Lexploria

AS TO THE ADMISSIBILITY

Application No. 11735/85

by Mazhar Mouhamet ZEDAN

against the Federal Republic of Germany

The European Commission of Human Rights sitting in private on

7 October 1987, the following members being present:

MM. C.A. NØRGAARD, President

S. TRECHSEL

F. ERMACORA

M.A. TRIANTAFYLLIDES

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.C. SOYER

H.G. SCHERMERS

H. DANELIUS

G. BATLINER

H. VANDENBERGHE

Mrs. G.H. THUNE

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 3 September

1985 by Mazhar Mouhamet ZEDAN against the Federal Republic of Germany

and registered on 5 September 1985 under file No. 11735/85;

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 1926 in Syria, is a German national

resident at Heilbronn. He is a mechanic by profession. Before the

Commission he is represented by Mr. N. Wingerter, a lawyer practising

at Heilbronn.

I.

On 9 August 1983 the Heilbronn District Court (Amtsgericht)

fined the applicant for insult of one Mr. H. The Court found in

particular that the applicant's allegations as to his innocence were

clearly disproved by the evidence before it. In the criminal

proceedings Mr. H. had joined party with the prosecution

(Nebenkläger).

On 2 November 1983 the Heilbronn Regional Court (Landgericht),

pending appeal proceedings, decided, with the applicant's consent,

provisionally to suspend the criminal proceedings against him, and

ordered him to pay an amount of 250 DM to the Treasury. The Court

informed him that after payment the proceedings were to be

discontinued definitely. The Court thereby relied on S. 153a para. 2

of the German Code of Criminal Procedure (Strafprozessordnung).

S. 153a provides, inter alia:

"I. In the case of a minor offence the public prosecutor's

office may, with the consent of both the court competent to

decide on the opening of the main proceedings and the person

charged, provisionally refrain from indictment and order the

person charged

...

to pay a certain amount of money to ... the

Treasury

...

if the respective charges and orders are appropriate to

remove the public interest in prosecution in cases of minor

guilt ... If the person charged fulfils the charges and

orders, the act can no longer be prosecuted as a minor offence

...

II. After indictment the court may, with the consent of

both the public prosecutor's office and the accused,

discontinue the proceedings until the end of the trial,

during which the facts are finally assessed, and impose the

same charges and orders as mentioned in the first sentence

of paragraph 1 ..."

On 18 November 1983 the Court finally discontinued the

proceedings. It ordered the applicant to pay the costs of the

proceedings and to bear his own incidental expenses under S. 467

paras. 1 and 5 of the Code of Criminal Procedure which reads:

"I. If the accused is acquitted, or if the opening of

the main proceedings against him is refused, or if the

proceedings against him are discontinued, the costs of the

proceedings and the necessary expenses incurred by the

accused shall be borne by the Treasury.

...

V. If the court definitely discontinues the proceedings

after a provisional discontinuance (S. 153a), the necessary

expenses incurred by the accused shall not be borne by the

Treasury."

On 14 June 1985 the Heilbronn Regional Court corrected its

decision of 18 November 1983 ex officio with regard to the costs

of the proceedings. Moreover, upon the joint plaintiff's request, it

amended the decision and ordered the applicant also to bear the joint

plaintiff's individual costs. The Court found that, for reasons of

fairness to the joint plaintiff, it had to apply by analogy S. 471

para. 3 sub-para. 2 of the Code of Criminal Proceedings which concerns

the costs of proceedings in cases of private prosecution (Privatklage)

and reads:

"The court may distribute the costs of the proceedings and

the incidental costs of the parties in an appropriate way

or, within its due discretion, award the costs against

one party, if

...

the proceedings were discontinued under S. 383 para. 2 (S.

390 para. 5) in view of their trivial nature;

..."

The Court considered that the applicant, in paying the

respective amount of money to the Treasury under S. 153a of the Code

of Criminal Procedure, had admitted his guilt - though it was of a

trivial nature. He had accepted a sanction in order to avoid

conviction. S. 467 para. 5 of the Code of Criminal Procedure provided

for an equal treatment of convicted persons, and those whose

proceedings were terminated under S. 153a of the Code of Criminal

Procedure, in respect of the incidental costs of the accused. The

obligation also to bear the joint plaintiff's incidental costs would,

therefore, be justified on the respective grounds that the applicant

gave rise to the proceedings in committing the criminal offence and

that this criminal offence had been established in a manner equivalent

to a conviction. The Court further stated:

"The Court is, on the basis of the case-file, convinced of

the accused's guilt, though it is of a trivial nature. The

District Court's assessment of the facts is reasonable and

conclusive and the dismissal of the applicant's appeal would

thus have been highly probable."

("Die Strafkammer ist nach Aktenlage von einer - wenn auch

nicht schweren - Schuld des Angeklagten überzeugt. Die vom

Amtsgericht vorgenommene Beweiswürdigung ist nachvollziehbar

und schlüssig, so dass auch mit hoher Wahrscheinlichkeit mit

der Verwerfung der vom Angeklagten eingelegten Berufung zu

rechnen gewesen wäre.")

On 22 July 1985 the Stuttgart Court of Appeal (Oberlandes-

gericht) rejected the applicant's appeal (Beschwerde) against the

decision of 14 June 1985 as inadmissible on the ground that no appeal

lay against the final decision of 18 November 1983, as amended.

The applicant submits that he did not lodge a constitutional

complaint (Verfassungsbeschwerde) with the Federal Constitutional

Court (Bundesverfassungsgericht) as such a complaint would have been

unsuccessful in view of the Court's constant case-law. He refers in

particular to three decisions of the Court of 2 February 1982 (2 BvR

1312/81) concerning a decision not to reimburse the accused's

incidental costs, of 20 July 1984 (2 BvR 790/84) concerning a decision

not to compensate damages due to a criminal prosecution and of

26 November 1984 (2 BvR 627/84) also concerning the accused's own

incidental costs. In these decisions the Federal Constitutional Court

stressed that the respective previous instances neither expressly

stated the accused's guilt nor treated him as guilty.

II.

On 11 April 1985 the Heilbronn Regional Court dismissed the

applicant's request to be granted free legal aid in order to institute

civil proceedings against one Ms. O, his stepdaughter, in connection

with a hereditary title. The Court found that the applicant's claim

did not offer any prospect of success.

COMPLAINTS

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

Convention that the Regional Court's decision of 14 June 1985 ordering

him to bear the joint plaintiff's incidental costs violated the

presumption of innocence. He submits in particular that the reasons

for this decision contained an appreciation as to his guilt. He refers

to the Court's statements that he admitted his guilt and gave rise to

the proceedings in committing the criminal offence and further

observes that the Court expressed its conviction of the applicant's

guilt. Furthermore, referring to the judgments of the European Court

of Human Rights in the cases of Lutz, Englert, Nölkenbockhoff, he

maintains that the decision of the Heilbronn Regional Court amounted

to a penalty.

2. The applicant furthermore complains that the civil proceedings

before the Heilbronn Regional Court were unfair and led to incorrect

results.

THE LAW

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

Convention that the Regional Court's decision to award the joint

plaintiff's incidental costs against him and in particular the Court's

reasoning violated the presumption of innocence.

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

charged with a criminal offence the right to be "presumed innocent

until proved guilty according to law".

The Commission first recalls the Convention organs' constant

case-law according to which the presumption of innocence applies to

cases where decisions on costs after suspension or discontinuation of

criminal proceedings imply an appraisal of the guilt of the accused

(Eur. Court H.R., Lutz, Englert, Nölkenbockhoff judgments of

25 August 1987, Series A no. 123, paras. 59, 36 and 36, respectively).

However, the Commission is not required to decide whether or

not the facts alleged by the applicant disclose any appearance of a violation

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

In the present case the applicant failed to lodge a

constitutional complaint with the Federal Constitutional Court under

S. 90 of the Federal Constitutional Court's Act (Bundesverfassungs-

gerichtsgesetz).

It is true that the applicant, referring to certain decisions

of the Federal Constitutional Court in these matters, submits that a

constitutional complaint in his case would have had no prospect of

success.

However, the Commission considers that a constitutional

complaint would indeed have constituted an effective remedy within the

meaning of Article 26 (Art. 26) of the Convention.

According to the Federal Constitutional Court's constant

case-law the principle of the "presumption of innocence" is embodied

in the Constitution of the Federal Republic of Germany and has to be

considered in cases of individual complaints that, after a

discontinuation of criminal proceedings, the accused had to bear his

own incidental costs or other damages due to the prosecution (Federal

Constitutional Court's decisions of 2 February 1982, 20 July and

26 November 1984, referred to by the applicant, as well as the

decision of 30 September 1982 in the Nölkenbockhoff case, cf. Comm.

Report, op. cit., para. 28).

It is true that in those decisions the Federal Constitutional

Court has found no violation of the constitutional principle of the

presumption of innocence. However, the respective decisions did not

deal with situations directly comparable to the circumstances of the

present case. The respective cases concerned cost decisions after the

discontinuation of criminal proceedings for reasons of procedural

economy (S. 154 of the Code of Criminal Procedure) while the

proceedings against the applicant were discontinued under S. 153 of

the Code of Criminal Procedure which applies to cases of minor guilt

if certain orders and charges are fulfilled. As regards these orders

and charges, the present case also differs from the situation in the

Neubecker case (No. 6281/73, Dec. 5.3.76, D.R. 5 p. 13) under S. 153

of the Code of Criminal Procedure. Moreover, the applicant was not

only ordered to bear his own incidental costs, but also the joint

plaintiff's costs were awarded against him pursuant to an application

by analogy of S. 471 para. 3 sub-para. 2 of the Code of Criminal

Procedure.

Furthermore, the Commission had regard to the Federal

Constitutional Court's decision of 26 March 1987 whereby it quashed,

as contravening the principle of the presumption of innocence, two

decisions by district courts and one decision by a regional court

whereby the courts, having held the guilt of the defendants to be

insignificant, had stayed the private prosecutions brought against

them but had awarded the costs of the proceedings against the

defendants, including the costs and expenses of the complainants

(cases 2 Bvr 740/81 and 2 Bvr 284/85, Europäische Grundrechte-

Zeitschrift 1987, pp. 203-209; cf. Englert judgment of 25 August 1987,

Series A no. 123 paras. 22, 32 in fine).

It follows that the applicant cannot be considered as having

exhausted the remedies available to him under German law. Moreover,

an examination of the case does not disclose the existence of any

special circumstances which might have absolved the applicant,

according to the generally recognised rules of international law, from

exhausting the domestic remedies at his disposal.

It follows that the applicant has not complied with the

condition as to the exhaustion of domestic remedies, laid down in Article 26

(Art. 26) of the Convention, and his application must consequently be rejected

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

2. The applicant also complains of the alleged unfairness of the

proceedings before the Regional Court concerning his request to be

granted free legal aid. However, the Commission finds no appearance

of a violation of the Convention. It follows that this aspect of 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.

Deputy Secretary to the Commission President of the Commission

(J. RAYMOND) (C.A. NØRGAARD)

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ZEDAN v. THE FEDERAL REPUBLIC OF GERMANY

ZEDAN v. THE FEDERAL REPUBLIC OF GERMANY

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