax money if you

are taking the terror against Mr. K. so far and misuse a

psychiatrist in that he should ruin, with his uncontradictable

arguments, the difficult critic in order to calumniate

him according to the Soviet method. This has even less to

do with the administration of the rule of law than the

infamous cow with the Sunday! You should be ashamed of

your manner of thinking which is hostile to law."

<Original>

"Sie vergeuden in mieser Weise knappe Steuermittel, wenn

Sie den Terror gegen Herrn K. so weit treiben, einen

Psychiater dazu zu missbrauchen, dass er den unbequemen Mahner

mit seinen unwiderleglichen Argumenten kaputtschreiben soll,

um ihn nach sowjetischem Vorbild zu diffamieren. Mit

rechtsstaatlicher Rechtspflege hat das noch weniger zu tun,

als die berüchtigte Kuh mit dem Sonntag! Schämen Sie sich

Ihrer rechtsfeindlichen Denkweise!"

On 22 November 1984 the Recklinghausen District Court

convicted the applicant of insulting remarks (Beleidigung) and

sentenced him to a fine of 1,500 DM. After recapitulating the letter

as well as the applicant's subsequent explanations therefor, the Court

concluded that the criticism in fact intended solely to insult the

judge. The Court also found that it was unnecessary to consider

further evidence proposed by the applicant.

The applicant's appeal (Berufung) was dismissed by the Bochum

Regional Court (Landgericht) on 3 June 1985, though the fine was

reduced to 750 DM, inter alia in view of the applicant's apology to

judge W. His appeal on points of law (Revision) was dismissed by the

Hamm Court of Appeal (Oberlandesgericht) on 23 September 1985. On

29 November 1985 the Federal Constitutional Court (Bundesverfassungs-

gericht) declared the applicant's constitutional complaint

inadmissible as insufficiently substantiated.

COMPLAINTS

The applicant now complains inter alia under Article 3 of the

Convention that he was sentenced to an inhuman punishment. Under

Article 6 he submits, inter alia, that he could not put questions to

witnesses. Under Article 10 he complains that he was punished for

having stated his opinion about the judge. He also invokes

Articles 7 and 13 of the Convention.

THE LAW

The applicant now complains of the allegedly unfair

proceedings in which he was involved and of the resulting sentence. He relies

on Articles 3, 6, 7, 10 and 13 (Art. 3, 6, 7, 10, 13) of the Convention.

However, the Commission recalls that there is no exhaustion of

domestic remedies within the meaning of Article 26 (Art. 26) of the Convention

where a domestic appeal is not admitted because of a procedural mistake

(see No. 6878/75, Dec. 6.10.76, D.R. 6 p. 79). In the instant case,

the Federal Constitutional Court declared the applicant's

constitutional complaint inadmissible as it had not been sufficiently

substantiated. Hence, the applicant has not exhausted the domestic

remedies available to him under German law. It follows that the

applicant has not complied with the condition as to the exhaustion of

domestic remedies.

In any event, after considering the case as a whole, the

Commission finds that it does not disclose any appearance of a

violation of the rights and freedoms set out in the Convention and

must also be rejected as being manifestly ill-founded.

It follows that the application must be rejected under

Article 27 paras. 2 and 3 (Art. 27-2, 27-3) of the Convention.

For these reasons, the Commission

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission President of the Commission

( H.C. KRÜGER) (C.A. NØRGAARD)