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1. The author of the
communication, dated 3 and 10 June and 22 July 2003, is Mr. Adrian Vlad, a
German national, born on 28 October 1962 in Craiova/Romania. He claims that
he and his family are victims of violations by Germany [FN1] of articles 2,
paragraphs 1 and 3, 14, paragraph 1, 16, 17, 23, paragraph 1, and 26 of the
Covenant. He is not represented by counsel.
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[FN1]. The International Covenant on Civil and Political Rights and the
Optional Protocol entered into force for the State party respectively on 23
March 1976 and 25 November 1993.
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THE FACTS AS SUBMITTED BY THE AUTHOR
2.1 From 1995 until 2001, the author rented an apartment from the
construction company GBO in Offenbach. In 1998, he discontinued payments for
charges additional to rent, claiming a right to withhold payments (Zur�ckbehaltungsrecht),
on the basis that the GBO had failed to comply with its obligation to grant
him access to the receipts upon which the additional charges for running
costs had been calculated. On 6 September 1999, when overdue charges ran to
3.364, 52 DM, the GBO unilaterally terminated the tenancy and brought a
court action for eviction and payment of the arrears against the author and
his wife, Kerstin Vlad.
2.2 By judgments of 9 May 2000, the District Court of Offenbach ordered the
author and his wife to quit the apartment and to pay the overdue charges,
with costs. Their appeals to the Regional Court of Darmstadt were dismissed
on 14 December 2000, with costs. No constitutional complaint was lodged
against the dismissals within the one-month period following the delivery of
the judgments on 3 January 2001.
2.3 On 7 January 2001, the author brought criminal charges against the
sitting judges of the District Court of Offenbach as well as the Regional
Court of Darmstadt, alleging that their failure to interpret and apply the
relevant laws and regulations on rent control in conformity with the
jurisprudence of the Federal Court of Justice (Bundesgerichtshof) and the
Federal Constitutional Court (Bundesverfassungsgericht) amounted to
"perversion of justice", and threatening to resort to self justice. On 10
and 29 January 201, the Federal Attorney General declared himself not
competent to deal with the matter. In a personal letter dated 22 January
2001, a high ranking official of the police directorate of Southeastern
Hessia advised the author not to aggravate his own situation and to consider
costs and prospects of a constitutional complaint carefully.
2.4 On 1 March 2001, the President of the Higher Regional Court of Frankfurt
rejected the author's claim for damages for his legal costs, his
out-of-pocket expenses and the costs related to his eviction, on the alleged
ground that the judgments of the Regional Court of Darmstadt manifestly
violated the law. He informed the author that Hessia was not liable for the
judgments of its courts, unless the administration of justice constituted a
criminal offense in a specific case.
2.5 On 27 March 2001, the Darmstadt public prosecutor's office decided not
to investigate the charges brought by the author, in the absence of any
indication of a criminal offense committed by the sitting judges of the
Darmstadt Regional Court. Similarly, the author's application for legal aid,
to appeal the decision of the public prosecutor, was rejected on 29 March
2001 for lack of reasonable prospect of success of this remedy. His appeal
against the public prosecutor's decision was dismissed on 9 July 2001, and a
further appeal on 4 January 2002.
2.6 On 20 April 2001, the author petitioned the Federal Minister of Justice
and the Federal President to intervene in his case. When both petitions were
rejected, the author engaged in exhibitionism in front of the Federal
Ministry of Justice and threatened the office of the Federal President to
set fire to himself. On 12 December 2001, the District Court of Berlin-Tiergarten
convicted the author of trespassing for having climbed over the fence of the
premises of the office of the Federal President. However, following a motion
by the author, the penal order was set aside, after the District Court had
ordered his psychiatric examination, to determine whether he could be held
criminally responsible for the offense, and criminal proceedings were
eventually discontinued.
2.7 Meanwhile, the author had lodged a disciplinary complaint with the
Ministry of Justice of Hessia in relation to the public prosecutor's
decision of 27 March 2001 to discontinue his case. On 30 July 2001, the
chief prosecutor rejected the complaint. The author's appeal to the Higher
Regional Court of Frankfurt was not accepted, in the absence of
representation by a lawyer with capacity to conduct proceedings before that
Court.
2.8 An arrest warrant was issued against the author on 4 August 2001, based
on his failure to comply with the judgments of the Darmstadt Regional Court.
By inter-agency mail dated 8 February 2002, the District Court of Offenbach
instructed the police directorate of Offenbach to arrest the author, if he
were not sent to a closed psychiatric institution. In November 2002, the
author was arrested after he had thrown various documents at the Federal
President, during the latter's visit to Offenbach. Subsequently, the author
unsuccessfully petitioned the Federal and the Hessian Parliaments, as well
as the Federal Chancellor.
2.9 On 8 September 2003, the author lodged a constitutional complaint
against the Hessian Attorney General's decision of 1 August 2003 to reject a
further appeal against the dismissal of his criminal charges against judges
of the District Court of Offenbach and the Regional Court of Darmstadt. In
particular, the author alleged that the requirement of legal representation
for appealing this decision before a court was in violation of his
constitutional right to access to the courts. On 17 November 2003, the
Registry of the Federal Constitutional Court informed the author that it had
registered his complaint, after it had already informed him on 24 October
2003 that the complaint would have to be declared inadmissible for lack of
substantiation and for failure to exhaust judicial remedies and to comply
with the prescribed time limit for submitting a constitutional complaint.
THE COMPLAINT
3.1 The author alleges violations of his rights under articles 2, paragraph
3, 14, paragraph 1, 16, 17, 23, paragraph 1, and 26 of the Covenant, arguing
that most of the proceedings initiated by him have been unduly prolonged,
that his complaints were not seriously investigated, that his mail and
telephone calls are being observed, and that his family's eviction from the
apartment had adverse effects on his and his family's health.
3.2 The author claims that he was denied access to the courts and that he
was prevented from exhausting domestic remedies, since he only had one month
for lodging a constitutional complaint against the judgments of the
Darmstadt Regional Court of 3 January 2001. During this time, he was unable
to find a lawyer, partly due to the holiday period following New Year's.
Moreover, he was allegedly threatened with execution by the police, and with
psychiatric as well as regular detention by the municipal hospital of
Offenbach and, respectively, by the Offenbach District Court. Similarly, the
author claims that none of the more than 40 lawyers contacted by him was
willing to pursue his criminal complaint for perversion of justice, which
reflects the de facto impunity of German judges.
3.3 The author claims compensation for his material damages and for the
deterioration of his state of health.
ISSUES AND PROCEEDINGS BEFORE THE COMMITTEE
4.1 Before considering any claims contained in a communication, the Human
Rights Committee must, in accordance with article 87 of its rules of
procedure, decide whether or not it is admissible under the Optional
Protocol to the Covenant.
4.2 The Committee considers that, even assuming that the author's claims
would not be inadmissible due to non-exhaustion of domestic remedies, they
are inadmissible as the author has not been personally affected by an
alleged violation of any provision of the Covenant and because they fall
outside the scope of any of the provisions of the Covenant that he invokes,
or because his claims have not been substantiated for purposes of
admissibility.
5. The Human Rights Committee therefore decides:
a) That the communication is inadmissible under articles 1, 2, 3 and 5,
paragraph 2 (b), of the Optional Protocol;
b) That this decision shall be communicated to the author and, for
information, to the State Party.
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[Adopted in English, French and Spanish, the English text being the original
version. Subsequently to be issued in Arabic, Chinese and Russian as part of
the Committee's annual report to the General Assembly.] |
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