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AS TO THE ADMISSIBILITY OF

Application No. 23091/93

by M. M.

against Germany

The European Commission of Human Rights (First Chamber) sitting

in private on 30 November 1994, the following members being present:

MM. A. WEITZEL, President

C.L. ROZAKIS

F. ERMACORA

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

Mrs. J. LIDDY

MM. M.P. PELLONPÄÄ

B. MARXER

G.B. REFFI

B. CONFORTI

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

G. RESS

Mrs. M.F. BUQUICCHIO, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 18 November 1993

by M. M. against Germany and registered on 15 December 1994 under file

No. 23091/93;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The facts of the case, as they have been submitted by the

applicant, may be summarised as follows.

The applicant, born in 1959, is a German national and resident

in Remscheid. When lodging his application he was detained at a prison

in Düsseldorf. Before the Commission he is represented by

Mr. P. Budde, a lawyer practising in Dortmund.

A. Particular circumstances of the case

On 22 January 1982 the Wuppertal Regional Court (Landgericht)

convicted the applicant of murder and attempted grave robbery and

sentenced him to twelve years and one month's imprisonment. The

applicant had served two thirds of his sentence on 6 May 1989.

On 22 November 1991 the Wuppertal Regional Court refused to

suspend the remainder of the applicant's sentence on probation.

The Regional Court found that, for the time being, such a

suspension could not be considered, as it could not be put to a test

whether the applicant would commit any further offences if released,

as required under S. 57 para. 1 (1) of the Penal Code (Straf-

gesetzbuch). In this respect the Regional Court had regard to the

applicant's personality and his past life, and found that it could not

be expected that he would no longer commit criminal offences, even

taking the effects of a release on probation into account.

The Regional Court further stated that not even the applicant's

lengthy imprisonment had dissuaded him from committing further

offences. In this respect, the Regional Court noted that, in new

investigation proceedings pending against him, the applicant was

charged with having committed drug offences, namely of having sold

hashish to another prisoner in March and April 1989. The Court

therefore considered that there was a strong suspicion that the

applicant had been involved in drug trafficking ("Insoweit erachtet die

Kammer ... den Angeklagten für dringend verdächtig ... den ihm

angelasteten Handel mit Betäubungsmitteln begangen zu haben."). This

suspicion was not only based upon the statements of the prisoner

concerned. When his cells in the prisons in Remscheid and Werl had

been searched in April and November 1989, respectively, small

quantities of hashish had been found, and the applicant had been,

therefore, fined DM 450. Thus the offence of which he was charged in

the new proceedings was not foreign to his nature. Witnesses for the

defence had made contradictory statements. In sum, the Court was

convinced that the charge against the applicant was justified

("Insgesamt gesehen, ist die Kammer der Überzeugung, daß der Tatvorwurf

gegen den Angeklagten zu Recht besteht."). The applicant's tendency

to commit criminal offences called for a further execution of his

sentence.

On 6 February 1992 the Düsseldorf Court of Appeal (Oberlandes-

gericht) dismissed the applicant's appeal. The Court of Appeal

considered in particular that the Regional Court could take into

account the further offence committed by the applicant in the course

of his detention, which was at issue in the pending investigation

proceedings conducted by the Wuppertal Public Prosecutor's Office

(Staatsanwaltschaft), in order to examine the conditions under S. 57

para. 1 (2) of the Penal Code. In any event, a final penal order had

been issued against him in December 1989 and that criminal conduct did

not permit a positive prognosis as to his future conduct. Both cases

showed that the execution of his sentence had not yet sufficiently

achieved its aim.

On 23 April 1992 the Wuppertal District Court ( Amtsgericht)

acquitted the applicant of the charge of drug trafficking.

On 7 June 1993 the Federal Constitutional Court (Bundesver-

fassungsgericht) refused to admit the applicant's constitutional

complaint (Verfassungsbeschwerde) on the ground that it offered no

prospect of success. The Constitutional Court considered in particular

that the lower courts' refusal to suspend the remainder of the

applicant's sentence did not amount to a violation of the presumption

of innocence.

B. Relevant domestic law

According to S. 57 para. 1, first sentence, of the German Penal

Code (Strafgesetzbuch), the competent court may suspend the remainder

of a sentence to a imprisonment if (1) two thirds of the sentence, at

least two months have been served, (2) it can be put to a test whether

the convicted person would not commit criminal offences if released,

(3) and the convicted person agrees. The second sentence of S. 57

para. 1 provides that in taking the decision, the court has to take the

person's personality into account, further his past life, the

circumstances of his criminal offence, his conduct in prison, his

personal situation and the effects which the conditional release will

have upon him.

COMPLAINTS

The applicant complains under Article 6 para. 2 of the Convention

that the German court decisions refusing the suspension of the

remainder of his sentence to imprisonment amounted to a finding of

guilt without him having had a possibility to exercise his defence at

a trial.

THE LAW

The applicant complains that the German court decisions refusing

the suspension of the remainder of his sentence to imprisonment

amounted to a violation of the presumption of innocence, as guaranteed

under Article 6 para. 2 (Art. 6-2) of the Convention.

Article 6 para. 2 (Art. 6-2) guarantees that "everyone charged

with a criminal offence shall be presumed innocent until proved guilty

according to law".

The scope of Article 6 para. 2 (Art. 6-2) is not limited to a

procedural guarantee in proceedings concerning the determination of

criminal charges. The Commission and the Court have found that the

presumption of innocence will be violated if without the accused having

previously been proved guilty according to law a judicial decision

concerning him reflects an opinion that he is guilty (Eur. Court H.R.,

Minelli judgment of 25 March 1983, Series A no. 62, p. 18, para. 37;

mutatis mutandis, Eur. Court H.R., Lutz/Englert/Nölkenbockhoff

judgments of 25 August 1987, Series A no. 123, p. 25, para. 60, pp. 54-

55, para. 37, and p. 79, para. 37, respectively; No. 7986/77, Dec.

3.10.78, D.R. 13 p. 73). The Commission therefore finds that the

presumption of innocence may, in principle, be invoked as regards the

court decisions in the present case, which were taken prior to the

determination of the new charge against the applicant by the competent

court.

However, the Commission observes that following his conviction

in 1982, the applicant is lawfully detained in accordance with

Article 5 para. 1 (a) (Art. 5-1-a) of the Convention, and the impugned

decisions, therefore, do not as such violate Article 6 para. 2

(Art. 6-2) of the Convention.

As regards the question whether the supporting reasoning in the

impugned court decisions amount in substance to a determination of the

applicant's guilt contrary to Article 6 para. 2 (Art. 6-2) of the

Convention, the Commission notes that the Wuppertal Regional Court, in

its decision of 22 November 1991, stated that, in new investigation

proceedings pending against him, the applicant was charged with having

committed drug offences, and that there was a strong suspicion that the

applicant had been involved in drug trafficking. In this respect, the

Regional Court, having had regard to the results of the investigations

at that stage of the proceedings, found that the charge against the

applicant was justified. The Düsseldorf Court of Appeal, in its

decision of 6 February 1992, confirmed the Regional Court's reasoning

as to the new offence committed by the applicant in the course of his

detention which was at issue in the investigation proceedings conducted

by the Wuppertal Public Prosecutor's Office. According to the Federal

Constitutional Court, the presumption of innocence had not been

violated.

The Commission finds that these different statements must be read

as a whole and in their proper context (cf. Eur. Court H.R., Adolf

judgment of 26 March 1982, Series A no. 49, p. 18, para. 40; Minelli

judgment, loc. cit., p. 18, para. 40).

The Commission considers that the Regional Court merely pointed

out that new criminal proceedings had been instituted against the

applicant and that there was a strong suspicion that the applicant had

committed a drug offence in the course of his imprisonment. While the

Court of Appeal also referred to a new criminal offence committed by

the applicant, it clarified in the same sentence that this matter was

still being examined in investigation proceedings conducted by the

competent Public Prosecutor's Office.

The Commission concludes that, in the particular circumstances

of the present case, the impugned German court decisions do not

disclose any appearance of a violation of the presumption of innocence

as guaranteed under Article 6 para. 2 (Art. 6-2) of the Convention.

Consequently, the application is manifestly ill-founded within

the meaning of Article 27 (Art. 27) of the Convention.

For these reasons, the Commission unanimously

DECLARES THE APPLICATION INADMISSIBLE

Secretary to the First Chamber President of the First Chamber

(M.F. BUQUICCHIO) (A. WEITZEL)

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M.M. v. GERMANY

M.M. v. GERMANY

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