AS TO THE ADMISSIBILITY OF

                      Application No. 10833/84

                      by K.G.

                      against the Federal Republic of Germany

        The European Commission of Human Rights sitting in private

on 13 October 1987, the following members being present:

              MM. C.A. NØRGAARD, President

                  J.A. FROWEIN

                  S. TRECHSEL

                  F. ERMACORA

                  G. JÖRUNDSSON

                  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 17 February

1984 by K.G. against the Federal Republic of Germany and

registered on 17 February 1984 under file N° 10833/84;

        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 1937 and living in

Munich.  He is a lawyer (Rechtsanwalt) by profession.

        The applicant's previous applications No. 8309/78 and

No. 8858/80 concerning the length of criminal proceedings against him

were declared inadmissible in May 1979 and July 1983, respectively.

        In 1964 investigation proceedings were instituted against the

applicant and others on the suspicion of having committed bombings in

Italy in 1962 and 1963.  On 29 May 1980 the applicant and some

coaccused were convicted and sentenced by the Cologne Regional Court

(Landgericht).  The applicant was found guilty on two counts of

bombing and two counts of attempted bombing and he was sentenced to

three years' imprisonment.  The judgment was eventually quashed by the

Federal Court of Justice (Bundesgerichtshof) on 3 February 1982 on

account of violation of procedural law.  The case was sent back to the

Regional Court for a new trial.

        However, on 5 October 1982 the Bonn Public Prosecutor's Office

(Staatsanwaltschaft) decided to discontinue the proceedings in

accordance with Section 153 c (3) of the Code on Criminal Procedure

(Strafprozessordnung).  In view of the fact that the offences had been

committed abroad some twenty years ago, that part of the charges laid

against the defendants would have to be dropped, and that consequently

the eventual sentences would be less severe than those imposed by the

judgment of 29 May 1980, and mainly in view of the excessive length of

the proceedings a continuation of the proceedings was considered to be

contrary to public interest while the discontinuation on the other

hand was considered as redress within the meaning of Article 50 of the

Convention with regard to the violation of the right to a speedy

trial.

        On 31 January 1983 the Cologne Regional Court rejected the

applicant's request for compensation under the Act on Compensation for

Prosecution Measures (Gesetz über die Entschädigung für Strafverfolgungs-

massnahmen) and for reimbursement of his necessary expenses incurred

in the criminal proceedings.  The Court stated that compensation could

only be granted for equity reasons.  The decision depended on an

evaluation of the case on the basis of the material and evidence

available at the moment when the proceedings were discontinued.  In

the case of the aplicant and his co-defendants the result of such

evaluation was that a conviction was most likely ("mit hoher

Wahrscheinlichkeit zu erwarten").  Even taking into account the

Federal Court's decision there was nothing to show that a new trial

would lead to a substantially different result.  Each claimant

therefore had had to expect a sentence exceeding the period he spent

in detention on remand.  In view of this procedural risk it did not

appear equitable to grant compensation or reimbursement of expenses.

        The decision was confirmed by the Cologne Court of Appeal

(Oberlandesgericht) on 6 July 1983.  The appellate court confirmed the

Regional Court's finding that for equity reasons the claims made by

the applicant and the former co-defendants had to be rejected.

        In this connection the Regional Court had, in the appellate

court's opinion, correctly taken into account the procedural risks of

the former defendants.  All had been convicted on the basis of

extensive evidence and the trial court's appreciation of the evidence

comprised 130 pages.  They had received important sentences.  The

quashing of the first judgment by the Federal Court in no way implied

- neither from a procedural nor from a material point of view - that

the former defendants would have had to be acquitted.  Even if the

principle of presumption of innocence forbade basing the denial of

compensation on any prognosis on the possible result of the

proceedings had they not been discontinued the procedural risk of the

applicant having possibly to face conviction in a new trial had to be

taken into consideration.  Compared to this risk the discontinuance of

the proceedings constituted sufficient compensation in itself avoiding

for the defendants the stress of further prosecution.  Also the

periods of detention on remand (six-and-a-half months in the

applicant's case) had not been excessive and particularly burdensome.

Denial of compensation and reimbursement of necessary expenses was in

the circumstances equitable.

        (The German text of the relevant passages reads:

        "Zutreffend hat die Strafkammer auf das erhebliche Prozessrisiko

        für alle drei Antragsteller abgehoben.  Sie alle sind nach

        eingehender Beweisaufnahme (die Beweiswürdigung umfasst etwa 130

        Seiten) zu hohen Freiheitsstrafen verurteilt worden.  Die

        Aufhebung des ersten Erkenntnisses durch den Bundesgerichtshof

        lässt keineswegs einen Freispruch als naheliegend erscheinen, und

        zwar weder aus prozessualen noch sachlichen Erwägungen.  Selbst

        wenn von der Meinung ausgegangen werden müsste, dass die

        Wahrscheinlichkeit einer Verurteilung wegen der

        Unschuldsvermutung oder aus anderen Erwägungen nicht

        ausschlaggebend sein dürfte, wäre hier eine ausreichende

        Kompensation des erheblichen Prozessrisikos und des weiteren

        schwerwiegenden langen und belastenden Verfahrens durch die

        Anklagerücknahme festzustellen.  Es kommt hinzu, dass die zu

        vergleichenden Strafverfolgungsmassnahmen nicht unangemessen

        einschneidend gewesen sind (Haftzeiten).  Somit haben die

        Angeklagten bei der Abwägung zwischen Prozessrisiko,

        Einstellungserwägungen und dem Vorteil der Verfahrensbeendigung

        eine derart kompensierende Vergünstigung erfahren, dass nach den

        Umständen des Falles eine Entschädigung nicht der Billigkeit

        entspricht.")

        The applicant then lodged a constitutional complaint (Ver-

fassungsbeschwerde) which was rejected by a group of three judges of

the Federal Constitutional Court (Bundesverfassungsgericht) on

24 August 1983 as offering no prospects of success.  According to this

decision the decisions complained of did not violate constitutional

rights, in particular they were not arbitrary.  The Court pointed out

that according to the appellate court's decision the refusal of

compensation and reimbursement was equitable even without considering

the mere likelihood of a conviction.

COMPLAINTS

        The applicant submits that the denial of his claims and the

reasons given therefor violate Article 6 para. 2 of the Convention.

THE LAW

        The applicant complains that his request to be compensated for

his detention on remand in the course of criminal proceedings which

were later discontinued, as well as his request for reimbursement of

his necessary expenses in the discontinued proceedings were rejected

by the German courts.  He also complains of the reasons given in the

decisions rejecting these requests and invokes Article 6 para. 2 (Art. 6-2) of

the Convention which guarantees the principle of 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 case of the proceedings against him being discontinued

nor does it contain any obligation to pay in such cases compensation for

detention on remand.  The provision may, however, be violated if, without the

accused 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 it

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 Cologne Regional Court stated in its

decision of 31 January 1983, inter alia, that the applicant's

conviction was most likely, in the sense that there was a procedural

risk of his being convicted again if a new trial would take place.  In

addition, the Court of Appeal, in its decision of 6 July 1983, found

that the Regional Court's finding about the "likelihood" of the

applicant's conviction only referred to the applicant's procedural

risk in case of a new trial and only meant that the decision of the

Federal Court of Justice to quash the first judgment in no way implied

that in a new trial the applicant would have been acquitted.  The

appellate court further stated that, even if the principle of

presumption of innocence forbade making a prognosis on the possible

result of a new trial, it was still justified for equity reasons to

reject the applicant's request because the discontinuance of the

proceedings avoiding for the applicant the procedural risk of an

eventual conviction and the burden of having to stand a new trial

constituted sufficient compensation.  It concluded that, in

considering the procedural risk, the reasons having motivated the

discontinuance of the proceedings and the advantage inherent for the

applicant in the termination of the proceedings, it was not equitable

in the circumstances of the case to grant compensation as requested by

the former defendants.  The Federal Constitutional Court in its

decision of 24 August 1983 stated that it was not arbitrary to deny

compensation for equity reasons in view of the procedural risk avoided

by the applicant as a result of the discontinuance of the proceedings.

        The German courts thereby meant to indicate, as they were

required to do for the purposes of the decision, that there were still

strong suspicions concerning the applicant.  In particular the

appellate court pointed out that the reasons in question only

contained an appraisal of the applicant's procedural risk in case of a

new trial.  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

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

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

principle of 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)