The Wolfsangel Affair
at the European Court of Human Rights

The file that follows contains an application to the European Court of Human Rights. The EuCHR received the form in the beginning of 2007, provided a file number and started consideration quickly, despite of its burden with applications from all Europe.

Use of the German language is admitted in such applications. However, large parts of Germany, especially the rural parts, are still ruled by Nazi criminals, being often officiers of police and justice. To be a German and not to be a Nazi seems to be a contradiction. So I preferred writing my application in English.

All people outside Germany who believe that Germany's old problems were solved should consider this file as a warning.

Application under Article 34 of the European Convention of Human Rights

I. The Parties

1. Surname: Brosa
2. First name: Ulrich
3. Nationality: German
4. Occupation: physicist
5. Date and place of birth: May 30th, 1950 in Berlin
6. Permanent address: D-35287 Amöneburg, Am Brücker Tor 4
7. Tel.No: Germany 6422 7616
8., 9.,10.,11.,12.: not applicable
13. Fill in the name of the State against which the application is directed: Federal Republic of Germany

II. Statement of the Facts

14.

Summary:

The applicant was sentenced for criticizing three police officers in a complaint sent to the Hessian Minister of the Interior. The applicant had criticized derelictions of duty in the prosecution of a Neo-Nazi. During the trial against the applicant, the court in Marburg (Landgericht) disregarded the applicant’s written application to hear exonerating testimony from two witnesses. The court in Marburg failed to supply the applicant’s representative with the written judgment. The court in Frankfurt (Oberlandesgericht), instead of correcting this, denied the applicant’s appeal with the argument that he should have been represented by a professional advocate (Rechtsanwalt).

The ground of this complaint concerns more persons than the applicant: German authorities support the continuation and revival of National Socialism. Their public affirmations to do the opposite are spectacles to deceive foreign journalists. Citizens who actively oppose the restoration of National-Socialistic structures find that Neo-Nazi criminals are unlawfully protected from prosecution, while these citizens themselves are not only subjected to attacks from Neo-Nazis, but are also persecuted by officials through falsified prosecution procedures. German courts apply considerable criminal energy to conceal these facts.

The Events in Detail:

The applicant has been the victim of attacks by Neo-Nazis for years. According to a police report in February 2003, he was the target of 28 documented attacks. Between the years 2001 and 2003, the door of his house was broken down three times, once with an axe. There were three documented attempts to run him down with cars. On the 26th of August 2006 the door of his house was broken down for the fourth time.

On the 22nd of March 2003 the applicant sought the removal of a large ‘Wolfsangel’ in Kirchhain, Hessen, see document a). The ‘Wolfsangel’ is the most common symbol of National-Socialism after the swastika and the SS rune. The public display of this symbol is a punishable offence in Germany. Nevertheless the ‘Wolfsangel’ in Kirchhain had been tolerated by German authorities.

When the applicant had reported the ‘Wolfsangel’ to the Hessian Minister of the Justice and no noticeable reaction followed, he went to the house with the ‘Wolfsangel’ on the 22nd of March 2003. He was accompanied by the well-known Anti-Nazi activist Irmela Mensah-Schramm. Ms. Mensah-Schramm called the police ten minutes before the event started. She reported the exact address and requested police protection. A police patrol vehicle appeared more than twenty minutes later, but it passed by and did not offer to the people standing there by the side of the street any assistance whatsoever.

The public exhibition of National-Socialistic symbols is in Germany a publicly prosecutable offence (von Amts wegen). In spite of the applicant's explicit admonition, neither the police nor the public prosecutor filed charges on their own initiative against the exhibitor of the ‘Wolfsangel’. This matters because Neo-Nazis can identify the person having filed charges against them by accessing the file. When they realize that officials are not actively prosecuting them, they know that they can avenge themselves against the individual with no fear of consequences.

The case against the exhibitor of the ‘Wolfsangel’ was abated without any significant investigations from the public prosecutor of Marburg, Hessen. The prosecutor just claimed that the exhibitor did not understand the nature of the offence according to § 16 of the German Penal Code (§16 StGB Tatbestandsirrtum). The general public prosecutor in Frankfurt, Hessen found fault with this argument. Yet he just changed it and abated the case according to § 17 StGB (Verbotsirrtum). However, both laws allow for a reduction of penalty, but not for an abatement. The abatement was at any rate an unlawful support for a Neo-Nazi offence.

This course of events is documented in file 2 Js 4069/03 from the public prosecutor of Marburg. The applicant accessed this file. He found that it was evident from this file that

1) the police officers had not offered assistance on March 22nd 2003,
2) they had mitigated the offence by claiming that the ‘Wolfsangel’ would be recognizable as such only with a big stretch of imagination,
3) they had failed to file criminal charges on their own responsibility against the exihibitor of the ‘Wolfsangel’,
4) they had redressed the exhibitor as a victim, contrary even to the prosecutor's instructions,
5) they used contemptuous terms against the Anti-Nazi activists.

Obviously the police officers were used doing things like these, and so they had shamelessly documented them in their own reports.

After the applicant’s complaint to the Minister of the Interior, the same senior prosecutor, who protected the exhibitor of the ‘Wolfsangel’ from prosecution by conceding him non-awareness of the nature of the offence (§ 16 StGB), instituted criminal pseudo-proceedings against the three police officers. These proceedings were just initiated to quash them at once with the claim that the police officers were innocent. There were no investigations at all. No witness was heard. The accused police officers were not even informed on their cases. Yet the applicant was named as the party having filed criminal charges against these police officers (file 2 Js 3230/04 from the public prosecutor of Marburg).

Next the very same senior prosecutor used the self-produced innocence of the police officers for prosecuting the applicant. The applicant was accused, based on § 164 StGB (falsche Verdächtigung), that

(see 3 above) he had unjustly suspected the police officers of failing to file criminal charges on their own responsibility. Though it is incontestable, because of the file 2 Js 4069/03, that the police officers never did this, the prosecutor asserted that a paper, declared as Report (Bericht), where a police officer had suggested that there was probably no ‘Wolfsangel’ (see 2 above), was to be interpreted as an official filing of a criminal charge.

(see 4 above) the applicant's complaint was also an unjust suspicion, because he criticized the quality of the investigation. The facts in the applicant's complaint were not disputed by the prosecutor. Yet he claimed that investigations of that kind were all right for German police officers and criticizing them was punishable by law (file 5 Js 5643/04 from the public prosecutor in Marburg).

Other points on the charge sheet against the applicant need not to be discussed here since the court in Marburg did not take them into account.

In the following trial the applicant was found guilty. On the 14th of November 2004 the court in Marburg sentenced the applicant equivalent to 35 days’ pay. The grounds of the judgment are almost identical with the grounds written on the charge sheet. Therefore it is sufficient to submit a copy of the judgment from the court in Marburg, see document g).

The events of the 22nd of March 2003, especially the behavior of the police, were observed by the witness Irmela Mensah-Schramm. She also observed an attack on the applicant directly following the event at the ‘Wolfsangel’. Ms. Mensah-Schramm was also informed of the course of events thereafter because she endeavored to correct the official depiction of the events from the 22nd of March 2003 in correspondence with the Minister of the Interior and his staff.

In the trial only the witnesses of the prosecution, namely the three police officers, were admitted to give testimony. The written applications to hear witnesses for the defense, especially Ms. Mensah-Schramm, were completely disregarded, see documents c), e) and f).

The applicant was defended against the charge of unjust suspicion by Dr. Edmund Haferbeck, a friend with legal expertise. Dr. Haferbeck is not a professional advocate, but was authorized as the applicant’s representative, especially for the presently discussed case, by a court order, see document b).

When the court of Marburg had orally pronounced its judgment, the applicant’s representative lodged an appeal (Revision) and waited for the written judgment as the basis to formulate the grounds of the appeal. The representative advised the applicant not to worry about further time limits since he would observe them. Nevertheless the written judgment was procedurally delivered to the applicant and, as the court in Marburg conceded later on, only to the applicant. When the applicant told this to his representative, he answered that, according to German law (§ 145a StPO, No.154 RiStBV), every court was obliged to inform representatives directly; without this information, no time limit would be set. While the applicant’s representative still waited to receive such information, the court in Marburg denied the appeal. The court claimed that the time limit to state the grounds of the appeal was set by the delivery to the applicant, see document h).

The application for reinstatement in the status quo ante was rejected by the court in Frankfurt, Hessen (Oberlandesgericht), see document i). According to German law (§§ 44,45 StGB), reinstatement is regularly granted if the representative takes responsibility for failing to observe the time limit. Nevertheless the court in Frankfurt argued that the applicant’s representative was not good enough and that it was the duty of the applicant to procure a professional advocate (Rechtsanwalt). Yet the respective German laws (§§ 138, 145a StPO, No.154 RiStBV) do not differentiate between a professional and a lay representative authorized by a court order.

Respective objections (Gegenvorstellungen) of the applicant’s representative, emphasizing once more his own responsibility, certifying in an affidavit (eidesstattlich) that he was not all informed by the court, neither by delivery nor by ordinary mail, and asserting the innocence of the applicant, were rejected by the court in Frankfurt, see documents j) through n).

The court in Frankfurt cited, when it refused to reinstate in the status quo ante, two former judgments creating the illusion these precedence cases would support its current decision. The applicant’s representative Dr. Haferbeck actually read these two former judgments. He discovered that, in fact, both deal with similar cases, but that both had ruled reinstatements, in agreement with German law (§§ 44, 45 StGB), but in contradiction to the current decision. On these grounds Dr. Haferbeck filed charges against judges of the courts in Frankfurt and Marburg, responsible for the action just described, accusing these judges of perversion of justice and forming a criminal association.

Against the decisions of the courts in Marburg (Landgericht) and in Frankfurt (Oberlandesgericht) the applicant lodged a complaint in the federal constitutional court of Germany (Bundesverfassungsgericht) which was in its essence similar to the application lodged here. The complaint was based on articles 5 and 17 of the German constitution (Grundgesetz), which guarantee freedom of expression and the right to complain, respectively. Moreover, the applicant took efforts to draw the constitutional court’s attention to the unlawful disqualification of his representative and to the unlawful refusal of reinstatement. A precedence case was presented in which the constitutional court had ruled that access to the courts may not be restricted by imposing requirements that are almost impossible to fulfil; such restrictions would contradict article 19(4) of the German constitution and thus reinstatement had to be granted, see document o). In this case and many similar cases the constitutional court had acknowledged an unsuccessful appeal for reinstatement as the finish of the orderly course of law (Erschöpfung des Rechtswegs) and as the beginning of its own competence.

Yet in the present case the German constitutional court dismissed the complaint for lack of competency. It wrote that the applicant had missed the time limit of appeal. The constitutional court did not mention the applicant's appeal for reinstatement. Its decision arrived here on the 23rd of August 2006, to be proven by the postmark.

It must be stressed that the applicant has used all legal remedies to redress the situation in Germany. It is part of this complaint that his right to a fair trail has been spoiled by an unforeseeable and unlawful disqualification of his representative. The applicant was suddenly treated as if he had no representative and thus had to observe time limits by himself.

The articles 5, 17, 19(4) of the German constitution correspond, cum grano salis, to the articles 10, 13 and 6 in the European Convention on Human Rights.

III. Statement of the alleged violations of the convention and/or protocols and of relevant arguments

15.

Violations of Articles 6(3)c, 6(3)d, 10, 13 of the European Convention on Human Rights

Article 6 - Right to a fair trial
3. Everyone charged with a criminal offence has the following minimum rights:
c.    to defend himself in person or through legal assistance of his own choosing ...

--- The chosen and authorized representative, Dr. Edmund Haferbeck, did not receive the written judgment from the court in Marburg (Landgericht), neither by mail nor by procedural delivery. Thus he was not enabled to state the grounds of the appeal.

Article 6 - Right to a fair trial
3. Everyone charged with a criminal offence has the following minimum rights:
d.    to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him...

--- The witnesses of defense, in particular Irmela Mensah-Schramm, were not permitted to give exonerating testimony in court in spite of three written applications for their appearances.

Article 10 - Freedom of expression
1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.

--- The applicant was sentenced for criticizing three police officers in a complaint sent to the Hessian Minister of the Interior. The facts, which he presented in his complaint, are confirmed by the file 2 Js 4069/03 from the prosecutor of Marburg.

Article 13 - Right to an effective remedy
Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.

--- The applicant was and is attacked by Neo-Nazis. Moreover, the family of the applicant suffered under National Socialism; the grandfather of the applicant was after 1945 officially recognized as a victim of fascism. So according to articles 2 and 5 of the European Convention on Human Rights the applicant had the right to ask the Hessian Minister of the Interior for an effective remedy.

16. Final decision (date, court, or authority and nature of decision)

Entscheidung Bundesverfassungsgericht 15. August 2006 --- arrived here August 23rd, 2006. The applicant’s complaint on violations of constitutional rights was rejected.

17. Other decisions (list in chronological order, giving date, court or authority and nature of decision for each of them)

a) Beschluss Amtsgericht Kirchhain, 29.09.2004 --- Dr. Edmund Haferbeck is authorized by court order as the applicant’s representative.
b) Urteil Amtsgericht Kirchhain, 04.11.2004 --- The applicant is sentenced for criticizing three police officers.
c) Urteil Landgericht Marburg, 08.11.2005 --- The judgment of the court in Kirchhain is confirmed, though the sentence is reduced.
d) Beschluss Landgericht Marburg, 29.12.2005 --- Appeal is denied.
e) Beschluss Oberlandesgericht Frankfurt, 09.03.2006 --- Reinstatement in the status quo ante is denied.
f) Beschluss Oberlandesgericht Frankfurt, 27.04.2006 --- The objections of the applicant’s representative are rejected.
g) Beschluss Oberlandesgericht Frankfurt, 22.06.06 --- Final rejection

18. Is there or was there any other appeal or other remedy available to you which you have not used?

No.

V. Statement of the object of the application (See Part V of the Explanatory Note)

19.

The applicant petitions the European Court of Human Rights to disapprove the decisions of the German courts and to award the applicant damages, which are to be determined by the European Court of Human Rights.

VI. Statement concerning other international proceedings.

20.

No other international proceedings.

VII. List of documents

21.

a) The ‘Wolfsangel’ in Kirchhain, Hessen, foto taken in 2003.
b) Beschluss Amtsgericht Kirchhain, 29.09.2004 --- Dr. Edmund Haferbeck is authorized by court order as the applicant’s representative.
c) Dr. Edmund Haferbeck an das Amtsgericht Kirchhain, Oktober 2004 --- The applicant’s representative petitions to hear two witnesses: Irmela Mensah-Schramm and Peter Briody.
d) Urteil Amtsgericht Kirchhain, 04. November 2004 --- The applicant is sentenced for criticizing three police officers. The witnesses for defense were not heard.
e) Dr. Ulrich Brosa an das Landgericht Marburg, 4. September 2005 --- The applicant petitions to hear two witnesses: Ms. Mensah-Schramm und Mr. Briody. The applicant refers to constitutional and human rights.
f) Dr. Edmund Haferbeck an das Landgericht Marburg, 15.09.05 --- The applicant’s representative petitions to hear two witnesses: Ms. Mensah-Schramm and Mr. Briody.
g) Urteil Landgericht Marburg, 08.11.2005 --- Confirmation of d), though the sentence is reduced. Again the witnesses for the defense were not heard.
h) Beschluss Landgericht Marburg, 29.12.2005 --- The appeal is denied.
i) Beschluss Oberlandesgericht Frankfurt, 09.03.2006 --- Reinstatement in the status quo ante is denied.
j) 1. Gegenvorstellung Dr.Edmund Haferbeck, March 2006 --- The applicant’s representative indicates the German laws demanding the delivery of the written judgment to the representative of the accused.
k) 2. Gegenvorstellung Dr.Edmund Haferbeck, 08.04.2006 --- The representative certifies in an affidavit that the court did not inform him on the delivery of the judgment g).
l) Beschluss Oberlandesgericht Frankfurt 27.04.2006 --- The objections j) and k) are rejected. The court disqualifies the applicant’s representative for not being a professional advocate.
m) Gegenvorstellung Dr.Edmund Haferbeck, 29.05.2006 --- Summary.
n) Beschluss Oberlandesgericht Frankfurt, 22.06.06 --- Final rejection.
o) Dr. Ulrich Brosa an das Bundesverfassungsgericht, 6.Juli 2006
--- The applicant emphasizes the competence of the constitutional court for denied reinstatements in the status quo ante.
p) Entscheidung Bundesverfassungsgericht, 15. August 2006 --- Rejection without reference to the grounds stated by the applicant.

VIII. Declaration and signature

Brosa, etc.

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