Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 12380/86

by Dieter Otto HOUSWITSCHKA

against the Federal Republic of Germany

The European Commission of Human Rights sitting in private

on 5 October 1988 , the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

F. ERMACORA

G. SPERDUTI

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

G. BATLINER

J. CAMPINOS

H. VANDENBERGHE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

Mr. J. RAYMOND, Deputy 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 18 June 1986

by Dieter Otto Houswitschka against the Federal Republic of Germany

and registered on 2 September 1986 under file No. 12380/86;

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, as they have been submitted by the

applicant, may be summarised as follows:

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

in Karlsruhe. He is a journalist by profession. When lodging his

application he was detained in Bruchsal prison.

His previous application, No. 9859/82 concerning criminal

proceedings against him in 1981, was declared inadmissible by the

Commission on 16 March 1984.

The present application concerns two separate sets of

proceedings.

I.

On 29 November 1984 the Karlsruhe Regional Court (Land-

gericht), supervising the execution of sentences (Vollstreckungs-

gericht), suspended (Strafausetzung zur Bewährung) the remainder of a

sentence, which had been imposed on the applicant by the Stuttgart

Regional Court in 1981.

On 16 December 1985 the Karlsruhe District Court convicted

the applicant inter alia of offences under the Weapons Act (Waffen-

gesetz), forgery of documents, driving without a licence and sentenced

him to two years and three months' imprisonment.

On 21 March 1986 the Karlsruhe Regional Court, upon the

applicant's appeal (Berufung), reduced the sentence to one year and

six months' imprisonment. The Court found in particular that the

applicant had acquired a revolver and had it loaded in his possession

at the time of his arrest. The applicant did not deny these facts.

He stated, however, he had thought that he could possess and carry

such a weapon without official permission. He further stated that he

had been almost sure that it was unlawful to carry a loaded revolver.

However, he had only considered this to be a "regulatory offence"

(Ordnungswidrigkeit).

The applicant lodged an appeal on points of law (Revision).

On 2 April 1986, pending the proceedings concerning the appeal

on points of law, the Stuttgart Public Prosecutor's Office (Staatsan-

waltschaft) requested the Karlsruhe Regional Court, supervising the

execution of sentences, to revoke the suspension of the previous

sentence. The Court requested the applicant to submit his

observations within four weeks, and his request for extension of the

time-limit was not granted.

On 6 May 1986 the Karlsruhe Regional Court revoked the

suspension of 29 November 1984. The Court referred to the District

Court's judgments of 16 December 1985 and in particular to the Regional

Court's judgment of 21 March 1986. It considered the statement of

facts in the latter judgment and found that the applicant had again

committed a serious offence under the Weapons Act ("...steht nach dem

geschilderten Sachverhalt zur Überzeugung der Kammer fest, daß [der

Beschwerdeführer] erneut in erheblicher Weise gegen das Waffengesetz

verstoßen hat."). The Court concluded that, by the fact that he

committed another offence only a few months after the suspension of

his sentence, the applicant had shown that he did not fulfil the

expectations on which the suspension of his sentence was based ("...

der Verurteilte [wurde] nur wenige Monate nach seiner bedingten

Entlassung aus der Strafhaft erneut straffällig ... und [hat] dadurch

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 (Strafgesetzbuch) which 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 11 June 1986 the Karlsruhe Court of Appeal (Oberlandes-

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

Court of Appeal confirmed the reasoning in the Regional Court's

decision of 6 May 1986.

On 24 July 1986 the Federal Constitutional Court (Bundes-

verfassungsgericht) refused to admit the applicant's constitutional

complaint (Verfassungsbeschwerde). The Constitutional Court found in

particular that the courts supervising the execution of sentences were

not required under constitutional law to await the outcome of the

proceedings on the applicant's appeal on points of law before revoking

the suspension of the remainder of his previous sentence.

The applicant's appeal on points of law against his new

conviction and sentence apparently remained unsucessful.

II.

On 28 April 1986 the Karlsruhe Regional Court decided that

certain security measures should be taken against the applicant being

detained on remand, inter alia that his meals should be passed into

his cell through the hatch. His appeal (Beschwerde) was dismissed by

the Karlsruhe Court of Appeal on 13 May 1986.

On 8 August 1986 the Federal Constitutional Court, upon the

applicant's constitutional complaint, ordered an advance payment of

court fees of DM 30. On 21 November 1986 the Federal Constitutional

Court refused to admit his constitutional complaint on the ground that

he had not paid the advance fee under S. 34 para. 6 of the Federal

Constitutional Court Act (Bundesverfassungsgerichtsgesetz).

COMPLAINTS

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

Convention that the German court decision revoking the suspension of

his sentence violated the presumption of innocence. He considers

that pending the proceedings concerning his appeal on points of law

the Karlsruhe Regional Court, supervising the execution of sentences,

was not entitled to come to a finding of guilt.

2. Further, the applicant appears to complain about the court

decision of 28 April 1986 as regards his meals in prison. He also

submits that he had informed the Constitutional Court that he did not

have any financial means to pay the advance fee. He does not invoke

any provisions of the Convention in this respect.

THE LAW

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

the Convention that the German court decision to revoke the suspension

of the remainder of his previous sentence contains an appraisal of his

guilt although he had not yet been finally 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. 7986/778, 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 decision concerned in the present case, which was taken pending

the proceedings concerning the applicant's appeal on points of law.

However, the Commission observes that the sentence to

imprisonment was lawfully imposed on the applicant after his

conviction in 1981 and, following the decision to cancel the

suspension of the remainder of the sentence, the applicant is lawfully

detained in accordance with Article 5 para. 1 (a) (Art. 5-1-a) of the

Convention. The impugned decision, therefore, does not as such violate

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

The question next to be determined is whether or not the

supporting reasoning 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, in this respect, attaches particular weight to

the fact that, in the main proceedings concerning the new charges, the

Karlsruhe Regional Court, dismissing his appeal, found that the

applicant had admitted possession of a loaded revolver without licence

although he had assumed that this act constituted only a "regulatory

offence".

The Commission further notes that the Karlsruhe Regional

Court, supervising the execution of sentences, referred to the

judgments given in the new criminal proceedings against the applicant.

Considering the facts established, in particular, in the Regional

Court's judgment of 21 March 1986, it found that the applicant had

again committed an offence under the Weapons Act. This reasoning was

confirmed by the Karlsruhe Court of Appeal. The Federal Constitutional

Court considered in particular that the court supervising the

execution of sentences was not required to await the determination of

the applicant's appeal on points of 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, p. 18 para. 40; Minelli judgment,

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

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

6 May 1986, concluded that the applicant had committed another

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

and the Federal Constitutional Court.

However, the Regional Court relied on the judgments of the

competent courts in the new criminal proceedings against the

applicant. The Court, considering the reasoning given in these

judgments and, in particular, the applicant's statements as regards

the charges under the Weapons Act, as set out in the Karlsruhe

Regional Court's judgment of 21 March 1986, adopted the finding that

he had committed another criminal offence.

The Commission concludes that, in the particular circumstances

of the present case, the decision revoking the suspension of the

applicant's previous sentence does 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. As regards the applicant's further complaints concerning the

decision of 28 April 1986 relating to his meals in prison and the

subsequent court proceedings, the Commission finds that it is not

required to decide whether or not the facts alleged by the applicant

disclose any appearance of a violation of the Convention as, under

Article 26 (Art. 26) of the Convention, it may only deal with a matter

after all domestic remedies have been exhausted according to the

generally recognised rules of international law.

The Commission recalls its constant jurisprudence according to

which there is no exhaustion of domestic remedies where a domestic

appeal is not admitted because of a procedural mistake (No. 6878/75,

Dec. 6.10.76, D.R. 6 p. 79). In the present case, the Federal

Constitutional Court refused to admit the applicant's constitutional

complaint under S. 34 para. 6 of the Federal Constitutional Court Act

on the ground that he had failed to pay the advance fee required. He

has not, therefore, exhausted the remedies available to him under

German law and has thus not complied with the requirements under

Article 26 (Art. 26) of the Convention as to the exhaustion of domestic

remedies.

It follows that this part of the application must be rejected

under Article 27 para. 3 (Art. 27-3) of the Convention.

For these reasons, the Commission

DECLARES THE APPLICATION INADMISSIBLE

Deputy Secretary to the Commission President of the Commission

(J. RAYMOND) (C. A. NØRGAARD)

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HOUSWITSCHKA v. the FEDERAL REPUBLIC OF GERMANY

HOUSWITSCHKA v. the FEDERAL REPUBLIC OF GERMANY

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