Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 12748/87

by G.

against the Federal Republic of Germany

The European Commission of Human Rights sitting in private

on 14 March 1989, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

G. SPERDUTI

A.S. GÖZÜBÜYÜK

A. WEITZEL

H.G. SCHERMERS

H. DANELIUS

J. CAMPINOS

H. VANDENBERGHE

Mrs. G.H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mr. L. LOUCAIDES

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 5 February 1987

by G. against the Federal Republic of Germany and registered

on 20 February 1987 under file No. 12748/87;

Having regard to the report provided for in Rule 40 of the

Rules of Procedure of the Commission;

Having regard to :

- the observations submitted by the respondent Government on

14 March 1988 and the observations in reply submitted by the

applicant on 13 May 1988;

- the submissions made by the parties at the hearing on

14 March 1989.

Having deliberated;

Decides as follows:

THE FACTS

The facts of the case, which do not appear to be in dispute

between the parties, may be summarised as follows.

The applicant, born in 1951, is a German national and resident

in Dortmund. He is a mechanic by profession. Before the Commission

he is represented by Mr. P. Budde, a lawyer practising in Dortmund.

On 23 July 1981 the Dortmund District Court (Amtsgericht)

convicted the applicant of an offence under the Narcotics Act

(Gesetz über den Verkehr mit Betäubungsmitteln) and sentenced him to

one year's imprisonment. The execution of the sentence was suspended on

probation.

At the end of 1985 the Dortmund Prosecutor's Office (Staatsan-

waltschaft) began preliminary investigations against the applicant on

the charge that on 29 October 1985 he had dealt in heroin of a

considerable quantity. On 10 January 1986 the applicant, represented

by counsel, denied that he had heroin with him on 29 October 1985.

On 21 April 1986 the Dortmund Regional Court (Landgericht),

acting as court supervising the execution of sentences (Vollstreckungs-

gericht), revoked the suspension of 23 July 1981.

In the reasons given for its decision the Court referred in

particular to S. 56(f) para. 1 (1) of the German Penal Code (Straf-

gesetzbuch) according to which the court supervising the execution of

sentences 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

Straftat begeht und dadurch zeigt, dass die Erwartung, die der

Strafaussetzung zugrunde lag, sich nicht erfüllt hat, ...").

The Regional Court found that the applicant had committed

another criminal offence of the same kind during the period of

probation. ("Der Verurteilte ist in der Bewährungszeit erneut ein-

schlägig straffällig geworden".) It considered that on 29 October

1985 he had dealt in drugs of a significant quantity and that

according to a chemical expert opinion of 26 February 1986 it was

heroin. He had, therefore, committed an offence under the Narcotics

Act and shown that he did not fulfil the expectations upon which the

suspension of his sentence was based. He had not submitted any

reasons which could excuse his conduct. ("Es liegt mithin eine Straf-

tat ... Gesetz über den Verkehr mit Betäubungsmitteln vor.

Durch sein Verhalten hat der Verurteilte gezeigt, dass sich die

Erwartungen, die der Strafaussetzung zugrunde liegen, nicht erfüllt

haben. Der Verurteilte hat keine Umstände vorgetragen, die sein

Verhalten entschuldigen könnten.")

On 9 July 1986 the Hamm Court of Appeal (Oberlandesgericht)

dismissed the applicant's appeal (sofortige Beschwerde) against the

decision of 29 October 1985 on the ground that the reasons given in

that decision were in their conclusion correct. The Court left the

question open whether or not the applicant had dealt in drugs. It

stated that, having regard to the results of the preliminary

investigations in the recent criminal proceedings before the Dortmund

District Court, it was convinced that on 29 October 1985 the

applicant, in any event, unlawfully possessed 30 mg of a mixture of

various drugs. This repeated criminal conduct of the applicant in

respect of a similar kind of criminal offence during his probationary

period would justify and require that the suspension of his sentence

be revoked without, on the evidence before the Court, a final

conviction being necessary. ("Nach dem Ergebnis der Ermittlungen in

dem neuerlichen Strafverfahren ... AG Dortmund ist der Senat

davon überzeugt, dass der Verurteilte am 29. Oktober 1985 jedenfalls

ohne Erlaubnis 30 mg eines Gemisches aus

in Besitz gehabt hat. Auch dieses erneute und einschlägige strafbare

Verhalten des , das er innerhalb der Bewährungszeit

aus dem vorliegenden Verfahren begangen hat, rechtfertigt und

erfordert nunmehr den Widerruf der Strafaussetzung, ohne dass es bei

der gegebenen Beweislage zuvor einer entsprechenden rechtskräftigen

Verurteilung bedarf.")

On 1 December 1986 the Federal Constitutional Court (Bundes-

verfassungsgericht) refused to admit the applicant's constitutional

complaint (Verfassungsbeschwerde) on the ground that it offered no

prospect to success. The Court found in particular that the

presumption of innocence derived from the principle of the rule of law

was not violated. It considered that by virtue of this principle no

measures amounting to a penalty may be taken against a defendant

without his guilt having been established according to law. However,

not every finding of guilt would contravene the principle of the rule

of law. According to constant jurisprudence S. 56(f) para. 1 (1) of

the Penal Code did not require that the defendant had already been

convicted, but the court supervising the execution of sentences, upon

the basis of its own assessment, must be convinced that he committed

the offence in question. This jurisprudence could not be objected to

from a constitutional point of view. The revocation of a suspension

constituted the consequence of the positive decisions to suspend the

sentence. It deprived the defendant of an advantage which was based

on a prognosis as to his future conduct and, in any event, subject to

certain insecurities. The court supervising the execution of sentences

could not be prevented from revoking a suspension in circumstances

which would have given it reason not to suspend the sentence at the time

of its initial decision.

In the criminal proceedings before the Dortmund District Court

the applicant was convicted on 14 January 1987 of unlawful possession

of drugs and sentenced to ten months' imprisonment. The execution of

the sentence was suspended on probation. The applicant did not pursue

his appeal (Berufung).

On 12 March 1987 the Dortmund Regional Court, deciding on

matters of grace (Gnadenstelle), suspended the remainder of the

applicant's sentence on probation until 10 March 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. He considers that

the courts, on the evidence before them, could not be convinced of the

applicant's guilt as required under S. 56(f) of the Penal Code. The

revocation of a suspension was not only a provisional measure but in

fact amounted to a penalty.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 5 February 1987 and

registered on 20 February 1987.

On 9 December 1987 the Commission decided in accordance with

Rule 42 para. 2 (b) of its Rules of Procedure to give notice of the

application to the respondent Government and to invite them to present

before 11 March 1987 their observations in writing on the

admissibility and merits of the application.

The Government's observations were dated 14 March 1988 and

received on 21 March 1988. The applicant's reply of 13 May 1988 was

received on 20 May 1988.

On 24 March 1988 the President of the Commission decided that

legal aid should be granted to the applicant for the representation of

his case before the Commission.

At the hearing the parties were represented as follows:

For the Government:

Mr. Stöcker Ministerialrat

Federal Ministry of Justice, Agent

Mr. Berg Richter am Landgericht,

Federal Ministry of Justice, Adviser

For the applicant

Mr. Budde Lawyer, Representative

Mr. Vogler Law Professor, Adviser

The applicant was present at the hearing.

THE LAW

The applicant complains that the decisions of the Dortmund

Regional Court dated 21 April 1986 and the Hamm Court of Appeal dated

9 July 1986 reflect the opinion that he had committed a new criminal

offence although this charge had not yet been determined by the

competent trial court. He considers that they amount to a violation

of Article 6 para. 2 (Art. 6-2) of the Convention which reads:

"Everyone charged with a criminal offence shall be

presumed innocent until proved guilty according to law."

The respondent Government contend that the application is

incompatible ratione materiae with the provisions of the Convention.

They compare the present case with proceedings concerning only the

kind or level of punishment and refer to the Convention organs'

case-law in this respect (Eur. Court H.R., Engel and others judgment

of 8 June 1976, Series A No. 22, para. 90; Eur. Commission H.R., No.

5620/72, Dec. 18.7.74 ; No. 7058/75, Dec. 12.7.76).

The Commission recalls that a case may raise an issue under

Article 6 para. 2 (Art. 6-2) if a court expresses an opinion as to an

accused's guilt without his having previously been proved guilty

according to law and, in particular, without his having had an

opportunity to exercise his rights of defence (cf. 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.

Commission H.R., No. 7986/78, Dec. 3.10.78, D.R. 13 p. 73).

The Commission notes that in the present case the court

decisions complained of related to a criminal charge against the

applicant under the Narcotics Act in respect of which preliminary

investigations were conducted by the Dortmund Public Prosecutor's

Office since the end of 1985.

As regards the Government's submission that the applicant can

no longer claim to be a victim of a violation of the Convention, in

the sense of Article 25 (Art. 25) of the Convention, the Commission

finds that the decision of the Dortmund Regional Court of 12 March

1987 to suspend the sentence as a matter of grace and to prolong the

period of probation did not remedy the possible violation of Article 6

para. 2 (Art. 6-2) (cf. Eur. Court H.R., Eckle judgment of 15 July

1982, Series A no. 51, pp. 30 - 31 para. 66).

The Government also contend that S. 56 (f) para. 1(1) of the

German Penal Code, as applied in the present case, is in conformity

with the principles laid down by the European Court and Commission of

Human Rights as regards the presumption of innocence. They submit in

particular that both the Dortmund Regional Court and the Hamm Court of

Appeal arrived at the conclusion that the applicant had committed

another criminal offence during his period of probation, in judicial

proceedings (justizförmiges Verfahren), in which he had the

opportunity to exercise his rights of defence.

The Commission, however, considers that the applicant's

complaint raises complex issues of fact and law which can only be

resolved by an examination of the merits. The application cannot,

therefore, be declared manifestly ill-founded. No other grounds for

inadmissibility have been established.

For these reasons, the Commission

DECLARES THE APPLICATION ADMISSIBLE

without prejudging the merits of the case

Secretary to the Commission President of the Commission

(H. C. KRÜGER) (C. A. NØRGAARD)

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G. v. GERMANY

G. v. GERMANY

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