THE FACTS

Whereas the facts presented by the Applicant may be summarised as

follows:

The Applicant is a German citizen, born in 1937, and at present

resident in Dortmund.

The Applicant complains of the revocation on .. June 1964, by the

Regional Court (Landgericht), Lüneburg of a probation order made by

that Court on .. September 1959.

The facts presented by the Applicant may be summarised as follows:

In 1957 proceedings were brought against the Applicant for acting as

an officer of the Free German Youth Movement (Freie Deutsche Jugend or

FDJ), an organisation which was proscribed as subversive

(Verfassungsfeindlich). On .. August 1958, he was acquitted of these

charges by the Regional Court (4. Ferienstrafkammer des Landgerichts)

of Lüneburg.

On .. May 1959, on appeal (Revision) by the Public Prosecutor's Office

(Staatsanwaltschaft), the Federal Court (3. Strafsenat des

Bundesgerichtshofs) set aside the acquittal and sent the case back to

the Regional Court for a new trial.

On .. September 1959, at the new trial, the Applicant was convicted by

the Regional Court (4. Grosse Strafkammer des Landgerichts) of Lüneburg

of offenses against Articles 128, 129 and 129, paragraph (a) with

Article 94 of the Penal Code in conjunction (Tateneinheit) with an

offense under Article 100, paragraph (d), sub-paragraph II of the Penal

Code. The Court found that the Applicant, who had become a member of

the Communist party at the age of 16, had continued since 1955 to

participate in and further the activities of the proscribed FDJ knowing

that it was an illegal organisation with subversive aims. He had been

previously convicted of a similar offence.

The Applicant was sentenced to 9 months' imprisonment for

juveniles(Jugendstrafe). The sentence was suspended on probation (zur

Bewährung ausgesetzt).

In the decision (Beschluss) of the Regional Court of Lüneburg of ..

September 1959, the period of probation was fixed at 3 years. The

Applicant was required by the decision to refrain from participating

in communist directed manifestations ("sich von der Teilnahme an

kommunistisch gelenkten Veranstaltungen ... fernzuhalten"). Particular

mention was made of World Festivals of Sport, Young Workers Congresses

and other similar events.

On .. January 1960, the Federal Court (3. Strafsenat des

Bundesgerichtshofs) rejected the appeal (Revision) against the decision

of the Regional Court of .. September 1959.

The Applicant states that in the trial in which he was acquitted by the

Regional Court of Lüneburg on .. August 1958, in the appeal to the

Federal Court in which a new trial was ordered on .. May 1959, and in

the resulting new trial in the Regional Court in which he was convicted

on .. September 1959, the public prosecutor was a lawyer who had been

involved in the illegal activities of special courts (Sondergerichte)

under the Nazi regime. The Applicant states that the judge who presided

at the hearing of the appeal in the Federal Court, on .. May 1959, had

also held office under the Nazi regime. On .. June 1964, on the basis

of discoveries made by the Public Prosecutor's Office in May 1963, the

Regional Court (4. Strafkammer des Landgerichts) of the Lüneburg

revoked the suspension of sentence and ordered the Applicant to serve

his sentence of 9 months' imprisonment for juveniles. The Court stated

that the Applicant, in attending a World Youth Festival of Sport in

Helsinki in the summer of 1962 had seriously contravened the conditions

of the probation order. The Court found that the Applicant had taken

photographs of activities at this Festival, although he denied having

done so.

On .. August 1964, the Court of Appeal (Oberlandesgericht) of Celle

rejected the Applicant's appeal against the decision of the Regional

Court of .. June 1964.

On .. December 1964, the Federal Constitutional Court

(Bundesverfassungsgericht) rejected as manifestly ill-founded the

Applicant's constitutional appeal (Verfassungsbeschwerde) against the

decision of the Court of Appeal of .. August 1964, and of the Regional

Court, Lüneburg, of .. June 1964.

The Applicant's complaints are directed against the decision of .. June

1964, of the Regional Court of Lüneburg.

i. He claims that the period of probation of 3 years had expired on ..

January 1963. As no proceedings were taken against him before that date

he claims that the suspended sentence of imprisonment had lapsed, and

could not legally be enforced.

ii. He complains that the proceedings of .. June 1964 were not brought

against him within a reasonable time.

iii. He further complains that he committed no breach of the probation

order, justifying the enforcement of the suspended sentence. The

probation order prohibited "participation" at manifestations such as

World Youth Festivals. He was present at Helsinki in his capacity as

a photographic reporter, for the publication "E...". This presence did

not amount to a "participation".

iv. The Applicant claims that in consequence the freedom of expression

of the publication for which he was working is also infringed.

v. The Applicant claims that his personal and professional freedom of

expression and opinion are infringed by the order of .. June 1964. This

amounts in his view to a contravention of Article 10 of the Convention

and Article 5, paragraph 1, of the Basic Law (Grundgesetz).

vi. The Applicant complains that the interpretation of the probation

order by the order of .. June 1964, prevents him from exercising his

profession in certain places. Such a restriction contravenes Article

12, paragraph 1, of the Basic Law, in the Applicant's view. It also

misinterprets the intention of probation, which is to encourage regular

employment. Probation should not be imposed on political grounds.

The Applicant asks the Commission to decide that the decision of the

Regional Court of Lüneburg of .. June 1964 violates the Convention, and

in particular Articles 6 and 10.

II. Proceedings before the Commission

The Application was examined by a group of 3 on 28 September 1966, in

accordance with Rule 45, paragraph 1, of the Rules of Procedure.

The Commission examined the question of the admissibility of the

Application on 7 February 1967, and instructed the Secretariat to make

a further attempt to contact the Applicant and if this should be

unsuccessful (as it in fact proved to be):

a. to give notice of the Application to the Government of the Federal

Republic of Germany under Rule 45, paragraph 3 (b), of the Commission's

Rules of Procedure;

b. to invite the Government to submit its observations on

admissibility, and

c. to inform the Government that no communication had been received

from the Applicant since 16 February 1965.

The Government accordingly submitted the following observations on 2

May 1967, and also informed the Commission of the Applicant's new

address.

"According to information received from the Minister of Justice of Land

Niedersachsen and addressed to the Federal Minister of Justice, the

Applicant, X, now lives at ...-Strasse, Dortmund."

As the Minister of Justice of Land Niedersachsen has further advised

the Federal Minister of Justice, the Applicant did not have to serve

his sentence as a consequence of the decision of .. June 1964, of

Landgericht Lüneburg revoking the conditional suspension of sentence,

against which decision the Applicant had filed his Application of ..

February 1965, to the Human Rights Commission. The Applicant's

sentence, rather, was suspended as an act of grace and the Applicant

bound over on probation for a period ending .. May 1967.

In view of this information, the Federal Government confirms its

observations to the following:

a. According to the consistent practice of the Commission (see as the

most recent instance, the decision in the matter of Application No

2306/64, Recueil de Décisions, Volume 21, page 23), a right of

conditional suspension of sentence is not guaranteed by the Convention.

In this respect the Application is, therefore, incompatible with the

provisions of the Convention (Article 27, paragraph 2).

b. The Federal Government believes that it can desist from showing in

detail that Articles 10 and 6 of the Convention have not been violated;

for the Applicant, who does not serve his sentence but has been granted

a conditional suspension of his sentence has, in any case, not been a

victim of any violation of the Convention. From this point of view the

Application is manifestly ill-founded.

The Government of the Federal Republic of Germany therefore applies for

the Application to be inadmissible.

The Government's observations were communicated to the Applicant who

submitted the following reply on 31 May 1967:

"It is true that the decision of .. June 1964, which is the subject of

my complaint, was not followed by a period of imprisonment.

The Minister of Justice of Lower Saxony granted a suspension of

sentence as an act of clemency with a period of probation which expires

today (31 May 1967).

This does not affect the fact that the decision in question constitutes

a violation of Articles 10 and 6 of the Convention.

In particular, the extended period of probation, which treats me, a

journalist of 30, as a juvenile offender, constitutes a violation of

Article 10 of the Convention because, up to today I have been subject

to the limitations of which I complain, which are specified in my

Application.

I therefore again request the Commission to find:

1. that the decision of the Regional Court of Lüneburg of .. June 1964,

violates the rights and freedoms contained in the Convention;

2. that the decision should be annulled."

The Applicant's reply was communicated to the Respondent Government

which on 10 July 1967, submitted the following Supplementary

Observations:

"The decision of the Regional Court (Landgericht) at Lüneburg of ..

June 1964, by which the conditional suspension of the Applicant's

sentence was revoked, did not violate any of those rights of the

Applicant which are guaranteed by the Convention. This decision, a copy

of which is appended hereto as Appendix I, merely ordered the

application of something already awarded by the judgement of ..

September 1959, which became final in 1960. Reference is made in this

regard to the last paragraph but one of page 2 of the decision of ..

June 1964. This paragraph reads as follows:

"The enforcement of this sentence has been suspended on probation. The

period of probation was fixed at 3 years. At the same time, the

probationer was required to refrain from participating in communist

directed manifestations, in particular from those taking place in the

Soviet zone of occupation, in East Berlin and in the countries of the

Eastern bloc of nations. Particular mention is made in the decision of

World Festivals, Young Workers' Congresses, Congresses of Workers from

both parts of Germany (gesamtdeutsch), celebrations to commemorate the

Revolution, singing and dancing festivals, and manifestations of the

FDGB."

If the Applicant was of the opinion that the imposition of this

condition and the possibility of a revocation of the suspension of his

sentence in case he did not comply with the condition, violated his

rights under Article 10 of the Convention, he should have lodged a

constitutional appeal (Verfassungsbeschwerde) within the prescribed

time after the judgement became final and, if that appeal had been

rejected, an application to the Commission. In actual fact, however,

the Applicant only lodged a constitutional appeal - on .. September

1964 - against the revocation of the suspension of his sentence as

pronounced in the decision of .. June 1964. The Application to the

Commission is dated 8 February 1965. It was lodged after the Federal

Constitutional Court refused to admit the constitutional appeal for its

decision.

The Applicant's view that it had been inadmissible to revoke the

suspension of his sentence by the decision of .. June 1964, because

that revocation was not pronounced until after the period of probation

was over, is incorrect. The passage from the Leipzip Commentary of the

Penal Code, which the Applicant quotes in pages 5/6 of his Application

of 8 February 1965, in support of his legal view of the case, is

incomplete. A photostatic copy of the passage in question and of the

further comments in that context is submitted herewith as Appendix II.

It appears from this photostatic copy that in Note 1 on Section 25

(Anmerkung 1 zu, paragraph 25), the last sentence of the passage quoted

by the Applicant (from page 149 of the Commentary) and which reads:

"Therefore, any revocation of a suspension of sentence that may be

pronounced must be so pronounced in good time", is followed immediately

by the following additional remark: "(disputable; see 2 and there No

2)."

This remark, which is added in the Commentary in brackets, is missing

in the Applicant's quotation. It appears from this addition that the

commentator himself considered his view "disputable".

The essential consideration in favour of pronouncing in certain

circumstances a revocation even after the probation period has ended,

is this: only after the probation period has completed can it be said

whether a probationer did not, after all, on one of the very last days,

fail to observe the conditions on which he was bound over on probation.

It goes without saying that it is a prerequisite for revocation that

the act constituting non-compliance with the imposed conditions must

have occurred before the end of the period of probation. Once a

sentence has been finally remitted after the period of probation is

over, revocation is no longer admissible.

It is not contested in the Applicant's case that the conduct for which

the Regional Court revoked the suspension of his sentence, came within

the time when he was still on probation. A final remittal of his

sentence after the end of his probation period had not yet been

pronounced.

In view of the above, the question we are concerned with ie whether it

was admissible in the Applicant's case to revoke the suspension of his

sentence even after the period of probation had ended, is one of

interpreting German domestic law, the more so - as has already been

observed by the Federal Government in its observations of 2 May 1967

- since the Convention does not guarantee a right of conditional

suspension of sentence.

The Minister of Justice of Land Niedersachsen has, finally, prevented

the Applicant's prison sentence from being enforced (which might have

been the result of the decision of .. June 1964) by granting him, on

.. June 1965, a further period of probation as an act of clemency. This

period ended on 31 May 1967. As a result of this clemency, the

Applicant has not suffered any disadvantages through the decision of

.. June 1964. Compared with the situation which might have resulted for

the Applicant from the judgement of .. September 1959, in conjunction

with the decision of .. June 1964, his situation under the clemency of

.. June 1965, was a more favourable one.

The Federal Government again applies for the application to be declared

inadmissible.

The Supplementary Observations of the Respondent Government were

submitted to the Applicant who on 1 August 1967, submitted the

following reply:

"I venture to make the following statement in reply to the Federal

Government's Observations of 10 July 1967:

In my constitutional appeal of .. September 1964, I have already drawn

attention to the marked difference between the terms participation

('Teilnahme') and presence ('Anwesenheit'). In the decision of the

Regional Court of Lüneburg of .. September 1959 (...) the term

'participation in manifestations' ('Teilnahme an Veranstaltungen') is

used, whereas the disputed decision of .. June 1964, refers expressly

merely to presence.

As a journalist, I am almost invariably simply present at such

manifestations. In the course of my work I have been present, for

instance, at the following events:

Party Conference of the SPD (Social Democratic party)

The Gymnastics Championship of the World

Party Conference of the NPD (National Democratic Party of Germany)

etc

Obviously no one will seriously think that I was a participant at these

events. My complaint is therefore directed at the way in which the

decision of .. September 1959 was interpreted in the decision of ..

June 1964."

It is wrong to assume that the Applicant considers his rights were

violated by the decision of .. September 1959. Unfortunately, as a

young man of 22 I still lacked the necessary understanding of legal

procedure.

That is why I was unable to lodge a constitutional appeal at that time,

although even then it might well have been successful. This anyway is

the opinion of distinguished lawyers such as the well-known SPD Member

of the Federal Parliament, Dr. Adolf Arndt, who says in a written

statement:

" ... first of all because I have doubts about the interpretation of

the law on which the decision is based and, secondly, because the

injunction to refrain from attending communist manifestations in

foreign States is, in my opinion, inadmissible."

I consider it inadmissible for unfavourable conclusions to be drawn

from my omitting to lodge an appeal at that time.

If I thought that the conditional suspension of sentence was unlawfully

revoked, this was not simply because the revocation took place after

the period of probation was over, but because it was carried out such

a long time after the period of probation was over. I would consider

a few days, a few weeks or even a month as normal, but not 17 months.

It is a mistake to think that because of the act of clemency, the

Applicant has not suffered injury as a result of the decision of ..

June 1964.

Injury is caused not only through the possibility of imprisonment but

through many attendant circumstances; in my case through frequent

postponement of the date of imprisonment and all its accompanying

effects."

In reply to a letter requesting him to supply the Commission with a

copy of the decision of the Minister of Justice of Lower Saxony of ..

June 1965, suspending his prison sentence but imposing a further period

of probation, the Applicant wrote on 21 October 1967 stating that he

had not been sent a copy of this decision but was informed thereof when

he rang up the Ministry of Justice on .. June 1965. He subsequently

received from the District Court (Amtsgericht) Hannover a document

entitled "Details of Probation" (Bewährungsplan) setting out the period

and conditions of the probation and in particular the condition that

he should not take part in or attend communist directed functions

(kommunistisch gelenkten Veranstaltungen). The Applicant's lawyer wrote

on .. October 1965 to the District Court protesting against this

condition as going further than originally imposed and constituting a

hindrance to the exercise of the Applicant's profession as a

photographic reporter. He further alleged that it was so vaguely

formulated as to make it impossible for the Applicant to know what

functions he could attend with immunity.

In reply to this complaint the District Court wrote on .. December

1965, stating that the Minister's direction of which the Applicant had

complained was cancelled but added that this did not mean that

permission was given for the Applicant to take part in or attend

communist directed functions.

The Applicant also repeated his contention that the mere fact that he

did not have to go to prison did not mean that he had not suffered

injury. In support of this contention he points out that the total

period of probation was increased to nearly 8 years instead of 3 as

fixed in 1959, not to speak of the effect on his reputation and the

expense and nervous strain involved.

THE LAW

Whereas the Applicant complains that on .. September 1959, he was

convicted by the Regional Court of Lüneburg of being an officer in a

subversive organisation and sentenced to 9 months' imprisonment;

Whereas the Court suspended this sentence and placed the Applicant on

probation for a period of 3 years on the condition that during that

period he refrained from participation in communist directed

manifestations such as World Festivals of Sport, Young Workers

Congresses and similar events;

Whereas Article 26 (Art. 26) of the Convention provides that the

Commission may only deal with a matter "within a period of 6 months

from the date on which the final decision was taken"; and whereas the

decision of the Federal Court, which was the final decision regarding

the subject of this complaint, was given on .. January 1960; whereas

the present Application was not submitted to the Commission until 8

February 1965, that is more than 6 months after the date of this

decision; whereas, furthermore, an examination of the case does not

disclose the existence of any special circumstances which might have

interrupted or suspended the running of that period; whereas it follows

that this part of the Application has been lodged out of time (Articles

26 and 27, paragraph (3) (Art. 26, 27-3), of the Convention);

Whereas, in regard to the Applicant's complaint that by a decision of

the Regional Court of Lüneburg of .. June 1964, the suspension of his

sentence was revoked on the ground that the Applicant had not complied

with the conditions which the court had imposed upon him, it is to be

observed that the Convention, under the terms of Article 1 (Art. 1),

guarantees only the rights and freedoms set forth in Section I of the

Convention; and whereas, under Article 25, paragraph (1) (Art. 25-1),

only the alleged violation of one of those rights and freedoms by a

Contracting Party can be the subject of an application presented by a

person, non-governmental organisation or group of individuals; whereas

otherwise its examination is outside the competence of the Commission

ratione materiae; whereas no right to the suspension on probation of

a sentence pronounced by a court in a criminal case, nor to the

continued enjoyment of such suspension once granted, is as such

included among the rights and freedoms set forth in the Convention;

Whereas the Commission refers in this respect to its constant

jurisprudence (see for instance decision of 19 July 1966, 2306/64,

Collection 21, page 23 at page 3); whereas it follows that the

application must be rejected as incompatible with the Convention in so

far as the Applicant complains of the revocation as such;

Whereas the Applicant complains, more particularly, that the

proceedings under which the Regional Court of Lüneburg revoked the

suspension on .. June 1964, were not brought against him within a

reasonable time;

Whereas the Commission observes in this respect that the Applicant in

these proceedings did not have the status of a person charged with a

criminal offence but that of a person convicted by a sentence which had

become final although its execution had been suspended; whereas a

court, when revoking the suspension of a sentence is not determining

a civil right or obligation within the meaning of Article 6 (Art. 6)

of the Convention, nor a criminal charge brought against the person in

question;

Whereas the provisions of Article 6 (Art. 6) therefore do not apply to

such proceedings; whereas the Commission refers in this respect to its

decisions in Applications Nos 864/60 - X v. Austria - Collection of

Decisions 9, page 17 and 1336/62 - S v. Austria; whereas it follows

that this part of the application must also be rejected as incompatible

with the Convention;

Whereas the Applicant further complains that the said decision revoking

the suspension was pronounced after the expiry of the 3 years period

of probation and therefore was not in conformity with the relevant

provisions of the German code of criminal procedure; whereas in this

respect the respondent Government replies that under German law the

decisive date is not the date of the revocation, but the date on which

the conditions of suspension were violated, and that the facts on which

the order of revocation was based in the present case occurred before

the expiry of the 3 years period; whereas the Commission has frequently

stated that in accordance with Article 19 (Art. 19) of the Convention

its only task is to ensure observance of the obligations undertaken by

the Parties in the Convention; whereas, in particular, it is not

competent to deal with an application alleging that errors of law or

fact have been committed by domestic courts, except where the

Commission considers that such errors might have involved a possible

violation of any of the rights and freedoms limitatively listed in the

Convention; whereas, in this respect, the Commission refers to its

decisions Nos 458/59 (X v. Belgium - Yearbook III, page 233) and

1140/61 (X v. Austria - Collection of Decisions, Volume 8, page 57);

whereas, it is true, the Applicant also complains that the express

ground of the said decision was his presence at a certain youth

festival which was considered to be a breach of the condition imposed

by the original judgement; whereas he submits that the said decision

accordingly violated his freedom of expression and constituted as such

a violation of Article 10 (Art. 10) of the Convention; whereas, in this

respect, the Commission observed that the judgement of the Regional

Court of Lüneburg, as successively upheld by the Court of Appeal of

Celle and the Federal Constitutional Court, was exclusively concerned

with the interpretation and execution of its earlier judgement of ..

September 1959; whereas in performing this task the Court merely had

to decide whether or not the conditions imposed by that earlier

decision had been observed by the Applicant; whereas, therefore, the

court in finding that these conditions had not been observed and on

that ground revoking the suspension did not apply any new and separate

penal sanction but only ordered the execution of its earlier sentence;

whereas it follows that this part of the application must therefore be

rejected as manifestly ill-founded within the meaning of Article 27,

paragraph (2) (Art. 27-2), of the Convention;

Whereas the Applicant further complains that his freedom to receive and

impart information has been infringed by the act of the Minister of

Justice of Lower Saxony in further suspending his sentence under the

same condition, namely that he should not attend or take part in

communist directed functions; whereas under Article 25, paragraph (1)

(Art. 25-1), of the Convention the Commission may only receive an

individual Application where the Applicant claims that he is a victim

of a violation by one of the High Contracting Parties of the rights set

forth in the Convention; whereas it is clear from the letter of the

District Court in Hannover dated .. December 1965, that the condition

imposed by the Minister and complained of by the Applicant had been

cancelled;

Whereas therefore the Applicant is no longer a victim in this respect

and the complaint is thus incompatible with the Convention and, in

particular, with the provisions of Article 25 (Art. 25) governing the

conditions under which the Commission may receive an Application from

an individual;

Whereas in this respect the Commission refers to its decisions in

Applications Nos 968/61 - X v. Federal Republic of Germany, Yearbook

V 196 - 98, and 2257/64 - X v. Federal Republic of Germany, Collection

of Decisions 21, page 77; whereas it follows that this part of the

Application must be rejected in accordance with Article 27,paragraph

(2) (Art. 27-2), of the Convention;

Now therefore the Commission declares this Application INADMISSIBLE.