Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 11150/84

by G.W.

against the Federal Republic of Germany

The European Commission of Human Rights sitting in private

on 9 December 1987, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

G. SPERDUTI

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

G. BATLINER

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

18 September 1984 by G.W. against the Federal Republic of

Germany and registered on 21 September 1984 under file No. 11150/84;

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 applicant is a German citizen, born in 1925 and living in

N.. He is represented by Mr. K. Kühl, a professor at

Giessen University.

On 3 December 1979 the applicant was indicted, inter alia, of

having between 1977 and 1979 acted as a professional receiver of

stolen goods.

On 13 May 1983 the Krefeld Regional Court (Landgericht),

having heard the applicant and the Public Prosecutor's Office, decided

to discontinue the proceedings in accordance with S. 206 a of the Code

of Criminal Procedure (Strafprozessordnung) on the ground that according to

medical expert opinions the applicant was permanently unfit to stand

trial for health reasons (dauernde Verhandlungsunfähigkeit).

The Court ordered that, in accordance with S. 467 para. 3

N° 2 of the Code of Criminal Procedure, the applicant had to bear his

necessary expenses because he would, in the Court's opinion, have been

convicted, had the trial taken place ("... da die Durchführung des

Verfahrens nach Auffassung der Kammer zu einer Verurteilung geführt

hätte").

Referring to the indictment the Court pointed out that the

applicant was suspected of having, as the manager of the G. Wurm

Industrie-Bedarf company, received and sold stolen nickel. For each of

the approximately thirty stolen lots worth altogether 2.5 million DM

he allegedly paid DM 12,000 to an accomplice. Although he had denied

the charges his conviction was, in the present state of the file,

nearly certain ("... nach Aktenlage ist seine Verurteilung jedoch

annähernd sicher zu erwarten").

The Court then pointed out that the four persons, who were

involved in the complex of "nickel theft" (MM G, S, M and B), had

meanwhile been convicted on 2 June 1980 of some 18 or 17 counts of

theft respectively. The judgment had become final. This judgment

contained the statements according to which the applicant had offered

and paid a remuneration to the accused for stolen nickel. The Court

added that although the above findings had no binding effect with

regard to the applicant it had to be expected that in view of the

credible confessions of the four former accomplices he would likewise

have been convicted. The Court finally stated that a claim for

compensation for the applicant's detention on remand had to be

rejected in accordance with S. 6 para. 1 N° 2 of the Act on

Compensation for Prosecution Measures (Strafrechtsentschädigungsgesetz)

because the applicant would most likely have been convicted and would

have received a severe prison sentence had the proceedings not been

discontinued.

The applicant's appeal (sofortige Beschwerde) against the

order of 13 May 1983 was rejected by the Düsseldorf Court of Appeal

(Oberlandesgericht) on 18 July 1983 as being ill-founded.

On 22 December 1983 the Court of Appeal, upon the applicant's

objections (Gegenvorstellung), reconsidered the applicant's appeal and

decided there were no reasons to quash or amend its earlier decision

of 18 July 1983. The fact that meanwhile the convicted G and B had

made statements exonerating the applicant was of no importance as

these new statements were not credible. At the trial the two had

described the applicant as being the instigator and the person who mainly

profited from the thefts. They had given no convincing explanation

why they incriminated the applicant if he had nothing to do with the

matter. Furthermore G's statement of 30 July 1983, according to which

at least three "deliveries" were made at the store-room of the

applicant's company, would - as the Public Prosecutor correctly

observed - make no sense if the applicant had not participated in the

commercialisation of the stolen goods.

On 29 March 1984 and 27 April 1984 the Court of Appeal

rejected two further objections raised by the applicant, who alleged

that his right to be heard still had not been sufficiently respected.

On 13 July 1984 a group of three judges of the Federal

Constitutional Court (Bundesverfassungsgericht) refused to admit the

applicant's constitutional complaint on the ground that it offered no

prospects of success.

The Court found that neither the refusal to reimburse the

applicant's necessary expenses nor the refusal of compensation for

detention on remand had the character of a sanction which would

violate the principle of presumption of innocence. The application of

the relevant legal provisions likewise did not violate this principle.

The Regional Court had neither established the applicant's guilt nor

treated him as being guilty. On the basis of the existing suspicion,

it had only made a prognosis on the possible result of the

proceedings. This could not be held against the applicant as a

finding of guilt, as there was no formal conviction and his innocence

had consequently still to be assumed. That the reasons given in the

order of 13 May 1983 could not be misinterpreted as containing an

appraisal of guilt also followed from the fact that the proceedings

had been discontinued. The citation of passages from the judgment

convicting the co-accused and relating to the applicant's

participation in the criminal action of these co-accused also had to

be understood as being made in the framework of a prognosis only.

Furthermore it did not violate the applicant's right to a fair trial

if the Regional Court based its decision on the state of the file at

the moment when the proceedings were discontinued. At that time the

judgment against the co-accused had been given and was part of the

file. The applicant had the opportunity to submit his comments in

writing and thus his right to be heard had been respected. Further

fact finding measures would have been contrary to the function of the

discontinuance of the proceedings.

COMPLAINTS

The applicant considers that the reasons stated in the

Regional Court's order of 13 May 1983, which was confirmed by the

Court of Appeal, contain an appraisal of guilt contrary to Art 6

para. 2 of the Convention.

THE LAW

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

Convention that the reasons given in the German court decisions not to

reimburse his necessary expenses in the discontinued proceedings and

not to award compensation for his detention on remand amount to a

violation of the presumption of innocence.

The Commission first observes that Article 6 para. 2 (Art. 6-2) does not

contain any obligation for the Contracting States to reimburse an

accused's necessary expenses in the case of the proceedings against

him being discontinued nor does it contain any obligation to pay in

such cases compensation for lawful detention on remand. The provision

may, however, be violated if, without the accused's having previously

been proved guilty according to law and, notably, without his having

had the opportunity of exercising his rights of defence, 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; Lutz, Englert, Nölkenbockhoff judgments of 25 August 1987,

Series A, no. 123, paras. 59/60, 36/37 and 36/37 respectively).

In this respect, the European Court of Human Rights found to

be decisive first whether or not "the courts confined themselves in

substance to noting the existence of 'reasonable suspicion' that the

defendant had 'committed an offence'" and second whether or not the

decision in question amounted to "a penalty or a measure that can be

equated to a penalty" (see Lutz, Englert, Nölkenbockhoff judgments

previously cited, paras. 62/63, 39/40 and 39/40 respectively).

In the present case, the Krefeld Regional Court stated in its

decision of 13 May 1983, inter alia, that the applicant would have

been convicted, had the trial taken place; that his conviction was,

in the present state of the file, nearly certain; that he would most

likely have been convicted. The Düsseldorf Court of Appeal, in its

decision of 22 December 1983, found that the statements of two

co-accused, which exonerated the applicant, were not credible. For

the Federal Constitutional Court the impugned decisions did not

establish the applicant's guilt nor treat him as guilty, but only

made, on the basis of the existing suspicion, a prognosis on the

possible result of the proceedings.

The Commission understands that the German courts thereby

meant to indicate that there were still strong suspicions concerning

the applicant. Although certain formulations were ambiguous, the

courts nevertheless confined themselves in substance to describing, on

the basis of the court file, a state of suspicion. The decision did

not contain any finding of guilt. Furthermore, the German courts,

acting on an equitable basis and having regard to the strong

suspicions which seemed to them to exist concerning the applicant, did

not impose any sanction on him, but merely refused to order that his

necessary costs and expenses or any compensation should be paid out of

public funds.

Consequently, the Commission finds that the decision of the

Krefeld Regional Court, as upheld by the Court of Appeal and the

Federal Constitutional Court, does not amount to a violation of the

principle of the presumption of innocence as guaranteed in 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 this reason, the Commission

DECLARES THE APPLICATION INADMISSIBLE

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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W. v. THE FEDERAL REPUBLIC OF GERMANY

W. v. THE FEDERAL REPUBLIC OF GERMANY

LEXI