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X. v. THE FEDERAL REPUBLIC GERMANY

Doc ref: 3347/67 • ECHR ID: 001-3051

Document date: July 11, 1968

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Cited paragraphs: 0
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X. v. THE FEDERAL REPUBLIC GERMANY

Doc ref: 3347/67 • ECHR ID: 001-3051

Document date: July 11, 1968

Cited paragraphs only

THE FACTS

Whereas the facts presented by the applicant may be summarised as

follows:

The applicant is an Italian citizen, born in 1936 and resident at

B./Rhine. He is represented by Dr. Y., a lawyer at F./Palatinate,

acting under a power-of-attorney dated 5th September, 1967.

From statements and from documents submitted by the applicant it

appears that, on .. June, 1966, he was convicted by the District Court

(Schöffengericht) at F. for negligent homicide (fahrlässige Tötung) and

sentenced to four months' imprisonment. The Court further decided that

the sentence should be suspended for a probationary period of three

years on the conditions that during this period the applicant continued

to be of good behaviour and notified the Court of any change of

address.

It appears that the applicant appealed (Berufung) against his

conviction and sentence to the Regional Court (Landgericht) at F. On

.. November, 1966, the Regional Court rejected the appeal. However, the

Court modified the above condition of probation to the extent that the

applicant should pay to the Red Cross a sum of 1,000 DM in monthly

instalments of 100 DM, in accordance with Article 24 of the Criminal

Code.

The applicant then made a further appeal (Revision) to the Court of

Appeal (Oberlandesgericht) at Zweibrücken.

In the meanwhile, the applicant had lodged with the said Court of

Appeal an appeal (Beschwerde) against the decision modifying the

condition of probation. He alleged that such modification detrimental

to him was unlawful. The Court of Appeal rejected the appeal on ..

January, 1967; it held that the principle prohibiting a reformatio in

peius applied to sentences only and not to conditions of probation.

Furthermore, the condition imposed in the present case did not

constitute an undue hardship on the applicant.

On .. May, 1967, the Court of Appeal dismissed the applicant's further

appeal as well. The applicant states that this decision was taken by

a different division of the same Court from the one which decided his

appeal relating to the modification of conditions of probation.

According to him, this was due to his having successfully challenged

the judges of the former court.

The applicant had also lodged with the Federal Constitutional Court

(Bundesverfassungsgericht) a constitutional appeal

(Verfassungsbeschwerde) against the Court of Appeal's decision of ..

January, 1967. This was rejected on .. July, 1967, on the ground that

the appeal was in part inadmissible and in part clearly ill-founded.

The Court referred to Article 103, paragraph (3), of the Basic Law

(Grundgesetz) which guarantees that a person should not be put in

double jeopardy, and decided that this provision was clearly not

violated in the present case. The Court continued that it was not

possible to allege by way of a constitutional appeal a violation of the

principle prohibiting a reformatio in peius and that in this respect

the appeal was inadmissible.

The applicant now complains that the Convention was violated by the

Regional Court's modification of the condition of probation. He alleges

that, by this decision, a heavier sentence was in fact pronounced

against him than that which was imposed by the District Court. He

contends that an accused should not suffer a detriment where he appeals

against an appeal; further that the detriment need not necessarily

consist of an increase of the sentence but may also be he imposition

of a further obligation as, in the present case, the payment of 1,000

DM.

The applicant alleges a violation of the Convention and, in particular,

Article 7, paragraph (1). He submits that, although the principle

prohibiting a reformatio in peius was not expressly embodied in this

Article, the provision should nevertheless apply in the present case

as the decision complained of had an effect equal to such reformatio

in peius.

THE LAW

Whereas, the applicant alleges a violation of Article 7 (Art. 7) of the

Convention;

Whereas Article 7, paragraph (1) (Art. 7-1), of the Convention provides

that "no one shall be held guilty of any criminal offence on account

of any act or omission which did not constitute a criminal offense

under national or international law at the time when it was committed,

nor shall a heavier penalty be imposed than the one that was applicable

at the time the criminal offence was committed;

Whereas it is to be observed that the second sentence of Article 7,

paragraph (1) (Art. 7-1), of the Convention refers to "penalties" only;

whereas the Commission finds that the conditions of probation do not

constitute a "penalty" within the meaning of this provision but are a

measure touching upon the effects of the penalty imposed; whereas,

consequently, Article 7, paragraph (1) (Art. 7-1), in fine is not

applicable to decisions relating to the conditions of probation;

Whereas it follows that the application is incompatible with the

provisions of the Convention and must be rejected in accordance with

Article 27, paragraph (2) (Art. 27-2), thereof.

Now therefore the Commission declares this application INADMISSIBLE

LEXI

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