Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 12669/87

by R.

against the Federal Republic of Germany

The European Commission of Human Rights sitting in private

on 11 October 1988, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

F. ERMACORA

G. SPERDUTI

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

G. BATLINER

J. CAMPINOS

H. VANDENBERGHE

Mrs. G.H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

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 7 December 1986

by R. against the Federal Republic of Germany and registered on 26

January 1987 under file No. 12669/87;

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

Rules of Procedure of the Commission;

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 1957, is a German national. When

lodging his application he was detained at Kiel Prison. Before the

Commission he is represented by Mr. G.-M. Achterberg, a lawyer at

Neumünster.

On 24 October 1985 the Osnabrück Regional Court (Landgericht),

supervising the execution of sentences (Vollstreckungsgericht),

suspended (Strafaussetzung zur Bewährung) the remainder of two

sentences in two separate decisions. These sentences had been imposed

on the applicant by the Göttingen Regional Court in 1981 and by the

Freiburg Regional Court in 1983.

In January 1986 information was laid against the applicant on

the suspicion of fraud. The applicant was arrested and, upon a

warrant of arrest of the Neumünster District Court (Amtsgericht),

taken into detention on remand on 30 January 1986. During his

examination on that day by the police, he confessed in detail.

By letter of 12 February 1986 the applicant informed the Kiel

Public Prosecutor's Office (Staatsanwaltschaft) about five further

counts of fraud and requested that the Göttingen and Freiburg Public

Prosecutor's Offices be informed with a view to starting proceedings

to revoke the suspension of his earlier sentences. On 18 February

1986 the applicant requested the Osnabrück Regional Court to revoke -

as soon as possible - the suspension of his previous sentences

according to S. 56(f) para. 1 (1) of the German Penal Code

(Strafgesetzbuch). He added that this letter should be considered as

his observations upon the envisaged decision to revoke the suspension,

and that he regretted "not to have succeeded again".

S. 56(f) para. 1 (1) of the Penal Code provides that 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, ...").

On 12 March and 3 April 1986 the Osnabrück Regional Court

revoked the suspensions of 24 October 1985. The Court stated first

that the applicant was strongly suspected of having committed a

criminal offence. The Court referred, in this respect, to the warrant

of arrest issued on 30 January 1986 and recapitulated its factual

findings. Furthermore it stated that the applicant had admitted that

he had committed the offence and requested that the suspensions be

revoked. The Court concluded that by committing another criminal

offence during the period of suspension the applicant had shown that

he did not fulfil the expectations on which the decisions to suspend

his sentences were based. ("Der Verurteilte hat dadurch, dass er

während einer laufenden Bewährungszeit erneut straffällig geworden

ist, gezeigt, dass die Erwartung, die der Strafaussetzung zugrunde

lag, sich nicht erfüllt hat.") In this respect, the Court referred in

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

On 12 and 28 May 1986, respectively, the Oldenburg Court of

Appeal (Oberlandesgericht) dismissed the applicant's appeals

(sofortige Beschwerden) against the decisions of 12 March and

3 April 1986. In its decision of 12 May 1986 the Court noted in

particular that the applicant had admitted that he had again committed

an offence. It considered that, having regard to his relapse into crime

("erneutes Versagen") two months after the suspension of his sentence,

a prolongation of the period of suspension instead of the revokation

could not be considered.

On 27 November 1986 the Federal Constitutional Court (Bundes-

verfassungsgericht) refused to admit the applicant's constitutional

complaint (Verfassungsbeschwerde) against both sets of decisions on

the ground that it offered no prospect of 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 been a reason for it not to suspend the sentence at

the time of its initial decision.

In the new criminal proceedings the indictment was preferred

on 27 June 1986. On 27 November 1986 the Kiel Regional Court ordered

a medical examination of the applicant as to his criminal

responsibility.

On 27 February 1987 the Kiel Regional Court convicted the

applicant of thirty counts of fraud and sentenced him to four years'

imprisonment. The Court relied on the applicant's confession as well

as on the medical expert opinion according to which the applicant was

not suffering from a mental illness, although it could not be excluded

that due to the weakness of his character and the neurotic development

of his life his criminal responsibility was considerably limited.

The applicant's appeal on points of law (Revision) was

dismissed by the Federal Court of Justice (Bundesgerichtshof) on

3 August 1987.

COMPLAINTS

The applicant complains under Article 6 paras. 2 and 3 (b),

(c) and (d) of the Convention that the German court decisions revoking

the suspensions of his sentences 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 7 December 1986 and

registered on 6 January 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 submitted on 15 March 1988

and received on 18 March 1988. The applicant's reply of 9 May 1988

was received on 16 May 1988.

SUBMISSIONS OF THE PARTIES

A. The respondent Government&S

The Government contend that the application is incompatible

ratione personae with the provisions of the Convention on the ground

that the applicant had admitted the fraud concerned and expressly

requested that the suspension of his previous sentences be revoked.

There was nothing to indicate that his confession was not serious or

false; in particular, it did not follow from the medical expert

opinion that his confession was unreliable. According to the

principle of "volenti non fit iniuria" the applicant cannot claim that

the court decisions of 24 October 1985 amount to a violation of his

rights under the Convention.

Moreover, the Government submit that, having regard to the

applicant's conviction on 27 February 1987 and his unsuccessful appeal

on points of law, the impugned court decisions would have, in any

event, been taken after conclusion of these proceedings. The earlier

taking of the decisions did not prejudice the applicant.

Furthermore, the Government submit that the application is

incompatible ratione materiae with the provisions of the Convention.

They refer to the Convention organs' case-law (Eur. Court H.R., Engel

and others judgment of 8 June 1976, Series A No. 22, para. 90; Eur.

Comm. H.R., No. 5620/72, Dec. 18.7.74; No. 7058/76, Dec. 12.7.76)

according to which Article 6 para. 2 of the Convention does not apply

to proceedings concerning only the kind or level of punishment. The

Government consider that this also applies in the present case. When

deciding upon whether or not to revoke the suspension of a sentence,

the competent national court also has to consider all factors relating

to the individual's personality.

Moreover, the Government contend that the application is in

any way manifestly ill-founded on the ground that the impugned court

decisions of the Osnabrück Regional Court dated 12 March and 3 April

1986 and of the Oldenburg Court of Appeal dated 12 and 28 May 1986

comply with the principles laid down by the Strasbourg organs as

regards the presumption of innocence (Eur. Court H.R., Minelli

judgment of 25 March 1983, Series A No. 62, para. 37; Eur. Comm. H.R.,

No. 7986/77, Dec. 3.10.78, D.R. 13 p. 73; No. 9212/80, Dec. 7.12.81).

The Government find that Article 6 para. 2 of the Convention

does not require an oral hearing. Rather, it is the task of the

domestic legislator to lay down the more specific rules of criminal

procedure. The Government conclude that S. 56 (f) para. 1 (1) of the

German Code of Criminal Procedure, as applied in the present case, is

in conformity with the Convention.

Furthermore they submit that both the Osnabrück Regional Court

and the Oldenburg Court of Appeal found that the applicant had

committed another criminal offence during his period of probation.

The Courts relied, in this respect, on the applicant's confession and

had no reason to doubt his criminal responsibility. The Courts

concluded, with legal effect only for the proceedings on the issue

whether or not to revoke the suspension of a sentence, that the

presumption of innocence under Article 6 para. 2 of the Convention was

refuted; and, to that extent, the applicant was proved guilty

according to law in judicial proceedings (justizförmiges Verfahren),

in which he had the opportunity to exercise the rights of the defence.

The Government also refer to the Commission's decision of

6 May 1985 on the admissibility of Application No. 11226/84, according

to which the decision to revoke the suspension of a sentence can be

based on a suspicion that the person concerned committed another

criminal offence. The German provision requiring that the competent

court is convinced that the person concerned committed another

criminal offence could only work to the latter's benefit and not

amount to a violation of his rights.

Finally, the Government submit that, though the Code of Criminal

Procedure does not expressly provide for a means to correct a decision

to revoke the suspension of a sentence, such a decision could, if

necessary, be taken as a matter of grace.

The Government request the Commission to declare the

application inadmissible as being incompatible ratione materiae

with the provisions of the Convention; alternatively, as being

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

Convention.

B. The applicant&S

The applicant considers that Article 6 para. 2 of the

Convention presupposes judicial proceedings in which the basic

guarantees of a fair trial within the meaning of Article 6 para. 1

of the Convention, in particular the right to a public hearing, are

ensured.

Furthermore the applicant submits that the timing of a

decision to revoke the suspension of a sentence should not be regarded

as optional. The facts that the applicant was later convicted and the

impugned decisions could have been taken at that time are, therefore,

irrelevant to the present case.

The applicant also finds that a reliable confession can only

constitute one of the elements to be considered in a decision to

revoke the suspension of a sentence under S. 56(f) para. 1 (1) of the

Penal Code. Without having heard the applicant in person, the Courts

concerned could not properly conclude that he did not fulfil the

expectations on which the decisions to suspend his sentence were

based.

THE LAW

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

the Convention that the German court decisions to cancel the

suspension of his 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".

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.

However, the Commission observes that the two sentences to

imprisonment were lawfully imposed on the applicant after convictions

in 1981 and 1983 and following the decisions to cancel the suspension

of the remainder of these sentences the applicant is lawfully detained

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 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 attaches particular weight to the fact that

the applicant did not only admit his guilt, but also requested that

the decision to suspend his sentences be revoked.

Furthermore the Commission notes that the Osnabrück Regional

Court, in its decisions of 12 March and 4 April 1986, stated that

there were strong suspicions against the applicant that he had

committed another criminal offence. It then referred to the warrant

of arrest against him and recapitulated the charge on which it was

based. The Court also considered that the applicant had confessed in

detail the fraud in question and requested that the suspension be

revoked, and concluded that the applicant had committed another offence

and thus did not fulfil the expectations on which the decisions to

suspend his sentences had been based. The Oldenburg Court of Appeal

found that the applicant had admitted his guilt. The Federal

Constitutional Court considered that by virtue of the principle of the

rule of law no measures amounting to a penalty may be taken against a

defendant without his guilt having been established according to law.

According to the constant jurisprudence of German courts the court

supervising the execution of sentences must be convinced of the

applicant's guilt. However, this finding of guilt did not violate the

presumption of innocence on the ground that the impugned decision only

deprived the applicant of an advantage.

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, op. cit., p. 18 para. 40).

It is true that the Regional Court, in its decisions of 12

March and 4 April 1986, concluded that the applicant had committed

another criminal offence. This reasoning was confirmed by the Court of

Appeal and by the Federal Constitutional Court which in fact assumed a

finding of guilt in the present case.

However, the Regional Court, in the two first paragraphs of

the impugned decisions, clearly pointed out that there were only new

criminal proceedings instituted against the applicant, that there was

a strong suspicion and that the charge concerned had not yet been

determined according to law. Moreover, the decisions were in

particular based upon the applicant's detailed confession and his

request that the suspension of his sentences be revoked.

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.

It follows that this part of the application must be rejected

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

(Art. 27-2) of the Convention.

2. The applicant also invokes Article 6 para. 3 (b), (c) and (d)

(Art. 6-3-b-c-d) of the Convention with regard to the above complaint.

However, the Commission finds no appearance of a violation of these

provisions.

This part of the application is, therefore, also manifestly

ill-founded within the meaning of Article 27 para. 3 (Art. 27-3) of

the Convention.

For these reasons, the Commission

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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R. v. the FEDERAL REPUBLIC OF GERMANY

R. v. the FEDERAL REPUBLIC OF GERMANY

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