European Court of Human Rights - case of Pakelli v. Germany (1983) (excerpts)

European Court of Human Rights - case of Pakelli v. Germany (1983) (excerpts)

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37. It is true that, since the applicant confined himself to alleging that there had been procedural errors (Articles 344 para. 2 and 352 para. 1 of the Code of Criminal Procedure), the Federal Court had solely to give a ruling on the grounds which he had invoked and later set out at length in his memorial (see paragraph 13 above). However, Mr. Pakelli would have been able, had his lawyer appeared before the court, to explain his complaints, to supply further particulars thereof if need be and to develop his written arguments. He would, for example, have been able to comment on the statement made by the judge acting as rapporteur (Article 351 of the Code of Criminal Procedure; see paragraph 25 above). Such possibilities of intervening in the course of the proceedings would have been all the more valuable because the appeal, itself a voluminous document, concerned nineteen different points.

Again, as the Commission rightly pointed out, one of the complaints made related to the application of the new version of Article 146 of the Code of Criminal Procedure. Admittedly, the 3rd Criminal Chamber of the Federal Court had already decided, in 1976, that an appeal on a point of law based on this Article could succeed only if recourse to a common defence counsel had in fact been contrary to the interests of the defence (see paragraph 26 above). Moreover, Mr. Rauschenbusch did not contest this interpretation. However, he endeavoured to demonstrate that there had been a conflict of interests in the present case. In addition, it could be predicted that the judgment that the Federal Court was going to deliver would not be without importance for the development of case-law. The Government themselves stated that the case-law on this point has remained constant since the judgment of 29 November 1977 dismissing the applicant’s appeal; they recognised that oral argument on the interpretation of Article 146 would have been of some value.

 

38. In these circumstances, it goes without saying that the personal appearance of the appellant would not have compensated for the absence of his lawyer: without the services of a legal practitioner, Mr. Pakelli could not have made a useful contribution to the examination of the legal issues arising, and in particular the issue relating to Article 146 of the Code of Criminal Procedure. The Court concurs with the Commission on this point.