Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 15871/89

by G.S.

against the Federal Republic of Germany

The European Commission of Human Rights sitting in private

on 9 October 1991, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

F. ERMACORA

G. SPERDUTI

E. BUSUTTIL

G. JÖRUNDSSON

A. WEITZEL

J.C. SOYER

H.G. SCHERMERS

H. DANELIUS

Mrs. G.H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

B. MARXER

Mr. H.C. KRÜGER, Secretary to the Commission,

Having regard to Article 25 of the Convention for the

Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 8 December 1989

by G.S. against the Federal Republic of Germany

and registered on 9 December 1989 under file No. 15871/89;

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

parties, may be summarised as follows.

The applicant, born in 1955, is a German national and resident

at W. Before the Commission he is represented by

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

On 31 July 1987 the Arnsberg Regional Court (Landgericht)

convicted the applicant of having continuously dealt in drugs of a

considerable quantity (fortgesetztes Handeltreiben mit Betäubungs-

mitteln in nicht geringer Menge) and sentenced him to two years'

imprisonment. The execution of the sentence was suspended (Straf-

aussetzung zur Bewährung) for a period of four years.

On 11 July 1989 the applicant, after having been incriminated

by Mr. S., another suspect, was provisionally arrested on the

suspicion of having dealt in drugs.

On 12 July 1989 the applicant was questioned by the police.

After having been informed about his right to remain silent, to have

assistance by counsel or to request the taking of evidence, the

applicant declared that, upon mature deliberation, he wanted to give

voluntarily a complete statement as to his drug contacts. He then

explained in detail that in January/February 1989 he had met S. and

talked with him about drugs. In March 1989 he had obtained 1 kg

hashish from the Netherlands, and sold it to S. Shortly afterwards,

S. had ordered 2 kg hashish, which he had obtained for him. In

further transactions, he sold altogether 12.5 kg hashish to S. The

applicant also explained how he received hashish in the Netherlands.

Moreover, he admitted that he had twice acquired 1 g heroine for his

own needs.

The same day, the applicant was heard by the competent judge

at the Meschede District Court (Amtsgericht) in the presence of his

defence counsel. The applicant made a comprehensive statement on his

case, which was identical to his earlier statement before the police.

His declaration before the police having been read out verbatim, the

applicant confirmed that this was the truth.

Thereupon the Meschede District Court issued a warrant of

arrest against the applicant which was suspended under particular

conditions.

On 10 August 1989 the Arnsberg Public Prosecutor's Office

(Staatsanwaltschaft) preferred an indictment (Anklageerhebung) against

the applicant charging him with having imported drugs of a

considerable quantity and having professionally dealt in drugs from

November 1988 until July 1989.

On 7 September 1989 the Second Criminal Chamber (2. Straf-

kammer) at the Arnsberg Regional Court revoked the suspension of

31 July 1987.

The Regional Court considered that the applicant, who had

been questioned by the police and an investigating judge on 12 July

1989, had admitted in a credible manner that he had bought 12.5 kg of

cannabis in the Netherlands in the course of the first six months of

1989, and sold them with profit in the Federal Republic of Germany.

The Regional Court, referring to S. 56 (f) para. 1 (1) of the

Penal Code (Strafgesetzbuch), concluded that by committing this

serious offence, the applicant had shown that he did not fulfil the

expectations on which the suspension was based ("Durch diese schwere

Straftat hat der Verurteilte gezeigt, daß die Erwartung, die der

Strafaussetzung zugrunde lag, sich nicht erfüllt hat").

S. 56 (f) para. 1 (1) provides that the court supervising the

execution of sentences (Vollstreckungsgericht) revokes the suspension

of a sentence if the convicted person commits another criminal offence

during the period of probation and thereby shows that he did not

fulfil the expectations upon which the suspension of the sentence was

based ("Das Gericht widerruft die Strafaussetzung, wenn der Verurteilte

in der Bewährungszeit eine neue Straftat begeht und dadurch zeigt, daß

die Erwartung, die der Strafaussetzung zugrundelag, sich nicht erfüllt

hat, ...").

On 10 October 1989 the Hamm Court of Appeal (Oberlandesgericht)

dismissed the applicant's appeal (sofortige Beschwerde). The Court of

Appeal confirmed the reasoning of the Regional Court. It considered

that, having regard to the kind and seriousness of the new criminal

offence, the revocation could not be avoided.

On 25 October 1989 the applicant lodged a constitutional

complaint (Verfassungsbeschwerde) with the Federal Constitutional

Court (Bundesverfassungsgericht) against the court decisions revoking

the suspension of his previous sentence. In his submissions he

withdrew his admission of guilt. The applicant repeated this

withdrawal at the trial before the Second Chamber of the Arnsberg

Regional Court on 15 November 1989 and 8 March 1990. He stated that

the police officers had urged him to admit his guilt, otherwise he

might be taken into detention on remand.

On 6 December 1989 the Federal Constitutional Court refused to

admit the applicant's constitutional complaint against the court

decisions revoking the suspension of his sentence on the ground that

it offered no prospect of success. The Constitutional Court found in

particular that the presumption of innocence was not violated if the

court deciding under S. 56 (f) para. 1 (1) of the Penal Code refers to

new preliminary investigations in order to establish new criminal

behaviour. In the present case, the Regional Court and the Court of

Appeal considered that the applicant had, in a credible manner,

admitted his guilt and repeated his statements before an investigating

judge, and were, therefore, convinced that he had committed a new

criminal offence. In such circumstances, the decision to revoke the

suspension of his previous sentence could not be objected to under

constitutional law.

On 8 March 1990 the Arnsberg Regional Court convicted the

applicant of having professionally dealt in drugs of a considerable

quantity and sentenced him to two years and nine months' imprisonment.

The Federal Court of Justice (Bundesgerichtshof) confirmed the

judgment on 24 September 1990.

COMPLAINTS

The applicant complains under Article 6 para. 2 of the

Convention that the German court decisions revoking the suspension of

his sentence violated the presumption of innocence.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 8 December 1989 and

registered on 9 December 1989.

On 15 December 1989 the Commission declined to accede to a

request by the applicant to indicate an interim measure to the

Government, pursuant to Rule 36 of its Rules of Procedure.

On 11 October 1990 the Commission decided to bring the

application to the notice of the respondent Government and to invite

them to submit written observations on its admissibility and merits.

On 20 December 1990 the respondent Government submitted their

observations. The observations in reply were submitted by the

applicant on 28 March 1991.

THE LAW

The applicant complains under Article 6 para. 2 (Art. 6-2) of

the Convention that the German court decisions to revoke the

suspension of his previous sentences contained an appraisal of his

guilt in respect of the new charge although he had not yet been

convicted by the competent court.

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".

a. The Government contend that Article 6 para. 2 (Art. 6-2) of

the Convention does not apply to decisions concerning punishment for a

criminal offence proved according to law. They refer to previous

case-law, in particular the Court's Engel and Others judgment (Eur.

Court H.R., Engel and Others judgment of 8 June 1976, Series A no. 22,

pp. 37/38, para. 90), according to which Article 6 para. 2 does not

prevent the national judge, when deciding upon the penalty to be

imposed upon an accused lawfully convicted, from having regard to

factors relating to the individual's personality, including

undisputed, established facts similar to the offence in question.

According to the Government, these considerations also apply to court

decisions concerning the suspension of a sentence on probation.

The Commission recalls that 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, p. 54-55, para. 37 and p. 79,

para. 37, respectively; cf. also Eur. Comm. H.R., No. 7986/77, Dec.

3.10.1978, D.R. 13 p. 73).

The Commission therefore finds that the presumption of

innocence may, in principle, be invoked as regards the court decisions

concerned in the present case, which were taken prior to the

determination of the new charge against the applicant by the competent

court.

b. The Government further submit that the applicant failed to

exhaust the domestic remedies within the meaning of Article 26

(Art. 26) of the Convention, as, in his appeal with the Court of

Appeal, he did not revoke his earlier admission. The Commission has

left this question open, as the application is, in any case,

inadmissible for the reasons set out below.

c. The Goverment also submit that the applicant is prevented from

invoking the presumption of innocence on the ground that he himself

made a comprehensive and convincing admission. He thus waived his

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

The applicant considers that under Article 6 para. 2

(Art. 6-2) the question of an admission or denial of guilt is

irrelevant. He submits that misjudgments are often due to false

admissions of guilt.

The Commission observes that the sentence of imprisonment was

lawfully imposed on the applicant after his conviction in 1987 and,

following the decision to revoke the suspension of this sentence, the

applicant's detention is lawful and in accordance with Article 5 para.

1 (a) (Art. 5-1-a) of the Convention. 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 amounts in substance to a determination of

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

Convention, the Commission attaches particular weight to the fact that

the applicant admitted his guilt in detailed statements before the

police and, what the Commission considers to be decisive, in

statements before an investigating judge in presence of his defence

counsel.

The Commission notes that the Arnsberg Regional Court, in its

decision of 7 September 1989, relied on the admission of the applicant

that he had committed the new criminal offence in question. It had

therefore concluded that he had committed another offence and thus

did not fulfil the expectations on which the decision to suspend his

previous sentence had been based. This reasoning was confirmed by the

Hamm Court of Appeal. The Federal Constitutional Court considered in

particular that the decisions of the Regional Court and the Court of

Appeal had been based on a credible admission of guilt by the applicant

and could not, therefore, be objected to under constitutional law.

The Commission finds that these 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, pp. 18/19, para. 40; Minelli

judgment, loc. cit., p. 19, para. 40).

It is true that the Regional Court, in its decision of

7 September 1989, revoked the suspension on the assumption concluding

that the applicant had committed another criminal offence. This

decision was confirmed by the Court of Appeal and the Federal

Constitutional Court. However, the German Court decisions were based

upon the applicant's admission of his guilt before the police and, in

the presence of his defence counsel, before the competent judge. At

the time of the decisions of both the Arnsberg Regional Court and the

Hamm Court of Appeal, the applicant's admission had not been

withdrawn.

In these particular circumstances, the impugned decisions

revoking the suspension of the applicant's previous sentence 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.

It follows that the application must be rejected as being

manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

For these reasons, the Commission, by a majority,

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission President of the Commission

(H. C. KRÜGER) (C. A. NØRGAARD)

Menu

S. v. GERMANY

S. v. GERMANY

LEXI