Lexploria

TO THE ADMISSIBILITY OF

Application No. 17664/91

by E.C.

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 15 November 1990

by E.C. against the Federal Republic of Germany and registered

on 14 January 1991 under file No. 17664/91;

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 1950, is a German national and resident

at Nidderau. Before the Commission she is represented by

Mr. G. Hintze, a lawyer practising in Frankfurt.

On 9 June 1987 the Hanau Regional Court (Landgericht)

convicted the applicant of tax evasion and, taking a previous

conviction into account, sentenced her to one year and six months'

imprisonment. The execution of the sentence was suspended on

probation (Strafaussetzung zur Bewährung).

On 30 March 1990 the 5th Economic Crimes Chamber (Wirt-

schaftsstrafkammer) at the Hanau Regional Court convicted the

applicant of having, in her position as manager of a firm, repeatedly

failed to pay salaries in due time, of having failed to request the

opening of bankruptcy proceedings for the above insolvent firm, and of

having committed fraud on several counts.

On 4 April 1990 the same Chamber revoked the suspension of

9 June 1987.

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

Penal Code (Strafgesetzbuch), found that by committing further

criminal offences the applicant had shown that she did not fulfil the

expectations on which the suspension was based ("Die Strafaussetzung

war zu widerrufen, ..., weil die Verurteilte in der Bewährungszeit

Straftaten begangen hat und dadurch gezeigt hat, daß sich die der

Strafaussetzung zugrundeliegende Erwartung nicht erfüllt hat").

The Regional Court considered that, in the course of her

period of probation, the applicant, in her position as manager of a

firm, had repeatedly failed to pay salaries in due time, had failed to

request the opening of bankruptcy proceedings for the above insolvent

firm, and had committed fraud on several counts. As regards the

details of these criminal offences, the Regional Court referred to its

judgment of 30 March 1990.

It noted that the applicant had lodged an appeal against her

conviction which was thus not final. However, it considered that it

could already revoke the suspension in view of the aforesaid criminal

offences on the ground that, as followed from its judgment of 30 March

1990, it was convinced of the applicant's guilt after having conducted

the trial against her in the same composition of judges ("Auch wenn

die Verurteilung der Angeklagten noch nicht rechtskräftig ist, weil

diese ein Rechtsmittel eingelegt hat, konnte die erkannte Straf-

aussetzung zur Bewährung bereits wegen der vorgenannten Straftaten

widerrufen werden ..., weil die Kammer, wie sich aus dem Urteil vom

30.03.1990 ergibt, nach der mit der gleichen Berufsrichterbesetzung

durchgeführten Hauptverhandlung insoweit von der Schuld der Verur-

teilten überzeugt ist."). Moreover, the applicant had admitted her

guilt as regards two of the offences.

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 14 August 1990 the Frankfurt Court of Appeal (Oberlandes-

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

Court of Appeal considered that the suspension of a sentence could be

revoked in view of a new criminal offence even before final conviction

in this respect. However, it was necessary that the court, on the

basis of facts beyond doubt, was and could be convinced that the

convicted person had committed a new criminal offence. Having regard

to these considerations, the establishment of facts relating to the

applicant's new criminal offences in the judgment of the Hanau

Regional Court of March 1990, which was based on the applicant's

admission of guilt, justified the conviction that she had committed a

new criminal offence. Having regard to the separate sentences of one

year and six months' imprisonment, which were imposed in this respect,

less strict measures could not be considered.

On 15 October 1990 the Federal Constitutional Court (Bundes-

verfassungsgericht) refused to admit the applicant's constitutional

complaint (Verfassungsbeschwerde) on the ground that it offered no

prospect of success. The Constitutional Court found in particular

that the impugned court decisions did not violate the presumption of

innocence. In the proceedings concerning a decision under S. 56 (f)

para. 1 (1) of the Penal Code, the presumption of innocence was not

affected under the prevailing legislation, if the court concerned

referred to new preliminary investigations, established new criminal

behaviour and drew particular consequences for its decision to revoke

the suspension of a sentence. In the present case, the Regional Court

and the Court of Appeal had based their decisions upon charges against

the applicant, which had resulted in the applicant's new conviction of

economic crimes after trial. In the trial upon which this judgment,

not yet final, was based the applicant had partly admitted her guilt;

in this respect separate sentences of one year and six months'

imprisonment had been imposed. In these circumstances, the decisions

to revoke the suspension of her previous sentence were not

objectionable under constitutional law.

COMPLAINTS

The applicant complains under Article 6 para. 2 of the

Convention that the German court decisions revoking the suspension of

her sentence violated the presumption of innocence. She submits in

particular that at the time of revocation the judgment in the new

criminal proceedings was not yet final.

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 her previous sentence before final determination of the

new charges against her violated the presumption of innocence.

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 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 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; 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 final determination of the new charges against

the applicant by the competent courts.

However, the Commission observes that the sentence of

imprisonment was lawfully imposed on the applicant after her conviction

in 1987. Following the Hanau Regional Court's 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.

It is true that the applicant's conviction in the new

criminal proceedings had not yet become final at that date. However,

the Commission finds that the presumption of innocence does not

require a final judgment before the facts established in a full trial

can be taken into account for the revocation of the suspension.

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 was, at first instance, convicted of the offences

concerned after trial before the same Chamber at the Hanau Regional

Court where she had the opportunity to exercise her defence rights.

The Commission notes that the 5th Economic Crimes Chamber at

the Hanau Regional Court, in its decision of 4 April 1990, relied on

its judgment of 30 March 1990 convicting the applicant of the criminal

offences in question after having conducted a trial in the same

composition of judges. Thereby it found that she had committed new

criminal offences, and thus failed to fulfil the expectations on which

the decision to suspend her previous sentence had been based. This

reasoning was confirmed by the Frankfurt 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 upon charges

against the applicant, which had resulted in the applicant's new

conviction of economic crimes after trial, and that in the trial upon

which this judgment was based she had partly admitted her guilt.

In these 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 is 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)

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